11052 Federal Register / Vol. 74, No. 49 / Monday, March 16, 2009 / Proposed Rules 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 218 

RIN 0648–AX10 

Taking and Importing Marine 

Mammals; U.S. Navy Training in the 

Cherry Point Range Complex 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: NMFS has received a request 

from the U.S. Navy (Navy) for 

authorization to take marine mammals 

incidental to training activities 

conducted within the Cherry Point 

Range Complex for the period of May 

2009 through May 2014. Pursuant to the 

Marine Mammal Protection Act 

(MMPA), NMFS is proposing 

regulations to govern that take and 

requesting information, suggestions, and 

comments on these proposed 

regulations. 

DATES: Comments and information must 

be received no later than April 6, 2009. 

ADDRESSES: You may submit comments, 

identified by 0648–AX10, by any one of 

the following methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal http:// 

www.regulations.gov. 

• Hand delivery or mailing of paper, 

disk, or CD–ROM comments should be 

addressed to Michael Payne, Chief, 

Permits, Conservation and Education 

Division, Office of Protected Resources, 

National Marine Fisheries Service, 1315 

East-West Highway, Silver Spring, MD 

20910–3225. 

Instructions: All comments received 

are part of the public record and will 

generally be posted to http:// 

www.regulations.gov without change. 

All Personal Identifying Information (for 

example, name, address, etc.) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 

submit Confidential Business 

Information or otherwise sensitive or 

protected information. 

NMFS will accept anonymous 

comments (enter NA in the required 

fields if you wish to remain 

anonymous). Attachments to electronic 

comments will be accepted in Microsoft 

Word, Excel, WordPerfect, or Adobe 

PDF file formats only. 

FOR FURTHER INFORMATION CONTACT: 

Shane Guan, Office of Protected 

Resources, NMFS, (301) 713–2289, ext. 

137. 

SUPPLEMENTARY INFORMATION: 

Availability 

A copy of the Navy’s application may 

be obtained by writing to the address 

specified above (See ADDRESSES), 

telephoning the contact listed above (see 

FOR FURTHER INFORMATION CONTACT), or 

visiting the Internet at: http:// 

www.nmfs.noaa.gov/pr/permits/

incidental.htm. The Navy’s Draft 

Environmental Impact Statement (DEIS) 

for the Cherry Point Range Complex was 

published on September 12, 2008, and 

may be viewed at http://www.Navy

CherryPointRangeComplexEIS.com. 

NMFS participated in the development 

of the Navy’s DEIS as a cooperating 

agency under the National 

Environmental Policy Act (NEPA). 

Background 

Sections 101(a)(5)(A) and (D) of the 

MMPA (16 U.S.C. 1361 et seq.) direct 

the Secretary of Commerce (Secretary) 

to allow, upon request, the incidental, 

but not intentional taking of marine 

mammals by U.S. citizens who engage 

in a specified activity (other than 

commercial fishing) during periods of 

not more than five consecutive years 

each if certain findings are made and 

regulations are issued or, if the taking is 

limited to harassment, notice of a 

proposed authorization is provided to 

the public for review. 

Authorization shall be granted if 

NMFS finds that the taking will have a 

negligible impact on the species or 

stock(s), will not have an unmitigable 

adverse impact on the availability of the 

species or stock(s) for subsistence uses, 

and if the permissible methods of taking 

and requirements pertaining to the 

mitigation, monitoring and reporting of 

such taking are set forth. NMFS has 

defined ‘‘negligible impact’’ in 50 CFR 

216.103 as: 

An impact resulting from the specified 

activity that cannot be reasonably expected 

to, and is not reasonably likely to, adversely 

affect the species or stock through effects on 

annual rates of recruitment or survival. 

The National Defense Authorization 

Act of 2004 (NDAA) (Public Law 108– 

136) removed the ‘‘small numbers’’ and 

‘‘specified geographical region’’ 

limitations and amended the definition 

of ‘‘harassment’’ as it applies to a 

‘‘military readiness activity’’ to read as 

follows (Section 3(18)(B) of the MMPA): 

(i) Any act that injures or has the 

significant potential to injure a marine 

mammal or marine mammal stock in the wild 

[Level A Harassment]; or (ii) any act that 

disturbs or is likely to disturb a marine 

mammal or marine mammal stock in the wild 

by causing disruption of natural behavioral 

patterns, including, but not limited to, 

migration, surfacing, nursing, breeding, 

feeding, or sheltering, to a point where such 

behavioral patterns are abandoned or 

significantly altered [Level B Harassment]. 

Summary of Request 

On June 13, 2008, NMFS received an 

application from the Navy requesting 

authorization for the take of Atlantic 

spotted dolphin incidental to the 

proposed training activities in the 

Cherry Point Range Complex over the 

course of 5 years. These training 

activities are classified as military 

readiness activities. The Navy states that 

these training activities may cause 

various impacts to marine mammal 

species in the proposed Cherry Point 

Range Complex area. The Navy requests 

an authorization to take two individuals 

of this species annually by Level B 

Harassment. Please refer to the take 

table on page 6 of the Addendum of the 

LOA application for detailed 

information of the potential exposures 

from explosive ordnance (per year) for 

marine mammals in the Cherry Point 

Range Complex. However, due to the 

implementation of the proposed 

mitigation and monitoring measures, 

NMFS believes that the actual take 

would be less than estimated. 

Description of the Specified Activities 

The Navy Cherry Point Range 

Complex geographically encompasses 

offshore and near-shore operating areas 

(OPAREAs), instrumented ranges, and 

special use airspace (SUA) located along 

the southern east coast (North Carolina 

and South Carolina) of the U.S. Atlantic 

coast (see Figure 1 of the LOA 

application). The action area includes 

the area from the shoreline to the 3 nm 

(5.6 km) boundary of the OPAREA, as 

well as the Cherry Point OPAREA. 

Together, components of the Navy 

Cherry Point Range Complex 

encompass: 

• 18,966 nm2 of special use airspace 

(warning area); 

• 18,617 nm2 of offshore surface and 

subsurface OPAREA; and 

• 12,529 nm2 of subsurface area 

greater than 100 fathoms (600 ft) in 

depth. 

In the application submitted to 

NMFS, the Navy requests an 

authorization to take marine mammals 

incidental to conducting training 

operations within the Cherry Point 

Range Complex. These training 

activities consist of surface warfare, 

mine warfare, amphibious warfare, and 

vessel movement. A description of each 

Federal Register / Vol. 74, No. 49 / Monday, March 16, 2009 / Proposed Rules 11053 

of these training activities is provided 

below: 

Surface Warfare 

Surface Warfare (SUW) supports 

defense of a geographical area (e.g., a 

zone or barrier) in cooperation with 

surface, subsurface, and air forces. SUW 

operations detect, localize, and track 

surface targets, primarily ships. 

Detected ships are monitored visually 

and with radar. Operations include 

identifying surface contacts, engaging 

with weapons, disengaging, evasion, 

and avoiding attack, including 

implementation of radio silence and 

deceptive measures. For the proposed 

Cherry Point Range Complex training 

operations, SUW events involving the 

use of explosive ordnance include airto-surface Missile Exercises (MISSILEX) 

that occur at sea. 

Air-to-surface missile exercises 

involve helicopter (AH–1W) crews 

launching missiles at at-sea surface 

targets with the goal of destroying or 

disabling the target. MISSILEX (A–S) 

training in the Navy Cherry Point Study 

Area can occur during the day or at 

night. Table 1 below summarizes the 

level of MISSILEX planned in the 

Cherry Point Range Complex for the 

proposed action. 

TABLE 1—LEVEL OF MISSILEX PLANNED IN THE CHERRY POINT RANGE COMPLEX PER YEAR

Operation Platform System/ordnance Number of events Potential time of day 

Missile Exercise 

(MISSILEX) (Air to 

Surface).

AH–1W .... AGM–114 (Hellfire; 8-pound [lb] Net Explosive 

Weight [NEW] High Explosive [HE] rounds 1

and Non-Explosive Practice Munitions [NEPM]).

8 sorties (5 HE missiles; 

3 NEPM).

Day or Night. 

Tube-launched, Optically tracked, Wire-guided 

(TOW) Missile (all 15.33 NEW HE rounds)1.

8 sorties (8 missiles).

1 Uses stationary or towed surface targets; 1 missile/sortie. 

Mine Warfare/Mine Exercises 

Mine Warfare (MIW) includes the 

strategic, operational, and tactical use of 

mines and mine countermine measures 

(MCM). MIW is divided into two basic 

subdivisions: (a) The laying of mines to 

degrade the enemy’s capabilities to 

wage land, air, and maritime warfare, 

and (b) the countering of enemy-laid 

mines to permit friendly maneuver or 

use of selected land or sea areas (DoN, 

2007d). 

MIW consists of two unit level 

operations: Airborne mine 

countermeasures (AMCM) and mine 

neutralization. AMCM or Mine 

Countermeasures Exercises (MCMEX) 

train forces to detect, identify, classify, 

mark, avoid, and disable (or verify 

destruction of) underwater mines 

(bottom or moored) using a variety of 

methods including air, surface, subsurface, and ground assets. The AMCM 

systems include mine hunting sonar 

(AQS–24A), influence mine sweeping 

systems (MK–105 and MK–104), antimine ordnance (Airborne Mine 

Neutralization System [AMNS]), and 

moored mine sweep system (MK–103). 

Mine Neutralization operations 

involve the detection, identification, 

evaluation, rendering safe, and disposal 

of underwater Unexploded Ordnance 

(UXO) that constitutes a threat to ships 

or personnel. Mine hunting techniques 

involve divers, specialized sonar, and 

unmanned underwater vehicles (UUVs) 

to locate and classify the mines and 

then destroy them using one of two 

methods: mechanical (explosive cutters) 

or influence (matching the acoustic, 

magnetic, or pressure signature of the 

mine). 

In addition to the current mine 

exercises (AMCM), the Organic 

Airborne Mine Countermeasures 

(OAMCM) training exercises will begin 

in the Navy Cherry Point Operating 

Area (OPAREA) as these new systems 

are introduced into the fleet. The 

OAMCM systems include mine hunting 

sonar (AQS–20), influence mine 

sweeping towed arrays (Organic 

Airborne and Surface Influence Sweep 

[OASIS]) that emulates the magnetic 

and acoustic signatures of transit 

platforms, anti-mine ordnance systems 

(Rapid Airborne Mine Clearance System 

[RAMICS] and AMNS), and mine 

hunting laser (Airborne Laser Mine 

Detection System [ALMDS]) that uses a 

light imaging detecting and ranging 

(LIDAR) to detect, localize, and classify 

near-surface moored/floating mines. 

MIW training using Explosive 

Ordnance Disposal (EOD) underwater 

detonations in the Navy Cherry Point 

Study Area occur only during daylight 

hours in the locations described in 

Figure 1 of the LOA application. Table 

2 below shows a summarized level of 

MIW in the Cherry Point Study Area. 

TABLE 2—LEVEL OF MINE WARFARE PLANNED IN THE CHERRY POINT RANGE COMPLEX PER YEAR

Operation Platform System/ordnance Number of 

events per year 

Potential time of 

day Duration of event 

Mine Neutralization ......................... EOD ......... 20 lb NEW charges ....................... 20 events ........... Day .................... 8 hours. 

EOD personnel detect, identify, 

evaluate, and neutralize mines. The 

EOD mission during training is to locate 

and neutralize mine shapes after they 

are initially located by another source, 

such as an MCM or coastal minehunter 

MHC class ship or an MH–53 or MH– 

60 helicopter. For underwater 

detonations, EOD divers are deployed 

from a ship or small boat to practice 

neutralizing a mine shape underwater. 

The neutralization exercise in the water 

is normally done with an explosive 

charge of 20-lbs NEW. The initiation of 

the charge is controlled remotely by 

EOD personnel. If the mine shape were 

an actual mine, it would explode due to 

the pressure and energy exerted in the 

water from the smaller EOD explosive 

charge. This training is conducted only 

during day light hours in the Cherry 

Point Area. 

Amphibious Warfare 

Amphibious Warfare (AMW) involves 

the utilization of naval firepower and 

logistics in combination with U.S. 

Marine Corps (USMC) landing forces to 

project military power ashore. AMW 

encompasses a broad spectrum of 

operations involving maneuver from the 

sea to objectives ashore, ranging from 

shore assaults, boat raids, ship-to-shore 

maneuver, shore bombardment and 

other naval fire support, and air strike 

11054 Federal Register / Vol. 74, No. 49 / Monday, March 16, 2009 / Proposed Rules 

and close air support training. In the 

Cherry Point Study Area, AMW training 

is limited to Firing Exercises (FIREX). 

During a FIREX, surface ships use 

their main battery guns to fire from sea 

at land targets in support of military 

forces ashore. On the east coast, the land 

ranges where FIREX training can take 

place are limited. Therefore, land 

masses are simulated during east coast 

FIREX training using the Integrated 

Maritime Portable Acoustic Scoring and 

Simulation System (IMPASS) system, a 

system of buoys that simulate a land 

mass. FIREX training using IMPASS in 

the Cherry Point Study Area would 

occur only during daylight hours in the 

locations described in Figure 1 of the 

LOA application. Table 3 below 

summarizes the levels of FIREX with 

IMPASS planned in the Cherry Point 

Range Complex for the proposed action. 

TABLE 3—LEVEL OF FIREX WITH IMPASS PLANNED IN THE CHERRY POINT RANGE COMPLEX PER YEAR

Operation Platform System/ordnance Number of events Potential time 

of day 

Duration of 

event 

FIREX with IMPASS ............... CG, DDG 5′′ gun (IMPASS) .................... 2 events (78 rounds) .............. Day ................. 12 hours. 

Vessel Movement 

Vessel movements are associated with 

most activities under the training 

operations in the Navy Cherry Point 

Study Area. Currently, the number of 

Navy vessels operating in the Navy 

Cherry Point Study Area varies based on 

training schedules and can range from 0 

to about 10 vessels at any given time. 

Ship sizes range from 362 ft for a 

submarine (SSN) to 1,092 ft for an 

aircraft carrier (CVN) and speeds 

generally range from 10 to 14 knots (kt). 

Operations involving vessel movements 

occur intermittently and are variable in 

duration, ranging from a few hours up 

to 2 weeks. These operations are widely 

dispersed throughout the OPAREA, 

which is a vast area encompassing 

18,617 square nautical miles (nm2) (an 

area approximately the size of West 

Virginia). The Navy logs about 950 total 

vessel days within the Study Area 

during a typical year. Consequently, the 

density of ships within the Study Area 

at any given time is extremely low (i.e., 

less than 0.005 ships/nm2). 

Description of Marine Mammals in the 

Area of the Specified Activities 

There are 33 cetacean species, 4 

pinniped species, and 1 sirenian species 

that have the potential or are confirmed 

to occur in the Cherry Point Range 

Complex (DoN, 2008). However, only 34 

of those species are expected to occur 

regularly in the OPAREA, as indicated 

in Table 4. The remaining species are 

considered extralimital in the Study 

Area; indicating there are one or more 

records of an animal’s presence in the 

Study Area, but it is considered beyond 

the normal range of the species. 

Extralimital species will not be analyzed 

further in this study. 

TABLE 4—MARINE MAMMAL SPECIES FOUND IN THE CHERRY POINT RANGE COMPLEX

Family and scientific name Common name Federal status 

Order Cetacea 

Suborder Mysticeti (baleen whales) 

Eubalaena glacialis ............................................ North Atlantic right whale ................................. Endangered. 

Megaptera novaeangliae .................................... Humpback whale ............................................. Endangered. 

Balaenoptera acutorostrata ................................ Minke whale.

B. brydei ............................................................. Bryde’s whale.

B. borealis .......................................................... Sei whale ......................................................... Endangered. 

B. physalus ......................................................... Fin whale .......................................................... Endangered. 

B. musculus ........................................................ Blue whale ....................................................... Endangered. 

Suborder Odontoceti (toothed whales) 

Physeter macrocephalus .................................... Sperm whale .................................................... Endangered. 

Kogia breviceps .................................................. Pygmy sperm whale.

K. sima ............................................................... Dwarf sperm whale.

Ziphius cavirostris ............................................... Cuvier’s beaked whale.

Mesoplodon minus ............................................. True’s beaked whale.

M. europaeus ..................................................... Gervais’ beaked whale.

M. bidens ............................................................ Sowerby’s beaked whale.

M. densirostris .................................................... Blainville’s beaked whale.

Steno bredanensis ............................................. Rough-toothed dolphin.

Tursiops truncatus .............................................. Bottlenose dolphin.

Stenella attenuata .............................................. Pantropical spotted dolphin.

S. frontalis .......................................................... Atlantic spotted dolphin.

S. longirostris ...................................................... Spinner dolphin.

S. clymene .......................................................... Clymene dolphin.

S. coeruleoalba .................................................. Striped dolphin.

Delphinus delphis ............................................... Common dolphin.

Lagenodephis hosei ........................................... Fraser’s dolphin.

Grampus griseus ................................................ Risso’s dolphin.

Peponocephala electra ....................................... Melon-headed whale.

Feresa attenuata ................................................ Pygmy killer whale.

Pseudorca crassidens ........................................ False killer whale.

Orcinus orca ....................................................... Killer whale.

Federal Register / Vol. 74, No. 49 / Monday, March 16, 2009 / Proposed Rules 11055 

TABLE 4—MARINE MAMMAL SPECIES FOUND IN THE CHERRY POINT RANGE COMPLEX—Continued 

Family and scientific name Common name Federal status 

Globicephala melas ............................................ Long-finned pilot whale.

G. macrorhynchus .............................................. Short-finned pilot whale.

Phocoena phocoena .......................................... Harbor porpoise.

Order Carnivora 

Suborder Pinnipedia (seals, sea lions, walruses) 

Phoca vitulina ..................................................... Harbor seal.

Order Sirenia 

Trichechus manatus ........................................... West Indian manatee ....................................... Endangered. 

The information contained herein 

relies heavily on the data gathered in 

the Marine Resource Assessments 

(MRAs). The Navy MRA Program was 

implemented by the Commander, Fleet 

Forces Command, to initiate collection 

of data and information concerning the 

protected and commercial marine 

resources found in the Navy’s 

OPAREAs. Specifically, the goal of the 

MRA program is to describe and 

document the marine resources present 

in each of the Navy’s OPAREAs. The 

MRA for the Cherry Point Study Area 

was recently updated in 2008 (DoN, 

2008). 

The MRA data were used to provide 

a regional context for each species. The 

MRA represents a compilation and 

synthesis of available scientific 

literature (e.g., journals, periodicals, 

theses, dissertations, project reports, 

and other technical reports published by 

government agencies, private 

businesses, or consulting firms), and 

NMFS reports including stock 

assessment reports, recovery plans, and 

survey reports. 

The density estimates that were used 

in previous Navy environmental 

documents have been recently updated 

to provide a compilation of the most 

recent data and information on the 

occurrence, distribution, and density of 

marine mammals. The updated density 

estimates presented in this assessment 

are derived from the Navy OPAREA 

Density Estimates (NODE) for the 

Southeast OPAREAs report (DoN, 2007). 

Quantification of marine mammal 

density and abundance was primarily 

accomplished by evaluating linetransect survey data which was 

collected by the NMFS Northeast and 

Southeast Fisheries Science Centers 

(NEFSC and SEFSC). The NEFSC and 

SEFSC are the technical centers within 

NMFS that are responsible for collecting 

and analyzing data to assess marine 

mammal stocks in the U.S. Atlantic 

Exclusive Economic Zone (EEZ). These 

data sets were analyzed and evaluated 

in conjunction with regional subject 

matter experts, NMFS technical staff, 

and scientists with the University of St. 

Andrews, Scotland, Centre for 

Environmental and Ecological 

Modelling (CREEM). Methods and 

results are detailed in NODE Reports 

covering all U.S. Atlantic coast 

OPAREAS as well as the Gulf of Mexico. 

