28328 Federal Register / Vol. 74, No. 113 / Monday, June 15, 2009 / Rules and Regulations 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 218 

RIN 0648–AW78 

Taking and Importing Marine 

Mammals; U.S. Navy Training in the 

Virginia Capes Range Complex 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS, upon application from 

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

regulations to govern the unintentional 

taking of marine mammals incidental to 

activities conducted at the Virginia 

Capes (VACAPES) 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 Friday, 

December 12, 2008 (73 FR 75631). 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 NDAA (Pub. L. 108–136) 

removed the ‘‘small numbers’’ and 

‘‘specified geographical region’’ 

limitations and amended the definition 

of ‘‘harassment’’ as it applies to a 

‘‘military readiness activity’’ to read as 

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

(i) Any act that injures or has the 

significant potential to injure a marine 

mammal or marine mammal stock in the wild 

[Level A Harassment]; or 

(ii) Any act that disturbs or is likely to 

disturb a marine mammal or marine mammal 

stock in the wild by causing disruption of 

natural behavioral patterns, including, but 

not limited to, migration, surfacing, nursing, 

breeding, feeding, or sheltering, to a point 

where such behavioral patterns are 

abandoned or significantly altered [Level B 

Harassment]. 

Summary of Request 

On March 17, 2008, NMFS received 

an application from the Navy requesting 

authorization for the take of 13 cetacean 

species incidental to the proposed 

training activities in the VACAPES 

Range Complex over the course of 5 

years. These training activities are 

classified as military readiness 

activities. The Navy states that these 

training activities may cause various 

impacts to marine mammal species in 

the proposed VACAPES Range Complex 

area. The Navy requests an 

authorization to take individuals of 

these cetacean species by Level B 

Harassment. Further, the Navy requests 

authorization to take 1 individual 

Atlantic spotted, 20 common, 1 

pantropical spotted, and 3 striped 

dolphins per year by injury, and 1 

individual common dolphin per year by 

mortality, as a result of the proposed 

training activities in the VACAPES 

Range Complex. Please refer to Table 29 

of the LOA application for detailed 

information of the potential exposures 

from explosive ordnance (per year) for 

marine mammals in the VACAPES 

Range Complex. However, due to the 

proposed mitigation and monitoring 

measures, NMFS does not expect that 

the proposed action would result in any 

marine mammal mortality. Therefore, 

no mortality would be authorized for 

the Navy’s VACAPES Range Complex 

training activities. 

Background of Navy Request 

The proposed rule contains a 

description of the Navy’s mission, their 

responsibilities pursuant to Title 10 of 

the United States Code, and the specific 

purpose and need for the activities for 

which they requested incidental take 

authorization. The description 

contained in the proposed rule has not 

changed (73 FR 75631; December 12, 

2008). 

Description of the Specified Activities 

The proposed rule contains a 

complete description of the Navy’s 

specified activities that are covered by 

these final regulations, and for which 

the associated incidental take of marine 

mammals will be authorized in the 

related LOAs. The proposed rule 

describes the nature and number of the 

training activities. These training 

activities consist of surface warfare 

[Missile Exercise (MISSILEX) and Highspeed Anti-Radiation Missile Exercise 

(HARMEX)], mine warfare [Mine 

Exercises (MINEX)], amphibious warfare 


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[Firing Exercise (FIREX)], strike warfare 

[Bombing Exercise (BOMBEX)], and 

vessel movement to, from and within 

the VACAPES Range Complex Study 

Area. The narrative description of the 

action contained in the proposed rule 

has not changed. Table 1 summarizes 

the nature and levels of these planned 

activities. 

TABLE 1—LEVELS OF TRAINING EVENTS INVOLVE EXPLOSIVES PLANNED IN THE VACAPES RANGE COMPLEX PER YEAR

Operation Platform System/ordnance Number of events Duration per event 

Missile Exercise 

(MISSILEX) (Air to Surface).

MH–60S, HH–60H ............ AGM–114 (Hellfire missile) 60 sorties (60 missiles) ..... 1 hour. 

F/A–18, P–3C, and P–8A AGM–65 E/F (Maverick 

missile).

20 sorties (20 missiles) ..... 1 hour. 

Bombing Exercise 

(BOMBEX) (Air-to-Surface, At-Sea).

F/A–18 ............................... MK–83/GBU–32 [1,000 lb 

High Explosive (HE) 

bomb].

5 events (20 bombs, 4 

bombs/event).

1 hour. 

Mine Neutralization ........... MH–60S ............................ AMNS ................................ 140 sorties (30 rounds) ..... 1.5 hours. 

EOD .................................. 20 lb charges .................... 24 events .......................... 6–8 hours. 

FIREX with IMPASS ......... CG, DDG ........................... 5′′ gun (IMPASS) .............. 22 events (858 HE rounds, 

39 HE per event)).

8 hours. 

VACAPES Range Complex 

The VACAPES Range Complex 

proposed rule contains a description of 

the VACAPES 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 VACAPES Range 

Complex Study Area in the proposed 

rule has not changed. 

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

Sub-area Ordnance Winter Spring Summer Fall Annual 

totals 

MISSILEX ............................................... ................ ................ ................ ................ 80 

Air-K ........................................................ Hellfire ..................................................... 11.25 11.25 11.25 11.25 ................

W–72A (2) .............................................. Hellfire ..................................................... 3.75 3.75 3.75 3.75 ................

Air-K ........................................................ Maverick ................................................. 5 5 5 5 ................

FIREX ..................................................... ................ ................ ................ ................ 22 

5C/D ........................................................ 5′′ rounds ................................................ 1.83 1.83 1.83 1.83 ................

7C/D and 8C/D ....................................... 5′′ rounds ................................................ 1.83 1.83 1.83 1.83 ................

1C1/2 ...................................................... 5′′ rounds ................................................ 1.83 1.83 1.83 1.83 ................

MINEX .................................................... ................ ................ ................ ................ 54 

W–50 UNDET ......................................... 5 LB* ....................................................... 7.50 7.50 7.50 7.50 ................

W–50 UNDET ......................................... 20 LB ...................................................... 4.00 4.00 12.00 4.00 ................

BOMBEX ................................................ ................ ................ ................ ................ 5 

Air-K ........................................................ MK–83** .................................................. 1.25 1.25 1.25 1.25 ................

* The use of 3.24 lb charges during AMNS training were conservatively modeled as 5 lb charges. 

** One event using the MK–83 bombs consists of 4 bombs being dropped in succession. For example, in VACAPES Air-K there are 5 MK–83 

events, which mean that a total of 20 bombs will be dropped per year. 

Description of Marine Mammals in the 

Area of the Specified Activities 

There are 34 marine mammal species 

with possible or confirmed occurrence 

in the VACAPES Range Complex. As 

indicated in Table 3, there are 33 

cetacean species (7 mysticetes and 26 

odontocetes) and one pinniped species. 

Table 6 also includes the federal status 

of these marine mammal species. Six 

marine mammal species listed as 

federally endangered under the 

Endangered Species Act (ESA) occur in 

the VACAPES Range Complex: the 

humpback whale, North Atlantic right 

whale, sei whale, fin whale, blue whale, 

and sperm whale. Although it is 

possible that any of the 34 species of 

marine mammals may occur in the 

VACAPES Range Complex, only 24 of 

those species are expected to occur 

regularly in the region. The proposed 

rule also includes a discussion of the 

methods used to estimate marine 

mammal density in the VACAPES Study 

Area. The Description of Marine 

Mammals in the Area of the Specified 

Activities section has not changed from 

what was in the proposed rule (73 FR 

75631, pages 75635–75636). 

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

Family and scientific name Common name Federal status 

Order Cetacea 

Suborder Mysticeti (baleen whales) 

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

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

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


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

Family and scientific name Common name Federal status 

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. 

Lagenorhynchus acutus ..................................... Atlantic white-sided 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 

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

Suborder Sirenia 

Trichechus manatus ........................................... West Indian 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 VACAPES study area); and (4) to 

prescribe requirements pertaining to 

monitoring and reporting. 

In the Potential Impacts to Marine 

Mammal Species section of the 

proposed rule, NMFS included a 

qualitative discussion of the different 

ways that underwater explosive 

detonations from MISSILEX, BOMBEX, 

MINEX, and FIREX may potentially 

affect marine mammals (some of which 

NMFS would not classify as 

harassment). See 73 FR 75631; 

December 12, 2008; pages 75636–75646. 

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 

MISSILEX, BOMBEX, MINEX, and 

FIREX from the proposed rule has not 

changed. 

The information pertaining to 

HARMEX has changed from the 

Proposed Rule. Further analyses show 

that HARMEX would have no effects on 

marine mammals because these types of 

missiles detonate 30–60 ft (9.1–18.3 m) 

above the water surface. Therefore, they 

are not included in the underwater 

explosive exposure modeling in the 

Final Rule since no marine mammal 

exposures are anticipated. 

Later, in the Estimated Take of Marine 

Mammals Section, NMFS relates and 

quantifies the potential effects to marine 

mammals from underwater detonation 

of explosives discussed here to the 

MMPA definitions of Level A and Level 

B Harassment. NMFS has also 

considered the effects of mortality on 


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these species, although mortality is 

neither expected, nor will it be 

authorized. 

Additional analyses on potential 

impacts to marine mammals from vessel 

movement within the VACAPES Range 

Complex Study Area are added below. 

Vessel Movement 

There are limited data concerning 

marine mammal behavioral responses to 

vessel traffic and vessel noise, and a 

lack of consensus among scientists with 

respect to what these responses mean or 

whether they result in short-term or 

long-term adverse effects. In those cases 

where there is a busy shipping lane or 

where there is large amount of vessel 

traffic, marine mammals may 

experience acoustic masking 

(Hildebrand, 2005) if they are present in 

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

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

2008). In cases where vessels actively 

approach marine mammals (e.g., whale 

watching or dolphin watching boats), 

scientists have documented that animals 

exhibit altered behavior such as 

increased swimming speed, erratic 

movement, and active avoidance 

behavior (Bursk, 1983; Acevedo, 1991; 

Baker and MacGibbon, 1991; Trites and 

Bain, 2000; Williams et al., 2002; 

Constantine et al., 2003), reduced blow 

interval (Ritcher et al., 2003), disruption 

of normal social behaviors (Lusseau, 

2003; 2006), and the shift of behavioral 

activities which may increase energetic 

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

detailed review of marine mammal 

reactions to ships and boats is available 

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

the marine mammals taxonomy groups, 

Richardson et al. (1995) provided the 

following assessment regarding cetacean 

reactions to vessel traffic: 

Toothed whales: ‘‘In summary, 

toothed whales sometimes show no 

avoidance reaction to vessels, or even 

approach them. However, avoidance can 

occur, especially in response to vessels 

of types used to chase or hunt the 

animals. This may cause temporary 

displacement, but we know of no clear 

evidence that toothed whales have 

abandoned significant parts of their 

range because of vessel traffic.’’ 

Baleen whales: ‘‘When baleen whales 

receive low-level sounds from distant or 

stationary vessels, the sounds often 

seem to be ignored. Some whales 

approach the sources of these sounds. 

When vessels approach whales slowly 

and nonaggressively, whales often 

exhibit slow and inconspicuous 

avoidance maneuvers. In response to 

strong or rapidly changing vessel noise, 

baleen whales often interrupt their 

normal behavior and swim rapidly 

away. Avoidance is especially strong 

when a boat heads directly toward the 

whale.’’ 

It is important to recognize that 

behavioral responses to stimuli are 

complex and influenced to varying 

degrees by a number of factors such as 

species, behavioral contexts, 

geographical regions, source 

characteristics (moving or stationary, 

speed, direction, etc.), prior experience 

of the animal, and physical status of the 

animal. For example, studies have 

shown that beluga whales reacted 

differently when exposed to vessel noise 

and traffic. In some cases, naı ̈ve beluga 

whales exhibited rapid swimming from 

ice-breaking vessels up to 80 km away, 

and showed changes in surfacing, 

breathing, diving, and group 

composition in the Canadian high 

Arctic where vessel traffic is rare (Finley 

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

whales were more tolerant of vessels, 

but differentially responsive by 

reducing their calling rates, to certain 

vessels and operating characteristics 

(especially older animals) in the St. 

Lawrence River where vessel traffic is 

common (Blane and Jaakson, 1994). In 

Bristol Bay, Alaska, beluga whales 

continued to feed when surrounded by 

fishing vessels and resisted dispersal 

even when purposefully harassed (Fish 

and Vania, 1971). 

In reviewing more than 25 years of 

whale observation data, Watkins (1986) 

concluded that whale reactions to vessel 

traffic were ‘‘modified by their previous 

experience and current activity: 

habituation often occurred rapidly, 

attention to other stimuli or 

preoccupation with other activities 

sometimes overcame their interest or 

wariness of stimuli.’’ Watkins noticed 

that over the years of exposure to ships 

in the Cape Cod area, minke whales 

(Balaenoptera acutorostrata) changed 

from frequent positive (such as 

approaching vessels) interest to 

generally uninterested reactions; finback 

whales (B. physalus) changed from 

mostly negative (such as avoidance) to 

uninterested reactions; right whales 

(Eubalaena glacialis) apparently 

continued the same variety of responses 

(negative, uninterested, and positive 

responses) with little change; and 

humpbacks (Megaptera novaeangliae) 

dramatically changed from mixed 

responses that were often negative to 

often strongly positive reactions. 

