Taking and Importing Marine Mammals; U.S. Navy Training in the Cherry Point Range Complex, 28370-28391 [E9-13696]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

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


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 218

RIN 0648-AX10


Taking and Importing Marine Mammals; U.S. Navy Training in the 
Cherry Point Range Complex

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

[[Page 28371]]

Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS, upon application from the U.S. Navy (Navy), is issuing 
regulations to govern the unintentional taking of marine mammals 
incidental to activities conducted at the Cherry Point Range Complex 
for the period of June 2009 through June 2014. The Navy's activities 
are considered military readiness activities pursuant to the Marine 
Mammal Protection Act (MMPA), as amended by the National Defense 
Authorization Act for Fiscal Year 2004 (NDAA). These regulations, which 
allow for the issuance of ``Letters of Authorization'' (LOAs) for the 
incidental take of marine mammals during the described activities and 
specified timeframes, prescribe the permissible methods of taking and 
other means of effecting the least practicable adverse impact on marine 
mammal species and their habitat, as well as requirements pertaining to 
the monitoring and reporting of such taking.

DATES: Effective June 8, 2009 and is applicable to the Navy on June 5, 
2009 through June 4, 2014.

ADDRESSES: A copy of the Navy's application (which contains a list of 
the references used in this document), NMFS' Record of Decision (ROD), 
and other documents cited herein may be obtained by writing to Michael 
Payne, Chief, Permits, Conservation and Education Division, Office of 
Protected Resources, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910-3225 or by telephone via the contact 
listed here (see FOR FURTHER INFORMATION CONTACT). Additionally, the 
Navy's LOA application may be obtained by visiting the Internet at: 
https://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.

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

SUPPLEMENTARY INFORMATION: Extensive Supplementary Information was 
provided in the proposed rule for this activity, which was published in 
the Federal Register on Monday, March 16, 2009 (74 FR 11052). This 
information will not be reprinted here in its entirety; rather, all 
sections from the proposed rule will be represented herein and will 
contain either a summary of the material presented in the proposed rule 
or a note referencing the page(s) in the proposed rule where the 
information may be found. Any information that has changed since the 
proposed rule was published will be addressed herein. Additionally, 
this final rule contains a section that responds to the comments 
received during the public comment period.

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce (Secretary) to allow, upon request, 
the incidental, but not intentional taking of marine mammals by U.S. 
citizens who engage in a specified activity (other than commercial 
fishing) during periods of not more than five consecutive years each if 
certain findings are made and regulations are issued or, if the taking 
is limited to harassment, notice of a proposed authorization is 
provided to the public for review.
    Authorization shall be granted if NMFS finds that the taking will 
have a negligible impact on the species or stock(s), will not have an 
unmitigable adverse impact on the availability of the species or 
stock(s) for subsistence uses, and if the permissible methods of taking 
and requirements pertaining to the mitigation, monitoring and reporting 
of such taking are set forth. NMFS has defined ``negligible impact'' in 
50 CFR 216.103 as:

    An impact resulting from the specified activity that cannot be 
reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.

    The National Defense Authorization Act of 2004 (NDAA) (Pub. L.108-
136) removed the ``small numbers'' and ``specified geographical 
region'' limitations and amended the definition of ``harassment'' as it 
applies to a ``military readiness activity'' to read as follows 
(Section 3(18)(B) of the MMPA):

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

Summary of Request

    On June 5, 2008, NMFS received an application from the Navy 
requesting authorization for the take of Atlantic spotted dolphin 
incidental to the proposed training activities in the Cherry Point 
Range Complex over the course of 5 years. On June 17, 2008, the Navy 
submitted an Addendum with some modifications and additional 
information to its original requests. The activities to be conducted in 
the Cherry Point Range Complex are classified military readiness 
activities. The Navy states that these training activities may cause 
various impacts to marine mammal species in the proposed Cherry Point 
Range Complex area. The Navy requests an authorization to take two 
individuals of Atlantic spotted dolphins annually by Level B 
Harassment. The Navy does not anticipate any Level A harassment 
(injury). Please refer to the take table on page 6 to the Addendum of 
the LOA application for detailed information of the potential exposures 
from explosive ordnance (per year) for marine mammals in the Cherry 
Point Range Complex. Due to the proposed mitigation and monitoring 
measures, NMFS does not expect the proposed action would result in any 
marine mammal mortality. Therefore, no mortality would be authorized 
for the Navy's Cherry Point Range Complex training activities.

Description of the Specified Activities

    The proposed rule contains a complete description of the Navy's 
specified activities that are covered by these final regulations, and 
for which the associated incidental take of marine mammals will be 
authorized in the related LOAs. The proposed rule describes the nature 
and number of the training activities. These training activities 
consist of surface warfare [Missile Exercise (MISSILEX)], mine warfare 
[Mine Exercise (MINEX)], amphibious warfare [Firing Exercise (FIREX)], 
and vessel movement to, from and within the Cherry Point Range Complex 
Study Area. The descriptions of MISSILEX and vessel movement contained 
in the proposed rule (74 FR 11052; pages 11052-11053) have not changed. 
The Navy made subsequent modifications to the description of the MINEX 
and FIREX activities since the proposed rule was published. The purpose 
of the modifications is to improve clarity and readability. The change 
in description of the MINEX and FIREX activities has not affected the 
analyses originally presented in the proposed rule or contained in this 
final rule. Revised descriptions of MINEX and FIREX follow:

Mine Warfare/Mine Exercises

    Mine Warfare (MIW) includes the strategic, operational, and 
tactical use of mines and mine countermeasures (MCM). MIW has two basic 
subdivisions: (a) Laying mines to degrade the enemy's capabilities to 
wage land, air, and maritime warfare, and (b) countering enemy-laid 
mines to