Density estimates for cetaceans were 

derived in one of three ways, in order 

of preference: (1) Through spatial 

models using line-transect survey data 

provided by the NMFS (as discussed 

below); (2) using abundance estimates 

from Mullin and Fulling (2003); or (3) 

based on the cetacean abundance 

estimates found in the NMFS stock 

assessment reports (SAR; Waring et al., 

2007), which can be viewed at http:// 

www.nmfs.noaa.gov/pr/sars/ 

species.htm. The following lists how 

density estimates were derived for each 

species: 

Model-Derived Density Estimates 

Fin whale, sperm whale, beaked 

whales, bottlenose dolphin, Atlantic 

spotted dolphin, striped dolphin, 

common dolphin, Risso’s dolphin, and 

pilot whales. 

SAR or Literature-Derived Density 

Estimates 

North Atlantic right whale, humpback 

whale, minke whale, Kogia spp., roughtoothed dolphin, pantropical spotted 

dolphin, and Clymene dolphin. 

Species for Which Density Estimates Are 

Not Available 

Blue whale, sei whale, Bryde’s whale, 

killer whale, pygmy killer whale, false 

killer whale, melon-headed whale, 

spinner dolphin, Fraser’s dolphin, 

harbor porpoise. 

Spatial modeling using Program 

DISTANCE (RUWPA), a program based 

on Buckland et al. (2001, 2004), is the 

primary method of density estimation 

used to produce the updated NODE 

reports. Together with appropriate linetransect survey data, this method 

provides the most accurate/up-to-date 

density information for marine 

mammals in U.S. Navy OPAREAs. The 

density estimates in this document were 

calculated by a team of experts using 

survey data collected and provided by 

the NMFS and with expert modeling 

support provided by CREEM. 

Researchers at CREEM are recognized as 

the international authority on density 

estimation and have been at the 

forefront in development of new 

techniques and analysis methods for 

animal density including spatial 

modeling techniques. Spatial modeling 

techniques have an advantage over 

traditional line-transect/distance 

sampling techniques in that they can 

provide relatively fine scale estimates 

for areas with limited or no available 

survey effort by creating models based 

on habitat parameters associated with 

observations from other surveys with 

similar spatial or temporal 

characteristics. Analysis of line-transect 

data in this manner allows for finerscale spatial and/or temporal resolution 

of density estimates, providing 

indications of regions within the study 

area where higher and lower 

concentrations of marine mammals may 

occur rather than the traditional 

approach of generating a single estimate 

covering a broad spatial strata. These 

generic spatial strata tend to mask the 

finer scale habitat associations 

suggested by the specific ecology of an 

individual species. 

For the model-based approach, 

density estimates were calculated for 

each species within areas containing 

survey effort. A relationship between 

these density estimates and the 

associated environmental parameters 

such as depth, slope, distance from the 

shelf break, sea surface temperature 

(SST), and chlorophyll a concentration 

was formulated using generalized 

additive models (GAMs). This 

relationship was then used to generate 

a two-dimensional density surface for 

11056 Federal Register / Vol. 74, No. 49 / Monday, March 16, 2009 / Proposed Rules 

the region by predicting densities in 

areas where no survey data exist. For 

the Southeast, all analyses for cetaceans 

were based on sighting data collected 

through shipboard surveys conducted 

by the NMFS NEFSC and SEFSC 

between 1998 and 2005. Speciesspecific density estimates derived 

through spatial modeling were 

compared with abundance estimates 

found in the SAR (Waring et al., 2007) 

to ensure consistency and all spatial 

models and density estimates were 

reviewed by NMFS technical staff. For 

a more detailed description of the 

methodology involved in calculating the 

density estimates, please refer to the 

NODE report for the Southeast 

OPAREAs (DoN, 2007a). 

Potential Impacts to Marine Mammal 

Species 

The Navy considers that explosions 

associated with MISSILEX, FIREX with 

IMPASS, and MINEX are the activities 

with the potential to result in Level A 

or Level B harassment of marine 

mammals. Vessel strikes were also 

analyzed for potential effect to marine 

mammals. 

Vessel Strikes 

Collisions with commercial and Navy 

ships can result in serious injury and 

may occasionally cause fatalities to 

cetaceans and manatees. Although the 

most vulnerable marine mammals may 

be assumed to be slow-moving 

cetaceans or those that spend extended 

periods of time at the surface in order 

to restore oxygen levels within their 

tissues after deep dives (e.g., sperm 

whale), fin whales are actually struck 

most frequently (Laist et al., 2001). 

Manatees are also particularly 

susceptible to vessel interactions and 

collisions with watercraft constitute the 

leading cause of mortality (USFWS, 

2007). Smaller marine mammals such as 

bottlenose and Atlantic spotted 

dolphins move more quickly throughout 

the water column and are often seen 

riding the bow wave of large ships. 

Marine mammal responses to vessels 

may include avoidance and changes in 

dive pattern (NRC, 2003). 

After reviewing historical records and 

computerized stranding databases for 

evidence of ship strikes involving 

baleen and sperm whales, Laist et al. 

(2001) found that accounts of large 

whale ship strikes involving motorized 

boats in the area date back to at least the 

late 1800s. Ship collisions remained 

infrequent until the 1950s, after which 

point they increased. Laist et al. (2001) 

report that both the number and speed 

of motorized vessels have increased 

over time for trans-Atlantic passenger 

services, which transit through the area. 

They concluded that most strikes occur 

over or near the continental shelf, that 

ship strikes likely have a negligible 

effect on the status of most whale 

populations, but that for small 

populations or segments of populations 

the impact of ship strikes may be 

significant. 

Although ship strikes may result in 

the mortality of a limited number of 

whales within a population or stock, 

Laist et al. (2001) also concluded that, 

when considered in combination with 

other human-related mortalities in the 

area (e.g., entanglement in fishing gear), 

these ship strikes may present a concern 

for whale populations. 

Of 11 species known to be hit by 

ships, fin whales are struck most 

frequently; followed by right whales, 

humpback whales, sperm whales, and 

gray whales (Laist et al., 2001). In some 

areas, one-third of all fin whale and 

right whale strandings appear to involve 

ship strikes. Sperm whales spend long 

periods (typically up to 10 minutes; 

Jacquet et al., 1996) ‘‘rafting’’ at the 

surface between deep dives. This could 

make them exceptionally vulnerable to 

ship strikes. Berzin (1972) noted that 

there were ‘‘many’’ reports of sperm 

whales of different age classes being 

struck by vessels, including passenger 

ships and tug boats. There were also 

instances in which sperm whales 

approached vessels too closely and were 

cut by the propellers (NMFS, 2006). 

The east coast is a principal migratory 

corridor for North Atlantic right whales 

that travel between the calving/nursery 

areas in the Southeastern United States 

and feeding grounds in the northeast 

U.S. and Canada. Transit to the Study 

Area from mid-Atlantic ports requires 

Navy vessels to cross the migratory 

route of North Atlantic right whales. 

Southward right whale migration 

generally occurs from mid- to late 

November, although some right whales 

may arrive off the Florida coast in early 

November and stay into late March 

(Kraus et al., 1993). The northbound 

migration generally takes place between 

January and late March. Data indicate 

that during the spring and fall 

migration, right whales typically occur 

in shallow water immediately adjacent 

to the coast, with over half the sightings 

(63 percent) occurring within 18.5 km 

(10 NM), and 94.1 percent reported 

within 55 km (30 NM) of the coast. 

Given the low abundance of North 

Atlantic right whales relative to other 

species, the frequency of occurrence of 

vessel collisions to right whales suggests 

that the threat of ship strikes is 

proportionally greater to this species 

(Jensen and Silber, 2003). Therefore, in 

2008, NMFS published a final rule 

concerning right whale vessel collision 

reduction strategy and established 

operational measures for the shipping 

industry to reduce the potential for large 

vessel collisions with North Atlantic 

right whales while transiting to and 

from mid-Atlantic ports during right 

whale migratory periods (73 FR 60173; 

October 10, 2008). Although NMFS’ 

ship strike rule does not apply to the 

Navy’s activities, the Navy developed its 

own ship strike avoidance measures to 

reduce the probability of ship strikes. 

Recent studies of right whales have 

shown that these whales tend to lack a 

response to the sounds of oncoming 

vessels (Nowacek et al., 2004). Although 

Navy vessel traffic generally represents 

only 2–3 percent of overall large vessel 

traffic, based on this biological 

characteristic and the presence of 

critical Navy ports along the whales’ 

mid-Atlantic migratory corridor, the 

Navy was the first federal agency to 

proactively adopt additional mitigation 

measures for transits in the vicinity of 

mid-Atlantic ports during right whale 

migration. 

Accordingly, the Navy has proposed 

mitigation measures to reduce the 

potential for collisions with surfaced 

marine mammals (for more details refer 

to Proposed Mitigation Measures 

below). Based on the implementation of 

Navy mitigation measures, especially 

during times of anticipated right whale 

occurrence, and the relatively low 

density of Navy ships in the Study Area 

the likelihood that a vessel collision 

would occur is very low. 

Assessment of Marine Mammal 

Response to Anthropogenic Sound 

Marine mammals respond to various 

types of anthropogenic sounds 

introduced in the ocean environment. 

Responses are typically subtle and can 

include shorter surfacings, shorter 

dives, fewer blows per surfacing, longer 

intervals between blows (breaths), 

ceasing or increasing vocalizations, 

shortening or lengthening vocalizations, 

and changing frequency or intensity of 

vocalizations (NRC, 2005). However, it 

is not known how these responses relate 

to significant effects (e.g., long-term 

effects or population consequences). 

The following is an assessment of 

marine mammal responses and 

disturbances when exposed to 

anthropogenic sound. 

I. Physiology 

Potential impacts to the auditory 

system are assessed by considering the 

characteristics of the received sound 

(e.g., amplitude, frequency, duration) 

and the sensitivity of the exposed 

Federal Register / Vol. 74, No. 49 / Monday, March 16, 2009 / Proposed Rules 11057 

animals. Some of these assessments can 

be numerically based (e.g., temporary 

threshold shift [TTS] of hearing 

sensitivity, permanent threshold shift 

[PTS] of hearing sensitivity, perception). 

Others will be necessarily qualitative, 

due to a lack of information, or will 

need to be extrapolated from other 

species for which information exists. 

Potential physiological responses to 

the sound exposure are ranked in 

descending order, with the most severe 

impact (auditory trauma) occurring at 

the top and the least severe impact 

occurring at the bottom (the sound is 

not perceived). 

Auditory trauma represents direct 

mechanical injury to hearing related 

structures, including tympanic 

membrane rupture, disarticulation of 

the middle ear ossicles, and trauma to 

the inner ear structures such as the 

organ of Corti and the associated hair 

cells. Auditory trauma is always 

injurious that could result in PTS. 

Auditory trauma is always assumed to 

result in a stress response. 

Auditory fatigue refers to a loss of 

hearing sensitivity after sound 

stimulation. The loss of sensitivity 

persists after, sometimes long after, the 

cessation of the sound. The mechanisms 

responsible for auditory fatigue differ 

from auditory trauma and would 

primarily consist of metabolic 

exhaustion of the hair cells and cochlear 

tissues. The features of the exposure 

(e.g., amplitude, frequency, duration, 

temporal pattern) and the individual 

animal’s susceptibility would determine 

the severity of fatigue and whether the 

effects were temporary (TTS) or 

permanent (PTS). Auditory fatigue (PTS 

or TTS) is always assumed to result in 

a stress response. 

Sounds with sufficient amplitude and 

duration to be detected among the 

background ambient noise are 

considered to be perceived. This 

category includes sounds from the 

threshold of audibility through the 

normal dynamic range of hearing (i.e., 

not capable of producing fatigue). 

To determine whether an animal 

perceives the sound, the received level, 

frequency, and duration of the sound 

are compared to what is known of the 

species’ hearing sensitivity. 

Since audible sounds may interfere 

with an animal’s ability to detect other 

sounds at the same time, perceived 

sounds have the potential to result in 

auditory masking. Unlike auditory 

fatigue, which always results in a stress 

response because the sensory tissues are 

being stimulated beyond their normal 

physiological range, masking may or 

may not result in a stress response, 

depending on the degree and duration 

of the masking effect. Masking may also 

result in a unique circumstance where 

an animal’s ability to detect other 

sounds is compromised without the 

animal’s knowledge. This could 

conceivably result in sensory 

impairment and subsequent behavior 

change; in this case, the change in 

behavior is the lack of a response that 

would normally be made if sensory 

impairment did not occur. For this 

reason, masking also may lead directly 

to behavior change without first causing 

a stress response. 

The features of perceived sound (e.g., 

amplitude, duration, temporal pattern) 

are also used to judge whether the 

sound exposure is capable of producing 

a stress response. Factors to consider in 

this decision include the probability of 

the animal being naı ̈ve or experienced 

with the sound (i.e., what are the 

known/unknown consequences of the 

exposure). 

If the received level is not of sufficient 

amplitude, frequency, and duration to 

be perceptible by the animal, by 

extension, this does not result in a stress 

response (not perceived). Potential 

impacts to tissues other than those 

related to the auditory system are 

assessed by considering the 

characteristics of the sound (e.g., 

amplitude, frequency, duration) and the 

known or estimated response 

characteristics of non-auditory tissues. 

Some of these assessments can be 

numerically based (e.g., exposure 

required for rectified diffusion). Others 

will be necessarily qualitative, due to 

lack of information. Each of the 

potential responses may or may not 

result in a stress response. 

Direct tissue effects—Direct tissue 

responses to sound stimulation may 

range from tissue shearing (injury) to 

mechanical vibration with no resulting 

injury. 

No tissue effects—The received sound 

is insufficient to cause either direct 

(mechanical) or indirect effects to 

tissues. No stress response occurs. 

II. The Stress Response 

The acoustic source is considered a 

potential stressor if, by its action on the 

animal, via auditory or non-auditory 

means, it may produce a stress response 

in the animal. The term ‘‘stress’’ has 

taken on an ambiguous meaning in the 

scientific literature, but with respect to 

the later discussions of allostasis and 

allostatic loading, the stress response 

will refer to an increase in energetic 

expenditure that results from exposure 

to the stressor and which is 

predominantly characterized by either 

the stimulation of the sympathetic 

nervous system (SNS) or the 

hypothalamic-pituitary-adrenal (HPA) 

axis (Reeder and Kramer, 2005). The 

SNS response to a stressor is immediate 

and acute and is characterized by the 

release of the catecholamine 

neurohormones norepinephrine and 

epinephrine (i.e., adrenaline). These 

hormones produce elevations in the 

heart and respiration rate, increase 

awareness, and increase the availability 

of glucose and lipids for energy. The 

HPA response is ultimately defined by 

increases in the secretion of the 

glucocorticoid steroid hormones, 

predominantly cortisol in mammals. 

The amount of increase in circulating 

glucocorticoids above baseline may be 

an indicator of the overall severity of a 

stress response (Hennessy et al., 1979). 

Each component of the stress response 

is variable in time; e.g., adrenalines are 

released nearly immediately and are 

used or cleared by the system quickly, 

whereas cortisol levels may take long 

periods of time to return to baseline. 

The presence and magnitude of a 

stress response in an animal depends on 

a number of factors. These include the 

animal’s life history stage (e.g., neonate, 

juvenile, adult), the environmental 

conditions, reproductive or 

developmental state, and experience 

with the stressor. Not only will these 

factors be subject to individual 

variation, but they will also vary within 

an individual over time. In considering 

potential stress responses of marine 

mammals to acoustic stressors, each of 

these should be considered. For 

example, is the acoustic stressor in an 

area where animals engage in breeding 

activity? Are animals in the region 

resident and likely to have experience 

with the stressor (i.e., repeated 

exposures)? Is the region a foraging 

ground or are the animals passing 

through as transients? What is the ratio 

of young (naive) to old (experienced) 

animals in the population? It is unlikely 

that all such questions can be answered 

from empirical data; however, they 

should be addressed in any qualitative 

assessment of a potential stress response 

as based on the available literature. 

The stress response may or may not 

result in a behavioral change, depending 

on the characteristics of the exposed 

animal. However, provided a stress 

response occurs, we assume that some 

contribution is made to the animal’s 

allostatic load. Allostasis is the ability of 

an animal to maintain stability through 

change by adjusting its physiology in 

response to both predictable and 

unpredictable events (McEwen and 

Wingfield, 2003). The same hormones 

associated with the stress response vary 

naturally throughout an animal’s life, 

providing support for particular life 

11058 Federal Register / Vol. 74, No. 49 / Monday, March 16, 2009 / Proposed Rules 

history events (e.g., pregnancy) and 

predictable environmental conditions 

(e.g., seasonal changes). The allostatic 

load is the cumulative cost of allostasis 

incurred by an animal and is generally 

characterized with respect to an 

animal’s energetic expenditure. 

Perturbations to an animal that may 

occur with the presence of a stressor, 

either biological (e.g., predator) or 

anthropogenic (e.g., construction), can 

contribute to the allostatic load 

(Wingfield, 2003). Additional costs are 

cumulative and additions to the 

allostatic load over time may contribute 

to reductions in the probability of 

achieving ultimate life history functions 

(e.g., survival, maturation, reproductive 

effort and success) by producing 

pathophysiological states (the 

conditions of disease or injury). The 

contribution to the allostatic load from 

a stressor requires estimating the 

magnitude and duration of the stress 

response, as well as any secondary 

contributions that might result from a 

change in behavior. 

If the acoustic source does not 

produce tissue effects, is not perceived 

by the animal, or does not produce a 

stress response by any other means, we 

assume that the exposure does not 

contribute to the allostatic load. 

Additionally, without a stress response 

or auditory masking, it is assumed that 

there can be no behavioral change. 

Conversely, any immediate effect of 

exposure that produces an injury is 

assumed to also produce a stress 

response and contribute to the allostatic 

load. 

III. Behavior 

Changes in marine mammal behavior 

are expected to result from an acute 

stress response. This expectation is 

based on the idea that some sort of 

physiological trigger must exist to 

change any behavior that is already 

being performed. The exception to this 

rule is the case of auditory masking. The 

presence of a masking sound may not 

produce a stress response, but may 

interfere with the animal’s ability to 

detect and discriminate biologically 

relevant signals. The inability to detect 

and discriminate biologically relevant 

signals hinders the potential for normal 

behavioral responses to auditory cues 

and is thus considered a behavioral 

change. 

Impulsive sounds from explosions 

have very short durations as compared 

to other sounds like sonar or ship noise, 

which are more likely to produce 

auditory masking. Additionally the 

explosive sources analyzed in this 

document are used infrequently and the 

training events are typically of short 

duration. Therefore, the potential for 

auditory masking is unlikely. 

Numerous behavioral changes can 

occur as a result of stress response. For 

each potential behavioral change, the 

magnitude in the change and the 

severity of the response needs to be 

estimated. Certain conditions, such as 

stampeding (i.e., flight response) or a 

response to a predator, might have a 

probability of resulting in injury. For 

example, a flight response, if significant 

enough, could produce a stranding 

event. Each disruption to a natural 

behavioral pattern (e.g., breeding or 

nursing) may need to be classified as 

Level B harassment. All behavioral 

disruptions have the potential to 

contribute to the allostatic load. This 

secondary potential is signified by the 

feedback from the collective behaviors 

to allostatic loading. 

IV. Life Function 

IV.1. Proximate Life Functions 

Proximate life history functions are 

the functions that the animal is engaged 

in at the time of acoustic exposure. The 

disruption of these functions, and the 

magnitude of the disruption, is 

something that must be considered in 

determining how the ultimate life 

history functions are affected. 

Consideration of the magnitude of the 

effect to each of the proximate life 

history functions is dependent upon the 

life stage of the animal. For example, an 

animal on a breeding ground which is 

sexually immature will suffer relatively 

little consequence to disruption of 

breeding behavior when compared to an 

actively displaying adult of prime 

reproductive age. 