Watkins (1986) summarized that 

‘‘whales near shore, even in regions 

with low vessel traffic, generally have 

become less wary of boats and their 

noises, and they have appeared to be 

less easily disturbed than previously. In 

particular locations with intense 

shipping and repeated approaches by 

boats (such as the whale-watching areas 

of Stellwagen Bank), more and more 

whales had P [positive] reactions to 

familiar vessels, and they also 

occasionally approached other boats 

and yachts in the same ways.’’ 

In the case of the VACAPES 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 VACAPES 

Range Complex OPAREA, which is a 

vast area encompassing 27,661 square 

nautical miles (nm2) (an area 

approximately the size of Indiana). The 

Navy logs about 1,400 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 0.0004 

ships/nm2). 

Moreover, naval vessels transiting the 

study area or engaging in the training 

exercises will not actively or 

intentionally approach a marine 

mammal or change speed drastically. 

Except under certain mitigation 

measures that protect right whales and 

other marine mammals from vessel 

strike, all vessels transit to, from, and 

within the range complexes will be 

traveling at speeds generally ranging 

from 10 to 14 knots. 

The final rule contains additional 

mitigation measures requiring Navy 

vessels to keep at least 500 yards (460 

m) away from any observed whale and 

at least 200 yards (183 m) from marine 

mammals other than whales, and avoid 

approaching animals head-on. Although 

the radiated sound from the vessels will 

be audible to marine mammals over a 

large distance, it is unlikely that animals 

will respond behaviorally to low-level 

distant shipping noise as the animals in 

the area are likely to be habituated to 

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

light of these facts, NMFS does not 

expect the Navy’s vessel movements to 

result in Level B harassment. 

Mitigation 

In order to issue an incidental take 

authorization (ITA) under Section 

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

prescribe regulations setting forth the 


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‘‘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 VACAPES Range 

Complex training activities described in 

the proposed rule are considered 

military readiness activities. 

NMFS reviewed the Navy’s proposed 

VACAPES Range Complex training 

activities and the proposed VACAPES 

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 (73 FR 75631, pages 

75646–75649). The Navy’s measures 

address personnel training, lookout and 

watchstander responsibilities, 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. No changes have 

been made to the mitigation measures 

described in the proposed rule except as 

noted below. 

Regarding nighttime monitoring in the 

Personnel Training Lookouts section (73 

FR 25631, page 25647), slight wording 

changes have been made for Bullet 6 to 

read: ‘‘At night, to increase 

effectiveness, lookouts would not 

continuously sweep the horizon with 

their eyes. Instead, lookouts would scan 

the horizon in a series of movements 

that would allow their eyes to come to 

periodic rests as they scan the sector. 

When visually searching at night, they 

would look a little to one side and out 

of the corners of their eyes, paying 

attention to the things on the outer 

edges of their field of vision. Lookouts 

will also have night vision devices 

available for use.’’ 

For mitigation measures under FIREX 

(73 FR 25631, page 25648), corrections 

were made to reduce the buffer zone 

from 640 yards (585 m) to 600 yards 

(548 m). Therefore, Bullets 3 and 4 of 

the FIREX mitigation measure read as: 

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

monitor a 600 yd (548 m) buffer zone around 

the target area for marine mammals during 

naval-gunfire events. Due to the distance 

between the firing position and the buffer 

zone, lookouts are only expected to visually 

detect breaching whales, whale blows, and 

large pods of dolphins and porpoises. 

4. Ships will not fire on the target if marine 

mammals are detected within or approaching 

the 600 yd (548 m) buffer zone. If marine 

mammals are present, operations would be 

suspended. Visual observation will occur for 

approximately 45 minutes, or until the 

animal has been observed to have cleared the 

area and is heading away from the buffer 

zone. 

For mitigation measures under 

MINEX (73 FR 25631, page 25649), 

corrections were made to increase the 

buffer zone from 656 yards (600 m) to 

700 yards (640 m). Therefore, Bullet 2 

of the MINEX mitigation measure reads 

as: 

2. Observers will 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 will be 

conducted at the detonation location 30 

minutes prior through 30 minutes post 

detonation. Aerial survey support will be 

utilized whenever assets are available. 

The buffer zones for FIREX and 

MINEX activities were incorrectly 

noticed in the proposed rule for the 

VACAPES Range Complex. NMFS has 

consulted with the Navy and the Navy 

has stated that the buffer zones should 

be corrected to ensure consistency for 

all Navy FIREX and MINEX activities 

across multiple range complexes. The 

buffer zones identified in this final rule 

are consistent with those established in 

the Southern California Range Complex 

final rule (74 FR 2882; January 21, 

2009). NMFS does not believe that a 

decrease in the FIREX buffer zone of 40 

yards would affect, in any significant 

way, the Navy’s ability to detect marine 

mammals or provide adequate 

protection to marine mammals that may 

be in the vicinity of a FIREX activity. 

Moreover, an increase in the MINEX 

buffer zone will further minimize any 

adverse effects that marine mammals 

could experience as a result of the 

MINEX activity. 

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), the Navy shall suspend its 

activities immediately and report such 

incident to NMFS. 

In addition, regarding the North 

Atlantic right whale (NARW) vessel 

collision measures, NMFS expanded the 

final rule to include vessel collision 

avoidance measures for the South 

Atlantic and the Northeast Atlantic to be 

consistent with the U.S. Navy’s Atlantic 

Fleet Active Sonar Training (AFAST) 

rule. Although the VACAPES Range 

Complex is outside the South Atlantic 


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and the Northeast Atlantic region, the 

Navy is required to comply with the 

same ship collision measures while 

transiting and conducting exercises 

within specific NARW areas along the 

East Coast. The specific vessel collision 

measures in the Northeast Atlantic 

region are listed in the regulatory text of 

the final rule. 

NMFS has determined that these 

mitigation measures (which include a 

suite of measures that specifically 

address vessel transit and the NARW) 

are adequate means of effecting the least 

practicable adverse impacts on marine 

mammal species or stocks and their 

habitat while also considering personnel 

safety, practicality of implementation, 

and impact on the effectiveness of the 

military readiness activity. 

Monitoring 

In order to issue an ITA for an 

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

MMPA states that NMFS must set forth 

‘‘requirements pertaining to the 

monitoring and reporting of such 

taking.’’ The MMPA implementing 

regulations at 50 CFR 216.104 (a)(13) 

indicate that requests for LOAs must 

include the suggested means of 

accomplishing the necessary monitoring 

and reporting that will result in 

increased knowledge of the species and 

of the level of taking or impacts on 

populations of marine mammals that are 

expected to be present. 

Monitoring measures prescribed by 

NMFS should accomplish one or more 

of the following general goals: 

(1) An increase in the probability of 

detecting marine mammals, both within 

the safety zone (thus allowing for more 

effective implementation of the 

mitigation) and in general to generate 

more data to contribute to the effects 

analyses. 

(2) An increase in our understanding 

of how many marine mammals are 

likely to be exposed to levels of 

underwater detonations or other stimuli 

that we associate with specific adverse 

effects, such as behavioral harassment, 

temporary threshold shift of hearing 

sensitivity (TTS), or permanent 

threshold shift of hearing sensitivity 

(PTS). 

(3) An increase in our understanding 

of how marine mammals respond 

(behaviorally or physiologically) to 

underwater detonations or other stimuli 

expected to result in take and how 

anticipated adverse effects on 

individuals (in different ways and to 

varying degrees) may impact the 

population, species, or stock 

(specifically through effects on annual 

rates of recruitment or survival). 

(4) An increased knowledge of the 

affected species. 

(5) An increase in our understanding 

of the effectiveness of certain mitigation 

and monitoring measures. 

(6) A better understanding and record 

of the manner in which the authorized 

entity complies with the incidental take 

authorization. 

Proposed Monitoring Plan for the 

VACAPES 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 VACAPES 

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 VACAPES 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 VACAPES Range 

Complex are described below. These 

methods include a combination of 

individual elements that are designed to 

allow a comprehensive assessment. 

I. Vessel or Aerial Surveys 

(A) The Holder of this Authorization 

shall visually survey a minimum of 2 

explosive events per year, one of which 

shall be a multiple detonation event. 

One of the vessel or aerial surveys 

should involve professionally trained 

marine mammal observers (MMOs). 

(B) If operationally feasible, for 

specified training events, aerial or vessel 

surveys shall be used 1–2 days prior to, 

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

post detonation. 

(C) Surveys shall include any 

specified exclusion zone around a 

particular detonation point plus 2,000 

yards beyond the border of the 

exclusion zone (i.e., the circumference 

of the area from the border of the 

exclusion zone extending 2,000 yards 

outwards). For vessel based surveys a 

passive acoustic system (hydrophone or 

towed array) could be used to determine 

if marine mammals are in the area 

before and/or after a detonation event. 

(D) When conducting a particular 

survey, the survey team shall collect: 

• Location of sighting; 

• Species (if not possible, indicate 

whale, dolphin or pinniped); 

• Number of individuals; 

• Whether calves were observed; 

• Initial detection sensor; 

• Length of time observers 

maintained visual contact with marine 

mammal; 

• Wave height; 

• Visibility; 

• Whether sighting was before, 

during, or after detonations/exercise, 

and how many minutes before or after; 

• Distance of marine mammal from 

actual detonations (or target spot if not 

yet detonated); 

• Observed behavior—Watchstanders 

will report, in plain language and 

without trying to categorize in any way, 

the observed behavior of the animal(s) 

(such as animal closing to bow ride, 

paralleling course/speed, floating on 

surface and not swimming etc.), 

including speed and direction; 

• Resulting mitigation 

implementation—Indicate whether 

explosive detonations were delayed, 

ceased, modified, or not modified due to 

marine mammal presence and for how 

long; and 

• If observation occurs while 

explosives are detonating in the water, 

indicate munition type in use at time of 

marine mammal detection (e.g., were 

the 5-inch guns actually firing when the 

animals were sighted? Did animals enter 

an area 2 minutes after a huge explosion 

went off?). 

II. Passive Acoustic Monitoring 

The Navy 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) Marine mammal observers 

(MMOs) selected for aerial or vessel 

survey shall be placed on a Navy 

platform during one of the exercises 

being monitored per year. The 

remaining designated exercise(s) shall 

be monitored by the Navy lookouts/ 

watchstanders. 


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(B) The MMO must possess expertise 

in species identification of regional 

marine mammal species and experience 

collecting behavioral data. 

(C) MMOs shall not be placed aboard 

Navy platforms for every Navy training 

event or major exercise, but during 

specifically identified opportunities 

deemed appropriate for data collection 

efforts. The events selected for MMO 

participation shall take into account 

safety, logistics, and operational 

concerns. 

(D) MMOs shall observe from the 

same height above water as the 

lookouts. 

(E) The MMOs shall not be part of the 

Navy’s formal reporting chain of 

command during their data collection 

efforts; Navy lookouts shall continue to 

serve as the primary reporting means 

within the Navy chain of command for 

marine mammal sightings. The only 

exception is that if an animal is 

observed within the shutdown zone that 

has not been observed by the lookout, 

the MMO shall inform the lookout of the 

sighting, and the lookout shall take the 

appropriate action through the chain of 

command. 

(F) The MMOs shall collect species 

identification, behavior, direction of 

travel relative to the Navy platform, and 

distance first observed. All MMO 

sightings shall be conducted according 

to a standard operating procedure. 

Information collected by MMOs should 

be the same as those collected by Navy 

lookout/watchstanders described above. 

The Monitoring Plan for VACAPES 

Range Complex has been designed as a 

collection of focused ‘‘studies’’ 

(described fully in the VACAPES 

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 VACAPES 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 VACAPES Range 

Complex proposed rule included an 

adaptive management component and 

both NMFS and the Navy believe that a 

workshop would provide a means for 

Navy and NMFS to consider input from 

participants in determining whether 

(and if so, how) to modify monitoring 

techniques to more effectively 

accomplish the goals of monitoring set 

forth earlier in the document. NMFS 

and the Navy believe that this workshop 

concept is valuable in relation to all of 

the Range Complexes and major training 

exercise rules and LOAs that NMFS is 

working on with the Navy at this time, 

and consequently this single Monitoring 

Workshop will be included as a 

component of all of the rules and LOAs 

that NMFS will be processing for the 

Navy in the next year or so. 

