Federal Register / Vol. 74, No. 113 / Monday, June 15, 2009 / Rules and Regulations 28349 

published in the Federal Register 

within 30 days subsequent to the action. 

[FR Doc. E9–13697 Filed 6–8–09; 4:15 pm] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 218 

RIN 0648–AW79 

Taking and Importing Marine 

Mammals; U.S. Navy Training in the 

Jacksonville Range Complex 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS, upon application from 

the U.S. Navy (Navy), is issuing 

regulations to govern the unintentional 

taking of marine mammals incidental to 

activities conducted off the Charleston/ 

Jacksonville (JAX) Range Complex for 

the period of June 2009 through June 

2014. The Navy’s activities are 

considered military readiness activities 

pursuant to the Marine Mammal 

Protection Act (MMPA), as amended by 

the National Defense Authorization Act 

for Fiscal Year 2004 (NDAA). These 

regulations, which allow for the 

issuance of ‘‘Letters of Authorization’’ 

(LOAs) for the incidental take of marine 

mammals during the described activities 

and specified timeframes, prescribe the 

permissible methods of taking and other 

means of effecting the least practicable 

adverse impact on marine mammal 

species and their habitat, as well as 

requirements pertaining to the 

monitoring and reporting of such taking. 

DATES: Effective June 8, 2009 and is 

applicable to the Navy on June 5, 2009 

through June 4, 2014. 

ADDRESSES: A copy of the Navy’s 

application (which contains a list of the 

references used in this document), 

NMFS’ Record of Decision (ROD), and 

other documents cited herein may be 

obtained by writing 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 or by telephone 

via the contact listed here (see FOR

FURTHER INFORMATION CONTACT). 

FOR FURTHER INFORMATION CONTACT: 

Shane Guan, Office of Protected 

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

137. 

SUPPLEMENTARY INFORMATION: Extensive 

supplementary information was 

provided in the proposed rule for this 

activity, which was published in the 

Federal Register on Wednesday, 

December 17, 2008 (73 FR 76578). This 

information will not be reprinted here 

in its entirety; rather, all sections from 

the proposed rule will be represented 

herein and will contain either a 

summary of the material presented in 

the proposed rule or a note referencing 

the page(s) in the proposed rule where 

the information may be found. Any 

information that has changed since the 

proposed rule was published will be 

addressed herein. Additionally, this 

final rule contains a section that 

responds to the comments received 

during the public comment period. 

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 and of no more 

than 1 year, the Secretary shall issue a 

notice of proposed authorization for 

public 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 NDAA (Pub. L. 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 March 17, 2008, NMFS received 

an application from the Navy requesting 

authorization for the take of six species 

of cetaceans incidental to the proposed 

training activities in the JAX Range 

Complex over the course of 5 years. On 

November 7, 2008, the Navy submitted 

an Addendum with some modifications 

and additional information to its 

original request. 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 JAX Range 

Complex area. The Navy requests an 

authorization to take individuals of 

these cetacean species by Level B 

Harassment. Further, the Navy requests 

authorization to take 2 individual 

Atlantic spotted dolphins per year by 

injury incidental to the proposed 

training activities in the JAX Range 

Complex. Please refer to Table 5 of this 

document for detailed information of 

the potential exposures from explosive 

ordnance (per year) for marine 

mammals in the JAX Range Complex. 

However, due to the proposed 

mitigation and monitoring measures, 

NMFS does not expect the proposed 

action would result in any marine 

mammal mortality. Therefore, no 

mortality would be authorized for the 

Navy’s JAX Range Complex training 

activities. 

Background of Navy Request 

The proposed rule contains a 

description of the Navy’s mission, their 

responsibilities pursuant to Title 10 of 

the United States Code, and the specific 

purpose and need for the activities for 

which they requested incidental take 

authorization. The description 

contained in the proposed rule has not 

changed (73 FR 76578; December 17, 

2008). 

Description of the Specified Activities 

The proposed rule contains a 

complete description of the Navy’s 

specified activities that are covered by 

these final regulations, and for which 

the associated incidental take of marine 

mammals will be authorized in the 

related LOAs. The proposed rule 

describes the nature and number of the 

training activities. These training 

activities consist of surface warfare 

[Missile Exercise (MISSILEX)], mine 

warfare [Mine Exercises (MINEX)], 

amphibious warfare [Firing Exercise 


pwalker on PROD1PC71 with RULES2
28350 Federal Register / Vol. 74, No. 113 / Monday, June 15, 2009 / Rules and Regulations 

(FIREX)], small arms training (explosive 

hand grenades), and vessel movement 

to, from, and within the JAX Range 

Complex Study Area. The description of 

the action contained in the proposed 

rule has not changed (73 FR 76578, 

pages 76579–76581). Table 1 

summarizes the nature and level of 

these planned activities. 

The Navy provided the following 

additional information regarding the 

anti-swimmer grenade training. Any 

single event using the MK3A2 grenades 

could consist of up to 10 high explosive 

(HE) grenades being used. The total 

number of HE grenades used per year 

will not exceed 80. Non-explosive 

practice grenades may also be used in 

these training events. For modeling 

purposes, and to account for the highest 

number of grenades that may potentially 

be used during an individual event, it 

was assumed that there would be 8 

events (up to 10 grenades per event), or 

a total of 80 grenades, per year. 

TABLE 1—TRAINING EVENTS INVOLVING EXPLOSIVES PLANNED IN THE JAX RANGE COMPLEX PER YEAR

Operation Platform System/ordnance Number of events Event duration 

Missile Exercise (MISSILEX) 

(Air to Surface).

MH–60R/S, SH–60B, HH– 

60H.

AGM–114 (Hellfire missile) .... 70 sorties (70 missiles) .......... 1 hour. 

P–3C, and P–8A .................... AGM–65 (Maverick missile) ... 3 sorties (3 missiles) .............. 1 hour. 

Mine Neutralization ................ EOD ....................................... 20 lb charges ......................... 12 events ............................... 6–8 hours. 

FIREX with IMPASS .............. CG, DDG ............................... 5′′ gun (IMPASS) ................... 10 events (390 rounds) ......... 8 hours. 

Small Arms Training (explosive hand grenades).Maritime Expeditionary Support Group (Various Small 

Boats).

MK3A2 anti-swimmer grenades (HE).8 events (10 grenades per 

event).

1 hour. 

JAX Range Complex 

The JAX Range Complex proposed 

rule contains a description of the JAX 

Range Complex Study Area along with 

a description of the areas in which 

certain types of activities will occur. 

Table 2, included here, summarizes the 

areas in which explosive events will 

occur and their frequency of occurrence. 

The description of the JAX Range 

Complex Study Area in the proposed 

rule has not changed. 

TABLE 2—NUMBER OF EVENTS UTILIZING EXPLOSIVE MUNITIONS WITHIN THE JAX RANGE COMPLEX

Sub-area* Ordnance Winter Spring Summer Fall 

Annual 

total 

events 

MISSILEX .......................................... ...................... ...................... ...................... ...................... 73 

MLTR ............................... Hellfire ................................................ 17 .5 17 .5 17 .5 17 .5 70 

MLTR ............................... Maverick ............................................ 0 .75 0 .75 0 .75 0 .75 3 

FIREX ................................................ ...................... ...................... ...................... ...................... 10 

BB, CC ............................. 5′′ rounds ........................................... **0 **0 5 5 10 

MINEX ............................................... ...................... ...................... ...................... ...................... 12 

UNDET North ................... 20 LB ................................................. 1 .25 1 .25 2 .25 1 .25 6 

UNDET South .................. 20 LB ................................................. 1 .25 1 .25 2 .25 1 .25 6 

Small Arms Training .......................... ...................... ...................... ...................... ...................... *** 8 

UNDET North ................... MK3A2 anti-swimmer concussion 

grenade (0.5 lbs NEW).

1 1 1 1 4 

UNDET Sorth ................... MK3A2 anti-swimmer concussion 

grenade (0.5 lbs NEW).

1 1 1 1 4 

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

** In accordance with the current biological opinion for the Southeast, no live FIREX is conducted during North Atlantic right whale calving season (December 1–March 31) and therefore no modeling was completed for the winter and spring season. 

*** (10 grenades per event) 

Description of Marine Mammals in the 

Area of the Specified Activities 

There are 29 marine mammal species 

with possible or confirmed occurrence 

in the JAX Range Complex. As indicated 

in Table 3, all of the marine mammals 

are cetacean species (7 mysticetes and 

22 odontocetes). Table 6 also includes 

the Federal status of these marine 

mammal species. Six marine mammal 

species listed as Federally endangered 

under the Endangered Species Act 

(ESA) occur in the JAX Range Complex: 

the humpback whale, North Atlantic 

right whale, sei whale, fin whale, blue 

whale, and sperm whale. The proposed 

rule also includes a discussion of the 

methods used to estimate marine 

mammal density in the JAX Study Area. 

The Description of Marine Mammals in 

the Area of the Specified Activities 

section has not changed from what was 

in the proposed rule (73 FR 75631, 

pages 76581–76582). 

TABLE 3—MARINE MAMMAL SPECIES FOUND IN THE JAX RANGE COMPLEX

Family and scientific name Common name Federal status 

Order Cetacea 

Suborder Mysticeti (baleen whales) 

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


pwalker on PROD1PC71 with RULES2
Federal Register / Vol. 74, No. 113 / Monday, June 15, 2009 / Rules and Regulations 28351 

TABLE 3—MARINE MAMMAL SPECIES FOUND IN THE JAX RANGE COMPLEX—Continued 

Family and scientific name Common name Federal status 

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

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

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

Stenella attenuate ................................................................... 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 attenuate ..................................................................... Pygmy killer whale.

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

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

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

Potential Impacts to Marine Mammal 

Species 

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 effecting 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 in 

the JAX Range Complex Study Area); 

and (4) to prescribe requirements 

pertaining to monitoring and reporting. 

In the Potential Impacts to Marine 

Mammal Species section of the 

proposed rule NMFS included a 

qualitative discussion of the different 

ways that vessel strikes and underwater 

explosive detonations from MISSILEX, 

MINEX, and FIREX may potentially 

affect marine mammals (some of which 

NMFS would not classify as 

harassment)—see 73 FR 76578, pages 

76582–76587. Marine mammals may 

experience direct physiological effects 

such as threshold shift, acoustic 

masking, impaired communications, 

stress responses, and behavioral 

disturbance. The information contained 

in Potential Impacts to Marine Mammal 

Species section from the proposed rule 

has not changed. 

The Navy provided additional 

information concerning potential 

impacts from MK3A2 anti-swimmer 

concussion grenades during small arms 

training. Modeling was completed for 

the MK3A2 explosive source, which 

assumed a 6 ft (1.8 m) detonation depth. 

The net explosive weight (NEW) of the 

MK3A2 grenade is 0.5 lb. 

Determining the zone of influence 

(ZOI) of different thresholds from 

MK3A2 explosives in terms of total 

energy flux density (EFD), impulse, 

peak pressure and 1/3-octave bands EFD 

must treat the sequential explosions 

differently than the single detonations. 

For the MK3A2, two factors are 

involved for the sequential explosives 

that deal with the spatial and temporal 

distribution of the detonations as well 

as the effective accumulation of the 

resultant acoustics. In view of the ZOI 

determinations, the sequential 

detonations are modeled as a single 

point event with only the EFD summed 

incoherently: 

Total EFDdB

EFD i

i

n

= ( )

=

10 10 10 ∑ 10

1

log /

The multiple explosion energy criteria 

were used to determine the ZOI for the 

non-injurious behavioral (without TTS) 

exposure analysis. 

Table 4 shows the ZOI results of the 

model estimation for MK3A2 grenade in 

the JAX Range Complex. The ZOI, when 

multiplied by the animal densities and 

total number of events, provides the 

exposure estimates for that species. In 

addition to other mitigation measures, 

lookouts will visually survey the target 

area for marine mammals. The exercise 

will not be conducted until the area is 

clear of protected species and will be 

suspended if any enter the buffer area. 


pwalker on PROD1PC71 with RULES2ER15JN09.000</MATH>
28352 Federal Register / Vol. 74, No. 113 / Monday, June 15, 2009 / Rules and Regulations 

TABLE 4—ESTIMATED ZOIS (KM 2) FOR SMALL ARMS TRAINING (ANTI-SWIMMER GRENADES) IN THE JAX RANGE COMPLEX

Area* Ordnance 

Estimated ZOI 

@ 177 dB re 1 μPa2-sec (multiple 

detonations only) 

Estimated ZOI 

@ 205 dB re 1 μPa2-sec or 13 psi 

Mortality ZOI 

@ 30.5 psi 

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

UNDET 

North.

MK3A2 grenade.4.25 4.30 3.97 3.97 0.09 0.09 0.09 0.09 <0.01 <0.01 <0.01 <0.01 

UNDET 

South.

MK3A2 grenade.4.67 4.72 4.24 4.59 0.09 0.09 0.09 0.09 <0.01 <0.01 <0.01 <0.01 

Note: ZOIs for the MK3A2 grenades are modeled as multiple detonations (10 grenades being used during each event). 

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

Later, in the Estimated Take of Marine 

Mammals Section, NMFS relates and 

quantifies the potential effects to marine 

mammals from underwater detonation 

of explosives discussed here to the 

MMPA definitions of Level A and Level 

B Harassment. 

Additional analyses on potential 

impacts to marine mammals from vessel 

movement within the JAX Range 

Complex Study Area are added below. 

