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 


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Federal Register / Vol. 74, No. 113 / Monday, June 15, 2009 / Rules and Regulations 28371 

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 at the Cherry Point 

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). 

Additionally, the Navy’s LOA 

application may be obtained by visiting 

the Internet at: http:// 

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

incidental.htm#applications. 

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 Monday, March 16, 

2009 (74 FR 11052). 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, notice of a 

proposed authorization is provided to 

the public for review. 

Authorization shall be granted if 

NMFS finds that the taking will have a 

negligible impact on the species or 

stock(s), will not have an unmitigable 

adverse impact on the availability of the 

species or stock(s) for subsistence uses, 

and if the permissible methods of taking 

and requirements pertaining to the 

mitigation, monitoring and reporting of 

such taking are set forth. NMFS has 

defined ‘‘negligible impact’’ in 50 CFR 

216.103 as: 

An impact resulting from the specified 

activity that cannot be reasonably expected 

to, and is not reasonably likely to, adversely 

affect the species or stock through effects on 

annual rates of recruitment or survival. 

The National Defense Authorization 

Act of 2004 (NDAA) (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 June 5, 2008, NMFS received an 

application from the Navy requesting 

authorization for the take of Atlantic 

spotted dolphin incidental to the 

proposed training activities in the 

Cherry Point Range Complex over the 

course of 5 years. On June 17, 2008, the 

Navy submitted an Addendum with 

some modifications and additional 

information to its original requests. The 

activities to be conducted in the Cherry 

Point Range Complex are classified 

military readiness activities. The Navy 

states that these training activities may 

cause various impacts to marine 

mammal species in the proposed Cherry 

Point Range Complex area. The Navy 

requests an authorization to take two 

individuals of Atlantic spotted dolphins 

annually by Level B Harassment. The 

Navy does not anticipate any Level A 

harassment (injury). Please refer to the 

take table on page 6 to the Addendum 

of the LOA application for detailed 

information of the potential exposures 

from explosive ordnance (per year) for 

marine mammals in the Cherry Point 

Range Complex. 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 Cherry Point Range Complex 

training activities. 

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 Exercise (MINEX)], 

amphibious warfare [Firing Exercise 

(FIREX)], and vessel movement to, from 

and within the Cherry Point Range 

Complex Study Area. The descriptions 

of MISSILEX and vessel movement 

contained in the proposed rule (74 FR 

11052; pages 11052–11053) have not 

changed. The Navy made subsequent 

modifications to the description of the 

MINEX and FIREX activities since the 

proposed rule was published. The 

purpose of the modifications is to 

improve clarity and readability. The 

change in description of the MINEX and 

FIREX activities has not affected the 

analyses originally presented in the 

proposed rule or contained in this final 

rule. Revised descriptions of MINEX 

and FIREX follow: 

Mine Warfare/Mine Exercises 

Mine Warfare (MIW) includes the 

strategic, operational, and tactical use of 

mines and mine countermeasures 

(MCM). MIW has two basic 

subdivisions: (a) Laying mines to 

degrade the enemy’s capabilities to 

wage land, air, and maritime warfare, 

and (b) countering enemy-laid mines to 


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permit friendly maneuver or use of 

selected land or sea areas (DoN, 2007d). 

MIW training events are of two types: 

MCM and mine neutralization. 

MCM operations train forces to detect, 

identify, classify, mark, avoid, and 

disable (or verify destruction of) 

underwater mines (bottom or moored) 

using a variety of methods including air, 

surface, sub-surface, and ground assets. 

Mine hunting techniques involve divers, 

specialized sonar, and unmanned 

underwater vehicles (UUVs) to locate 

and classify the mines and then destroy 

them using one of two methods: 

Mechanical (explosive cutters) or 

influence (matching the acoustic, 

magnetic, or pressure signature of the 

mine). The MCM systems currently used 

in Navy Cherry Point Study Area are 

deployed aboard the MH–53E 

helicopters. They include mine hunting 

sonar (AQS–24A), influence mine 

sweeping systems (MK–105) and 

mechanical mine sweeping systems 

(MK–103), none of which result in 

underwater detonations. 

Mine Neutralization Exercises 

(MINEX) involve the localization, 

identification, evaluation, rendering 

safe, and disposal of mines that 

constitute a threat to ships or personnel. 

This mission is currently done primarily 

by Explosive Ordnance Disposal (EOD) 

divers. They typically deploy from a 

ship or small boat to relocate and 

neutralize mines initially located by 

another source, such as an MCM or 

coastal minehunter MHC class ship or 

an MH–53 or MH–60 helicopter. The 

EOD divers set an explosive charge on 

a floating or underwater mine which 

they initiate remotely after clearing the 

area. The pressure and energy exerted in 

the water from the relatively smaller 

EOD explosive charge causes the mine 

to explode. These operations in the 

Navy Cherry Point Study Area involve 

neutralizing inert training mineshapes 

with charges of up to 20 lbs Net 

Explosive Weight (NEW). They will 

occur only during daylight hours in the 

locations described in Figure 1 of the 

LOA application. 

In addition to the current MIW 

systems, the Navy will begin training 

with new Organic Mine 

Countermeasures (OMCM) systems in 

the Navy Cherry Point Study Area as 

they are introduced into the fleet. The 

OMCM systems will operate from MH– 

60S helicopters, including mine hunting 

sonar (AQS–20); influence mine 

sweeping towed arrays (Organic 

Airborne and Surface Influence Sweep 

[OASIS]); mine hunting laser (Airborne 

Laser Mine Detection System [ALMDS]) 

that uses a light imaging detecting and 

ranging (LIDAR) to detect, localize, and 

classify near-surface moored/floating 

mines; and anti-mine ordnance systems 

(Rapid Airborne Mine Clearance System 

[RAMICS] and Airborne Mine 

Neutralization System [AMNS]). No 

OMCM training events will involve 

underwater detonations. 

Amphibious Warfare 

Amphibious Warfare (AMW) involves 

projecting military power ashore with 

U.S. Marine Corps (USMC) landing 

forces supported by naval firepower and 

logistics. AMW encompasses a broad 

spectrum of operations involving 

maneuver from the sea to objectives 

ashore, ranging from shore assaults, boat 

raids, ship-to-shore maneuver, shore 

bombardment and other naval fire 

support, and air strike and close air 

support. In the Navy Cherry Point Study 

Area, the Navy and Marine Corps 

conduct extensive AMW training, but 

the only events involving underwater 

detonation are Firing Exercises (FIREX). 

During a FIREX, surface ships use 

their main battery guns to fire from sea 

at land targets in support of military 

forces ashore. The east coast has very 

limited access to land ranges for shore 

bombardment. To compensate, Atlantic 

Fleet cruisers and destroyers can create 

virtual land masses on their fire control 

consoles. The ships fire at an array of 

buoys (Integrated Maritime Portable 

Acoustic Scoring and Simulation 

System [IMPASS]) that detect where the 

rounds landed, thereby allowing the 

ship to score the accuracy of its gunners. 