The Navy, with guidance and support 

from NMFS, will convene a Monitoring 

Workshop, including marine mammal 

and acoustic experts as well as other 

interested parties, in 2011. The 

Monitoring Workshop participants will 

review the monitoring results from the 

previous two years of monitoring 

pursuant to the VACAPES Range 

Complex rule as well as monitoring 

results from other Navy rules and LOAs 

(e.g., 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 VACAPES 

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); 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 

program’s progress towards meeting its 

goals and developing a data 

management plan. A program review 

board is also being considered to 

provide additional guidance. The ICMP 

will be evaluated annually to provide a 

matrix for progress and goals for the 

following year, and will make 

recommendations on adaptive 

management for refinement and analysis 

of the monitoring methods. 

The primary objectives of the ICMP 

are to: 

• Monitor and assess the effects of 

Navy activities on protected species; 

• Ensure that data collected at 

multiple locations is collected in a 

manner that allows comparison between 

and among different geographic 

locations; 

• Assess the efficacy and practicality 

of the monitoring and mitigation 

techniques; 

• Add to the overall knowledge-base 

of marine species and the effects of 

Navy activities on marine species. 

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

planning tool to focus Navy monitoring 

priorities (pursuant to ESA/MMPA 

requirements) across Navy Range 

Complexes and Exercises; and (2) an 

adaptive management tool, through the 

consolidation and analysis of the Navy’s 

monitoring and watchstander data, as 

well as new information from other 

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

appropriate newly published 

information. 

In combination with the 2011 

Monitoring Workshop and the adaptive 

management component of the 

VACAPES Range Complex rule and the 

other planned Navy rules (e.g. 

Jacksonville Range Complex, Cherry 

Point Range Complex, etc.), the ICMP 

could potentially provide a framework 

for restructuring the monitoring plans 

and allocating monitoring effort based 

on the value of particular specific 

monitoring proposals (in terms of the 

degree to which results would likely 

contribute to stated monitoring goals, as 

well as the likely technical success of 

the monitoring based on a review of past 

monitoring results) that have been 

developed through the ICMP 

framework, instead of allocating based 

on maintaining an equal (or 

commensurate to effects) distribution of 

monitoring effort across range 

complexes. For example, if careful 

prioritization and planning through the 


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ICMP (which would include a review of 

both past monitoring results and current 

scientific developments) were to show 

that a large, intense monitoring effort in 

Hawaii would likely provide extensive, 

robust and much-needed data that could 

be used to understand the effects of 

sonar throughout different geographical 

areas, it may be appropriate to have 

other range complexes dedicate money, 

resources, or staff to the specific 

monitoring proposal identified as ‘‘high 

priority’’ by the Navy and NMFS, in lieu 

of focusing on smaller, lower priority 

projects divided throughout their home 

range complexes. 

The ICMP will identify: 

• A means by which NMFS and the 

Navy would jointly consider prior years’ 

monitoring results and advancing 

science to determine if modifications 

are needed in mitigation or monitoring 

measures to better effect the goals laid 

out in the Mitigation and Monitoring 

sections of the VACAPES Range 

Complex rule. 

• Guidelines for prioritizing 

monitoring projects 

• If, as a result of the workshop and 

similar to the example described in the 

paragraph above, the Navy and NMFS 

decide it is appropriate to restructure 

the monitoring plans for multiple ranges 

such that they are no longer evenly 

allocated (by rule), but rather focused on 

priority monitoring projects that are not 

necessarily tied to the geographic area 

addressed in the rule, the ICMP will be 

modified to include a very clear and 

unclassified record-keeping system that 

will allow NMFS and the public to see 

how each range complex/project is 

contributing to all of the ongoing 

monitoring programs (resources, effort, 

money, etc.). 

Adaptive Management 

The final regulations governing the 

take of marine mammals incidental to 

Navy’s VACAPES Range Complex 

exercises contain an adaptive 

management component. The use of 

adaptive management will give NMFS 

the ability to consider new data from 

different sources to determine (in 

coordination with the Navy) on an 

annual basis if mitigation or monitoring 

measures should be modified or added 

(or deleted) if new data suggests that 

such modifications are appropriate (or 

are not appropriate) for subsequent 

annual LOAs. 

The following are some of the 

possible sources of applicable data: 

• Results from the Navy’s monitoring 

from the previous year (either from 

VACAPES Range Complex or other 

locations) 

• Findings of the Workshop that the 

Navy will convene in 2011 to analyze 

monitoring results to date, review 

current science, and recommend 

modifications, as appropriate to the 

monitoring protocols to increase 

monitoring effectiveness. 

• Compiled results of Navy funded 

research and development (R&D) studies 

(presented pursuant to the ICMP, which 

is discussed elsewhere in this 

document) 

• Results from specific stranding 

investigations (either from VACAPES 

Range Complex or other locations) 

• Results from general marine 

mammal and sound research (funded by 

the Navy or otherwise) 

• Any information which reveals that 

marine mammals may have been taken 

in a manner, extent or number not 

authorized by these regulations or 

subsequent Letters of Authorization 

Mitigation measures could be 

modified or added (or deleted) if new 

data suggests that such modifications 

would have (or do not have) a 

reasonable likelihood of accomplishing 

the goals of mitigation laid out in this 

final rule and if the measures are 

practicable. NMFS would also 

coordinate with the Navy to modify or 

add to (or delete) the existing 

monitoring requirements if the new data 

suggest that the addition of (or deletion 

of) a particular measure would more 

effectively accomplish the goals of 

monitoring laid out in this final rule. 

The reporting requirements associated 

with this rule are designed to provide 

NMFS with monitoring data from the 

previous year to allow NMFS to 

consider the data and issue annual 

LOAs. NMFS and the Navy will meet 

annually, prior to LOA issuance, to 

discuss the monitoring reports, Navy 

R&D developments, and current science 

and whether mitigation or monitoring 

modifications are appropriate. 

Reporting 

In order to issue an ITA for an 

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

MMPA states that NMFS must set forth 

‘‘requirements pertaining to the 

monitoring and reporting of such 

taking’’. Effective reporting is critical to 

ensure compliance with the terms and 

conditions of a LOA, and to provide 

NMFS and the Navy with data of the 

highest quality based on the required 

monitoring. As NMFS noted in its 

proposed rule, additional detail has 

been added to the reporting 

requirements since they were outlined 

in the proposed rule. The updated 

reporting requirements are all included 

below. A subset of the information 

provided in the monitoring reports may 

be classified and not releasable to the 

public. 

NMFS will work with the Navy to 

develop tables that allow for efficient 

submission of the information required 

below. 

General Notification of Injured or Dead 

Marine Mammals 

Navy personnel will ensure that 

NMFS (regional stranding coordinator) 

is notified immediately (or as soon as 

operational security allows) if an 

injured or dead marine mammal is 

found during or shortly after, and in the 

vicinity of, any Navy training exercise 

utilizing underwater explosive 

detonations or other activities. The 

Navy will provide NMFS with species 

or description of the animal(s), the 

condition of the animal(s) (including 

carcass condition if the animal is dead), 

location, time of first discovery, 

observed behaviors (if alive), and photo 

or video (if available). 

Annual VACAPES 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 

VACAPES Range Complex Monitoring 

Plan, described above. Data collection 

methods will be standardized across 

range complexes to allow for 

comparison in different geographic 

locations. Although additional 

information will also be gathered, the 

marine mammal observers (MMOs) 

collecting marine mammal data 

pursuant to the VACAPES Range 

Complex Monitoring Plan shall, at a 

minimum, provide the same marine 

mammal observation data required in 

the major range complex training 

exercises section of the Annual 

VACAPES Range Complex Exercise 

Report referenced below. 

The VACAPES 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 VACAPES Range Complex 

Exercise Report 

The Navy is in the process of 

improving the methods used to track 

explosives used to provide increased 

granularity. The Navy will provide the 

information described below for all of 

their explosive exercises. Until the Navy 

is able to report in full the information 

below, they will provide an annual 

update on the Navy’s explosive tracking 

methods, including improvements from 

the previous year. 


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(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 VACAPES 

Range Complex. 

(ii) Total annual expended/detonated 

rounds (missiles, bombs, etc.) for each 

explosive type. 

VACAPES 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 VACAPES Range Complex exercises 

for which annual reports are required 

(Annual VACAPES Range Complex 

Exercise Reports and VACAPES Range 

Complex Monitoring Plan Reports). This 

report will be submitted at the end of 

the fourth year of the rule (May 2013), 

covering activities that have occurred 

through December 1, 2012. 

Comments and Responses 

On December 12, 2008, NMFS 

published a proposed rule (73 FR 

75631) in response to the Navy’s request 

to take marine mammals incidental to 

military readiness training in the 

VACAPES Range Complex study area 

and requested comments, information 

and suggestions concerning the request. 

During the 30-day public comment 

period, NMFS received comments from 

1 private citizen, comments from the 

Marine Mammal Commission 

(Commission), comments from the 

Commonwealth of Virginia Department 

of Environmental Quality (Virginia 

DEQ, including the Department of Game 

and Inland Fisheries (VDGIF) and the 

Department of Conservation and 

Recreation), comments from the 

International Fund for Animal Welfare, 

and comments from the Natural 

Resources Defense Council (on behalf of 

itself, The Humane Society of the 

United States, Whale and Dolphin 

Conservation Society, Cetacean Society 

International, Ocean Futures Society, 

Jean-Michel Cousteau). The comments 

are summarized and sorted into general 

topic areas and are addressed below. 

Full copies of the comment letters may 

be accessed at http:// 

www.regulations.gov. 

MMPA Concerns 

Comment 1: The Commission and 

IFAW point out that there are 

differences between the Navy’s and 

NMFS’ estimates of maximum annual 

takes for the proposed exercises in the 

VACAPES range complex and that these 

differences should be reconciled. 

Response: NMFS does not believe 

there are differences between the Navy’s 

and NMFS’ estimates of maximum 

annual takes for the VACAPES Range 

Complex training exercises. The 

perceived differences the Commission 

raised may be the differences between 

the Navy’s initial LOA application and 

its subsequent addendum. The Navy 

states that further analyses on the 

impacts from the proposed action and 

the reduction of BOMBEX exercises are 

the reason for the change of take 

estimates. Specifically, the Navy states 

that ‘‘HARM missile explodes no less 

than 30 ft above the water, it is assumed 

the amount of acoustic energy entering 

the water would be negligible, so 

exposures from that weapon should be 

removed from the MISSILEX totals. 

Secondly, the size of the BOMBEX 

location was reduced to avoid important 

fishing areas, the North Atlantic Right 

Whale migratory corridor, and the 

Norfolk Canyon area which lowered 

potential exposures for certain species.’’ 

The amendment is posted on NMFS 

incident take Web site at http:// 

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

incidental.htm. 

Comment 2: The Commission 

recommends that NMFS include in its 

authorization the number of lethal takes 

and takes by Level A harassment 

requested by the Navy and regularly 

confer with the Navy to monitor the 

actual number of such takes to ensure 

that they do not exceed the authorized 

number. 

Response: NMFS agrees with the 

Commission. NMFS has, through this 

final rule, included the authorized 

numbers of marine mammal takes and 

the manner of take (i.e., lethal, Level A 

or Level B). In addition, monitoring and 

reporting measures are prescribed to 

ensure that all takes as a result of the 

training activities are accounted for and 

documented. The MMOs and Navy’s 

lookouts/watchstanders will report any 

sightings of marine mammals in the take 

zone through the chain of command. 

Furthermore, the Navy is required to 

submit an Annual VACAPES Range 

Complex Monitoring Plan Report. Prior 

to issuing any subsequent LOAs, NMFS 

will review the Navy’s monitoring 

efforts and data from the previous year 

to determine whether any new measures 

will be necessary or a modification to 

prior year’s measures. 

Comment 3: The Virginia DEQ 

recommends that NMFS develop the 

regulations to reflect harbor seal, harp 

seal, and gray seal as their occurrence in 

the inshore and nearshore waters of the 

mid-Atlantic region are becoming more 

frequent in the fall and winter months. 

Response: Based on the analyses by 

the Navy and NMFS, there are 34 

marine mammal species with possible 

or confirmed occurrence in the 

VACAPES Range Complex. As indicated 

in the proposed rule, there are 33 

cetacean species and one pinniped 

species (harbor seal). Harp and gray 

seals occur primarily in the North 

Atlantic, with the former species found 

mostly in the Arctic region. Although 

there have been increased anecdotal 

sightings of these species in the midAtlantic coastal waters, their presence 

in the mid-Atlantic region is still very 

rare (Waring et al., 2008). 

Comment 4: The VDGIF states that the 

species take list appears to be accurate; 

however, the number of animals 

predicted to be affected for both Level 

A and Level B harassment are probably 

underestimated, because the species 

density data from which take estimates 

are derived are based on too few data. 

Therefore, no marine mammal species 

should be considered unlikely to be 

affected just because there are no 

density data available (e.g., beaked 

whales). Since all of the species on the 

list exist in the Virginia and North 

Carolina Outer Banks stranding records, 

collected and kept by the Virginia 

Aquarium Stranding Response Program, 

the VDGIF recommends that all species 

on the take list should be considered 

susceptible to Level B harassment year 

round. The IFAW states that if one of 

these animals not included in the 

incidental take list is present in the area 

of testing, there is a higher probability 

that the animal will be struck, and that 

the assumption that one third of the 

cetacean species in the area will not be 

exposed nor affected by noise represents 

an oversight in the analysis of potential 

takes. 

