[Federal Register Volume 74, Number 133 (Tuesday, July 14, 2009)]
[Proposed Rules]
[Pages 33960-33986]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-16537]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 218

RIN 0648-AX86


Taking of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Training Operations Conducted 
Within the Gulf of Mexico Range Complex

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS has received requests from the U.S. Navy (Navy) for 
authorizations for the take of marine mammals incidental to training 
and operational activities conducted by the Navy's Atlantic Fleet 
within the Gulf of Mexico (GOMEX) Range Complex for the period 
beginning December 3, 2009 and ending December 2, 2014. Pursuant to the 
implementing regulations of the Marine Mammal Protection Act (MMPA), 
NMFS is proposing regulations to govern that take and requesting 
information, suggestions, and comments on these proposed regulations.

DATES: Comments and information must be received no later than August 
13, 2009.

ADDRESSES: You may submit comments, identified by 0648-AX86, by any one 
of the following methods:
    <bullet> Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal http://www.regulations.gov.
    <bullet> Hand delivery or mailing of paper, disk, or CD-ROM 
comments should be addressed to Michael Payne, Chief, Permits, 
Conservation and Education Division, Office of Protected Resources, 
National Marine Fisheries Service, 1315 East-West Highway, Silver 
Spring, MD 20910-3225.
    Instructions: All comments received are part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information.
    NMFS will accept anonymous comments (enter NA in the required

[[Page 33961]]

fields if you wish to remain anonymous). Attachments to electronic 
comments will be accepted in Microsoft Word, Excel, WordPerfect, or 
Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Shane Guan, Office of Protected 
Resources, NMFS, (301) 713-2289, ext. 137.

SUPPLEMENTARY INFORMATION:

Availability

    A copy of the Navy's application may be obtained by writing to the 
address specified above (See ADDRESSES), telephoning the contact listed 
above (see FOR FURTHER INFORMATION CONTACT), or visiting the Internet 
at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. 
The Navy's Draft Environmental Impact Statement (DEIS) for the GOMEX 
Range Complex was published in November 2008, and may be viewed at 
http://www.gomexrangecomplexeis.com/. NMFS participated in the 
development of the Navy's DEIS as a cooperating agency under the 
National Environmental Policy Act (NEPA).

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce (Secretary) to allow, upon request, 
the incidental, but not intentional taking of marine mammals by U.S. 
citizens who engage in a specified activity (other than commercial 
fishing) 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 for incidental takings may 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.

    With respect to military readiness activities, the MMPA defines 
``harassment'' as:

    (i) Any act that injures or has the significant potential to 
injure a marine mammal or marine mammal stock in the wild [Level A 
Harassment]; or (ii) any act that disturbs or is likely to disturb a 
marine mammal or marine mammal stock in the wild by causing 
disruption of natural behavioral patterns, including, but not 
limited to, migration, surfacing, nursing, breeding, feeding, or 
sheltering, to a point where such behavioral patterns are abandoned 
or significantly altered [Level B Harassment].

Summary of Request

    On October 2, 2008, NMFS received an application from the Navy 
requesting an authorization for the take of marine mammal species/
stocks incidental to the proposed training operations within the GOMEX 
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 GOMEX Range Complex Study Area. The Navy requests an 
authorization to take 8 species of cetaceans annually by Level B 
harassment, and 1 individual each of pantropical spotted dolphin and 
spinner dolphin by Level A harassment (injury). Please refer to the 
take table on page 6-17 of the LOA application for detailed information 
of the potential exposures from explosive ordnance (per year) for 
marine mammals in the GOMEX Range Complex. However, due to the 
implementation of the proposed mitigation and monitoring measures, NMFS 
believes that the actual take would be less than estimated.

Description of the Specified Activities

    The GOMEX Study Area encompasses areas at sea, undersea, and 
Special Use Airspace (SUA) in the northern Gulf of Mexico off the coast 
of the U.S. (Figures 1 and 2 of the LOA application). The portions of 
the GOMEX Study Area to be considered for the proposed action consist 
of the BOMBEX Hotbox (surface and subsurface waters) located within the 
Pensacola Operation Area (OPAREA), SUA warning areas W-151A/B/C and W-
155A/B (surface waters), and underwater detonation (UNDET) Area E3 
(surface and subsurface waters), located within the territorial waters 
off Padre Island, Texas, near Corpus Christi NAS. The portions of the 
GOMEX Study Area addressed in the Navy's LOA application encompass:
    <bullet> 1,496 nm\2\ (5,131 km\2\) of sea space (BOMBEX Hotbox, 
where high explosives occur, and UNDET Area E3 where underwater 
detonations occur); and
    <bullet> 11,714 nm\2\ (40,178 km\2\) of SUA warning areas (vessel 
movements only) The BOMBEX Hotbox is an in-water operating and 
maneuvers area with defined air, ocean surface, and subsurface areas. 
The BOMBEX Hotbox is located in the offshore waters of the northeastern 
Gulf of Mexico (GOM) adjacent to Florida and Alabama. The northernmost 
boundary of the BOMBEX Hotbox is located 23 nm (42.6 km) from the coast 
of the Florida panhandle at latitude 30 [deg]N, the eastern boundary is 
approximately 200 nm (370.4 km) from the coast of the Florida peninsula 
at longitude 86[deg]48' W.
    The SUA warning areas, W-151A/B/C and W-155A/B, are in-water 
operating and maneuver areas with defined air and ocean surface. W-
151A/B/C and W-155A/B are located in and above the offshore waters of 
the northeastern GOM adjacent to Florida and Alabama.
    The UNDET Area E3 is a defined surface and subsurface area located 
in the waters south of Corpus Christi NAS and offshore of Padre Island, 
Texas. The westernmost boundary is located 7.5 nm (13.9 km) from the 
coast of Padre Island at 97[deg]9'33'' W and 27[deg]24'26'' N at the 
Western most corner. It lies entirely within the territorial waters (0 
to 12 nm, or 0 to 22.2 km) of the U.S. and the majority of it lies 
within Texas state waters (0 to 9 nm, or 0 to 16.7 km). It is a very 
shallow water training area with depths ranging from 20 to 26 m.
    In the application submitted to NMFS, the Navy requests an 
authorization to take marine mammals incidental to conducting training 
operations within the GOMEX Range Complex. These training activities 
consist of surface warfare. Although vessel movement is also a 
component of the proposed GOMEX Range Complex training activities, the 
Navy concludes that it is unlikely marine mammals would be taken by 
vessel movement with the implementation of mitigation and monitoring 
measures described in the Mitigation Measures and Monitoring Measures 
sections.

Surface Warfare

    Surface Warfare (SUW) supports defense of a geographical area 
(e.g., a zone or barrier) in cooperation with surface, subsurface, and 
air forces. SUW operations detect, localize, and track surface targets, 
primarily ships. Detected ships are monitored visually and with radar. 
Operations include identifying surface contacts, engaging with weapons, 
disengaging, evasion, and avoiding attack, including implementation of 
radio silence and deceptive measures. For the proposed GOMEX Range 
Complex training operations, SUW events involving the use of explosive 
ordnance include air-to-surface Bombing Exercises [BOMEX (A-S)] and 
small arms training (involving explosive hand grenades) that occur at 
sea.

[[Page 33962]]

(A) Bombing Exercise (Air-to-Surface) [BOMEX (A-S)]
    Strike fighter aircraft, such as F/A-18s, deliver explosive bombs 
against at-sea surface targets with the goal of destroying the target. 
BOMBEX (A-S) training in the GOMEX Study Area occurs only during 
daylight hours in the BOMBEX Hotbox area.
    For the proposed BOMBEX (A-S), two aircraft will approach an at-sea 
target from an altitude of between 15,000 ft (4,572 m) to less than 
3,000 ft (914.4 m) and release a high explosive (HE) 1,000-pound (lb) 
bomb on the target. MK-83 bombs would be used. MK-83 bombs have a net 
explosive weight (NEW) of 415.8 lbs. The typical bomb release altitude 
is below 3,000 ft (914.4 m) and the target is usually a flare. The time 
in between bomb drops is approximately 3 minutes.
(B) Small Arms Training (Explosive Hand Grenades)
    Small arms training is a part of quarterly reservist training and 
operational activities for the Mobile Expeditionary Security Group 
(MESG) that operates out of Corpus Christi Naval Air Station (NAS). The 
MESG trains with MK3A2 (0.5-lb NEW) anti-swimmer concussion grenades. 
The MK3A2 grenades are small and contain high explosives in an inert 
metal or plastic shell. They detonate at about 3 m under the water's 
surface within 4 to 5 seconds of being deployed. The detonation depth 
may be shallower depending upon the speed of the boat at the time the 
grenade is deployed.
    A number of different types of boats will be used depending on the 
unit using the boat and their mission. Boats are mostly used by naval 
special warfare (NSW) teams and Navy Expeditionary Combat Command 
(NECC) units (Naval Coastal Warfare, Inshore Boat Units, Mobile 
Security Detachments, Explosive Ordnance Disposal, and Riverine 
Forces). These units are used to protect ships in harbors and high 
value units, such as aircraft carriers, nuclear submarines, liquid 
natural gas tankers, etc., while entering and leaving ports, as well as 
to conduct riverine operations, insertion and extractions, and various 
NSW operations.
    The boats used by these units include: Small Unit River Craft 
(SURC), Combat Rubber Raiding Craft (CRRC), Rigid Hull Inflatable Boats 
(RHIB), Patrol Craft, and many other versions of these types of boats. 
These boats use inboard or outboard, diesel or gasoline engines with 
either propeller or water jet propulsion.
    This exercise is usually a live-fire exercise with M3A2 Anti-
swimmer Concussion Grenades, but at times blanks may be used so boat 
crews can practice their ship-handling skills for the employment of 
weapons without being concerned with the safety requirements involved 
with HE weapons. Boat crews may use high or low speeds to approach and 
engage targets simulating swimmers with anti-swimmer concussion 
grenades. The purpose of this exercise is to develop marksmanship 
skills and small boat ship-handling tactics skills required to employ 
these weapons. Training usually lasts 1-2 hours. Small arms training in 
the GOMEX Study Area will occur during day or evening hours in the 
UNDET Area E3.
    Table 1 summarizes the level of Surface Warfare training activities 
planned in the GOMEX Range Complex for the proposed action.

                            Table 1--Level of Surface Warfare Training Activities Planned in the GOMEX Range Complex per Year
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                      Potential time of
            Operation                   Platform         System/ordnance      Number of events      Training area            day         Event  duration
--------------------------------------------------------------------------------------------------------------------------------------------------------
Bombing Exercise (BOMBEX) (Air-   F/A-18.............  MK-831,000-lb High   1 event (4 bombs in  BOMBEX Hotbox.....  Daytime only......  1 hour.
 to-Surface, At-Sea).                                   Explosive (HE)       succession).
                                                        bomb] 415.8 lbs
                                                        NEW.
Small Arms Training.............  Maritime             MK3A2 anti-swimmer   6 events* (20 live   UNDET Area E3.....  Day or night......  1 hour.
                                   Expeditionary        grenades (8-oz HE    grenades).
                                   Support Group        grenade) 0.5 lb
                                   (Various Small       NEW.
                                   Boats).
--------------------------------------------------------------------------------------------------------------------------------------------------------
* An individual event can include detonation of up to 10 live grenades, but no more than 20 live grenades will be used per year.

Vessel Movement

    Vessel movements are associated with most training and operational 
activities in the GOMEX Study Area. Currently, the number of Navy 
vessels operating in the GOMEX Study Area varies based on training 
schedules and can range from 0 to about 10 vessels at any given time. 
Vessel sizes range from small boats (<35 ft, or 10.7 m) for a harbor 
security boat to 1,092 ft (332.8 m) for a CVN (carrier vessel nuclear) 
and speeds generally range from 10 to 14 knots, but may be considerably 
faster, for example an aircraft carrier ``making wind'' while launching 
and recovering aircraft, and for small boat operations. 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 GOMEX Study Area, which is an area 
encompassing 11,714 nm\2\ (40,178 km\2\). Most vessel movements occur 
in the offshore OPAREAs, but vessel movements associated with MESG 
training in the UNDET Area E3 and Commander Naval Installations Command 
(CNIC) harbor security group training in the Panama City OPAREA occur 
between shore and 12 nm (22.2 km), including the nearshore zone (<3 nm, 
or 5.6 km). The Navy logs about 180 total vessel days within the GOMEX 
Study Area during a typical year. Consequently, the density of Navy 
vessels within the GOMEX Study Area at any given time is low (i.e., 
less than 0.0113 ships/nm\2\ (0.0386 km\2\)).

Description of Marine Mammals in the Area of the Specified Activities

    Twenty-nine marine mammal species have confirmed or potential 
occurrence in the GOMEX Study Area. These include 28 cetacean species 
and 1 sirenian species (DoN, 2007a), which can be found in Table 2. 
Although it is possible that any of the 29 species of marine mammals 
may occur in the Study Area, only 21 of those species are expected to 
occur regularly in the region. Most cetacean species are in the Study 
Area year-round (e.g., sperm whales and bottlenose dolphins), while a 
few (e.g., fin whales and killer whales) have accidental or transient 
occurrence in the area.

[[Page 33963]]



     Table 2--Marine Mammal Species Found in the GOMEX Range Complex
------------------------------------------------------------------------
   Family and scientific name         Common name       Federal status
------------------------------------------------------------------------
Order Cetacea
------------------------------------------------------------------------
                   Suborder Mysticeti (baleen whales)
------------------------------------------------------------------------
Eubalaena glacialis.............  North Atlantic      Endangered.
                                   right whale.
Megaptera novaeangliae..........  Humpback whale....  Endangered.
Balaenoptera acutorostrata......  Minke whale.......
B. brydei.......................  Bryde's whale.....
B. borealis.....................  Sei whale.........  Endangered.
B. physalus.....................  Fin whale.........  Endangered.
B. musculus.....................  Blue whale........  Endangered.
------------------------------------------------------------------------
                  Suborder Odontoceti (toothed whales)
------------------------------------------------------------------------
Physeter macrocephalus..........  Sperm whale.......  Endangered.
Kogia breviceps.................  Pygmy sperm whale.
K. sima.........................  Dwarf sperm whale.
Ziphius cavirostris.............  Cuvier's beaked
                                   whale.
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...
Lagenodephis hosei..............  Fraser's dolphin..
Grampus griseus.................  Risso's dolphin...
Peponocephala electra...........  Melon-headed whale
Feresa attenuata................  Pygmy killer whale
Pseudorca crassidens............  False killer whale
Orcinus orca....................  Killer whale......
G. macrorhynchus................  Short-finned pilot
                                   whale.
------------------------------------------------------------------------
                              Order Sirenia
------------------------------------------------------------------------
Trichechus manatus..............  West Indian         Endangered.
                                   manatee.
------------------------------------------------------------------------

    The information contained in this section relies heavily on the 
data gathered in the Marine Resources Assessments (MRAs). The Navy MRA 
Program was implemented by the Commander, Fleet Forces Command, to 
initiate collection of data and information concerning the protected 
and commercial marine resources found in the Navy's OPAREAs. 
Specifically, the goal of the MRA program is to describe and document 
the marine resources present in each of the Navy's OPAREAs. The MRA for 
the GOMEX OPAREA was published in 2007 (DoN, 2007a). The MRA data were 
used to provide a regional context for each species. The MRA represents 
a compilation and synthesis of available scientific literature (e.g., 
journals, periodicals, theses, dissertations, project reports, and 
other technical reports published by government agencies, private 
businesses, or consulting firms), and NMFS reports including stock 
assessment reports (SARs), recovery plans, and survey reports. This 
information was used to evaluate the potential for occurrence of marine 
mammal species in the GOMEX Study Area.
    The density estimates that were used in previous Navy environmental 
documents have been recently updated to provide a compilation of the 
most recent data and information on the occurrence, distribution, and 
density of marine mammals. The updated density estimates presented in 
this LOA application are derived from the Navy OPAREA Density Estimates 
(NODEs) for the GOMEX OPAREA report (DoN, 2007b).
    Density estimates for cetaceans were either modeled using available 
line-transect survey data or derived using cetacean abundance estimates 
found in the 2006 NOAA stock assessment reports (SARs) (Waring et al., 
2007), which can be viewed at http://www.nmfs.noaa.gov/pr/sars/species.htm. The abundance estimates in the stock assessment reports 
are from Mullin and Fulling (2004).
    For the model-based approach, density estimates were calculated for 
each species within areas containing survey effort. A relationship 
between these density estimates and the associated environmental 
parameters such as depth, slope, distance from the shelf break, sea 
surface temperature (SST), and chlorophyll a (chl a) concentration was 
formulated using generalized additive models (GAMs). This relationship 
was then used to generate a two-dimensional density surface for the 
region by predicting densities in areas where no survey data exist.
    The analyses for cetaceans were based on sighting data collected 
through shipboard surveys conducted by NMFS SEFSC between 1996 and 
2004. Species-specific density estimates derived through spatial 
modeling were compared with abundance estimates found in the 2006 NOAA 
SARs to ensure consistency. All spatial models and density estimates 
were reviewed by and coordinated with NMFS Science

[[Page 33964]]

Center technical staff and scientists with the University of St. 
Andrews, Scotland, Centre for Environmental and Ecological Modeling 
(CREEM). For a more detailed description of the methods involved in 
calculating the density estimates provided in this LOA request, please 
refer to the NODE report for the GOMEX OPAREA (DoN, 2007b). The 
following lists how density estimates were derived for each species:

Model-Derived Density Estimates--Line Transect Survey Data

    Sperm whale, dwarf and pygmy sperm whales, beaked whales, rough-
toothed dolphin, bottlenose dolphin (Tursiops truncatus), pantropical 
spotted dolphin, Atlantic spotted dolphin, striped dolphin, spinner 
dolphin, and Risso's dolphin.