A FIREX (IMPASS) event in the Navy 

Cherry Point Study Area typically 

involves up to 70 rounds, 39 of which 

have high explosive warheads and the 

rest are inert, and occur only during 

daylight hours in the locations 

described in Figure 1 of the LOA 

application. 

TABLE 1—LEVELS OF TRAINING EVENTS INVOLVE EXPLOSIVES PLANNED IN THE CHERRY POINT RANGE COMPLEX PER

YEAR

Operation Platform System/ordnance Number of events Time of day Event duration 

MISSILEX (Air to Surface).AH–1W Helicopter ....... AGM–114 (Hellfire; 8-lb 

NEW 1 HE2 rounds 3).

6 sorties (6 HE missiles).Day or Night ................. 1 hour. 

TOW 4 Missile (all 

15.33 NEW HE 

rounds) 3.

8 sorties (8 missiles) .... 1 hour. 

MINEX ............................ EOD 5 ........................... 20 lb NEW charges ...... 20 events ..................... Day ............................... 8 hours. 

FIREX with IMPASS.6 CG, DDG 7 ................... 5′′ gun (IMPASS) ......... 2 events (78 HE 

rounds).

Day ............................... 12 hours. 

1 NEW: Net explosive weight. 

2 HE: High Explosive. 

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

4TOW: Tube-launched, Optically tracked, Wire-guided. 

5EOD: Explosive ordnance disposal. 

6 IMPASS: Integrated Maritime Portable Acoustic Scoring and Simulation System. 

7 CG: guided missile cruiser; DDG: guided missile destroyer. 

Cherry Point Range Complex 

The Cherry Point Range Complex 

proposed rule contains a description of 

the Cherry Point 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 Cherry Point 

Range Complex Study Area in the 

proposed rule has not changed. 


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

Sub-area* Ordnance Winter Spring Summer Fall Annual 

totals 

MISSILEX ............................................... ................ ................ ................ ................ 14 

16 & 17 ................................................... Hellfire ..................................................... 1.5 1.5 1.5 1.5 6 

16 & 17 ................................................... TOW ....................................................... 2 2 2 2 8 

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

13 & 14 ................................................... 5′′ rounds ................................................ .25 .25 .25 .25 1 

4 & 5 ....................................................... 5′′ rounds ................................................ .25 .25 .25 .25 1 

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

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

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

Description of Marine Mammals in the 

Area of the Specified Activities 

There are 33 cetacean species, 4 

pinniped species, and 1 sirenian species 

that have the potential or are confirmed 

to occur in the Cherry Point Range 

Complex (DoN, 2008). However, only 34 

of those species are expected to occur 

regularly in the OPAREA, as indicated 

in Table 3. The remaining species are 

considered extralimital in the Study 

Area, indicating there are one or more 

records of an animal’s presence in the 

Study Area, but it is considered beyond 

the normal range of the species. 

Extralimital species will not be analyzed 

further in this study. The Description of 

Marine Mammals in the Area of the 

Specified Activities section has not 

changed from what was in the proposed 

rule (74 FR 11052; pages 11054–11056). 

TABLE 3—MARINE MAMMAL SPECIES FOUND IN THE CHERRY POINT RANGE COMPLEX

Family and scientific name Common name Federal status 

Order Cetacea 

Suborder Mysticeti (baleen whales) 

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

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

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

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

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

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

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

Suborder Odontoceti (toothed whales) 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Order Carnivora 

Suborder Pinnipedia (seals, sea lions, walruses) 

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


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

Family and scientific name Common name Federal status 

Order Sirenia 

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

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 Cherry Point Range Complex); 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 74 FR 11052, pages 

11056–11062. 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. 

Additional analyses on potential 

impacts to marine mammals from vessel 

movement within the Cherry Point 

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 


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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 Cherry Point 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 

occur intermittently and are variable in 

duration, ranging from a few hours up 

to 2 weeks. These operations are widely 

dispersed throughout the Cherry Point 

Range Complex OPAREA, which is a 

vast area encompassing 18,617 square 

nautical miles (nm2) (an area 

approximately the size of West 

Virginia). The Navy logs about 950 total 

vessel days within the Study Area 

during a typical year. Consequently, the 

density of ships within the Study Area 

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

less than 0.005 ships/nm2). 

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. 

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 (74 FR 11052; pages 11060– 

11062). No changes to the modeling 

have been made except for those 

outlined in Potential Impacts to Marine 

Mammal Species section of this 

document. 

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 Cherry Point Range 

Complex training activities described in 

this rulemaking are considered military 

readiness activities. 

NMFS reviewed the Navy’s proposed 

Cherry Point Range Complex training 

activities and the proposed Cherry Point 

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: 

(1) Avoidance or minimization of 

injury or death of marine mammals 

wherever possible (goals b, c, and d may 

contribute to this goal). 

(2) 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). 

(3) 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). 

(4) 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). 

(5) 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. 

(6) 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 benefit of 

any particular measure to the marine 

mammals with the likely effect of that 

measure on personnel safety, 

practicality of implementation, and 

impact on the ‘‘military-readiness 

activity.’’ 

The Navy’s proposed mitigation 

measures were described in detail in the 

proposed rule (74 FR 11052, pages 

11066–11069). 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 added 

to clarify nighttime monitoring, which 

reads as: ‘‘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 detonations 

of explosives and firing exercises, and 

mitigation related to vessel traffic and 

the North Atlantic right whale were 

described in the proposed rule. No 


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changes have been made to the 

mitigation measures described in the 

proposed rule except the following. In response to a comment from the 

Marine Mammal Commission, NMFS 

will require the Navy to suspend its 

activities immediately 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), and report such incident to 

NMFS. 

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 

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. 

Monitoring Plan for the Cherry Point 

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 Cherry Point 

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 Cherry Point 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 Cherry Point 

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 1 

explosive event per year. If possible, the 

event surveyed will be one involving 

multiple detonations. 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) could 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 munitions 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 is required to 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) MMOs selected for aerial or vessel 

surveys 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. 


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(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 

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 the Cherry 

Point Range Complex has been designed 

as a collection of focused ‘‘studies’’ 

(described fully in the Cherry Point 

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 Cherry Point 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 Cherry Point 

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. Consequently, NMFS 

has determined that 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 Cherry Point 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 Cherry Point 

Range Complex, the Navy will complete 

the Integrated Comprehensive 

Monitoring Program (ICMP) Plan by the 

end of 2009. The ICMP is currently in 

development by the Navy, with Chief of 

Naval Operations Environmental 

Readiness Division (CNO–N45) having 

the lead. The program does not 

duplicate the monitoring plans for 

individual areas (e.g. AFAST, HRC, 

SOCAL, VACAPES); instead it is 

intended to provide the overarching 

coordination that will support 

compilation of data from both rangespecific monitoring plans as well as 

Navy funded research and development 

(R&D) studies. The ICMP will 

coordinate the monitoring programs’ 

progress towards meeting its goals and 

develop a data management plan. A 

program review board is also being 

considered to provide additional 

guidance. 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 Cherry 

Point Range Complex rule and the other 

Navy rules (e.g. VACAPES Range 

Complex, Jacksonville 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 


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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 Cherry Point 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 

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 Cherry Point 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. 