[[Page 28372]]

permit friendly maneuver or use of selected land or sea areas (DoN, 
2007d).
    MIW training events are of two types: MCM and mine neutralization.
    MCM operations train forces to detect, identify, classify, mark, 
avoid, and disable (or verify destruction of) underwater mines (bottom 
or moored) using a variety of methods including air, surface, sub-
surface, and ground assets. Mine hunting techniques involve divers, 
specialized sonar, and unmanned underwater vehicles (UUVs) to locate 
and classify the mines and then destroy them using one of two methods: 
Mechanical (explosive cutters) or influence (matching the acoustic, 
magnetic, or pressure signature of the mine). The MCM systems currently 
used in Navy Cherry Point Study Area are deployed aboard the MH-53E 
helicopters. They include mine hunting sonar (AQS-24A), influence mine 
sweeping systems (MK-105) and mechanical mine sweeping systems (MK-
103), none of which result in underwater detonations.
    Mine Neutralization Exercises (MINEX) involve the localization, 
identification, evaluation, rendering safe, and disposal of mines that 
constitute a threat to ships or personnel. This mission is currently 
done primarily by Explosive Ordnance Disposal (EOD) divers. They 
typically deploy from a ship or small boat to relocate and neutralize 
mines initially located by another source, such as an MCM or coastal 
minehunter MHC class ship or an MH-53 or MH-60 helicopter. The EOD 
divers set an explosive charge on a floating or underwater mine which 
they initiate remotely after clearing the area. The pressure and energy 
exerted in the water from the relatively smaller EOD explosive charge 
causes the mine to explode. These operations in the Navy Cherry Point 
Study Area involve neutralizing inert training mineshapes with charges 
of up to 20 lbs Net Explosive Weight (NEW). They will occur only during 
daylight hours in the locations described in Figure 1 of the LOA 
application.
    In addition to the current MIW systems, the Navy will begin 
training with new Organic Mine Countermeasures (OMCM) systems in the 
Navy Cherry Point Study Area as they are introduced into the fleet. The 
OMCM systems will operate from MH-60S helicopters, including mine 
hunting sonar (AQS-20); influence mine sweeping towed arrays (Organic 
Airborne and Surface Influence Sweep [OASIS]); mine hunting laser 
(Airborne Laser Mine Detection System [ALMDS]) that uses a light 
imaging detecting and ranging (LIDAR) to detect, localize, and classify 
near-surface moored/floating mines; and anti-mine ordnance systems 
(Rapid Airborne Mine Clearance System [RAMICS] and Airborne Mine 
Neutralization System [AMNS]). No OMCM training events will involve 
underwater detonations.

Amphibious Warfare

    Amphibious Warfare (AMW) involves projecting military power ashore 
with U.S. Marine Corps (USMC) landing forces supported by naval 
firepower and logistics. AMW encompasses a broad spectrum of operations 
involving maneuver from the sea to objectives ashore, ranging from 
shore assaults, boat raids, ship-to-shore maneuver, shore bombardment 
and other naval fire support, and air strike and close air support. In 
the Navy Cherry Point Study Area, the Navy and Marine Corps conduct 
extensive AMW training, but the only events involving underwater 
detonation are Firing Exercises (FIREX).
    During a FIREX, surface ships use their main battery guns to fire 
from sea at land targets in support of military forces ashore. The east 
coast has very limited access to land ranges for shore bombardment. To 
compensate, Atlantic Fleet cruisers and destroyers can create virtual 
land masses on their fire control consoles. The ships fire at an array 
of buoys (Integrated Maritime Portable Acoustic Scoring and Simulation 
System [IMPASS]) that detect where the rounds landed, thereby allowing 
the ship to score the accuracy of its gunners. A FIREX (IMPASS) event 
in the Navy Cherry Point Study Area typically involves up to 70 rounds, 
39 of which have high explosive warheads and the rest are inert, and 
occur only during daylight hours in the locations described in Figure 1 
of the LOA application.

                        Table 1--Levels of Training Events Involve Explosives Planned in the Cherry Point Range Complex per Year
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             Operation                      Platform             System/ordnance        Number of events         Time of day           Event duration
--------------------------------------------------------------------------------------------------------------------------------------------------------
MISSILEX (Air to Surface)..........  AH-1W Helicopter......  AGM-114 (Hellfire; 8-   6 sorties (6 HE        Day or Night.........  1 hour.
                                                              lb NEW \1\ HE \2\       missiles).
                                                              rounds \3\).
                                                             TOW \4\ Missile (all    8 sorties (8                                  1 hour.
                                                              15.33 NEW HE rounds)    missiles).
                                                              \3\.
MINEX..............................  EOD \5\...............  20 lb NEW charges.....  20 events............  Day..................  8 hours.
FIREX with IMPASS.\6\                CG, DDG \7\...........  5 gun        2 events (78 HE        Day..................  12 hours.
                                                              (IMPASS).               rounds).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ NEW: Net explosive weight.
\2\ HE: High Explosive.
\3\ Uses stationary or towed surface targets; 1 missile/sortie.
\4\ TOW: Tube-launched, Optically tracked, Wire-guided.
\5\ EOD: Explosive ordnance disposal.
\6\ IMPASS: Integrated Maritime Portable Acoustic Scoring and Simulation System.
\7\ CG: guided missile cruiser; DDG: guided missile destroyer.

Cherry Point Range Complex

    The Cherry Point Range Complex proposed rule contains a description 
of the Cherry Point Study Area along with a description of the areas in 
which certain types of activities will occur. Table 2, included here, 
summarizes the areas in which explosive events will occur and their 
frequency of occurrence. The description of the Cherry Point Range 
Complex Study Area in the proposed rule has not changed.

[[Page 28373]]



          Table 2--Number of Events Utilizing Explosive Munitions Within the Cherry Point Range Complex
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                                                                                                         Annual
             Sub-area*                     Ordnance          Winter     Spring     Summer      Fall      totals
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                                    MISSILEX.............  .........  .........  .........  .........         14
16 & 17...........................  Hellfire.............        1.5        1.5        1.5        1.5          6
16 & 17...........................  TOW..................          2          2          2          2          8
                                    FIREX with IMPASS....  .........  .........  .........  .........          2
13 & 14...........................  5 rounds..        .25        .25        .25        .25          1
4 & 5.............................  5 rounds..        .25        .25        .25        .25          1
                                    MINEX................  .........  .........  .........  .........         20
UNDET.............................  20 LB................          5          5          5          5         20
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* See Figure 1 of the LOA application for the location of sub-areas.