Response: NMFS does not agree with 

the VDGIF and IFAW’s assessment. The 

most current stock assessment reports 

(Waring et al., 2008) were used to 

calculate density estimates. As 

summarized in the proposed rule and 

described more fully in the Navy’s FEIS, 

the Navy used the best data and 

methods available to calculate density, 

including other literature as well as 

habitat modeling that considered 

bathymetry, distance from shelf break, 

sea surface temperature, and 

Chlorophyll a concentration. All spatial 

models and density estimates were 

reviewed by NMFS technical staff. The 

Navy’s model utilizes uniform density, 

but it also divides the east coast into 

meaningful sections, such as on-shelf 

and off-shelf and the different 

OPAREAS. 

Although stranding records indicate 

that certain species may be found dead 

or injured in the Virginia area, this does 

not mean that these species are 

normally distributed in this area. 


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Rather, certain stranded species are 

likely more common in other geographic 

regions and due to their death or injury 

in those areas, they may drift and wash 

ashore in the Virginia area. 

NMFS does not agree that all species 

identified in a stranding list would be 

affected by the proposed activity. As 

noted above, NMFS relied on the best 

available data to ascertain density 

estimates. There are certain species for 

which estimates are unavailable because 

their presence in the VACAPES Range 

Complex Study Area is rare (e.g., 

Bryde’s whale and false killer whale are 

not reported in NMFS stock assessment 

reports (SARs) for the U.S. Atlantic and 

Gulf of Mexico regions for the stock 

assessment). NMFS considers it unlikely 

that species whose presence in the 

action area is rare would be affected by 

the proposed activities. 

For species in which NMFS possesses 

density data, the Navy conducted 

modeling to calculate the potential takes 

of these marine mammals. As described 

in the proposed rule, estimating the take 

that could result from the proposed 

activities entails the following four 

steps: propagation model estimates 

animals exposed to sources at different 

levels; further modeling determines the 

number of exposures to levels indicated 

in the criteria above (i.e., number of 

takes); post-modeling corrections refine 

estimates to make them more accurate; 

mitigation is taken into consideration. 

Detailed analyses regarding the models 

used, the assumptions used in the 

models, and the process of estimating 

take is available in Appendix J of the 

Navy’s EIS for the VACAPES Range 

Complex. The Navy’s model revealed 

that species such as blue whale, sei 

whale, spinner dolphin, Fraser’s 

dolphin, Atlantic white-sided dolphin, 

harbor porpoise, and harbor seals would 

not be taken by the proposed activities 

because their presence in the VACAPES 

Range Complex Study Area is rare. 

Acoustic Impacts 

Comment 5: The IFAW states that the 

Navy failed to cite any scientific data to 

support the claim that ‘‘explosive 

ordnance and underwater detonations 

would result in only short-term effects 

to most individuals exposed.’’ The 

IFAW also states that FIREX and 

BOMBEX yield a novel situation for 

impact analysis since they employ 

multiple explosions, and that there is no 

existing data on the impacts of multiple 

explosions and therefore potential 

impacts had to be extrapolated from 

single explosion testing. The IFAW 

further states that although a detailed 

modeling system was developed, the 

cumulative effect of multiple explosions 

may far exceed the sum of its parts. 

Further research is needed before claims 

can be made as to the impacts of 

multiple explosions on marine 

mammals. 

Response: NMFS does not agree with 

the IFAW’s assessment. Although few 

scientific data are currently available on 

the behavioral effects of explosive 

ordnance on marine mammals, studies 

of marine mammal reactions to intense 

underwater sounds (Finneran et al., 

2000; Schlundt et al., 2000; Finneran 

and Schlundt, 2004), studies of 

underwater detonations on human 

divers and territorial mammals (Gaspin, 

1983; Goertner, 1982), studies on the 

auditory anatomy of marine mammals 

(Ketten, 1998), and studies on source 

characterization of underwater 

explosions (Cole, 1948; Gaspin and 

Shuler, 1971; Rogers, 1977; Urick, 1983) 

were reviewed. Based on the 

conclusions of these studies in terms of 

the impact ranges and levels from 

different explosives and their acoustic 

impacts, NMFS and the Navy 

determined the use of explosive 

ordnance and underwater detonations 

in the Navy’s VACAPES Range Complex 

(including implementation of mitigation 

and monitoring measures), would result 

in only short-term effects to most 

individuals exposed. These analyses, 

including the impact analyses on 

multiple explosions, were described in 

detail in Appendix A ‘‘Draft Technical 

Risk Assessment for the Use of 

Underwater Explosives in the Virginia 

Capes (VACAPES) Range Complex’’ in 

the Navy’s LOA application and were 

referenced in the proposed rule (73 FR 

75631; December 12, 2008). 

Mitigation 

Comment 6: The Commission 

recommends that NMFS include in the 

final rule a requirement that, in all but 

emergency situations or where the need 

for realistic training requires greater 

speed or maneuverability, the Navy 

abide by the seasonal restrictions 

applicable to other vessels under NMFS’ 

ship-speed regulations (50 CFR 224.105) 

to reduce the risk of ship collisions with 

right whales. 

Response: NMFS does not agree with 

the Commission recommendation. 

NMFS’ final rule on ship speed 

restriction does not apply to vessels 

operated by U.S. Federal agencies. 

NMFS, in consultation with other 

Federal agencies, has determined that 

the national security, navigational, and 

human safety missions of some agencies 

may be compromised by mandatory 

vessel speed restrictions. However, this 

exemption will not relieve the Navy of 

its obligations to consult, under section 

7 of the ESA, on how their activities 

may affect listed species. NMFS 

acknowledges that the Navy already 

provides guidance to vessel operators 

and fleets with regard to conservation 

measures to protect right whales and 

other endangered species, as well as 

contribute to conservation efforts 

generally. 

For the proposed VACAPES Range 

Complex training activities, the Navy 

has developed a series of mitigation 

measures that closely follow NMFS’ 

ship strike rule. These mitigation 

measures are described in the Proposed 

Mitigation Measures section of the 

proposed rule (73 FR 76578; December 

17, 2008). In addition, NMFS worked 

with the Navy regarding their vessel 

operations to determine where ESA 

section 7 consultations would be 

appropriate. 

Comment 7: The Commission 

recommends that if a serious injury or 

death occurs and that injury or death 

could have resulted from the authorized 

Navy operations, NMFS and Navy 

jointly investigate the circumstances 

and steps needed to avoid similar 

occurrences. 

Response: NMFS concurs with the 

Commission’s recommendation and will 

work with the Navy to address such an 

occurrence if and when it arises. 

Comment 8: The Virginia DEQ and 

IFAW state that they note that 

mitigation measures for most training 

exercises are largely comprised of 

maintaining lookouts or watchstanders 

to look for marine mammals, sea turtles, 

rafts of sargassum grass and other 

indicators of biological activity in the 

buffer zones or zones of impact. As 

such, most mitigation measures rely 

entirely on the observers’ ability to 

detect sea turtles, marine mammals, and 

indicators of their presence such as 

sargassum grass under all conditions 

(e.g., high seas, after dark, storms, etc.). 

The IFAW states that this mitigation 

strategy is insufficient for detecting right 

whales in the vicinity of Navy training 

exercises. 

Response: NMFS does not agree with 

the Virginia DEQ and IFAW’s 

assessment. Although visual monitoring 

by lookouts or watchstanders is an 

important component of monitoring 

measures for the Navy’s VACAPES 

Complex Range training exercises, it is 

not the only mitigation measure for 

most training exercises. Other 

mitigation and monitoring measures are 

also proposed to reduce any potential 

impacts to marine mammals that would 

result from the proposed training 

activities. These include establishing 

safety zones for all exercises involving 

underwater detonations (FIREX, 


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BOMBEX, MINEX, and MISSILEX), 

aerial surveys of the action area, 

limiting certain exercises (BOMBEX, 

FIREX, and MINEX) to daylight hours, 

etc. In addition, Navy lookouts or 

watchstanders are specifically trained to 

detect anomalies in the water around 

the ship and both the safety of Navy 

personnel and success in the training 

exercise depend on the lookout being 

able to detect objects (e.g., marine 

mammals) effectively around the ship. 

Additionally, NMFS has identified 

ports located in the western Atlantic 

Ocean, offshore of the southeastern 

United States, where vessel transit 

during right whale migration is of 

highest concern for potential ship strike. 

These ports include the Hampton Roads 

entrance to the Chesapeake Bay, which 

includes the concentration of Atlantic 

Fleet vessels in Norfolk, Virginia. Navy 

vessels are required to use extreme 

caution and operate at a slow, safe 

speed consistent with mission and 

safety during the months of right whale 

migration and within a 20 nm (37 km) 

arc (except as noted) of the specified 

reference points. 

Comment 9: The VDGIF recommends 

NMFS expand the ‘‘elevated time of 

awareness’’ for right whales (Table 14 in 

the proposed FR notice for the proposed 

rule, 73 FR 75631; December 12, 2008) 

to Oct–April (without excluding 

January) or, at a minimum, Nov-March 

(without excluding January) based on 

strandings that have occurred in our 

region throughout these months. The 

VDGIF states that recent observations 

have been made of new mothers as far 

north as Wilmington, North Carolina 

during the winter calving season (i.e., 

Nov. 15–April 15), which provides 

further justification for expanding the 

period of elevated awareness for 

Virginia area and North Carolina. 

Response: The ‘‘elevated time of 

awareness’’ for right whales already 

covers the months between October– 

April in South Carolina and December– 

April in North Carolina. Although 

certain months were not covered in 

areas north of North Carolina such as 

the Chesapeake Bay, Delaware Bay, off 

the coast of New York and New Jersey, 

this is because right whales are 

extremely rare in these waters during 

those months. Regarding the recent 

sighting (January 2009) of right whale 

cows as far north as Wilmington, North 

Carolina, this location and month are 

covered under the current ‘‘elevated 

time of awareness’’ for right whales. 

Comment 10: The VDGIF states that 

the proposed mitigation measures and 

reporting requirement of the proposed 

rule are acceptable. Therefore, the 

VDGIF has no comments on them. 

Response: Comments noted. 

Monitoring and Reporting 

Comment 11: The Commission 

recommends that NMFS work with the 

Navy to design studies to collect and 

analyze data necessary to characterize 

the risk of collisions with right whales 

by Navy vessels. 

Response: Comment noted. The 

reporting conditions for the Navy’s 

training activities require the Navy to 

report all marine mammal (right whale 

included) sighting information during 

exercises. This information includes the 

location of sightings, species, number of 

individuals, and calves observed, etc. 

These data can later be analyzed to 

characterize the risk of collisions with 

marine mammals by Navy vessels. To 

the extent resources exist, NMFS will 

endeavor to work with the Navy to 

develop more formal studies that would 

allow each agency to obtain the 

necessary data to characterize the risk of 

Navy vessel collisions with right whales 

and to take further steps to minimize the 

probability of a vessel strike. 

Comment 12: The Commission 

recommends that NMFS work with the 

Navy to sponsor a peer review of 

existing risk analysis procedures and 

the interpretation and use of survey or 

other data in those analyses, and work 

with the Navy to validate the 

effectiveness of monitoring and 

mitigation measures, preferably before 

beginning or, if that is infeasible, in 

conjunction with the Navy operations 

subject to this incidental take 

authorization. 

Response: At this time, NMFS 

concludes that the risk analyses for 

naval activities and MMPA rulemakings 

are appropriate. If necessary, NMFS and 

the Navy will coordinate at some future 

date to determine whether additional 

consideration of the risk analysis 

procedure is warranted. Regarding the 

effectiveness of monitoring and 

mitigation measures, this final rule 

includes a requirement for the Navy to 

convene a Monitoring Workshop in 

2011 in which the 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. NMFS believes 

that this type of workshop, with 

participants including the Navy, NMFS, 

researchers, invited experts, and other 

interested parties, in combination with 

an adaptive management plan that 

allows for modification would provide a 

means for the Navy to adjust the 

Monitoring Plan as needed to more 

effectively accomplish the goals of 

monitoring set forth earlier. NMFS 

would incorporate any changes into 

future LOAs and future rules as 

necessary. NMFS has statutory 

responsibility to prescribe regulations 

pertaining to mitigation, monitoring, 

and reporting, and will, in coordination 

with the Navy, develop the most 

effective and appropriate mitigation, 

monitoring, and reporting protocols for 

future authorizations. 

In addition, NMFS has been working 

with the Navy throughout the 

rulemaking process to develop a series 

of mitigation, monitoring, and reporting 

protocols. NMFS believes that the 

measures prescribed in this final rule 

are practicable, effective and will afford 

the necessary protection to marine 

mammals. 