The following are some of the 

possible sources of applicable data: 

• Results from the Navy’s monitoring 

from the previous year (either from 

Cherry Point 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 Cherry Point 

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 suggests that such modifications 

would have (or do 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 explosive 

detonations 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 Cherry Point 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 Cherry 

Point 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 

MMOs collecting marine mammal data 

pursuant to the Cherry Point 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 Cherry Point 

Range Complex Exercise Report 

referenced below. 

The Cherry Point 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 Cherry Point Range Complex 

Exercise Report 

The Navy is in the process of 

improving the methods used to track 

explosives used 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. 


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Federal Register / Vol. 74, No. 113 / Monday, June 15, 2009 / Rules and Regulations 28379 

(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 Cherry 

Point Range Complex. 

(ii) Total annual expended/detonated 

rounds (missiles, bombs, etc.) for each 

explosive type. 

Cherry Point 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 Cherry Point Range Complex 

exercises for which annual reports are 

required (Annual Cherry Point Range 

Complex Exercise Reports and Cherry 

Point 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 March 16, 2009, NMFS published 

a proposed rule (74 FR 11052) in 

response to the Navy’s request to take 

marine mammals incidental to military 

readiness training in the Cherry Point 

Range Complex study area and 

requested comments, information and 

suggestions concerning the request. 

During the 28-day public comment 

period, NMFS received comments from 

the Marine Mammal Commission 

(Commission) and from the Natural 

Resources Defense Council (on behalf of 

Cetacean Society International, League 

for Coastal Protection, Ocean Futures 

Society, Jean-Michel Cousteau). The 

comments are summarized and sorted 

into general topic areas and are 

addressed below. 

MMPA Concerns 

Comment 1: Noting that NMFS 

initially provided a shorter than usual 

public comment period for the proposed 

rule for the Cherry Point Range Complex 

training activities, the Commission 

recommends that NMFS adopt a policy 

to provide a 60-day comment period for 

all proposed regulations issued under 

section 101(a)(5)(A), and in no case less 

than a 45-day comment period. The 

Commission argues that such a short 

comment period is impractical, 

unnecessary, or contrary to the public 

interest, as provided for under section 

553(b)(3)(B) of the Administrative 

Procedure Act (APA). The Commission 

also argues that it was unreasonable for 

NMFS to afford any less than 30 days, 

particularly since Congress requires a 

30-day public comment period for 

incidental harassment authorizations 

(IHA) under section 101(a)(5)(D) of the 

MMPA. 

Response: There is no prescribed 

minimum timeframe for public 

comment on proposed rules in the APA 

or section 101(a)(5)(A) of MMPA. NMFS 

routinely strives to ensure that the 

public is afforded at least a 30-day 

public comment period on all MMPA 

rules. However, circumstances may 

make a shorter comment period 

necessary and reasonable. 

As an initial matter, whenever NMFS 

develops proposed regulations under 

the MMPA, the agency is required to 

first publish a notice of receipt of a 

request for the implementation of 

regulations and LOAs governing the 

incidental taking. This process typically 

affords the public up to 30 days to 

comment on a requester’s application 

and provide NMFS with information 

and suggestions that will be considered 

in developing MMPA regulations. See 

50 CFR 216.104. On July 8, 2008, NMFS 

published its ‘‘Notice; receipt of 

application for a Letter of Authorization 

(LOA); request for comments and 

information’’ for the Cherry Point Range 

Complex and solicited input for 30 days 

(See 73 FR 38991). 

The public was also afforded 28 days 

to comment on the Cherry Point Range 

Complex proposed rule. NMFS 

originally provided the public with 21 

days because of: (1) The tight deadline 

of the training activities identified in the 

Navy’s schedule; and (2) the fact that 

NMFS anticipated even fewer effects to 

marine mammals as compared to similar 

activities to be conducted in the Navy’s 

Virginia Capes (VACAPES) and 

Jacksonville Range Complexes (JAX) 

(each of which contained a 30-day 

comment period). NMFS, at the request 

of the Commission, extended the public 

comment period by 7 days to allow 

additional time for comment (74 FR 

15419; April 6, 2009). During the public 

comment period, the Commission was 

the only entity that provided relevant 

comments on the Cherry Point Range 

Complex proposed rule. 

Next, the Commission’s reference to 

section 553(b)(3)(B) of the APA is 

misplaced. The provision to which the 

Commission cites applies where an 

agency, for good cause, dispenses with 

prior opportunity for notice and 

comment because it has found that to do 

so would be impracticable, unnecessary, 

or contrary to the public interest. As 

NMFS engaged in APA notice and 

comment rulemaking, the Commission 

cannot rely on this provision to support 

its position. 

Finally, NMFS recognizes that section 

101(a)(5)(D) of the MMPA prescribes a 

30-day public comment period on 

proposed IHAs. However, this statutory 

provision is inapplicable as NMFS 

invoked the rulemaking provision of the 

MMPA (Section 101(a)(5)(A)), a 

provision which contains no reference 

to a minimum timeframe for public 

comment. 

Based on the foregoing, NMFS 

concluded that the 28-day public 

comment period was reasonable. 

Comment 2: The Commission 

recommends that NMFS require the 

Navy to conduct an external peer review 

of its marine mammal density estimates, 

including the data upon which those 

estimates are based and the manner in 

which those data are collected and used. 

Response: As discussed in detail in 

the proposed rule (74 FR 11052; March 

16, 2009), marine mammal density 

estimates were based on the most recent 

data and information on the occurrence, 

distribution, and density of marine 

mammals. The updated density 

estimates presented in this assessment 

are derived from the Navy OPAREA 

Density Estimates (NODE) for the 

Southeast OPAREAs report (DoN, 2007). 

Density estimates for cetaceans were 

derived in one of three ways, in order 

of preference: (1) Through spatial 

models using line-transect survey data 

provided by the NMFS (as discussed 

below); (2) using abundance estimates 

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

based on the cetacean abundance 

estimates found in the NMFS stock 

assessment reports (SAR; Waring et al., 

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

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

species.htm. 

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 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 


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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 

density estimates, including the data 

upon which those estimates are based 

and the manner in which those are 

collected and used, has already gone 

through an independent review process. 

Comment 3: The Commission 

recommends that NMFS require the 

Navy to revise its explosive ordnance 

analysis to provide a more realistic 

assessment of potential occurrences and 

outcomes of explosions. The 

Commission states that the Navy 

analyzes the effects of infrequent 

explosive events by assuming that those 

events will be distributed evenly over 

four seasons, resulting in fractional 

quarterly totals. The Commission points 

out that these discrete events either 

occur or they do not; they cannot occur 

in fractions. For that reason, the 

Commission states that it does not 

believe that assessing the effect of a 0.25 

or 0.5 event per season provides a 

realistic range of likely outcomes 

because neither the events, nor the 

densities of marine mammals may be 

evenly distributed over those seasons. 