Description of Marine Mammals in the Area of the Specified Activities

    There are 33 cetacean species, 4 pinniped species, and 1 sirenian 
species that have the potential or are confirmed to occur in the Cherry 
Point Range Complex (DoN, 2008). However, only 34 of those species are 
expected to occur regularly in the OPAREA, as indicated in Table 3. The 
remaining species are considered extralimital in the Study Area, 
indicating there are one or more records of an animal's presence in the 
Study Area, but it is considered beyond the normal range of the 
species. Extralimital species will not be analyzed further in this 
study. The Description of Marine Mammals in the Area of the Specified 
Activities section has not changed from what was in the proposed rule 
(74 FR 11052; pages 11054-11056).

 Table 3--Marine Mammal Species Found in the Cherry Point Range Complex
------------------------------------------------------------------------
   Family and scientific name         Common name       Federal status
------------------------------------------------------------------------
Order Cetacea
------------------------------------------------------------------------
Suborder Mysticeti (baleen whales)
------------------------------------------------------------------------
Eubalaena glacialis.............  North Atlantic      Endangered.
                                   right whale.
Megaptera novaeangliae..........  Humpback whale....  Endangered.
Balaenoptera acutorostrata......  Minke whale.......
B. brydei.......................  Bryde's whale.....
B. borealis.....................  Sei whale.........  Endangered.
B. physalus.....................  Fin whale.........  Endangered.
B. musculus.....................  Blue whale........  Endangered.
------------------------------------------------------------------------
Suborder Odontoceti (toothed whales)....................................
------------------------------------------------------------------------
Physeter macrocephalus..........  Sperm whale.......  Endangered.
Kogia breviceps.................  Pygmy sperm whale.
K. sima.........................  Dwarf sperm whale.
Ziphius cavirostris.............  Cuvier's beaked
                                   whale.
Mesoplodon minus................  True's beaked
                                   whale.
M. europaeus....................  Gervais' beaked
                                   whale.
M. bidens.......................  Sowerby's beaked
                                   whale.
M. densirostris.................  Blainville's
                                   beaked whale.
Steno bredanensis...............  Rough-toothed
                                   dolphin.
Tursiops truncatus..............  Bottlenose dolphin
Stenella attenuata..............  Pantropical
                                   spotted dolphin.
S. frontalis....................  Atlantic spotted
                                   dolphin.
S. longirostris.................  Spinner dolphin...
S. clymene......................  Clymene dolphin...
S. coeruleoalba.................  Striped dolphin...
Delphinus delphis...............  Common dolphin....
Lagenodephis hosei..............  Fraser's dolphin..
Grampus griseus.................  Risso's dolphin...
Peponocephala electra...........  Melon-headed whale
Feresa attenuata................  Pygmy killer whale
Pseudorca crassidens............  False killer whale
Orcinus orca....................  Killer whale......
Globicephala melas..............  Long-finned pilot
                                   whale.
G. macrorhynchus................  Short-finned pilot
                                   whale.
Phocoena phocoena...............  Harbor porpoise...
------------------------------------------------------------------------
Order Carnivora.........................................................
------------------------------------------------------------------------
Suborder Pinnipedia (seals, sea lions, walruses)........................
------------------------------------------------------------------------
Phoca vitulina..................  Harbor seal         ..................
------------------------------------------------------------------------

[[Page 28374]]

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

Potential Impacts to Marine Mammal Species

    With respect to the MMPA, NMFS' effects assessment serves four 
primary purposes: (1) To prescribe the permissible methods of taking 
(i.e., Level B Harassment (behavioral harassment), Level A Harassment 
(injury), or mortality, including an identification of the number and 
types of take that could occur by Level A or B harassment or mortality) 
and to prescribe other means of effecting the least practicable adverse 
impact on such species or stock and its habitat (i.e., mitigation); (2) 
to determine whether the specified activity will have a negligible 
impact on the affected species or stocks of marine mammals (based on 
the likelihood that the activity will adversely affect the species or 
stock through effects on annual rates of recruitment or survival); (3) 
to determine whether the specified activity will have an unmitigable 
adverse impact on the availability of the species or stock(s) for 
subsistence uses (however, there are no subsistence communities in the 
Cherry Point Range Complex); and (4) to prescribe requirements 
pertaining to monitoring and reporting.
    In the Potential Impacts to Marine Mammal Species section of the 
proposed rule, NMFS included a qualitative discussion of the different 
ways that vessel strikes and underwater explosive detonations from 
MISSILEX, MINEX, and FIREX may potentially affect marine mammals (some 
of which NMFS would not classify as harassment). See 74 FR 11052, pages 
11056-11062. Marine mammals may experience direct physiological effects 
(such as threshold shift), acoustic masking, impaired communications, 
stress responses, and behavioral disturbance. The information contained 
in Potential Impacts to Marine Mammal Species section from the proposed 
rule has not changed.
    Additional analyses on potential impacts to marine mammals from 
vessel movement within the Cherry Point Range Complex Study Area are 
added below.