Vessel Movement: There are limited 

data concerning marine mammal 

behavioral responses to vessel traffic 

and vessel noise, and a lack of 

consensus among scientists with respect 

to what these responses mean or 

whether they result in short-term or 

long-term adverse effects. In those cases 

where there is a busy shipping lane or 

where there is large amount of vessel 

traffic, marine mammals may 

experience acoustic masking 

(Hildebrand, 2005) if they are present in 

the area (e.g., killer whales in Puget 

Sound; Foote et al., 2004; Holt et al., 

2008). In cases where vessels actively 

approach marine mammals (e.g., whale 

watching or dolphin watching boats), 

scientists have documented that animals 

exhibit altered behavior such as 

increased swimming speed, erratic 

movement, and active avoidance 

behavior (Bursk, 1983; Acevedo, 1991; 

Baker and MacGibbon, 1991; Trites and 

Bain, 2000; Williams et al., 2002; 

Constantine et al., 2003), reduced blow 

interval (Ritcher et al., 2003), disruption 

of normal social behaviors (Lusseau, 

2003; 2006), and the shift of behavioral 

activities which may increase energetic 

costs (Constantine et al., 2003; 2004). A 

detailed review of marine mammal 

reactions to ships and boats is available 

in Richardson et al. (1995). For each of 

the marine mammals taxonomy groups, 

Richardson et al. (1995) provided the 

following assessment regarding cetacean 

reactions to vessel traffic: 

Toothed whales: ‘‘In summary, 

toothed whales sometimes show no 

avoidance reaction to vessels, or even 

approach them. However, avoidance can 

occur, especially in response to vessels 

of types used to chase or hunt the 

animals. This may cause temporary 

displacement, but we know of no clear 

evidence that toothed whales have 

abandoned significant parts of their 

range because of vessel traffic.’’ 

Baleen whales: ‘‘When baleen whales 

receive low-level sounds from distant or 

stationary vessels, the sounds often 

seem to be ignored. Some whales 

approach the sources of these sounds. 

When vessels approach whales slowly 

and nonaggressively, whales often 

exhibit slow and inconspicuous 

avoidance maneuvers. In response to 

strong or rapidly changing vessel noise, 

baleen whales often interrupt their 

normal behavior and swim rapidly 

away. Avoidance is especially strong 

when a boat heads directly toward the 

whale.’’ 

It is important to recognize that 

behavioral responses to stimuli are 

complex and influenced to varying 

degrees by a number of factors such as 

species, behavioral contexts, 

geographical regions, source 

characteristics (moving or stationary, 

speed, direction, etc.), prior experience 

of the animal, and physical status of the 

animal. For example, studies have 

shown that beluga whales reacted 

differently when exposed to vessel noise 

and traffic. In some cases, naı ̈ve beluga 

whales exhibited rapid swimming from 

ice-breaking vessels up to 80 km away, 

and showed changes in surfacing, 

breathing, diving, and group 

composition in the Canadian high 

Arctic where vessel traffic is rare (Finley 

et al., 1990). In other cases, beluga 

whales were more tolerant of vessels, 

but differentially responsive by 

reducing their calling rates, to certain 

vessels and operating characteristics 

(especially older animals) in the St. 

Lawrence River where vessel traffic is 

common (Blane and Jaakson, 1994). In 

Bristol Bay, Alaska, beluga whales 

continued to feed when surrounded by 

fishing vessels and resisted dispersal 

even when purposefully harassed (Fish 

and Vania, 1971). 

In reviewing more than 25 years of 

whale observation data, Watkins (1986) 

concluded that whale reactions to vessel 

traffic were ‘‘modified by their previous 

experience and current activity: 

habituation often occurred rapidly, 

attention to other stimuli or 

preoccupation with other activities 

sometimes overcame their interest or 

wariness of stimuli.’’ Watkins noticed 

that over the years of exposure to ships 

in the Cape Cod area, minke whales 

(Balaenoptera acutorostrata) changed 

from frequent positive (such as 

approaching vessels) interest to 

generally uninterested reactions; finback 

whales (B. physalus) changed from 

mostly negative (such as avoidance) to 

uninterested reactions; right whales 

(Eubalaena glacialis) apparently 

continued the same variety of responses 

(negative, uninterested, and positive 

responses) with little change; and 

humpbacks (Megaptera novaeangliae) 

dramatically changed from mixed 

responses that were often negative to 

often strongly positive reactions. 

Watkins (1986) summarized that 

‘‘whales near shore, even in regions 

with low vessel traffic, generally have 

become less wary of boats and their 

noises, and they have appeared to be 

less easily disturbed than previously. In 

particular locations with intense 

shipping and repeated approaches by 

boats (such as the whale-watching areas 

of Stellwagen Bank), more and more 

whales had P [positive] reactions to 

familiar vessels, and they also 

occasionally approached other boats 

and yachts in the same ways.’’ 

In the case of the JAX Range Complex, 

naval vessel traffic is expected to be 

much lower than in areas where there 

are large shipping lanes and large 

numbers of fishing vessels and/or 

recreational vessels. Nevertheless, the 

proposed action area is well traveled by 

a variety of commercial and recreational 

vessels, so marine mammals in the area 

are expected to be habituated to vessel 

noise. 

As described in the proposed rule, 

operations involving vessel movements 


pwalker on PROD1PC71 with RULES2
Federal Register / Vol. 74, No. 113 / Monday, June 15, 2009 / Rules and Regulations 28353 

occur intermittently and are variable in 

duration, ranging from a few hours up 

to 2 weeks. These operations are widely 

dispersed throughout the JAX Range 

Complex OPAREA, which is a vast area 

encompassing 50,090 square nautical 

miles (nm2). The Navy logs about 1,000 

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 0.00005 ships/nm2). 

Moreover, naval vessels transiting the 

study area or engaging in the training 

exercises will not actively or 

intentionally approach a marine 

mammal or change speed drastically. 

Except under certain mitigation 

measures that protect right whales and 

other marine mammals from vessel 

strike, all vessels transit to, from, and 

within the range complexes will be 

traveling at speeds generally ranging 

from 10 to 14 knots. 

The final rule contains additional 

mitigation measures requiring Navy 

vessels to keep at least 500 yards (460 

m) away from any observed whale and 

at least 200 yards (183 m) from marine 

mammals other than whales, and avoid 

approaching animals head-on. Although 

the radiated sound from the vessels will 

be audible to marine mammals over a 

large distance, it is unlikely that animals 

will respond behaviorally to low-level 

distant shipping noise as the animals in 

the area are likely to be habituated to 

such noises (Nowacek et al., 2004). In 

light of these facts, NMFS does not 

expect the Navy’s vessel movements to 

result in Level B harassment. 

Mitigation 

In order to issue an incidental take 

authorization (ITA) under Section 

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

prescribe regulations setting 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 

NDAA 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 JAX Range Complex 

training activities described in the 

proposed rule are considered military 

readiness activities. 

NMFS reviewed the Navy’s proposed 

JAX Range Complex training activities 

and the proposed JAX Range Complex 

mitigation measures presented in the 

Navy’s application to determine 

whether the activities and mitigation 

measures were capable of achieving the 

least practicable adverse effect on 

marine mammals. 

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 biologically important time 

or location) exposed to 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 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 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 reviewed the Navy’s proposed 

mitigation measures, which included a 

careful balancing of the likely benefits 

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.’’ 

The Navy’s proposed mitigation 

measures were described in detail in the 

proposed rule (73 FR 76578; December 

17, 2008; pages 76592–76595). Slight 

wording changes have been made to the 

Personnel Training Lookouts section as 

presented in the Proposed Rule (page 

76592). Bullet 6 of that section is 

modified to read: ‘‘At night, to increase 

effectiveness, lookouts would not 

continuously sweep the horizon with 

their eyes. Instead, lookouts would scan 

the horizon in a series of movements 

that would allow their eyes to come to 

periodic rests as they scan the sector. 

When visually searching at night, they 

would look a little to one side and out 

of the corners of their eyes, paying 

attention to the things on the outer 

edges of their field of vision. Lookouts 

will also have night vision devices 

available for use.’’ 

The Navy’s measures addressing 

operating procedures for training 

activities using underwater detonation 

of explosives and firing exercises, and 

mitigation related to vessel traffic and 

the North Atlantic right whale (NARW) 

were described in the proposed rule. No 

changes have been made to the 

mitigation measures described in the 

proposed rule except the following 

requirements. 

During specific at-sea training events, 

if a marine mammal is injured or killed 

as a result of the proposed Navy training 

activities (e.g., instances in which it is 

clear that munitions explosions caused 

the injury or death), the Navy shall 

suspend its activities immediately and 

report such incident to NMFS. 

Regarding the NARW vessel collision 

measures, NMFS expanded the final 

rule to include vessel collision 

avoidance measures for the South 

Atlantic and the Northeast Atlantic to be 

consistent with the U.S. Navy’s Atlantic 

Fleet Active Sonar Training (AFAST) 

rule. The Navy is required to comply 

with the same ship collision measures 

while transiting and conducting 

exercises within specific NARW areas 

along the East Coast. The specific vessel 

collision measures in the Northeast and 

Southeast Atlantic regions are listed in 

the regulatory text of the final rule. 

NMFS has determined that these 

mitigation measures (which include a 

suite of measures that specifically 

address vessel transit and the NARW) 

are adequate means of effecting the least 

practicable adverse impacts on marine 

mammal species or stocks and their 

habitat while also considering personnel 

safety, practicality of implementation, 

and impact on the effectiveness of the 

military readiness activity. 

Monitoring 

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 


pwalker on PROD1PC71 with RULES2
28354 Federal Register / Vol. 74, No. 113 / Monday, June 15, 2009 / Rules and Regulations 

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: 

(1) 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. 

(2) An increase in our understanding 

of how many marine mammals are 

likely to be exposed to levels of 

underwater detonations or other stimuli 

that we associate with specific adverse 

effects, such as behavioral harassment, 

temporary threshold shift of hearing 

sensitivity (TTS), or permanent 

threshold shift of hearing sensitivity 

(PTS). 

(3) An increase in our understanding 

of how marine mammals respond 

(behaviorally or physiologically) to 

underwater detonations 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). 

(4) An increased knowledge of the 

affected species. 

(5) An increase in our understanding 

of the effectiveness of certain mitigation 

and monitoring measures. 

(6) A better understanding and record 

of the manner in which the authorized 

entity complies with the incidental take 

authorization. 

Proposed Monitoring Plan for the JAX 

Range Complex Study Area 

As NMFS indicated in the proposed 

rule, the Navy has (with input from 

NMFS) fleshed out the details of and 

made improvements to the JAX Range 

Complex Monitoring Plan. Additionally, 

NMFS and the Navy have incorporated 

a suggestion from the public, which 

recommended the Navy hold a peer 

review workshop to discuss the Navy’s 

Monitoring Plans for the multiple range 

complexes and training exercises in 

which the Navy would receive ITAs (see 

Monitoring Workshop section). The 

final JAX Range Complex Monitoring 

Plan, which is summarized below, may 

be viewed at http://www.nmfs.noaa.gov/ 

pr/permits/incidental.htm#applications. 

The Navy plans to implement all of the 

components of the Monitoring Plan; 

however, only the marine mammal 

components (not the sea turtle 

components) will be required by the 

MMPA regulations and associated 

LOAs. 

A summary of the monitoring 

methods required for use during 

training events in the JAX Range 

Complex are described below. These 

methods include a combination of 

individual elements that are designed to 

allow a comprehensive assessment. 

I. Vessel or Aerial Surveys 

(A) The Holder of this Authorization 

shall visually survey a minimum of 2 

explosive events per year, one of which 

shall be a multiple detonation event. 

One of the vessel or aerial surveys 

should involve professionally trained 

marine mammal observers (MMOs). 

(B) When operationally feasible, for 

specified training events, aerial or vessel 

surveys shall be used 1–2 days prior to, 

during (if reasonably safe), and 1–5 days 

post detonation. 

(C) Surveys shall 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). For vessel-based surveys a 

passive acoustic system (hydrophone or 

towed array) would be used to 

determine if marine mammals are in the 

area before and/or after a detonation 

event. 

(D) When conducting a particular 

survey, the survey team shall collect: 

• Location of sighting; 

• Species (if not possible, indicate 

whale, dolphin or pinniped); 

• Number of individuals; 

• Whether calves were observed; 

• Initial detection sensor; 

• Length of time observers 

maintained visual contact with marine 

mammal; 

• Wave height; 

• Visibility; 

• Whether sighting was before, 

during, or after detonations/exercise, 

and how many minutes before or after; 

• Distance of marine mammal from 

actual detonations (or target spot if not 

yet detonated); 

• Observed behavior—Watchstanders 

will report, in plain language and 

without trying to categorize in any way, 

the observed behavior of the animal(s) 

(such as animal closing to bow ride, 

paralleling course/speed, floating on 

surface and not swimming etc.), 

including speed and direction; 

• Resulting mitigation 

implementation—Indicate whether 

explosive detonations were delayed, 

ceased, modified, or not modified due to 

marine mammal presence and for how 

long; and 

• If observation occurs while 

explosives are detonating in the water, 

indicate munition type in use at time of 

marine mammal detection (e.g., were 

the 5-inch guns actually firing when the 

animals were sighted? Did animals enter 

an area 2 minutes after a huge explosion 

went off?). 

II. Passive Acoustic Monitoring 

The Navy shall conduct passive 

acoustic monitoring when operationally 

feasible: 

(A) Any time a towed hydrophone 

array is employed during shipboard 

surveys the towed array shall be 

deployed during daylight hours for each 

of the days the ship is at sea. 

(B) The towed hydrophone array shall 

be used to supplement the ship-based 

systematic line-transect surveys 

(particularly for species such as beaked 

whales that are rarely seen). 