NEPA 

Comment 13: The Virginia DEQ 

requests that the final Integrated 

Comprehensive Monitoring Program 

(ICMP) be included in the EIS if 

possible. 

Response: The ICMP will not be 

completed until the summer of 2009, 

therefore, it is not possible to include 

the ICMP in the FEIS. However, the 

Navy will include a comprehensive 

monitoring plan and a summary of the 

ICMP in the FEIS. In addition, the site 

specific comprehensive monitoring plan 

and a summary of the ICMP are 

included in the Navy’s VACAPES Range 

Complex final rule. 

Miscellaneous Issues 

Comment 14: The Virginia DEQ 

requests that NMFS consider in the final 

regulations that NMFS (1) coordinate 

with the Virginia Department of Game 

and Inland Fisheries and the U.S. Fish 

and Wildlife Service for information 

regarding the possible impacts to 

protected species and to ensure 

compliance with protected species 

legislation, and (2) contact Rene Hypes 

of the Virginia Department of 

Conservation and Recreation Division of 

Natural Heritage at (804) 371–2708 for 

an update on natural heritage 

information if a significant amount of 

time passes before the proposed 

activities are initiated since new and 

updated information is continually 

added to Biotics. 

Response: NMFS published a 

proposed rule for the VACAPES Range 

Complex training exercises (73 FR 

75631; December 12, 2008) that 

included a detailed description of 

protected marine mammal species 

within the Range Complex. NMFS will 

work with Virginia as necessary and 

advise the State if there is any change 

to the proposed action and updates on 

natural resources information. With 


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respect to other protected species such 

as ESA listed turtles or fish, the Navy is 

conducting a Section 7 consultation 

with NMFS. The Navy has completed 

consultation with Delaware, Maryland, 

Virginia, and North Carolina under the 

Coastal Zone Management Act. In 

addition, NMFS is working to ensure 

that the final rule for the proposed 

action and the LOAs issued to the Navy 

is in compliance with protected species 

legislation through the ESA consultation 

and the MMPA permitting review. 

NMFS does not expect there will be 

a significant amount of time that passes 

between finalization of rule and the 

commencement of naval exercises. To 

the extent there is, NMFS will 

coordinate, as appropriate, with the 

State and FWS. 

Comment 15: 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 in the VACAPES 

Range Complex. The Navy does not 

intend, as part of its proposed action, to 

conduct training with MFAS, HFAS, 

and Improved Extended Echo Ranging 

(IEER)/Advanced Extended Echo 

Ranging (AEER). The Navy’s request for 

a LOA for sonar related training was 

addressed in the Final Rule and LOA for 

AFAST which was issued by NMFS on 

January 22, 2009, and published in the 

Federal Register on February 19, 2009 

(74 FR 4844). 

Comment 16: One private citizen 

expressed general opposition to Navy 

activities and NMFS’ issuance of an 

MMPA authorization because of the 

danger of killing marine life. 

Response: NMFS appreciates the 

commenter’s concern for the marine 

mammals that live in the area of the 

proposed activities. However, the 

MMPA allows individuals to take 

marine mammals incidental to specified 

activities if NMFS can make the 

necessary findings required by law (i.e., 

negligible impact, unmitigable adverse 

impact on subsistence users, etc.). As 

explained throughout this rulemaking, 

NMFS has made the necessary findings 

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

our issuance of the final rule. 

Estimated Take of Marine Mammals 

As mentioned previously, with 

respect to the MMPA, NMFS’ effects 

assessments serve 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 VACAPES Range Complex; thus, 

there would be no affect to 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. The 

subsections of this analysis are 

discussed in the proposed rule (73 FR 

75631; December 12, 2008) and have not 

changed. 

Acoustic Take Criteria 

In the Acoustic Take Criteria section 

of the proposed rule, NMFS described 

the development and application of the 

acoustic criteria for explosive 

detonations (73 FR 76531; December 12, 

2008). No changes have been made to 

the discussion contained in this section 

of the proposed rule. 

Take Calculations 

In the Take Calculation section of the 

proposed rule, NMFS described in 

detail how the take estimates were 

calculated through modeling (73 FR 

76531). No changes have been made to 

the discussion contained in this section 

of the proposed rule. 

A summary of potential exposures 

from ordnance (per year) for marine 

mammals in the VACAPES Range 

Complex is listed in Table 4 (these 

exposure estimates are similar to those 

presented in the proposed rule). 

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

VACAPES RANGE COMPLEX

Species Level B 

harassment 

Level A 

harassment Mortality 

Fin whale ......................................................................................................................................... 2 0 0 

Humpback whale ............................................................................................................................. 2 0 0 

North Atlantic right whale ................................................................................................................ 0 0 0 

Sperm whale .................................................................................................................................... 2 0 0 

Atlantic spotted dolphin ................................................................................................................... 43 1 0 

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

Bottlenose dolphin ........................................................................................................................... 29 0 0 

Clymene dolphin .............................................................................................................................. 33 0 0 

Common dolphin .............................................................................................................................. 2,193 20 0 

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

Pantropical spotted dolphin ............................................................................................................. 70 1 0 

Pilot whale ....................................................................................................................................... 10 0 0 

Risso’s dolphin ................................................................................................................................. 16 0 0 

Rough-toothed dolphin .................................................................................................................... 1 0 0 

Striped dolphin ................................................................................................................................. 68 3 0 


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Effects on Marine Mammal Habitat 

NMFS’ VACAPES Range Complex 

proposed rule included a section that 

addressed the effects of the Navy’s 

activities on marine mammal habitat (73 

FR 75631, page 75654). The Navy’s 

proposed training exercises could 

potentially affect marine mammal 

habitat through underwater detonation 

and the introduction of explosive sound 

into the water column, and impacts to 

the prey species of marine mammals. 

These potential impacts are considered 

in the VACAPES FEIS and were 

determined by the Navy to have no 

effect on marine mammal habitat. Based 

on the information below and the 

supporting information included in the 

Navy’s FEIS, NMFS has determined that 

the VACAPES Range Complex training 

activities will not have adverse or longterm impacts on marine mammal 

habitat. 

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 possibly temporarily leave 

the area. 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. For most 

situations, cause of death in fishes has 

been massive organ and tissue damage 

and internal bleeding. At longer range, 

species with gas-filled swimbladders 

(e.g., snapper, cod, and striped bass) are 

more susceptible than those without 

swimbladders (e.g., flounders, eels). 

Studies also suggest that larger fishes 

are generally less susceptible to death or 

injury than small fishes. Moreover, 

elongated forms that are round in cross 

section are less at risk than deep-bodied 

forms; and orientation of fish relative to 

the shock wave may affect the extent of 

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

mackerel) also 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 variations in the fish 

population, including numbers, species, 

sizes, and orientation and range from 

the detonation point, make it very 

difficult to accurately predict mortalities 

at any specific site of detonation. 

However, most fish species experience a 

large number of natural mortalities, 

especially during early life-stages, and 

any small level of mortality caused by 

the VACAPES 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 

VACAPES Range Complex is negligible 

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 VACAPES Range 

Complex. There is no critical habitat for 

marine mammals in the proposed 

VACAPES Range Complex Study Area. 

Analysis and Negligible Impact 

Determination 

Pursuant to NMFS’ regulations 

implementing the MMPA, an applicant 

is required to estimate the number of 

animals that will be ‘‘taken’’ by the 

specified activities (i.e., takes by 

harassment only, or takes by 

harassment, injury, and/or death). This 

estimate informs the analysis that NMFS 

must perform to determine whether the 

activity will have a ‘‘negligible impact’’ 

on the species or stock. Level B 

(behavioral) harassment occurs at the 

level of the individual(s) and does not 

assume any resulting population-level 

consequences, though there are known 

avenues through which behavioral 

disturbance of individuals can result in 

population-level effects. A negligible 

impact finding is based on the lack of 

likely adverse effects on annual rates of 

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

of Level B harassment takes alone, is not 

enough information on which to base an 

impact determination. 

In addition to considering estimates of 

the number of marine mammals that 

might be ‘‘taken’’ through behavioral 

harassment, NMFS must consider other 

factors, such as the likely nature of any 

responses (their intensity, duration, 

etc.), the context of any responses 

(critical reproductive time or location, 

migration, etc.), as well as the number 

and nature of estimated Level A takes, 

the number of estimated mortalities, and 

effects on habitat. 

The Navy’s specified activities have 

been described based on best estimates 

of the planned detonation events the 

Navy would conduct for the proposed 

VACAPES Range Complex training 

activities. The events are generally short 

in duration, including a total of 115 1– 

1.5–hour events and 46 6–8-hour events. 

Taking the above into account, along 

with the fact that NMFS anticipates no 

mortalities (and few injuries) to result 

from the action, the fact that there are 

no specific areas of reproductive 

importance for marine mammals 

recognized within VACAPES, 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 

VACAPES 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 VACAPES 

Range Complex training activities was 

provided in the proposed rule (73 FR 

75631, pages 75636–75646) and is 

described in more detail below. 

Behavioral Harassment 

The Navy plans a total of 80 

MISSILEX training events (each lasting 

for 1 hour), 22 FIREX training events 

(each lasting for 8 hours), 5 BOMBEX 

training events (each lasting for 1 hour), 

30 MH–60S MINEX training events 

(each lasting for 1.5 hours), and 24 EOD 

MINEX training events (each lasting for 

6–8 hours) annually. The total training 

exercises proposed by the Navy in the 

VACAPES Range Complex amount to 

under 500 hours per year. These 

detonation events are widely dispersed 

throughout several of the designated 

sites within the VACAPES 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 VACAPES 

Range Complex Study Area and the 

implementation of monitoring and 

mitigation measures. Moreover, NMFS 

does not expect animals to experience 

repeat exposures to the same sound 

source as animals will likely move away 

from the source after being exposed. In 

addition, these isolated exposures, 


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when received at distances of Level B 

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

microPa2-sec), are expected to cause 

brief startle reactions or short-term 

behavioral modification by the animals. 

These brief reactions and behavioral 

changes are expected to disappear when 

the exposures cease. Therefore, these 

levels of received impulse noise from 

detonation are not expected to affect 

annual rates or recruitment or survival. 

TTS 

NMFS and the Navy have estimated 

that individuals of some species of 

marine mammals may sustain some 

level of temporarily threshold shift TTS 

from underwater detonations. TTS can 

last from a few minutes to days, be of 

varying degree, and occur across various 

frequency bandwidths. The TTS 

sustained by an animal is primarily 

classified by three characteristics: 

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

mid to high frequency sounds—Southall 

et al., 2007) suggest that most TTS 

occurs in the frequency range of the 

source up to one octave higher than the 

source (with the maximum TTS at 1⁄2

octave above). 

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

dB is the sensitivity of the hearing 

reduced by)—generally, both the degree 

of TTS and the duration of TTS will be 

greater if the marine mammal is exposed 

to a higher level of energy (which would 

occur when the peak dB level is higher 

or the duration is longer). Since the 

impulse from detonation is extremely 

brief, an animal would have to approach 

very close to the detonation site to 

increase the received SEL. The 

threshold for the onset of TTS for 

detonations is a dual criteria: 182 dB re 

1 microPa2-sec or 23 psi, which might 

be received at distances from 345–2,863 

m from the centers of detonation based 

on the types of NEW involved to receive 

the SEL that causes TTS compared to 

similar source level with longer 

durations (such as sonar signals). 

• Duration of TTS (Recovery time)— 

Of all TTS laboratory studies, some 

using exposures of almost an hour in 

duration or up to 217 SEL, almost all 

recovered within 1 day (or less, often in 

minutes), though in one study (Finneran 

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

• Although the degree of TTS 

depends on the received noise levels 

and exposure time, all studies show that 

TTS 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 1 

Atlantic spotted dolphin, 20 common 

dolphins, 1 pantropical spotted dolphin, 

and 3 striped dolphins could experience 

50% tympanic membrane rupture or 

slight lung injury (Level A harassment) 

as a result of the training activities 

utilizing underwater detonation in the 

VACAPES Range Complex Study Area. 

However, these estimates do not take 

into consideration the proposed 

mitigation and monitoring measures. 

For underwater detonations, the animals 

have to be within an area between 

certain injury zones of influence (ZOI) 

to experience Level A harassment. Such 

injury ZOI varies from 0.02 km2 to 6.39 

km2 (or at distances between 80 m to 

1,426 m from the center of detonation) 

depending on the types of munition 

used and the season of the action. 