Vessel Movement

    There are limited data concerning marine mammal behavioral 
responses to vessel traffic and vessel noise, and a lack of consensus 
among scientists with respect to what these responses mean or whether 
they result in short-term or long-term adverse effects. In those cases 
where there is a busy shipping lane or where there is large amount of 
vessel traffic, marine mammals may experience acoustic masking 
(Hildebrand, 2005) if they are present in the area (e.g., killer whales 
in Puget Sound; Foote et al., 2004; Holt et al., 2008). In cases where 
vessels actively approach marine mammals (e.g., whale watching or 
dolphin watching boats), scientists have documented that animals 
exhibit altered behavior such as increased swimming speed, erratic 
movement, and active avoidance behavior (Bursk, 1983; Acevedo, 1991; 
Baker and MacGibbon, 1991; Trites and Bain, 2000; Williams et al., 
2002; Constantine et al., 2003), reduced blow interval (Ritcher et al., 
2003), disruption of normal social behaviors (Lusseau, 2003; 2006), and 
the shift of behavioral activities which may increase energetic costs 
(Constantine et al., 2003; 2004)). A detailed review of marine mammal 
reactions to ships and boats is available in Richardson et al. (1995). 
For each of the marine mammals taxonomy groups, Richardson et al. 
(1995) provided the following assessment regarding cetacean reactions 
to vessel traffic:
    Toothed whales: ``In summary, toothed whales sometimes show no 
avoidance reaction to vessels, or even approach them. However, 
avoidance can occur, especially in response to vessels of types used to 
chase or hunt the animals. This may cause temporary displacement, but 
we know of no clear evidence that toothed whales have abandoned 
significant parts of their range because of vessel traffic.''
    Baleen whales: ``When baleen whales receive low-level sounds from 
distant or stationary vessels, the sounds often seem to be ignored. 
Some whales approach the sources of these sounds. When vessels approach 
whales slowly and nonaggressively, whales often exhibit slow and 
inconspicuous avoidance maneuvers. In response to strong or rapidly 
changing vessel noise, baleen whales often interrupt their normal 
behavior and swim rapidly away. Avoidance is especially strong when a 
boat heads directly toward the whale.''
    It is important to recognize that behavioral responses to stimuli 
are complex and influenced to varying degrees by a number of factors 
such as species, behavioral contexts, geographical regions, source 
characteristics (moving or stationary, speed, direction, etc.), prior 
experience of the animal, and physical status of the animal. For 
example, studies have shown that beluga whales reacted differently when 
exposed to vessel noise and traffic. In some cases, na[iuml]ve beluga 
whales exhibited rapid swimming from ice-breaking vessels up to 80 km 
away, and showed changes in surfacing, breathing, diving, and group 
composition in the Canadian high Arctic where vessel traffic is rare 
(Finley et al., 1990). In other cases, beluga whales were more tolerant 
of vessels, but differentially responsive by reducing their calling 
rates, to certain vessels and operating characteristics (especially 
older animals) in the St. Lawrence River where vessel traffic is common 
(Blane and Jaakson, 1994). In Bristol Bay, Alaska, beluga whales 
continued to feed when surrounded by fishing vessels and resisted 
dispersal even when purposefully harassed (Fish and Vania, 1971).
    In reviewing more than 25 years of whale observation data, Watkins 
(1986) concluded that whale reactions to vessel traffic were ``modified 
by their previous experience and current activity: habituation often 
occurred rapidly, attention to other stimuli or preoccupation with 
other activities sometimes overcame their interest or wariness of 
stimuli.'' Watkins noticed that over the years of exposure to ships in 
the Cape Cod area, minke whales (Balaenoptera acutorostrata) changed 
from frequent positive (such as approaching vessels) interest to 
generally uninterested reactions; finback whales (B. physalus) changed 
from mostly negative (such as avoidance) to uninterested reactions; 
right whales (Eubalaena glacialis) apparently continued the same 
variety of responses (negative, uninterested, and positive responses) 
with little change; and humpbacks (Megaptera novaeangliae) dramatically 
changed from mixed responses that were often negative to

[[Page 28375]]

often strongly positive reactions. Watkins (1986) summarized that 
``whales near shore, even in regions with low vessel traffic, generally 
have become less wary of boats and their noises, and they have appeared 
to be less easily disturbed than previously. In particular locations 
with intense shipping and repeated approaches by boats (such as the 
whale-watching areas of Stellwagen Bank), more and more whales had P 
[positive] reactions to familiar vessels, and they also occasionally 
approached other boats and yachts in the same ways.''
    In the case of the Cherry Point Range Complex, naval vessel traffic 
is expected to be much lower than in areas where there are large 
shipping lanes and large numbers of fishing vessels and/or recreational 
vessels. Nevertheless, the proposed action area is well traveled by a 
variety of commercial and recreational vessels, so marine mammals in 
the area are expected to be habituated to vessel noise.
    As described in the proposed rule, operations involving vessel 
movements occur intermittently and are variable in duration, ranging 
from a few hours up to 2 weeks. These operations are widely dispersed 
throughout the Cherry Point Range Complex OPAREA, which is a vast area 
encompassing 18,617 square nautical miles (nm\2\) (an area 
approximately the size of West Virginia). The Navy logs about 950 total 
vessel days within the Study Area during a typical year. Consequently, 
the density of ships within the Study Area at any given time is 
extremely low (i.e., less than 0.005 ships/nm\2\).
    Moreover, naval vessels transiting the study area or engaging in 
the training exercises will not actively or intentionally approach a 
marine mammal or change speed drastically. Except under certain 
mitigation measures that protect right whales and other marine mammals 
from vessel strike, all vessels transit to, from, and within the range 
complexes will be traveling at speeds generally ranging from 10 to 14 
knots.
    The final rule contains additional mitigation measures requiring 
Navy vessels to keep at least 500 yards (460 m) away from any observed 
whale and at least 200 yards (183 m) from marine mammals other than 
whales, and avoid approaching animals head-on. Although the radiated 
sound from the vessels will be audible to marine mammals over a large 
distance, it is unlikely that animals will respond behaviorally to low-
level distant shipping noise as the animals in the area are likely to 
be habituated to such noises (Nowacek et al., 2004). In light of these 
facts, NMFS does not expect the Navy's vessel movements to result in 
Level B harassment.

Acoustic Take Criteria

    In the Acoustic Take Criteria section of the proposed rule, NMFS 
described the development and application of the acoustic criteria for 
explosive detonations (74 FR 11052; pages 11060-11062). No changes to 
the modeling have been made except for those outlined in Potential 
Impacts to Marine Mammal Species section of this document.