IV.2. Ultimate Life Functions 

The ultimate life functions are those 

that enable an animal to contribute to 

the population (or stock, or species, 

etc.). The impact to ultimate life 

functions will depend on the nature and 

magnitude of the perturbation to 

proximate life history functions. 

Depending on the severity of the 

response to the stressor, acute 

perturbations may have nominal to 

profound impacts on ultimate life 

functions. For example, unit-level use of 

sonar by a vessel transiting through an 

area that is utilized for foraging, but not 

for breeding, may disrupt feeding by 

exposed animals for a brief period of 

time. Because of the brevity of the 

perturbation, the impact to ultimate life 

functions may be negligible. By contrast, 

weekly training over a period of years 

may have a more substantial impact 

because the stressor is chronic. 

Assessment of the magnitude of the 

stress response from the chronic 

perturbation would require an 

understanding of how and whether 

animals acclimate to a specific, repeated 

stressor and whether chronic elevations 

in the stress response (e.g., cortisol 

levels) produce fitness deficits. 

The proximate life functions are 

loosely ordered in decreasing severity of 

impact. Mortality (survival) has an 

immediate effect, in that no future 

reproductive success is feasible and 

there is no further addition to the 

population resulting from reproduction. 

Severe injuries may also lead to reduced 

survivorship (longevity) and prolonged 

alterations in behavior. The latter may 

further affect an animal’s overall 

reproductive success and reproductive 

effort. Disruptions of breeding have an 

immediate impact on reproductive effort 

and may impact reproductive success. 

The magnitude of the effect will depend 

on the duration of the disruption and 

the type of behavior change that was 

provoked. Disruptions to feeding and 

migration can affect all of the ultimate 

life functions; however, the impacts to 

reproductive effort and success are not 

likely to be as severe or immediate as 

those incurred by mortality and 

breeding disruptions. 

Explosive Ordnance Exposure Analysis 

The underwater explosion from a 

weapon would send a shock wave and 

blast noise through the water, release 

gaseous by-products, create an 

oscillating bubble, and cause a plume of 

water to shoot up from the water 

surface. The shock wave and blast noise 

are of most concern to marine animals. 

The effects of an underwater explosion 

on a marine mammal depends on many 

factors, including the size, type, and 

depth of both the animal and the 

explosive charge; the depth of the water 

column; and the standoff distance 

between the charge and the animal, as 

well as the sound propagation 

properties of the environment. Potential 

impacts can range from brief effects 

(such as behavioral disturbance), tactile 

perception, physical discomfort, slight 

injury of the internal organs and the 

auditory system, to death of the animal 

(Yelverton et al., 1973; O’Keeffe and 

Young, 1984; DoN, 2001). Non-lethal 

injury includes slight injury to internal 

organs and the auditory system; 

however, delayed lethality can be a 

result of individual or cumulative 

sublethal injuries (DoN, 2001). 

Immediate lethal injury would be a 

result of massive combined trauma to 

internal organs as a direct result of 

proximity to the point of detonation 

(DoN, 2001). Generally, the higher the 

level of impulse and pressure level 

Federal Register / Vol. 74, No. 49 / Monday, March 16, 2009 / Proposed Rules 11059 

exposure, the more severe the impact to 

an individual. 

Injuries resulting from a shock wave 

take place at boundaries between tissues 

of different density. Different velocities 

are imparted to tissues of different 

densities, and this can lead to their 

physical disruption. Blast effects are 

greatest at the gas-liquid interface 

(Landsberg, 2000). Gas-containing 

organs, particularly the lungs and 

gastrointestinal tract, are especially 

susceptible (Goertner, 1982; Hill, 1978; 

Yelverton et al., 1973). In addition, gascontaining organs including the nasal 

sacs, larynx, pharynx, trachea, and 

lungs may be damaged by compression/ 

expansion caused by the oscillations of 

the blast gas bubble (Reidenberg and 

Laitman, 2003). Intestinal walls can 

bruise or rupture, with subsequent 

hemorrhage and escape of gut contents 

into the body cavity. Less severe 

gastrointestinal tract injuries include 

contusions, petechiae (small red or 

purple spots caused by bleeding in the 

skin), and slight hemorrhaging 

(Yelverton et al., 1973). 

Because the ears are the most 

sensitive to pressure, they are the organs 

most sensitive to injury (Ketten, 2000). 

Sound-related damage associated with 

blast noise can be theoretically distinct 

from injury from the shock wave, 

particularly farther from the explosion. 

If an animal is able to hear a noise, at 

some level it can damage its hearing by 

causing decreased sensitivity (Ketten, 

1995) (See Assessment of Marine 

Mammal Response to Anthropogenic 

Sound Section above). Sound-related 

trauma can be lethal or sublethal. Lethal 

impacts are those that result in 

immediate death or serious debilitation 

in or near an intense source and are not, 

technically, pure acoustic trauma 

(Ketten, 1995). Sublethal impacts 

include hearing loss, which is caused by 

exposures to perceptible sounds. Severe 

damage (from the shock wave) to the 

ears includes tympanic membrane 

rupture, fracture of the ossicles, damage 

to the cochlea, hemorrhage, and 

cerebrospinal fluid leakage into the 

middle ear. Moderate injury implies 

partial hearing loss due to tympanic 

membrane rupture and blood in the 

middle ear. Permanent hearing loss also 

can occur when the hair cells are 

damaged by one very loud event, as well 

as by prolonged exposure to a loud 

noise or chronic exposure to noise. The 

level of impact from blasts depends on 

both an animal’s location and, at outer 

zones, on its sensitivity to the residual 

noise (Ketten, 1995). 

The exercises that use explosives in 

this request include: FIREX with 

IMPASS, MISSILEX, and MINEX. Table 

5 summarizes the number of events (per 

year by season) and specific areas where 

each occurs for each type of explosive 

ordnance used. For most of the 

operations, there is no difference in how 

many events take place between the 

different seasons. Fractional values are 

a result of evenly distributing the 

annual totals over the four seasons. For 

example, there are 6 Hellfire events per 

year that can take place in sub-areas 16 

and 17 during any season, so there are 

1.5 events modeled for each season. 

TABLE 5—NUMBER OF EXPLOSIVE EVENTS WITHIN THE CHERRY POINT RANGE COMPLEX

Sub-area * Ordnance Winter Spring Summer Fall Annual 

totals 

MISSILEX ................................. ...................... ...................... ...................... ...................... 22 

16 & 17 ..................................... Hellfire ....................................... 1 .5 1 .5 1 .5 1 .5 ....................

16 & 17 ..................................... TOW ......................................... 2 2 2 2 ....................

FIREX with IMPASS ................. ...................... ...................... ...................... ...................... 2 

13 & 14 ..................................... 5′′ rounds .................................. .25 .25 .25 .25 ....................

4 & 5 ......................................... 5′′ rounds .................................. .25 .25 .25 .25 ....................

MINEX ...................................... ...................... ...................... ...................... ...................... 20 

UNDET ..................................... 20 LB ........................................ 5 5 5 5 ....................

* See Figure 1 of the LOA application for the location of sub-areas. 

Definition of Harassment 

As mentioned previously, with 

respect to military readiness activities, 

Section 3(18)(B) of the MMPA defines 

‘‘harassment’’ as: (i) Any act that injures 

or has the significant potential to injure 

a marine mammal or marine mammal 

stock in the wild [Level A Harassment]; 

or (ii) any act that disturbs or is likely 

to disturb a marine mammal or marine 

mammal stock in the wild by causing 

disruption of natural behavioral 

patterns, including, but not limited to, 

migration, surfacing, nursing, breeding, 

feeding, or sheltering, to a point where 

such behavioral patterns are abandoned 

or significantly altered [Level B 

Harassment]. 

Level B Harassment 

Of the potential effects that were 

described in the Assessment of Marine 

Mammal Response to Anthropogenic 

Sound and the Explosive Ordnance 

Exposure Analysis sections, the 

following are the types of effects that 

fall into the Level B Harassment 

category: 

Behavioral Harassment—Behavioral 

disturbance that rises to the level 

described in the definition above, when 

resulting from exposures to underwater 

detonations, is considered Level B 

Harassment. Some of the lower level 

physiological stress responses discussed 

in the Assessment of Marine Mammal 

Response to Anthropogenic Sound 

section will also likely co-occur with 

the predicted harassments, although 

these responses are more difficult to 

detect and fewer data exist relating 

these responses to specific received 

levels of sound. When Level B 

Harassment is predicted based on 

estimated behavioral responses, those 

takes may have a stress-related 

physiological component as well. 

Acoustic Masking and 

Communication Impairment—Acoustic 

masking is considered Level B 

Harassment as it can disrupt natural 

behavioral patterns by interrupting or 

limiting the marine mammal’s receipt or 

transmittal of important information or 

environmental cues. 

TTS—As discussed previously, TTS 

can affect how an animal behaves in 

response to the environment, including 

conspecifics, predators, and prey. The 

following physiological mechanisms are 

thought to play a role in inducing 

auditory fatigue: effects to sensory hair 

cells in the inner ear that reduce their 

sensitivity, modification of the chemical 

environment within the sensory cells, 

residual muscular activity in the middle 

ear, displacement of certain inner ear 

membranes, increased blood flow, and 

post-stimulatory reduction in both 

efferent and sensory neural output. 

Ward (1997) suggested that when these 

effects result in TTS rather than PTS, 

they are within the normal bounds of 

physiological variability and tolerance 

11060 Federal Register / Vol. 74, No. 49 / Monday, March 16, 2009 / Proposed Rules 

and do not represent a physical injury. 

Additionally, Southall et al. (2007) 

indicate that although PTS is a tissue 

injury, TTS is not because the reduced 

hearing sensitivity following exposure 

to intense sound results primarily from 

fatigue, not loss, of cochlear hair cells 

and supporting structures and is 

reversible. Accordingly, NMFS classifies 

TTS (when resulting from exposure to 

underwater detonations) as Level B 

Harassment, not Level A Harassment 

(injury). 

Level A Harassment 

Of the potential effects that were 

described in the Assessment of Marine 

Mammal Response to Anthropogenic 

Sound section, the following are the 

types of effects that fall into the Level 

A Harassment category: 

PTS—PTS is irreversible and 

considered to be an injury. PTS results 

from exposure to intense sounds that 

cause a permanent loss of inner or outer 

cochlear hair cells or exceed the elastic 

limits of certain tissues and membranes 

in the middle and inner ears and result 

in changes in the chemical composition 

of the inner ear fluids. 

Physical Disruption of Tissues 

Resulting from Explosive Shock Wave— 

Physical damage of tissues resulting 

from a shock wave (from an explosive 

detonation) is classified as an injury. 

Blast effects are greatest at the gas-liquid 

interface (Landsberg, 2000) and gascontaining organs, particularly the lungs 

and gastrointestinal tract, are especially 

susceptible to damage (Goertner, 1982; 

Hill 1978; Yelverton et al., 1973). Nasal 

sacs, larynx, pharynx, trachea, and 

lungs may be damaged by compression/ 

expansion caused by the oscillations of 

the blast gas bubble (Reidenberg and 

Laitman, 2003). Severe damage (from 

the shock wave) to the ears can include 

tympanic membrane rupture, fracture of 

the ossicles, damage to the cochlea, 

hemorrhage, and cerebrospinal fluid 

leakage into the middle ear. 

Acoustic Take Criteria 

For the purposes of an MMPA 

incidental take authorization, three 

types of take are identified: Level B 

Harassment; Level A Harassment; and 

mortality (or serious injury leading to 

mortality). The categories of marine 

mammal responses (physiological and 

behavioral) that fall into the two 

harassment categories were described in 

the previous section. 

Because the physiological and 

behavioral responses of the majority of 

the marine mammals exposed to 

underwater detonations cannot be 

detected or measured, a method is 

needed to estimate the number of 

individuals that will be taken, pursuant 

to the MMPA, based on the proposed 

action. To this end, NMFS uses an 

acoustic criteria that estimate at what 

received level (when exposed to 

explosive detonations) Level B 

Harassment, Level A Harassment, and 

mortality (for explosives) of marine 

mammals would occur. The acoustic 

criteria for Underwater Detonations are 

discussed. 

Thresholds and Criteria for Impulsive 

Sound 

Criteria and thresholds for estimating 

the exposures from a single explosive 

activity on marine mammals were 

established for the Seawolf Submarine 

Shock Test Final Environmental Impact 

Statement (FEIS) (‘‘Seawolf’’) and 

subsequently used in the USS Winston 

S. Churchill (DDG–81) Ship Shock FEIS 

(‘‘Churchill’’) (DoN, 1998 and 2001a). 

NMFS adopted these criteria and 

thresholds in its final rule on 

unintentional taking of marine animals 

occurring incidental to the shock testing 

(NMFS, 2001a). Since the ship-shock 

events involve only one large explosive 

at a time, additional assumptions were 

made to extend the approach to cover 

multiple explosions for FIREX (with 

IMPASS). In addition, this section 

reflects a revised acoustic criterion for 

small underwater explosions (i.e., 23 

pounds per square inch [psi] instead of 

previous acoustic criteria of 12 psi for 

peak pressure over all exposures), 

which is based on the final rule issued 

to the Air Force by NMFS (NMFS, 

2005c). 

I.1. Thresholds and Criteria for Injurious 

Physiological Impacts 

I.1.a. Single Explosion 

For injury, NMFS uses dual criteria: 

eardrum rupture (i.e. tympanicmembrane injury) and onset of slight 

lung injury. These criteria are 

considered indicative of the onset of 

injury. The threshold for tympanicmembrane (TM) rupture corresponds to 

a 50 percent rate of rupture (i.e. 50 

percent of animals exposed to the level 

are expected to suffer TM rupture). This 

value is stated in terms of an Energy 

Flux Density Level (EL) value of 1.17 

inch pounds per square inch (in-lb/in2), 

approximately 205 dB re 1 microPa2- 

sec. 

The threshold for onset of slight lung 

injury is calculated for a small animal 

(a dolphin calf weighing 26.9 lbs), and 

is given in terms of the ‘‘Goertner 

modified positive impulse,’’ indexed to 

13 psi-msec (DoN, 2001). This threshold 

is conservative since the positive 

impulse needed to cause injury is 

proportional to animal mass, and 

therefore, larger animals require a 

higher impulse to cause the onset of 

injury. This analysis assumed the 

marine species populations were 100 

percent small animals. The criterion 

with the largest potential impact range 

(most conservative), either TM rupture 

(energy threshold) or onset of slight lung 

injury (peak pressure), will be used in 

the analysis to determine Level A 

exposures for single explosive events. 

For mortality, NMFS uses the 

criterion corresponding to the onset of 

extensive lung injury. This is 

conservative in that it corresponds to a 

1 percent chance of mortal injury, and 

yet any animal experiencing onset 

severe lung injury is counted as a lethal 

exposure. For small animals, the 

threshold is given in terms of the 

Goertner modified positive impulse, 

indexed to 30.5 psi-msec. Since the 

Goertner approach depends on 

propagation, source/animal depths, and 

animal mass in a complex way, the 

actual impulse value corresponding to 

the 30.5 psi-msec index is a complicated 

calculation. To be conservative, the 

analysis used the mass of a calf dolphin 

(at 26.9 lbs) for 100 percent of the 

populations. 

I.1.b. Multiple Explosions 

For this analysis, the use of multiple 

explosions only applies to FIREX (with 

IMPASS). Since FIREX require multiple 

explosions, the Churchill approach had 

to be extended to cover multiple sound 

events at the same training site. For 

multiple exposures, accumulated energy 

over the entire training time is the 

natural extension for energy thresholds 

since energy accumulates with each 

subsequent shot (detonation); this is 

consistent with the treatment of 

multiple arrivals in Churchill. For 

positive impulse, it is consistent with 

Churchill to use the maximum value 

over all impulses received. 

I.2. Thresholds and Criteria for NonInjurious Physiological Effects 

The NMFS’ criterion for non-injurious 

harassment is TTS—a slight, recoverable 

loss of hearing sensitivity (DoN, 2001). 

For this assessment, there are dual 

criteria for TTS, an energy threshold 

and a peak pressure threshold. The 

criterion with the largest potential 

impact range (most conservative) either 

the energy or peak pressure threshold, 

will be used in the analysis to determine 

Level B TTS exposures. 

I.2.a. Single Explosion—TTS-Energy 

Threshold 

The first threshold is a 182 dB re 1 

microPa2-sec maximum energy flux 

Federal Register / Vol. 74, No. 49 / Monday, March 16, 2009 / Proposed Rules 11061 

density level in any 1⁄3-octave band at 

frequencies above 100 Hertz (Hz) for 

toothed whales and in any 1⁄3-octave 

band above 10 Hz for baleen whales. For 

large explosives, as in the case of the 

Churchill FEIS, frequency range cutoffs 

at 10 and 100 Hz make a difference in 

the range estimates. For small 

explosives (<1,500 lb NEW), as what 

was modeled for this analysis, the 

spectrum of the shot arrival is broad, 

and there is essentially no difference in 

impact ranges for toothed whales or 

baleen whales. 

The TTS energy threshold for 

explosives is derived from the Space 

and Naval Warfare Systems Center 

(SSC) pure-tone tests for TTS (Schlundt 

et al., 2000; Finneran and Schlundt, 

2004). The pure-tone threshold (192 dB 

as the lowest value) is modified for 

explosives by (a) interpreting it as an 

energy metric, (b) reducing it by 10 dB 

to account for the time constant of the 

mammal ear, and (c) measuring the 

energy in 1⁄3-octave bands, the natural 

filter band of the ear. The resulting 

threshold is 182 dB re 1 microPa2-sec in 

any 1⁄3-octave band. The energy 

threshold usually dominates and is used 

in the analysis to determine potential 

Level B exposures for single explosion 

ordnance. 

I.2.b. Single Explosion—TTS-Peak 

Pressure Threshold 

The second threshold applies to all 

species and is stated in terms of peak 

pressure at 23 psi (about 225 dB re 1 

microPa). This criterion was adopted for 

Precision Strike Weapons (PSW) Testing 

and Training by Eglin Air Force Base in 

the Gulf of Mexico (NMFS, 2005b). It is 

important to note that for small shots 

near the surface (such as in this 

analysis), the 23-psi peak pressure 

threshold generally will produce longer 

impact ranges than the 182-dB energy 

metric. Furthermore, it is not unusual 

for the TTS impact range for the 23-psi 

pressure metric to actually exceed the 

without-TTS (behavioral change 

without onset of TTS) impact range for 

the 177-dB energy metric. 

I.2.c. Multiple Explosions—TTS 

For multiple explosions, accumulated 

energy over the entire training time is 

the natural extension for energy 

thresholds since energy accumulates 

with each subsequent shot/detonation. 

This is consistent with the energy 

argument in Churchill. For peak 

pressure, it is consistent with Churchill 

to use the maximum value over all 

impulses received. 

I.3. Thresholds and Criteria for 

Behavioral Effects 

I.3.a. Single Explosion 

For a single explosion, to be 

consistent with Churchill, TTS is the 

criterion for Level B harassment. In 

other words, because behavioral 

disturbance for a single explosion is 

likely to be limited to a short-lived 

startle reaction, use of the TTS criterion 

is considered sufficient protection and 

therefore behavioral effects (Level B 

behavioral harassment without onset of 

TTS) are not expected for single 

explosions. 

I.3.b. Multiple Explosions—Without 

TTS 

For this analysis, the use of multiple 

explosions only applies to FIREX (with 

IMPASS). Because multiple explosions 

would occur within a discrete time 

period, a new acoustic criterionbehavioral disturbance (without TTS)— 

is used to account for behavioral effects 

significant enough to be judged as 

harassment, but occurring at lower noise 

levels than those that may cause TTS. 

The threshold is based on test results 

published in Schlundt et al. (2000), with 

derivation following the approach of the 

Churchill FEIS for the energy-based TTS 

threshold. The original Schlundt et al. 