Stock Assessment Report or Literature-Derived Density Estimates

    Bryde's whale, Clymene dolphin, Fraser's dolphin, killer whale, 
false killer whale, pygmy killer whale, melon-headed whale, short-
finned pilot whale.

Potential Impacts to Marine Mammal Species

    The Navy considers that explosions associated with BOMBEX (A-S) and 
small arms training are the activities with the potential to result in 
Level A or Level B harassment of marine mammals. Vessel strikes were 
also analyzed for potential effect to marine mammals.

Vessel Strikes

    Collisions with commercial and Navy ships can result in serious 
injury and may occasionally cause fatalities to cetaceans and manatees. 
Although the most vulnerable marine mammals may be assumed to be slow-
moving cetaceans or those that spend extended periods of time at the 
surface in order to restore oxygen levels within their tissues after 
deep dives (e.g., sperm whale), fin whales are actually struck most 
frequently (Laist et al., 2001). Manatees are also particularly 
susceptible to vessel interactions and collisions with watercraft 
constitute the leading cause of mortality (USFWS, 2007). Smaller marine 
mammals such as bottlenose and Atlantic spotted dolphins move more 
quickly throughout the water column and are often seen riding the bow 
wave of large ships. Marine mammal responses to vessels may include 
avoidance and changes in dive patterns (NRC, 2003).
    After reviewing historical records and computerized stranding 
databases for evidence of ship strikes involving baleen and sperm 
whales, Laist et al. (2001) found that accounts of large whale ship 
strikes involving motorized boats in the area date back to at least the 
late 1800s. Ship collisions remained infrequent until the 1950s, after 
which point they increased. Laist et al. (2001) report that both the 
number and speed of motorized vessels have increased over time for 
trans-Atlantic passenger services, which transit through the area. They 
concluded that most strikes occur over or near the continental shelf, 
that ship strikes likely have a negligible effect on the status of most 
whale populations, but that for small populations or segments of 
populations the impact of ship strikes may be significant.
    Although ship strikes may result in the mortality of a limited 
number of whales within a population or stock, Laist et al. (2001) also 
concluded that, when considered in combination with other human-related 
mortalities in the area (e.g., entanglement in fishing gear), these 
ship strikes may present a concern for whale populations.
    Of 11 species known to be hit by ships, fin whales are struck most 
frequently; followed by right whales, humpback whales, sperm whales, 
and gray whales (Laist et al., 2001). In some areas, one-third of all 
fin whale and right whale strandings appear to involve ship strikes. 
Sperm whales spend long periods (typically up to 10 minutes; Jacquet et 
al., 1996) ``rafting'' at the surface between deep dives. This could 
make them exceptionally vulnerable to ship strikes. Berzin (1972) noted 
that there were ``many'' reports of sperm whales of different age 
classes being struck by vessels, including passenger ships and tug 
boats. There were also instances in which sperm whales approached 
vessels too closely and were cut by the propellers (NMFS, 2006).
    In the Gulf of Mexico, sperm whales are of particular concern. 
Sperm whales spend extended periods of time at the surface in order to 
restore oxygen levels within their tissues after deep dives. In 
addition, some baleen whales such as the North Atlantic right whale 
seem generally unresponsive to vessel sound, making them more 
susceptible to vessel collisions (Nowacek et al., 2004a). In comparison 
with other regions of the U.S., the Gulf of Mexico is the least common 
area for ship strikes of large whales (Jensen and Silber, 2003). 
Between 1972 and 1999, eight confirmed or possible large whale ship 
strikes were recorded in the Gulf of Mexico, including two that 
collided with Navy vessels; four of these resulted in mortality of the 
animal (Jensen and Silber, 2003) and one resulted in extensive damage 
to a Navy vessel (Laist et al., 2001). It is not known whether the 
shipstrikes involving Navy vessels resulted in the mortality of the 
animal (Laist et al., 2001; Jensen and Silber, 2003).
    Accordingly, the Navy has proposed mitigation measures to reduce 
the potential for collisions with surfaced marine mammals (for more 
details refer to Proposed Mitigation Measures below). Based on the 
implementation of Navy mitigation measures and the relatively low 
density of Navy ships in the Study Area the likelihood that a vessel 
collision would occur is very low.

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

[[Page 33965]]

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, naive 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 GOMEX 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 earlier in this document, 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 GOMEX Range Complex OPAREA, which is a vast area 
encompassing 11,714 nm\2\. The Navy logs about 180 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 0.0113 ships/nm\2\).
    Moreover, naval vessels transiting the study area or engaging in 
the training exercises will not actively or intentionally approach a 
marine mammal or change speed drastically. All vessels transiting to, 
from, and within the range complexes will be traveling at speeds 
generally ranging from 10 to 14 knots. In addition, mitigation measures 
described below require 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.

Assessment of Marine Mammal Response to Anthropogenic Sound

    Marine mammals respond to various types of anthropogenic sounds 
introduced in the ocean environment. Responses are typically subtle and 
can include shorter surfacings, shorter dives, fewer blows per 
surfacing, longer intervals between blows (breaths), ceasing or 
increasing vocalizations, shortening or lengthening vocalizations, and 
changing frequency or intensity of vocalizations (NRC, 2005). However, 
it is not known how these responses relate to significant effects 
(e.g., long-term effects or population consequences). The following is 
an assessment of marine mammal responses and disturbances when exposed 
to anthropogenic sound.

I. Physiology

    Potential impacts to the auditory system are assessed by 
considering the characteristics of the received sound (e.g., amplitude, 
frequency, duration) and the sensitivity of the exposed animals. Some 
of these assessments can be numerically based (e.g., temporary 
threshold shift [TTS] of hearing sensitivity, permanent threshold shift 
[PTS] of hearing sensitivity, perception). Others will be necessarily 
qualitative, due to a lack of information, or will need to be 
extrapolated from other species for which information exists.
    Potential physiological responses to the sound exposure are ranked 
in descending order, with the most severe impact (auditory trauma) 
occurring at the top and the least severe impact occurring at the 
bottom (the sound is not perceived).
    Auditory trauma represents direct mechanical injury to hearing 
related structures, including tympanic membrane rupture, 
disarticulation of the middle ear ossicles, and trauma to the inner ear 
structures such as the organ of Corti and the associated hair cells. 
Auditory trauma is always injurious that could result in PTS and is 
always assumed to result in a stress response.
    Auditory fatigue refers to a loss of hearing sensitivity after 
sound stimulation. The loss of sensitivity persists after, sometimes 
long after, the cessation of the sound. The mechanisms responsible for 
auditory fatigue differ from auditory trauma and would primarily 
consist of metabolic exhaustion of the hair cells and cochlear tissues. 
The features of the exposure (e.g., amplitude, frequency, duration, 
temporal pattern) and the individual animal's susceptibility would 
determine the severity of fatigue and whether the

[[Page 33966]]

effects were temporary (TTS) or permanent (PTS). Auditory fatigue (PTS 
or TTS) is always assumed to result in a stress response.
    Sounds with sufficient amplitude and duration to be detected among 
the background ambient noise are considered to be perceived. This 
category includes sounds from the threshold of audibility through the 
normal dynamic range of hearing (i.e., not capable of producing 
fatigue).
    To determine whether an animal perceives the sound, the received 
level, frequency, and duration of the sound are compared to what is 
known of the species' hearing sensitivity.
    Since audible sounds may interfere with an animal's ability to 
detect other sounds at the same time, perceived sounds have the 
potential to result in auditory masking. Unlike auditory fatigue, which 
always results in a stress response because the sensory tissues are 
being stimulated beyond their normal physiological range, masking may 
or may not result in a stress response, depending on the degree and 
duration of the masking effect. Masking may also result in a unique 
circumstance where an animal's ability to detect other sounds is 
compromised without the animal's knowledge. This could conceivably 
result in sensory impairment and subsequent behavior change; in this 
case, the change in behavior is the lack of a response that would 
normally be made if sensory impairment did not occur. For this reason, 
masking also may lead directly to behavior change without first causing 
a stress response.
    The features of perceived sound (e.g., amplitude, duration, 
temporal pattern) are also used to judge whether the sound exposure is 
capable of producing a stress response. Factors to consider in this 
decision include the probability of the animal being naive or 
experienced with the sound (i.e., what are the known/unknown 
consequences of the exposure).
    If the received level is not of sufficient amplitude, frequency, 
and duration to be perceptible by the animal, by extension, this does 
not result in a stress response (not perceived). Potential impacts to 
tissues other than those related to the auditory system are assessed by 
considering the characteristics of the sound (e.g., amplitude, 
frequency, duration) and the known or estimated response 
characteristics of non-auditory tissues. Some of these assessments can 
be numerically based (e.g., exposure required for rectified diffusion). 
Others will be necessarily qualitative, due to lack of information. 
Each of the potential responses may or may not result in a stress 
response.
    Direct tissue effects--Direct tissue responses to sound stimulation 
may range from tissue shearing (injury) to mechanical vibration with no 
resulting injury.
    No tissue effects--The received sound is insufficient to cause 
either direct (mechanical) or indirect effects to tissues. No stress 
response occurs.

II. The Stress Response

    The acoustic source is considered a potential stressor if, by its 
action on the animal, via auditory or non-auditory means, it may 
produce a stress response in the animal. The term ``stress'' has taken 
on an ambiguous meaning in the scientific literature, but with respect 
to the later discussions of allostasis and allostatic loading, the 
stress response will refer to an increase in energetic expenditure that 
results from exposure to the stressor and which is predominantly 
characterized by either the stimulation of the sympathetic nervous 
system (SNS) or the hypothalamic-pituitary-adrenal (HPA) axis (Reeder 
and Kramer, 2005). The SNS response to a stressor is immediate and 
acute and is characterized by the release of the catecholamine 
neurohormones norepinephrine and epinephrine (i.e., adrenaline). These 
hormones produce elevations in the heart and respiration rate, increase 
awareness, and increase the availability of glucose and lipids for 
energy. The HPA response is ultimately defined by increases in the 
secretion of the glucocorticoid steroid hormones, predominantly 
cortisol in mammals. The amount of increase in circulating 
glucocorticoids above baseline may be an indicator of the overall 
severity of a stress response (Hennessy et al., 1979). Each component 
of the stress response is variable in time; e.g., adrenalines are 
released nearly immediately and are used or cleared by the system 
quickly, whereas cortisol levels may take long periods of time to 
return to baseline.
    The presence and magnitude of a stress response in an animal 
depends on a number of factors. These include the animal's life history 
stage (e.g., neonate, juvenile, adult), the environmental conditions, 
reproductive or developmental state, and experience with the stressor. 
Not only will these factors be subject to individual variation, but 
they will also vary within an individual over time. In considering 
potential stress responses of marine mammals to acoustic stressors, 
each of these should be considered. For example, is the acoustic 
stressor in an area where animals engage in breeding activity? Are 
animals in the region resident and likely to have experience with the 
stressor (i.e., repeated exposures)? Is the region a foraging ground or 
are the animals passing through as transients? What is the ratio of 
young (naive) to old (experienced) animals in the population? It is 
unlikely that all such questions can be answered from empirical data; 
however, they should be addressed in any qualitative assessment of a 
potential stress response as based on the available literature.
    The stress response may or may not result in a behavioral change, 
depending on the characteristics of the exposed animal. However, 
provided a stress response occurs, we assume that some contribution is 
made to the animal's allostatic load. Allostasis is the ability of an 
animal to maintain stability through change by adjusting its physiology 
in response to both predictable and unpredictable events (McEwen and 
Wingfield, 2003). The same hormones associated with the stress response 
vary naturally throughout an animal's life, providing support for 
particular life history events (e.g., pregnancy) and predictable 
environmental conditions (e.g., seasonal changes). The allostatic load 
is the cumulative cost of allostasis incurred by an animal and is 
generally characterized with respect to an animal's energetic 
expenditure. Perturbations to an animal that may occur with the 
presence of a stressor, either biological (e.g., predator) or 
anthropogenic (e.g., construction), can contribute to the allostatic 
load (Wingfield, 2003). Additional costs are cumulative and additions 
to the allostatic load over time may contribute to reductions in the 
probability of achieving ultimate life history functions (e.g., 
survival, maturation, reproductive effort and success) by producing 
pathophysiological states (the conditions of disease or injury). The 
contribution to the allostatic load from a stressor requires estimating 
the magnitude and duration of the stress response, as well as any 
secondary contributions that might result from a change in behavior.
    If the acoustic source does not produce tissue effects, is not 
perceived by the animal, or does not produce a stress response by any 
other means, we assume that the exposure does not contribute to the 
allostatic load. Additionally, without a stress response or auditory 
masking, it is assumed that there can be no behavioral change. 
Conversely, any immediate effect of exposure that produces an injury is 
assumed to also produce a stress response and contribute to the 
allostatic load.

[[Page 33967]]

III. Behavior

    Changes in marine mammal behavior are expected to result from an 
acute stress response. This expectation is based on the idea that some 
sort of physiological trigger must exist to change any behavior that is 
already being performed. The exception to this rule is the case of 
auditory masking. The presence of a masking sound may not produce a 
stress response, but may interfere with the animal's ability to detect 
and discriminate biologically relevant signals. The inability to detect 
and discriminate biologically relevant signals hinders the potential 
for normal behavioral responses to auditory cues and is thus considered 
a behavioral change.
    Impulsive sounds from explosions have very short durations as 
compared to other sounds like sonar or ship noise, which are more 
likely to produce auditory masking. Additionally the explosive sources 
analyzed in this document are used infrequently and the training events 
are typically of short duration. Therefore, the potential for auditory 
masking is unlikely.
    Numerous behavioral changes can occur as a result of stress 
response. For each potential behavioral change, the magnitude in the 
change and the severity of the response needs to be estimated. Certain 
conditions, such as stampeding (i.e., flight response) or a response to 
a predator, might have a probability of resulting in injury. For 
example, a flight response, if significant enough, could produce a 
stranding event. Each disruption to a natural behavioral pattern (e.g., 
breeding or nursing) may need to be classified as Level B harassment. 
All behavioral disruptions have the potential to contribute to the 
allostatic load. This secondary potential is signified by the feedback 
from the collective behaviors to allostatic loading.