Mitigation

    In order to issue an incidental take authorization (ITA) under 
Section 101(a)(5)(A) of the MMPA, NMFS must prescribe regulations 
setting forth the ``permissible methods of taking pursuant to such 
activity, and other means of effecting the least practicable adverse 
impact on such species or stock and its habitat, paying particular 
attention to rookeries, mating grounds, and areas of similar 
significance.'' The NDAA amended the MMPA as it relates to military 
readiness activities and the incidental take authorization process such 
that ``least practicable adverse impact'' shall include consideration 
of personnel safety, practicality of implementation, and impact on the 
effectiveness of the ``military readiness activity.'' The Cherry Point 
Range Complex training activities described in this rulemaking are 
considered military readiness activities.
    NMFS reviewed the Navy's proposed Cherry Point Range Complex 
training activities and the proposed Cherry Point Range Complex 
mitigation measures presented in the Navy's application to determine 
whether the activities and mitigation measures were capable of 
achieving the least practicable adverse effect on marine mammals.
    Any mitigation measure prescribed by NMFS should be known to 
accomplish, have a reasonable likelihood of accomplishing (based on 
current science), or contribute to the accomplishment of one or more of 
the general goals listed below:
    (1) Avoidance or minimization of injury or death of marine mammals 
wherever possible (goals b, c, and d may contribute to this goal).
    (2) A reduction in the numbers of marine mammals (total number or 
number at biologically important time or location) exposed to 
underwater detonations or other activities expected to result in the 
take of marine mammals (this goal may contribute to a, above, or to 
reducing harassment takes only).
    (3) A reduction in the number of times (total number or number at 
biologically important time or location) individuals would be exposed 
to underwater detonations or other activities expected to result in the 
take of marine mammals (this goal may contribute to a, above, or to 
reducing harassment takes only).
    (4) A reduction in the intensity of exposures (either total number 
or number at biologically important time or location) to underwater 
detonations or other activities expected to result in the take of 
marine mammals (this goal may contribute to a, above, or to reducing 
the severity of harassment takes only).
    (5) A reduction in adverse effects to marine mammal habitat, paying 
special attention to the food base, activities that block or limit 
passage to or from biologically important areas, permanent destruction 
of habitat, or temporary destruction/disturbance of habitat during a 
biologically important time.
    (6) For monitoring directly related to mitigation--an increase in 
the probability of detecting marine mammals, thus allowing for more 
effective implementation of the mitigation (shut-down zone, etc.).
    NMFS reviewed the Navy's proposed mitigation measures, which 
included a careful balancing of the likely benefit of any particular 
measure to the marine mammals with the likely effect of that measure on 
personnel safety, practicality of implementation, and impact on the 
``military-readiness activity.''
    The Navy's proposed mitigation measures were described in detail in 
the proposed rule (74 FR 11052, pages 11066-11069). Slight wording 
changes have been made to the Personnel Training--Lookouts section as 
presented in the Proposed Rule (page 76592). Bullet 6 of that section 
is added to clarify nighttime monitoring, which reads as: ``At night, 
to increase effectiveness, lookouts would not continuously sweep the 
horizon with their eyes. Instead, lookouts would scan the horizon in a 
series of movements that would allow their eyes to come to periodic 
rests as they scan the sector. When visually searching at night, they 
would look a little to one side and out of the corners of their eyes, 
paying attention to the things on the outer edges of their field of 
vision. Lookouts will also have night vision devices available for 
use.''
    The Navy's measures addressing operating procedures for training 
activities using underwater detonations of explosives and firing 
exercises, and mitigation related to vessel traffic and the North 
Atlantic right whale were described in the proposed rule. No

[[Page 28376]]

changes have been made to the mitigation measures described in the 
proposed rule except the following.
    In response to a comment from the Marine Mammal Commission, NMFS 
will require the Navy to suspend its activities immediately if a marine 
mammal is injured or killed as a result of the proposed Navy training 
activities (e.g., instances in which it is clear that munitions 
explosions caused the injury or death), and report such incident to 
NMFS.
    NMFS has determined that these mitigation measures (which include a 
suite of measures that specifically address vessel transit and the 
NARW) are adequate means of effecting the least practicable adverse 
impacts on marine mammal species or stocks and their habitat while also 
considering personnel safety, practicality of implementation, and 
impact on the effectiveness of the military readiness activity.

Monitoring

    In order to issue an ITA for an activity, Section 101(a)(5)(A) of 
the MMPA states that NMFS must set forth ``requirements pertaining to 
the monitoring and reporting of such taking.'' The MMPA implementing 
regulations at 50 CFR 216.104 (a)(13) indicate that requests for LOAs 
must include the suggested means of accomplishing the necessary 
monitoring and reporting that will result in increased knowledge of the 
species and of the level of taking or impacts on populations of marine 
mammals that are expected to be present.
    Monitoring measures prescribed by NMFS should accomplish one or 
more of the following general goals:
    (1) An increase in the probability of detecting marine mammals, 
both within the safety zone (thus allowing for more effective 
implementation of the mitigation) and in general to generate more data 
to contribute to the effects analyses.
    (2) An increase in our understanding of how many marine mammals are 
likely to be exposed to levels of underwater detonations or other 
stimuli that we associate with specific adverse effects, such as 
behavioral harassment, temporary threshold shift of hearing sensitivity 
(TTS), or permanent threshold shift of hearing sensitivity (PTS).
    (3) An increase in our understanding of how marine mammals respond 
(behaviorally or physiologically) to underwater detonations or other 
stimuli expected to result in take and how anticipated adverse effects 
on individuals (in different ways and to varying degrees) may impact 
the population, species, or stock (specifically through effects on 
annual rates of recruitment or survival).
    (4) An increased knowledge of the affected species.
    (5) An increase in our understanding of the effectiveness of 
certain mitigation and monitoring measures.
    (6) A better understanding and record of the manner in which the 
authorized entity complies with the incidental take authorization.