III. Marine Mammal Observers on Navy 

Platforms 

(A) Marine mammal observers 

(MMOs) selected for aerial or vessel 

survey shall be placed on a Navy 

platform during one of the exercises 

being monitored per year. The 

remaining designated exercise(s) shall 

be monitored by the Navy lookouts/ 

watchstanders. 

(B) The MMO must possess expertise 

in species identification of regional 

marine mammal species and experience 

collecting behavioral data. 

(C) MMOs shall 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 shall take into account 

safety, logistics, and operational 

concerns. 

(D) MMOs shall observe from the 

same height above water as the 

lookouts. 

(E) 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, and the lookout shall take the 


pwalker on PROD1PC71 with RULES2
Federal Register / Vol. 74, No. 113 / Monday, June 15, 2009 / Rules and Regulations 28355 

appropriate action through the chain of 

command. 

(F) The MMOs shall collect species 

identification, behavior, direction of 

travel relative to the Navy platform, and 

distance first observed. All MMO 

sightings shall be conducted according 

to a standard operating procedure. 

Information collected by MMOs should 

be the same as those collected by Navy 

lookout/watchstanders described above. 

The Monitoring Plan for JAX Range 

Complex has been designed as a 

collection of focused ‘‘studies’’ 

(described fully in the JAX Monitoring 

Plan) to gather data that will allow the 

Navy to address the following questions: 

(a) What are the behavioral responses 

of marine mammals and sea turtles that 

are exposed to explosives? 

(b) Is the Navy’s suite of mitigation 

measures effective at avoiding injury 

and mortality of marine mammals and 

sea turtles? 

Data gathered in these studies will be 

collected by qualified, professional 

marine mammal biologists or trained 

Navy lookouts/watchstanders that are 

experts in their field. This monitoring 

plan has been designed to gather data on 

all species of marine mammals that are 

observed in the JAX Range Complex 

study area. 

Monitoring Workshop 

During the public comment period on 

past proposed rules for Navy actions 

(such as the Hawaii Range Complex 

(HRC), and Southern California Range 

Complex (SOCAL) proposed rules), 

NMFS received a recommendation that 

a workshop or panel be convened to 

solicit input on the monitoring plan 

from researchers, experts, and other 

interested parties. The JAX Range 

Complex proposed rule included an 

adaptive management component and 

both NMFS and the Navy believe that a 

workshop would provide a means for 

Navy and NMFS to consider input from 

participants in determining whether 

(and if so, how) to modify monitoring 

techniques to more effectively 

accomplish the goals of monitoring set 

forth earlier in the document. NMFS 

and the Navy believe that this workshop 

concept is valuable in relation to all of 

the Range Complexes and major training 

exercise rules and LOAs that NMFS is 

working on with the Navy at this time, 

and consequently this single Monitoring 

Workshop will be included as a 

component of all of the rules and LOAs 

that NMFS will be processing for the 

Navy in the next year or so. 

The Navy, with guidance and support 

from NMFS, will convene a Monitoring 

Workshop, including marine mammal 

and acoustic experts as well as other 

interested parties, in 2011. The 

Monitoring Workshop participants will 

review the monitoring results from the 

previous two years of monitoring 

pursuant to the JAX Range Complex rule 

as well as monitoring results from other 

Navy rules and LOAs (e.g., VACAPES, 

AFAST, SOCAL, HRC, and other rules). 

The Monitoring Workshop participants 

would provide their individual 

recommendations to the Navy and 

NMFS on the monitoring plan(s) after 

also considering the current science 

(including Navy research and 

development) and working within the 

framework of available resources and 

feasibility of implementation. NMFS 

and the Navy would then analyze the 

input from the Monitoring Workshop 

participants and determine the best way 

forward from a national perspective. 

Subsequent to the Monitoring 

Workshop, modifications would be 

applied to monitoring plans as 

appropriate. 

Integrated Comprehensive Monitoring 

Program 

In addition to the site-specific 

Monitoring Plan for the JAX Range 

Complex, the Navy will complete the 

Integrated Comprehensive Monitoring 

Program (ICMP) Plan by the end of 

2009. The ICMP will provide the 

overarching coordination that will 

support compilation of data from 

project-specific monitoring plans (e.g., 

JAX Monitoring Plan) as well as Navy 

funded research and development (R&D) 

studies. The ICMP will coordinate the 

monitoring program’s progress towards 

meeting its goals and developing a data 

management plan. The ICMP will be 

evaluated annually to provide a matrix 

for progress and goals for the following 

year, and will make recommendations 

on adaptive management for refinement 

and analysis of the monitoring methods. 

The primary objectives of the ICMP 

are to: 

• Monitor and assess the effects of 

Navy activities on protected species; 

• Ensure that data collected at 

multiple locations is collected in a 

manner that allows comparison between 

and among different geographic 

locations; 

• Assess the efficacy and practicality 

of the monitoring and mitigation 

techniques; 

• Add to the overall knowledge-base 

of marine species and the effects of 

Navy activities on marine species. 

The ICMP will be used both as: (1) A 

planning tool to focus Navy monitoring 

priorities (pursuant to ESA/MMPA 

requirements) across Navy Range 

Complexes and Exercises; and (2) an 

adaptive management tool, through the 

consolidation and analysis of the Navy’s 

monitoring and watchstander data, as 

well as new information from other 

Navy programs (e.g., R&D), and other 

appropriate newly published 

information. 

In combination with the 2011 

Monitoring Workshop and the adaptive 

management component of the JAX 

Range Complex rule and the other 

planned Navy rules (e.g. VACAPES 

Range Complex, Cherry Point Range 

Complex, etc.), the ICMP could 

potentially provide a framework for 

restructuring the monitoring plans and 

allocating monitoring effort based on the 

value of particular specific monitoring 

proposals (in terms of the degree to 

which results would likely contribute to 

stated monitoring goals, as well the 

likely technical success of the 

monitoring based on a review of past 

monitoring results) that have been 

developed through the ICMP 

framework, instead of allocating based 

on maintaining an equal (or 

commensurate to effects) distribution of 

monitoring effort across range 

complexes. For example, if careful 

prioritization and planning through the 

ICMP (which would include a review of 

both past monitoring results and current 

scientific developments) were to show 

that a large, intense monitoring effort in 

Hawaii would likely provide extensive, 

robust and much-needed data that could 

be used to understand the effects of 

sonar throughout different geographical 

areas, it may be appropriate to have 

other range complexes dedicate money, 

resources, or staff to the specific 

monitoring proposal identified as ‘‘high 

priority’’ by the Navy and NMFS, in lieu 

of focusing on smaller, lower priority 

projects divided throughout their home 

range complexes. 

The ICMP will identify: 

• A means by which NMFS and the 

Navy would jointly consider prior years 

monitoring results and advancing 

science to determine if modifications 

are needed in mitigation or monitoring 

measures to better effect the goals laid 

out in the Mitigation and Monitoring 

sections of the JAX Range Complex rule. 

• Guidelines for prioritizing 

monitoring projects. 

• If, as a result of the workshop and 

similar to the example described in the 

paragraph above, the Navy and NMFS 

decide it is appropriate to restructure 

the monitoring plans for multiple ranges 

such that they are no longer evenly 

allocated (by rule), but rather focused on 

priority monitoring projects that are not 

necessarily tied to the geographic area 

addressed in the rule, the ICMP will be 

modified to include a very clear and 

unclassified record-keeping system that 


pwalker on PROD1PC71 with RULES2
28356 Federal Register / Vol. 74, No. 113 / Monday, June 15, 2009 / Rules and Regulations 

will allow NMFS and the public to see 

how each range complex/project is 

contributing to all of the ongoing 

monitoring programs (resources, effort, 

money, etc.). 

Adaptive Management 

The final regulations governing the 

take of marine mammals incidental to 

Navy’s JAX Range Complex exercises 

contain an adaptive management 

component. The use of adaptive 

management will give NMFS the ability 

to consider new data from different 

sources to determine (in coordination 

with the Navy) on an annual basis if 

mitigation or monitoring measures 

should be modified or added (or 

deleted) if new data suggests that such 

modifications are appropriate (or are not 

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 JAX 

Range Complex or other locations). 

• Findings of the Workshop that the 

Navy will convene in 2011 to analyze 

monitoring results to date, review 

current science, and recommend 

modifications, as appropriate to the 

monitoring protocols to increase 

monitoring effectiveness. 

• 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 specific stranding 

investigations (either from JAX Range 

Complex or other locations). 

• Results from general marine 

mammal and sound research (funded by 

the Navy 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 (or deleted) if new 

data suggest that such modifications 

would have (or would not have) a 

reasonable likelihood of accomplishing 

the goals of mitigation laid out in this 

final rule and if the measures are 

practicable. NMFS would also 

coordinate with the Navy to modify or 

add to (or delete) the existing 

monitoring requirements if the new data 

suggest that the addition of (or deletion 

of) a particular measure would more 

effectively accomplish the goals of 

monitoring laid out in this final 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 and issue 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. 

Reporting 

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.’’ Effective reporting is critical to 

ensure compliance with the terms and 

conditions of a LOA, and to provide 

NMFS and the Navy with data of the 

highest quality based on the required 

monitoring. As NMFS noted in its 

proposed rule, additional detail has 

been added to the reporting 

requirements since they were outlined 

in the proposed rule. The updated 

reporting requirements are all included 

below. A subset of the information 

provided in the monitoring reports may 

be classified and not releasable to the 

public. 

NMFS will work with the Navy to 

develop tables that allow for efficient 

submission of the information required 

below. 

General Notification of Injured or Dead 

Marine Mammals 

Navy personnel will ensure that 

NMFS (regional stranding coordinator) 

is notified immediately (or as soon as 

operational security allows) if an 

injured or dead marine mammal is 

found during or shortly after, and in the 

vicinity of, any Navy training exercise 

utilizing underwater explosives or other 

activities. The Navy will provide NMFS 

with species or description of the 

animal(s), the condition of the animal(s) 

(including carcass condition if the 

animal is dead), location, time of first 

discovery, observed behaviors (if alive), 

and photo or video (if available). 

Annual JAX Range Complex 

Monitoring Plan Report 

The Navy shall submit a report 

annually on March 1 describing the 

implementation and results (through 

January 1 of the same year) of the JAX 

Range Complex Monitoring Plan 

described above. Data collection 

methods will be standardized across 

range complexes to allow for 

comparison in different geographic 

locations. Although additional 

information will also be gathered, the 

marine mammal observers (MMOs) 

collecting marine mammal data 

pursuant to the JAX Range Complex 

Monitoring Plan shall, at a minimum, 

provide the same marine mammal 

observation data required in major range 

complex training exercises section of 

the Annual JAX Range Complex 

Exercise Report referenced below. 

The JAX Range Complex Monitoring 

Plan Report may be provided to NMFS 

within a larger report that includes the 

required Monitoring Plan Reports from 

multiple Range Complexes. 

Annual JAX Range Complex Exercise 

Report 

The Navy is in the process of 

improving the methods used to track 

explosives use to provide increased 

granularity. The Navy will provide the 

information described below for all of 

their explosive exercises. Until the Navy 

is able to report in full the information 

below, they will provide an annual 

update on the Navy’s explosive tracking 

methods, including improvements from 

the previous year. 

(1) Total annual number of each type 

of explosive exercise (of those identified 

as part of the ‘‘specified activity’’ in this 

final rule) conducted in the JAX Range 

Complex. 

(2) Total annual expended/detonated 

rounds (missiles, bombs, etc.) for each 

explosive type. 

JAX Range Complex 5-yr 

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 

the JAX Range Complex exercises for 

which annual reports are required 

(Annual JAX Range Complex Exercise 

Reports and JAX Range Complex 

Monitoring Plan Reports). This report 

will be submitted at the end of the 

fourth year of the rule (May 2013), 

covering activities that have occurred 

through December 1, 2012. 

Comments and Responses 

On December 17, 2008, NMFS 

published a proposed rule (73 FR 

76578) in response to the Navy’s request 

to take marine mammals incidental to 

military readiness training in the JAX 

Range Complex study area and 

requested comments, information and 

suggestions concerning the request. 

During the 30-day public comment 

period, NMFS received comments from 

1 private citizen, comments from the 

Marine Mammal Commission 

(Commission), comments from the 

International Fund for Animal Welfare 

(IFAW), and comments from the Natural 

Resources Defense Council (on behalf of 

itself, The Humane Society of the 

United States, Defenders of Wildlife, 

International Fund for Animal Welfare, 


pwalker on PROD1PC71 with RULES2
Federal Register / Vol. 74, No. 113 / Monday, June 15, 2009 / Rules and Regulations 28357 

Whale and Dolphin Conservation 

Society, Cetacean Society International, 

Ocean Futures Society, and Jean-Michel 

Cousteau). The comments are 

summarized and sorted into general 

topic areas and are addressed below. 

Full copies of the comment letters may 

be accessed at http:// 

www.regulations.gov. 

NMFS worked with the Navy to 

develop MMPA rules and LOAs for the 

JAX Range Complex. Many of the issues 

raised in the public comments for this 

rule were also raised for the VACAPES 

Range Complex rulemaking and NMFS 

considered many of the broader issues 

in the context of these two Navy actions 

when determining how to address the 

comments. To the extent necessary, the 

public may refer to the response to 

comments section in the VACAPES final 

rule (addressing similar issues 

identified in the JAX Range Complex 

final rule). 

MMPA Concerns 

Comment 1: The Commission 

recommends that NMFS consult with 

the Navy regarding the possible need to 

expand the proposed authorization to 

include additional species that might be 

taken unexpectedly and a more realistic 

number of takes for species that occur 

in groups, including Clymene dolphins, 

pantropical spotted dolphins, pilot 

whales, and Risso’s dolphins. 