IV. Life Function

IV.1. Proximate Life Functions
    Proximate life history functions are the functions that the animal 
is engaged in at the time of acoustic exposure. The disruption of these 
functions, and the magnitude of the disruption, is something that must 
be considered in determining how the ultimate life history functions 
are affected. Consideration of the magnitude of the effect to each of 
the proximate life history functions is dependent upon the life stage 
of the animal. For example, an animal on a breeding ground which is 
sexually immature will suffer relatively little consequence to 
disruption of breeding behavior when compared to an actively displaying 
adult of prime reproductive age.
IV.2. Ultimate Life Functions
    The ultimate life functions are those that enable an animal to 
contribute to the population (or stock, or species, etc.). The impact 
to ultimate life functions will depend on the nature and magnitude of 
the perturbation to proximate life history functions. Depending on the 
severity of the response to the stressor, acute perturbations may have 
nominal to profound impacts on ultimate life functions. For example, 
unit-level use of sonar by a vessel transiting through an area that is 
utilized for foraging, but not for breeding, may disrupt feeding by 
exposed animals for a brief period of time. Because of the brevity of 
the perturbation, the impact to ultimate life functions may be 
negligible. By contrast, weekly training over a period of years may 
have a more substantial impact because the stressor is chronic. 
Assessment of the magnitude of the stress response from the chronic 
perturbation would require an understanding of how and whether animals 
acclimate to a specific, repeated stressor and whether chronic 
elevations in the stress response (e.g., cortisol levels) produce 
fitness deficits.
    The proximate life functions are loosely ordered in decreasing 
severity of impact. Mortality (survival) has an immediate effect, in 
that no future reproductive success is feasible and there is no further 
addition to the population resulting from reproduction. Severe injuries 
may also lead to reduced survivorship (longevity) and prolonged 
alterations in behavior. The latter may further affect an animal's 
overall reproductive success and reproductive effort. Disruptions of 
breeding have an immediate impact on reproductive effort and may impact 
reproductive success. The magnitude of the effect will depend on the 
duration of the disruption and the type of behavior change that was 
provoked. Disruptions to feeding and migration can affect all of the 
ultimate life functions; however, the impacts to reproductive effort 
and success are not likely to be as severe or immediate as those 
incurred by mortality and breeding disruptions.

Explosive Ordnance Exposure Analysis

    The underwater explosion from a weapon would send a shock wave and 
blast noise through the water, release gaseous by-products, create an 
oscillating bubble, and cause a plume of water to shoot up from the 
water surface. The shock wave and blast noise are of most concern to 
marine animals. The effects of an underwater explosion on a marine 
mammal depends on many factors, including the size, type, and depth of 
both the animal and the explosive charge; the depth of the water 
column; and the standoff distance between the charge and the animal, as 
well as the sound propagation properties of the environment. Potential 
impacts can range from brief effects (such as behavioral disturbance), 
tactile perception, physical discomfort, slight injury of the internal 
organs and the auditory system, to death of the animal (Yelverton et 
al., 1973; O'Keeffe and Young, 1984; DoN, 2001). Non-lethal injury 
includes slight injury to internal organs and the auditory system; 
however, delayed lethality can be a result of individual or cumulative 
sublethal injuries (DoN, 2001). Immediate lethal injury would be a 
result of massive combined trauma to internal organs as a direct result 
of proximity to the point of detonation (DoN, 2001). Generally, the 
higher the level of impulse and pressure level exposure, the more 
severe the impact to an individual.
    Injuries resulting from a shock wave take place at boundaries 
between tissues of different density. Different velocities are imparted 
to tissues of different densities, and this can lead to their physical 
disruption. Blast effects are greatest at the gas-liquid interface 
(Landsberg, 2000). Gas-containing organs, particularly the lungs and 
gastrointestinal tract, are especially susceptible (Goertner, 1982; 
Hill, 1978; Yelverton et al., 1973). In addition, gas-containing organs 
including the nasal sacs, larynx, pharynx, trachea, and lungs may be 
damaged by compression/expansion caused by the oscillations of the 
blast gas bubble (Reidenberg and Laitman, 2003). Intestinal walls can 
bruise or rupture, with subsequent hemorrhage and escape of gut 
contents into the body cavity. Less severe gastrointestinal tract 
injuries include contusions, petechiae (small red or purple spots 
caused by bleeding in the skin), and slight hemorrhaging (Yelverton et 
al., 1973).
    Because the ears are the most sensitive to pressure, they are the 
organs most sensitive to injury (Ketten, 2000). Sound-related damage 
associated with blast noise can be theoretically distinct from injury 
from the shock wave, particularly farther from the explosion. If an 
animal is able to hear a noise, at some level it can damage its hearing 
by causing decreased sensitivity (Ketten, 1995) (See Assessment of 
Marine Mammal Response to Anthropogenic Sound Section above). Sound-
related trauma can be lethal or sublethal. Lethal

[[Page 33968]]

impacts are those that result in immediate death or serious 
debilitation in or near an intense source and are not, technically, 
pure acoustic trauma (Ketten, 1995). Sublethal impacts include hearing 
loss, which is caused by exposures to perceptible sounds. Severe damage 
(from the shock wave) to the ears includes tympanic membrane rupture, 
fracture of the ossicles, damage to the cochlea, hemorrhage, and 
cerebrospinal fluid leakage into the middle ear. Moderate injury 
implies partial hearing loss due to tympanic membrane rupture and blood 
in the middle ear. Permanent hearing loss also can occur when the hair 
cells are damaged by one very loud event, as well as by prolonged 
exposure to a loud noise or chronic exposure to noise. The level of 
impact from blasts depends on both an animal's location and, at outer 
zones, on its sensitivity to the residual noise (Ketten, 1995).
    The exercises that use explosives in this request include BOMBEX 
(A-S) and GUNEX (S-S). Table 1 summarizes the number of events and 
specific areas where each occurs for each type of explosive ordnance 
used. There is no difference in how many events take place between the 
different seasons. Fractional values are a result of evenly 
distributing the annual totals over the four seasons. For example, 
there is one BOXEX event per year that can take place in the BOMBEX 
Hotbox during any season, so there are 0.25 event modeled for each 
season.

Definition of Harassment

    As mentioned previously, with respect to military readiness 
activities, Section 3(18)(B) of the MMPA defines ``harassment'' as: (i) 
Any act that injures or has the significant potential to injure a 
marine mammal or marine mammal stock in the wild [Level A Harassment]; 
or (ii) any act that disturbs or is likely to disturb a marine mammal 
or marine mammal stock in the wild by causing disruption of natural 
behavioral patterns, including, but not limited to, migration, 
surfacing, nursing, breeding, feeding, or sheltering, to a point where 
such behavioral patterns are abandoned or significantly altered [Level 
B Harassment].

I. Level B Harassment

    Of the potential effects that were described in the Assessment of 
Marine Mammal Response to Anthropogenic Sound and the Explosive 
Ordnance Exposure Analysis sections, the following are the types of 
effects that fall into the Level B Harassment category:
    (A) Behavioral Harassment--Behavioral disturbance that rises to the 
level described in the definition above, when resulting from exposures 
to underwater detonations, is considered Level B Harassment. Some of 
the lower level physiological stress responses discussed in the 
Assessment of Marine Mammal Response to Anthropogenic Sound section 
will also likely co-occur with the predicted harassments, although 
these responses are more difficult to detect and fewer data exist 
relating these responses to specific received levels of sound. When 
Level B Harassment is predicted based on estimated behavioral 
responses, those takes may have a stress-related physiological 
component as well.
    (B) Acoustic Masking and Communication Impairment--Acoustic masking 
is considered Level B Harassment as it can disrupt natural behavioral 
patterns by interrupting or limiting the marine mammal's receipt or 
transmittal of important information or environmental cues.
    (C) TTS--As discussed previously, TTS can affect how an animal 
behaves in response to the environment, including conspecifics, 
predators, and prey. The following physiological mechanisms are thought 
to play a role in inducing auditory fatigue: effects to sensory hair 
cells in the inner ear that reduce their sensitivity, modification of 
the chemical environment within the sensory cells, residual muscular 
activity in the middle ear, displacement of certain inner ear 
membranes, increased blood flow, and post-stimulatory reduction in both 
efferent and sensory neural output. Ward (1997) suggested that when 
these effects result in TTS rather than PTS, they are within the normal 
bounds of physiological variability and tolerance and do not represent 
a physical injury. Additionally, Southall et al. (2007) indicate that 
although PTS is a tissue injury, TTS is not because the reduced hearing 
sensitivity following exposure to intense sound results primarily from 
fatigue, not loss, of cochlear hair cells and supporting structures and 
is reversible. Accordingly, NMFS classifies TTS (when resulting from 
exposure to underwater detonations) as Level B Harassment, not Level A 
Harassment (injury).

II. Level A Harassment

    Of the potential effects that were described in the Assessment of 
Marine Mammal Response to Anthropogenic Sound section, the following 
are the types of effects that fall into the Level A Harassment 
category:
    (A) PTS--PTS is irreversible and considered to be an injury. PTS 
results from exposure to intense sounds that cause a permanent loss of 
inner or outer cochlear hair cells or exceed the elastic limits of 
certain tissues and membranes in the middle and inner ears and result 
in changes in the chemical composition of the inner ear fluids.
    (B) Physical Disruption of Tissues Resulting from Explosive Shock 
Wave--Physical damage of tissues resulting from a shock wave (from an 
explosive detonation) is classified as an injury. Blast effects are 
greatest at the gas-liquid interface (Landsberg, 2000) and gas-
containing organs, particularly the lungs and gastrointestinal tract, 
are especially susceptible to damage (Goertner, 1982; Hill 1978; 
Yelverton et al., 1973). Nasal sacs, larynx, pharynx, trachea, and 
lungs may be damaged by compression/expansion caused by the 
oscillations of the blast gas bubble (Reidenberg and Laitman, 2003). 
Severe damage (from the shock wave) to the ears can include tympanic 
membrane rupture, fracture of the ossicles, damage to the cochlea, 
hemorrhage, and cerebrospinal fluid leakage into the middle ear.

Acoustic Take Criteria

    For the purposes of an MMPA incidental take authorization, three 
types of take are identified: Level B Harassment; Level A Harassment; 
and mortality (or serious injury leading to mortality). The categories 
of marine mammal responses (physiological and behavioral) that fall 
into the two harassment categories were described in the previous 
section.
    Because the physiological and behavioral responses of the majority 
of the marine mammals exposed to underwater detonations cannot be 
detected or measured, a method is needed to estimate the number of 
individuals that will be taken, pursuant to the MMPA, based on the 
proposed action. To this end, NMFS uses an acoustic criteria that 
estimate at what received level (when exposed to explosive detonations) 
Level B Harassment, Level A Harassment, and mortality (for explosives) 
of marine mammals would occur. The acoustic criteria for Underwater 
Detonations are discussed.

Thresholds and Criteria for Impulsive Sound

    Criteria and thresholds for estimating the exposures from a single 
explosive activity on marine mammals were established for the Seawolf 
Submarine Shock Test Final Environmental Impact Statement (FEIS) 
(``Seawolf'') and subsequently used in the USS Winston

[[Page 33969]]

S. Churchill (DDG-81) Ship Shock FEIS (``Churchill'') (DoN, 1998 and 
2001a). NMFS adopted these criteria and thresholds in its final rule on 
unintentional taking of marine animals occurring incidental to the 
shock testing (NMFS, 2001a). Since the ship-shock events involve only 
one large explosive at a time, additional assumptions were made to 
extend the approach to cover multiple explosions for BOMBEX (A-S). In 
addition, this section reflects a revised acoustic criterion for small 
underwater explosions (i.e., 23 pounds per square inch [psi] instead of 
previous acoustic criteria of 12 psi for peak pressure), which is based 
on the final rule issued to the Air Force by NMFS (NMFS, 2005b).
I.1. Thresholds and Criteria for Injurious Physiological Impacts
I.1.a. Single Explosion
    For injury, NMFS uses dual criteria: eardrum rupture (i.e., 
tympanic-membrane injury) and onset of slight lung injury. These 
criteria are considered indicative of the onset of injury. The 
threshold for tympanic-membrane (TM) rupture corresponds to a 50 
percent rate of rupture (i.e., 50 percent of animals exposed to the 
level are expected to suffer TM rupture). This value is stated in terms 
of an Energy Flux Density Level (EL) value of 1.17 inch pounds per 
square inch (in-lb/in \2\), approximately 205 dB re 1 microPa \2\-sec.
    The threshold for onset of slight lung injury is calculated for a 
small animal (a dolphin calf weighing 26.9 lbs), and is given in terms 
of the ``Goertner modified positive impulse,'' indexed to 13 psi-msec 
(DoN, 2001). This threshold is conservative since the positive impulse 
needed to cause injury is proportional to animal mass, and therefore, 
larger animals require a higher impulse to cause the onset of injury. 
This analysis assumed the marine species populations were 100 percent 
small animals. The criterion with the largest potential impact range 
(most conservative), either TM rupture (energy threshold) or onset of 
slight lung injury (peak pressure), will be used in the analysis to 
determine Level A exposures for single explosive events.
    For mortality, NMFS uses the criterion corresponding to the onset 
of extensive lung injury. This is conservative in that it corresponds 
to a 1 percent chance of mortal injury, and yet any animal experiencing 
onset severe lung injury is counted as a lethal exposure. For small 
animals, the threshold is given in terms of the Goertner modified 
positive impulse, indexed to 30.5 psi-msec. Since the Goertner approach 
depends on propagation, source/animal depths, and animal mass in a 
complex way, the actual impulse value corresponding to the 30.5 psi-
msec index is a complicated calculation. To be conservative, the 
analysis used the mass of a calf dolphin (at 26.9 lbs) for 100 percent 
of the populations.
I.1.b. Multiple Explosions
    For this analysis, the use of multiple explosions only applies to 
the MK-83 bombs used in BOMBEX. Since BOMBEX events require multiple 
explosions, the Churchill approach had to be extended to cover multiple 
sound events at the same training site. For multiple exposures, 
accumulated energy over the entire training time is the natural 
extension for energy thresholds since energy accumulates with each 
subsequent shot (explosion); this is consistent with the treatment of 
multiple arrivals in Churchill. For positive impulse, it is consistent 
with Churchill to use the maximum value over all impulses received.
I.2. Thresholds and Criteria for Non-Injurious Physiological Effects
    The NMFS' criterion for non-injurious harassment is TTS--a slight, 
recoverable loss of hearing sensitivity (DoN, 2001). For this 
assessment, there are dual criteria for TTS, an energy threshold and a 
peak pressure threshold. The criterion with the largest potential 
impact range (most conservative) either the energy or peak pressure 
threshold, will be used in the analysis to determine Level B TTS 
exposures.
I.2.a. Single Explosion--TTS-Energy Threshold
    The first threshold is a 182 dB re 1 microPa \2\-sec maximum energy 
flux density level in any \1/3\-octave band at frequencies above 100 
Hertz (Hz) for toothed whales and in any \1/3\-octave band above 10 Hz 
for baleen whales. For large explosives, as in the case of the 
Churchill FEIS, frequency range cutoffs at 10 and 100 Hz make a 
difference in the range estimates. For small explosives (<1,500 lb 
NEW), as what was modeled for this analysis, the spectrum of the shot 
arrival is broad, and there is essentially no difference in impact 
ranges for toothed whales or baleen whales.
    The TTS energy threshold for explosives is derived from the Space 
and Naval Warfare Systems Center (SSC) pure-tone tests for TTS 
(Schlundt et al., 2000; Finneran and Schlundt, 2004). The pure-tone 
threshold (192 dB as the lowest value) is modified for explosives by 
(a) interpreting it as an energy metric, (b) reducing it by 10 dB to 
account for the time constant of the mammal ear, and (c) measuring the 
energy in \1/3\-octave bands, the natural filter band of the ear. The 
resulting threshold is 182 dB re 1 microPa \2\-sec in any \1/3\-octave 
band. The energy threshold usually dominates and is used in the 
analysis to determine potential Level B exposures for single explosion 
ordnance.
I.2.b. Single Explosion--TTS-Peak Pressure Threshold
    The second threshold applies to all species and is stated in terms 
of peak pressure at 23 psi (about 225 dB re 1 microPa). This criterion 
was adopted for Precision Strike Weapons (PSW) Testing and Training by 
Eglin Air Force Base in the Gulf of Mexico (NMFS, 2005b). It is 
important to note that for small shots near the surface (such as in 
this analysis), the 23-psi peak pressure threshold generally will 
produce longer impact ranges than the 182-dB energy metric. 
Furthermore, it is not unusual for the TTS impact range for the 23-psi 
pressure metric to actually exceed the without-TTS (behavioral change 
without onset of TTS) impact range for the 177-dB energy metric.
I.2.c. Multiple Explosions--TTS
    For multiple explosions, accumulated energy over the entire 
training time is the natural extension for energy thresholds since 
energy accumulates with each subsequent shot/detonation. This is 
consistent with the energy argument in Churchill. For peak pressure, it 
is consistent with Churchill to use the maximum value over all impulses 
received.
I.3. Thresholds and Criteria for Behavioral Effects
I.3.a. Single Explosion
    For a single explosion, to be consistent with Churchill, TTS is the 
criterion for Level B harassment. In other words, because behavioral 
disturbance for a single explosion is likely to be limited to a short-
lived startle reaction, use of the TTS criterion is considered 
sufficient protection and therefore behavioral effects (Level B 
behavioral harassment without onset of TTS) are not expected for single 
explosions.
I.3.b. Multiple Explosions--Without TTS
    For this analysis, the use of multiple explosions only applies to 
FIREX (with IMPASS). Because multiple explosions would occur within a 
discrete time period, a new acoustic criterion--

[[Page 33970]]

behavioral disturbance (without TTS)--is used to account for behavioral 
effects significant enough to be judged as harassment, but occurring at 
lower noise levels than those that may cause TTS.
    The threshold is based on test results published in Schlundt et al. 
(2000), with derivation following the approach of the Churchill FEIS 
for the energy-based TTS threshold. The original Schlundt et al. (2000) 
data and the report of Finneran and Schlundt (2004) are the basis for 
thresholds for behavioral disturbance (without TTS). As reported by 
Schlundt et al. (2000), instances of altered behavior generally began 
at lower exposures than those causing TTS; however, there were many 
instances when subjects exhibited no altered behavior at levels above 
the onset-TTS levels. Regardless of reactions at higher or lower 
levels, all instances of altered behavior were included in the 
statistical summary.
    The behavioral disturbance (without TTS) threshold for tones is 
derived from the SSC tests, and is found to be 5 dB below the threshold 
for TTS, or 177 dB re: 1 microPa<SUP>2</SUP>-s maximum EL in any \1/3\-
octave band at frequencies above 100 Hz for toothed whales/sea turtles 
and in any \1/3\-octave band above 10 Hz for baleen whales. As stated 
previously for TTS, for small explosives (<1500-lb NEW), as what was 
modeled for this analysis, the spectrum of the shot arrival is broad, 
and there is essentially no difference in impact ranges for toothed 
whales/sea turtles or baleen whales. For BOMBEX involving MK-83 bombs, 
behavioral disturbance (without TTS) (177 dB re: 1 microPa<SUP>2</SUP>-
s) is the criterion that dominates in the analysis to determine 
potential behavioral exposures (MMPA-Level B) due to the use of 
multiple explosions.