Monitoring Plan for the Cherry Point Range Complex Study Area

    As NMFS indicated in the proposed rule, the Navy has (with input 
from NMFS) fleshed out the details of and made improvements to the 
Cherry Point Range Complex Monitoring Plan. Additionally, NMFS and the 
Navy have incorporated a suggestion from the public, which recommended 
the Navy hold a peer review workshop to discuss the Navy's Monitoring 
Plans for the multiple range complexes and training exercises in which 
the Navy would receive ITAs (see Monitoring Workshop section). The 
final Cherry Point Range Complex Monitoring Plan, which is summarized 
below, may be viewed at https://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. The Navy plans to implement all of the 
components of the Monitoring Plan; however, only the marine mammal 
components (not the sea turtle components) will be required by the MMPA 
regulations and associated LOAs.
    A summary of the monitoring methods required for use during 
training events in the Cherry Point Range Complex are described below. 
These methods include a combination of individual elements that are 
designed to allow a comprehensive assessment.

I. Vessel or Aerial Surveys:

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

II. Passive Acoustic Monitoring

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

III. Marine Mammal Observers on Navy Platforms

    (A) MMOs selected for aerial or vessel surveys shall be placed on a 
Navy platform during one of the exercises being monitored per year. The 
remaining designated exercise(s) shall be monitored by the Navy 
lookouts/watchstanders.

[[Page 28377]]

    (B) The MMO must possess expertise in species identification of 
regional marine mammal species and experience collecting behavioral 
data.
    (C) MMOs shall not be placed aboard Navy platforms for every Navy 
training event or major exercise, but during specifically identified 
opportunities deemed appropriate for data collection efforts. The 
events selected for MMO participation shall take into account safety, 
logistics, and operational concerns.
    (D) MMOs shall observe from the same height above water as the 
lookouts.
    (E) The MMOs shall not be part of the Navy's formal reporting chain 
of command during their data collection efforts; Navy lookouts shall 
continue to serve as the primary reporting means within the Navy chain 
of command for marine mammal sightings. The only exception is that if 
an animal is observed within the shutdown zone that has not been 
observed by the lookout, the MMO shall inform the lookout of the 
sighting, and the lookout shall take the appropriate action through the 
chain of command.
    (F) The MMOs shall collect species identification, behavior, 
direction of travel relative to the Navy platform, and distance first 
observed. All MMO sightings shall be conducted according to a standard 
operating procedure. Information collected by MMOs should be the same 
as those collected by Navy lookout/watchstanders described above.
    The Monitoring Plan for the Cherry Point Range Complex has been 
designed as a collection of focused ``studies'' (described fully in the 
Cherry Point Monitoring Plan) to gather data that will allow the Navy 
to address the following questions:
    (A) What are the behavioral responses of marine mammals and sea 
turtles that are exposed to explosives?
    (B) Is the Navy's suite of mitigation measures effective at 
avoiding injury and mortality of marine mammals and sea turtles?
    Data gathered in these studies will be collected by qualified, 
professional marine mammal biologists or trained Navy lookouts/
watchstanders that are experts in their field. This monitoring plan has 
been designed to gather data on all species of marine mammals that are 
observed in the Cherry Point Range Complex study area.

Monitoring Workshop

    During the public comment period on past proposed rules for Navy 
actions (such as the Hawaii Range Complex (HRC), and Southern 
California Range Complex (SOCAL) proposed rules), NMFS received a 
recommendation that a workshop or panel be convened to solicit input on 
the monitoring plan from researchers, experts, and other interested 
parties. The Cherry Point Range Complex proposed rule included an 
adaptive management component and both NMFS and the Navy believe that a 
workshop would provide a means for Navy and NMFS to consider input from 
participants in determining whether (and if so, how) to modify 
monitoring techniques to more effectively accomplish the goals of 
monitoring set forth earlier in the document. NMFS and the Navy believe 
that this workshop concept is valuable in relation to all of the Range 
Complexes and major training exercise rules and LOAs that NMFS is 
working on with the Navy at this time. Consequently, NMFS has 
determined that this single Monitoring Workshop will be included as a 
component of all of the rules and LOAs that NMFS will be processing for 
the Navy in the next year or so.
    The Navy, with guidance and support from NMFS, will convene a 
Monitoring Workshop, including marine mammal and acoustic experts as 
well as other interested parties, in 2011. The Monitoring Workshop 
participants will review the monitoring results from the previous two 
years of monitoring pursuant to the Cherry Point Range Complex rule as 
well as monitoring results from other Navy rules and LOAs (e.g., 
VACAPES, AFAST, SOCAL, HRC, and other rules). The Monitoring Workshop 
participants would provide their individual recommendations to the Navy 
and NMFS on the monitoring plan(s) after also considering the current 
science (including Navy research and development) and working within 
the framework of available resources and feasibility of implementation. 
NMFS and the Navy would then analyze the input from the Monitoring 
Workshop participants and determine the best way forward from a 
national perspective. Subsequent to the Monitoring Workshop, 
modifications would be applied to monitoring plans as appropriate.