Though it is possible that Navy 

observers could fail to detect an animal 

at a distance of more than 1 km (an 

injury ZOI during BOMEX, which is 

planned to have 5 events annually), all 

injury ZOIs from other detonation 

activities (FIREX, MISSILEX, and 

MINEX) are smaller than 0.165 km2 (230 

m in radius) and NMFS believes it is 

unlikely that any marine mammal could 

be detected by lookouts/watchstanders 

or MMOs. 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 2 

humpback whales, 2 fin whales, 2 

sperm whales, 3 dwarf or pygmy sperm 

whales, 1 rough-toothed dolphin, 29 

bottlenose dolphins, 70 pantropical 

spotted dolphins, 68 stripped dolphins, 

33 Clymene dolphins, 43 Atlantic 

spotted dolphins, 2,193 common 

dolphins, 16 Risso’s dolphins, and 10 

pilot whales could be affected by Level 

B harassment (TTS and sub-TTS) as a 

result of the proposed VACAPES Range 

Complex training activities. These 

numbers represent approximately 

0.24%, 0.09%, 0.04%, 0.76%, 0.04%, 

1.58%, 0.07%, 0.08%, 1.82%, 0.08%, 

and 0.03% of humpback whales, fin 

whales, sperm whales, dwarf or pygmy 

sperm whales, bottlenose dolphins, 

pantropical spotted dolphins, striped 

dolphins, Clymene dolphins, Atlantic 

spotted dolphins, common dolphins, 

Risso’s dolphins, and pilot whales, 

respectively in the vicinity of the 

proposed VACAPES Range Complex 

Study Area (calculation based on NMFS 

2007 US Atlantic and Gulf of Mexico 

Marine Mammal Stock Assessment). 

Although the population estimates of 

Clymene dolphins and rough-toothed 

dolphins are unknown in the proposed 

action area, NMFS believes that the take 

of 33 individuals of Clymene dolphins 

and 1 individual of rough-toothed 

dolphin by Level B harassment would 

have a negligible impact to this 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). 

In addition, the Level A takes of 1 

Atlantic spotted dolphin, 20 common 

dolphins, 1 pantropical spotted dolphin, 

and 3 striped dolphins represent 

0.002%, 0.0166%, 0.0225%, and 

0.0032% of these species, respectively, 

in the vicinity of the proposed 

VACAPES Range Complex Study Area 

(calculation based on NMFS 2007 US 

Atlantic and Gulf of Mexico Marine 

Mammal Stock Assessment). Given 

these very small percentages, NMFS 

does not expect there to be any longterm adverse effect on the populations 

of the aforementioned dolphin species. 

No marine mammals are expected to be 

killed as a result of these activities. 

Additionally, the aforementioned take 

estimates do not account for the 

implementation of mitigation measures. 

With the implementation of mitigation 

and monitoring measures, NMFS 

expects that the takes would be reduced 

further. Coupled with the fact that these 

impacts will likely not occur in areas 

and times critical to reproduction, 

NMFS has determined that the total 

taking over the 5-year period of the 

regulations and subsequent LOAs from 

the Navy’s VACAPES Range Complex 


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training activities will have a negligible 

impact on the marine mammal species 

and stocks present in the VACAPES 

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 

VACAPES 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 five 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, 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 VACAPES 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 

VACAPES 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 

VACAPES Range Complex study area. 

NMFS has issued regulations for these 

exercises that prescribe the means of 

effecting the least practicable adverse 

impact on marine mammals and their 

habitat and set forth requirements 

pertaining to the monitoring and 

reporting of that taking. 

Classification 

This action does not contain a 

collection of information requirement 

for purposes of the Paperwork 

Reduction Act. 

Pursuant to Executive Order 12866, 

the Office of Management and Budget 

has determined that this rule is not 

significant. 

The Chief Counsel for Regulation of 

the Department of Commerce certified at 

the Proposed Rule stage that this action 

will not have a significant economic 

impact on a substantial number of small 

entities. The Navy is the entity that will 

be affected by this rulemaking, not a 

small governmental jurisdiction, small 

organization or small business, as 

defined by the RFA. This rulemaking 

authorizes the take of marine mammals 

incidental to a specified activity. The 

specified activity defined in the 

proposed rule includes the use of 

underwater detonations, 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 VACAPES 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 are 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 VACAPES 

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. 


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Scheduling constraints are further 

complicated by the availability of Afloat 

Training Groups (ATGs) that are 

responsible for training all individual 

units. ATGs have a limited number of 

trainers available at any given time, and 

their schedules must also be deconflicted, compounding the problem if 

training schedules are not adhered to. 

Waiver of the 30-day delay of the 

effective date of the Final Rule will 

allow Navy to finalize operational 

procedures to ensure compliance with 

required mitigation, monitoring, and 

reporting requirements, and have 

MMPA authorization in place prior to 

Navy’s vital June 2009 exercise. 

List of Subjects in 50 CFR Part 218 

Exports, Fish, Imports, Incidental 

take, Indians, Labeling, Marine 

mammals, Navy, Penalties, Reporting 

and recordkeeping requirements, 

Seafood, Transportation. 

Dated: June 5, 2009. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

■ For reasons set forth in the preamble, 

50 CFR Chapter II is amended by adding 

part 218 to read as follows: 

■ 1. Part 218 is added to read as follows: 

PART 218—REGULATIONS 

GOVERNING THE TAKING AND 

IMPORTING OF MARINE MAMMALS 

Subpart A—Taking Marine Mammals 

Incidental to U.S. Navy Training in the 

Virginia Capes Range Complex (VACAPES 

Range Complex) 

Sec. 

218.1 Specified activity, specified 

geographical area and effective dates. 

218.2 Permissible methods of taking. 

218.3 Prohibitions. 

218.4 Mitigation. 

218.5 Requirements for monitoring and 

reporting. 

218.6 Applications for Letters of 

Authorization. 

218.7 Letters of Authorization. 

218.8 Renewal of Letters of Authorization 

and adaptive management. 

218.9 Modifications to Letters of 

Authorization. 

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

Subpart A—Taking Marine Mammals 

Incidental to U.S. Navy Training in the 

Virginia Capes Range Complex 

(VACAPES Range Complex) 

§ 218.1 Specified activity, 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 VACAPES Range Complex 

Operation Area (OPAREA), which is 

located in the coastal and offshore 

waters of the western North Atlantic 

Ocean adjacent to Delaware, Maryland, 

Virginia, and North Carolina. The 

northernmost boundary of the 

VACAPES Range Complex OPAREA is 

located 37 nautical miles (nm) off the 

entrance to Delaware Bay at latitude 

38°45′ N, the farthest point of the 

eastern boundary is 184 nm east of 

Chesapeake Bay at longitude 72°41′ W, 

and the southernmost point is 105 nm 

southeast of Cape Hatteras, North 

Carolina, at latitude of 34°19′ N. The 

western boundary of the VACAPES 

Range Complex OPAREA lies 3 nm from 

the shoreline at the boundary separating 

state and Federal waters. 

(c) The taking of marine mammals by 

the Navy is only authorized if it occurs 

incidental to the following activities 

within the designated amounts of use: 

(1) The detonation of the underwater 

explosives indicated in paragraph 

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

of the training events indicated in 

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

(i) Underwater Explosives: 

(A) AGM–114 (Hellfire missile) 

(B) AGM–65 E/F (Maverick missile) 

(C) MK–83/GBU–32 (1,000 lb High 

Explosive bomb) 

(D) Airgorne Mine Neutralization 

system (AMNS) 

(E) 20 lb NEW charges 

(F) AGM–88 (HARM) 

(G) 5′′ Naval Gunfire 

(ii) Training Events: 

(A) Mine Exercise (MINEX) (Mine 

Neutralization [AMNS])—up to 150 

exercises over the course of 5 years (an 

average of 30 per year); 

(B) Mine Exercise (MINEX) (Mine 

Neutralization [20 lb NEW charges])— 

up to 120 exercises over the course of 

5 years (an average of 24 per year); 

(C) Bombing Exercise (BOMBEX) (Airto-Surface)—up to 100 exercises over 

the course of 5 years (an average of 20 

per year); 

(D) Missile Exercise (MISSILEX) (Airto-Surface; Hellfire missile)—up to 300 

exercises over the course of 5 years (an 

average of 60 per year); 

(E) Missile Exercise (MISSILEX) (Airto-Surface; Maverick, HE)—up to 100 

exercises over the course of 5 years (an 

average of 20 per year); and 

(F) FIREX with IMPASS—up to 110 

exercises over the course of 5 years (an 

average of 22 per year). 

(2) [Reserved] 

(d) Regulations are effective June 8, 

2009 and are applicable to the Navy on 

June 5, 2009 through June 4, 2014. 

§ 218.2 Permissible methods of taking. 

(a) Under Letters of Authorization 

issued pursuant to § 216.106 of this 

chapter and § 218.7, the Holder of the 

Letter of Authorization may 

incidentally, but not intentionally, take 

marine mammals within the area 

described in § 218.1(b), provided the 

activity is in compliance with all terms, 

conditions, and requirements of this 

subpart and the appropriate Letter of 

Authorization. 

(b) The activities identified in 

§ 218.1(c) must be conducted in a 

manner that minimizes, to the greatest 

extent practicable, any adverse impacts 

on marine mammals and their habitat. 

(c) The incidental take of marine 

mammals under the activities identified 

in § 218.1(c) is limited to the following 

species, by the indicated method of take 

and the indicated number of times: 

(1) Level B Harassment: 

(i) Mysticetes: 

(A) Humpback whale (Megaptera 

novaeangliae)—10 (an average of 2 

annually); and 

(B) Fin whale (Balaenoptera 

physalus)—10 (an average of 2 

annually). 

(ii) Odontocetes: 

(A) Sperm whale (Physeter 

macrocephalus)—10 (an average of 2 

annually); 

(B) Pygmy or dwarf sperm whales 

(Kogia sp.)—15 (an average of 3 

annually); 

(C) Rough-toothed dolphin (Steno 

bredanensis)—5 (an average of 1 

annually); 

(D) Bottlenose dolphin (Tursiops 

truncatus)—145 (an average of 29 

annually); 

(E) Pantropical spotted dolphin 

(Stenella attenuata)—350 (an average of 

70 annually); 

(F) Striped dolphin (S. 

coeruleoalba)—340 (an average of 68 

annually); 

(G) Clymene dolphin (S. clymene)— 

165 (an average of 33 annually); 

(H) Atlantic spotted dolphin (S. 

frontalis)—215 (an average of 43 

annually); 

(I) Common dolphin (Delphinus 

delphis)—10,965 (an average of 2,193 

annually); 

(J) Risso’s dolphin (Grampus 

griseus)—80 (an average of 16 annually); 

and 

(K) Pilot whales (Globicephala sp.)— 

50 (an average of 10 annually). 

(2) Level A Harassment (injury): 

(i) Atlantic spotted dolphin—5 (an 

average of 1 annually); 


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(ii) Common dolphin—100 (an 

average of 20 annually); 

(iii) Pantropical spotted dolphin—5 

(an average of 1 annually); and 

(iv) Striped dolphin—15 (an average 

of 3 annually). 

§ 218.3 Prohibitions. 

Notwithstanding takings 

contemplated in § 218.2 and authorized 

by a Letter of Authorization issued 

under § 216.106 of this chapter and 

§ 218.7, no person in connection with 

the activities described in § 218.1 may: 

(a) Take any marine mammal not 

specified in § 218.2(c); 

(b) Take any marine mammal 

specified in § 218.2(c) other than by 

incidental take as specified in 

§ 218.2(c)(1) and (2); 

(c) Take a marine mammal specified 

in § 218.2(c) if such taking results in 

more than a negligible impact on the 

species or stocks of such marine 

mammal; or 

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

terms, conditions, and requirements of 

this Subpart or a Letter of Authorization 

issued under § 216.106 of this chapter 

and § 218.7. 

§ 218.4 Mitigation. 

(a) When conducting training 

activities identified in § 218.1(c), the 

mitigation measures contained in the 

Letter of Authorization issued under 

§ 216.106 of this chapter and § 218.7 

must be implemented. These mitigation 

measures include, but are not limited to: 

(1) General Maritime Measures: 

(i) Personnel Training—Lookouts 

(A) All bridge personnel, 

Commanding Officers, Executive 

Officers, officers standing watch on the 

bridge, maritime patrol aircraft aircrews, 

and Mine Warfare (MIW) helicopter 

crews shall complete Marine Species 

Awareness Training (MSAT). 

(B) Navy lookouts shall undertake 

extensive training to qualify as a 

watchstander in accordance with the 

Lookout Training Handbook 

(NAVEDTRA 12968–D). 

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

supervision of a qualified, experienced 

watchstander. Following successful 

completion of this supervised training 

period, lookouts shall complete the 

Personal Qualification Standard 

Program, certifying that they have 

demonstrated the necessary skills (such 

as detection and reporting of partially 

submerged objects). 

(D) Lookouts shall be trained in the 

most effective means to ensure quick 

and effective communication within the 

command structure to facilitate 

implementation of protective measures 

if marine species are spotted. 

(E) Surface lookouts shall scan the 

water from the ship to the horizon and 

be responsible for all contacts in their 

sector. In searching the assigned sector, 

the lookout shall always start at the 

forward part of the sector and search aft 

(toward the back). To search and scan, 

the lookout shall hold the binoculars 

steady so the horizon is in the top third 

of the field of vision and direct the eyes 

just below the horizon. The lookout 

shall scan for approximately five 

seconds in as many small steps as 

possible across the field seen through 

the binoculars. They shall search the 

entire sector in approximately fivedegree steps, pausing between steps for 

approximately five seconds to scan the 

field of view. At the end of the sector 

search, the glasses shall be lowered to 

allow the eyes to rest for a few seconds, 

and then the lookout shall search back 

across the sector with the naked eye. 