II. Summary of Thresholds and Criteria for Impulsive Sounds

    Table 3 summarizes the effects, criteria, and thresholds used in 
the assessment for impulsive sounds. The criteria for behavioral 
effects without physiological effects used in this analysis are based 
on use of multiple explosives that only take place during a BOMBEX 
event.

                         Table 3--Effects, Criteria, and Thresholds for Impulsive Sounds
----------------------------------------------------------------------------------------------------------------
            Effect                   Criteria               Metric               Threshold            Effect
----------------------------------------------------------------------------------------------------------------
Mortality....................  Onset of Extensive    Goertner modified     Indexed to 30.5 psi-  Mortality.
                                Lung Injury.          positive impulse.     msec (assumes 100
                                                                            percent small
                                                                            animal at 26.9 lbs).
Injurious Physiological......  50% Tympanic          Energy flux density.  1.17 in-lb/in\2\      Level A.
                                Membrane Rupture.                           (about 205 dB re 1
                                                                            microPa\2\-sec).
Injurious Physiological......  Onset Slight Lung     Goertner modified     Indexed to 13 psi-    Level A.
                                Injury.               positive impulse.     msec (assumes 100
                                                                            percent small
                                                                            animal at 26.9 lbs).
Non-injurious Physiological..  TTS.................  Greatest energy flux  82 dB re 1            Level B.
                                                      density level in      microPa\2\-sec.
                                                      any \1/3\-octave
                                                      band (>100 Hz for
                                                      toothed whales and
                                                      >10 Hz for baleen
                                                      whales)--for total
                                                      energy over all
                                                      exposures 1.
Non-injurious Physiological..  TTS.................  Peak pressure over    23 psi..............  Level B.
                                                      all exposures.
Non-injurious Behavioral.....  Multiple Explosions   Greatest energy flux  177 dB re 1           Level B.
                                Without TTS.          density level in      microPa\2\-sec.
                                                      any \1/3\-octave
                                                      (>100 Hz for
                                                      toothed whales and
                                                      > 10Hz for baleen
                                                      whales)--for total
                                                      energy over all
                                                      exposures (multiple
                                                      explosions only).
----------------------------------------------------------------------------------------------------------------

    The criteria for mortality, Level A Harassment, and Level B 
Harassment resulting from explosive detonations were initially 
developed for the Navy's Sea Wolf and Churchill ship-shock trials and 
have not changed since other MMPA authorizations issued for explosive 
detonations. The criteria, which are applied to cetaceans and pinnipeds 
are summarized in Table 3. Additional information regarding the 
derivation of these criteria is available in the Navy's FEIS for the 
GOMEX Range Complex and in the Navy's Churchill FEIS (U.S. Department 
of the Navy, 2001).

III. Acoustic Environment

    Sound propagation (the spreading or attenuation of sound) in the 
oceans of the world is affected by several environmental factors: water 
depth, variations in sound speed within the water column, surface 
roughness, and the geo-acoustic properties of the ocean bottom. These 
parameters can vary widely with location.
    Four types of data are used to define the acoustic environment for 
each analysis site:
    Seasonal Sound Velocity Profiles (SVP)--Plots of propagation speed 
(velocity) as a function of depth, or SVPs, are a fundamental tool used 
for predicting how sound will travel. Seasonal SVP averages were 
obtained for each training area.
    Seabed Geo-acoustics--The type of sea floor influences how much 
sound is absorbed and how much sound is reflected back into the water 
column.
    Wind Speeds--Several environmental inputs, such as wind speed and 
surface roughness, are necessary to model acoustic propagation in the 
prospective training areas.
    Bathymetry Data--Bathymetry data are necessary to model acoustic 
propagation and were obtained for each of the training areas.

IV. Acoustic Effects Analysis

    The acoustic effects analysis presented in the following sections 
is summarized for each major type of exercise. A more in-depth effects 
analysis is in Appendix A of the LOA application and the Addendum.

1. BOMBEX

    Modeling was completed for four explosive sources (sequential 
detonation of four bombs per event) involved in BOMBEX with an assumed 
detonation depth of 1 m. The NEW used in simulations of the MK83 is 
415.8 lbs.

[[Page 33971]]

    Determining the zone of influence (ZOI) for the thresholds in terms 
of total EFD, impulse, peak pressure and \1/3\-octave bands EFD must 
treat the sequential explosions differently than the single 
detonations. For the MK-83, two factors are involved for the sequential 
explosives that deal with the spatial and temporal distribution of the 
detonations as well as the effective accumulation of the resultant 
acoustics. In view of the ZOI determinations, the sequential 
detonations are modeled as a single point event with only the EFD 
summed incoherently:
[GRAPHIC] [TIFF OMITTED] TP14JY09.004

    The multiple explosion energy criterion was used to determine the 
ZOI for the Level B without TTS exposure analysis. Table 4 shows the 
ZOI results of the model estimation. The ZOI, when multiplied by the 
animal densities and total number of events (Table 1), provides the 
exposure estimates for that animal species for the given bomb source.
    BOMBEX is restricted to one location (BOMBEX Hotbox). In addition 
to other mitigation measures (see Mitigation Measures section below), 
aircraft will survey the target area for marine mammals before and 
during the exercise. Ships will not fire on the target until the area 
is surveyed and determined to be free of marine mammals. The exercise 
will be suspended if any marine mammals enter the buffer area (5,100-
yard or 4,663-m radius around target). The implementation of mitigation 
measures like these effectively reduce exposures in the ZOI.

                      Table 4--Estimated ZOIs (km\2\) Used in Exposure Calculations for BOMBEX Using MK-83 (415.8 lbs NEW) in the GOMEX Range Complex for Different Seasons
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
   Estimated ZOI @ 177 dB re 1  [mu]Pa\2\-sec      Estimated ZOI  @ 182 dB re 1 [mu]Pa\2\-sec or   Estimated ZOI  @ 205 dB re 1 [mu]Pa\2\-sec or             Mortality ZOI  @ 30.5 psi
           (multiple detonations only)                                23 psi                                          13 psi                     -----------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------------------------
    Win          Spr          Sum        Fall         Win         Spr         Sum        Fall         Win         Spr         Sum        Fall         Win         Spr         Sum        Fall
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
    98.93       115.93      161.39      173.27       55.53       76.82      137.33      158.07        4.84        4.84        4.84        4.98       <0.01       <0.01       <0.01      <0.01
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: ZOIs for the MK-83 bombs are modeled as multiple detonations (4 bombs dropped in succession at same location).

2. Small Arms Training

    Modeling was completed for the MK3A2 explosive anti-swimmer 
grenades, which assumed a 6 ft (1.8 m) detonation depth. The NEW used 
in simulations of the MK3A2 grenade is 0.5 lb.
    Determining the ZOI for the thresholds in terms of total energy 
flux density (EFD), impulse, peak pressure and \1/3\-octave bands EFD 
must treat the sequential explosions differently than the single 
detonations. For the MK3A2, two factors are involved for the sequential 
explosives that deal with the spatial and temporal distribution of the 
detonations as well as the effective accumulation of the resultant 
acoustics. In view of the ZOI determinations, the sequential 
detonations are modeled as a single point event with only the EFD 
summed incoherently:
[GRAPHIC] [TIFF OMITTED] TP14JY09.005

    The multiple explosion energy criterion was used to determine the 
ZOI for the non-injurious behavioral (without TTS) exposure analysis.
    Table 5 shows the ZOI results of the model estimation. The ZOI, 
when multiplied by the animal densities and total number of events, 
provides the exposure estimates for that animal species. Grenade use is 
restricted to one location (UNDET Area E3) (see Figure 2 of the Navy's 
LOA application). In addition to other mitigation measures (see 
Mitigation Measures section below), lookouts will visually survey the 
target area for marine mammals. The exercise will not be conducted 
until the area is clear and will suspend the exercise if any enter the 
buffer area. Implementation of mitigation measures like these reduce 
the likelihood of exposure and potential effects in the ZOI.

     Table 5--Estimated ZOIs (km\2\) Used in Exposure Calculations for Small Arms Training Using MK3A2 Anti-Swimmer Grenades (0.5 lbs NEW) in the GOMEX Range Complex for Different Seasons
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
    Estimated ZOI @ 177 dB re 1 [mu]Pa\2\-sec      Estimated ZOI  @ 182 dB re 1 [mu]Pa\2\-sec or   Estimated ZOI @ 205 dB re 1 [mu]Pa\2\-sec or              Mortality ZOI  @ 30.5 psi
           (multiple detonations only)                                23 psi                                          13 psi                     -----------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------------------------
    Win          Spr          Sum        Fall         Win         Spr         Sum        Fall         Win         Spr         Sum        Fall         Win         Spr         Sum        Fall
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
     4.94         5.45        4.71        5.81        1.80        2.18        1.96        3.27        0.09        0.09        0.09        0.10       <0.01       <0.01       <0.01       <0.01
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: ZOIs for the MK3A2 bombs are modeled as multiple detonations (4 bombs dropped in succession at same location).

3. Summary of Potential Exposures From Explosive Ordnance Use

    Explosions that occur in the GOMEX Study Area with the potential to 
impact marine mammals are associated with training during BOMBEX and 
small arms training events. Explosive ordnance use is limited to 
specific training areas. Within the GOMEX Study Area, explosive use 
associated with BOMBEX events occur in the BOMBEX Hotbox. The use of 
MK3A2 anti-swimmer grenades is associated with small arms training 
events, which are limited to the UNDET Area E3 box.
    An explosive analysis was conducted to estimate the number of 
marine mammals that could be exposed to impacts from explosive ordnance 
use associated with BOMBEX and small arms training. Table 6 provides a 
summary of the explosive analysis modeling results.
    Exposure estimates could not be calculated for several species 
(blue whale, fin whale, humpback whale, North Atlantic right whale, sei 
whale, and minke whale) because density data could not be calculated 
for the GOMEX Study Area due to the limited available data for these 
species; however, the likelihood of exposure for species not expected 
to occur in the GOMEX Study Area should be even lower than for the 
species with occurrence frequent enough for densities to be calculated. 
In addition to the low likelihood of exposure, the proposed mitigation 
measures presented below would be implemented prior to release of 
ordnance. Since the fin, North Atlantic right, humpback, blue, sei, and 
minke whale are considered rare in the GOMEX Range Complex, no 
exposures are expected for these species. In addition, the West Indian 
manatee is not expected to occur where explosive

[[Page 33972]]

ordnance is used; therefore no exposures are expected for this species.
    Lookouts will monitor the area before ordnance is used. Sperm 
whales will have high detection rates at the surface because of their 
large body size and pronounced blows; however, sperm whales are long, 
deep divers and may be submerged, and thus not visually detectable, for 
over an hour. It is likely that lookouts would detect Atlantic spotted 
dolphins, bottlenose dolphins, Clymene dolphins, pantropical spotted 
dolphins, Risso's dolphins, spinner dolphins and striped dolphins due 
to their gregarious nature and active surface behavior. Implementation 
of mitigation measures will reduce the likelihood of exposure and 
potential effects.

Table 6--Summary of Potential Exposures From Explosive Ordnance (Per Year) for Marine Mammals in the GOMEX Range
                                          Complex by the Navy Modeling
----------------------------------------------------------------------------------------------------------------
                                       Potential
                                  exposures  @177 dB       Potential           Potential           Potential
   Species/training operation      re 1 microPa\2\-s  exposures  @182 dB  exposures  @205 dB   exposures  @30.5
                                       (multiple       re 1 microPa\2\-s   re 1 microPa\2\-s        psi-ms
                                   detonations only)     or 23 psi-ms        or 13 psi-ms
----------------------------------------------------------------------------------------------------------------
Sperm whale:
    BOMBEX training.............                   0                   0                   0                   0
    Small Arms training.........                   0                   0                   0                   0
                                 -------------------------------------------------------------------------------
        Total Exposures.........                   0                   0                   0                   0
----------------------------------------------------------------------------------------------------------------
Atlantic spotted dolphin:
    BOMBEX training.............                   1                   1                   0                   0
    Small Arms training.........                   0                   0                   0                   0
                                 -------------------------------------------------------------------------------
        Total Exposures.........                   1                   1                   0                   0
----------------------------------------------------------------------------------------------------------------
Beaked whales:
    BOMBEX training.............                   0                   0                   0                   0
    Small Arms training.........                   0                   0                   0                   0
                                 -------------------------------------------------------------------------------
        Total Exposures.........                   0                   0                   0                   0
----------------------------------------------------------------------------------------------------------------
Bottlenose dolphin:
    BOMBEX training.............                   6                   6                   0                   0
    Small Arms training.........                   4                   3                   0                   0
                                 -------------------------------------------------------------------------------
        Total Exposures.........                  10                   9                   0                   0
----------------------------------------------------------------------------------------------------------------
Bryde's whale:
    BOMBEX training.............                   0                   0                   0                   0
    Small Arms training.........                   0                   0                   0                   0
                                 -------------------------------------------------------------------------------
        Total Exposures.........                   0                   0                   0                   0
----------------------------------------------------------------------------------------------------------------
Clymene dolphin:
    BOMBEX training.............                   3                   3                   0                   0
    Small Arms training.........                   0                   0                   0                   0
                                 -------------------------------------------------------------------------------
        Total Exposures.........                   3                   3                   0                   0
----------------------------------------------------------------------------------------------------------------
False killer whale:
    BOMBEX training.............                   0                   0                   0                   0
    Small Arms training.........                   0                   0                   0                   0
                                 -------------------------------------------------------------------------------
        Total Exposures.........                   0                   0                   0                   0
----------------------------------------------------------------------------------------------------------------
Fraser's dolphin:
    BOMBEX training.............                   0                   0                   0                   0
    Small Arms training.........                   0                   0                   0                   0
                                 -------------------------------------------------------------------------------
        Total Exposures.........                   0                   0                   0                   0
----------------------------------------------------------------------------------------------------------------
Killer whale:
    BOMBEX training.............                   0                   0                   0                   0
    Small Arms training.........                   0                   0                   0                   0
                                 -------------------------------------------------------------------------------
        Total Exposures.........                   0                   0                   0                   0
----------------------------------------------------------------------------------------------------------------
Kogia spp.:
    BOMBEX training.............                   0                   0                   0                   0
    Small Arms training.........                   0                   0                   0                   0
                                 -------------------------------------------------------------------------------
        Total Exposures.........                   0                   0                   0                   0
----------------------------------------------------------------------------------------------------------------

[[Page 33973]]