Response: NMFS agrees with the 

Commission that the Navy’s training 

activities, though infrequent, do not 

occur in fractions. However, since 

scheduling of these training events is 

determined by a number of factors, not 

the least of which includes weather 

conditions, current surge levels and 

international events, and requirements 

of the Fleet Response Training Plan, it 

is impossible to plan these discrete 

events for the future 5 years in advance. 

Therefore, NMFS believes that by 

assuming that these training activities 

are evenly distributed over four seasons 

brings a more realistic view in analyzing 

the impacts over the years. 

Monitoring 

Comment 4: The Commission 

recommends that NMFS require the 

Navy to complete its Integrated 

Comprehensive Monitoring Program 

plan and make the ICMP Plan available 

to the Commission and other interested 

parties for review prior to its 

implementation. 

Response: The Navy continues to 

develop the ICMP Plan and will 

distribute it to the Commission and 

other interested parties once it is 

finalized. However, NMFS does not 

believe it would be feasible to complete 

the ICMP Plan prior to the end of 2009 

if a public comment period were 

afforded. Nevertheless, components of 

the ICMP Plan have already been 

factored into a number of MMPA final 

rules for Navy actions, including the 

Cherry Point Range Complex, and the 

Navy is continuing to develop the ICMP 

in cooperation with NMFS. The 

components of the ICMP Plan that were 

considered and incorporated into the 

final rules include: 

• A requirement to monitor Navy 

training exercises, particularly those 

involving underwater detonations, for 

compliance with the terms and 

conditions of ESA Section 7 

consultations or MMPA authorizations; 

• A requirement to minimize 

exposure of protected species from 

sound pressure levels from underwater 

detonations that result in harassment; 

• A requirement to collect data to 

support estimating the number of 

individuals exposed to sound levels 

above current regulatory thresholds; 

• A requirement to assess the efficacy 

of the Navy’s current marine species 

mitigation; 

• A requirement to document trends 

in species distribution and abundance 

in Navy training areas through 

monitoring efforts; 

• A requirement to compile data that 

would improve the Navy and NMFS’ 

knowledge of the potential behavioral 

and physiological effects to marine 

species from underwater detonations. 

The ICMP Plan 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 

(lookout) data, as well as new 

information from other Navy programs 

(e.g., research and development), and 

newly published non-Navy information. 

The ICMP Plan is described in the 

Navy’s EIS and LOA application. 

Comment 5: The Commission 

recommends that NMFS require the 

Navy to develop and implement a plan 

to evaluate the effectiveness of 

monitoring and mitigation measures 

before beginning or in conjunction with 

operations covered by the proposed 

incidental take authorization. 

Response: NMFS has been working 

with the Navy throughout the 

rulemaking process to develop a series 

of mitigation, monitoring, and reporting 

protocols. These mitigation, monitoring 

and reporting measures include, but are 

not limited to: (1) The use of trained 

shipboard lookouts who will conduct 

marine mammal monitoring to avoid 

collisions with marine mammals; (2) the 

use of exclusion zones that avoid 

exposing marine mammals to levels of 

sound likely to result in injury or death 

of marine mammals; (3) several 

cautionary measures to minimize the 

likelihood of ship strikes of North 

Atlantic right whales in certain areas 

and times of the year; (4) the use of 

MMOs/lookouts to conduct aerial and 

vessel-based surveys; and (5) annual 

monitoring reports and comprehensive 

reports to provide insights of impacts to 

marine mammals. 

NMFS has evaluated the effectiveness 

of the measures and has concluded they 

will achieve the least practicable 

adverse impact on the affected marine 

mammal species or stocks and their 

habitat. For example, operations will be 

suspended if trained lookouts and/or 

MMOs detect marine mammals within 

the vicinity of the exercise, thereby 

preventing marine mammal injury or 

mortality (use of specified exclusion 

zones). In addition, prior to conducting 

training activities involving underwater 

explosive detonation, the Navy will be 

required to carry out monitoring to 

make sure that the safety zones are clear 

of marine mammals, and then during 

the exercise when feasible. These 

monitoring and mitigation measures 

will decrease the number of marine 

mammals exposed to underwater 

explosions and exposure to intense 

sounds from the detonations. 

Over the course of the 5-year rule, 

NMFS will evaluate the Navy’s training 

activities annually to validate the 

effectiveness of the measures. NMFS 

will, through the established adaptive 

management process, work with the 

Navy to determine whether additional 

mitigation and monitoring measures are 

necessary. In addition, with the 

implementation of the ICMP Plan by the 

end of 2009, and the planned 

Monitoring Workshop in 2011, NMFS 

will work with the Navy to further 

improve its monitoring and mitigation 

plans for its future activities. 

Comment 6: The Commission requests 

that NMFS reconcile the discrepancy 

between proposed §§ 218.24(e)(3)(i) and 

218.24(e)(3)(iii) on the use of marine 

mammal observers which require the 

Navy to specify the circumstances under 

which marine mammal observers would 

not be required aboard Navy platforms. 

Response: In the proposed rule 

§ 218.24(e)(3)(i) states ‘‘Marine mammal 

observers (MMOs) shall be placed on a 

Navy platform during the exercises’’ and 

the proposed rule § 218.24(e)(3)(iii) 

states ‘‘MMOs shall not be placed 


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aboard Navy platforms for every Navy 

training event or major exercise, but 

during specifically identified 

opportunities for data collection efforts. 

The events selected for MMO 

participation shall take into account 

safety, logistics, and operational 

concerns.’’ 

The language has been revised in 

§ 218.24(c)(3)(i) to read as follows: 

‘‘Marine mammal observers (MMOs) 

who are selected for aerial or vessel 

surveys shall be placed on a Navy 

platform during one of the explosives 

exercises’’ to make the statement clear. 

Regarding the Commission’s request 

to specify the circumstances under 

which marine mammal observers would 

not be required aboard Navy platforms, 

the Navy states that MMO deployment 

will be based on a number of factors, the 

first of which will be to support the data 

needs of the Cherry Point Monitoring 

Plan and ICMP. MMO efforts should be 

focused on monitoring the types of 

events, in the time and place, needed to 

support the overall goals of the Cherry 

point Monitoring Plan and ICMP. Next, 

MMOs will be deployed when safe to do 

so and if practicable. Many factors will 

contribute to a decision to place MMOs 

on Navy platforms, including logistics 

and MMO safety. MMOs will not be 

deployed on an exercise if it could 

result in a hazard to the MMO or 

exercise participants or an exercise 

where placing MMOs onboard Navy 

platforms would not be practicable. An 

example of an exercise which may not 

be practicable for MMO deployment 

would be Air to Surface MISSILEX 

where the Navy platform is a helicopter 

with no available space for an MMO. 

Comment 7: The Commission requests 

that NMFS describe, or require the Navy 

to describe, the alternative measures 

that the Navy would implement to 

monitor for the presence of marine 

mammals when marine mammal 

observers are not being used. 