Response: NMFS has consulted with 

the Navy regarding the possibility of 

additional species that might be taken 

unexpectedly and a more realistic 

number of takes for species that occur 

in groups. A more detailed analysis is 

provided in the Estimated Take of 

Marine Mammals section. These 

additional species include minke whale, 

common dolphin, pygmy/dwarf sperm 

whales, and several species of beaked 

whales. 

Comment 2: The Commission 

recommends that NMFS revise section 

218.11 of the proposed regulation to 

clarify that the authorized numbers of 

takes are annual limits that would be 

applicable over a five-year period. 

Response: NMFS has revised this 

section in the final rule to clarify that 

the authorized numbers of takes are 

annual limits that will be applicable 

over a five-year period. 

Comment 3: The IFAW states that it 

is concerned with the possibility of 

Navy ships striking North Atlantic right 

whales (NARW) in the JAX Range 

Complex Study Area, and states that 

NMFS mistakenly concludes that take 

permits are unnecessary despite the fact 

that the proposed exercise area overlaps 

right whale critical habitat. The IFAW 

observes that the mitigation measures 

described in the proposed rule represent 

a strong effort by the U.S. Navy and 

NMFS to mitigate potential harm to 

critically endangered NARW, but they 

do not accomplish that goal. The IFAW 

further states that the Navy has been 

involved in ship strikes in the past 

(specifically, a female NARW and her 

near-term calf in the mid-Atlantic in 

2004). 

Response: NMFS appreciates the 

IFAW’s concern regarding the 

possibility of Navy ships striking North 

Atlantic right whales and other marine 

mammal species in the JAX Range 

Complex Study Area but does not agree 

with the IFAW’s assessment that NMFS 

mistakenly reached its conclusion that 

take of NARW is unlikely. 

Regarding ship strikes, the Navy’s EIS 

concluded that based on the 

implementation of Navy mitigation 

measures, especially during times of 

anticipated NARW occurrence, and the 

relatively low density of Navy ships in 

the Study Area, the likelihood that a 

vessel strike would occur is very low. In 

addition to the standard operating 

procedures to reduce the likelihood of 

collisions, which include: (1) Use of 

lookouts trained to detect all objects on 

the surface of the water (including 

marine mammals); (2) a requirement to 

avoid the close interaction of Navy 

assets and marine mammals; and (3) 

maneuvering to keep away from any 

observed marine mammal, the Navy has 

issued extensive North Atlantic right 

whale protective measures for all Fleet 

Forces training activities. These 

measures, which were developed with 

input from NMFS, include additional 

training requirements, designated areas 

of caution (where caution includes 

speed or direction adjustments and 

avoidance of known groups of right 

whales when feasible) and additional 

reporting requirements. NMFS and the 

Navy believe that the required measures 

will allow the Navy to avoid colliding 

with large whales during their specified 

activities. The Navy neither requested, 

nor did NMFS grant, authorization for 

take of right whales from ship strikes 

incidental to the specified activities. 

Regarding the right whale strike in 

2004, the commenter is most likely 

referring to an event that took place on 

November 17, 2004. On November 17 at 

about 10:30 a.m. a Navy amphibious 

assault ship struck a large whale off the 

Chesapeake Light House. A few hours 

later, around noon, a fisherman 

contacted the Virginia Aquarium 

stranding hotline and reported a live 

injured large whale with a fresh wound 

on the tail where the left fluke lobe was 

missing. On November 24, a dead right 

whale was necropsied at Ocean Sands, 

NC. The right whale was a pregnant 

female and the cause of death was 

determined to be blood loss owing to a 

traumatic wound to the left fluke lobe, 

which was missing, and damage to 

surrounding tissue and bone. The 

wound was consistent with that caused 

by a ship strike. Neither NMFS nor the 

Navy can confirm or deny that the dead 

right whale necropsied on November 24 

was the same whale struck by the Navy 

on November 17. 

The USCG and Navy have standing 

orders to report sightings or collisions. 

Although the NMFS ship strike database 

reflects a disproportionately high 

number of ship strikes attributable to 

USCG and Navy vessels over the years, 

this is likely due to the high reporting 

rate by those agencies relative to other 

mariners and vessels, rather than a 

higher incidence of right whale ship 

strikes by Federal agency vessels. These 

two Federal agencies are actively 

involved in large whale protection 

programs and reporting struck or dead 

whales to NMFS is part of their standard 

operating procedures. 

Comment 4: Citing Nowacek et al. 

(2004) that North Atlantic right whales 

exposed to alarm stimuli ‘‘abandoned 

their current foraging dive prematurely, 

* * * executed a shallow-angled, high 

power * * * ascent, remained at or near 

the surface’’ for an ‘‘abnormally long’’ 

period of time, and ‘‘spent significantly 

more time at subsurface depths (1–10 m) 

compared with normal surfacing 

periods when whales normally stay 

within 1 m of the surface,’’ the IFAW 

states that NARW calves are most 

vulnerable to impacts from collisions 

and noise from ships, helicopters, 

bombs and missiles. The IFAW further 

concludes that alarm stimuli were a 

poor option in attempts to mitigate 

vessel collisions because the whale’s 

reaction actually makes ship strikes 

more likely. The IFAW also notes 

NMFS’ previous conclusion on North 

Atlantic right whales that the ‘‘loss of 

even a single individual right whale 

may contribute to the extinction of the 

species,’’ and that ‘‘preventing the 

mortality of one adult female alters the 

projected outcome.’’ 

Response: NMFS is aware of the 

Nowacek et al. (2004) study on the 

North Atlantic right whale response to 

strong anthropogenic noise. The study 

consisted of a controlled sound 

exposure on right whales and concluded 

that the whales reacted strongly to the 

alarm signal, but failed to respond to 

sounds of approaching vessels or the 

vessels themselves. In addition, the data 

revealed that the whales responded to 

the alarm stimuli by swimming strongly 

to the surface, a response likely to 


pwalker on PROD1PC71 with RULES2
28358 Federal Register / Vol. 74, No. 113 / Monday, June 15, 2009 / Rules and Regulations 

increase the probability of a vessel/ 

whale collision. However, alarm stimuli 

are not a concern for this particular 

rulemaking. The Navy has neither 

proposed using, nor is NMFS requiring 

alarm stimuli to minimize vessel strikes 

associated with activities in the JAX 

Range Complex. Therefore, in the 

context of this rulemaking, alarm 

stimuli are not a concern. 

As the IFAW suggests, the loss of even 

one right whale would have serious 

effects on the population; however, as 

discussed in the proposed rule and 

above, NMFS does not expect a NARW 

to be taken by naval exercises in the JAX 

Range Complex, including the southern 

right whale critical habitat. 

Additionally, this zero take estimate 

does not account for the mitigation 

measures that will be implemented for 

the JAX Range Complex training 

activities, which include a prohibition 

of approaching right whales within 500 

yards and not conducting training 

within the vicinity of recently sighted 

whales. NMFS was able to determine 

that the Navy’s JAX Range Complex 

training activities would not result in a 

take of NARWs. 

Comment 5: The IFAW states that the 

Navy’s and NMFS’s distribution 

assumptions may be flawed in that they 

are likely to overestimate the number of 

marine mammals in some areas while 

underestimating the number in others. 

The Commission recommends NMFS 

defer promulgation of a final rule until 

it and/or the Navy conducts an 

independent peer review of the methods 

used to derive marine mammal density 

estimates in the Navy OPAREA Density 

Estimates (NODE) report. 

Response: NMFS does not agree with 

the IFAW’s statement that the Navy and 

NMFS have used flawed data in 

estimating the number of takes of 

marine mammals. Though it is a fair 

assessment that animal distributions in 

the water column are often uneven, the 

marine mammal information contained 

in the analyses 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 JAX 

OPAREA 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. 

As far as the Commission’s 

recommendation regarding peer-review 

of the NODE data, 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 used for the analyses are 

derived from the Navy OPAREA Density 

Estimates (NODE) for the Southeast 

OPAREAS report (DON, 2007). 

Density estimates for cetaceans were 

either modeled using available linetransect survey data or derived using 

available data in order of preference: (1) 

Through spatial models using linetransect survey data provided by NMFS; 

(2) using abundance estimates from 

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

on the cetacean abundance estimates 

found in the most current NMFS stock 

assessment report (SAR) (Waring et al., 

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

www.nefsc.noaa.gov/publications/tm/ 

tm210/. 

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, and 

chlorophyll a concentration was 

formulated using generalized additive 

models. This relationship was then used 

to generate a two-dimensional density 

surface for the region by predicting 

densities in areas where no survey data 

exist. 

The analyses for cetaceans were based 

on sighting data collected through 

shipboard surveys conducted by NMFS 

Northeast Fisheries Science Center 

(NEFSC) and Southeast Fisheries 

Science Center (SEFSC) between 1998 

and 2005. Species-specific density 

estimates derived through spatial 

modeling were compared with 

abundance estimates found in the most 

current NMFS SAR to ensure 

consistency. All spatial models and 

density estimates were reviewed by and 

coordinated with NMFS Science Center 

technical staff and scientists with the 

University of St. Andrews, Scotland, 

Centre for Environmental and Ecological 

Modeling (CREEM). Draft models and 

preliminary results were reviewed 

during a joint workshop attended by 

Navy, NMFS Science Center, and 

CREEM representatives. Subsequent 

revisions and draft reports were 

reviewed by these same parties. 

Therefore, NMFS considers that the 

NODE has already gone through an 

independent review process. 

Comment 6: The IFAW points out that 

even taking for granted the Navy’s and 

NMFS’ distribution information, NMFS 

ignores the Navy’s request for take 

permits for 2 Atlantic spotted dolphins, 

instead deciding that take will be less 

than estimated due to mitigation and 

monitoring measures. IFAW concludes 

that NMFS’ determination is incorrect 

where Atlantic spotted dolphins are 

likely to suffer physical injury resulting 

from exposure to noise in excess of 205 

dB. The IFAW considers that the 

Atlantic spotted dolphins’ small size 

and ability to move quickly will make 

them difficult to detect by Navy’s 

lookouts or other detection systems. 

Therefore, the IFAW states NMFS’ 

proposal to not grant take permits is 

arbitrary and capricious. 

Response: NMFS does not agree with 

the IFAW comment. NMFS did not 

ignore the Navy’s request for take of two 

Atlantic spotted dolphins by Level A 

harassment. As shown in Table 11 of the 

proposed rule for the JAX Range 

Complex training activities (73 FR 

76578; December 17, 2008), and in 

Table 5 of this final rule, the Navy 

modeled take estimates for various 

cetacean species, including Atlantic 

spotted dolphins, and NMFS has 

adopted the Navy’s estimates for this 

rulemaking. Please refer to the proposed 

rule (73 FR 76578; December 17, 2008) 

for clarification. NMFS has, through this 

final rule, established a framework that 

would allow the Navy to take a 

specified number of Atlantic spotted 

dolphins by Level A harassment 

incidental to naval exercises in the JAX 

Range Complex. 

Comment 7: The IFAW points out that 

the U.S. Navy and NMFS fail to address 

the impact of stress on marine 

mammals. Stress has been shown to 

cause physical harm, including 

weakening of the immune system, in 

marine mammals. It is safe to assume 

that marine mammals in the JAX Range 

Complex would be subjected to stress 

resulting from single or multiple 

explosive concussions. Yet, despite this 

potential, NMFS assumes that stress 

would have a negligible impact on 

marine mammals in the JAX Range. 

Response: NMFS does not agree with 

the IFAW’s assessment. It is true that 

intense acoustic exposure from 


pwalker on PROD1PC71 with RULES2
Federal Register / Vol. 74, No. 113 / Monday, June 15, 2009 / Rules and Regulations 28359 

explosives can be 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 in general, the stress 

response refers to an increase in 

energetic expenditure which results 

from exposure to the stressor and which 

is predominantly characterized by either 

the stimulation of the sympathetic 

nervous system or the hypothalamicpituitary-adrenal axis (Reeder and 

Kramer, 2005). 

The stress response may or may not 

occur 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. 

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 

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. 

Since the detonation events are 

widely dispersed throughout several of 

the designated sites within the JAX 

Range Complex Study Area, the 

probability that detonation events will 

overlap in time and space with marine 

mammals is low, particularly given the 

densities of marine mammals in the JAX 

Range Complex Study Area and the 

implementation of monitoring and 

mitigation measures. Moreover, NMFS 

does not expect animals to experience 

repeated exposures to the same sound 

source as animals will likely move away 

from the source after being exposed. In 

addition, these isolated exposures, 

when received at distances of Level B 

behavioral harassment (i.e., 177 dB re 1 

microPa2-sec), are expected to cause 

brief startle reactions or short-term 

behavioral modification by the animals. 

These brief reactions and behavioral 

changes are expected to disappear when 

the exposures cease. Therefore, it is 

highly unlikely that the animals will be 

exposed to the repeated stressors (i.e., 

detonations) to suffer increased 

allostatic load. 

Based on the analyses in the proposed 

rule and subsequent analyses contained 

herein, NMFS has determined that the 

issuance of 5-year regulations is 

appropriate for Navy training exercises 

utilizing underwater detonations since 

it will have a negligible impact on the 

marine mammal species and stocks 

present in the JAX Range Complex. 

Mitigation 

Comment 8: The Commission 

recommends that NMFS require the 

Navy to abide by the restrictions 

specified in NMFS’ final rule 

implementing speed restrictions to 

reduce the risk of ship collisions with 

right whales (50 CFR 224.105) in all but 

emergency situations or where the need 

for realistic training requires greater 

speed or maneuverability. 

Response: NMFS does not agree with 

the Commission’s recommendation. 

NMFS’ final rule on ship speed 

restriction does not apply to vessels 

operated by U.S. Federal agencies. 