(F) At night, lookouts shall scan the 

horizon in a series of movements that 

would allow their eyes to come to 

periodic rests as they scan the sector. 

When visually searching at night, they 

shall look a little to one side and out of 

the corners of their eyes, paying 

attention to the things on the outer 

edges of their field of vision. Lookouts 

shall also have night vision devices 

available for use. 

(ii) Operating Procedures 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’’ 

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 whales 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 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 


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marine mammals that may occur at any 

time during or within 24 hours after 

completion of training activities. 

(ii) The Navy shall follow internal 

chain of command reporting procedures 

as promulgated through Navy 

instructions and orders. 

(3) Mitigation Measures Applicable to 

Vessel Transit in the Mid-Atlantic 

during North Atlantic Right Whale 

Migration: The mitigation measures 

apply to all Navy vessel transits, 

including those vessels that would 

transit to and from East Coast ports and 

the VACAPES Range Complex. 

(i) Mid-Atlantic, Offshore of the 

Eastern United States: 

(A) All Navy vessels are required to 

use extreme caution and operate at a 

slow, safe speed consistent with mission 

and safety (at a speed that does not 

compromise safety of navigation) during 

the months indicated below and within 

a 37 km (20 nm) arc (except as noted) 

of the specified associated reference 

points: 

(1) South and East of Block Island (37 

km (20 NM) seaward of line between 

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

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

Sept–Oct and Mar–Apr 

(2) New York/New Jersey (40–30.64° 

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

and Feb–Apr. 

(3) Delaware Bay (Philadelphia) (38– 

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

Dec and Feb–Mar. 

(4) Chesapeake Bay (Hampton Roads 

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

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

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

076–40.20° W. long.): Dec–Apr. 

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

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

079–48.72° W. long.): Oct–Apr. 

(B) During the months indicated in 

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

Navy vessels shall practice increased 

vigilance with respect to avoidance of 

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

from any mid-Atlantic ports not 

specifically identified in paragraph 

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

(C) All surface units transiting within 

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

watchstanders are posted, including at 

least one lookout who has completed 

required MSAT training. 

(D) Navy vessels shall not knowingly 

approach any whale head on and shall 

maneuver to keep at least 457 m (1,500 

ft) away from any observed whale, 

consistent with vessel safety. 

(ii) Southeast Atlantic, Offshore of the 

Eastern United States—for the purposes 

of the measures below (paragraphs 

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

‘‘southeast’’ encompasses sea space 

from Charleston, South Carolina, 

southward to Sebastian Inlet, Florida, 

and from the coast seaward to 148 km 

(80 NM) from shore. North Atlantic right 

whale critical habitat is the area from 

31–15° N. lat. to 30–15° N. lat. 

extending from the coast out to 28 km 

(15 NM), and the area from 28–00° N. 

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

to 9 km (5 NM). All mitigation measures 

described here that apply to the critical 

habitat apply from November 15–April 

15 and also apply to an associated area 

of concern which extends 9 km (5 NM) 

seaward of the designated critical 

habitat boundaries. 

(A) Prior to transiting or training in 

the critical habitat or associated area of 

concern, ships shall contact Fleet Area 

Control and Surveillance Facility, 

Jacksonville, to obtain latest whale 

sighting and other information needed 

to make informed decisions regarding 

safe speed (the minimum speed at 

which mission goals or safety will not 

be compromised) and path of intended 

movement. Subs shall contact 

Commander, Submarine Group Ten for 

similar information. 

(B) The following specific mitigation 

measures apply to activities occurring 

within the North Atlantic right whale 

critical habitat and an associated area of 

concern which extends 9 km (5 NM) 

seaward of the designated critical 

habitat boundaries: 

(1) When transiting within the critical 

habitat or associated area of concern, 

vessels shall exercise extreme caution 

and proceed at a slow safe speed. The 

speed shall be the slowest safe speed 

that is consistent with mission, training 

and operations. 

(2) Speed reductions (adjustments) are 

required when a whale is sighted by a 

vessel or when the vessel is within 9 km 

(5 NM) of a reported new sighting less 

than 12 hours old. Circumstances could 

arise where, in order to avoid North 

Atlantic right whale(s), speed 

reductions could mean vessels must 

reduce speed to a minimum at which it 

can safely keep on course or vessels 

could come to an all stop. 

(3) Vessels shall avoid head-on 

approaches to North Atlantic right 

whale(s) and shall maneuver to 

maintain at least 457 m (500 yd) of 

separation from any observed whale if 

deemed safe to do so. These 

requirements do not apply if a vessel’s 

safety is threatened, such as when a 

change of course would create an 

imminent and serious threat to a person, 

vessel, or aircraft, and to the extent 

vessels are restricted in the ability to 

maneuver. 

(4) During the North Atlantic right 

whale calving season, north-south 

transits through the critical habitat are 

prohibited. 

(5) Ships, surfaced subs, and aircraft 

shall report any whale sightings to Fleet 

Area Control and Surveillance Facility, 

Jacksonville, by the quickest and most 

practicable means. The sighting report 

shall include the time, latitude/ 

longitude, direction of movement and 

number and description of whale (i.e., 

adult/calf). 

(iii) Northeast Atlantic, Offshore of 

the Eastern United States: 

(A) Prior to transiting the Great South 

Channel or Cape Cod Bay critical habitat 

areas, ships shall obtain the latest North 

Atlantic right whale sightings and other 

information needed to make informed 

decisions regarding safe speed (the 

minimum speed at which mission goals 

or safety will not be compromised). The 

Great South Channel critical habitat is 

defined by the following coordinates: 

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

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

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

W. long. The Cape Cod Bay critical 

habitat is defined by the following 

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

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

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

N. lat., 70–30° W. long. 

(B) Ships, surfaced subs, and aircraft 

shall report any North Atlantic right 

whale sightings (if the whale is 

identifiable as a right whale) off the 

northeastern U.S. to Patrol and 

Reconnaissance Wing 

(COMPATRECONWING). The report 

shall include the time of sighting, lat/ 

long, direction of movement (if 

apparent) and number and description 

of the whale(s). 

(C) Vessels or aircraft that observe 

whale carcasses shall record the 

location and time of the sighting and 

report this information as soon as 

possible to the cognizant regional 

environmental coordinator. All whale 

strikes must be reported. This report 

shall include the date, time, and 

location of the strike; vessel course and 

speed; operations being conducted by 

the vessel; weather conditions, 

visibility, and sea state; description of 

the whale; narrative of incident; and 

indication of whether photos/videos 

were taken. Navy personnel are 

encouraged to take photos whenever 

possible. 

(D) Specific mitigation measures 

related to activities occurring within the 

critical habitat include the following: 

(1) Vessels shall avoid head-on 

approaches to North Atlantic right 

whale(s) and shall maneuver to 

maintain at least 457 m (500 yd) of 


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28346 Federal Register / Vol. 74, No. 113 / Monday, June 15, 2009 / Rules and Regulations 

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 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) FIREX using IMPASS would only 

be conducted in the four designated 

areas specified in the Navy’s LOA 

application in the VACAPES 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 be required to 

maintain a lookout dedicated to visually 

searching for marine mammals 180° 

along the ship track line and 360° at 

each buoy drop-off location. 

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

used to monitor a 600 yd (548 m) buffer 

zone around the target area 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 until the area is cleared. 

If marine mammals are present, 

operations shall be suspended. Visual 

observation shall occur for 

approximately 45 minutes, or until the 

animal has been observed to have 

cleared the area and is heading away 

from the buffer zone. 

(E) Post-exercise monitoring of the 

entire target area shall take place with 

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

retrieval of the IMPASS sonobuoy array 

following each firing exercise. 

(F) FIREX with IMPASS 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 At-Sea Bombing 

Exercises (250-lbs to 2,000-lbs explosive 

bombs): 

(A) Aircraft shall visually survey the 

target and buffer zone for marine 

mammals prior to and during the 

exercise. The survey of the impact area 

shall be made by flying at 1,500 ft (457 

m) altitude or lower, if safe to do so, and 

at the slowest safe speed. 

(B) A buffer zone of 5,100-yd (4,663 

m) radius shall be established around 

the intended target zone. The exercises 

shall be conducted only when marine 

mammals are observed to be outside the 

buffer zone. 

(C) At-sea BOMBEXs using live 

ordnance shall occur during daylight 

hours only. 

(iii) 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 mammal 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. 

(iv) Mine Neutralization Training 

Involving Underwater Detonations (up 

to 20-lb charges): 

(A) This activity shall only occur in 

W–50 of the VACAPES Range Complex. 

(B) Observers shall survey the Zone of 

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

from detonation location for marine 

mammals from all participating vessels 

during the entire operation. A survey of 

the ZOI (minimum of 3 parallel 

tracklines 219 yd [200 m] apart) using 

support craft shall be conducted at the 

detonation location 30 minutes prior 

through 30 minutes post detonation. 

Aerial survey support shall be utilized 

whenever assets are available. 

(C) Detonation operations shall be 

conducted during daylight hours only. 

(D) If a marine mammal is sighted 

within the ZOI, the animal shall be 

allowed to leave of its own volition. The 

Navy shall suspend detonation exercises 

and ensure the area is clear of marine 

mammals for a full 30 minutes prior to 

detonation. 

(E) Divers placing the charges on 

mines and dive support vessel 

personnel shall survey the area for 

marine mammals and shall report any 

sightings to the surface observers. These 

animals shall be allowed to leave of 

their own volition and the ZOI shall be 

clear of marine mammals for 30 minutes 

prior to detonation. 

(F) No detonations shall take place 

within 3.2 nm (6 km) of an estuarine 

inlet (Chesapeake Bay Inlets). 

(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. 

(b) [Reserved] 

§ 218.5 Requirements for monitoring and 

reporting. 

(a) The Holder of the Letter of 

Authorization issued pursuant to 

§ 216.106 of this chapter and § 218.7 for 

activities described in § 218.1(c) is 

required to cooperate with the NMFS 

when monitoring the impacts of the 

activity on marine mammals. 

(b) The Holder of the Authorization 

must notify NMFS immediately (or as 

soon as clearance procedures allow) if 

the specified activity identified in 

§ 218.1(c) is thought to have resulted in 

the mortality or serious injury of any 

marine mammals, or in any take of 

marine mammals not identified in 

§ 218.2(c). 

(c) The Navy must conduct all 

monitoring and required reporting 

under the Letter of Authorization, 

including abiding by the VACAPES 

Range Complex Monitoring Plan, which 

is incorporated herein by reference, and 

which requires the Navy to implement, 

at a minimum, the monitoring activities 

summarized below. 

(1) Vessel or aerial surveys. (i) The 

Holder of this Authorization shall 

visually survey a minimum of 2 

explosive events per year, one of which 

shall be a multiple detonation event. 


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Federal Register / Vol. 74, No. 113 / Monday, June 15, 2009 / Rules and Regulations 28347 

One of the vessel or aerial surveys 

should involve professionally trained 

marine mammal observers (MMOs). 

(ii) Where 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 munition type in use at time of 

marine mammal detection. 

(2) Passive acoustic monitoring—the 

Navy shall conduct passive acoustic 

monitoring when operationally feasible. 

(i) Any time a towed hydrophone 

array is employed during shipboard 

surveys the towed array shall be 

deployed during daylight hours for each 

of the days the ship is at sea. 

(ii) The towed hydrophone array shall 

be used to supplement the ship-based 

systematic line-transect surveys 

(particularly for species such as beaked 

whales that are rarely seen). 

(iii) The array shall have the 

capability of detecting low frequency 

vocalizations (<1,000 Hz) for baleen 

whales and relatively high frequency 

(up to 30 kHz) for odontocetes. The use 

of two simultaneously deployed arrays 

can also allow more accurate 

localization and determination of diving 

patterns. 

(3) Marine mammal observers on 

Navy platforms. (i) As required in 

§ 218.5(c)(1), MMOs selected for aerial 

or vessel survey shall be placed on a 

Navy platform during one of the 

explosive exercises being monitored per 

year, the other designated exercise shall 

be monitored by the Navy lookouts/ 

watchstanders. 

(ii) The MMO must possess expertise 

in species identification of regional 

marine mammal species and experience 

collecting behavioral data. 

(iii) MMOs shall not be placed aboard 

Navy platforms for every Navy training 

event or major exercise, but during 

specifically identified opportunities 

deemed appropriate for data collection 

efforts. The events selected for MMO 

participation shall take into account 

safety, logistics, and operational 

concerns. 

(iv) MMOs shall observe from the 

same height above water as the 

lookouts. 