Response: Regardless of whether 

MMOs are present, the shipboard 

lookouts would implement the 

mitigation measures identified in this 

rule. Shipboard lookouts are trained to 

detect objects in the water, which 

includes items ranging from ships, to 

periscopes, to marine life. Lookout 

training includes those measures listed 

in the Personal Training section of the 

mitigation measures. The specific 

measures used by lookouts to monitor 

for the presence of marine mammals are 

identified in the Navy’s Operating 

Procedures and Collision Avoidance 

measures, as well as those measures 

identified for specific at-sea training 

events in the Monitoring section of this 

document. 

Mitigation 

Comment 8: The Commission 

recommends that NMFS require the 

Navy to suspend an activity if a marine 

mammal is seriously injured or killed 

and the injury or death could be 

associated with the activity. 

Subsequently, the injury or death 

should be investigated to determine the 

cause, assess the full impact of the 

activity, and determine how the activity 

should be modified to avoid future 

injuries or deaths. 

Response: Though NMFS largely 

agrees with the Commission, it should 

be noted that without detailed 

examination by an expert, it is usually 

not feasible to determine the cause of 

injury or mortality when an injured or 

dead marine mammal is sighted in the 

field. Therefore, NMFS has required in 

its final rule that if there is clear 

evidence that 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 Naval activities shall be 

immediately suspended and the 

situation immediately reported by the 

participating unit to the Officer in 

Charge of the Exercise (OCE), who will 

follow Navy procedures for reporting 

the incident to NMFS through the 

Navy’s chain-of-command. 

For any other sighting of injured or 

dead marine mammals in the vicinity of 

any Navy training exercises utilizing 

underwater explosive detonations for 

which the cause of injury or mortality 

cannot be immediately determined, the 

Navy personnel will ensure that NMFS 

(regional stranding coordinator) is 

notified immediately (or as soon as 

operational security allows). 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). 

Comment 9: The Commission 

recommends that NMFS require the 

Navy to halt an activity if a marine 

mammal species other than those 

covered by the authorization is observed 

within the operating area. 

Response: The final rule for the 

proposed Cherry Point Range Complex 

training activities prohibits the take of 

marine mammals other than those 

covered by the authorization. 

Nevertheless, if a marine mammal is 

sighted in the operating area outside the 

zone of influence where it could be 

harassed, NMFS will not require the 

Navy to suspend an activity since no 

marine mammal would be taken. As 

explained in this rulemaking, NMFS 

does not believe species other than 

those authorized to be taken will occur 

in the proposed training area because 

they are extralimital and rare; thus, it is 

very unlikely the Navy will need to 

suspend activities for species not 

covered by these regulations and future 

LOAs. 

Miscellaneous Issues 

Comment 10: The Commission 

recommends that NMFS work with the 

Navy to develop a database for storing 

original records of Navy interactions 

with marine mammals. 

Response: The Navy is required to 

document all marine mammal sightings 

through aerial or vessel based survey by 

MMOs or Navy lookouts/watchstanders. 

Those records will be used to determine 

potential Navy interactions with marine 

mammals and to assess the impacts on 

marine mammals that may have resulted 

from the Navy’s training activities. 

Currently there is no plan to develop a 

database for storing original records of 

Navy interactions with marine 

mammals due to limited resources. 

Nevertheless, NMFS will consider the 

Commission’s recommendation when 

adequate resources are available to 

undertake such efforts. 

Comment 11: The NRDC commented 

on the proposed rule with its earlier 

comments on the NMFS’ 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 at the Cherry Point 

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). 

Estimated Take of Marine Mammals 

As mentioned previously, with 

respect to the MMPA, NMFS’ effects 

assessments serve three primary 

purposes: (1) To prescribe the 


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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 Cherry Point 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 (74 FR 11052; pages 11070–11071) 

and have not changed. 

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 (74 

FR 11052; pages 11070–11071). No 

changes have been made to the 

modeling methods in the section of the 

proposed rule. 

Exposure of marine mammals based 

on the Navy’s modeling shows that only 

two individuals of Atlantic spotted 

dolphins would be taken by Level B 

harassment due to the low levels of the 

proposed training activities. However, 

after further evaluation, NMFS 

concluded that because of the relatively 

high abundance of several species in the 

action area (Clymene dolphins, 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 behavioral harassment. 

Therefore, NMFS has included these 

species in our take estimates for the 5- 

year regulations. Revised estimates of 

potential takes from the proposed 

Cherry Point Range Complex training 

activities are listed in Table 4. 

TABLE 4—SUMMARY OF POTENTIAL TAKES FROM EXPLOSIVE ORDNANCE (PER YEAR) FOR MARINE MAMMALS IN THE

CHERRY POINT 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 ....................................................................................................................... 20 0 0 

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

Clymene dolphin .................................................................................................................................. 30 0 0 

Common dolphin .................................................................................................................................. 20 0 0 

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

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

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

Atlantic white-sided dolphin ................................................................................................................. 20 0 0 

Spinner dolphin .................................................................................................................................... 3 0 0 

Fraser’s dolphin ................................................................................................................................... 3 0 0 

Melon-headed whale ........................................................................................................................... 3 0 0 

Pygmy killer whale ............................................................................................................................... 3 0 0 

Killer whale .......................................................................................................................................... 3 0 0 

Effects on Marine Mammal Habitat 

NMFS’ Cherry Point Complex 

proposed rule included a section that 

addressed the effects of the Navy’s 

activities on marine mammal habitat (74 

FR 11052, page 11071). 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 Cherry Point 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 wellestablished 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 

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 


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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 200 hours explosive detonation 

events, with each event lasting for 1–12 

hours, are widely dispersed in the large 

Cherry Point study area over the seasons 

for each year. Most fish species 

experience a large number of natural 

mortalities, especially during early lifestages, and any small level of mortality 

caused by the Cherry Point 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 

Cherry Point 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 Cherry Point Range Complex. 

Analysis and Negligible Impact 

Determination 

Pursuant to NMFS’ regulations 

implementing the MMPA, an applicant 

is required to estimate the number of 

animals that will be ‘‘taken’’ by the 

specified activities (i.e., takes by 

harassment only, or takes by 

harassment, injury, and/or death). This 

estimate informs the analysis that NMFS 

must perform to determine whether the 

activity will have a ‘‘negligible impact’’ 

on the species or stock. Level B 

(behavioral) harassment occurs at the 

level of the individual(s) and does not 

assume any resulting population-level 

consequences, though there are known 

avenues through which behavioral 

disturbance of individuals can result in 

population-level effects. A negligible 

impact finding is based on the lack of 

likely adverse effects on annual rates of 

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

of Level B harassment takes alone, is not 

enough information on which to base an 

impact determination. 

In addition to considering estimates of 

the number of marine mammals that 

might be ‘‘taken’’ through behavioral 

harassment, NMFS must consider other 

factors, such as the likely nature of any 

responses (their intensity, duration, 

etc.), the context of any responses 

(critical reproductive time or location, 

migration, etc.), as well as 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 

Cherry Point Range Complex training 

activities. The events are generally short 

in duration, including a total of 14, 1- 

hour events and 14, 8–12-hour events. 