NMFS, in consultation with other 

Federal agencies, has determined that 

the national security, navigational, and 

human safety missions of some agencies 

may be compromised by mandatory 

vessel speed restrictions. However, this 

exemption will not relieve the Navy of 

its obligations to consult, under section 

7 of the ESA, on how their activities 

may affect listed species. NMFS 

acknowledges that the Navy already 

provides guidance to vessel operators 

and fleets with regard to conservation 

measures to protect right whales and 

other endangered species, as well as 

contribute to conservation efforts 

generally. 

For the proposed JAX Range Complex 

training activities, the Navy has 

developed a series of mitigation 

measures that closely follow the NMFS’ 

ship strike rule. These mitigation 

measures are described in the Proposed 

Mitigation Measures section of the 

proposed rule (73 FR 76578; December 

17, 2008). In addition, NMFS worked 

with the Navy regarding their vessel 

operations to determine where ESA 

section 7 consultations would be 

appropriate. 

Comment 9: The IFAW points out that 

the proposed rule requires the Navy to 

‘‘practice increased vigilance’’ when 

passing through seasonal right whale 

habitat. The IFWC states that requiring 

the Navy to practice increased vigilance 

is an abdication of NMFS’ duties to 

independently analyze potential takes of 

North Atlantic right whales. Further, if 

NMFS is to allow Navy to mitigate harm 

through ‘‘increased vigilance,’’ that term 

should be defined in the proposed rule. 

Response: NMFS does not agree with 

the IFAW’s statement. Within the 

context of this rulemaking, the term 

‘‘increased vigilance’’ means to be on 

heightened alert to avoid vessel-whale 

interactions especially when operating 

in areas where/when NARWs are known 

to be migrating/present. For example, if 

NARWs are known to be in a particular 

area, instead of routine scanning 

through the sea surface for marine 

mammals that may or may not be in the 

vicinity, the lookouts/watchstanders or 

MMOs will be actively searching for the 

NARW that is potentially in the area. 

During times of ‘‘increased vigilance’’ 

the Navy will rely on the NARW Early 

Warning System (EWS). Language from 

the JAX EIS pertaining to EWS is 

provided below: 

‘‘The coastal waters off the Southeast 

United States (SEUS) support the only 

known calving ground for the North 

Atlantic Right Whale (NARW). In the 

mid 1990’s, the United States (U.S.) 

Navy, U.S. Coast Guard (USCG), U.S. 

Army Corps of Engineers (USACE), and 

National Marine Fisheries Service 

(NMFS) entered into a Memorandum of 

Agreement pursuant to the Endangered 

Species Act. The Early Warning System 

(EWS) is a result of that agreement and 

is a collaborative effort which involves 

comprehensive aerial surveys 

conducted during the North Atlantic 

Right Whale calving season. Surveys are 

flown daily, weather permitting, from 

December 1st through March 31st.’’ 

‘‘East/west transects are flown from 

shoreline to approximately 30–35 nm 

offshore. Aerial surveys are conducted 

to locate NARW and provide whale 

detection and reporting information to 

mariners in the NARW calving ground 

in an effort to avoid collisions with this 

endangered species. When a NARW is 

sighted, information from the aerial 

survey aircraft is passed to a ground 

contact. The ground contact e-mails the 

sighting information to a wide network 

distribution which includes Fleet Area 

Control and Surveillance Facility 

(FACSFAC) JAX, the USCG, the USACE 

and non-profit and commercial 

interests. Additionally, the ground 

contact will follow up with a call to 

FACSFAC JAX to provide further 

information if necessary. FACSFAC JAX 

records this valuable information and 

disseminates to all navy vessels and 

aircraft operating in the consultation 

area via the Secret Internet Protocol 

Router Network (SIPRNET) system.’’ 

‘‘General sighting information and 

reporting procedures are broadcasted 

over the following methods: the NOAA 

weather radio; USCG NAVTEX system 

and a Broadcast Notice to Mariners over 

VHF marine-band radio channel 16. The 


pwalker on PROD1PC71 with RULES2
28360 Federal Register / Vol. 74, No. 113 / Monday, June 15, 2009 / Rules and Regulations 

EWS is a wide communication effort to 

ensure all vessels in the area are aware 

of the most recent right whale sightings 

as an avoidance measure.’’ 

Comment 10: The IFAW points out 

that NMFS approves a number of other, 

more specific mitigation measures 

applicable to the Navy during right 

whale calving season in the 

‘‘Consultation Area’’—a zone 

overlapping established right whale 

critical habitat. The IFAW points out 

that the condition in the proposed rule 

is that all of the measures qualified by 

the Navy will only be followed if 

‘‘consistent with essential mission, 

training, and operations.’’ The IFAW 

states that these measures do not 

adequately address the potential harm 

to breeding right whales or mother/calf 

pairs. 

Response: NMFS does not agree with 

IFAW’s statement. NMFS recognizes the 

significance of the NARW calving area 

and has explored ways of effecting the 

least practicable impact (which includes 

a consideration of practicality of 

implementation, safety of personnel and 

impacts to training fidelity) to right 

whales. Navy units will incorporate data 

from the Early Warning System (EWS) 

into exercise pre-planning efforts. Fleet 

Area Control and Surveillance Facility, 

Jacksonville (FACSFACJAX) houses the 

Whale Fusion Center, which 

disseminates the latest right whale 

sighting information to Navy ships, 

submarines, and aircraft. Through the 

Fusion Center, FACSFACJAX 

coordinates ship and aircraft movement 

into the right whale critical habitat and 

the surrounding operating areas based 

on season, water temperature, weather 

conditions, and frequency of whale 

sightings and provides right whale 

reports to ships, submarines and 

aircraft, including coast guard vessels 

and civilian shipping. All sighting data 

is maintained on a Web site, http:// 

www.facsfacjax.navy.mil. 

In addition, the following list of 

comprehensive mitigation measures will 

be implemented in the ‘‘Consultation 

Area’’ during North Atlantic right whale 

calving season: 

1. Naval vessels operating within 

North Atlantic right whale critical 

habitat and the Associated Area of 

Concern (AAOC) will exercise extreme 

caution and use slow safe speed, that is, 

the slowest speed that is consistent with 

essential mission, training, and 

operations. 

2. Exercise extreme caution and use 

slow, safe speed when a whale is 

sighted by a vessel or when the vessel 

is within 5 nm of a reported new 

sighting less than 12 hours old. 

3. 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 (bare steerageway) or vessels 

could come to an all stop. 

4. During the North Atlantic right 

whale calving season north-south 

transits through the critical habitat are 

prohibited. Naval vessel transits through 

the area shall be in an east-west 

direction, and shall use the most direct 

route available during the calving 

season. 

5. Naval vessel operations (i.e., 

precision anchorage drills) in the North 

Atlantic right whale critical habitat and 

AAOC during the calving season will be 

undertaken during daylight and periods 

of good visibility, to the extent 

practicable and consistent with mission, 

training, and operation. When operating 

in the critical habitat and AAOC at night 

or during periods of poor visibility, 

vessels will operate as if in the vicinity 

of a recently reported NARW sighting. 

6. Command, Control and 

Communication: 

• FACSFAC JAX shall coordinate 

ship/aircraft clearance into the 

operating area based on prevailing 

conditions, including water 

temperature, weather conditions, whale 

sighting data, mission or event to be 

conducted and other pertinent 

information. Commander Submarine 

Atlantic (COMSUBLANT) will 

coordinate any submarine operations 

that may require clearance with 

FACSFAC JAX. FASFAC JAX will 

provide data to ships and aircraft, 

including USCG if requested, and will 

recommend modifying, moving or 

canceling events as needed to prevent 

whale encounters. Commander 

Submarine Group Ten (COMSUBGRU 

TEN) will provide same information/ 

guidance to subs. 

• Prior to transiting or training in the 

critical habitat, ships will contact 

FASFAC JAX to obtain latest whale 

sighting and other information needed 

to make informed decisions regarding 

safe speed and path of their intended 

movement. Subs shall contact 

COMSUBGRU TEN for similar 

information. Ships and aircraft desiring 

to train/operate inside the critical 

habitat or within the warning/operating 

area shall coordinate clearance with 

FACSFAC JAX. Subs shall follow the 

same clearance procedures as ships and 

obtain clearance from CTF–82 

(COMSUBLANT). 

• FACSFAC JAX will coordinate local 

procedures for whale data entry, update, 

retrieval and dissemination using joint 

maritime command information system. 

Ships, including those operated by 

USCG, not yet Officer in Tactical 

Command Information Exchange 

subsystem capable, will communicate 

via satellite communication, telephone 

system or international marine/maritime 

satellite. 

7. The only type of exercise that may 

be conducted inside the critical habitat 

and AAOC in calving season is 

precision anchorage drills and swept 

channel exercises. These exercises do 

not involve in detonations and do not 

introduce intense sound that is likely to 

result a take into the water column. 

Therefore, they are not expected to 

result in a take of marine mammals. In 

addition, use of the Shipboard 

Electronic System Evaluation Facility 

range is authorized with clearance and 

advice from FACSFAC JAX. 

NMFS believes that these measures 

can adequately protect the North 

Atlantic right whales in the 

‘‘Consultation Area’’ during calving 

season. 

Miscellaneous Issues 

Comment 11: The NRDC commented 

on the proposed rule with its earlier 

comments on the NMFS’s proposed rule 

for the Navy’s Atlantic Fleet Active 

Sonar Training (AFAST) and the Navy’s 

AFAST DEIS. Specifically, the NRDC 

states that neither NMFS in its proposed 

rule nor the Navy in its EIS offers 

sufficient measures to mitigate the 

harmful impacts of high intensity sonar. 

The NRDC further states that NMFS and 

the Navy’s analysis substantially 

understates the potential effects of sonar 

on marine wildlife. 

Response: NRDC’s comments are 

inapplicable to the proposed Navy 

training activities in the JAX Range 

Complex. The Navy does not intend, as 

part of its proposed action, to conduct 

training with MFAS, HFAS, and 

Improved Extended Echo Ranging 

(IEER)/Advanced Extended Echo 

Ranging (AEER). The Navy’s request for 

a LOA for sonar related training was 

addressed in the Final Rule and LOA for 

AFAST which was issued by NMFS on 

January 22, 2009, and published in the 

Federal Register on February 19, 2009 

(74 FR 4844). 

Comment 12: The IFAW and one 

private citizen expressed general 

opposition to Navy activities and 

NMFS’s issuance of an MMPA 

authorization because of the danger of 

killing marine life. 

Response: NMFS appreciates the 

commenters’ concern for the marine 

mammals that live in the area of the 

proposed activities. However, the 

MMPA allows individuals to take 

marine mammals incidental to specified 


pwalker on PROD1PC71 with RULES2
Federal Register / Vol. 74, No. 113 / Monday, June 15, 2009 / Rules and Regulations 28361 

activities if NMFS can make the 

necessary findings required by law (i.e., 

negligible impact, unmitigable adverse 

impact on subsistence users, etc.). As 

explained throughout this rulemaking, 

NMFS has made the necessary findings 

under 16 U.S.C. 1371(a)(5)(A) to support 

our issuance of the final rule. 

Estimated Take of Marine Mammals 

As mentioned previously, with 

respect to the MMPA, NMFS’s effects 

assessments serve three 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 effecting 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 in 

the JAX Range Complex; thus, there 

would be no effect on any subsistence 

user); and (4) to prescribe requirements 

pertaining to monitoring and reporting. 

In the Estimated Take of Marine 

Mammals section of the proposed rule, 

NMFS related the potential effects to 

marine mammals from underwater 

detonation of explosives to the MMPA 

regulatory definitions of Level A and 

Level B Harassment and assessed the 

effects to marine mammals that could 

result from the specific activities that 

the Navy intends to conduct. These 

analyses are discussed in the proposed 

rule (73 FR 76578; pages 76596–76597) 

and have not changed. 

Acoustic Take Criteria 

In the Acoustic Take Criteria section 

of the proposed rule, NMFS described 

the development and application of the 

acoustic criteria for explosive 

detonations (73 FR 76578; pages 76597– 

76599). No changes to the modeling 

have been made except for those 

outlined in the Potential Impacts to 

Marine Mammal Species section of this 

document. 

Take Calculations 

An overview of the Navy’s modeling 

methods to determine the number of 

exposures of MMPA-protected species 

to sound likely to result in mortality, 

Level A harassment (injury), or Level B 

harassment is provided in the Federal 

Register notice for the proposed rule (73 

FR 76578; pages 76599–76600). No 

changes have been made to the 

modeling methods in the section of the 

proposed rule. 

As noticed in the proposed rule, the 

Navy’s modeling revealed that only six 

marine mammal species (very few 

individuals of each) would be taken by 

Level A and Level B harassment. 

However, after further evaluation, 

NMFS concluded that because of the 

relatively high abundance of several 

species in the action area (e.g., Atlantic 

spotted dolphins, bottlenose dolphins, 

common dolphins, striped dolphins, 

Risso’s dolphins, and pilot whales, 

minke whales, pantropical spotted 

dolphins, Kogia sp., and several species 

of beaked whales—Waring et al., 2008), 

and because some of these species tend 

to aggregate in relatively large groups, 

there is a reasonable probability that 

these species could be taken by Level B 

harassment. In addition, NMFS has 

increased the take estimates because of 

the aggregate social behavior of these 

species in large groups. Therefore, 

NMFS has included these species in our 

take estimates for the 5-year regulations. 

Revised estimates of potential takes 

from the proposed JAX Range Complex 

training activities are listed in Table 5. 

