[Federal Register Volume 74, Number 113 (Monday, June 15, 2009)]
[Rules and Regulations]
[Pages 28370-28391]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-13696]


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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

[[Page 28371]]

Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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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

[[Page 28372]]

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-   6 sorties (6 HE        Day or Night.........  1 hour.
                                                              lb NEW \1\ HE \2\       missiles).
                                                              rounds \3\).
                                                             TOW \4\ Missile (all    8 sorties (8                                  1 hour.
                                                              15.33 NEW HE rounds)    missiles).
                                                              \3\.
MINEX..............................  EOD \5\...............  20 lb NEW charges.....  20 events............  Day..................  8 hours.
FIREX with IMPASS.\6\                CG, DDG \7\...........  5<gr-thn-eq> gun        2 events (78 HE        Day..................  12 hours.
                                                              (IMPASS).               rounds).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ NEW: Net explosive weight.
\2\ HE: High Explosive.
\3\ Uses stationary or towed surface targets; 1 missile/sortie.
\4\ TOW: Tube-launched, Optically tracked, Wire-guided.
\5\ EOD: 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.

[[Page 28373]]



          Table 2--Number of Events Utilizing Explosive Munitions Within the Cherry Point Range Complex
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                                                                                                         Annual
             Sub-area*                     Ordnance          Winter     Spring     Summer      Fall      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<gr-thn-eq> rounds..        .25        .25        .25        .25          1
4 & 5.............................  5<gr-thn-eq> rounds..        .25        .25        .25        .25          1
                                    MINEX................  .........  .........  .........  .........         20
UNDET.............................  20 LB................          5          5          5          5         20
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* 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      Endangered.
                                   right whale.
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         ..................
------------------------------------------------------------------------

[[Page 28374]]

 
Order Sirenia...........................................................
------------------------------------------------------------------------
Trichechus manatus..............  West Indian         Endangered.
                                   manatee.
------------------------------------------------------------------------

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, na[iuml]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

[[Page 28375]]

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 (nm\2\) (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/nm\2\).
    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

[[Page 28376]]

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:
    <bullet> Location of sighting;
    <bullet> Species (if not possible, indicate whale, dolphin or 
pinniped);
    <bullet> Number of individuals;
    <bullet> Whether calves were observed;
    <bullet> Initial detection sensor;
    <bullet> Length of time observers maintained visual contact with 
marine mammal;
    <bullet> Wave height;
    <bullet> Visibility;
    <bullet> Whether sighting was before, during, or after detonations/
exercise, and how many minutes before or after;
    <bullet> Distance of marine mammal from actual detonations (or 
target spot if not yet detonated);
    <bullet> 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;
    <bullet> Resulting mitigation implementation--Indicate whether 
explosive detonations were delayed, ceased, modified, or not modified 
due to marine mammal presence and for how long; and
    <bullet> 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.

[[Page 28377]]

    (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 range-specific 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:
    <bullet> Monitor and assess the effects of Navy activities on 
protected species;
    <bullet> Ensure that data collected at multiple locations is 
collected in a manner that allows comparison between and among 
different geographic locations;
    <bullet> Assess the efficacy and practicality of the monitoring and 
mitigation techniques;
    <bullet> 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

[[Page 28378]]

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:
    <bullet> 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.
    <bullet> Guidelines for prioritizing monitoring projects
    <bullet> 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:
    <bullet> Results from the Navy's monitoring from the previous year 
(either from Cherry Point Range Complex or other locations).
    <bullet> 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.
    <bullet> Compiled results of Navy funded research and development 
(R&D) studies (presented pursuant to the ICMP, which is discussed 
elsewhere in this document).
    <bullet> Results from specific stranding investigations (either 
from Cherry Point Range Complex or other locations).
    <bullet> Results from general marine mammal and sound research 
(funded by the Navy or otherwise).
    <bullet> 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.

[[Page 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

[[Page 28380]]

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:
    <bullet> 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;
    <bullet> A requirement to minimize exposure of protected species 
from sound pressure levels from underwater detonations that result in 
harassment;
    <bullet> A requirement to collect data to support estimating the 
number of individuals exposed to sound levels above current regulatory 
thresholds;
    <bullet> A requirement to assess the efficacy of the Navy's current 
marine species mitigation;
    <bullet> A requirement to document trends in species distribution 
and abundance in Navy training areas through monitoring efforts;
    <bullet> 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 Sec. Sec.  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 Sec.  218.24(e)(3)(i) states 
``Marine mammal observers (MMOs) shall be placed on a Navy platform 
during the exercises'' and the proposed rule Sec.  218.24(e)(3)(iii) 
states ``MMOs shall not be placed

[[Page 28381]]

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 Sec.  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

[[Page 28382]]

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
------------------------------------------------------------------------
                                    Level B       Level A
            Species               harassment    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 well-established thresholds for estimating 
effects to fish from explosives other than mortality models. Fish that 
are located in the water column, in proximity to the source of 
detonation could be injured, killed, or disturbed by the impulsive 
sound and could leave the area temporarily. Continental Shelf Inc. 
(2004) summarized a few studies 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

[[Page 28383]]

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 life-stages, 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., population-level 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 microPa\2\-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:
    <bullet> Frequency--Available data (of mid-frequency 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).
    <bullet> 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 
microPa\2\-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).
    <bullet> 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.
    <bullet> Although the degree of TTS depends on the received noise 
levels

[[Page 28384]]

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 km\2\ to 0.185 km\2\ (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, 
melon-headed 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

[[Page 28385]]

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.