(2000) data and the report of Finneran 

and Schlundt (2004) are the basis for 

thresholds for behavioral disturbance 

(without TTS). As reported by Schlundt 

et al. (2000), instances of altered 

behavior generally began at lower 

exposures than those causing TTS; 

however, there were many instances 

when subjects exhibited no altered 

behavior at levels above the onset-TTS 

levels. Regardless of reactions at higher 

or lower levels, all instances of altered 

behavior were included in the statistical 

summary. 

The behavioral disturbance (without 

TTS) threshold for tones is derived from 

the SSC tests, and is found to be 5 dB 

below the threshold for TTS, or 177 dB 

re 1 microPa2-sec maximum energy flux 

density level in any 1⁄3-octave band at 

frequencies above 100 Hz for toothed 

whales and in any 1⁄3-octave band above 

10 Hz for baleen whales. As stated 

previously for TTS, for small explosives 

(<1,500 lb NEW), as what was modeled 

for this analysis, the spectrum of the 

shot arrival is broad, and there is 

essentially no difference in impact 

ranges for whales. However, the TTS 

pressure criteria (23 psi) impact range 

for FIREX with IMPASS can, especially 

in deeper water, result in a longer 

impact range than the behavioral 

disturbance (without TTS) criteria 

impact range. 

II. Summary of Thresholds and Criteria 

for Impulsive Sounds 

Table 6 summarizes the effects, 

criteria, and thresholds used in the 

assessment for impulsive sounds. The 

criteria for behavioral effects without 

physiological effects used in this 

analysis are based on use of multiple 

explosives that only take place during a 

FIREX (w/IMPASS) event. 

TABLE 6—EFFECTS, CRITERIA, AND THRESHOLDS FOR IMPULSIVE SOUNDS

Effect Criteria Metric Threshold Effect 

Mortality .................................. Onset of Extensive Lung Injury.Goertner modified positive impulse.indexed to 30.5 psi-msec (assumes 100 percent small 

animal at 26.9 lbs).

Mortality. 

Injurious Physiological ............ 50% Tympanic Membrane 

Rupture.

Energy flux density ................. 1.17 in-lb/in2 (about 205 dB re 

1 microPa2-sec).

Level A. 

Injurious Physiological ............ Onset Slight Lung Injury ......... Goertner modified positive impulse.indexed to 13 psi-msec (assumes 100 percent small 

animal at 26.9 lbs).

Level A. 

Non-injurious Physiological .... TTS ......................................... Greatest energy flux density 

level in any 1⁄3-octave band 

(> 100 Hz for toothed 

whales and > 10 Hz for baleen whales)—for total energy over all exposures.

182 dB re 1 microPa2-sec ...... Level B. 

Non-injurious Physiological .... TTS ......................................... Peak pressure over all exposures.23 psi ...................................... Level B. 

11062 Federal Register / Vol. 74, No. 49 / Monday, March 16, 2009 / Proposed Rules 

TABLE 6—EFFECTS, CRITERIA, AND THRESHOLDS FOR IMPULSIVE SOUNDS—Continued 

Effect Criteria Metric Threshold Effect 

Non-injurious Behavioral .......... Multiple Explosions Without 

TTS.

Greatest energy flux density 

level in any 1⁄3-octave 

(> 100 Hz for toothed 

whales and > 10 Hz for

baleen whales)—for total

energy over all exposures 

(multiple explosions only).

177 dB re 1 microPa2-sec ...... Level B. 

The criteria for mortality, Level A 

Harassment, and Level B Harassment 

resulting from explosive detonations 

were initially developed for the Navy’s 

Sea Wolf and Churchill ship-shock trials 

and have not changed since other 

MMPA authorizations issued for 

explosive detonations. The criteria, 

which are applied to cetaceans and 

pinnipeds are summarized in Table 11. 

Additional information regarding the 

derivation of these criteria is available 

in the Navy’s FEIS for the Cherry Point 

Range Complex and in the Navy’s 

CHURCHILL FEIS (U.S. Department of 

the Navy, 2001). 

Acoustic Environment 

Sound propagation (the spreading or 

attenuation of sound) in the oceans of 

the world is affected by several 

environmental factors: water depth, 

variations in sound speed within the 

water column, surface roughness, and 

the geo-acoustic properties of the ocean 

bottom. These parameters can vary 

widely with location. 

Four types of data are used to define 

the acoustic environment for each 

analysis site: 

Seasonal Sound Velocity Profiles 

(SVP)—Plots of propagation speed 

(velocity) as a function of depth, or 

SVPs, are a fundamental tool used for 

predicting how sound will travel. 

Seasonal SVP averages were obtained 

for each training area. 

Seabed Geo-acoustics—The type of 

sea floor influences how much sound is 

absorbed and how much sound is 

reflected back into the water column. 

Wind Speeds—Several environmental 

inputs, such as wind speed and surface 

roughness, are necessary to model 

acoustic propagation in the prospective 

training areas. 

Bathymetry data—Bathymetry data 

are necessary to model acoustic 

propagation and were obtained for each 

of the training areas. 

Acoustic Effects Analysis 

The acoustic effects analysis 

presented in the following sections is 

summarized for each major type of 

exercise. A more in-depth effects 

analysis is in Appendix A of the LOA 

application and the Addendum. 

1. FIREX (With IMPASS) 

Modeling was completed for a 5-in. 

round, 8-lb NEW charge exploding at a 

depth of 1 ft (0.3 m). The analytical 

approach begins using a high-fidelity 

acoustic model to estimate energy in 

each 5-in explosive round. Impact areas 

are calculated by summing the energy 

from multiple explosions over a firing 

exercise (FIREX) mission, and 

determining the impact area based on 

the thresholds and criteria. Level B 

exposures were determined based on 

the 177 dB re 1 microPa2-sec (energy) 

criteria for behavioral disturbance 

(without TTS) due to the use of multiple 

explosions. 

Impact areas for a full FIREX (with 

IMPASS) event must account for the 

time and space distribution of 39 

explosions, as well as the movement of 

animals over the several hours of the 

exercise. The total impact area for the 

39-shot event is calculated as the sum 

of small impact areas for seven FIREX 

missions (each with four to six rounds 

fired) and one pre-FIREX action (with 

six rounds fired). Table 7 shows the 

Zone of Influence (ZOI) results of the 

model estimation. 

TABLE 7—ESTIMATED ZOIS (KM2) FOR A SINGLE FIREX (WITH IMPASS) EVENT

Area * Estimated ZOI @ 177 dB re 1 μPa2-sec 

(multiple detonations only) 

Estimated ZOI 

@ 23 psi 

Estimated ZOI 

@ 205 dB re 1 

μPa2-sec or 

13 psi 

4 & 5 ......................................................................... NA ** ......................................................................... 3.7387 0.18522 

13 & 14 ..................................................................... NA ** ......................................................................... 3.7387 0.18522 

* Please see Figure 1 of the LOA application for the locations of these areas. 

** In this area, which occurs in deeper water, the 23 psi criteria dominates over the 177 dB re 1 microPa2-sec behavioral disturbance criteria 

and therefore was used in the analysis. 

The ZOI, when multiplied by the 

animal densities and the total number of 

events (Table 5), provides the exposure 

estimates for that animal species for the 

nominal exercise case of 39 5-in 

explosive rounds. The potential effects 

would occur within a series of small 

impact areas associated with the precalibration rounds and missions spread 

out over a period of several hours. 

Additionally, target locations are 

changed from event to event and 

because of the time lag between events, 

it is highly unlikely, even if a marine 

mammal were present (not accounting 

for mitigation), that the marine mammal 

would be within the small exposure 

zone for more than one event. 

FIREX with IMPASS is restricted to 

two locations in the Cherry Point Range 

Complex. In addition to other mitigation 

measures, dedicated lookouts would be 

onboard the ship monitoring the target 

area for marine mammals before the 

exercise, during the deployment of the 

IMPASS array, and during the return to 

firing position. Ships will not fire on the 

target until the area is cleared and will 

suspend the exercise if any marine 

mammals enter the buffer area. Due to 

safety reasons, the buffer zone must 

remain clear of all types of platforms. 

During the actual firing of the weapon, 

the participants involved must be able 

Federal Register / Vol. 74, No. 49 / Monday, March 16, 2009 / Proposed Rules 11063 

to observe the intended ordnance 

impact area to ensure the area is free of 

range transients, however, this 

observation would be conducted from 

the firing position or other safe distance. 

Due to the distance between the firing 

position and the buffer zone, lookouts 

are only expected to visually detect 

breaching whales, whale blows, and 

large pods of dolphins and porpoises. 

Implementation of mitigation measures 

like these reduce the likelihood of 

exposure and potential effects in the 

ZOI. 

2. MINEX 

The Comprehensive Acoustic System 

Simulation/Gaussian Ray Bundle 

(OAML, 2002) model, modified to 

account for impulse response, shockwave waveform, and nonlinear shockwave effects, was run for acousticenvironmental conditions derived from 

the Oceanographic and Atmospheric 

Master Library (OAML) standard 

databases. The explosive source was 

modeled with standard similitude 

formulas, as in the Churchill FEIS. 

Because all the sites are shallow (less 

than 50 m), propagation model runs 

were made for bathymetry in the range 

from 10 m to 40 m. 

Estimated ZOIs varied as much within 

a single area as from one area to another, 

which had been the case for the Virtual 

At Sea Training/IMPASS (DoN, 2003). 

There was, however, little seasonal 

dependence. As a result, the ZOIs are 

stated as mean values with a percentage 

variation. Generally, in the case of 

ranges determined from energy metrics, 

as the depth of water increases, the 

range shortens. The single explosion 

TTS-energy criterion (182 dB re 1 

microPa2-sec) was dominant over the 

pressure criteria and therefore used to 

determine the ZOI for the Level B 

exposure analysis. Table 8 shows the 

ZOI results of the model estimation. 

The total ZOI, when multiplied by the 

animal densities and total number of 

events (Table 5), provides the exposure 

estimates for that animal species for 

each specified charge. Because of the 

time lag between detonations, it is 

highly unlikely, even if a marine 

mammal were present (not accounting 

for mitigation), that the marine mammal 

would be within the small exposure 

zone for more than one detonation. The 

underwater detonations are restricted to 

one area (UNDET Area, Onslow Bay) 

(Figure 1 of the LOA application), 

observers would survey the target area 

for marine mammals for 30 minutes 

prior through 30 minutes post 

detonation. Detonations will be 

suspended if a marine mammal enters 

the Zone of Influence and will only 

restart after the area has been clear for 

a full 30 minutes. Implementation of 

mitigation measures like these reduce 

the likelihood of exposure and potential 

effects in the ZOI. 

TABLE 8—ESTIMATED ZOIS (KM2) FOR

MINEX 

Threshold 

ZOIs 

20-lb shot 

Level A ZOI @ 13 psi ........ 0.13 km2 ± 10% 

TABLE 8—ESTIMATED ZOIS (KM2) FOR

MINEX—Continued 

Threshold 

ZOIs 

20-lb shot 

Level B ZOI @ 182 dB re 

1 microPa2-sec.

0.8 km2 ± 25% 

3. MISSILEX (Hellfire and TOW) 

Modeling was completed for three 

explosive missiles involved in 

MISSILEX: each assumed detonation at 

1-m (3.3 ft) depth. The NEW used in 

simulations of the Hellfire and TOW 

missiles are 8 lbs and 15.33 lbs, 

respectively. The single explosion TTSenergy criterion (182 dB re 1 microPa2- 

sec) was used to determine the ZOI for 

the Level B exposure analysis. Table 9 

shows the ZOI results of the model 

estimation. The total ZOI, when 

multiplied by the animal densities and 

total number of events (Table 5), 

provides the exposure estimates for that 

animal species for each specified 

missile. Because of the time lag between 

detonations, it is highly unlikely, even 

if a marine mammal were present (not 

accounting for mitigation), that the 

marine mammal would be within the 

small exposure zone for more than one 

detonation. Ships will not fire on the 

target until the area is clear of marine 

mammals, and will suspend the exercise 

if any enter the buffer area. 

Implementation of mitigation measures 

like these reduce the likelihood of 

exposure and potential effects in the 

ZOI. 

TABLE 9—ESTIMATED ZOIS (KM2) FOR MISSILEX 

Area Ordnance 

Estimated ZOI @ 182 dB re 1 

microPa2-s or 23 psi 

Estimated ZOI @ 205 dB re 1 

microPa2-s or 13 psi 

Estimated ZOI 

@ 30.5 psi 

Win Spr Sum Fall Win Spr Sum Fall Win Spr Sum Fall 

16 & 17 ................ Hellfire .................... 0.31 0.31 0.31 0.31 0.04 0.04 0.04 0.04 <0.01 <0.01 <0.01 <0.01 

16 & 17 ................ TOW ....................... 0.39 0.39 0.35 0.39 0.04 0.04 0.04 0.04 <0.01 <0.01 <0.01 <0.01 

Summary of Potential Exposures From 

Explosive Ordnance Use 

Explosions that occur in the OPAREA 

are associated with training exercises 

that use explosive ordnance, which 

include missiles (MISSILEX), 5-in. 

explosive naval gun shells with IMPASS 

(FIREX), and underwater detonations 

associated with Mine Neutralization 

training (MINEX). Explosive ordnance 

use is limited to specific training areas. 

An explosives analysis was conducted 

to estimate the number of marine 

mammals that could be exposed to 

impacts from explosions by the Navy. 

Table 10 provides a summary of the 

explosive modeling analysis conducted 

by the Navy. Fin, humpback whales, 

and sperm whales will have high 

detection rates at the surface because of 

their large body size and pronounced 

blows. Because of large group sizes, it is 

likely that lookouts would detect 

Atlantic spotted dolphins, bottlenose 

dolphins, Clymene dolphins, common 

dolphins, pantropical spotted dolphins, 

Risso’s dolphins, rough-toothed 

dolphins, and striped dolphins. 

Exposure estimates could not be 

calculated for several species (blue 

whale, sei whale, Bryde’s whale, killer 

whale, pygmy killer whale, false killer 

whale, melon-headed whale, spinner 

dolphin, Fraser’s dolphin, and harbor 

porpoise) because density estimates 

could not be calculated due to the 

limited available data for these species. 

Lack of density estimates reflect the 

paucity of sighting data for these species 

in the Study Area. It is assumed that 

fewer or no sightings result from low 

numbers of animals in the area. 

Consequently, because these species’ 

presence in the Study Area is rare, 

NMFS does not expect these animals to 

be exposed to explosive ordnance. 

Implementation of mitigation measures 

will reduce the likelihood of exposure 

11064 Federal Register / Vol. 74, No. 49 / Monday, March 16, 2009 / Proposed Rules 

and potential effects should any of these 

species occur in the OPAREA. 

Although exposure of marine 

mammals based on the Navy’s modeling 

shows that only two individuals of 

Atlantic spotted dolphins would be 

taken by Level B behavioral harassment, 

because of the relatively high 

abundance of several other species 

(Atlantic spotted dolphins, bottlenose 

dolphins, common dolphins, striped 

dolphins, and Risso’s dolphins) in the 

proposed action area (Waring et al., 

2008) and their aggregation in large 

groups, NMFS considers that additional 

takes of these five species by Level B 

behavioral harassment are possible. 

Therefore, NMFS proposes to authorize 

additional takes for these species (see 

Take Calculations section below). 

TABLE 10—SUMMARY OF POTENTIAL EXPOSURES FROM EXPLOSIVE ORDNANCE (PER YEAR) FOR MARINE MAMMALS IN

THE CHERRY POINT RANGE COMPLEX BY THE NAVY MODELING

Species/training operation 

Potential exposures @ 177 dB 

re 1 microPa2-s 

(multiple detonations only) 

Potential exposures @ 182 dB 

re 1 microPa2-s or 

23 psi 

Potential exposures @ 205 dB 

re 1 microPa2-s or 

13 psi 

Potential exposures @ 30.5 psi 

Fin whale: 

MISSILEX training ............................................................ NA 0 0 0 

FIREX training .................................................................. 0 NA 0 0 

MINEX training ................................................................. NA 0 0 0 

Total Exposures ........................................................ 0 0 0 0 

Humpback whale: 

MISSILEX training ............................................................ NA 0 0 0 

FIREX training .................................................................. 0 NA 0 0 

MINEX training ................................................................. NA 0 0 0 

Total Exposures ........................................................ 0 0 0 0 

North Atlantic right whale: 

MISSILEX training ............................................................ NA 0 0 0 

FIREX training .................................................................. 0 NA 0 0 

MINEX training ................................................................. NA 0 0 0 

Total Exposures ........................................................ 0 0 0 0 

Sperm whale: 

MISSILEX training ............................................................ NA 0 0 0 

FIREX training .................................................................. 0 NA 0 0 

MINEX training ................................................................. NA 0 0 0 

Total Exposures ........................................................ 0 0 0 0 

Atlantic Spotted dolphin: 

MISSILEX training ............................................................ NA 1 0 0 

FIREX training .................................................................. 0 NA 0 0 

MINEX training ................................................................. NA 1 0 0 

Total Exposures ........................................................ 0 2 0 0 

Beaked whale: 

MISSILEX training ............................................................ NA 0 0 0 

FIREX training .................................................................. 0 NA 0 0 

MINEX training ................................................................. NA 0 0 0 

Total Exposures ........................................................ 0 0 0 0 

Bottlenose dolphin: 

MISSILEX training ............................................................ NA 0 0 0 

FIREX training .................................................................. 0 NA 0 0 

MINEX training ................................................................. NA 0 0 0 

Total Exposures ........................................................ 0 0 0 0 

Clymene dolphin: 

MISSILEX training ............................................................ NA 0 0 0 

FIREX training .................................................................. 0 NA 0 0 

MINEX training ................................................................. NA 0 0 0 

Total Exposures ........................................................ 0 0 0 0 

Common dolphin: 

MISSILEX training ............................................................ NA 0 0 0 

FIREX training .................................................................. 0 NA 0 0 

MINEX training ................................................................. NA 0 0 0 

Total Exposures ........................................................ 0 0 0 0 

Kogia spp.: 

MISSILEX training ............................................................ NA 0 0 0 

FIREX training .................................................................. 0 NA 0 0 

MINEX training ................................................................. NA 0 0 0 

Federal Register / Vol. 74, No. 49 / Monday, March 16, 2009 / Proposed Rules 11065 

TABLE 10—SUMMARY OF POTENTIAL EXPOSURES FROM EXPLOSIVE ORDNANCE (PER YEAR) FOR MARINE MAMMALS IN

THE CHERRY POINT RANGE COMPLEX BY THE NAVY MODELING—Continued 

Species/training operation 

Potential exposures @ 177 dB 

re 1 microPa2-s 

(multiple detonations only) 

Potential exposures @ 182 dB 

re 1 microPa2-s or 

23 psi 

Potential exposures @ 205 dB 

re 1 microPa2-s or 

13 psi 

Potential exposures @ 30.5 psi 

Total Exposures ........................................................ 0 0 0 0 

Minke whale: 

MISSILEX training ............................................................ NA 0 0 0 

FIREX training .................................................................. 0 NA 0 0 

MINEX training ................................................................. NA 0 0 0 

Total Exposures ........................................................ 0 0 0 0 

Pantropical spotted dolphin: 

MISSILEX training ............................................................ NA 0 0 0 

FIREX training .................................................................. 0 NA 0 0 

MINEX training ................................................................. NA 0 0 0 

Total Exposures ........................................................ 0 0 0 0 

Pilot whales: 

MISSILEX training ............................................................ NA 0 0 0 

FIREX training .................................................................. 0 NA 0 0 

MINEX training ................................................................. NA 0 0 0 

Total Exposures ........................................................ 0 0 0 0 

Risso’s dolphin: 

MISSILEX training ............................................................ NA 0 0 0 

FIREX training .................................................................. 0 NA 0 0 

MINEX training ................................................................. NA 0 0 0 

Total Exposures ........................................................ 0 0 0 0 

Rough-toothed dolphin: 

MISSILEX training ............................................................ NA 0 0 0 

FIREX training .................................................................. 0 NA 0 0 

MINEX training ................................................................. NA 0 0 0 

Total Exposures ........................................................ 0 0 0 0 

Striped dolphin: 

MISSILEX training ............................................................ NA 0 0 0 

FIREX training .................................................................. 0 NA 0 0 

MINEX training ................................................................. NA 0 0 0 

Total Exposures ........................................................ 0 0 0 0 

Note: Events were either modeled for 177 dB re 1 microPa2-sec due to multiple detonations (FIREX with IMPASS) or modeled for 182 dB re 1 

microPa2-sec or 23 psi due to single detonations (MISSILEX and MINEX). Therefore, for FIREX the NA refers to the criteria that were less dominant and therefore not used in the analysis. For MISSILEX and MINEX the NA refers to the fact that these events are not multiple detonations 

and therefore not modeled at 177 dB re 1 microPa2-sec. 