 
Melon-headed whale:
    BOMBEX training.............                   1                   1                   0                   0
    Small Arms training.........                   0                   0                   0                   0
                                 -------------------------------------------------------------------------------
        Total Exposures.........                   1                   1                   0                   0
----------------------------------------------------------------------------------------------------------------
Pantropical spotted dolphin:
    BOMBEX training.............                  14                  12                   1                   0
    Small Arms training.........                   0                   0                   0                   0
                                 -------------------------------------------------------------------------------
        Total Exposures.........                  14                  12                   1                   0
----------------------------------------------------------------------------------------------------------------
Pygmy killer whale:
    BOMBEX training.............                   0                   0                   0                   0
    Small Arms training.........                   0                   0                   0                   0
                                 -------------------------------------------------------------------------------
        Total Exposures.........                   0                   0                   0                   0
----------------------------------------------------------------------------------------------------------------
Risso's dolphin:
    BOMBEX training.............                   1                   1                   0                   0
    Small Arms training.........                   0                   0                   0                   0
                                 -------------------------------------------------------------------------------
        Total Exposures.........                   1                   1                   0                   0
----------------------------------------------------------------------------------------------------------------
Rough-toothed dolphin:
    BOMBEX training.............                   0                   0                   0                   0
    Small Arms training.........                   0                   0                   0                   0
                                 -------------------------------------------------------------------------------
        Total Exposures.........                   0                   0                   0                   0
----------------------------------------------------------------------------------------------------------------
Short-finned pilot whale:
    BOMBEX training.............                   0                   0                   0                   0
    Small Arms training.........                   0                   0                   0                   0
----------------------------------------------------------------------------------------------------------------
        Total Exposures.........                   0                   0                   0                   0
----------------------------------------------------------------------------------------------------------------
Spinner dolphin:
    BOMBEX training.............                  14                  13                   1                   0
    Small Arms training.........                   0                   0                   0                   0
                                 -------------------------------------------------------------------------------
        Total Exposures.........                  14                  13                   1                   0
----------------------------------------------------------------------------------------------------------------
Striped dolphin
    BOMBEX training.............                   4                   4                   0                   0
    Small Arms training.........                   0                   0                   0                   0
                                 -------------------------------------------------------------------------------
        Total Exposures.........                   4                   4                   0                   0
----------------------------------------------------------------------------------------------------------------

Proposed Mitigation Measures

    In order to issue an incidental take authorization (ITA) under 
Section 101(a)(5)(A) of the MMPA, NMFS must prescribe regulations 
setting forth the ``permissible methods of taking pursuant to such 
activity, and other means of effecting the least practicable adverse 
impact on such species or stock and its habitat, paying particular 
attention to rookeries, mating grounds, and areas of similar 
significance.'' The NDAA amended the MMPA as it relates to military 
readiness activities and the incidental take authorization process such 
that ``least practicable adverse impact'' shall include consideration 
of personnel safety, practicality of implementation, and impact on the 
effectiveness of the ``military readiness activity.'' The GOMEX Range 
Complex training activities described in this document are considered 
military readiness activities.
    NMFS reviewed the Navy's proposed GOMEX Range Complex training 
activities and the proposed GOMEX 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 (2), (3), and (4) may contribute to this 
goal).
    (2) A reduction in the numbers of marine mammals (total number or 
number at a biologically important time

[[Page 33974]]

or location) exposed to underwater detonations or other activities 
expected to result in the take of marine mammals (this goal may 
contribute to (1), 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 (1), 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 (1), 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.'' These mitigation measures are listed 
below.

General Maritime Measures

    The mitigation measures presented below would be taken by Navy 
personnel on a regular and routine basis. These are routine measures 
and are considered ``Standard Operating Procedures.''

I. Personnel Training--Lookouts

    The use of shipboard lookouts is a critical component of all Navy 
standard operating procedures. Navy shipboard lookouts (also referred 
to as ``watchstanders'') are qualified and experienced observers of the 
marine environment. Their duties require that they report all objects 
sighted in the water to the Officer of the Deck (OOD) (e.g., trash, a 
periscope, marine mammals, sea turtles) and all disturbances (e.g., 
surface disturbance, discoloration) that may be indicative of a threat 
to the vessel and its crew. There are personnel serving as lookouts on 
station at all times (day and night) when a ship or surfaced submarine 
is moving through the water.
    For the past few years, the Navy has implemented marine mammal 
spotter training for its bridge lookout personnel on ships and 
submarines. This training has been revamped and updated as the Marine 
Species Awareness Training (MSAT) and is provided to all applicable 
units. The lookout training program incorporates MSAT, which addresses 
the lookout's role in environmental protection, laws governing the 
protection of marine species, Navy stewardship commitments, and general 
observation information, including more detailed information for 
spotting marine mammals. MSAT may also be viewed on-line at https://portal.navfac.navy.mil/go/msat.
    1. All bridge personnel, Commanding Officers, Executive Officers, 
officers standing watch on the bridge, maritime patrol aircraft 
aircrews, and Mine Warfare (MIW) helicopter crews will complete MSAT.
    2. Navy lookouts would undertake extensive training to qualify as a 
watchstander in accordance with the Lookout Training Handbook (NAVEDTRA 
12968-D).
    3. Lookout training will include on-the-job instruction under the 
supervision of a qualified, experienced watchstander. Following 
successful completion of this supervised training period, lookouts will 
complete the Personal Qualification Standard Program, certifying that 
they have demonstrated the necessary skills (such as detection and 
reporting of partially submerged objects).
    4. Lookouts will be trained in the most effective means to ensure 
quick and effective communication within the command structure to 
facilitate implementation of protective measures if marine species are 
spotted.
    5. Surface lookouts would scan the water from the ship to the 
horizon and be responsible for all contacts in their sector. In 
searching the assigned sector, the lookout would always start at the 
forward part of the sector and search aft (toward the back). To search 
and scan, the lookout would hold the binoculars steady so the horizon 
is in the top third of the field of vision and direct the eyes just 
below the horizon. The lookout would scan for approximately five 
seconds in as many small steps as possible across the field seen 
through the binoculars. They would search the entire sector in 
approximately five-degree steps, pausing between steps for 
approximately five seconds to scan the field of view. At the end of the 
sector search, the glasses would be lowered to allow the eyes to rest 
for a few seconds, and then the lookout would search back across the 
sector with the naked eye.

II. Operating Procedures and Collision Avoidance

    1. Prior to major exercises, a Letter of Instruction, Mitigation 
Measures Message or Environmental Annex to the Operational Order will 
be issued to further disseminate the personnel training requirement and 
general marine species mitigation measures.
    2. Commanding Officers will make use of marine species detection 
cues and information to limit interaction with marine species to the 
maximum extent possible consistent with safety of the ship according to 
the proposed mitigation and monitoring measures.
    3. While underway, surface vessels will have at least two lookouts 
with binoculars; surfaced submarines will have at least one lookout 
with binoculars. Lookouts already posted for safety of navigation and 
man-overboard precautions may be used to fill this requirement. As part 
of their regular duties, lookouts will watch for and report to the OOD 
the presence of marine mammals.
    4. Personnel on lookout will employ visual search procedures 
employing a scanning method in accordance with the Lookout Training 
Handbook (NAVEDTRA 12968-D).
    5. After sunset and prior to sunrise, lookouts will employ Night 
Lookouts Techniques in accordance with the Lookout Training Handbook 
(NAVEDTRA 12968-D).
    6. While in transit, personnel aboard naval vessels will be alert 
at all times, use extreme caution, and proceed at a ``safe speed'' (the 
minimum speed at which mission goals or safety will not be compromised) 
so that the vessel can take proper and effective action to avoid a 
collision with any marine animal and can be stopped within a distance 
appropriate to the prevailing circumstances and conditions.
    7. When whales have been sighted in the area, Navy vessels will 
increase vigilance and shall implement measures to avoid collisions 
with marine mammals and avoid activities that might result in close 
interaction of naval assets and marine mammals. Actions shall include 
changing speed and/or direction and are dictated by environmental and 
other conditions (e.g., safety, weather).
    8. Naval vessels will maneuver to keep at least 500 yds (460 m) 
away from

[[Page 33975]]

any observed whale and avoid approaching whales head-on. This 
requirement does not apply if a vessel's safety is threatened, such as 
when change of course will create an imminent and serious threat to a 
person, vessel, or aircraft, and to the extent vessels are restricted 
in their ability to maneuver. Restricted maneuverability includes, but 
is not limited to, situations when vessels are engaged in dredging, 
submerged operations, launching and recovering aircraft or landing 
craft, minesweeping operations, replenishment while underway and towing 
operations that severely restrict a vessel's ability to deviate course. 
Vessels will take reasonable steps to alert other vessels in the 
vicinity of the whale.
    9. Where feasible and consistent with mission and safety, vessels 
will avoid closing to within 200-yd (183 m) of marine mammals other 
than whales (whales addressed above).
    10. Floating weeds, algal mats, Sargassum rafts, clusters of 
seabirds, and jellyfish are good indicators of marine mammal presence. 
Therefore, increased vigilance in watching for marine mammals will be 
taken where these conditions exist.
    11. Navy aircraft participating in exercises at sea will conduct 
and maintain, when operationally feasible and safe, surveillance for 
marine species of concern as long as it does not violate safety 
constraints or interfere with the accomplishment of primary operational 
duties described in the Navy's LOA application. Marine mammal 
detections will be immediately reported to assigned Aircraft Control 
Unit for further dissemination to ships in the vicinity of the marine 
species as appropriate where it is reasonable to conclude that the 
course of the ship will likely result in a closing of the distance to 
the detected marine mammal.
    12. All vessels will maintain logs and records documenting training 
operations should they be required for event reconstruction purposes. 
Logs and records will be kept for a period of 30 days following 
completion of a major training exercise.

Coordination and Reporting Requirements

    The Navy will coordinate with the local NMFS Stranding Coordinator 
for any unusual marine mammal behavior and any stranding, beached live/
dead, or floating marine mammals that may occur at any time during 
training activities or within 24 hours after completion of training 
activities. Additionally, the Navy will follow internal chain of 
command reporting procedures as promulgated through Navy instructions 
and orders.

Proposed Mitigation Measures for Specific At-Sea Training Events

    These measures are standard operating procedures that are in place 
currently and will be used in the future for all activities being 
analyzed in this LOA request.

I. Small Arms Training--Explosive Hand Grenades (MK3A2 Grenades)

    This activity occurs in the UNDET Area E3 of the GOMEX Study Area. 
The following mitigation measures are proposed by the Navy for the 
small arms training.
    (A) Lookouts visually survey for floating weeds, algal mats, 
Sargassum rafts, marine mammals.
    (B) A 200-yard (182-m) radius buffer zone will be established 
around the intended target. The exercises will be conducted only if the 
buffer is clear of sighted marine mammals and sea turtles.

II. Air-to-Surface At-Sea Bombing Exercises (BOMBEX, 500-lb to 2,000-lb 
Explosive Bombs)

    This activity occurs in W-155A/B (hot box) area of the GOMEX Study 
Area. The location was established to be within 150 nm from shore-based 
facilities (the established flight distance restriction for F/A-18 jets 
during unit level training events). The following mitigation measures 
are proposed by the Navy for the BOMBEX training.
    (A) Aircraft would visually survey the target and buffer zone for 
marine mammals prior to and during the exercise. The survey of the 
impact area would be made by flying at 1,500 feet altitude or lower, if 
safe to do so, and at the slowest safe speed. Release of ordnance 
through cloud cover is prohibited; aircraft must be able to actually 
see ordnance impact areas. Survey aircraft should employ most effective 
search tactics and capabilities.
    (B) A buffer zone of a 5,100-yard (4,663-m) radius would be 
established around the intended target zone. The exercises would be 
conducted only if the buffer zone is clear of sighted marine mammals 
and sea turtles.
    (C) If surface vessels are involved, lookouts would survey for 
Sargassum rafts, which may be inhabited by immature sea turtles. 
Ordnance would not be targeted to impact within 5,100 yards (4,663 m) 
of known or observed Sargassum rafts or coral reefs.
    (D) At-sea BOMBEXs using live ordnance will occur during daylight 
hours only.
Monitoring Measures
    In order to issue an ITA for an activity, Section 101(a)(5)(A) of 
the MMPA states that NMFS must set forth ``requirements pertaining to 
the monitoring and reporting of such taking''. The MMPA implementing 
regulations at 50 CFR 216.104(a)(13) indicate that requests for LOAs 
must include the suggested means of accomplishing the necessary 
monitoring and reporting that will result in increased knowledge of the 
species and of the level of taking or impacts on populations of marine 
mammals that are expected to be present.
    Monitoring measures prescribed by NMFS should accomplish one or 
more of the following general goals:
    (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, TTS, or 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 GOMEX Range Complex

    The Navy has provided NMFS with a copy of the draft GOMEX 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.
    The Navy must notify NMFS immediately (or as soon as clearance

[[Page 33976]]

procedures allow) if the specified activity is thought to have resulted 
in the mortality or injury of any marine mammals, or in any take of 
marine mammals not identified in this document.
    The Navy must conduct all monitoring and/or research required under 
the Letter of Authorization, if issued.
    With input from NMFS, a summary of the monitoring methods required 
for use during training events in the GOMEX 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 Navy shall visually survey a minimum of 1 explosive event 
per year. If possible, the event surveyed will be one involving 
multiple detonations. One of the vessel or aerial surveys should 
involve professionally trained marine mammal observers (MMOs).
    (B) When operationally feasible, for specified training events, 
aerial or vessel surveys shall be used 1-2 days prior to, during (if 
reasonably safe), and 1-5 days post detonation.
    (C) Surveys shall include any specified exclusion zone around a 
particular detonation point plus 2,000 yards beyond the border of the 
exclusion zone (i.e., the circumference of the area from the border of 
the exclusion zone extending 2,000 yards outwards). For vessel-based 
surveys a passive acoustic system (hydrophone or towed array) could be 
used to determine if marine mammals are in the area before and/or after 
a detonation event.
    (D) When conducting a particular survey, the survey team shall 
collect:
    <bullet> Location of sighting;
    <bullet> Species (if not possible, indicate whale, dolphin or 
pinniped);
    <bullet> Number of individuals;
    <bullet> Whether calves were observed;
    <bullet> Initial detection sensor;
    <bullet> Length of time observers maintained visual contact with 
marine mammal;
    <bullet> Wave height;
    <bullet> Visibility;
    <bullet> Whether sighting was before, during, or after detonations/
exercise, and how many minutes before or after;
    <bullet> Distance of marine mammal from actual detonations (or 
target spot if not yet detonated);
    <bullet> Observed behavior--Watchstanders will report, in plain 
language and without trying to categorize in any way, the observed 
behavior of the animal(s) (such as animal closing to bow ride, 
paralleling course/speed, floating on surface and not swimming etc.), 
including speed and direction;
    <bullet> Resulting mitigation implementation--Indicate whether 
explosive detonations were delayed, ceased, modified, or not modified 
due to marine mammal presence and for how long; and
    <bullet> If observation occurs while explosives are detonating in 
the water, indicate munitions type in use at time of marine mammal 
detection (e.g., were the 5-inch guns actually firing when the animals 
were sighted? Did animals enter an area 2 minutes after a huge 
explosion went off?).

II. Passive Acoustic Monitoring

    The Navy is required to conduct passive acoustic monitoring when 
operationally feasible.
    (A) Any time a towed hydrophone array is employed during shipboard 
surveys the towed array shall be deployed during daylight hours for 
each of the days the ship is at sea.
    (B) The towed hydrophone array shall be used to supplement the 
ship-based systematic line-transect surveys (particularly for species 
such as beaked whales that are rarely seen).