Integrated Comprehensive Monitoring Program

    In addition to the site-specific Monitoring Plan for the Cherry 
Point Range Complex, the Navy will complete the Integrated 
Comprehensive Monitoring Program (ICMP) Plan by the end of 2009. The 
ICMP is currently in development by the Navy, with Chief of Naval 
Operations Environmental Readiness Division (CNO-N45) having the lead. 
The program does not duplicate the monitoring plans for individual 
areas (e.g. AFAST, HRC, SOCAL, VACAPES); instead it is intended to 
provide the overarching coordination that will support compilation of 
data from both range-specific monitoring plans as well as Navy funded 
research and development (R&D) studies. The ICMP will coordinate the 
monitoring programs' progress towards meeting its goals and develop a 
data management plan. A program review board is also being considered 
to provide additional guidance. The ICMP will be evaluated annually to 
provide a matrix for progress and goals for the following year, and 
will make recommendations on adaptive management for refinement and 
analysis of the monitoring methods.
    The primary objectives of the ICMP are to:
     Monitor and assess the effects of Navy activities on 
protected species;
     Ensure that data collected at multiple locations is 
collected in a manner that allows comparison between and among 
different geographic locations;
     Assess the efficacy and practicality of the monitoring and 
mitigation techniques;
     Add to the overall knowledge-base of marine species and 
the effects of Navy activities on marine species.
    The ICMP will be used both as: (1) A planning tool to focus Navy 
monitoring priorities (pursuant to ESA/MMPA requirements) across Navy 
Range Complexes and Exercises; and (2) an adaptive management tool, 
through the consolidation and analysis of the Navy's monitoring and 
watchstander data, as well as new information from other Navy programs 
(e.g., R&D), and other appropriate newly published information.
    In combination with the 2011 Monitoring Workshop and the adaptive 
management component of the Cherry Point Range Complex rule and the 
other Navy rules (e.g. VACAPES Range Complex, Jacksonville Range 
Complex, etc.), the ICMP could potentially provide a framework for 
restructuring the monitoring plans and allocating monitoring effort 
based on the value of particular specific monitoring proposals (in 
terms of the degree to which results would likely contribute to stated 
monitoring goals, as well the likely technical success of the 
monitoring based on a review of past monitoring results) that have been 
developed through the ICMP framework, instead of allocating based on 
maintaining an equal (or commensurate to effects) distribution of 
monitoring effort across range complexes. For example, if careful 
prioritization and planning through the

[[Page 28378]]

ICMP (which would include a review of both past monitoring results and 
current scientific developments) were to show that a large, intense 
monitoring effort in Hawaii would likely provide extensive, robust and 
much-needed data that could be used to understand the effects of sonar 
throughout different geographical areas, it may be appropriate to have 
other range complexes dedicate money, resources, or staff to the 
specific monitoring proposal identified as ``high priority'' by the 
Navy and NMFS, in lieu of focusing on smaller, lower priority projects 
divided throughout their home range complexes.
    The ICMP will identify:
     A means by which NMFS and the Navy would jointly consider 
prior years' monitoring results and advancing science to determine if 
modifications are needed in mitigation or monitoring measures to better 
effect the goals laid out in the Mitigation and Monitoring sections of 
the Cherry Point Range Complex rule.
     Guidelines for prioritizing monitoring projects
     If, as a result of the workshop and similar to the example 
described in the paragraph above, the Navy and NMFS decide it is 
appropriate to restructure the monitoring plans for multiple ranges 
such that they are no longer evenly allocated (by rule), but rather 
focused on priority monitoring projects that are not necessarily tied 
to the geographic area addressed in the rule, the ICMP will be modified 
to include a very clear and unclassified record-keeping system that 
will allow NMFS and the public to see how each range complex/project is 
contributing to all of the ongoing monitoring programs (resources, 
effort, money, etc.).

Adaptive Management

    The final regulations governing the take of marine mammals 
incidental to Navy's Cherry Point Range Complex exercises contain an 
adaptive management component. The use of adaptive management will give 
NMFS the ability to consider new data from different sources to 
determine (in coordination with the Navy) on an annual basis if 
mitigation or monitoring measures should be modified or added (or 
deleted) if new data suggests that such modifications are appropriate 
(or are not appropriate) for subsequent annual LOAs.
    The following are some of the possible sources of applicable data:
     Results from the Navy's monitoring from the previous year 
(either from Cherry Point Range Complex or other locations).
     Findings of the Workshop that the Navy will convene in 
2011 to analyze monitoring results to date, review current science, and 
recommend modifications, as appropriate to the monitoring protocols to 
increase monitoring effectiveness.
     Compiled results of Navy funded research and development 
(R&D) studies (presented pursuant to the ICMP, which is discussed 
elsewhere in this document).
     Results from specific stranding investigations (either 
from Cherry Point Range Complex or other locations).
     Results from general marine mammal and sound research 
(funded by the Navy or otherwise).
     Any information which reveals that marine mammals may have 
been taken in a manner, extent or number not authorized by these 
regulations or subsequent Letters of Authorization.
    Mitigation measures could be modified or added (or deleted) if new 
data suggests that such modifications would have (or do not have) a 
reasonable likelihood of accomplishing the goals of mitigation laid out 
in this final rule and if the measures are practicable. NMFS would also 
coordinate with the Navy to modify or add to (or delete) the existing 
monitoring requirements if the new data suggest that the addition of 
(or deletion of) a particular measure would more effectively accomplish 
the goals of monitoring laid out in this final rule. The reporting 
requirements associated with this rule are designed to provide NMFS 
with monitoring data from the previous year to allow NMFS to consider 
the data and issue annual LOAs. NMFS and the Navy will meet annually, 
prior to LOA issuance, to discuss the monitoring reports, Navy R&D 
developments, and current science and whether mitigation or monitoring 
modifications are appropriate.

Reporting

    In order to issue an ITA for an activity, Section 101(a)(5)(A) of 
the MMPA states that NMFS must set forth ``requirements pertaining to 
the monitoring and reporting of such taking''. Effective reporting is 
critical to ensure compliance with the terms and conditions of a LOA, 
and to provide NMFS and the Navy with data of the highest quality based 
on the required monitoring. As NMFS noted in its proposed rule, 
additional detail has been added to the reporting requirements since 
they were outlined in the proposed rule. The updated reporting 
requirements are all included below. A subset of the information 
provided in the monitoring reports may be classified and not releasable 
to the public.
    NMFS will work with the Navy to develop tables that allow for 
efficient submission of the information required below.