VI. Potential Effects of Exposures to 

Explosives 

Effects from exposure to explosives 

vary depending on the level of 

exposure. Animals exposed to levels 

that constitute MMPA Level B 

harassment may experience a behavioral 

disruption from the use of explosive 

ordnance. Behavioral responses can 

include shorter surfacings, shorter 

dives, fewer blows per surfacing, longer 

intervals between blows (breaths), 

ceasing or increasing vocalizations, 

shortening or lengthening vocalizations, 

and changing frequency or intensity of 

vocalizations (NRC, 2005). However, it 

is not known how these responses relate 

to significant effects (e.g., long-term 

effects or population consequences) 

(NRC, 2005). In addition, animals 

exposed to levels that constitute MMPA 

Level B harassment may experience a 

temporary threshold shift (TTS), which 

may result in a slight, recoverable loss 

of hearing sensitivity (DoN, 2001). 

Exposures that reach Level A 

harassment may result in long-term 

injuries such as permanent threshold 

shift (PTS). The resulting injuries may 

limit an animal’s ability to find food, 

communicate with other animals, and/ 

or interpret the environment around 

them. Impairment of these abilities can 

decrease an individual’s chance of 

survival or impact their ability to 

successfully reproduce. Level A 

harassment will have a long-term 

impact on an exposed individual. 

Mortality of an animal would remove 

the animal entirely from the population 

as well as eliminate any future 

reproductive potential. 

Based on the modeling conducted by 

the Navy, marine mammals that could 

be potentially exposed to explosive 

ordnance as a result of the Cherry Point 

Range Complex training activities 

would be limited to Level B behavioral 

harassment, specifically, two 

individuals of Atlantic spotted 

dolphins. 

Though the Navy’s model has shown 

that it is unlikely more than two 

individuals of Atlantic spotted dolphins 

would be affected by the proposed 

Range Complex training activities, a 

further analysis by NMFS revealed that 

additional species may be taken by the 

Navy’s exercises. For example, due to 

the higher abundances of Atlantic 

spotted, bottlenose, common, striped, 

and Risso’s dolphins in the Cherry Point 

Range Complex Study Area, and the fact 

11066 Federal Register / Vol. 74, No. 49 / Monday, March 16, 2009 / Proposed Rules 

that these species tend to congregate in 

relatively large groups, there is an 

increased chance they too, may be taken 

by the Navy’s exercises if not detected 

in advance by Navy watchstanders or 

lookouts. Therefore, NMFS proposes to 

authorize take, by Level B harassment of 

these species incidental to the Navy’s 

Cherry Point Range Complex training 

exercises. NMFS preliminarily 

concludes that takes due to explosive 

ordnance and underwater detonations 

could result in short-term behavioral 

harassment of a limited number (i.e., 20 

takes each) of Atlantic spotted, 

bottlenose, common, striped, and 

Risso’s dolphins annually. There would 

be no mortality or injury to these marine 

mammal species; therefore, the 

proposed Navy training activities would 

not affect the annual rates of 

recruitment or survival of these species, 

or affect the population levels of these 

species. Moreover, take by Level B 

behavioral harassment of 20 individuals 

of each of these species per year would 

likewise have no effect on annual rates 

or recruitment or survival or affect their 

population levels. The population levels 

of each of these species are healthy and 

short-term behavioral harassment would 

result in minor effects, if any, to the 

individuals and would have no lasting 

effect on the species (Waring et al., 

2008). The mitigation measures 

presented below would further reduce 

the potential for exposures. 

Proposed Mitigation Measures 

In order to issue an incidental take 

authorization (ITA) under Section 

101(a)(5)(A) of the MMPA, NMFS must 

set forth the ‘‘permissible methods of 

taking pursuant to such activity, and 

other means of effecting the least 

practicable adverse impact on such 

species or stock and its habitat, paying 

particular attention to rookeries, mating 

grounds, and areas of similar 

significance.’’ The National Defense 

Authorization Act (NDAA) of 2004 

amended the MMPA as it relates to 

military-readiness activities and the 

incidental take authorization process 

such that ‘‘least practicable adverse 

impact’’ shall include consideration of 

personnel safety, practicality of 

implementation, and impact on the 

effectiveness of the ‘‘military readiness 

activity.’’ The training activities 

described in the Cherry Point Range 

Complex LOA application are 

considered military readiness activities. 

In addition, any mitigation measure 

prescribed by NMFS should be known 

to accomplish, have a reasonable 

likelihood of accomplishing (based on 

current science), or contribute to the 

accomplishment of one or more of the 

general goals listed below: 

(a) Avoidance or minimization of 

injury or death of marine mammals 

wherever possible (goals b, c, and d may 

contribute to this goal). 

(b) A reduction in the numbers of 

marine mammals (total number or 

number at a biologically important time 

or location) exposed to received levels 

of underwater detonations or other 

activities expected to result in the take 

of marine mammals (this goal may 

contribute to a, above, or to reducing 

harassment takes only). 

(c) A reduction in the number of times 

(total number or number at biologically 

important time or location) individuals 

would be exposed to received levels of 

underwater detonations or other 

activities expected to result in the take 

of marine mammals (this goal may 

contribute to a, above, or to reducing 

harassment takes only). 

(d) A reduction in the intensity of 

exposures (either total number or 

number at biologically important time 

or location) to received levels of 

underwater detonations or other 

activities expected to result in the take 

of marine mammals (this goal may 

contribute to a, above, or to reducing the 

severity of harassment takes only). 

(e) A reduction in adverse effects to 

marine mammal habitat, paying special 

attention to the food base, activities that 

block or limit passage to or from 

biologically important areas, permanent 

destruction of habitat, or temporary 

destruction/disturbance of habitat 

during a biologically important time. 

(f) For monitoring directly related to 

mitigation—an increase in the 

probability of detecting marine 

mammals, thus allowing for more 

effective implementation of the 

mitigation (shut-down zone, etc.). 

NMFS worked with the Navy and 

identified potential practicable and 

effective mitigation measures, which 

included a careful balancing of the 

likely benefit of any particular measure 

to the marine mammals with the likely 

effect of that measure on personnel 

safety, practicality of implementation, 

and impact on the ‘‘military-readiness 

activity’’. These mitigation measures are 

listed below. 

General Maritime Measures 

The mitigation measures presented 

below would be taken by Navy 

personnel on a regular and routine 

basis. These are routine measures and 

are considered ‘‘Standard Operating 

Procedures.’’ 

I. Personnel Training—Lookouts 

The use of shipboard lookouts is a 

critical component of all Navy standard 

operating procedures. Navy shipboard 

lookouts (also referred to as 

‘‘watchstanders’’) are qualified and 

experienced observers of the marine 

environment. Their duties require that 

they report all objects sighted in the 

water to the Officer of the Deck (OOD) 

(e.g., trash, a periscope, marine 

mammals, sea turtles) and all 

disturbances (e.g., surface disturbance, 

discoloration) that may be indicative of 

a threat to the vessel and its crew. There 

are personnel serving as lookouts on 

station at all times (day and night) when 

a ship or surfaced submarine is moving 

through the water. 

For the past few years, the Navy has 

implemented marine mammal spotter 

training for its bridge lookout personnel 

on ships and submarines. This training 

has been revamped and updated as the 

Marine Species Awareness Training 

(MSAT) and is provided to all 

applicable units. The lookout training 

program incorporates MSAT, which 

addresses the lookout’s role in 

environmental protection, laws 

governing the protection of marine 

species, Navy stewardship 

commitments, and general observation 

information, including more detailed 

information for spotting marine 

mammals. MSAT may also be viewed 

on-line at https:// 

portal.navfac.navy.mil/go/msat. 

1. All bridge personnel, Commanding 

Officers, Executive Officers, officers 

standing watch on the bridge, maritime 

patrol aircraft aircrews, and Mine 

Warfare (MIW) helicopter crews will 

complete MSAT. 

2. Navy lookouts would undertake 

extensive training to qualify as a 

watchstander in accordance with the 

Lookout Training Handbook 

(NAVEDTRA 12968–D). 

3. Lookout training will include onthe-job instruction under the 

supervision of a qualified, experienced 

watchstander. Following successful 

completion of this supervised training 

period, lookouts will complete the 

Personal Qualification Standard 

Program, certifying that they have 

demonstrated the necessary skills (such 

as detection and reporting of partially 

submerged objects). 

4. Lookouts will be trained in the 

most effective means to ensure quick 

and effective communication within the 

command structure to facilitate 

implementation of protective measures 

if marine species are spotted. 

5. Surface lookouts would scan the 

water from the ship to the horizon and 

Federal Register / Vol. 74, No. 49 / Monday, March 16, 2009 / Proposed Rules 11067 

be responsible for all contacts in their 

sector. In searching the assigned sector, 

the lookout would always start at the 

forward part of the sector and search aft 

(toward the back). To search and scan, 

the lookout would hold the binoculars 

steady so the horizon is in the top third 

of the field of vision and direct the eyes 

just below the horizon. The lookout 

would scan for approximately five 

seconds in as many small steps as 

possible across the field seen through 

the binoculars. They would search the 

entire sector in approximately fivedegree steps, pausing between steps for 

approximately five seconds to scan the 

field of view. At the end of the sector 

search, the glasses would be lowered to 

allow the eyes to rest for a few seconds, 

and then the lookout would search back 

across the sector with the naked eye. 

II. Operating Procedures & Collision 

Avoidance 

1. Prior to major exercises, a Letter of 

Instruction, Mitigation Measures 

Message or Environmental Annex to the 

Operational Order will be issued to 

further disseminate the personnel 

training requirement and general marine 

species mitigation measures. 

2. Commanding Officers will make 

use of marine species detection cues 

and information to limit interaction 

with marine species to the maximum 

extent possible consistent with safety of 

the ship according to the proposed 

mitigation and monitoring measures. 

3. While underway, surface vessels 

will have at least two lookouts with 

binoculars; surfaced submarines will 

have at least one lookout with 

binoculars. Lookouts already posted for 

safety of navigation and man-overboard 

precautions may be used to fill this 

requirement. As part of their regular 

duties, lookouts will watch for and 

report to the OOD the presence of 

marine mammals. 

4. Personnel on lookout will employ 

visual search procedures employing a 

scanning method in accordance with the 

Lookout Training Handbook 

(NAVEDTRA 12968–D). 

5. After sunset and prior to sunrise, 

lookouts will employ Night Lookouts 

Techniques in accordance with the 

Lookout Training Handbook 

(NAVEDTRA 12968–D). 

6. While in transit, personnel aboard 

naval vessels will be alert at all times, 

use extreme caution, and proceed at a 

‘‘safe speed’’ (the minimum speed at 

which mission goals or safety will not 

be compromised) so that the vessel can 

take proper and effective action to avoid 

a collision with any marine animal and 

can be stopped within a distance 

appropriate to the prevailing 

circumstances and conditions. 

7. When whales have been sighted in 

the area, Navy vessels will increase 

vigilance and shall implement measures 

to avoid collisions with marine 

mammals and avoid activities that 

might result in close interaction of naval 

assets and marine mammals. Actions 

shall include changing speed and/or 

direction and are dictated by 

environmental and other conditions 

(e.g., safety, weather). 

8. Naval vessels will maneuver to 

keep at least 500 yds (460 m) away from 

any observed whale and avoid 

approaching whales head-on. This 

requirement does not apply if a vessel’s 

safety is threatened, such as when 

change of course will create an 

imminent and serious threat to a person, 

vessel, or aircraft, and to the extent 

vessels are restricted in their ability to 

maneuver. Restricted maneuverability 

includes, but is not limited to, situations 

when vessels are engaged in dredging, 

submerged operations, launching and 

recovering aircraft or landing craft, 

minesweeping operations, 

replenishment while underway and 

towing operations that severely restrict 

a vessel’s ability to deviate course. 

Vessels will take reasonable steps to 

alert other vessels in the vicinity of the 

whale. 

9. Where feasible and consistent with 

mission and safety, vessels will avoid 

closing to within 200 yds (183 m) of 

marine mammals other than whales 

(whales addressed above). 

10. Floating weeds, algal mats, 

Sargassum rafts, clusters of seabirds, 

and jellyfish are good indicators of 

marine mammal presence. Therefore, 

increased vigilance in watching for 

marine mammals will be taken where 

these conditions exist. 

11. Navy aircraft participating in 

exercises at sea will conduct and 

maintain, when operationally feasible 

and safe, surveillance for marine species 

of concern as long as it does not violate 

safety constraints or interfere with the 

accomplishment of primary operational 

duties described in the Navy’s LOA 

application. Marine mammal detections 

will be immediately reported to 

assigned Aircraft Control Unit for 

further dissemination to ships in the 

vicinity of the marine species as 

appropriate where it is reasonable to 

conclude that the course of the ship will 

likely result in a closing of the distance 

to the detected marine mammal. 

12. All vessels will maintain logs and 

records documenting training 

operations should they be required for 

event reconstruction purposes. Logs and 

records will be kept for a period of 30 

days following completion of a major 

training exercise. 

Coordination and Reporting 

Requirements 

The Navy will coordinate with the 

local NMFS Stranding Coordinator for 

any unusual marine mammal behavior 

and any stranding, beached live/dead, 

or floating marine mammals that may 

occur at any time during training 

activities or within 24 hours after 

completion of training activities. 

Additionally, the Navy will follow 

internal chain of command reporting 

procedures as promulgated through 

Navy instructions and orders. 

Mitigation Measures Applicable to 

Vessel Transits in the Mid-Atlantic 

During North Atlantic Right Whale 

Migration 

For purposes of these measures, the 

mid-Atlantic is defined broadly to 

include ports south and east of Block 

Island Sound southward to South 

Carolina. The procedure described 

below would be established as 

mitigation measures for Navy vessel 

transits during North Atlantic right 

whale migratory seasons near ports 

located off the western North Atlantic, 

offshore of the eastern United States. 

The mitigation measures would apply to 

all Navy vessel transits, including those 

vessels that would transit to and from 

East Coast ports and OPAREAs. 

Seasonal migration of right whales is 

generally described by NMFS as 

occurring from October 15th through 

April 30th, when right whales migrate 

between feeding grounds farther north 

and calving grounds farther south. The 

Navy mitigation measures have been 

established in accordance with rolling 

dates identified by NMFS consistent 

with these seasonal patterns. 

NMFS has identified ports located in 

the western Atlantic Ocean, offshore of 

the southeastern United States, where 

vessel transit during right whale 

migration is of highest concern for 

potential ship strike. The ports include 

the Hampton Roads entrance to the 

Chesapeake Bay, which includes the 

concentration of Atlantic Fleet vessels 

in Norfolk, Virginia. Navy vessels are 

required to use extreme caution and 

operate at a slow, safe speed (the 

minimum speed at which mission goals 

or safety will not be compromised) 

consistent with mission and safety 

during the months indicated in Table 11 

below and within a 20 nm (37 km) arc 

(except as noted) of the specified 

reference points. 

During the indicated months, Navy 

vessels would practice increased 

vigilance with respect to avoidance of 

11068 Federal Register / Vol. 74, No. 49 / Monday, March 16, 2009 / Proposed Rules 

vessel-whale interactions along the midAtlantic coast, including transits to and from any mid-Atlantic ports not 

specifically identified above. 

TABLE 11—NORTH ATLANTIC RIGHT WHALE MIGRATION PORT REFERENCES

Region Months Port reference points 

South and East of Block Island .......................... Sep–Oct and Mar–Apr ..................................... 37 km (20 nm) seaward of line 41°4.49 N, 

71°51.15 W and 41°18.58 N, 70°50.23 W. 

New York/New Jersey ........................................ Sep–Oct and Feb–Apr ..................................... 40°30.64 N, 73°57.76 W. 

Delaware Bay (Philadelphia) .............................. Oct–Dec and Feb–Mar .................................... 38°52.13 N, 75°01.93 W. 

Chesapeake Bay (Hampton Roads and Baltimore).Nov–Dec and Feb–Apr .................................... 37°01.11 N, 75°57.56 W. 

North Carolina .................................................... Dec–Apr ........................................................... 34°41.54 N, 76°40.20 W. 

South Carolina .................................................... Oct–Apr ............................................................ 33°11.84 N, 79°08.99 W and 32°43.39 N, 

79°48.72 W. 

Proposed Mitigation Measures for 

Specific At-Sea Training Events 

These measures are standard 

operating procedures that are in place 

currently and will be used in the future 

for all activities being analyzed in this 

LOA request. 

I. Firing Exercise (FIREX) Using the 

Integrated Maritime Portable Acoustic 

Scoring System (IMPASS) (5-in 

Explosive Rounds) 

FIREX using IMPASS will occur in 

two areas in the Navy Cherry Point 

Study Area: Areas of 4⁄5 & 13⁄14. The 

locations were established to be far 

enough from shore to reduce civilian 

encounters (e.g., diving and recreational 

fishing). Surface ships conducting 

FIREX with IMPASS do not have strict 

distance from land restrictions like 

aircraft that embark from shore-based 

facilities. 

The following measures would be 

implemented for FIREX using IMPASS: 

1. This activity would only occur in 

Areas 4⁄5 and 13⁄14. 

2. Pre-exercise monitoring of the 

target area will be conducted with ‘‘Big 

Eyes’’ prior to the event, during 

deployment of the IMPASS sonobuoy 

array, and during return to the firing 

position. Ships will maintain lookouts 

dedicated to visually searching for 

marine mammals 180° along the ship 

track line and 360° at each buoy dropoff location. 

3. ‘‘Big Eyes’’ on the ship will be used 

to monitor a 640-yd (585-m) buffer zone 

for marine mammals during navalgunfire events. 

4. Ships will not fire on the target if 

any marine mammals are detected 

within or approaching the 640-yd (585- 

m) buffer zone until the area is clear of 

marine mammals. If marine mammals 

are present, operations would be 

suspended. Visual observation will 

occur for approximately 45 minutes, or 

until the animal has been observed to 

have vacated the area and is heading 

away from the buffer zone. 

5. Post-exercise monitoring of the 

entire effect range will take place with 

‘‘Big Eyes’’ and the naked eye during the 

retrieval of the IMPASS sonobuoy array 

following each firing exercise. 

6. The naval gunfire will take place 

during daylight hours only. 

7. The naval gunfire utilizing 5-in. 

rounds will only be used in Beaufort 

Sea State three or less. 

8. The visibility must be such that the 

fall of shot is visible from the firing ship 

during the exercise. 

9. No firing will occur if marine 

mammals are detected within 70 yds (64 

m) of the vessel. 

II. Air-to-Surface Missile Exercises 

(Explosives) 

Marine Corps helicopters launch their 

Hellfire and TOW missiles in Air 16 and 

17 of W–122 in the Navy Cherry Point 

Study Area. These sub-areas are far 

enough from shore to reduce civilian 

encounters (e.g., diving and recreational 

fishing), while remaining within 60 nm 

of shore-based facilities, close enough so 

a helicopter can complete its training 

mission before needing to return for 

refueling. 