TABLE 5—SUMMARY OF POTENTIAL TAKES FROM EXPLOSIVE ORDNANCE (PER YEAR) FOR MARINE MAMMALS IN THE JAX 

RANGE COMPLEX

Species Level B 

harassment 

Level A 

harassment Mortality 

Minke whale ............................................................................................................................................. 3 0 0 

Beaked whales ........................................................................................................................................ 20 0 0 

Kogia sp. .................................................................................................................................................. 3 0 0 

Pilot whale ............................................................................................................................................... 20 0 0 

Atlantic spotted dolphin ........................................................................................................................... 62 2 0 

Bottlenose dolphin ................................................................................................................................... 30 0 0 

Common dolphin ...................................................................................................................................... 30 0 0 

Striped dolphin ......................................................................................................................................... 20 0 0 

Clymene dolphin ...................................................................................................................................... 20 0 0 

Pantropical spotted dolphin ..................................................................................................................... 20 0 0 

Risso’s dolphin ......................................................................................................................................... 30 0 0 

Effects on Marine Mammal Habitat 

NMFS’s JAX Range Complex 

proposed rule included a section that 

addressed the effects of the Navy’s 

activities on marine mammal habitat (73 

FR 76578, page 76600). Marine mammal 

habitat and prey species could be 

affected by the explosive ordnance 

testing and the sound generated by such 

activities. Based on the analysis 

contained in the Navy’s FEIS and the 

information below, NMFS has 

determined that the JAX Range Complex 

training activities will not have adverse 

or long-term impacts on marine 

mammal habitat or prey species. 

Unless the sound source or explosive 

detonation is stationary and/or 

continuous over a long duration in one 

area, the effects of underwater 

detonation and its associated sound are 

generally considered to have a less 

severe impact on marine mammal 

habitat than the physical alteration of 

the habitat. Marine mammals may be 

temporarily displaced from areas where 

Navy training is occurring, but the area 

will be utilized again after the activities 

have ceased. 

Effects on Food Resources 

There are currently no well 

established thresholds for estimating 

effects to fish from explosives other than 

mortality models. Fish that are located 

in the water column, in proximity to the 

source of detonation could be injured, 

killed, or disturbed by the impulsive 

sound and could leave the area 

temporarily. Continental Shelf Inc. 

(2004) summarized a few studies 


pwalker on PROD1PC71 with RULES2
28362 Federal Register / Vol. 74, No. 113 / Monday, June 15, 2009 / Rules and Regulations 

conducted to determine effects 

associated with removal of offshore 

structures (e.g., oil rigs) in the Gulf of 

Mexico. Their findings revealed that at 

very close range, underwater explosions 

are lethal to most fish species regardless 

of size, shape, or internal anatomy. In 

most situations, cause of death in fish 

has been massive organ and tissue 

damage and internal bleeding. At longer 

range, species with gas-filled 

swimbladders (e.g., snapper, cod, and 

striped bass) are more susceptible than 

those without swimbladders (e.g., 

flounders, eels). 

Studies also suggest that larger fish 

are generally less susceptible to death or 

injury than small fish. Moreover, 

elongated forms that are round in cross 

section are less at risk than deep-bodied 

forms. Orientation of fish relative to the 

shock wave may also affect the extent of 

injury. Open water pelagic fish (e.g., 

mackerel) seem to be less affected than 

reef fishes. The results of most studies 

are dependent upon specific biological, 

environmental, explosive, and data 

recording factors. 

The huge variation in fish 

populations, including numbers, 

species, sizes, and orientation and range 

from the detonation point, makes it very 

difficult to accurately predict mortalities 

at any specific site of detonation. A total 

of 250 hours of explosive detonation 

events, each lasting approximately 1–8 

hours, will be widely dispersed in the 

large JAX study area over the calendar 

year. Most fish species experience a 

large number of natural mortalities, 

especially during early life-stages, and 

any small level of mortality caused by 

the JAX Range Complex training 

exercises involving explosives will 

likely be insignificant to the population 

as a whole. 

Therefore, potential impacts to marine 

mammal food resources within the JAX 

Range Complex are expected to be 

minimal given both the very geographic 

and spatially limited scope of most 

Navy at-sea activities including 

underwater detonations, and the high 

biological productivity of these 

resources. No short or long term effects 

to marine mammal food resources from 

Navy activities are anticipated within 

the JAX Range Complex. 

Effects on North Atlantic Right Whale 

Critical Habitat 

The coastal waters off Georgia and 

northern Florida within the JAX Range 

Complex Study Area are the only 

known calving ground for the North 

Atlantic right whale. Designated critical 

habitat, which encompasses the core of 

the calving ground, is essential to the 

conservation of this species. The Navy 

has proposed to largely avoid 

conducting any training in critical 

habitat, and only non-explosive 

activities will be conducted in the right 

whale critical habitat. The only training 

activity that would occur in the NARW 

critical habitat is the precision 

anchorage drill, which is a nonexplosive event. This exercise requires 

the use of specially trained bridge watch 

teams (Sea Anchor Detail) and slow 

speeds. The objective is to drop anchor 

and stop the vessel at a precise 

geographic point. This exercise is 

typically done 3 to 8 miles from shore. 

The duration of this exercise is typically 

less than 1 hour. Therefore, NMFS 

believes that this training exercise will 

not adversely affect NARW critical 

habitat. 

In addition, FACSFACJAX 

coordinates Navy ship and aircraft 

clearance into the Northern Right Whale 

Critical Habitat and the surrounding 

Operating Area (OPAREA) based on 

season, water temperature, weather 

conditions, and frequency of whale 

sightings, and provides North Atlantic 

right whale sighting reports to ships, 

submarines and aircraft. Through 

coordination with the Florida Fish and 

Wildlife Conservation Commission 

(FWCC), Georgia Department of Natural 

Resources (GDNR), New England 

Aquarium Early Warning System (EWS) 

and others, FACSFACJAX organized a 

communications network and reporting 

system that ensures the widest possible 

exchange and dissemination of North 

Atlantic right whale sighting 

information to Department of Defense 

and civilian shipping. 

Conclusion 

Based on the analyses and the 

aforementioned mitigation and 

monitoring measures for vessel transit 

in the North Atlantic right whale critical 

habitat in place, NMFS concluded that 

the Navy’s activities would have 

minimal effects on marine mammal 

habitat, including the North Atlantic 

right whale critical habitat. 

Analysis and Negligible Impact 

Determination 

Pursuant to NMFS’s 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.), and the number and 

nature of estimated Level A takes, the 

number of estimated mortalities, and 

effects on habitat. 

The Navy’s specified activities have 

been described based on best estimates 

of the planned detonation events the 

Navy would conduct for the proposed 

JAX Range Complex training activities. 

Taking the above into account, 

considering the sections discussed 

below, and dependent upon the 

implementation of the proposed 

mitigation measures, NMFS has 

determined that Navy training exercises 

utilizing underwater explosives will 

have a negligible impact on the affected 

marine mammal species and stocks 

present in the JAX Range Complex 

Study Area. 

NMFS’s analysis of potential 

behavioral harassment, temporary 

threshold shifts, permanent threshold 

shifts, injury, and mortality to marine 

mammals as a result of the JAX Range 

Complex training activities was 

provided in the proposed rule (73 FR 

76578, pages 76585–76591) and is 

described in more detail below. 

Behavioral Harassment 

The Navy plans a total of 73 

MISSILEX training events (each lasting 

for 1 hour), 10 FIREX training events 

(each lasting for 8 hours), 12 MINEX 

training events (each lasting for 6–8 

hours), and 8 small arms exercises 

events (each lasting for 1 hour) 

annually. The total training exercises 

proposed by the Navy in the JAX Range 

Complex amount to approximate 250 

hours per year. These detonation events 

are widely dispersed throughout several 

of the designated sites within the JAX 

Range Complex Study Area. The 

probability that detonation events will 

overlap in time and space with marine 

mammals is low, particularly given the 

densities of marine mammals in the JAX 


pwalker on PROD1PC71 with RULES2
Federal Register / Vol. 74, No. 113 / Monday, June 15, 2009 / Rules and Regulations 28363 

Range Complex Study Area and the 

implementation of monitoring and 

mitigation measures. Moreover, NMFS 

does not expect animals to experience 

repeated exposures to the same sound 

source as animals will likely move away 

from the source after being exposed. In 

addition, these isolated exposures, 

when received at distances of Level B 

behavioral harassment (i.e., 177 dB re 1 

microPa2-sec), are expected to cause 

brief startle reactions or short-term 

behavioral modification by the animals. 

These brief reactions and behavioral 

changes are expected to disappear when 

the exposures cease. Therefore, these 

levels of received impulse noise from 

detonation are not expected to affect 

annual rates or recruitment or survival. 

TTS 

NMFS and the Navy have estimated 

that individuals of some species of 

marine mammals may sustain some 

level of temporarily threshold shift TTS 

from underwater detonations. TTS can 

last from a few minutes to days, be of 

varying degree, and occur across various 

frequency bandwidths. The TTS 

sustained by an animal is primarily 

classified by three characteristics: 

• Frequency—Available data (of midfrequency hearing specialists exposed to 

mid to high frequency sounds- Southall 

et al., 2007) suggest that most TTS 

occurs in the frequency range of the 

source up to one octave higher than the 

source (with the maximum TTS at 1⁄2

octave above). 

• Degree of the shift (i.e., how many 

dB is the sensitivity of the hearing 

reduced by)—generally, both the degree 

of TTS and the duration of TTS will be 

greater if the marine mammal is exposed 

to a higher level of energy (which would 

occur when the peak dB level is higher 

or the duration is longer). Since the 

impulse from detonation is extremely 

brief, an animal would have to approach 

very close to the detonation site to 

increase the received SEL. The 

threshold for the onset of TTS for 

detonations is a dual criteria: 182 dB re 

1 microPa2-sec or 23 psi, which might 

be received at distances from 252–1,096 

m from the centers of detonation based 

on the types of NEW involved to receive 

the SEL that causes TTS compared to 

similar source level with longer 

durations (such as sonar signals). 

• Duration of TTS (Recovery time)— 

Of all TTS laboratory studies, some 

using exposures of almost an hour in 

duration or up to 217 SEL, almost all 

recovered within 1 day (or less, often in 

minutes), though in one study (Finneran 

et al., 2007), recovery took 4 days. 

• Although the degree of TTS 

depends on the received noise levels 

and exposure time, all studies show that 

TTS are reversible and animals’ 

sensitivity is expected to be fully 

recovered in minutes to hours. 

Therefore, NMFS expects that TTS 

would not affect annual rates of 

recruitment or survival. 

Acoustic Masking or Communication 

Impairment 

As discussed above, it is also possible 

that anthropogenic sound could result 

in masking of marine mammal 

communication and navigation signals. 

However, masking only occurs during 

the time of the signal (and potential 

secondary arrivals of indirect rays), 

versus TTS, which occurs continuously 

for its duration. Impulse sounds from 

underwater detonations are extremely 

brief and the majority of most animals’ 

vocalizations would not be masked. 

Therefore, masking effects from 

underwater detonations are expected to 

be minimal and unlikely. If masking or 

communication impairment were to 

occur briefly, it would be in the 

frequency ranges below 100 Hz, which 

overlaps with some mysticete 

vocalizations; however, it would likely 

not mask the entirety of any particular 

vocalization or communication series 

because of the short impulse. 

PTS, Injury, or Mortality 

The Navy’s model estimated that 2 

Atlantic spotted dolphins could 

experience 50 percent tympanic 

membrane rupture or slight lung injury 

(Level A harassment) as a result of the 

training activities utilizing underwater 

detonation in the JAX Range Complex 

Study Area. However, these estimates 

do not take into consideration the 

proposed mitigation and monitoring 

measures. For underwater detonations, 

the animals have to be within predefined zones of influence (ZOI) to 

experience Level A harassment. The 

injury zones vary from 0.02 km2 to 

0.165 km2 (or at distances between 80 m 

to 230 m from the center of detonation) 

depending on the types of munition 

used and the season of the action. 

NMFS believes it is unlikely that any 

marine mammal could be undetected by 

lookouts/watchstanders or MMOs 

within such a small area during pretesting surveys. As discussed 

previously, the Navy plans to utilize 

aerial or vessel surveys to detect marine 

mammals for mitigation implementation 

and indicated that they are capable of 

effectively monitoring safety zones. 

Based on these assessments, NMFS 

determined that approximately 3 minke 

whales, 3 dwarf or pygmy sperm 

whales, 20 beaked whales, 20 pilot 

whales, 62 Atlantic spotted dolphins, 30 

bottlenose dolphins, 20 Clymene 

dolphins, 30 common dolphins, 20 

pantropical spotted dolphins, 30 Risso’s 

dolphins, and 20 striped dolphins could 

be affected by Level B harassment (TTS 

and sub-TTS) as a result of the proposed 

JAX Range Complex training activities. 

These numbers represent approximately 

0.09%, 0.76%, 0.06%, 0.12%, 0.04%, 

0.02%, 0.45%, 0.02%, 0.15%, and 

0.57% of minke whales, dwarf or pygmy 

sperm whales, pilot whales, Atlantic 

spotted dolphins, bottlenose dolphins, 

common dolphins, pantropical spotted 

dolphins, striped dolphins, Risso’s 

dolphins, and beaked whales, 

respectively in the vicinity of the 

proposed JAX Range Complex Study 

Area (calculation based on NMFS 2007 

U.S. Atlantic and Gulf of Mexico Marine 

Mammal Stock Assessment). Although 

the population estimate of Clymene 

dolphins is unknown in the proposed 

action area, NMFS considers the take of 

20 individuals of this species by Level 

B harassment would have a negligible 

impact to this species because most of 

its population exists beyond the project 

area and because they are widely 

distributed species in the North Atlantic 

(Jefferson et al., 1993; Reeves et al., 

2002). 