Taking the above into account, along 

with the fact that NMFS anticipates no 

mortalities and injuries to result from 

the action, the fact that there are no 

specific areas of reproductive 

importance for marine mammals 

recognized within the Cherry Point 

Range Complex study area, the sections 

discussed below, and dependent upon 

the implementation of the proposed 

mitigation measures, NMFS has 

determined that Navy training exercises 

utilizing underwater detonations will 

have a negligible impact on the affected 

marine mammal species and stocks 

present in the Cherry Point Range 

Complex Study Area. 

NMFS’ analysis of potential 

behavioral harassment, temporary 

threshold shifts, permanent threshold 

shifts, injury, and mortality to marine 

mammals as a result of the Cherry Point 

Range Complex training activities was 

provided in the proposed rule (74 FR 

11052, pages 11056–11066) and is 

described in more detail below. 

Behavioral Harassment 

The Navy plans a total of 14 

MISSILEX training events (each lasting 

for 1 hour), 20 MINEX training events 

(each lasting for 8 hours), and 2 FIREX 

training events (each lasting for 12 

hours) annually. The total training 

exercises proposed by the Navy in the 

Cherry Point Range Complex amount to 

under 200 hours per year. These 

detonation events are widely dispersed 

throughout several of the designated 

sites within the Cherry Point 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 Cherry Point 

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 314–1,091 

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 


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and exposure time, all studies show that 

TTS is reversible and animals’ 

sensitivity is expected to recover fully 

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 detonation are extremely 

brief and the majority of most animals’ 

vocalizations would not be masked. 

Therefore, masking effects from 

underwater detonation 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 no 

marine mammal would 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 

Cherry Point Range Complex Study 

Area. For underwater detonations, the 

animals have to be within pre-defined 

zones of influence (ZOI) to experience 

Level A harassment. The injury zones 

vary from 0.04 km2 to 0.185 km2 (or at 

distances between 113 m to 243 m from 

the center of detonation) depending on 

the types of munitions 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 pre-testing 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, 20 Atlantic spotted dolphins, 30 

bottlenose dolphins, 30 Clymene 

dolphins, 20 common dolphins, 20 

striped dolphins, 20 pantropical spotted 

dolphins, 30 Risso’s dolphins, 20 

Atlantic white-sided dolphins, 3 

spinner dolphins, 3 Fraser’s dolphins, 3 

melon-headed whales, 3 pygmy killer 

whales, and 3 killer whales could be 

affected by Level B harassment (TTS 

and sub-TTS) per year as a result of the 

proposed Cherry Point Range Complex 

training activities. These numbers 

represent approximately 0.09%, 0.76%, 

0.06%, 0.04%, 0.04%, 0.02%, 0.02%, 

0.45%, 0.15%, 0.03%, and 0.57% of 

minke whales, dwarf or pygmy sperm 

whales, pilot whales, Atlantic spotted 

dolphins, bottlenose dolphins, common 

dolphins, striped dolphins, pantropical 

spotted dolphins, Risso’s dolphins, 

Atlantic white-sided dolphins, and 

beaked whales, respectively in the 

vicinity of the proposed Cherry Point 

Range Complex Study Area (calculation 

based on NMFS 2007 U.S. Atlantic and 

Gulf of Mexico Marine Mammal Stock 

Assessment). Although the population 

estimates of Clymene dolphins, spinner 

dolphins, Fraser’s dolphins, melonheaded whales, pygmy killer whales, 

and killer whales are unknown in the 

proposed action area, NMFS considers 

the take of 30 individuals of Clymene 

dolphins and 3 individuals each of 

other 5 species by Level B harassment 

would have a negligible impact to these 

species because most of their 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). 

No Level A take or mortality is 

expected as a result of the proposed 

Cherry Point Range Complex training 

activities. 

Additionally, these aforementioned 

take estimates do not consider the 

implementation of mitigation measures. 

With the implementation of mitigation 

and monitoring measures, NMFS 

expects that the takes would be further 

reduced. 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 Cherry Point Range Complex 

training activities will have a negligible 

impact on the marine mammal species 

and stocks present in the Cherry Point 

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 

Navy training exercises in the Cherry 

Point Range Complex would not have 

an unmitigable adverse impact on the 

availability of the affected species or 

stocks for subsistence use, since there 

are no such uses in the specified area. 

ESA 

There are six marine mammal species, 

three sea turtle species, and a fish 

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: Humpback whale, North Atlantic 

right whale, blue whale, fin whale, sei 

whale, sperm whale, loggerhead sea 

turtle, leatherback sea turtle, the Kemp’s 

ridley sea turtle, and the shortnose 

sturgeon. 

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 Cherry Point 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 Cherry 

Point 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 Cherry 

Point 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 


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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 Cherry Point 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 

(CNO) 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 Cherry 

Point 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 inport 

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 de-conflicted, 

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 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, Transportation. 

Dated: June 5, 2009. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

■ For the 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 C is added to part 218 to 

read as follows: 

Subpart C—Taking Marine Mammals 

Incidental to U.S. Navy Training in the 

Cherry Point Range Complex 

Sec. 

218.20 Specified activity and specified 

geographical area and effective dates. 

218.21 Permissible methods of taking. 

218.22 Prohibitions. 

218.23 Mitigation. 

218.24 Requirements for monitoring and 

reporting. 

218.25 Applications for Letters of 

Authorization. 

218.26 Letters of Authorization. 

218.27 Renewal of Letters of Authorization 

and adaptive management. 

218.28 Modifications to Letters of 

Authorization. 

Subpart C—Taking Marine Mammals 

Incidental to U.S. Navy Training in the 

Cherry Point Range Complex 

§ 218.20 Specified activity and specified 

geographical 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 Cherry Point Range Complex 

Operation Area (OPAREA), which is 


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located along the southern east coast of 

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

authorization application. The 

coordinates of the Cherry Point Range 

Complex OPAREA are: 35°30′ N, 75°25′ 

W; 34°14′ N, 73°57′ W; 32°12′ N, 76°49′ 

W; 32°20′ N, 77°20′ W; 33°10′ N, 77°31′ 

W; and 34°23′30′′ N, 77°30′ W; then 

along the 3 nm from and parallel to the 

shoreline. 

(c) The taking of marine mammals by 

the Navy is only authorized if it occurs 

incidental to the following activities 

within the designated amounts of use: 

(1) The detonation of the underwater 

explosives indicated in paragraph 

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

of the training events indicated in 

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

(i) Underwater Explosives: 

(A) AGM–114 (Hellfire missile); 

(B) Tube-launched Optically tracked 

Wire-guided (TOW) missile; 

(C) Mine Neutralization (20 lb NEW 

charges); and 

(D) 5′′ Naval Gunfire. 