III. Marine Mammal Observers on Navy Platforms

    (A) MMOs selected for aerial or vessel surveys shall be placed on a 
Navy platform during one of the exercises being monitored per year. The 
remaining designated exercise(s) shall be monitored by the Navy 
lookouts/watchstanders.
    (B) The MMO must possess expertise in species identification of 
regional marine mammal species and experience collecting behavioral 
data.
    (C) MMOs shall not be placed aboard Navy platforms for every Navy 
training event or major exercise, but during specifically identified 
opportunities deemed appropriate for data collection efforts. The 
events selected for MMO participation shall take into account safety, 
logistics, and operational concerns.
    (D) MMOs shall observe from the same height above water as the 
lookouts.
    (E) The MMOs shall not be part of the Navy's formal reporting chain 
of command during their data collection efforts; Navy lookouts shall 
continue to serve as the primary reporting means within the Navy chain 
of command for marine mammal sightings. The only exception is that if 
an animal is observed within the shutdown zone that has not been 
observed by the lookout, the MMO shall inform the lookout of the 
sighting, and the lookout shall take the appropriate action through the 
chain of command.
    (F) The MMOs shall collect species identification, behavior, 
direction of travel relative to the Navy platform, and distance first 
observed. All MMO sightings shall be conducted according to a standard 
operating procedure. Information collected by MMOs should be the same 
as those collected by Navy lookout/watchstanders described above.
    The Monitoring Plan for the GOMEX Range Complex has been designed 
as a collection of focused ``studies'' (described fully in the GOMEX 
Monitoring Plan) to gather data that will allow the Navy to address the 
following questions:
    (A) What are the behavioral responses of marine mammals that are 
exposed to explosives?
    (B) Is the Navy's suite of mitigation measures effective at 
avoiding injury and mortality of marine mammals?
    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 GOMEX 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 GOMEX 
Range Complex proposed rule included an adaptive management component 
and both NMFS and the Navy believe that a workshop would provide a 
means for Navy and NMFS to consider input from participants in 
determining whether (and if so, how) to modify monitoring techniques to 
more effectively accomplish the goals of monitoring set forth earlier 
in the document. NMFS and the Navy believe that this workshop concept 
is valuable in relation to all of the Range Complexes and major 
training exercise rules and LOAs that NMFS is working on with the Navy 
at this time. Consequently, NMFS has determined that this single 
Monitoring Workshop will be included as a component of all of the rules 
and LOAs that NMFS will be processing for the Navy in the next year or 
so.
    The Navy, with guidance and support from NMFS, will convene a 
Monitoring Workshop, including marine mammal and acoustic experts as 
well as other interested parties, in 2011. The Monitoring Workshop 
participants will review the monitoring results from the

[[Page 33977]]

previous two years of monitoring pursuant to the GOMEX Range Complex 
rule as well as monitoring results from other Navy rules and LOAs 
(e.g., VACAPES, AFAST, SOCAL, HRC, and other rules). The Monitoring 
Workshop participants would provide their individual recommendations to 
the Navy and NMFS on the monitoring plan(s) after also considering the 
current science (including Navy research and development) and working 
within the framework of available resources and feasibility of 
implementation. NMFS and the Navy would then analyze the input from the 
Monitoring Workshop participants and determine the best way forward 
from a national perspective. Subsequent to the Monitoring Workshop, 
modifications would be applied to monitoring plans as appropriate.

Integrated Comprehensive Monitoring Program

    In addition to the site-specific Monitoring Plan for the GOMEX 
Range Complex, the Navy will complete the Integrated Comprehensive 
Monitoring Program (ICMP) Plan by the end of 2009. The ICMP is 
currently in development by the Navy, with Chief of Naval Operations 
Environmental Readiness Division (CNO-N45) having the lead. The program 
does not duplicate the monitoring plans for individual areas (e.g., 
AFAST, HRC, SOCAL, VACAPES); instead it is intended to provide the 
overarching coordination that will support compilation of data from 
both range-specific monitoring plans as well as Navy funded research 
and development (R&D) studies. The ICMP will coordinate the monitoring 
programs' progress towards meeting its goals and develop a data 
management plan. A program review board is also being considered to 
provide additional guidance. The ICMP will be evaluated annually to 
provide a matrix for progress and goals for the following year, and 
will make recommendations on adaptive management for refinement and 
analysis of the monitoring methods.
    The primary objectives of the ICMP are to:
    <bullet> Monitor and assess the effects of Navy activities on 
protected species;
    <bullet> Ensure that data collected at multiple locations is 
collected in a manner that allows comparison between and among 
different geographic locations;
    <bullet> Assess the efficacy and practicality of the monitoring and 
mitigation techniques;
    <bullet> Add to the overall knowledge-base of marine species and 
the effects of Navy activities on marine species.
    The ICMP will be used both as: (1) a planning tool to focus Navy 
monitoring priorities (pursuant to ESA/MMPA requirements) across Navy 
Range Complexes and Exercises; and (2) an adaptive management tool, 
through the consolidation and analysis of the Navy's monitoring and 
watchstander data, as well as new information from other Navy programs 
(e.g., R&D), and other appropriate newly published information.
    In combination with the 2011 Monitoring Workshop and the adaptive 
management component of the GOMEX Range Complex rule and the other Navy 
rules (e.g. VACAPES Range Complex, Jacksonville Range Complex, etc.), 
the ICMP could potentially provide a framework for restructuring the 
monitoring plans and allocating monitoring effort based on the value of 
particular specific monitoring proposals (in terms of the degree to 
which results would likely contribute to stated monitoring goals, as 
well the likely technical success of the monitoring based on a review 
of past monitoring results) that have been developed through the ICMP 
framework, instead of allocating based on maintaining an equal (or 
commensurate to effects) distribution of monitoring effort across range 
complexes. For example, if careful prioritization and planning through 
the ICMP (which would include a review of both past monitoring results 
and current scientific developments) were to show that a large, intense 
monitoring effort in Hawaii would likely provide extensive, robust and 
much-needed data that could be used to understand the effects of sonar 
throughout different geographical areas, it may be appropriate to have 
other range complexes dedicate money, resources, or staff to the 
specific monitoring proposal identified as ``high priority'' by the 
Navy and NMFS, in lieu of focusing on smaller, lower priority projects 
divided throughout their home range complexes.
    The ICMP will identify:
    <bullet> A means by which NMFS and the Navy would jointly consider 
prior years' monitoring results and advancing science to determine if 
modifications are needed in mitigation or monitoring measures to better 
effect the goals laid out in the Mitigation and Monitoring sections of 
the GOMEX Range Complex rule.
    <bullet> Guidelines for prioritizing monitoring projects.
    <bullet> If, as a result of the workshop and similar to the example 
described in the paragraph above, the Navy and NMFS decide it is 
appropriate to restructure the monitoring plans for multiple ranges 
such that they are no longer evenly allocated (by rule), but rather 
focused on priority monitoring projects that are not necessarily tied 
to the geographic area addressed in the rule, the ICMP will be modified 
to include a very clear and unclassified recordkeeping 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

    NMFS proposes to include an adaptive management component in the 
final regulations governing the take of marine mammals incidental to 
Navy training exercises in the GOMEX Range Complex. 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, if 
issued.
    The following are some of the possible sources of applicable data:
    <bullet> Results from the Navy's monitoring from the previous year 
(either from GOMEX Range Complex or other locations).
    <bullet> Findings of the Workshop that the Navy will convene in 
2011 to analyze monitoring results to date, review current science, and 
recommend modifications, as appropriate to the monitoring protocols to 
increase monitoring effectiveness.
    <bullet> Compiled results of Navy funded research and development 
(R&D) studies (presented pursuant to the ICMP, which is discussed 
elsewhere in this document).
    <bullet> Results from specific stranding investigations (either 
from GOMEX Range Complex or other locations).
    <bullet> Results from general marine mammal and sound research 
(funded by the Navy or otherwise).
    <bullet> Any information which reveals that marine mammals may have 
been taken in a manner, extent or number not authorized by these 
regulations or subsequent Letters of Authorization.
    Mitigation measures could be modified or added (or deleted) if new 
data suggests that such modifications would have (or do not have) a 
reasonable likelihood of accomplishing the goals of mitigation laid out 
in this proposed rule and if the measures are practicable. NMFS would 
also

[[Page 33978]]

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 proposed rule. The reporting 
requirements associated with this rule are designed to provide NMFS 
with monitoring data from the previous year to allow NMFS to consider 
the data 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 Measures

    In order to issue an ITA for an activity, Section 101(a)(5)(A) of 
the MMPA states that NMFS must set forth ``requirements pertaining to 
the monitoring and reporting of such taking''. 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 GOMEX Range Complex Monitoring Plan Report

    The Navy shall submit a report annually on November 1 describing 
the implementation and results (through September 1 of the same year) 
of the GOMEX Range Complex Monitoring Plan, described above. Data 
collection methods will be standardized across range complexes to allow 
for comparison in different geographic locations. Although additional 
information will also be gathered, the MMOs collecting marine mammal 
data pursuant to the GOMEX Range Complex Monitoring Plan shall, at a 
minimum, provide the same marine mammal observation data required in 
major range complex training exercises section of the Annual GOMEX 
Range Complex Exercise Report referenced below.
    The GOMEX 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 GOMEX 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.
    (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 GOMEX Range Complex.
    (ii) Total annual expended/detonated rounds (missiles, bombs, etc.) 
for each explosive type.

GOMEX 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 GOMEX Range Complex exercises for which annual reports are 
required (Annual GOMEX Range Complex Exercise Reports and GOMEX Range 
Complex Monitoring Plan Reports). This report will be submitted at the 
end of the fourth year of the rule (March 2014), covering activities 
that have occurred through September 1, 2013.

Estimated Take of Marine Mammals

    With respect to the MMPA, NMFS' effects assessment serves four 
primary purposes: (1) To prescribe the permissible methods of taking 
(i.e., Level B Harassment (behavioral harassment), Level A harassment 
(injury), or mortality, including an identification of the number and 
types of take that could occur by Level A or B harassment or mortality) 
and to prescribe other means of affecting the least practicable adverse 
impact on such species or stock and its habitat (i.e., mitigation); (2) 
to determine whether the specified activity will have a negligible 
impact on the affected species or stocks of marine mammals (based on 
the likelihood that the activity will adversely affect the species or 
stock through effects on annual rates of recruitment or survival); (3) 
to determine whether the specified activity will have an unmitigable 
adverse impact on the availability of the species or stock(s) for 
subsistence uses (however, there are no subsistence communities that 
would be affected in the GOMEX Range Complex, so this determination is 
inapplicable for this rulemaking); and (4) to prescribe requirements 
pertaining to monitoring and reporting.
    In the Assessment of Marine Mammal Response to Anthropogenic Sound 
section, NMFS' analysis identified the lethal responses, physical 
trauma, sensory impairment (permanent and temporary threshold shifts 
and acoustic masking), physiological responses (particular stress 
responses), and behavioral responses that could potentially result from 
explosive ordnance exposures. In this section, we will relate the 
potential effects to marine mammals from underwater detonation of 
explosives to the MMPA regulatory definitions of Level A and Level B 
Harassment and attempt to quantify the effects that might occur from 
the specific training activities that the Navy is proposing in the 
GOMEX Range Complex.

Take Calculations

    In estimating the potential for marine mammals to be exposed to an 
acoustic source, the Navy completed the following actions:
    (1) Evaluated potential effects within the context of existing and 
current regulations, thresholds, and criteria;
    (2) Identified all acoustic sources that will be used during Navy 
training activities;
    (3) Identified the location, season, and duration of the action to 
determine which marine mammal species are likely to be present;
    (4) Determined the estimated number of marine mammals (i.e., 
density) of each species that will likely be present in the respective 
OPAREAs during the Navy training activities;
    (5) Applied the applicable acoustic threshold criteria to the 
predicted sound exposures from the proposed activity. The results were 
then evaluated to

[[Page 33979]]

determine whether the predicted sound exposures from the acoustic model 
might be considered harassment; and
    (6) Considered potential harassment within the context of the 
affected marine mammal population, stock, and species to assess 
potential population viability. Particular focus on recruitment and 
survival are provided to analyze whether the effects of the action can 
be considered to have a negligible impact on marine mammal species or 
stocks.
    Starting with a sound source, the attenuation of an emitted sound 
due to propagation loss is determined. Uniform animal distribution is 
overlaid onto the calculated sound fields to assess if animals are 
physically present at sufficient received sound levels to be considered 
``exposed'' to the sound. If the animal is determined to be exposed, 
two possible scenarios must be considered with respect to the animal's 
physiology--effects on the auditory system and effects on non-auditory 
system tissues. These are not independent pathways and both must be 
considered since the same sound could affect both auditory and non-
auditory tissues. Note that the model does not account for any animal 
response; rather the animals are considered stationary, accumulating 
energy until the threshold is tripped.
    These modeling results do not take into account the mitigation 
measures (detailed in the Mitigation Measure section above) that lower 
the potential for exposures to occur given standard range clearance 
procedures and the likelihood that these species can be readily 
detected (e.g., small animals move quickly throughout the water column 
and are often seen riding the bow wave of large ships or in large 
groups). Nevertheless, based on the modeling results, 2 Atlantic 
spotted dolphins, 19 bottlenose dolphins, 6 Clymene dolphins, 2 melon-
headed whales, 26 pantropical spotted dolphins, 2 Risso's dolphins, 27 
spinner dolphins, and 8 striped dolphins would be taken by Level B 
harassment (sub-TTS and TTS) as a result of the Navy training 
activities in the GOMEX Range Complex. In addition, 1 individual each 
of pantropical spotted dolphin and spinner dolphin would be taken by 
Level A harassment (injury). Please refer to Table 6 for a detailed 
list of marine mammals that would be taken as a result of the proposed 
Navy training activities within the GOMEX Range Complex. NMFS does not 
believe that there would be any mortality of any marine mammal 
resulting from the proposed training activities due to the sparse 
training activities and the implementation of mitigation and monitoring 
measures described above. Therefore, mortality of marine mammals would 
not be authorized. With the mitigation and monitoring measures 
implemented, the estimated take could be further reduced.

Effects on Marine Mammal Habitat

    Marine mammal habitat and prey species could be affected by the 
explosive ordnance testing and the sound generated by such activities. 
Based on the analysis contained in the Navy's DEIS and the information 
below, NMFS has determined that the GOMEX Range Complex training 
activities will not have adverse or long-term impacts on marine mammal 
habitat or prey species.
    Unless the sound source or explosive detonation is stationary and/
or continuous over a long duration in one area, the effects of 
underwater detonation and its associated sound are generally considered 
to have a less severe impact on marine mammal habitat than the physical 
alteration of the habitat. Marine mammals may be temporarily displaced 
from areas where Navy training is occurring, but the area will be 
utilized again after the activities have ceased.

Effects on Food Resources

    There are currently no well-established thresholds for estimating 
effects to fish from explosives other than mortality models. Fish that 
are located in the water column, in proximity to the source of 
detonation could be injured, killed, or disturbed by the impulsive 
sound and could leave the area temporarily. Continental Shelf Inc. 
(2004) summarized a few studies conducted to determine effects 
associated with removal of offshore structures (e.g., oil rigs) in the 
Gulf of Mexico. Their findings revealed that at very close range, 
underwater explosions are lethal to most fish species regardless of 
size, shape, or internal anatomy. In most situations, cause of death in 
fish has been massive organ and tissue damage and internal bleeding. At 
longer range, species with gas-filled swimbladders (e.g., snapper, cod, 
and striped bass) are more susceptible than those without swimbladders 
(e.g., flounders, eels).
    Studies also suggest that larger fish are generally less 
susceptible to death or injury than small fish. Moreover, elongated 
forms that are round in cross section are less at risk than deep-bodied 
forms. Orientation of fish relative to the shock wave may also affect 
the extent of injury. Open water pelagic fish (e.g., mackerel) seem to 
be less affected than reef fishes. The results of most studies are 
dependent upon specific biological, environmental, explosive, and data 
recording factors.
    The huge variation in fish populations, including numbers, species, 
sizes, and orientation and range from the detonation point, makes it 
very difficult to accurately predict mortalities at any specific site 
of detonation. A total of 7 hours explosive detonation events, with 
each event lasting for approximately 1 hour, are widely dispersed in 
two locations within the large GOMEX study area over the seasons for 
each year. Most fish species experience a large number of natural 
mortalities, especially during early life-stages, and any small level 
of mortality caused by the GOMEX 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 GOMEX Range Complex are expected to be minimal given both the very 
geographic and spatially limited scope of most Navy at-sea activities 
including underwater detonations, and the high biological productivity 
of these resources. No short or long term effects to marine mammal food 
resources from Navy activities are anticipated within the GOMEX Range 
Complex.