In addition, the estimated Level A 

takes of 2 Atlantic spotted dolphins 

represent 0.0039% of this species in the 

vicinity of the proposed JAX Range 

Complex Study Area (calculation based 

on NMFS 2007 U.S. Atlantic and Gulf 

of Mexico Marine Mammal Stock 

Assessment). Given these very small 

percentages, NMFS does not expect 

there to be any long-term adverse effect 

on the populations of the 

aforementioned dolphin species. No 

marine mammals are expected to be 

killed as a result of these activities. 

Additionally, the aforementioned take 

estimates do not account for the 

implementation of mitigation measures. 

With the implementation of mitigation 

and monitoring measures, NMFS 

expects that the takes would be reduced 

further. Coupled with the fact that these 

impacts will likely not occur in areas 

and times critical to reproduction, 

NMFS has determined that the total 

taking over the 5-year period of the 

regulations and subsequent LOAs from 

the Navy’s JAX Range Complex training 

activities will have a negligible impact 

on the marine mammal species and 

stocks present in the JAX Range 

Complex Study Area. 

Subsistence Harvest of Marine 

Mammals 

NMFS has determined that the 

issuance of 5-year regulations and 

subsequent LOAs (as warranted) for 


pwalker on PROD1PC71 with RULES2
28364 Federal Register / Vol. 74, No. 113 / Monday, June 15, 2009 / Rules and Regulations 

Navy training exercises in the JAX 

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 marine mammal species 

that are listed as endangered under the 

ESA with confirmed or possible 

occurrence in the study area and could 

be impacted by the proposed action: 

blue whale, fin whale, sei whale, 

humpback whale, North Atlantic right 

whale, and sperm whale. 

Pursuant to Section 7 of the ESA, the 

Navy has consulted with NMFS on this 

action. NMFS has also consulted 

internally on the issuance of regulations 

under section 101(a)(5)(A) of the MMPA 

for this activity. The Biological Opinion 

concludes that the proposed training 

activities are likely to adversely affect 

but are not likely to jeopardize the 

continued existence of these threatened 

and endangered species under NMFS 

jurisdiction. 

NEPA 

NMFS participated as a cooperating 

agency on the Navy’s Final 

Environmental Impact Statement (FEIS) 

for the JAX Range Complex. NMFS 

subsequently adopted the Navy’s EIS for 

the purpose of complying with the 

MMPA. 

Determination 

Based on the analysis contained 

herein and in the proposed rule (and 

other related documents) of the likely 

effects of the specified activity on 

marine mammals and their habitat and 

dependent upon the implementation of 

the mitigation measures, NMFS finds 

that the total taking from Navy JAX 

Range Complex training exercises 

utilizing underwater explosives over the 

5 year period will have a negligible 

impact on the affected species or stocks 

and will not result in an unmitigable 

adverse impact on the availability of 

marine mammal species or stocks for 

taking for subsistence uses because no 

subsistence uses exist in the JAX Range 

Complex study area. NMFS has issued 

regulations for these exercises that 

prescribe the means of effecting 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. 

The Regulatory Flexibility Act (RFA) 

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. 605(b), 

that the action will not have a 

significant economic impact on a 

substantial number of small entities. 

The Chief Counsel for Regulation of the 

Department of Commerce certified at the 

Proposed Rule stage. 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 RFA. This 

rulemaking authorizes the take of 

marine mammals incidental to a 

specified activity. The specified activity 

defined in the final rule includes the 

use of underwater detonations, which 

are only used by the U.S. military, 

during training activities that are only 

conducted by the U.S. Navy. 

Additionally, 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. 

The Assistant Administrator for 

Fisheries has determined that there is 

good cause under the Administrative 

Procedure Act (5 U.S.C. 553(d)(3)) to 

waive the 30-day delay in effective date 

of the measures contained in the final 

rule. The U.S Navy has a compelling 

national policy reason to continue 

military readiness activities without 

interruption in its East Coast Operating 

Areas, i.e., the JAX Range Complex. As 

discussed below, suspension/ 

interruption of the Navy’s ability to 

train, for even a small number of days, 

disrupts vital sequential training and 

certification processes essential to our 

national security. 

In order to meet its national security 

objectives, the Navy must continually 

maintain its ability to operate in a 

challenging at-sea environment, conduct 

military operations, control strategic 

maritime transit routes and 

international straits, and protect sea 

lines of communications that support 

international commerce. To meet these 

objectives, the Navy must continually 

train. Timely training is critical because 

individual Navy units and Strike 

Groups/Amphibious Readiness Groups 

(ARG) currently operate in, or need to 

quickly deploy to high risk geographic 

areas. In addition, a Strike Group/ARG 

is built around an aircraft carrier with 

typically 5,300 personnel on board and 

an amphibious assault ship that carries 

a Marine Corps Expeditionary Unit, so 

failure to adequately train risks 

thousands of lives. 

The training necessary to protect 

American interests and the lives of 

sailors and marines is complex. It 

involves ensuring the warfighter can 

accurately identify potential threats in a 

variety of marine environments and 

conditions, and it involves the 

coordination of different vessels and 

aircraft so that the group’s capabilities 

are employed in the most tactically 

effective manner. As with any 

complicated coordinated effort, this 

challenge requires routine practice, as 

these skills are perishable. 

In 10 U.S.C. 5062, Congress mandated 

that the Chief of Naval Operations 

organize, train, and equip all Naval 

forces for combat. In response, the Fleet 

Response Training Plan (FRTP) is a 

major initiative designed to ensure 

Naval units receive required training 

before they deploy. The FRTP is an 

arduous sequential training cycle in 

which unit level training (ULT) and 

combat certification is followed by 

major exercises that bring together 

various warfare components so they 

have the opportunity to practice as an 

integrated whole and attain 

certification. Accordingly, any delay in 

coordinated training creates a 

significant and unreasonable risk which 

could result in a unit’s and/or Strike 

Group’s inability to train, certify and 

report as directed to an overseas theater 

of operations. 

A deployment certification exercise is 

currently scheduled for June 2009 that 

will encompass areas of the JAX Range 

Complex. Lack of the appropriate 

environmental regulatory coverage for 

even a single day imperils completion of 

this exercise, and risks deployment 

certification. Essential ULT also occurs 

in these OPAREAs. There is limited unit 

level underway (at-sea) time available in 

the FRTP to adjust the training dates. 

These ULT training periods are driven 

by sequential certification processes for 

both in port and at-sea training. 

Scheduling constraints are further 

complicated by the availability of Afloat 

Training Groups (ATGs) that are 

responsible for training all individual 

units. ATGs have a limited number of 

trainers available at any given time, and 

their schedules must also be deconflicted, compounding the problem if 

training schedules are not adhered to. 

Waiver of the 30-day delay of the 

effective date of the Final Rule will 

allow Navy to finalize operational 


pwalker on PROD1PC71 with RULES2
Federal Register / Vol. 74, No. 113 / Monday, June 15, 2009 / Rules and Regulations 28365 

procedures to ensure compliance with 

required mitigation, monitoring, and 

reporting requirements, and have 

MMPA authorization in place prior to 

Navy’s vital June 2009 exercise. 

List of Subjects in 50 CFR Part 218 

Exports, Fish, Imports, Incidental 

take, Indians, Labeling, Marine 

mammals, Navy, Penalties, Reporting 

and recordkeeping requirements, 

Seafood, Sonar, Transportation. 

Dated: June 5, 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 amended to read 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 B is added to part 218 to 

read as follows: 

Subpart B—Taking Marine Mammals 

Incidental to U.S. Navy Training in the 

Jacksonville Range Complex 

Sec. 

218.10 Specified activity and specified 

geographical area and effective dates. 

218.11 Permissible methods of taking. 

218.12 Prohibitions. 

218.13 Mitigation. 

218.14 Requirements for monitoring and 

reporting. 

218.15 Applications for Letters of 

Authorization. 

218.16 Letters of Authorization. 

218.17 Renewal of Letters of Authorization 

and adaptive management. 

218.18 Modifications to Letters of 

Authorization. 

Subpart B—Taking Marine Mammals 

Incidental to U.S. Navy Training in the 

Jacksonville Range Complex (JAX 

Range Complex) 

§ 218.10 Specified activity and specified 

geographical area and effective dates. 

(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 JAX Range Complex 

Operation Areas (OPAREAs), which are 

located along the southern east coast of 

the U.S. The two principal OPAREAs 

within the JAX Study Area are the 

Jacksonville OPAREA and the 

Charleston OPAREA (sometimes 

referred to collectively as the JAX/ 

CHASN OPAREA, or simply the 

OPAREA). The northernmost point of 

the JAX/CHASN OPAREA is located just 

north of Wilmington, North Carolina 

(34°37′ N) in waters less than 20 m (65.6 

ft) deep, while the easternmost 

boundary lies 281 nm (518.6 km) 

offshore of Jacksonville, Florida (77°00′ 

W in waters with a bottom depth of 

nearly 2,000 m [1.243 mi]). 

(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 events indicated in 

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

(i) Underwater Explosives: 

(A) AGM–114 (Hellfire missile); 

(B) AGM–65 E/F (Maverick missile); 

(C) Mine Neutralization (20 lb NEW 

charges); 

(D) 5′′ Naval Gunfire; 

(E) MK3A2 anti-swimmer concussion 

grenades. 

(ii) Training Events: 

(A) Mine Neutralization (20 lb NEW 

charges)—up to 60 exercises over the 

course of 5 years (an average of 12 per 

year); 

(B) Missile Exercise (MISSILEX) (Airto-Surface; Hellfire missile)—up to 350 

exercises over the course of 5 years (an 

average of 70 per year); 

(C) Missile Exercise (MISSILEX) (Airto-Surface; Maverick)—up to 15 

exercises over the course of 5 years (an 

average of 3 per year); 

(D) FIREX with IMPASS—up to 50 

exercises over the course of 5 years (an 

average of 10 per year); and 

(E) Small Arms Training with MK3A2 

anti-swimmer concussion grenade (0.5 

lbs NEW)—up to 400 grenades over the 

course of 5 years (an average of 80 HE 

grenades used per year). 

(2) [Reserved] 

(d) Regulations are effective June 8, 

2009 and are applicable to the Navy on 

June 5, 2009 through June 4, 2014. 

§ 218.11 Permissible methods of taking. 

(a) Under Letters of Authorization 

issued pursuant to §§ 216.106 of this 

chapter and 218.16, the Holder of the 

Letter of Authorization may 

incidentally, but not intentionally, take 

marine mammals within the area 

described in § 218.10(b), provided the 

activity is in compliance with all terms, 

conditions, and requirements of this 

subpart and the appropriate Letter of 

Authorization. 

(b) The activities identified in 

§ 218.10(c) must be conducted in a 

manner that minimizes, to the greatest 

extent practicable, any adverse impacts 

on marine mammals and their habitat. 

(c) The incidental take of marine 

mammals under the activities identified 

in § 218.10(c) is limited to the following 

species, by the indicated method of take 

and the indicated number of times: 

(1) Level B Harassment: 

(i) Bottlenose dolphin (Tursiops 

truncatus)—150 (an average of 30 

annually); 

(ii) Pantropical spotted dolphin 

(Stenella attenuata)—100 (an average of 

20 annually); 

(iii) Clymene dolphin (S. clymene)— 

100 (an average of 20 annually); 

(iv) Atlantic spotted dolphin (S. 

frontalis)—310 (an average of 62 

annually); 

(v) Striped dolphin (S. 

coeruleoalba)—100 (an average of 20 

annually); 

(vi) Risso’s dolphin (Grampus 

griseus)—150 (an average of 30 

annually); 

(vii) Common dolphin (Delphinus 

delphis)—150 (an average of 30 

annually); 

(viii) Pilot whales (Globicephala 

sp.)—100 (an average of 20 annually); 

(ix) Dwarf or pygmy sperm whales 

(Kogia sp.)—15 (an average of 3 

annually); 

(x) Beaked whales—100 (an average of 

20 annually); 

(xi) Minke whales (Balaenoptera 

acutorostrata)—15 (an average of 3 

annually). 

(2) Level A Harassment (injury): 

(i) Atlantic spotted dolphin—10 (an 

average of 2 annually). 

(ii) [Reserved] 

§ 218.12 Prohibitions. 

Notwithstanding takings 

contemplated in § 218.11 and 

authorized by a Letter of Authorization 

issued under § 216.106 of this chapter 

and § 218.16, no person in connection 

with the activities described in § 218.10 

may: 

(a) Take any marine mammal not 

specified in § 218.11(c); 

(b) Take any marine mammal 

specified in § 218.11(c) other than by 

incidental take as specified in 

§ 218.11(c)(1) and (2); 

(c) Take a marine mammal specified 

in § 218.11(c) 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 of this chapter 

and § 218.16. 


pwalker on PROD1PC71 with RULES2
28366 Federal Register / Vol. 74, No. 113 / Monday, June 15, 2009 / Rules and Regulations 

§ 218.13 Mitigation. 

(a) When conducting training 

activities identified in § 218.10(c), the 

mitigation measures contained in the 

Letter of Authorization issued under 

§ 216.106 of this chapter and § 218.16 

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 Marine Species 

Awareness Training (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. 

(F) At night, lookouts shall scan the 

horizon in a series of movements that 

would allow their eyes to come to 

periodic rests as they scan the sector. 

When visually searching at night, they 

shall look a little to one side and out of 

the corners of their eyes, paying 

attention to the things on the outer 

edges of their field of vision. Lookouts 

shall also have night vision devices 

available for use. 

(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 shall 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. 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. Vessels shall take reasonable 

steps to alert other vessels in the 

vicinity of the whale. 