The following measures will be 

implemented: 

1. This activity will only occur in Air 

16 and 17 of W–122 for Hellfire and 

TOW missile launches. 

2. Before launching a missile, 

participant aircraft will visually survey 

the target area for marine mammals. 

Visual inspection of the target area will 

be made by flying at 1,500 ft (457 m) 

altitude or lower, if safe to do so, and 

at slowest safe speed (the minimum 

speed at which mission goals or safety 

will not be compromised). The aircrew 

must be able to actually see ordnance 

impact areas. Explosive ordnance shall 

not be targeted to impact within 1,800 

yards (1,646 m) of sighted marine 

mammals. 

III. Mine Neutralization Training 

Involving Underwater Detonations (Up 

to and Including 20-lb Charges) 

Mine neutralization involving 

underwater detonations occurs in 

shallow water (0–120 ft, or 0–36 m) and 

is executed by divers using SCUBA. 

These exercises utilize small boats that 

deploy from shore based facilities. Often 

times these small boats are rigid-hulled 

inflatable boats, which are designed for 

shallow water and have limited 

seaworthiness, necessitating a nearshore 

location. The exercise is a one-day event 

that occurs only during daylight hours; 

therefore, the distance from shore is 

limited. 

1. This activity will only occur in the 

UNDET area of Onslow Bay. 

2. Observers will survey the ZOI, a 

656-yd (600-m) radius from detonation 

location, for marine mammals from all 

participating vessels during the entire 

operation. A survey of the ZOI 

(minimum of three parallel tracklines 

219 yds [200 m] apart) using support 

craft will be conducted at the detonation 

location 30 minutes prior through 30 

minutes post detonation. 

3. Detonation operations will be 

conducted during daylight hours. 

4. If a marine mammal is sighted 

within the ZOI, the animal will be 

allowed to leave of its own volition. The 

Navy will suspend detonation exercises 

and ensure the area is clear for a full 30 

minutes prior to detonation. 

5. Divers placing the charges on mines 

and dive support vessel personnel will 

survey the area for marine mammals 

and will report any sightings to the 

surface observers. These animals will be 

allowed to leave of their own volition 

and the ZOI will be clear for 30 minutes 

prior to detonation. 

6. No detonations will take place 

within 3.2 nm (6 km) of an estuarine 

inlet (Bogue, Bear, Browns, New River, 

Inlets). 

7. No detonations will take place 

within 1.6 nm (3 km) of shoreline. 

Federal Register / Vol. 74, No. 49 / Monday, March 16, 2009 / Proposed Rules 11069 

8. No detonations will take place 

within 0.5 nm (1 km) of any artificial 

reef, shipwreck, or live hard-bottom 

community. 

9. Personnel will record any protected 

species observations during the exercise 

as well as measures taken if species are 

detected within the ZOI. 

Adaptive Management 

NMFS proposes to include an 

adaptive management component in the 

final regulations governing the take of 

marine mammals incidental to Navy 

training exercises in the Cherry Point 

Range Complex. The use of adaptive 

management will provide NMFS the 

ability to consider new data from 

different sources to determine (in 

coordination with the Navy), on an 

annual basis (or earlier, as warranted), if 

new or modified mitigation or 

monitoring measures are appropriate for 

subsequent annual LOAs. Following are 

some of the possible sources of 

applicable data: 

• Results from the Navy’s monitoring 

from the previous year (either from the 

Cherry Point Range Complex or other 

locations) 

• Compiled results of Navy funded 

research and development (R&D) studies 

(presented pursuant to the ICMP, which 

is discussed elsewhere in this 

document) 

• Results from general marine 

mammal and sound research (funded by 

the Navy [described below] or 

otherwise) 

• Any information which reveals that 

marine mammals may have been taken 

in a manner, extent or number not 

authorized by these regulations or 

subsequent Letters of Authorization. 

Mitigation measures could be 

modified or added if new data suggests 

that such modifications would have a 

reasonable likelihood of accomplishing 

the goals of mitigation laid out in this 

proposed rule and if the measures are 

practicable. NMFS would also 

coordinate with the Navy to modify or 

add to the existing monitoring 

requirements if the new data suggest 

that the addition of a particular measure 

would more effectively accomplish the 

goals of monitoring laid out in this 

proposed rule. The reporting 

requirements associated with this rule 

are designed to provide NMFS with 

monitoring data from the previous year 

to allow NMFS to consider the data in 

issuing annual LOAs. NMFS and the 

Navy will meet annually prior to LOA 

issuance to discuss the monitoring 

reports, Navy R&D developments, and 

current science and whether mitigation 

or monitoring modifications are 

appropriate. 

Monitoring and Reporting Measures 

In order to issue an ITA for an 

activity, Section 101(a)(5)(A) of the 

MMPA states that NMFS must set forth 

‘‘requirements pertaining to the 

monitoring and reporting of such 

taking.’’ The MMPA implementing 

regulations at 50 CFR 216.104(a)(13) 

indicate that requests for LOAs must 

include the suggested means of 

accomplishing the necessary monitoring 

and reporting that will result in 

increased knowledge of the species and 

of the level of taking or impacts on 

populations of marine mammals that are 

expected to be present. 

Monitoring measures prescribed by 

NMFS should accomplish one or more 

of the following general goals: 

a. An increase in the probability of 

detecting marine mammals, both within 

the safety zone (thus allowing for more 

effective implementation of the 

mitigation) and in general to generate 

more data to contribute to the effects 

analyses. 

b. An increase in our understanding 

of how many marine mammals are 

likely to be exposed to levels of 

explosives or other stimuli that we 

associate with specific adverse effects, 

such as behavioral harassment, TTS, or 

PTS. 

c. An increase in our understanding of 

how marine mammals respond 

(behaviorally or physiologically) to 

explosives or other stimuli expected to 

result in take and how anticipated 

adverse effects on individuals (in 

different ways and to varying degrees) 

may impact the population, species, or 

stock (specifically through effects on 

annual rates of recruitment or survival). 

d. An increased knowledge of the 

affected species. 

e. An increase in our understanding of 

the effectiveness of certain mitigation 

and monitoring measures. 

f. A better understanding and record 

of the manner in which the authorized 

entity complies with the incidental take 

authorization. 

The Navy would be required to 

cooperate with the NMFS when 

monitoring the impacts of the activity 

on marine mammals. 

The Navy must notify NMFS 

immediately (or as soon as clearance 

procedures allow) if the specified 

activity is thought to have resulted in 

the mortality or injury of any marine 

mammals, or in any take of marine 

mammals not identified in this 

document. 

The Navy must conduct all 

monitoring and/or research required 

under the Letter of Authorization, if 

issued. 

The monitoring methods proposed for 

use during training events in the Cherry 

Point Range Complex include a 

combination of individual elements 

designed to allow a comprehensive 

assessment include: 

1. Vessel and aerial surveys. 

i. Visual surveillance of 1 event per 

year. If possible, the event surveyed will 

be one involving multiple detonations. 

Due to the limited number of events 

conducted in the Cherry Point Range 

Complex, there is a potential that it may 

be impossible to coordinate required 

surveys to take place during the limited 

opportunities presented. In any case, 

any missed annual survey requirement 

will roll into the subsequent year 

ensuring that the appropriate number of 

surveys occur over the 5-year 

regulations. Likewise, additional 

surveys may be scheduled in any year 

where additional opportunities arise, 

with the number of surveys during the 

5-year regulations not to exceed 5. 

ii. For surveyed training events, aerial 

or vessel surveys will be used 1–2 days 

prior to, during (if safe to do so), and 1– 

5 days post detonation. The variation in 

the number of days after allows for the 

detection of animals that gradually 

return to an area, if they indeed do 

change their distribution in response to 

underwater detonation events. 

iii. Surveys will include any specified 

exclusion zone around a particular 

detonation point plus 2,000 yards 

beyond the border of the exclusion zone 

(i.e., the circumference of the area from 

the border of the exclusion zone 

extending 2,000 yards outwards). The 

survey shall be conducted using a towed 

array behind the survey vessel in 

transect lines or grid in the 

predetermined area outside the 

exclusion zone and should be 

conducted in a manner that ensures the 

entire circumference of the exclusion 

zone can be observed. For vessel-based 

surveys a passive acoustic system 

(hydrophone or towed array) could be 

used to determine if marine mammals 

are in the area before and/or after a 

detonation event. Depending on animals 

sighted, it may be possible to conduct 

focal surveys of animals outside of the 

exclusion zone (detonations could be 

delayed if marine mammals are 

observed within the exclusion zone) to 

record behavioral responses to the 

detonations. 

iv. When conducting a particular 

survey, the survey team will collect: 

A. Species identification and group 

size; 

B. Location and relative distance from 

the detonation site; 

11070 Federal Register / Vol. 74, No. 49 / Monday, March 16, 2009 / Proposed Rules 

C. The behavior of marine mammals 

including standard environmental and 

oceanographic parameters; 

D. Date, time and visual conditions 

associated with each observation; 

E. Direction of travel relative to the 

detonation site; and 

F. Duration of the observation. 

2. Passive acoustic monitoring. 

i. When practicable, a towed 

hydrophone array should be used 

whenever shipboard surveys are being 

conducted. The towed array would be 

deployed during daylight hours for each 

of the days the ship is at sea. 

ii. A towed hydrophone array is 

towed from the boat and can detect and 

localize marine mammals that vocalize 

and would be used to supplement the 

ship-based systematic line-transect 

surveys (particularly for species such as 

beaked whales that are rarely seen). 

iii. The array would need to detect 

low frequency vocalizations (< 1,000 

Hz) for baleen whales and relatively 

high frequency vocalizations (up to 30 

kHz) for odontocetes such as sperm 

whales. The use of two simultaneously 

deployed arrays can also allow more 

accurate localization and determination 

of diving patterns. 

3. Marine mammal observers on Navy 

platforms 

i. Marine mammal observers (MMOs) 

will be placed on a Navy platform 

during one of the exercises being 

monitored per year. 

ii. Qualifications must include 

expertise in species identification of 

regional marine mammal species and 

experience collecting behavioral data. 

Experience as a NMFS marine mammal 

observer is preferred, but not required. 

Navy biologists and contracted 

biologists may also be used; contracted 

MMOs must have appropriate security 

clearance to board Navy platforms. 

iii. MMOs will not be placed aboard 

Navy platforms for every Navy training 

event or major exercise, but during 

specifically identified opportunities 

deemed appropriate for data collection 

efforts. The events selected for MMO 

participation will take into account 

safety, logistics, and operational 

concerns. 

iv. MMOs will observe from the same 

height above water as the lookouts. 

v. The MMOs will not be part of the 

Navy’s formal reporting chain of 

command during their data collection 

efforts; instead, Navy lookouts will 

continue to serve as the primary 

reporting means within the Navy chain 

of command for marine mammal 

sightings. The only exception is that if 

an animal is observed within the 

shutdown zone that has not been 

observed by the lookout, the MMO will 

inform the lookout of the sighting for 

the lookout to take the appropriate 

action through the chain of command. 

vi. The MMOs will collect species 

identification, behavior, direction of 

travel relative to the Navy platform, and 

distance first observed. All MMO 

sightings will be conducted according to 

a standard operating procedure. 

The Navy would submit a report 

annually on September 1 describing the 

implementation and results (through 

June 1 of the same year) of the 

monitoring required above. Standard 

marine species sighting forms would be 

provided by the Navy and data 

collection methods will be standardized 

across ranges to allow for comparison in 

different geographic locations. 

The Cherry Point Range Complex 

Comprehensive Report—The Navy will 

submit to NMFS a draft report that 

summarizes all of the marine mammal 

observations and data gathered during 

explosive exercises through February 1, 

2013. This report will be submitted to 

NMFS at the end of the fourth year of 

the rule (May 2013). 

The Navy will respond to NMFS’ 

comments on the draft comprehensive 

report if submitted within 3 months of 

receipt. The report will be considered 

final after the Navy has addressed 

NMFS’ comments, or three months after 

the submittal of the draft if NMFS does 

not comment by then. To implement the 

aforementioned monitoring measures, 

the Navy is developing an Integrated 

Comprehensive Monitoring Program 

(ICMP) for marine species in order to 

assess the effects of training activities on 

marine species and investigate 

population-level trends in marine 

species distribution, abundance, and 

habitat use in various range complexes 

and geographic locations where Navy 

training occurs. Although the ICMP is 

intended to apply to all Navy training, 

use of mid-frequency active (MFA) 

sonar in training, testing, and research, 

development, test, and evaluation 

(RDT&E) will comprise a major 

component of the overall program. 

The ICMP will establish the 

overarching structure and coordination 

that will facilitate the collection and 

synthesis of monitoring data from Navy 

training and research and development 

projects. The Program will compile data 

from range-specific monitoring efforts as 

well as research and development (R&D) 

studies that are fully or partially Navyfunded. Monitoring methods across the 

ranges will include methods such as 

vessel and aerial surveys, tagging, and 

passive acoustic monitoring. 

The Navy will coordinate with the 

local NMFS Stranding Coordinator for 

any unusual marine mammal behavior 

and any stranding, beached live/dead, 

or floating marine mammals that may 

occur at any time during or within 24 

hours after completion of explosives 

training activities. 

Estimated Take of Marine Mammals 

With respect to the MMPA, NMFS’ 

effects assessment serves four primary 

purposes: (1) To prescribe the 

permissible methods of taking (i.e., 

Level B Harassment (behavioral 

harassment), Level A harassment 

(injury), or mortality, including an 

identification of the number and types 

of take that could occur by Level A or 

B harassment or mortality) and to 

prescribe other means of affecting the 

least practicable adverse impact on such 

species or stock and its habitat (i.e., 

mitigation); (2) to determine whether 

the specified activity will have a 

negligible impact on the affected species 

or stocks of marine mammals (based on 

the likelihood that the activity will 

adversely affect the species or stock 

through effects on annual rates of 

recruitment or survival); (3) to 

determine whether the specified activity 

will have an unmitigable adverse impact 

on the availability of the species or 

stock(s) for subsistence uses (however, 

there are no subsistence communities 

that would be affected in the Cherry 

Point Range Complex, so this 

determination is inapplicable for this 

rulemaking); and (4) to prescribe 

requirements pertaining to monitoring 

and reporting. 

In the Assessment of Marine Mammal 

Response to Anthropogenic Sound 

section, NMFS’ analysis identified the 

lethal responses, physical trauma, 

sensory impairment (permanent and 

temporary threshold shifts and acoustic 

masking), physiological responses 

(particular stress responses), and 

behavioral responses that could 

potentially result from explosive 

ordnance exposures. In this section, we 

will relate the potential effects to marine 

mammals from underwater detonation 

of explosives to the MMPA regulatory 

definitions of Level A and Level B 

Harassment and attempt to quantify the 

effects that might occur from the 

specific training activities that the Navy 

is proposing in the Cherry Point Range 

Complex. 

Take Calculations 

In estimating the potential for marine 

mammals to be exposed to an acoustic 

source, the Navy completed the 

following actions: 

1. Evaluated potential effects within 

the context of existing and current 

regulations, thresholds, and criteria; 

Federal Register / Vol. 74, No. 49 / Monday, March 16, 2009 / Proposed Rules 11071 

2. Identified all acoustic sources that 

will be used during Navy training 

activities; 

3. Identified the location, season, and 

duration of the action to determine 

which marine mammal species are 

likely to be present; 

4. Determined the estimated number 

of marine mammals (i.e., density) of 

each species that will likely be present 

in the respective OPAREAs during the 

Navy training activities; 

5. Applied the applicable acoustic 

threshold criteria to the predicted sound 

exposures from the proposed activity. 

The results were then evaluated to 

determine whether the predicted sound 

exposures from the acoustic model 

might be considered harassment; and 

6. Considered potential harassment 

within the context of the affected 

marine mammal population, stock, and 

species to assess potential population 

viability. Particular focus on 

recruitment and survival are provided to 

analyze whether the effects of the action 

can be considered to have a negligible 

impact on marine mammal species or 

stocks. 

Starting with a sound source, the 

attenuation of an emitted sound due to 

propagation loss is determined. Uniform 

animal distribution is overlaid onto the 

calculated sound fields to assess if 

animals are physically present at 

sufficient received sound levels to be 

considered ‘‘exposed’’ to the sound. If 

the animal is determined to be exposed, 

two possible scenarios must be 

considered with respect to the animal’s 

physiology—effects on the auditory 

system and effects on non-auditory 

system tissues. These are not 

independent pathways and both must 

be considered since the same sound 

could affect both auditory and nonauditory tissues. Note that the model 

does not account for any animal 

response; rather the animals are 

considered stationary, accumulating 

energy until the threshold is tripped. 

These modeling results do not take 

into account the mitigation measures 

(detailed in the Proposed Mitigation 

Measure section above) that lower the 

potential for exposures to occur given 

standard range clearance procedures 

and the likelihood that these species can 

be readily detected (e.g., small animals 

move quickly throughout the water 

column and are often seen riding the 

bow wave of large ships or in large 

groups). Nevertheless, based on the 

modeling results, only two individuals 

of Atlantic spotted dolphins would be 

taken by Level B behavioral harassment 

as a result of the Navy training activities 

in the Cherry Point Range Complex. In 

addition, NMFS does not believe that 

there would be any mortality of any 

marine mammal resulting from the 

proposed training activities due to the 

sparse training activities and the 

implementation of mitigation and 

monitoring measures described above. 

Therefore, mortality of marine mammals 

would not be authorized. With the 

mitigation and monitoring measures 

implemented, the estimated take could 

be further reduced. 

Although exposure of marine 

mammals based on the Navy’s modeling 

shows that only two individuals of 

Atlantic spotted dolphins would be 

taken by Level B behavioral harassment, 

because of the relatively high 

abundance of several species (Atlantic 

spotted dolphins, bottlenose dolphins, 

common dolphins, striped dolphins, 

and Risso’s dolphins) in the proposed 

action area (Waring et al., 2008) and 

their aggregation in relatively large 

groups, NMFS considers that additional 

takes of these five species by Level B 

behavioral harassment are possible. 

Therefore, NMFS proposes to authorize 

the take of 20 individuals annually from 

each species over the course of the 5- 

year regulations. 

Effects on Marine Mammal Habitat 

Activities from Atlantic Fleet training 

activities in the Cherry Point Range 

Complex that may affect marine 

mammal habitat include changes in 

water quality, the introduction of sound 

into the water column, and temporary 

changes to prey distribution and 

abundance. However, potential impacts 

to marine mammal habitat are not 

anticipated to alter the function of the 

habitat and, therefore, will have little to 

no impact of marine mammal species. 

There is no critical habitat within the 

Cherry Point Range Complex. 

Analysis and Negligible Impact 

Determination 

Pursuant to NMFS’ regulations 

implementing the MMPA, an applicant 

is required to estimate the number of 

animals that will be ‘‘taken’’ by the 

specified activities (i.e., takes by 

harassment only, or takes by 

harassment, injury, and/or death). This 

estimate informs the analysis that NMFS 

must perform to determine whether the 

activity will have a ‘‘negligible impact’’ 

on the species or stock. Level B 

(behavioral) harassment occurs at the 

level of the individual(s) and does not 

assume any resulting population-level 

consequences, though there are known 

avenues through which behavioral 

disturbance of individuals can result in 

population-level effects. A negligible 

impact finding is based on the lack of 

likely adverse effects on annual rates of 

recruitment or survival (i.e., populationlevel effects). An estimate of the number 

of Level B harassment takes, alone, is 

not enough information on which to 

base an impact determination. In 

addition to considering estimates of the 

number of marine mammals that might 

be ‘‘taken’’ through behavioral 

harassment, NMFS must consider other 

factors, such as the likely nature of any 

responses (their intensity, duration, 

etc.), the context of any responses 

(critical reproductive time or location, 

migration, etc.), or any of the other 

variables mentioned in the first 

paragraph (if known), as well as the 

number and nature of estimated Level A 

takes, the number of estimated 

mortalities, and effects on habitat. 