(ii) Training Exercises: 

(A) Mine Neutralization (20 lb NEW 

charges)—up to 100 exercises over the 

course of 5 years (an average of 20 per 

year); 

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

exercises over the course of 5 years (an 

average of 8 per year); 

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

over the course of 5 years (an average of 

8 per year); and 

(D) FIREX with IMPASS—up to 10 

exercises over the course of 5 years (an 

average of 2 per year). 

(2) [Reserved] 

(d) Regulations are effective [June 8, 

2009] and are applicable to the Navy on 

June 5, 2009 through June 4, 2014. 

§ 218.21 Permissible methods of taking. 

(a) Under Letters of Authorization 

issued pursuant to §§ 216.106 of this 

chapter and 218.26, the Holder of the 

Letter of Authorization may 

incidentally, but not intentionally, take 

marine mammals within the area 

described in § 218.20(b), provided the 

activity is in compliance with all terms, 

conditions, and requirements of this 

Subpart and the appropriate Letter of 

Authorization. 

(b) The activities identified in 

§ 218.20(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 § 218.20(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)— 

150 (an average of 30 annually); 

(iv) Atlantic spotted dolphin (S. 

frontalis)—100 (an average of 20 

annually); 

(v) Striped dolphin (S. 

coeruleoalba)—100 (an average of 20 

annually); 

(vi) Spinner dolphin (S. 

longirostris)—15 (an average of 3 

annually): 

(vii) Risso’s dolphin (Grampus 

griseus)—150 (an average of 30 

annually); 

(viii) Common dolphin (Delphinus 

delphis)—100 (an average of 20 

annually); 

(ix) Atlantic white-sided dolphin 

(Lagenorhynchus acutus)—100 (an 

average of 20 annually); 

(x) Pilot whales (Globicephala sp.)— 

100 (an average of 20 annually); 

(xi) Dwarf or pygmy sperm whales 

(Kogia sp.)—15 (an average of 3 

annually); 

(xii) Beaked whales—100 (an average 

of 20 annually); 

(xiii) Fraser’s dolphin (Lagenodelphis 

hosei)—15 (an average of 3 annually); 

(xiv) Melon-headed whale 

(Peponocephala electra)—15 (an 

average of 3 annually); 

(xv) Pygmy killer whale (Feresa 

attenuate)—15 (an average of 3 

annually); 

(xvi) Killer whale (Orcinus orca)—15 

(an average of 3 annually); 

(xvii) Minke whales (Balaenoptera 

acutorostrata)—15 (an average of 3 

annually). 

(2) [Reserved] 

§ 218.22 Prohibitions. 

Notwithstanding takings 

contemplated in § 218.21 and 

authorized by a Letter of Authorization 

issued under §§ 216.106 of this chapter 

and 218.26, no person in connection 

with the activities described in § 218.20 

may: 

(a) Take any marine mammal not 

specified in § 218.21(c); 

(b) Take any marine mammal 

specified in § 218.21(c) other than by 

incidental take as specified in 

§ 218.21(b)(1) and (2); 

(c) Take a marine mammal specified 

in § 218.21(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 218.26. 

§ 218.23 Mitigation. 

(a) When conducting training 

activities identified in § 218.20(c), the 

mitigation measures contained in the 

Letters of Authorization issued under 

§§ 216.106 of this chapter and 218.26 

must be implemented. These mitigation 

measures include, but are not limited to: 

(1) General Maritime Measures: 

(i) Personnel Training—Lookouts: 

(A) All bridge personnel, 

Commanding Officers, Executive 

Officers, officers standing watch on the 

bridge, maritime patrol aircraft aircrews, 

and Mine Warfare (MIW) helicopter 

crews shall complete 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 


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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 and 

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-yd (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 training activities or within 

24 hours after completion of training 

activities. 

(ii) The Navy shall follow internal 

chain of command reporting procedures 

as promulgated through Navy 

instructions and orders. 

(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 Cherry Point 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 (at a speed that does 

not compromise safety of navigation) 

consistent with mission and safety 

during the months indicated below and 

within a 37 km (20 NM) arc (except as 

noted) of the specified associated 

reference points: 

(1) South and East of Block Island (37 

km (20 NM) seaward of line between 

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

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

Sept-Oct and Mar-Apr. 

(2) New York/New Jersey (40–30.64° 

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

and Feb-Apr. 

(3) Delaware Bay (Philadelphia) (38– 

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

Dec and Feb–Mar. 

(4) Chesapeake Bay (Hampton Roads 

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

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

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

076–40.20° W. long.): Dec-Apr. 

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

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

079–48.72° W. long.): Oct-Apr. 

(B) During the months indicated in 

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

Navy vessels shall practice increased 

vigilance with respect to avoidance of 

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

from any mid-Atlantic ports not 

specifically identified in paragraph 

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

(C) All surface units transiting within 

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

watchstanders are posted, including at 

least one lookout who has completed 

required MSAT training. 

(D) Navy vessels shall not knowingly 

approach any whale head on and shall 

maneuver to keep at least 457 m (1,500 

ft) away from any observed whale, 

consistent with vessel safety. 

(ii) Southeast Atlantic, Offshore of the 

Eastern United States—for the purposes 

of the measures below (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 (AAOC), ships shall contact 

Fleet Area Control and Surveillance 

Facility, Jacksonville, to obtain latest 

whale sighting and other information 

needed to make informed decisions 


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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. 

(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. 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 of 

the whale were taken. Navy personnel 

are encouraged to take photos of the 

whale 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 

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 killed as a result of the 

proposed Navy training activities (e.g., 

instances in which it is clear that 

munitions explosions caused the death), 

the Navy shall suspend its activities 

immediately and report the 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 4/5 and 13/14, as specified in the 

Navy’s LOA application, in the Cherry 

Point Range Complex. 

(B) Pre-exercise monitoring of the 

target area shall be conducted with ‘‘Big 

Eyes’’ prior to the event, during 

deployment of the IMPASS sonobuoy 

array, and during return to the firing 

position. Ships shall maintain lookouts 

dedicated to visually searching for 

marine mammals 180° along the ship 

track line and 360° at each buoy dropoff location. 

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

used to monitor a 600-yd (548-m) buffer 

zone for marine mammals during navalgunfire events. 

(D) Ships shall not fire on the target 

if any marine mammals are detected 

within or approaching the 600-yd (548- 

m) buffer zone. If marine mammals are 

present, operations must be suspended. 

Visual observation shall occur for 

approximately 45 min, or until the 

animal has been observed to have 

cleared the area and is heading away 

from the buffer zone. At such time as 

animals have cleared the area and are 

heading away from the buffer zone, the 

Navy may begin or resume operations. 

(E) Post-exercise monitoring of the 

entire target area shall take place with 

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


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retrieval of the IMPASS sonobuoy array 

following each firing exercise. 

(F) The naval gunfire shall take place 

during daylight hours only. 

(G) FIREX with IMPASS shall only be 

used in Beaufort Sea State three (3) or 

less. 

(H) The visibility must be such that 

the fall of shot is visible from the firing 

ship during the exercise. 

(I) No firing shall occur if marine 

mammals are detected within 70 yd (64 

m) of the vessel. 