Analysis and Negligible Impact Determination

    Pursuant to NMFS' regulations implementing the MMPA, an applicant 
is required to estimate the number of animals that will be ``taken'' by 
the specified activities (i.e., takes by harassment only, or takes by 
harassment, injury, and/or death). This estimate informs the analysis 
that NMFS must perform to determine whether the activity will have a 
``negligible impact'' on the species or stock. Level B (behavioral) 
harassment occurs at the level of the individual(s) and does not assume 
any resulting population-level consequences, though there are known 
avenues through which behavioral disturbance of individuals can result 
in population-level effects. A negligible impact finding is based on 
the lack of likely adverse effects on annual rates of recruitment or 
survival (i.e., population-level effects). An estimate of the number of 
Level B harassment takes alone, is not enough information on which to 
base an impact determination.
    In addition to considering estimates of the number of marine 
mammals that might be ``taken'' through behavioral harassment, NMFS 
must consider other factors, such as the likely nature of any responses 
(their intensity, duration,

[[Page 33980]]

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 GOMEX Range Complex training activities. The events are 
generally short in duration, with each of the seven annual events 
lasting for about 1 hour. 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 the GOMEX 
Range Complex, 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 GOMEX 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 GOMEX Range Complex training 
activities was provided earlier in this proposed rule and is analyzed 
in more detail below.

Behavioral Harassment

    The Navy plans a total of 1 BOMBEX training event (with 4 bombs in 
succession for 1 hour) and 6 small arms training events (with 20 live 
grenades for each 1-hour event) annually. The total training exercises 
proposed by the Navy in the GOMEX Range Complex amount to approximately 
7 hours per year. These detonation events are widely dispersed in two 
of the designated sites within the GOMEX 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 GOMEX 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, when received at distances of Level 
B behavioral harassment (i.e., 177 dB re 1 microPa \2\-sec), are 
expected to cause brief startle reactions or short-term behavioral 
modification by the animals. These brief reactions and behavioral 
changes are expected to disappear when the exposures cease. Therefore, 
these levels of received impulse noise from detonation are not expected 
to affect annual rates or recruitment or survival.

TTS

    NMFS and the Navy have estimated that individuals of some species 
of marine mammals may sustain some level of temporarily threshold shift 
TTS from underwater detonations. TTS can last from a few minutes to 
days, be of varying degree, and occur across various frequency 
bandwidths. The TTS sustained by an animal is primarily classified by 
three characteristics:
    <bullet> Frequency--Available data (of mid-frequency hearing 
specialists exposed to mid- to high-frequency sounds--Southall et al., 
2007) suggest that most TTS occurs in the frequency range of the source 
up to one octave higher than the source (with the maximum TTS at \1/2\-
octave above).
    <bullet> Degree of the shift (i.e., how many dB is the sensitivity 
of the hearing reduced by)--generally, both the degree of TTS and the 
duration of TTS will be greater if the marine mammal is exposed to a 
higher level of energy (which would occur when the peak dB level is 
higher or the duration is longer). Since the impulse from detonation is 
extremely brief, an animal would have to approach very close to the 
detonation site to increase the received SEL. The threshold for the 
onset of TTS for detonations is a dual criteria: 182 dB re 1 
microPa\2\-sec or 23 psi, which might be received at distances from 
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).
    <bullet> Duration of TTS (Recovery time)--Of all TTS laboratory 
studies, some using exposures of almost an hour in duration or up to 
217 SEL, almost all recovered within 1 day (or less, often in minutes), 
though in one study (Finneran et al., 2007), recovery took 4 days.
    <bullet> Although the degree of TTS depends on the received noise 
levels 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 pantropical spotted dolphin and 1 
spinner dolphin could experience 50-percent tympanic membrane rupture 
or slight lung injury (Level A harassment) as a result of the training 
activities utilizing underwater detonation by BOMBEX in the GOMEX 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 0.09 km\2\ to 4.98 km\2\ (or at 
distances between 169 m to 1,259 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 BOMBEX, 
which is planned to have 1 event annually), all injury ZOIs from small 
arms trainings are smaller than 0.1 km\2\ (178 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 
Atlantic spotted dolphins, 19 bottlenose dolphins, 6 Clymene dolphins, 
2 melon-headed whales, 26 pantropical spotted dolphins, 2 Risso's 
dolphins, 27 spinner dolphins, and 8 striped dolphins could be affected 
by Level B harassment (TTS and sub-TTS) as a result of the proposed 
GOMEX Range Complex training activities. These numbers represent

[[Page 33981]]

approximately 0.01%, 0.51%, 0.09%, 0.09%, 0.08%, 0.13%, 1.36%, and 
0.24% of Atlantic spotted dolphins, bottlenose dolphins (Gulf of Mexico 
oceanic stock), Clymene dolphins, melon-headed whales, pantropical 
spotted dolphins, Risso's dolphins, spinner dolphins, and striped 
dolphins, respectively, in the vicinity of the proposed GOMEX Range 
Complex Study Area (calculation based on NMFS 2007 U.S. Atlantic and 
Gulf of Mexico Marine Mammal Stock Assessment).
    In addition, the Level A takes of 1 pantropical spotted dolphin and 
1 spinner dolphin represent 0.0029% and 0.0503% of these species, 
respectively, in the vicinity of the proposed GOMEX Range Complex Study 
Area (calculation based on NMFS 2007 U.S. Atlantic and Gulf of Mexico 
Marine Mammal Stock Assessment). Given these very small percentages, 
NMFS does not expect there to be any long-term adverse effect on the 
populations of the aforementioned dolphin species. No marine mammals 
are expected to be killed as a result of these activities.
    Additionally, the aforementioned take estimates do not account for 
the implementation of mitigation measures. With the implementation of 
mitigation and monitoring measures, NMFS expects that the takes would 
be reduced further. Coupled with the fact that these impacts will 
likely not occur in areas and times critical to reproduction, NMFS has 
preliminarily determined that the total taking over the 5-year period 
of the regulations and subsequent LOAs from the Navy's GOMEX Range 
Complex training activities will have a negligible impact on the marine 
mammal species and stocks present in the GOMEX Range Complex Study 
Area.

Subsistence Harvest of Marine Mammals

    NMFS has preliminarily determined that the issuance of 5-year 
regulations and subsequent LOAs (as warranted) for Navy training 
exercises in the GOMEX Range Complex would not have an unmitigable 
adverse impact on the availability of the affected species or stocks 
for subsistence use since there are no such uses in the specified area.

ESA

    There are six ESA-listed marine mammal species that are listed as 
endangered under the ESA with confirmed or possible occurrence in the 
GOMEX Range Complex: humpback whale, North Atlantic right whale, fin 
whale, blue whale, sei whale, and sperm whale. The Navy has begun 
consultation with NMFS pursuant to section 7 of the ESA, and NMFS will 
also consult internally on the issuance of an LOA under section 
101(a)(5)(A) of the MMPA for training exercises in the GOMEX Range 
Complex. Consultation will be concluded prior to a determination on the 
issuance of the final rule and an LOA.

NEPA

    The Navy is preparing an Environmental Impact Statement (EIS) for 
the proposed GOMEX Range Complex training activities. A draft EIS was 
released in November 2008 and it is available at http://www.gomexrangecomplexeis.com/. NMFS is a cooperating agency (as defined 
by the Council on Environmental Quality (40 CFR 1501.6)) in the 
preparation of the EIS. NMFS has reviewed the Draft EIS and will be 
working with the Navy on the Final EIS (FEIS).
    NMFS intends to adopt the Navy's FEIS, if adequate and appropriate, 
and we believe that the Navy's FEIS will allow NMFS to meet its 
responsibilities under NEPA for the issuance of the 5-year regulation 
and LOAs for training activities in the GOMEX Range Complex. If the 
Navy's FEIS is not adequate, NMFS will supplement the existing analysis 
and documents to ensure that we comply with NEPA prior to the issuance 
of the final rule or LOA.

Preliminary Determination

    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat and dependent 
upon the implementation of the mitigation measures, NMFS preliminarily 
finds that the total taking from Navy training exercises utilizing 
underwater explosives in the GOMEX Range Complex will have a negligible 
impact on the affected marine mammal species or stocks. NMFS has 
proposed regulations for these exercises that prescribe the means of 
affecting the least practicable adverse impact on marine mammals and 
their habitat and set forth requirements pertaining to the monitoring 
and reporting of that taking.

Classification

    This action does not contain a collection of information 
requirement for purposes of the Paperwork Reduction Act.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    Pursuant to the Regulatory Flexibility Act, the Chief Counsel for 
Regulation of the Department of Commerce has certified to the Chief 
Counsel for Advocacy of the Small Business Administration that this 
rule, if adopted, would not have a significant economic impact on a 
substantial number of small entities. The Regulatory Flexibility Act 
requires Federal agencies to prepare an analysis of a rule's impact on 
small entities whenever the agency is required to publish a notice of 
proposed rulemaking. However, a Federal agency may certify, pursuant to 
5 U.S.C. Section 605 (b), that the action will not have a significant 
economic impact on a substantial number of small entities. The Navy is 
the entity that will be affected by this rulemaking, not a small 
governmental jurisdiction, small organization or small business, as 
defined by the Regulatory Flexibility Act. This rulemaking authorizes 
the take of marine mammals incidental to a specified activity. The 
specified activity defined in the proposed rule includes the use of 
underwater detonations during training activities that are only 
conducted by the U.S. Navy. Additionally, the proposed regulations are 
specifically written for ``military readiness'' activities, as defined 
by the NDAA, which means they cannot apply to small businesses. 
Consequently, any requirements imposed by a Letter of Authorization 
issued pursuant to these regulations, and any monitoring or reporting 
requirements imposed by these regulations, will be applicable only to 
the Navy. Because this action, if adopted, would directly affect the 
Navy and not a small entity, NMFS concludes the action would not result 
in a significant economic impact on a substantial number of small 
entities. As a result, an initial regulatory flexibility analysis is 
not required and none has been prepared.

List of Subjects in 50 CFR Part 218

    Exports, Fish, Imports, Incidental take, Indians, Labeling, Marine 
mammals, Navy, Penalties, Reporting and recordkeeping requirements, 
Seafood, Sonar, Transportation.

    Dated: July 7, 2009.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For reasons set forth in the preamble, 50 CFR part 218 is proposed 
to be amended as follows:

PART 218--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE 
MAMMALS

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

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


[[Page 33982]]


    2. Subpart D is added to part 218 to read as follows:
Subpart D--Taking Marine Mammals Incidental to U.S. Navy Training in 
the Gulf of Mexico Range Complex (GOMEX Range Complex)
Sec.
218.30 Specified activity and specified geographical area.
218.31 Permissible methods of taking.
218.32 Prohibitions.
218.33 Mitigation.
218.34 Requirements for monitoring and reporting.
218.35 Applications for Letters of Authorization.
218.36 Letters of Authorization.
218.37 Renewal of Letters of Authorization and adaptive management.
218.38 Modifications to Letters of Authorization.

Subpart D--Taking Marine Mammals Incidental to U.S. Navy Training 
in the Gulf of Mexico Range Complex (GOMEX Range Complex)


Sec.  218.30  Specified activity and specified geographical area.

    (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 GOMEX Range Complex Operation Areas (OPAREAs), 
which is located along the southern east coast of the U.S. described in 
Figures 1 and 2 of the LOA application and consist of the BOMBEX Hotbox 
(surface and subsurface waters) and underwater detonation (UNDET) Area 
E3 (surface and subsurface waters), located within the territorial 
waters off Padre Island, Texas, near Corpus Christi NAS.
    (1) The northernmost boundary of the BOMBEX Hotbox is located 23 nm 
(42.6 km) from the coast of the Florida panhandle at latitude 30[deg] 
N, the eastern boundary is approximately 200 nm (370.4 km) from the 
coast of the Florida peninsula at longitude 86[deg]48' W.
    (2) The UNDET Area E3 is a defined surface and subsurface area 
located in the waters south of Corpus Christi NAS and offshore of Padre 
Island, Texas. The westernmost boundary is located 7.5 nm (13.9 km) 
from the coast of Padre Island at 97[deg]9'33' W and 27[deg]24'26'' N 
at the westernmost corner. It lies entirely within the territorial 
waters (0 to 12 nm, or 0 to 22.2 km) of the U.S. and the majority of it 
lies within Texas state waters (0 to 9 nm, or 0 to 16.7 km). It is a 
very shallow water training area with depths ranging from 20 to 26 m.
    (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) MK-83 (1,000 lb High Explosive bomb);
    (B) MK3A2 anti-swimmer concussion grenades (0.5 lbs NEW).
    (ii) Training Events:
    (A) BOMBEX (Air-to-Surface)--up to 5 events over the course of 5 
years (an average of 1 event per year, with 4 bombs in succession for 
each event);
    (B) Small Arms Training with MK3A2 anti-swimmer concussion 
grenade--up to 30 events over the course of 5 years (an average 6 
events per year, with 20 live grenades used for each event).
    (2) [Reserved]


Sec.  218.31  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec.  216.106 
of this chapter and Sec.  218.36, the Holder of the Letter of 
Authorization may incidentally, but not intentionally, take marine 
mammals within the area described in Sec.  218.30(b), provided the 
activity is in compliance with all terms, conditions, and requirements 
of this subpart and the appropriate Letter of Authorization.
    (b) The activities identified in Sec.  218.30(c) must be conducted 
in a manner that minimizes, to the greatest extent practicable, any 
adverse impacts on marine mammals and their habitat.
    (c) The incidental take of marine mammals under the activities 
identified in Sec.  218.30(c) is limited to the following species, by 
the indicated method of take and the indicated number of times:
    (1) Level B Harassment:
    (i) Bottlenose dolphin (Tursiops truncatus )--95 (an average of 19 
annually);
    (ii) Pantropical spotted dolphin (Stenella attenuata )--130 (an 
average of 26 annually);
    (iii) Clymene dolphin (S. clymene)--30 (an average of 6 annually);
    (iv) Atlantic spotted dolphin (S. frontalis)--10 (an average of 2 
annually);
    (v) Spinner dolphin (S. longirostris)--135 (an average of 27 
annually);
    (vi) Striped dolphin (S. coeruleoalba)--40 (an average of 8 
annually);
    (vii) Risso's dolphin (Grampus griseus)--10 (an average of 2 
annually); (viii) Melon-headed whales (Peponocephala electra)--10 (an 
average of 2 annually);
    (2) Level A Harassment (injury):
    (i) Pantropical spotted dolphin--5 (an average of 1 annually);
    (ii) Spinner dolphin--5 (an average of 1 annually);


Sec.  218.32  Prohibitions.

    Notwithstanding takings contemplated in Sec.  218.31 and authorized 
by a Letter of Authorization issued under Sec.  216.106 of this chapter 
and Sec.  218.36, no person in connection with the activities described 
in Sec.  218.30 may:
    (a) Take any marine mammal not specified in Sec.  218.31(c);
    (b) Take any marine mammal specified in Sec.  218.31(c) other than 
by incidental take as specified in Sec.  218.31(c)(1) and (2);
    (c) Take a marine mammal specified in Sec.  218.31(c) if such 
taking results in more than a negligible impact on the species or 
stocks of such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of this Subpart or a Letter of Authorization issued under 
Sec.  216.106 of this chapter and Sec.  218.36.


Sec.  218.33  Mitigation.

    (a) When conducting training activities identified in Sec.  
218.30(c), the mitigation measures contained in the Letter of 
Authorization issued under Sec.  216.106 of this chapter and Sec.  
218.36 must be implemented. These mitigation measures include, but are 
not limited to:
    (1) General Maritime Measures:
    (i) Personnel Training--Lookouts:
    (A) All bridge personnel, Commanding Officers, Executive Officers, 
officers standing watch on the bridge, maritime patrol aircraft 
aircrews, and Mine Warfare (MIW) helicopter crews shall complete Marine 
Species Awareness Training (MSAT).
    (B) Navy lookouts shall undertake extensive training to qualify as 
a watchstander in accordance with the Lookout Training Handbook 
(NAVEDTRA 12968-D).
    (C) Lookout training shall include on-the-job instruction under the 
supervision of a qualified, experienced watchstander. Following 
successful completion of this supervised training period, lookouts 
shall complete the Personal Qualification Standard Program, certifying 
that they have demonstrated the necessary skills (such as detection and 
reporting of partially submerged objects).
    (D) Lookouts shall be trained in the most effective means to ensure 
quick and effective communication within the command structure to 
facilitate implementation of protective measures if marine species are 
spotted.