Based on the analyses of the potential 

impacts from the proposed Navy Cherry 

Point Range Complex training activities 

contained herein, NMFS has 

preliminarily determined that the 

issuance of 5-year regulations and 

annual LOAs is appropriate for Navy 

training exercises utilizing underwater 

detonations and will have a negligible 

impact on the marine mammal species 

and stocks present in the Cherry Point 

Range Complex. 

Subsistence Harvest of Marine 

Mammals 

NMFS has preliminarily determined 

that the issuance of an LOA for Navy 

training exercises in the Cherry Point 

Range Complex would not have an 

unmitigable adverse impact on the 

availability of the affected species or 

stocks for subsistence use, since there 

are no such uses in the specified area. 

ESA 

There are six ESA-listed marine 

mammal species that are listed as 

endangered under the ESA with 

confirmed or possible occurrence in the 

Cherry Point Range Complex: 

Humpback whale, North Atlantic right 

whale, fin whale, and sperm whale. The 

Navy has begun consultation with 

NMFS pursuant to section 7 of the ESA, 

and NMFS will also consult internally 

on the issuance of an LOA under section 

101(a)(5)(A) of the MMPA for training 

exercises in the Cherry Point Range 

Complex. Consultation will be 

concluded prior to a determination on 

the issuance of the final rule and an 

LOA. 

NEPA 

The Navy is preparing an 

Environmental Impact Statement (EIS) 

for the proposed Cherry Point Range 

Complex training activities. A draft EIS 

was released for public comments from 

September 13–October 27, 2008 and it is 

11072 Federal Register / Vol. 74, No. 49 / Monday, March 16, 2009 / Proposed Rules 

available at http://www.NavyCherry

PointRangeComplexEIS.com. NMFS is a 

cooperating agency (as defined by the 

Council on Environmental Quality (40 

CFR 1501.6)) in the preparation of the 

EIS. NMFS has reviewed the Draft EIS 

and will be working with the Navy on 

the Final EIS (FEIS). 

NMFS intends to adopt the Navy’s 

FEIS, if adequate and appropriate, and 

we believe that the Navy’s FEIS will 

allow NMFS to meet its responsibilities 

under NEPA for the issuance of the 5- 

year regulation and LOAs for training 

activities in the Cherry Point Range 

Complex. If the Navy’s FEIS is not 

adequate, NMFS will supplement the 

existing analysis and documents to 

ensure that we comply with NEPA prior 

to the issuance of the final rule or LOA. 

Preliminary Determination 

Based on the analysis contained 

herein of the likely effects of the 

specified activity on marine mammals 

and their habitat and dependent upon 

the implementation of the mitigation 

measures, NMFS preliminarily finds 

that the total taking from Navy training 

exercises utilizing underwater 

explosives in the Cherry Point Range 

Complex will have a negligible impact 

on the affected marine mammal species 

or stocks. NMFS has proposed 

regulations for these exercises that 

prescribe the means of affecting the least 

practicable adverse impact on marine 

mammals and their habitat and set forth 

requirements pertaining to the 

monitoring and reporting of that taking. 

Classification 

This action does not contain a 

collection of information requirement 

for purposes of the Paperwork 

Reduction Act 

This proposed rule has been 

determined to be not significant for 

purposes of Executive Order 12866. 

Pursuant to the Regulatory Flexibility 

Act, the Chief Counsel for Regulation of 

the Department of Commerce has 

certified to the Chief Counsel for 

Advocacy of the Small Business 

Administration that this rule, if 

adopted, would not have a significant 

economic impact on a substantial 

number of small entities. The 

Regulatory Flexibility Act requires 

Federal agencies to prepare an analysis 

of a rule’s impact on small entities 

whenever the agency is required to 

publish a notice of proposed 

rulemaking. However, a Federal agency 

may certify, pursuant to 5 U.S.C. 

Section 605(b), that the action will not 

have a significant economic impact on 

a substantial number of small entities. 

The Navy is the entity that will be 

affected by this rulemaking, not a small 

governmental jurisdiction, small 

organization or small business, as 

defined by the Regulatory Flexibility 

Act. This rulemaking authorizes the take 

of marine mammals incidental to a 

specified activity. The specified activity 

defined in the proposed rule includes 

the use of underwater detonations 

during training activities that are only 

conducted by the U.S. Navy. 

Additionally, the proposed regulations 

are specifically written for ‘‘military 

readiness’’ activities, as defined by the 

NDAA, which means they cannot apply 

to small businesses. Consequently, any 

requirements imposed by a Letter of 

Authorization issued pursuant to these 

regulations, and any monitoring or 

reporting requirements imposed by 

these regulations, will be applicable 

only to the Navy. Because this action, if 

adopted, would directly affect the Navy 

and not a small entity, NMFS concludes 

the action would not result in a 

significant economic impact on a 

substantial number of small entities. As 

a result, an initial regulatory flexibility 

analysis is not required and none has 

been prepared. 

Dated: March 9, 2009. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

For reasons set forth in the preamble, 

50 CFR part 218 is proposed to be 

amended as follows: 

PART 218—REGULATIONS 

GOVERNING THE TAKING AND 

IMPORTING OF MARINE MAMMALS 

1. The authority citation for part 218 

continues to read as follows: 

Authority: 16 U.S.C. 1361 et seq. 

2. Subpart C is added to part 218 to 

read as follows: 

Subpart C—Taking Marine Mammals 

Incidental to U.S. Navy Training in the 

Cherry Point Range Complex 

Sec. 

218.20 Specified activity and specified 

geographical region. 

218.21 Permissible methods of taking. 

218.22 Prohibitions. 

218.23 Mitigation. 

218.24 Requirements for monitoring and 

reporting. 

218.25 Applications for Letters of 

Authorization. 

218.26 Letters of Authorization. 

218.27 Renewal of Letters of Authorization. 

218.28 Modifications to Letters of 

Authorization. 

Subpart C—Taking Marine Mammals 

Incidental to U.S. Navy Training in the 

Cherry Point Range Complex 

§ 218.20 Specified activity and specified 

geographical region. 

(a) Regulations in this subpart apply 

only to the U.S. Navy for the taking of 

marine mammals that occurs in the area 

outlined in paragraph (b) of this section 

and that occur incidental to the 

activities described in paragraph (c) of 

this section. 

(b) The taking of marine mammals by 

the Navy is only authorized if it occurs 

within the Cherry Point Range Complex, 

which is located along the southern east 

coast of the U.S., as stated in the Navy’s 

letter of authorization application. The 

coordinates of the Cherry Point Range 

Complex Study Area are: 35°30′ N, 

75°25′ W; 34°14′ N, 73°57′ W; 32°12′ N, 

76°49′ W; 32°20′ N, 77°20′ W; 33°10′ N, 

77°31′ W; and 34°23′30′′ N, 77°30′ W; 

then along the 3 nm from and parallel 

to the shoreline. 

(c) The taking of marine mammals by 

the Navy is only authorized if it occurs 

incidental to the following activities 

within the designated amounts of use: 

(1) The detonation of the underwater 

explosives indicated in paragraph 

(c)(1)(i) of this section conducted as part 

of the training exercises indicated in 

paragraph (c)(1)(ii) of this section: 

(i) Underwater Explosives: 

(A) AGM–114 (Hellfire missile); 

(B) Tube-launched Optically tracked 

Wire-guided (TOW) missile; 

(C) Mine Neutralization (20 lb NEW 

charges); and 

(D) 5′′ Naval Gunfire. 

(ii) Training Exercises: 

(A) Mine Neutralization (20 lb NEW 

charges)—up to 100 exercises over the 

course of 5 years (an average of 20 per 

year); 

(B) Missile Exercise (MISSILEX) (Airto-Surface; Hellfire missile)—up to 40 

exercises over the course of 5 years (an 

average of 8 per year); 

(C) Missile Exercise (MISSILEX) (Airto-Surface; TOW)—up to 40 exercises 

over the course of 5 years (an average of 

8 per year); and 

(D) FIREX with IMPASS—up to 10 

exercises over the course of 5 years (an 

average of 2 per year). 

(2) [Reserved]. 

§ 218.21 Permissible methods of taking. 

(a) Under Letters of Authorization 

issued pursuant to §§ 216.106 and 

218.26, the Holder of the Letter of 

Authorization may incidentally, but not 

intentionally, take marine mammals 

within the area described in § 218.20(b), 

provided the activity is in compliance 

with all terms, conditions, and 

Federal Register / Vol. 74, No. 49 / Monday, March 16, 2009 / Proposed Rules 11073 

requirements of this Subpart and the 

appropriate Letter of Authorization. 

(b) The incidental take of marine 

mammals under the activities identified 

in § 218.20(c) is limited to the following 

species, by the indicated method of take 

and the indicated number of times: 

(1) Level B Harassment (annual 

estimates): 

(A) Atlantic spotted dolphin (Stenella 

frontalis)—22; 

(B) Striped dolphin (S. 

coeruleoalba)—20; 

(C) Bottlenose dolphin (Tursiops 

truncatus)—20; 

(D) Common dolphin (Delphinus 

delphis)—20; and 

(E) Risso’s dolphin (Grampus 

griseus)—20. 

(2) [Reserved]. 

§ 218.22 Prohibitions. 

Notwithstanding takings 

contemplated in § 218.21 and 

authorized by a Letter of Authorization 

issued under §§ 216.106 and 218.26, no 

person in connection with the activities 

described in § 218.20 may: 

(a) Take any marine mammal not 

specified in § 218.21(b); 

(b) Take any marine mammal 

specified in § 218.21(b) other than by 

incidental take as specified in 

§ 218.21(b)(1) and (2); 

(c) Take a marine mammal specified 

in § 218.21(b) if such taking results in 

more than a negligible impact on the 

species or stocks of such marine 

mammal; or 

(d) Violate, or fail to comply with, the 

terms, conditions, and requirements of 

this Subpart or a Letter of Authorization 

issued under §§ 216.106 and 218.26. 

§ 218.23 Mitigation. 

(a) When conducting training 

activities identified in § 218.20(c), the 

mitigation measures contained in this 

subpart and subsequent Letters of 

Authorization issued under §§ 216.106 

and 218.26 must be implemented. These 

mitigation measures include, but are not 

limited to: 

(1) General Maritime Measures: (i) 

Personnel Training—Lookouts; 

(A) All bridge personnel, 

Commanding Officers, Executive 

Officers, officers standing watch on the 

bridge, maritime patrol aircraft aircrews, 

and Mine Warfare (MIW) helicopter 

crews shall complete MSAT. 

(B) Navy lookouts shall undertake 

extensive training to qualify as a 

watchstander in accordance with the 

Lookout Training Handbook 

(NAVEDTRA 12968–D). 

(C) Lookout training shall include onthe-job instruction under the 

supervision of a qualified, experienced 

watchstander. Following successful 

completion of this supervised training 

period, lookouts shall complete the 

Personal Qualification Standard 

Program, certifying that they have 

demonstrated the necessary skills (such 

as detection and reporting of partially 

submerged objects). 

(D) Lookouts shall be trained in the 

most effective means to ensure quick 

and effective communication within the 

command structure to facilitate 

implementation of protective measures 

if marine species are spotted. 

(E) Surface lookouts shall scan the 

water from the ship to the horizon and 

be responsible for all contacts in their 

sector. In searching the assigned sector, 

the lookout shall always start at the 

forward part of the sector and search aft 

(toward the back). To search and scan, 

the lookout shall hold the binoculars 

steady so the horizon is in the top third 

of the field of vision and direct the eyes 

just below the horizon. The lookout 

shall scan for approximately five 

seconds in as many small steps as 

possible across the field seen through 

the binoculars. They shall search the 

entire sector in approximately fivedegree steps, pausing between steps for 

approximately five seconds to scan the 

field of view. At the end of the sector 

search, the glasses shall be lowered to 

allow the eyes to rest for a few seconds, 

and then the lookout shall search back 

across the sector with the naked eye. 

(ii) Operating Procedures & Collision 

Avoidance: 

(A) Prior to major exercises, a Letter 

of Instruction, Mitigation Measures 

Message or Environmental Annex to the 

Operational Order shall be issued to 

further disseminate the personnel 

training requirement and general marine 

species mitigation measures. 

(B) Commanding Officers shall make 

use of marine species detection cues 

and information to limit interaction 

with marine species to the maximum 

extent possible consistent with safety of 

the ship. 

(C) While underway, surface vessels 

shall have at least two lookouts with 

binoculars; surfaced submarines shall 

have at least one lookout with 

binoculars. Lookouts already posted for 

safety of navigation and man-overboard 

precautions may be used to fill this 

requirement. As part of their regular 

duties, lookouts shall watch for and 

report to the OOD the presence of 

marine mammals. 

(D) Personnel on lookout will employ 

visual search procedures employing a 

scanning method in accordance with the 

Lookout Training Handbook 

(NAVEDTRA 12968–D). 

(E) After sunset and prior to sunrise, 

lookouts shall employ Night Lookouts 

Techniques in accordance with the 

Lookout Training Handbook 

(NAVEDTRA 12968–D). 

(F) While in transit, naval vessels 

shall be alert at all times, use extreme 

caution, and proceed at a ‘‘safe speed’’ 

(the minimum speed at which mission 

goals or safety will not be compromised) 

so that the vessel can take proper and 

effective action to avoid a collision with 

any marine animal and can be stopped 

within a distance appropriate to the 

prevailing circumstances and 

conditions. 

(G) When marine mammals have been 

sighted in the area, Navy vessels shall 

increase vigilance and implement 

measures to avoid collisions with 

marine mammals and avoid activities 

that might result in close interaction of 

naval assets and marine mammals. Such 

measures shall include changing speed 

and/or course direction and would be 

dictated by environmental and other 

conditions (e.g., safety or weather). 

(H) Naval vessels shall maneuver to 

keep at least 500 yds (460 m) away from 

any observed whale and avoid 

approaching whales head-on. 

(I) Where feasible and consistent with 

mission and safety, vessels shall avoid 

closing to within 200-yd (183 m) of 

marine mammals other than whales. 

(J) Navy aircraft participating in 

exercises at sea shall conduct and 

maintain, when operationally feasible 

and safe, surveillance for marine species 

of concern as long as it does not violate 

safety constraints or interfere with the 

accomplishment of primary operational 

duties under § 218.20. Marine mammal 

detections shall be immediately 

reported to assigned Aircraft Control 

Unit for further dissemination to ships 

in the vicinity of the marine species as 

appropriate. 

(K) All vessels shall maintain logs and 

records documenting training 

operations should they be required for 

event reconstruction purposes. Logs and 

records shall be kept for a period of 30 

days following completion of a major 

training exercise. 

(2) Coordination and Reporting 

Requirements. (i) The Navy shall 

coordinate with the local NMFS 

Stranding Coordinator for any unusual 

marine mammal behavior and any 

stranding, beached live/dead, or floating 

marine mammals that may occur at any 

time during training activities or within 

24 hours after completion of training 

activities. 

(ii) The Navy shall follow internal 

chain of command reporting procedures 

as promulgated through Navy 

instructions and orders. 

11074 Federal Register / Vol. 74, No. 49 / Monday, March 16, 2009 / Proposed Rules 

(3) Mitigation Measures Applicable 

Vessel Transit in the Mid-Atlantic 

during North Atlantic Right Whale 

Migration: (i) Mid-Atlantic, Offshore of 

the Eastern United States: 

(A) All Navy vessels are required to 

use extreme caution and operate at a 

slow, safe speed consistent with mission 

and safety during the months indicated 

below and within a 37 km (20 nm) arc 

(except as noted) of the specified 

associated reference points: 

(1) South and East of Block Island (37 

km (20 NM) seaward of line between 

41–4.49 °N. lat. 071–51.15 °W. long. and 

41–18.58 °N. lat. 070–50.23 °W. long): 

Sept-Oct and Mar-Apr 

(2) New York/New Jersey (40–30.64 

°N. lat. 073–57.76 °W. long.): Sep–Oct 

and Feb-Apr. 

(3) Delaware Bay (Philadelphia) (38– 

52.13 °N. lat. 075–1.93 °W. long.): Oct– 

Dec and Feb–Mar. 

(4) Chesapeake Bay (Hampton Roads 

and Baltimore) (37–1.11 °N. lat. 075– 

57.56 °W. long.): Nov-Dec and Feb–Apr. 

(5) North Carolina (34–41.54 °N. lat. 

076–40.20 °W. long.): Dec-Apr 

(6) South Carolina (33–11.84 °N. lat. 

079–8.99 °W. long. and 32–43.39 °N. lat. 

079–48.72 °W. long.): Oct-Apr 

(B) During the months indicated in 

paragraph (a)(3)(i)(A) of this section, 

Navy vessels shall practice increased 

vigilance with respect to avoidance of 

vessel-whale interactions along the midAtlantic coast, including transits to and 

from any mid-Atlantic ports not 

specifically identified in paragraph 

(a)(3)(i)(A) of this section. 

(C) All surface units transiting within 

56 km (30 NM) of the coast in the midAtlantic shall ensure at least two 

watchstanders are posted, including at 

least one lookout who has completed 

required MSAT training. 

(D) Navy vessels shall not knowingly 

approach any whale head on and shall 

maneuver to keep at least 457 m (1,500 

ft) away from any observed whale, 

consistent with vessel safety. 

(ii) Southeast Atlantic, Offshore of the 

Eastern United States—for the purposes 

of the measures below (paragraph 

(a)(3)(ii)(A) and (B) of this section), the 

‘‘southeast’’ encompasses sea space 

from Charleston, South Carolina, 

southward to Sebastian Inlet, Florida, 

and from the coast seaward to 148 km 

(80 NM) from shore. North Atlantic right 

whale critical habitat is the area from 

31–15 °N. lat. to 30–15 °N. lat. 

extending from the coast out to 28 km 

(15 NM), and the area from 28–00 °N. 

lat. to 30–15 °N. lat. from the coast out 

to 9 km (5 NM). All mitigation measures 

described here that apply to the critical 

habitat apply from November 15—April 

15 and also apply to an associated area 

of concern which extends 9 km (5 NM) 

seaward of the designated critical 

habitat boundaries. 

(A) Prior to transiting or training in 

the critical habitat or associated area of 

concern, ships shall contact Fleet Area 

Control and Surveillance Facility, 

Jacksonville, to obtain latest whale 

sighting and other information needed 

to make informed decisions regarding 

safe speed (the minimum speed at 

which mission goals or safety will not 

be compromised) and path of intended 

movement. Subs shall contact 

Commander, Submarine Group Ten for 

similar information. 

(B) The following specific mitigation 

measures apply to activities occurring 

within the North Atlantic right whale 

critical habitat and an associated area of 

concern which extends 9 km (5 NM) 

seaward of the designated critical 

habitat boundaries: 

(1) When transiting within the critical 

habitat or associated area of concern, 

vessels shall exercise extreme caution 

and proceed at a slow safe speed. The 

speed shall be the slowest safe speed 

that is consistent with mission, training 

and operations. 

(2) Speed reductions (adjustments) are 

required when a whale is sighted by a 

vessel or when the vessel is within 9 km 

(5 NM) of a reported new sighting less 

than 12 hours old. Circumstances could 

arise where, in order to avoid North 

Atlantic right whale(s), speed 

reductions could mean vessels must 

reduce speed to a minimum at which it 

can safely keep on course or vessels 

could come to an all stop. 

(3) Vessels shall avoid head-on 

approaches to North Atlantic right 

whale(s) and shall maneuver to 

maintain at least 457 m (500 yd) of 

separation from any observed whale if 

deemed safe to do so. These 

requirements do not apply if a vessel’s 

safety is threatened, such as when a 

change of course would create an 

imminent and serious threat to a person, 

vessel, or aircraft, and to the extent 

vessels are restricted in the ability to 

maneuver. 