(ii) Air-to-Surface Missile Exercises 

(Explosive): 

(A) 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 

W–15 of the Cherry Point 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 operationally feasible. 

(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. 

§ 218.24 Requirements for monitoring and 

reporting. 

(a) The Holder of the Letter of 

Authorization issued pursuant to 

§ 216.106 of this chapter and § 218.26 

for activities described in § 218.20(c) is 

required to cooperate with the NMFS 

when monitoring the impacts of the 

activity on marine mammals. 

(b) The Holder of the Authorization 

must notify NMFS immediately (or as 

soon as clearance procedures allow) if 

the specified activity identified in 

§ 218.20(c) is thought to have resulted in 

the mortality or serious injury of any 

marine mammals, or in any take of 

marine mammals not identified in 

§ 218.21(c). 

(c) The Navy must conduct all 

monitoring and required reporting 

under the Letter of Authorization, 

including abiding by the Cherry Point 

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 1 

explosive event per year. If possible, the 

event surveyed shall be one involving 

multiple detonations. One of the vessel 

or aerial surveys should involve 

professionally trained marine mammal 

observers (MMOs). If it is impossible to 

conduct the required surveys due to 

lack of training exercises, the missed 

annual survey requirement shall roll 

into the subsequent year to ensure that 

the appropriate number of surveys (i.e., 

total of five) occurs over the 5-year 

period of effectiveness of this subject. 

(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 

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 munitions 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 should 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 § 218.24(c)(1), 

MMOs who are selected for aerial or 

vessel surveys 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 


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28390 Federal Register / Vol. 74, No. 113 / Monday, June 15, 2009 / Rules and Regulations 

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 should be the same 

as those collected by Navy lookout/ 

watchstanders described in 

§ 218.24(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 Cherry Point 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 Cherry Point 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 Cherry Point Range 

Complex Monitoring Plan. Data 

collection methods shall 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 Cherry 

Point Range Complex Monitoring Plan 

shall, at a minimum, provide the same 

marine mammal observation data 

required in the data required in 

§ 218.24(g). The Cherry Point Range 

Complex Monitoring Plan Report may 

be provided to NMFS within a larger 

report that includes the required 

Monitoring Plan Reports from Cherry 

Point Range Complex and multiple 

range complexes. 

(g) Annual Cherry Point 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. 

(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 Cherry 

Point Range Complex. 

(2) Total annual expended/detonated 

rounds (missiles, bombs, etc.) for each 

explosive type. 

(h) Cherry Point 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 Cherry Point Range 

Complex exercises for which annual 

reports are required (Annual Cherry 

Point Range Complex Exercise Reports 

and Cherry Point 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. 

(i) The Navy shall respond to NMFS 

comments and requests for additional 

information or clarification on the 

Cherry Point Range Complex 

Comprehensive Report, the Annual 

Cherry Point Range Complex Exercise 

Report, or the Annual Cherry Point 

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. 

§ 218.25 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 § 218.20(a) (the U.S. Navy) 

must apply for and obtain either an 

initial Letter of Authorization in 

accordance with § 218.26 or a renewal 

under § 218.27. 

§ 218.26 Letters of Authorization. 

(a) A Letter of Authorization, unless 

suspended or revoked, will be valid for 

a period of time not to exceed the period 

of validity of this subpart, but must be 

renewed annually subject to annual 

renewal conditions in § 218.27. 

(b) Each Letter of Authorization will 

set forth: 

(1) Permissible methods of incidental 

taking; 

(2) Means of effecting the least 

practicable adverse impact on the 

species, its habitat, and on the 

availability of the species for 

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

(3) Requirements for mitigation, 

monitoring and reporting. 

(c) Issuance and renewal of the Letter 

of Authorization will be based on a 

determination that the total number of 

marine mammals taken by the activity 

as a whole will have no more than a 

negligible impact on the affected species 

or stock of marine mammal(s). 


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§ 218.27 Renewal of Letters of 

Authorization and Adaptive Management. 

(a) A Letter of Authorization issued 

under § 216.106 and § 218.26 of this 

chapter for the activity identified in 

§ 218.20(c) will be renewed annually 

upon: 

(1) Notification to NMFS that the 

activity described in the application 

submitted under § 218.25 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 § 218.24; and 

(3) A determination by the NMFS that 

the mitigation, monitoring and reporting 

measures required under § 218.23 and 

the Letter of Authorization issued under 

§§ 216.106 and 218.26 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 218.27 of this chapter 

indicates that a substantial modification 

to the described work, mitigation or 

monitoring undertaken during the 

upcoming season will occur, the NMFS 

will provide the public a period of 30 

days for review and comment on the 

request. Review and comment on 

renewals of Letters of Authorization are 

restricted to: 

(1) New cited information and data 

indicating that the determinations made 

in this document are in need of 

reconsideration, and 

(2) Proposed changes to the mitigation 

and monitoring requirements contained 

in these regulations or in the current 

Letter of Authorization. 

(c) A notice of issuance or denial of 

a renewal of a Letter of Authorization 

will be published in the Federal 

Register. 

(d) NMFS, in response to new 

information and in consultation with 

the Navy, may modify the mitigation or 

monitoring measures in subsequent 

LOAs if doing so creates a reasonable 

likelihood of more effectively 

accomplishing the goals of mitigation 

and monitoring set forth in the preamble 

of these regulations. Below are some of 

the possible sources of new data that 

could contribute to the decision to 

modify the mitigation or monitoring 

measures: 

(1) Results from the Navy’s 

monitoring from the previous year 

(either from Cherry Point Study Area or 

other locations). 

(2) Findings of the Monitoring 

Workshop that the Navy will convene in 

2011 (§ 218.24(j)). 

(3) Compiled results of Navy funded 

research and development (R&D) studies 

(presented pursuant to the ICMP 

(§ 218.24(d)). 

(4) Results from specific stranding 

investigations (either from the Cherry 

Point Range Complex Study Area or 

other locations). 

(5) Results from 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. 

§ 218.28 Modifications to Letters of 

Authorization. 

(a) Except as provided in paragraph 

(b) of this section, no substantive 

modification (including withdrawal or 

suspension) to the Letter of 

Authorization by NMFS, issued 

pursuant to §§ 216.106 and 218.26 and 

subject to the provisions of this subpart 

shall be made until after notification 

and an opportunity for public comment 

has been provided. For purposes of this 

paragraph, a renewal of a Letter of 

Authorization under § 218.27, without 

modification (except for the period of 

validity), is not considered a substantive 

modification. 

(b) If the Assistant Administrator 

determines that an emergency exists 

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

mammals specified in § 218.20(b), a 

Letter of Authorization issued pursuant 

to §§ 216.106 and 218.26 may be 

substantively modified without prior 

notification and an opportunity for 

public comment. Notification will be 

published in the Federal Register 

within 30 days subsequent to the action. 

[FR Doc. E9–13696 Filed 6–8–09; 4:15 pm] 

BILLING CODE 3510–22–P 


pwalker on PROD1PC71 with RULES2