(v) The MMOs shall not be part of the 

Navy’s formal reporting chain of 

command during their data collection 

efforts; Navy lookouts shall continue to 

serve as the primary reporting means 

within the Navy chain of command for 

marine mammal sightings. The only 

exception is that if an animal is 

observed within the shutdown zone that 

has not been observed by the lookout, 

the MMO shall inform the lookout of the 

sighting and the lookout shall take the 

appropriate action through the chain of 

command. 

(vi) The MMOs shall collect species 

identification, behavior, direction of 

travel relative to the Navy platform, and 

distance first observed. Information 

collected by MMOs be the same as those 

collected by Navy lookout/ 

watchstanders described in 

§ 218.5(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 VACAPES 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 VACAPES 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 VACAPES 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 VACAPES Range 

Complex Monitoring Plan shall, at a 

minimum, provide the same marine 

mammal observation data required in 

the data required in § 218.5(g). The 

VACAPES Range Complex Monitoring 

Plan Report may be provided to NMFS 

within a larger report that includes the 

required Monitoring Plan Reports from 

VACAPES Range Complex and multiple 

range complexes. 

(g) Annual VACAPES 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 


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28348 Federal Register / Vol. 74, No. 113 / Monday, June 15, 2009 / Rules and Regulations 

final rule) conducted in the VACAPES 

Range Complex. 

(2) Total annual expended/detonated 

rounds (missiles, bombs, etc.) for each 

explosive type. 

(h) VACAPES 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 VACAPES Range 

Complex exercises for which annual 

reports are required (Annual VACAPES 

Range Complex Exercise Reports and 

VACAPES 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 

VACAPES Range Complex 

Comprehensive Report, the Annual 

VACAPES Range Complex Exercise 

Report, or the Annual VACAPES 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 shall be 

considered final after the Navy has 

addressed NMFS’ comments or 

provided the requested information, or 

three months after the submittal of the 

draft if NMFS does not comment by 

then. 

(j) In 2011, the Navy shall convene a 

Monitoring Workshop in which the 

Monitoring Workshop participants will 

be asked to review the Navy’s 

Monitoring Plans and monitoring results 

and make individual recommendations 

(to the Navy and NMFS) of ways of 

improving the Monitoring Plans. The 

recommendations shall be reviewed by 

the Navy, in consultation with NMFS, 

and modifications to the Monitoring 

Plan shall be made, as appropriate. 

§ 218.6 Applications for Letters of 

Authorization. 

To incidentally take marine mammals 

pursuant to these regulations in this 

subpart, the U.S. citizen (as defined by 

§ 216.103) conducting the activity 

identified in § 218.1(c) (the U.S. Navy) 

must apply for and obtain either an 

initial Letter of Authorization in 

accordance with § 218.7 or a renewal 

under § 218.8. 

§ 218.7 Letters of Authorization. 

(a) A Letter of Authorization, unless 

suspended or revoked, will be valid for 

a period of time not to exceed the period 

of validity of this subpart, but must be 

renewed annually subject to annual 

renewal conditions in § 218.8. 

(b) Each Letter of Authorization will 

set forth: 

(1) Permissible methods of incidental 

taking; 

(2) Means of effecting the least 

practicable adverse impact on the 

species, its habitat, and on the 

availability of the species for 

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

(3) Requirements for mitigation, 

monitoring and reporting. 

(c) Issuance and renewal of the Letter 

of Authorization will be based on a 

determination that the total number of 

marine mammals taken by the activity 

as a whole will have no more than a 

negligible impact on the affected species 

or stock of marine mammal(s). 

§ 218.8 Renewal of Letters of 

Authorization and adaptive management. 

(a) A Letter of Authorization issued 

under § 216.106 of this chapter and 

§ 218.7 for the activity identified in 

§ 218.1(c) will be renewed annually 

upon: 

(1) Notification to NMFS that the 

activity described in the application 

submitted under § 218.6 will be 

undertaken and that there will not be a 

substantial modification to the 

described work, mitigation or 

monitoring undertaken during the 

upcoming 12 months; 

(2) Timely receipt of the monitoring 

reports required under § 218.5(c) 

through (i); and 

(3) A determination by NMFS that the 

mitigation, monitoring and reporting 

measures required under § 218.4 and the 

Letter of Authorization issued under 

§ 216.106 of this chapter and § 218.7, 

were undertaken and will be undertaken 

during the upcoming annual period of 

validity of a renewed Letter of 

Authorization. 

(b) If a request for a renewal of a 

Letter of Authorization issued under 

§ 216.106 of this chapter and § 218.8 

indicates that a substantial modification 

to the described work, mitigation or 

monitoring undertaken during the 

upcoming season will occur, NMFS will 

provide the public a period of 30 days 

for review and comment on the request. 

Review and comment on renewals of 

Letters of Authorization are restricted 

to: 

(1) New cited information and data 

indicating that the determinations made 

in this document are in need of 

reconsideration, and 

(2) Proposed changes to the mitigation 

and monitoring requirements contained 

in these regulations or in the current 

Letter of Authorization. 

(c) A notice of issuance or denial of 

a renewal of a Letter of Authorization 

will be published in the Federal 

Register. 

(d) NMFS, in response to new 

information and in consultation with 

the Navy, may modify the mitigation or 

monitoring measures in subsequent 

LOAs if doing so creates a reasonable 

likelihood of more effectively 

accomplishing the goals of mitigation 

and monitoring set forth in the preamble 

of these regulations. Below are some of 

the possible sources of new data that 

could contribute to the decision to 

modify the mitigation or monitoring 

measures: 

(1) Results from the Navy’s 

monitoring from the previous year 

(either from VACAPES Range Complex 

or other locations). 

(2) Findings of the Monitoring 

Workshop that the Navy will convene in 

2011 (§ 218.5(j)). 

(3) Compiled results of Navy funded 

research and development (R&D) studies 

(presented pursuant to the ICMP 

(§ 218.5(d)). 

(4) Results from specific stranding 

investigations (either from the VACAPE 

Range Complex Study Area or other 

locations, and involving coincident 

explosives training or not involving 

coincident use). 

(5) Results from general marine 

mammal and sound research (funded by 

the Navy or otherwise). 

(6) Any information which reveals 

that marine mammals may have been 

taken in a manner, extent or number not 

authorized by these regulations or 

subsequent Letters of Authorization. 

§ 218.9 Modifications to Letters of 

Authorization. 

(a) Except as provided in paragraph 

(b) of this section, no substantive 

modification (including withdrawal or 

suspension) to the Letter of 

Authorization by NMFS, issued 

pursuant to § 216.106 of this chapter 

and § 218.7 and subject to the 

provisions of this subpart shall be made 

until after notification and an 

opportunity for public comment has 

been provided. For purposes of this 

paragraph, a renewal of a Letter of 

Authorization under § 218.8, without 

modification (except for the period of 

validity), is not considered a substantive 

modification. 

(b) If the Assistant Administrator 

determines that an emergency exists 

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

mammals specified in § 218.2(c), a 

Letter of Authorization issued pursuant 

to § 216.106 of this chapter and § 218.7 

may be substantively modified without 

prior notification and an opportunity for 

public comment. Notification will be 


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

published in the Federal Register 

within 30 days subsequent to the action. 

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

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 218 

RIN 0648–AW79 

Taking and Importing Marine 

Mammals; U.S. Navy Training in the 

Jacksonville Range Complex 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS, upon application from 

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

regulations to govern the unintentional 

taking of marine mammals incidental to 

activities conducted off the Charleston/ 

Jacksonville (JAX) Range Complex for 

the period of June 2009 through June 

2014. The Navy’s activities are 

considered military readiness activities 

pursuant to the Marine Mammal 

Protection Act (MMPA), as amended by 

the National Defense Authorization Act 

for Fiscal Year 2004 (NDAA). These 

regulations, which allow for the 

issuance of ‘‘Letters of Authorization’’ 

(LOAs) for the incidental take of marine 

mammals during the described activities 

and specified timeframes, prescribe the 

permissible methods of taking and other 

means of effecting the least practicable 

adverse impact on marine mammal 

species and their habitat, as well as 

requirements pertaining to the 

monitoring and reporting of such taking. 

DATES: Effective June 8, 2009 and is 

applicable to the Navy on June 5, 2009 

through June 4, 2014. 

ADDRESSES: A copy of the Navy’s 

application (which contains a list of the 

references used in this document), 

NMFS’ Record of Decision (ROD), and 

other documents cited herein may be 

obtained by writing to Michael Payne, 

Chief, Permits, Conservation and 

Education Division, Office of Protected 

Resources, National Marine Fisheries 

Service, 1315 East-West Highway, Silver 

Spring, MD 20910–3225 or by telephone 

via the contact listed here (see FOR

FURTHER INFORMATION CONTACT). 

FOR FURTHER INFORMATION CONTACT: 

Shane Guan, Office of Protected 

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

137. 

SUPPLEMENTARY INFORMATION: Extensive 

supplementary information was 

provided in the proposed rule for this 

activity, which was published in the 

Federal Register on Wednesday, 

December 17, 2008 (73 FR 76578). This 

information will not be reprinted here 

in its entirety; rather, all sections from 

the proposed rule will be represented 

herein and will contain either a 

summary of the material presented in 

the proposed rule or a note referencing 

the page(s) in the proposed rule where 

the information may be found. Any 

information that has changed since the 

proposed rule was published will be 

addressed herein. Additionally, this 

final rule contains a section that 

responds to the comments received 

during the public comment period. 

Background 

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

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

the Secretary of Commerce (Secretary) 

to allow, upon request, the incidental, 

but not intentional taking of marine 

mammals by U.S. citizens who engage 

in a specified activity (other than 

commercial fishing) during periods of 

not more than five consecutive years 

each if certain findings are made and 

regulations are issued or, if the taking is 

limited to harassment and of no more 

than 1 year, the Secretary shall issue a 

notice of proposed authorization for 

public review. 

Authorization shall be granted if 

NMFS finds that the taking will have a 

negligible impact on the species or 

stock(s), will not have an unmitigable 

adverse impact on the availability of the 

species or stock(s) for subsistence uses, 

and if the permissible methods of taking 

and requirements pertaining to the 

mitigation, monitoring and reporting of 

such taking are set forth. 

NMFS has defined ‘‘negligible 

impact’’ in 50 CFR 216.103 as: 

An impact resulting from the specified 

activity that cannot be reasonably expected 

to, and is not reasonably likely to, adversely 

affect the species or stock through effects on 

annual rates of recruitment or survival. 

The NDAA (Pub. L. 108–136) 

removed the ‘‘small numbers’’ and 

‘‘specified geographical region’’ 

limitations and amended the definition 

of ‘‘harassment’’ as it applies to a 

‘‘military readiness activity’’ to read as 

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

(i) Any act that injures or has the 

significant potential to injure a marine 

mammal or marine mammal stock in the wild 

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

disturbs or is likely to disturb a marine 

mammal or marine mammal stock in the wild 

by causing disruption of natural behavioral 

patterns, including, but not limited to, 

migration, surfacing, nursing, breeding, 

feeding, or sheltering, to a point where such 

behavioral patterns are abandoned or 

significantly altered [Level B Harassment]. 

Summary of Request 

On March 17, 2008, NMFS received 

an application from the Navy requesting 

authorization for the take of six species 

of cetaceans incidental to the proposed 

training activities in the JAX Range 

Complex over the course of 5 years. On 

November 7, 2008, the Navy submitted 

an Addendum with some modifications 

and additional information to its 

original request. These training 

activities are classified as military 

readiness activities. The Navy states that 

these training activities may cause 

various impacts to marine mammal 

species in the proposed JAX Range 

Complex area. The Navy requests an 

authorization to take individuals of 

these cetacean species by Level B 

Harassment. Further, the Navy requests 

authorization to take 2 individual 

Atlantic spotted dolphins per year by 

injury incidental to the proposed 

training activities in the JAX Range 

Complex. Please refer to Table 5 of this 

document for detailed information of 

the potential exposures from explosive 

ordnance (per year) for marine 

mammals in the JAX Range Complex. 

However, due to the proposed 

mitigation and monitoring measures, 

NMFS does not expect the proposed 

action would result in any marine 

mammal mortality. Therefore, no 

mortality would be authorized for the 

Navy’s JAX Range Complex training 

activities. 

Background of Navy Request 

The proposed rule contains a 

description of the Navy’s mission, their 

responsibilities pursuant to Title 10 of 

the United States Code, and the specific 

purpose and need for the activities for 

which they requested incidental take 

authorization. The description 

contained in the proposed rule has not 

changed (73 FR 76578; December 17, 

2008). 

Description of the Specified Activities 

The proposed rule contains a 

complete description of the Navy’s 

specified activities that are covered by 

these final regulations, and for which 

the associated incidental take of marine 

mammals will be authorized in the 

related LOAs. The proposed rule 

describes the nature and number of the 

training activities. These training 

activities consist of surface warfare 

[Missile Exercise (MISSILEX)], mine 

warfare [Mine Exercises (MINEX)], 

amphibious warfare [Firing Exercise 


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