[[Page 33983]]

    (E) Surface lookouts shall scan the water from the ship to the 
horizon and be responsible for all contacts in their sector. In 
searching the assigned sector, the lookout shall always start at the 
forward part of the sector and search aft (toward the back). To search 
and scan, the lookout shall hold the binoculars steady so the horizon 
is in the top third of the field of vision and direct the eyes just 
below the horizon. The lookout shall scan for approximately five 
seconds in as many small steps as possible across the field seen 
through the binoculars. They shall search the entire sector in 
approximately five-degree steps, pausing between steps for 
approximately five seconds to scan the field of view. At the end of the 
sector search, the glasses shall be lowered to allow the eyes to rest 
for a few seconds, and then the lookout shall search back across the 
sector with the naked eye.
    (F) At night, lookouts shall scan the horizon in a series of 
movements that would allow their eyes to come to periodic rests as they 
scan the sector. When visually searching at night, they shall look a 
little to one side and out of the corners of their eyes, paying 
attention to the things on the outer edges of their field of vision. 
Lookouts shall also have night vision devices available for use.
    (ii) Operating Procedures & Collision Avoidance:
    (A) Prior to major exercises, a Letter of Instruction, Mitigation 
Measures Message or Environmental Annex to the Operational Order shall 
be issued to further disseminate the personnel training requirement and 
general marine species mitigation measures.
    (B) Commanding Officers shall make use of marine species detection 
cues and information to limit interaction with marine species to the 
maximum extent possible consistent with safety of the ship.
    (C) While underway, surface vessels shall have at least two 
lookouts with binoculars; surfaced submarines shall have at least one 
lookout with binoculars. Lookouts already posted for safety of 
navigation and man-overboard precautions may be used to fill this 
requirement. As part of their regular duties, lookouts shall watch for 
and report to the OOD the presence of marine mammals.
    (D) Personnel on lookout shall employ visual search procedures 
employing a scanning method in accordance with the Lookout Training 
Handbook (NAVEDTRA 12968-D).
    (E) After sunset and prior to sunrise, lookouts shall employ Night 
Lookouts Techniques in accordance with the Lookout Training Handbook 
(NAVEDTRA 12968-D).
    (F) While in transit, naval vessels shall be alert at all times, 
use extreme caution, and proceed at a ``safe speed'' (the minimum speed 
at which mission goals or safety will not be compromised) so that the 
vessel can take proper and effective action to avoid a collision with 
any marine animal and can be stopped within a distance appropriate to 
the prevailing circumstances and conditions.
    (G) When marine mammals have been sighted in the area, Navy vessels 
shall increase vigilance and implement measures to avoid collisions 
with marine mammals and avoid activities that might result in close 
interaction of naval assets and marine mammals. Such measures shall 
include changing speed and/or course direction and would be dictated by 
environmental and other conditions (e.g., safety or weather).
    (H) Naval vessels shall maneuver to keep at least 500 yds (460 m) 
away from any observed whale and avoid approaching whales head-on. This 
requirement does not apply if a vessel's safety is threatened, such as 
when change of course will create an imminent and serious threat to a 
person, vessel, or aircraft, and to the extent vessels are restricted 
in their ability to maneuver. Vessels shall take reasonable steps to 
alert other vessels in the vicinity of the whale.
    (I) Where feasible and consistent with mission and safety, vessels 
shall avoid closing to within 200-yd (183 m) of marine mammals other 
than whales (whales addressed above).
    (J) Navy aircraft participating in exercises at sea shall conduct 
and maintain, when operationally feasible and safe, surveillance for 
marine species of concern as long as it does not violate safety 
constraints or interfere with the accomplishment of primary operational 
duties. Marine mammal detections shall be immediately reported to 
assigned Aircraft Control Unit for further dissemination to ships in 
the vicinity of the marine species as appropriate where it is 
reasonable to conclude that the course of the ship will likely result 
in a closing of the distance to the detected marine mammal.
    (K) All vessels shall maintain logs and records documenting 
training operations should they be required for event reconstruction 
purposes. Logs and records shall be kept for a period of 30 days 
following completion of a major training exercise.
    (2) Coordination and Reporting Requirements:
    (i) The Navy shall coordinate with the local NMFS Stranding 
Coordinator for any unusual marine mammal behavior and any stranding, 
beached live/dead, or floating marine mammals that may occur at any 
time during 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) Proposed Mitigation Measures for Specific At-sea Training 
Events--If a marine mammal is injured or killed as a result of the 
proposed Navy training activities (e.g., instances in which it is clear 
that munitions explosions caused death), the Navy shall suspend its 
activities immediately and report such incident to NMFS.
    (i) Air-to-Surface At-Sea Bombing Exercises (250-lbs to 2,000-lbs 
explosive bombs):
    (A) This activity shall only occur in W-155A/B (hot box) area of 
the GOMEX Range Complex OPAREA.
    (B) 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. Release of 
ordnance through cloud cover is prohibited; aircraft must be able to 
actually see ordnance impact areas.
    (C) A buffer zone of a 5,100-yard (4,663-m) radius shall be 
established around the intended target zone. The exercises shall be 
conducted only if the buffer zone is clear of sighted marine mammals.
    (D) At-sea BOMBEXs using live ordnance shall occur during daylight 
hours only.
    (ii) Small Arms Training--Explosive hand grenades (such as the 
MK3A2 grenades):
    (A) Lookouts shall visually survey for marine mammals prior to and 
during exercise.
    (B) A 200-yd (182-m) radius buffer zone shall be established around 
the intended target. The exercises shall be conducted only if the 
buffer zone is clear of marine mammals.
    (b) [Reserved]


Sec.  218.34  Requirements for monitoring and reporting.

    (a) The Holder of the Letter of Authorization issued pursuant to 
Sec.  216.106 of this chapter and Sec.  218.36 for activities described 
in Sec.  218.30(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

[[Page 33984]]

the specified activity identified in Sec.  218.30(c) is thought to have 
resulted in the mortality or serious injury of any marine mammals, or 
in any take of marine mammals not identified in Sec.  218.31(c).
    (c) The Navy must conduct all monitoring and required reporting 
under the Letter of Authorization, including abiding by the GOMEX Range 
Complex Monitoring Plan, which is incorporated herein by reference, and 
which requires the Navy to implement, at a minimum, the monitoring 
activities summarized below.
    (1) Vessel or aerial surveys.
    (i) The Holder of this Authorization shall visually survey a 
minimum of 1 explosive event per year. One of the vessel or aerial 
surveys should involve NMFS-approved marine mammal observers (MMOs). If 
it is impossible to conduct the required surveys due to lack of 
training exercises, the missed annual survey requirement shall roll 
into the subsequent year to ensure that the appropriate number of 
surveys (i.e., total of five) occurs over the 5-year period of 
effectiveness of this subject.
    (ii) When operationally feasible, for specified training events, 
aerial or vessel surveys shall be used 1-2 days prior to, during (if 
reasonably safe), and 1-5 days post detonation.
    (iii) Surveys shall include any specified exclusion zone around a 
particular detonation point plus 2,000 yards beyond the border of the 
exclusion zone (i.e., the circumference of the area from the border of 
the exclusion zone extending 2,000 yards outwards). For vessel based 
surveys a passive acoustic system (hydrophone or towed array) could be 
used to determine if marine mammals are in the area before and/or after 
a detonation event.
    (iv) When conducting a particular survey, the survey team shall 
collect:
    (A) Location of sighting;
    (B) Species (if not possible, indicate whale, dolphin or pinniped);
    (C) Number of individuals;
    (D) Whether calves were observed;
    (E) Initial detection sensor;
    (F) Length of time observers maintained visual contact with marine 
mammal;
    (G) Wave height;
    (H) Visibility;
    (I) Whether sighting was before, during, or after detonations/
exercise, and how many minutes before or after;
    (J) Distance of marine mammal from actual detonations (or target 
spot if not yet detonated);
    (K) Observed behavior--Watchstanders shall report, in plain 
language and without trying to categorize in any way, the observed 
behavior of the animal(s) (such as animal closing to bow ride, 
paralleling course/speed, floating on surface and not swimming, etc.), 
including speed and direction;
    (L) Resulting mitigation implementation--Indicate whether explosive 
detonations were delayed, ceased, modified, or not modified due to 
marine mammal presence and for how long; and
    (M) If observation occurs while explosives are detonating in the 
water, indicate munitions type in use at time of marine mammal 
detection.
    (2) Passive acoustic monitoring--the Navy shall conduct passive 
acoustic monitoring when operationally feasible.
    (i) Any time a towed hydrophone array is employed during shipboard 
surveys the towed array shall be deployed during daylight hours for 
each of the days the ship is at sea.
    (ii) The towed hydrophone array shall be used to supplement the 
ship-based systematic line-transect surveys (particularly for species 
such as beaked whales that are rarely seen).
    (iii) The array should have the capability of detecting low 
frequency vocalizations (<1,000 Hz) for baleen whales and relatively 
high frequency (up to 30 kHz) for odontocetes. The use of two 
simultaneously deployed arrays can also allow more accurate 
localization and determination of diving patterns.
    (3) Marine mammal observers on Navy platforms:
    (i) As required in Sec.  218.34(c)(1), MMOs who are selected for 
aerial or vessel surveys shall be placed on a Navy platform during one 
of the explosive exercises being monitored per year, the other 
designated exercise shall be monitored by the Navy lookouts/
watchstanders.
    (ii) The MMO must possess expertise in species identification of 
regional marine mammal species and experience collecting behavioral 
data.
    (iii) MMOs shall not be placed aboard Navy platforms for every Navy 
training event or major exercise, but during specifically identified 
opportunities deemed appropriate for data collection efforts. The 
events selected for MMO participation shall take into account safety, 
logistics, and operational concerns.
    (iv) MMOs shall observe from the same height above water as the 
lookouts.
    (v) The MMOs shall not be part of the Navy's formal reporting chain 
of command during their data collection efforts; Navy lookouts shall 
continue to serve as the primary reporting means within the Navy chain 
of command for marine mammal sightings. The only exception is that if 
an animal is observed within the shutdown zone that has not been 
observed by the lookout, the MMO shall inform the lookout of the 
sighting and the lookout shall take the appropriate action through the 
chain of command.
    (vi) The MMOs shall collect species identification, behavior, 
direction of travel relative to the Navy platform, and distance first 
observed. Information collected by MMOs should be the same as those 
collected by Navy lookout/watchstanders described in Sec.  
218.34(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 GOMEX 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 GOMEX Range Complex Monitoring Plan Report--The Navy 
shall submit a report annually on November 1 describing the 
implementation and results (through September 1 of the same year) of 
the GOMEX Range Complex Monitoring Plan. Data collection methods shall 
be standardized across range complexes to allow for comparison in 
different geographic locations. Although

[[Page 33985]]

additional information will also be gathered, the MMOs collecting 
marine mammal data pursuant to the GOMEX Range Complex Monitoring Plan 
shall, at a minimum, provide the same marine mammal observation data 
required in the data required in Sec.  218.34(g). The GOMEX Range 
Complex Monitoring Plan Report may be provided to NMFS within a larger 
report that includes the required Monitoring Plan Reports from GOMEX 
Range Complex and multiple range complexes.
    (g) Annual GOMEX Range Complex Exercise Report--The Navy shall 
provide the information described below for all of their explosive 
exercises. Until the Navy is able to report in full the information 
below, they shall provide an annual update on the Navy's explosive 
tracking methods, including improvements from the previous year.
    (1) Total annual number of each type of explosive exercise (of 
those identified as part of the ``specified activity'' in this final 
rule) conducted in the GOMEX Range Complex.
    (2) Total annual expended/detonated rounds (missiles, bombs, etc.) 
for each explosive type.
    (h) GOMEX 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 GOMEX Range 
Complex exercises for which annual reports are required (Annual GOMEX 
Range Complex Exercise Reports and GOMEX Range Complex Monitoring Plan 
Reports). This report shall be submitted at the end of the fourth year 
of the rule (March 2014), covering activities that have occurred 
through September 1, 2013.
    (i) The Navy shall respond to NMFS comments and requests for 
additional information or clarification on the GOMEX Range Complex 
Comprehensive Report, the Annual GOMEX Range Complex Exercise Report, 
or the Annual GOMEX Range Complex Monitoring Plan Report (or the multi-
Range Complex Annual Monitoring Plan Report, if that is how the Navy 
chooses to submit the information) if submitted within 3 months of 
receipt. These reports will be considered final after the Navy has 
addressed NMFS' comments or provided the requested information, or 
three months after the submittal of the draft if NMFS does not comment 
by then.
    (j) In 2011, the Navy shall convene a Monitoring Workshop in which 
the Monitoring Workshop participants will be asked to review the Navy's 
Monitoring Plans and monitoring results and make individual 
recommendations (to the Navy and NMFS) of ways of improving the 
Monitoring Plans. The recommendations shall be reviewed by the Navy, in 
consultation with NMFS, and modifications to the Monitoring Plan shall 
be made, as appropriate.


Sec.  218.35  Applications for Letters of Authorization.

    To incidentally take marine mammals pursuant to these regulations, 
the U.S. citizen (as defined by Sec.  216.103 of this chapter) 
conducting the activity identified in Sec.  218.30(a) (the U.S. Navy) 
must apply for and obtain either an initial Letter of Authorization in 
accordance with Sec.  218.26 or a renewal under Sec.  218.27.


Sec.  218.36  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the period of validity of this 
subpart, but must be renewed annually subject to annual renewal 
conditions in Sec.  218.37.
    (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).


Sec.  218.37  Renewal of Letters of Authorization and adaptive 
management.

    (a) A Letter of Authorization issued under Sec. Sec.  216.106 and 
218.36 of this chapter for the activity identified in Sec.  218.30(c) 
will be renewed annually upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec.  218.35 shall be undertaken and that 
there will not be a substantial modification to the described work, 
mitigation or monitoring undertaken during the upcoming 12 months;
    (2) Timely receipt of the monitoring reports required under Sec.  
218.34; and
    (3) A determination by the NMFS that the mitigation, monitoring and 
reporting measures required under Sec.  218.33 and the Letter of 
Authorization issued under Sec. Sec.  216.106 and 218.36 of this 
chapter, were undertaken and will be undertaken during the upcoming 
annual period of validity of a renewed Letter of Authorization.
    (b) If a request for a renewal of a Letter of Authorization issued 
under Sec.  216.106 of this chapter and Sec.  218.37 indicates that a 
substantial modification to the described work, mitigation or 
monitoring undertaken during the upcoming season will occur, the NMFS 
will provide the public a period of 30 days for review and comment on 
the request. Review and comment on renewals of Letters of Authorization 
are restricted to:
    (1) New cited information and data indicating that the 
determinations made in this document are in need of reconsideration, 
and
    (2) Proposed changes to the mitigation and monitoring requirements 
contained in these regulations or in the current Letter of 
Authorization.
    (c) A notice of issuance or denial of a renewal of a Letter of 
Authorization will be published in the Federal Register.
    (d) NMFS, in response to new information and in consultation with 
the Navy, may modify the mitigation or monitoring measures in 
subsequent LOAs if doing so creates a reasonable likelihood of more 
effectively accomplishing the goals of mitigation and monitoring set 
forth in the preamble of these regulations. Below are some of the 
possible sources of new data that could contribute to the decision to 
modify the mitigation or monitoring measures:
    (1) Results from the Navy's monitoring from the previous year 
(either from GOMEX Study Area or other locations).
    (2) Findings of the Monitoring Workshop that the Navy will convene 
in 2011 (Sec.  218.34(j)).
    (3) Compiled results of Navy funded research and development (R&D) 
studies (presented pursuant to the ICMP (Sec.  218.34(d)).
    (4) Results from specific stranding investigations (either from the 
GOMEX Range Complex Study Area or other locations).
    (5) Results from general marine mammal and sound research (funded 
by the Navy (described below) or otherwise).
    (6) Any information which reveals that marine mammals may have been 
taken in a manner, extent or number not authorized by these regulations 
or subsequent Letters of Authorization.


Sec.  218.38  Modifications to Letters of Authorization.

    (a) Except as provided in paragraph (b) of this section, no 
substantive

[[Page 33986]]

modification (including withdrawal or suspension) to the Letter of 
Authorization by NMFS, issued pursuant to Sec. Sec.  216.106 and 218.36 
of this chapter and subject to the provisions of this subpart shall be 
made until after notification and an opportunity for public comment has 
been provided. For purposes of this paragraph, a renewal of a Letter of 
Authorization under Sec.  218.37, without modification (except for the 
period of validity), is not considered a substantive modification.
    (b) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species 
or stocks of marine mammals specified in Sec.  218.30(b), a Letter of 
Authorization issued pursuant to Sec. Sec.  216.106 and 218.36 of this 
chapter may be substantively modified without prior notification and an 
opportunity for public comment. Notification will be published in the 
Federal Register within 30 days subsequent to the action.

[FR Doc. E9-16537 Filed 7-13-09; 8:45 am]
BILLING CODE 3510-22-P