(I) Where feasible and consistent with 

mission and safety, vessels shall avoid 

closing to within 200 yds (183 m) of 

marine mammals other than whales 

(whales addressed above). 

(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. 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 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. 

(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 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. 

(3) Mitigation Measures Applicable to 

Vessel Transit in the Mid-Atlantic 

during North Atlantic Right Whale 

Migration: The mitigation measures 

apply to all Navy vessel transits, 

including those vessels that would 

transit to and from East Coast ports and 

the JAX Range Complex OPAREA. 

(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 


pwalker on PROD1PC71 with RULES2
Federal Register / Vol. 74, No. 113 / Monday, June 15, 2009 / Rules and Regulations 28367 

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 (paragraphs 

(a)(3)(ii)(A) & (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) During the North Atlantic right 

whale calving season, north-south 

transits through the critical habitat are 

prohibited, except for Precision 

Anchoring drills and the Shipboard 

Electronic System Evaluation Facility 

range that necessarily operate at slow, 

safe speed. 

(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). 

(6) Naval vessel operations in the 

North Atlantic right whale critical 

habitat and AAOC during the calving 

season shall be undertaken during 

daylight and periods of good visibility, 

to the extent practicable and consistent 

with mission, training, and operation. 

When operating in the critical habitat 

and AAOC at night or during periods of 

poor visibility, vessels shall operate as 

if in the vicinity of a recently reported 

NARW sighting. 

(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 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 immediately. 

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 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 


pwalker on PROD1PC71 with RULES2
28368 Federal Register / Vol. 74, No. 113 / Monday, June 15, 2009 / Rules and Regulations 

speed at which mission goals or safety 

will not be compromised) so as to be 

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) Mitigation Measures for Specific 

At-sea Training Events—If a marine 

mammal is injured or killed as a result 

of the proposed Navy training activities 

(e.g., instances in which it is clear that 

munitions explosions caused death), the 

Navy shall suspend its activities 

immediately and report such incident to 

NMFS. 

(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 BB and CC, as specified in the 

Navy’s LOA application, in the JAX 

Range Complex. 

(B) During North Atlantic right whale 

calving season no explosive ordnance 

shall be used. 

(C) 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 a lookout 

dedicated to visually searching for 

marine mammals 180° along the ship 

track line and 360° at each buoy dropoff location. 

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

used to monitor a 600 yard (548 m) 

buffer zone for marine mammals during 

naval-gunfire events. 

(E) Ships shall not fire on the target 

if any marine mammals are detected 

within or approaching the 600 yd (548 

m) buffer zone until the area is cleared. 

If marine mammals are present, 

operations shall be suspended. Visual 

observation shall occur for 

approximately 45 minutes, or until the 

animal has been observed to have 

cleared the area and is heading away 

from the buffer zone. 

(F) Post-exercise monitoring of the 

entire target area shall take place with 

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

retrieval of the IMPASS sonobuoy array 

following each firing exercise. 

(G) FIREX with IMPASS shall take 

place during daylight hours only. 

(H) FIREX with IMPASS shall only be 

used in Beaufort Sea State three (3) or 

less. 

(I) The visibility must be such that the 

fall of shot is visible from the firing ship 

during the exercise. 

(J) No firing shall occur if marine 

mammals are detected within 70 yards 

(64 m) of the vessel. 

(ii) Air-to-Surface Missile Exercises 

(Explosive): 

(A) Aircraft shall initially survey the 

intended ordnance impact area for 

marine mammals. 

(B) During the actual firing of the 

weapon, the aircraft involved must be 

able to observe the intended ordnance 

impact area to ensure the area is free of 

marine mammals transiting the range. 

(C) 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. 

(D) Explosive ordnance shall not be 

targeted to impact within 1,800 yd 

(1,646 m) of sighted marine mammals. 

(iii) Mine Neutralization Training 

Involving Underwater Detonations (up 

to and including 20-lb charges): 

(A) This activity shall only occur in 

Undet North and Undet South of the 

JAX Range Complex. 

(B) Observers shall survey the Zone of 

Influence (ZOI), a 700 yd (640 m) radius 

from detonation location for marine 

mammals from all participating vessels 

during the entire operation. A survey of 

the ZOI (minimum of 3 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. 

Aerial survey support shall be utilized 

whenever assets are available. 

(C) Detonation operations shall be 

conducted during daylight hours only. 

(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 of marine 

mammals 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 of marine mammals for 30 minutes 

prior to detonation. 

(F) No detonations shall take place 

within 3.2 nm (6 km) of an estuarine 

inlet. 

(G) No detonations shall take place 

within 1.6 nm (3 km) of shoreline. 

(H) Personnel shall record any 

protected species observations during 

the exercise as well as measures taken 

if species are detected within the ZOI. 

(iv) Small Arms Training—Explosive 

hand grenades (such as the MK3A2 

grenades): 

(A) Lookouts shall visually survey for 

marine mammals prior to and during 

exercise. 

(B) A 200 yd (182 m) radius buffer 

zone shall be established around the 

intended target. The exercises shall be 

conducted only if the buffer zone is 

clear of marine mammals. 

§ 218.14 Requirements for monitoring and 

reporting. 

(a) The Holder of the Letter of 

Authorization issued pursuant to 

§ 216.106 of this chapter and § 218.16 

for activities described in § 218.10(b) 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 

§ 218.10(b) is thought to have resulted 

in the mortality or serious injury of any 

marine mammals, or in any take of 

marine mammals not identified in 

§ 218.10(c). 

(c) The Navy must conduct all 

monitoring and required reporting 

under the Letter of Authorization, 

including abiding by the JAX Range 

Complex Monitoring Plan, which is 

incorporated herein by reference, and 

which requires the Navy to implement, 

at a minimum, the monitoring activities 

summarized below: 

(1) Vessel or aerial surveys: 

(i) The Holder of this Authorization 

shall visually survey a minimum of 2 

explosive events per year, one of which 

shall be a multiple detonation event. 

One of the vessel or aerial surveys 

should involve professionally trained 

marine mammal observers (MMOs). 

(ii) When operationally feasible, for 

specified training events, aerial or vessel 

surveys shall be used 1–2 days prior to, 

during (if reasonably safe), and 1–5 days 

post detonation. 

(iii) Surveys shall 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). For vessel-based surveys a 

passive acoustic system (hydrophone or 

towed array) could be used to determine 


pwalker on PROD1PC71 with RULES2
Federal Register / Vol. 74, No. 113 / Monday, June 15, 2009 / Rules and Regulations 28369 

if marine mammals are in the area 

before and/or after a detonation event. 

(iv) When conducting a particular 

survey, the survey team shall collect: 

(A) Location of sighting; 

(B) Species (if not possible, indicate 

whale, dolphin or pinniped); 

(C) Number of individuals; 

(D) Whether calves were observed; 

(E) Initial detection sensor; 

(F) Length of time observers 

maintained visual contact with marine 

mammal; 

(G) Wave height; 

(H) Visibility; 

(I) Whether sighting was before, 

during, or after detonations/exercise, 

and how many minutes before or after; 

(J) Distance of marine mammal from 

actual detonations (or target spot if not 

yet detonated); 

(K) Observed behavior— 

Watchstanders shall report, in plain 

language and without trying to 

categorize in any way, the observed 

behavior of the animal(s) (such as 

animal closing to bow ride, paralleling 

course/speed, floating on surface and 

not swimming etc.), including speed 

and direction; 

(L) Resulting mitigation 

implementation—Indicate whether 

explosive detonations were delayed, 

ceased, modified, or not modified due to 

marine mammal presence and for how 

long; and 

(M) If observation occurs while 

explosives are detonating in the water, 

indicate munition type in use at time of 

marine mammal detection. 

(2) Passive acoustic monitoring—the 

Navy shall conduct passive acoustic 

monitoring when operationally feasible. 

(i) Any time a towed hydrophone 

array is employed during shipboard 

surveys, the towed array shall be 

deployed during daylight hours for each 

of the days the ship is at sea. 

(ii) The towed hydrophone array shall 

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 shall have the 

capability of detecting low frequency 

vocalizations (<1,000 Hz) for baleen 

whales and relatively high frequency 

(up to 30 kHz) for odontocetes. 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) As required in § 218.14(c)(1), 

MMOs selected for aerial or vessel 

survey shall be placed on a Navy 

platform during one of the explosive 

exercises being monitored per year, the 

other designated exercise shall be 

monitored by the Navy lookouts/ 

watchstanders. 

(ii) The MMO must possess expertise 

in species identification of regional 

marine mammal species and experience 

collecting behavioral data. 

(iii) MMOs shall 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 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 and the lookout shall 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. Information 

collected by MMOs shall be the same as 

those collected by Navy lookout/ 

watchstanders described in 

§ 218.14(c)(1)(iv). 

(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 JAX Range Complex and 

across range complexes. 

(e) General Notification of Injured or 

Dead Marine Mammals—Navy 

personnel shall ensure that NMFS 

(regional stranding coordinator) is 

notified immediately (or as soon as 

clearance procedures allow) if an 

injured or dead marine mammal is 

found during or shortly after, and in the 

vicinity of, any Navy training exercise 

utilizing underwater explosive 

detonations. The Navy shall provide 

NMFS with species or description of the 

animal(s), the condition of the animal(s) 

(including carcass condition if the 

animal is dead), location, time of first 

discovery, observed behaviors (if alive), 

and photo or video (if available). 

(f) Annual JAX Range Complex 

Monitoring Plan Report—The Navy 

shall submit a report annually on March 

1 describing the implementation and 

results (through January 1 of the same 

year) of the JAX Range Complex 

Monitoring Plan. Data collection 

methods will be standardized across 

range complexes to allow for 

comparison in different geographic 

locations. Although additional 

information will also be gathered, the 

MMOs collecting marine mammal data 

pursuant to the JAX Range Complex 

Monitoring Plan shall, at a minimum, 

provide the same marine mammal 

observation data required in § 218.14(g). 

The JAX Range Complex Monitoring 

Plan Report may be provided to NMFS 

within a larger report that includes the 

required Monitoring Plan Reports from 

JAX Range Complex and multiple range 

complexes. 

(g) Annual JAX Range Complex 

Exercise Report—The Navy shall 

provide the information described 

below for all of their explosive 

exercises. Until the Navy is able to 

report in full the information below, 

they shall provide an annual update on 

the Navy’s explosive tracking methods, 

including improvements from the 

previous year. 

(i) Total annual number of each type 

of explosive exercise (of those identified 

as part of the ‘‘specified activity’’ in this 

final rule) conducted in the JAX Range 

Complex. 

(ii) Total annual expended/detonated 

rounds (missiles, bombs, etc.) for each 

explosive type. 

(h) JAX Range Complex 5-yr 

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 the JAX Range Complex 

exercises for which annual reports are 

required (Annual JAX Range Complex 

Exercise Reports and JAX Range 

Complex Monitoring Plan Reports). This 

report shall be submitted at the end of 

the fourth year of the rule (May 2013), 

covering activities that have occurred 

through December 1, 2012. 


pwalker on PROD1PC71 with RULES2
28370 Federal Register / Vol. 74, No. 113 / Monday, June 15, 2009 / Rules and Regulations 

(i) The Navy shall respond to NMFS’ 

comments and requests for additional 

information or clarification on the JAX 

Range Complex Comprehensive Report, 

the Annual JAX Range Complex 

Exercise Report, or the Annual JAX 

Range Complex Monitoring Plan Report 

(or the multi-Range Complex Annual 

Monitoring Plan Report, if that is how 

the Navy chooses to submit the 

information) if submitted within 3 

months of receipt. These reports will be 

considered final after the Navy has 

addressed NMFS’ comments or 

provided the requested information, or 

three months after the submittal of the 

draft if NMFS does not comment by 

then. 

(j) 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. 

§ 218.15 Applications for Letters of 

Authorization. 

To incidentally take marine mammals 

pursuant to these regulations, the U.S. 

citizen (as defined by § 216.103 of this 

chapter) conducting the activity 

identified in § 218.10(a) (the U.S. Navy) 

must apply for and obtain either an 

initial Letter of Authorization in 

accordance with § 218.16 or a renewal 

under § 218.17. 

§ 218.16 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 § 218.17. 

(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). 

§ 218.17 Renewal of Letters of 

Authorization and adaptive management. 

(a) A Letter of Authorization issued 

under § 216.106 and § 218.16 of this 

chapter for the activity identified in 

§ 218.10(c) will be renewed annually 

upon: 

(1) Notification to NMFS that the 

activity described in the application 

submitted under § 218.15 shall 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 § 218.14; and 

(3) A determination by NMFS that the 

mitigation, monitoring and reporting 

measures required under § 218.13 and 

the Letter of Authorization issued under 

§§ 216.106 and 218.16 of this chapter 

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 218.17 of this chapter 

indicates that a substantial modification 

to the described work, mitigation or 

monitoring undertaken during the 

upcoming season will occur, 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 JAX Study Area or other 

locations). 

(2) Findings of the Monitoring 

Workshop that the Navy will convene in 

2011 (§ 218.14(j)). 

(3) Compiled results of Navy funded 

research and development (R&D) studies 

(presented pursuant to the ICMP 

(§ 218.14(d)). 

(4) Results from specific stranding 

investigations (either from the JAX 

Range Complex Study Area or other 

locations). 

(5) Results from general marine 

mammal and sound research (funded by 

the Navy (described below) or 

otherwise). 

(6) 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. 

§ 218.18 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 of this chapter 

and § 218.16 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 § 218.17, 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 § 218.11(b), a 

Letter of Authorization issued pursuant 

to § 216.106 of this chapter and § 218.16 

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. E9–13698 Filed 6–8–09; 4:15 pm] 

BILLING CODE 3510–22–P 

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 


pwalker on PROD1PC71 with RULES2