(4) Ships shall not transit through the 

critical habitat or associated area of 

concern in a North-South direction. 

(5) Ships, surfaced subs, and aircraft 

shall report any whale sightings to Fleet 

Area Control and Surveillance Facility, 

Jacksonville, by the quickest and most 

practicable means. The sighting report 

shall include the time, latitude/ 

longitude, direction of movement and 

number and description of whale (i.e., 

adult/calf). 

(iii) Northeast Atlantic, Offshore of 

the Eastern United States: 

(A) Prior to transiting the Great South 

Channel or Cape Cod Bay critical habitat 

areas, ships shall obtain the latest North 

Atlantic right whale sightings and other 

information needed to make informed 

decisions regarding safe speed (the 

minimum speed at which mission goals 

or safety will not be compromised). The 

Great South Channel critical habitat is 

defined by the following coordinates: 

41–00 °N. lat., 69–05 °W. long.; 41–45 

°N. lat, 69–45 °W. long; 42–10 °N. lat., 

68–31 °W. long.; 41–38 °N. lat., 68–13 

°W. long. The Cape Cod Bay critical 

habitat is defined by the following 

coordinates: 42–04.8 °N. lat., 70–10 °W. 

long.; 42–12 °N. lat., 70–15 °W. long.; 

42–12 °N. lat., 70–30 °W. long.; 41–46.8 

°N. lat., 70–30 °W. long. 

(B) Ships, surfaced subs, and aircraft 

shall report any North Atlantic right 

whale sightings (if the whale is 

identifiable as a right whale) off the 

northeastern U.S. to the Patrol and 

Reconnaissance Wing 

(COMPATRECONWING). The report 

shall include the time of sighting, lat/ 

long, direction of movement (if 

apparent) and number and description 

of the whale(s). 

(C) Vessels or aircraft that observe 

whale carcasses shall record the 

location and time of the sighting and 

report this information as soon as 

possible to the cognizant regional 

environmental coordinator. All whale 

strikes must be reported. This report 

shall include the date, time, and 

location of the strike; vessel course and 

speed; operations being conducted by 

the vessel; weather conditions, 

visibility, and sea state; description of 

the whale; narrative of incident; and 

indication of whether photos/videos 

were taken. Navy personnel are 

encouraged to take photos whenever 

possible. 

(D) Specific mitigation measures 

related to activities occurring within the 

critical habitat include the following: 

(1) Vessels shall avoid head-on 

approaches to North Atlantic right 

whale(s) and shall maneuver to 

maintain at least 457 m (500 yd) of 

separation from any observed whale if 

deemed safe to do so. These 

requirements do not apply if a vessel’s 

safety is threatened, such as when 

change of course would create an 

imminent and serious threat to a person, 

vessel, or aircraft, and to the extent 

vessels are restricted in the ability to 

maneuver. 

(2) When transiting within the critical 

habitat or associated area of concern, 

vessels shall use extreme caution and 

operate at a safe speed (the minimum 

speed at which mission goals or safety 

will not be compromised) so as to be 

Federal Register / Vol. 74, No. 49 / Monday, March 16, 2009 / Proposed Rules 11075 

able to avoid collisions with North 

Atlantic right whales and other marine 

mammals, and stop within a distance 

appropriate to the circumstances and 

conditions. 

(3) Speed reductions (adjustments) are 

required when a whale is sighted by a 

vessel or when the vessel is within 9 km 

(5 NM) of a reported new sighting less 

than one week old. 

(4) Ships transiting in the Cape Cod 

Bay and Great South Channel critical 

habitats shall obtain information on 

recent whale sightings in the vicinity of 

the critical habitat. Any vessel operating 

in the vicinity of a North Atlantic right 

whale shall consider additional speed 

reductions as per Rule 6 of International 

Navigational Rules. 

(4) Proposed Mitigation Measures for 

Specific At-Sea Training Events: (i) 

Firing Exercise (FIREX) Using the 

Integrated Maritime Portable Acoustic 

Scoring System (IMPASS) (5-in 

Explosive Rounds) 

(A) This activity shall only occur in 

Areas 4/5 and 13/14. 

(B) Pre-exercise monitoring of the 

target area shall be conducted with ‘‘Big 

Eyes’’ prior to the event, during 

deployment of the IMPASS sonobuoy 

array, and during return to the firing 

position. Ships shall maintain lookouts 

dedicated to visually searching for 

marine mammals 180° along the ship 

track line and 360° at each buoy dropoff location. 

(C) ‘‘Big Eyes’’ on the ship shall be 

used to monitor a 640-yd (585-m) buffer 

zone for marine mammals during navalgunfire events. 

(D) Ships shall not fire on the target 

if any marine mammals are detected 

within or approaching the 640-yd (585- 

m) buffer zone. If marine mammals are 

present, operations must be suspended. 

Visual observation shall occur for 

approximately 45 min, or until the 

animal has been observed to have 

cleared the area and is heading away 

from the buffer zone. At such time as 

animals have cleared the area and are 

heading away from the buffer zone, the 

Navy may begin or resume operations. 

(E) Post-exercise monitoring of the 

entire effect range shall take place with 

‘‘Big Eyes’’ and the naked eye during the 

retrieval of the IMPASS sonobuoy array 

following each firing exercise. 

(F) The naval gunfire shall take place 

during daylight hours only. 

(G) The naval gunfire utilizing 5-in. 

rounds shall only be used in Beaufort 

Sea State three or less. 

(H) The visibility must be such that 

the fall of shot is visible from the firing 

ship during the exercise. 

(I) No firing shall occur if marine 

mammals are detected within 70 yd (64 

m) of the vessel. 

(ii) Air-to-Surface Missile Exercises 

(Explosive): 

(A) This activity shall only occur in 

Air 16 and 17 of W–122 for Hellfire and 

TOW missile launches. 

(B) Before launching a missile, 

participant aircraft shall visually survey 

the target area for marine mammals. 

Visual inspection of the target area shall 

be made by flying at 1,500 ft (457 m) 

altitude or lower, if safe to do so, and 

at slowest safe speed. The aircrew must 

be able to actually see ordnance impact 

areas. Explosive ordnance shall not be 

targeted to impact within 1,800 yards 

(1,646 m) of sighted marine mammals. 

(iii) Mine Neutralization Training 

Involving Underwater Detonations (up 

to and including 20-lb charges): 

(A) Underwater detonations shall only 

occur in the UNDET area of Onslow 

Bay. 

(B) Observers shall survey the ZOI, a 

656-yd (600-m) radius from detonation 

location, for marine mammals from all 

participating vessels during the entire 

operation. A survey of the ZOI 

(minimum of three parallel tracklines 

219 yd [200 m] apart) using support 

craft shall be conducted at the 

detonation location 30 minutes prior 

through 30 minutes post detonation. 

(C) Detonation operations shall be 

conducted during daylight hours. 

(D) If a marine mammal is sighted 

within the ZOI, the animal shall be 

allowed to leave of its own volition. The 

Navy shall suspend detonation exercises 

and ensure the area is clear for a full 30 

minutes prior to detonation. 

(E) Divers placing the charges on 

mines and dive support vessel 

personnel shall survey the area for 

marine mammals and shall report any 

sightings to the surface observers. These 

animals shall be allowed to leave of 

their own volition and the ZOI shall be 

clear for 30 min prior to detonation. 

(F) Personnel shall record any 

protected species observations during 

the exercise as well as measures taken 

if species are detected within the ZOI. 

§ 218.24 Requirements for monitoring and 

reporting. 

(a) The Holder of the Letter of 

Authorization issued pursuant to 

§§ 216.106 and 218.26 for activities 

described in § 218.20(c) is required to 

cooperate with the NMFS when 

monitoring the impacts of the activity 

on marine mammals. 

(b) The Holder of the Authorization 

must notify NMFS immediately (or as 

soon as clearance procedures allow) if 

the specified activity identified in 

§ 218.20(c) is thought to have resulted in 

the mortality or injury of any marine 

mammals, or in any take of marine 

mammals not identified or authorized in 

§ 218.21(b). 

(c) The Holder of the Letter of 

Authorization must conduct all 

monitoring and/or research required 

under the Letter of Authorization. 

(d) The Navy shall complete an 

Integrated Comprehensive Monitoring 

Program (ICMP) Plan in 2009. This 

planning and adaptive management tool 

shall include: 

(1) A method for prioritizing 

monitoring projects that clearly 

describes the characteristics of a 

proposal that factor into its priority. 

(2) A method for annually reviewing, 

with NMFS, monitoring results, Navy 

R&D, and current science to use for 

potential modification of mitigation or 

monitoring methods. 

(3) A detailed description of the 

Monitoring Workshop to be convened in 

2011 and how and when Navy/NMFS 

will subsequently utilize the findings of 

the Monitoring Workshop to potentially 

modify subsequent monitoring and 

mitigation. 

(4) An adaptive management plan. 

(5) A method for standardizing data 

collection for Cherry Point Range 

Complex and across Range Complexes. 

(e) The Holder of the Letter of 

Authorization shall, when conducting 

training events in the Cherry Point 

Range Complex, implement the 

following monitoring methods: 

(1) Vessel and aerial surveys: 

(i) Visual surveillance of 1 event per 

year. The event surveyed shall be one 

involving multiple detonations. If it is 

impossible to conduct the required 

surveys due to lack of training exercises, 

the missed annual survey requirement 

shall roll into the subsequent year to 

ensure that the appropriate number of 

surveys (i.e., total of 5) occurs over the 

5-year period of effectiveness of this 

subpart. 

(ii) For surveyed training events, 

aerial or vessel surveys shall be used 

1–2 days prior to, during (if safe to do 

so), and 1–5 days post detonation. 

(iii) Survey effort shall focus on any 

specified exclusion zone around a 

particular detonation point plus 2,000 

yards beyond the border of the 

exclusion zone (i.e., the circumference 

of the area from the border of the 

exclusion zone extending 2,000 yards 

outwards). The survey shall be 

conducted using a towed array behind 

the survey vessel in transect lines or 

grid in the predetermined area outside 

the exclusion zone. 

(iv) When conducting a particular 

survey, the survey team shall collect: 

11076 Federal Register / Vol. 74, No. 49 / Monday, March 16, 2009 / Proposed Rules 

(A) Species identification and group 

size; 

(B) Location and relative distance 

from the detonation site; 

(C) The behavior of marine mammals 

including standard environmental and 

oceanographic parameters; 

(D) Date, time and visual conditions 

associated with each observation; 

(E) Direction of travel relative to the 

detonation site; and 

(F) Duration of the observation. 

(2) Passive acoustic monitoring: When 

practical, a towed hydrophone array 

should be used whenever shipboard 

surveys are being conducted. The towed 

array shall be deployed during daylight 

hours for each of the days the ship is at 

sea. 

(3) Marine mammal observers on 

Navy platforms. 

(i) Marine mammal observers (MMOs) 

shall be placed on a Navy platform 

during the exercises. 

(ii) Qualifications must include 

expertise in species identification of 

regional marine mammal species and 

experience collecting behavioral data. 

Experience as a NMFS marine mammal 

observer is preferred, but not required. 

Navy biologists and contracted 

biologists shall be used. 

(iii) MMOs shall not be placed aboard 

Navy platforms for every Navy training 

event or major exercise, but during 

specifically identified opportunities for 

data collection efforts. The events 

selected for MMO participation shall 

take into account safety, logistics, and 

operational concerns. 

(iv) MMOs shall observe from the 

same height above water as the 

lookouts. 

(v) The MMOs shall not be part of the 

Navy’s formal reporting chain of 

command during their data collection 

efforts; Navy lookouts shall continue to 

serve as the primary reporting means 

within the Navy chain of command for 

marine mammal sightings. The only 

exception is that if an animal is 

observed within the shutdown zone that 

has not been observed by the lookout, 

the MMO shall inform the lookout of the 

sighting for the lookout to take the 

appropriate action through the chain of 

command. 

(vi) The MMOs shall collect species 

identification, behavior, direction of 

travel relative to the Navy platform, and 

distance first observed. 

(f) Monitoring Report—The Navy 

shall submit a report annually on 

September 1 describing the 

implementation and results (through 

June 1 of the same year) of the 

monitoring required in §218.24(e). 

(g) Cherry Point Range Complex 

Comprehensive Report—The Navy shall 

submit to NMFS a draft report that 

analyzes and summarizes all of the 

multi-year marine mammal information 

gathered during explosive exercises for 

which individual reports are required in 

§ 218.24(e). This report will be 

submitted at the end of the fourth year 

of the rule (May 2013), covering 

activities that have occurred through 

February 1, 2013. 

(h) The Navy shall respond to NMFS’s 

comments on the draft comprehensive 

report if submitted within 3 months of 

receipt. The report will be considered 

final after the Navy has addressed 

NMFS’s comments, or three months 

after the submittal of the draft if NMFS 

does not comment by then. 

(i) In 2011, the Navy shall convene a 

Monitoring Workshop in which the 

Monitoring Workshop participants will 

be asked to review the Navy’s 

Monitoring Plans and monitoring results 

and make individual recommendations 

(to the Navy and NMFS) of ways of 

improving the Monitoring Plans. The 

recommendations shall be reviewed by 

the Navy, in consultation with NMFS, 

and modifications to the Monitoring 

Plan shall be made, as appropriate. 

§ 218.25 Applications for Letters of 

Authorization. 

To incidentally take marine mammals 

pursuant to these regulations, the U.S. 

citizen (as defined by § 216.103) 

conducting the activity identified in 

§ 218.20(c) (the U.S. Navy) must apply 

for and obtain either an initial Letter of 

Authorization in accordance with 

§ 218.26 or a renewal under § 218.27. 

§ 218.26 Letters of Authorization. 

(a) A Letter of Authorization, unless 

suspended or revoked, will be valid for 

a period of time not to exceed the period 

of validity of this subpart, but must be 

renewed annually subject to annual 

renewal conditions in § 218.27. 

(b) Each Letter of Authorization will 

set forth: 

(1) Permissible methods of incidental 

taking; 

(2) Means of effecting the least 

practicable adverse impact on the 

species, its habitat, and on the 

availability of the species for 

subsistence uses (i.e., mitigation); and 

(3) Requirements for mitigation, 

monitoring and reporting. 

(c) Issuance and renewal of the Letter 

of Authorization will be based on a 

determination that the total number of 

marine mammals taken by the activity 

as a whole will have no more than a 

negligible impact on the affected species 

or stock of marine mammal(s). 

§ 218.27 Renewal of Letters of 

Authorization. 

(a) A Letter of Authorization issued 

under § 216.106 and § 218.26 for the 

activity identified in § 218.20(c) will be 

renewed annually upon: 

(1) Notification to NMFS that the 

activity described in the application 

submitted under § 218.25 will be 

undertaken and that there will not be a 

substantial modification to the 

described work, mitigation or 

monitoring undertaken during the 

upcoming 12 months; 

(2) Timely receipt of the monitoring 

reports required under § 218.24(b); and 

(3) A determination by the NMFS that 

the mitigation, monitoring and reporting 

measures required under § 218.23 and 

the Letter of Authorization issued under 

§§ 216.106 and 218.26, were undertaken 

and will be undertaken during the 

upcoming annual period of validity of a 

renewed Letter of Authorization. 

(b) If a request for a renewal of a 

Letter of Authorization issued under 

§§ 216.106 and 218.27 indicates that a 

substantial modification to the 

described work, mitigation or 

monitoring undertaken during the 

upcoming season will occur, the NMFS 

will provide the public a period of 30 

days for review and comment on the 

request. Review and comment on 

renewals of Letters of Authorization are 

restricted to: 

(1) New cited information and data 

indicating that the determinations made 

in this document are in need of 

reconsideration, and 

(2) Proposed changes to the mitigation 

and monitoring requirements contained 

in these regulations or in the current 

Letter of Authorization. 

(c) A notice of issuance or denial of 

a renewal of a Letter of Authorization 

will be published in the Federal 

Register. 

(d) NMFS, in response to new 

information and in consultation with 

the Navy, may modify the mitigation or 

monitoring measures in subsequent 

LOAs if doing so creates a reasonable 

likelihood of more effectively 

accomplishing the goals of mitigation 

and monitoring set forth in the preamble 

of these regulations. Below are some of 

the possible sources of new data that 

could contribute to the decision to 

modify the mitigation or monitoring 

measures: 

(1) Results from the Navy’s 

monitoring from the previous year 

(either from Cherry Point Range 

Complex Study Area or other locations). 

(2) Findings of the Monitoring 

Workshop that the Navy will convene in 

2011 (section 218.24(i)). 

Federal Register / Vol. 74, No. 49 / Monday, March 16, 2009 / Proposed Rules 11077 

(3) Compiled results of Navy funded 

research and development (R&D) studies 

(presented pursuant to the ICMP 

(§ 218.24(d)). 

(4) Results from specific stranding 

investigations (either from the Cherry 

Point Range Complex Study Area or 

other locations). 

(5) Results from the Long Term 

Prospective Study described in the 

preamble to these regulations. 

(6) Results from general marine 

mammal and sound research (funded by 

the Navy (described below) or 

otherwise). 

(7) Any information which reveals 

that marine mammals may have been 

taken in a manner, extent or number not 

authorized by these regulations or 

subsequent Letters of Authorization. 

§ 218.28 Modifications to Letters of 

Authorization. 

(a) Except as provided in paragraph 

(b) of this section, no substantive 

modification (including withdrawal or 

suspension) to the Letter of 

Authorization by NMFS, issued 

pursuant to §§ 216.106 and 218.26 and 

subject to the provisions of this subpart 

shall be made until after notification 

and an opportunity for public comment 

has been provided. For purposes of this 

paragraph, a renewal of a Letter of 

Authorization under § 218.27, without 

modification (except for the period of 

validity), is not considered a substantive 

modification. 

(b) If the Assistant Administrator 

determines that an emergency exists 

that poses a significant risk to the wellbeing of the species or stocks of marine 

mammals specified in § 218.20(b), a 

Letter of Authorization issued pursuant 

to §§ 216.106 and 218.26 may be 

substantively modified without prior 

notification and an opportunity for 

public comment. Notification will be 

published in the Federal Register 

within 30 days subsequent to the action. 

[FR Doc. E9–5474 Filed 3–13–09; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 300 

RIN 0648–AX72 

Identification and Certification of 

Nations Whose Fishing vessels Are 

Engaged in Illegal, Unreported, or 

Unregulated Fishing or Bycatch of 

Protected Living Marine Resources; 

Correction 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice of public hearing; request 

for comments; correction. 

SUMMARY: NMFS published a document 

in the Federal Register of March 3, 

2009, announcing five public hearings 

to discuss and collect comments on 

issues described in a proposed rule for 

developing identification and 

certification procedures to address 

illegal, unreported, or unregulated 

fishing activities and bycatch of 

protected living marine resources 

pursuant to the High Seas Driftnet 

Fishing Moratorium Protection Act. 

This document corrects a hotel name, 

address, and phone number of an April 

6, 2009, meeting. 

FOR FURTHER INFORMATION CONTACT: 

Laura Cimo (ph. 301–713–9090, fax 

301–713–9106, e-mail 

Laura.Cimo@noaa.gov). 

SUPPLEMENTARY INFORMATION:

Correction 

In the Federal Register of March 3, 

2009, in FR Doc. E9—4478, on page 

9208, in the second column, under the 

heading ‘‘Dates, Times, and Locations’’ 

correct the hotel name, address, and 

phone number under ‘‘2’’ to read: 

‘‘2. Monday, April 6, 2009, 6:30–8:30 

p.m., Crowne Plaza, Lincoln Ballroom, 

8777 Georgia Avenue, Silver Spring, MD 

20910; phone 301–589–0800.’’ 

Dated: March 9, 2009. 

Jean-Pierre Ple, 

Acting Director, Office of International 

Affairs, National Marine Fisheries Service. 

[FR Doc. E9–5483 Filed 3–13–09; 8:45 am] 

BILLING CODE 3510–22–S