0
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

0
1. The authority citation for part 218 continues to read as follows:

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

0
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


Sec.  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

[[Page 28386]]

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[deg]30' N, 75[deg]25' W; 
34[deg]14' N, 73[deg]57' W; 32[deg]12' N, 76[deg]49' W; 32[deg]20' N, 
77[deg]20' W; 33[deg]10' N, 77[deg]31' W; and 34[deg]23'30'' N, 
77[deg]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) (Air-to-Surface; Hellfire 
missile)--up to 40 exercises over the course of 5 years (an average of 
8 per year);
    (C) Missile Exercise (MISSILEX) (Air-to-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.


Sec.  218.21  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec. Sec.  
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 Sec.  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 Sec.  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 Sec.  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]


Sec.  218.22  Prohibitions.

    Notwithstanding takings contemplated in Sec.  218.21 and authorized 
by a Letter of Authorization issued under Sec. Sec.  216.106 of this 
chapter and 218.26, no person in connection with the activities 
described in Sec.  218.20 may:
    (a) Take any marine mammal not specified in Sec.  218.21(c);
    (b) Take any marine mammal specified in Sec.  218.21(c) other than 
by incidental take as specified in Sec.  218.21(b)(1) and (2);
    (c) Take a marine mammal specified in Sec.  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 
Sec. Sec.  216.106 of this chapter and 218.26.


Sec.  218.23  Mitigation.

    (a) When conducting training activities identified in Sec.  
218.20(c), the mitigation measures contained in the Letters of 
Authorization issued under Sec. Sec.  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 on-the-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 five-degree 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

[[Page 28387]]

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[deg] N. lat. 071-51.15[deg] W. long. and 41-18.58[deg] 
N. lat. 070-50.23[deg] W. long): Sept-Oct and Mar-Apr.
    (2) New York/New Jersey (40-30.64[deg] N. lat. 073-57.76[deg] W. 
long.): Sep-Oct and Feb-Apr.
    (3) Delaware Bay (Philadelphia) (38-52.13[deg] N. lat. 075-
1.93[deg] W. long.): Oct-Dec and Feb-Mar.
    (4) Chesapeake Bay (Hampton Roads and Baltimore) (37-1.11[deg] N. 
lat. 075-57.56[deg] W. long.): Nov-Dec and Feb-Apr.
    (5) North Carolina (34-41.54[deg] N. lat. 076-40.20[deg] W. long.): 
Dec-Apr.
    (6) South Carolina (33-11.84[deg] N. lat. 079-8.99[deg] W. long. 
and 32-43.39[deg] N. lat. 079-48.72[deg] 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 mid-Atlantic 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 mid-Atlantic 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[deg] N. lat. to 30-15[deg] N. 
lat. extending from the coast out to 28 km (15 NM), and the area from 
28-00[deg] N. lat. to 30-15[deg] 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

[[Page 28388]]

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[deg] N. 
lat., 69-05[deg] W. long.; 41-45[deg] N. lat, 69-45[deg] W. long; 42-
10[deg] N. lat., 68-31[deg] W. long.; 41-38[deg] N. lat., 68-13[deg] W. 
long. The Cape Cod Bay critical habitat is defined by the following 
coordinates: 42-04.8[deg] N. lat., 70-10[deg] W. long.; 42-12[deg] N. 
lat., 70-15[deg] W. long.; 42-12[deg] N. lat., 70-30[deg] W. long.; 41-
46.8[deg] N. lat., 70-30[deg] 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[deg] along the ship track line and 360[deg] at each buoy drop-off 
location.
    (C) ``Big Eyes'' on the ship shall be used to monitor a 600-yd 
(548-m) buffer zone for marine mammals during naval-gunfire 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

[[Page 28389]]

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.


Sec.  218.24  Requirements for monitoring and reporting.

    (a) The Holder of the Letter of Authorization issued pursuant to 
Sec.  216.106 of this chapter and Sec.  218.26 for activities described 
in Sec.  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 Sec.  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 Sec.  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 Sec.  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

[[Page 28390]]

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 Sec.  
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 Sec.  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.


Sec.  218.25  Applications for Letters of Authorization.

    To incidentally take marine mammals pursuant to these regulations, 
the U.S. citizen (as defined by Sec.  216.103 of this chapter) 
conducting the activity identified in Sec.  218.20(a) (the U.S. Navy) 
must apply for and obtain either an initial Letter of Authorization in 
accordance with Sec.  218.26 or a renewal under Sec.  218.27.


Sec.  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 Sec.  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).

[[Page 28391]]

Sec.  218.27  Renewal of Letters of Authorization and Adaptive 
Management.

    (a) A Letter of Authorization issued under Sec.  216.106 and Sec.  
218.26 of this chapter for the activity identified in Sec.  218.20(c) 
will be renewed annually upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec.  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 Sec.  
218.24; and
    (3) A determination by the NMFS that the mitigation, monitoring and 
reporting measures required under Sec.  218.23 and the Letter of 
Authorization issued under Sec. Sec.  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 Sec. Sec.  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 (Sec.  218.24(j)).
    (3) Compiled results of Navy funded research and development (R&D) 
studies (presented pursuant to the ICMP (Sec.  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.


Sec.  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 Sec. Sec.  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 Sec.  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 well-being of the species 
or stocks of marine mammals specified in Sec.  218.20(b), a Letter of 
Authorization issued pursuant to Sec. Sec.  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