General Notification of Injured or Dead Marine Mammals

    Navy personnel will ensure that NMFS (regional stranding 
coordinator) is notified immediately (or as soon as operational 
security allows) if an injured or dead marine mammal is found during or 
shortly after, and in the vicinity of, any Navy training exercise 
utilizing underwater explosive detonations or other activities. The 
Navy will provide NMFS with species or description of the animal(s), 
the condition of the animal(s) (including carcass condition if the 
animal is dead), location, time of first discovery, observed behaviors 
(if alive), and photo or video (if available).

Annual Cherry Point Range Complex Monitoring Plan Report

    The Navy shall submit a report annually on March 1 describing the 
implementation and results (through January 1 of the same year) of the 
Cherry Point Range Complex Monitoring Plan, described above. Data 
collection methods will be standardized across range complexes to allow 
for comparison in different geographic locations. Although additional 
information will also be gathered, the MMOs collecting marine mammal 
data pursuant to the Cherry Point Range Complex Monitoring Plan shall, 
at a minimum, provide the same marine mammal observation data required 
in major range complex training exercises section of the Annual Cherry 
Point Range Complex Exercise Report referenced below.
    The Cherry Point Range Complex Monitoring Plan Report may be 
provided to NMFS within a larger report that includes the required 
Monitoring Plan Reports from multiple Range Complexes.

Annual Cherry Point Range Complex Exercise Report

    The Navy is in the process of improving the methods used to track 
explosives used to provide increased granularity. The Navy will provide 
the information described below for all of their explosive exercises. 
Until the Navy is able to report in full the information below, they 
will provide an annual update on the Navy's explosive tracking methods, 
including improvements from the previous year.

[[Page 28379]]

    (i) Total annual number of each type of explosive exercise (of 
those identified as part of the ``specified activity'' in this final 
rule) conducted in the Cherry Point Range Complex.
    (ii) Total annual expended/detonated rounds (missiles, bombs, etc.) 
for each explosive type.

Cherry Point Range Complex 5-yr Comprehensive Report

    The Navy shall submit to NMFS a draft report that analyzes and 
summarizes all of the multi-year marine mammal information gathered 
during the Cherry Point Range Complex exercises for which annual 
reports are required (Annual Cherry Point Range Complex Exercise 
Reports and Cherry Point Range Complex Monitoring Plan Reports). This 
report will be submitted at the end of the fourth year of the rule (May 
2013), covering activities that have occurred through December 1, 2012.

Comments and Responses

    On March 16, 2009, NMFS published a proposed rule (74 FR 11052) in 
response to the Navy's request to take marine mammals incidental to 
military readiness training in the Cherry Point Range Complex study 
area and requested comments, information and suggestions concerning the 
request. During the 28-day public comment period, NMFS received 
comments from the Marine Mammal Commission (Commission) and from the 
Natural Resources Defense Council (on behalf of Cetacean Society 
International, League for Coastal Protection, Ocean Futures Society, 
Jean-Michel Cousteau). The comments are summarized and sorted into 
general topic areas and are addressed below.

MMPA Concerns

    Comment 1: Noting that NMFS initially provided a shorter than usual 
public comment period for the proposed rule for the Cherry Point Range 
Complex training activities, the Commission recommends that NMFS adopt 
a policy to provide a 60-day comment period for all proposed 
regulations issued under section 101(a)(5)(A), and in no case less than 
a 45-day comment period. The Commission argues that such a short 
comment period is impractical, unnecessary, or contrary to the public 
interest, as provided for under section 553(b)(3)(B) of the 
Administrative Procedure Act (APA). The Commission also argues that it 
was unreasonable for NMFS to afford any less than 30 days, particularly 
since Congress requires a 30-day public comment period for incidental 
harassment authorizations (IHA) under section 101(a)(5)(D) of the MMPA.
    Response: There is no prescribed minimum timeframe for public 
comment on proposed rules in the APA or section 101(a)(5)(A) of MMPA. 
NMFS routinely strives to ensure that the public is afforded at least a 
30-day public comment period on all MMPA rules. However, circumstances 
may make a shorter comment period necessary and reasonable.
    As an initial matter, whenever NMFS develops proposed regulations 
under the MMPA, the agency is required to first publish a notice of 
receipt of a request for the implementation of regulations and LOAs 
governing the incidental taking. This process typically affords the 
public up to 30 days to comment on a requester's application and 
provide NMFS with information and suggestions that will be considered 
in developing MMPA regulations. See 50 CFR 216.104. On July 8, 2008, 
NMFS published its ``Notice; receipt of application for a Letter of 
Authorization (LOA); request for comments and information'' for the 
Cherry Point Range Complex and solicited input for 30 days (See 73 FR 
38991).
    The public was also afforded 28 days to comment on the Cherry Point 
Range Complex proposed rule. NMFS originally provided the public with 
21 days because of: (1) The tight deadline of the training activities 
identified in the Navy's schedule; and (2) the fact that NMFS 
anticipated even fewer effects to marine mammals as compared to similar 
activities to be conducted in the Navy's Virginia Capes (VACAPES) and 
Jacksonville Range Complexes (JAX) (each of which contained a 30-day 
comment period). NMFS, at the request of the Commission, extended the 
public comment period by 7 days to allow additional time for comment 
(74 FR 15419; April 6, 2009). During the public comment period, the 
Commission was the only entity that provided relevant comments on the 
Cherry Point Range Complex proposed rule.
    Next, the Commission's reference to section 553(b)(3)(B) of the APA 
is misplaced. The provision to which the Commission cites applies where 
an agency, for good cause, dispenses with prior opportunity for notice 
and comment because it has found that to do so would be impracticable, 
unnecessary, or contrary to the public interest. As NMFS engaged in APA 
notice and comment rulemaking, the Commission cannot rely on this 
provision to support its position.
    Finally, NMFS recognizes that section 101(a)(5)(D) of the MMPA 
prescribes a 30-day public comment period on proposed IHAs. However, 
this statutory provision is inapplicable as NMFS invoked the rulemaking 
provision of the MMPA (Section 101(a)(5)(A)), a provision which 
contains no reference to a minimum timeframe for public comment.
    Based on the foregoing, NMFS concluded that the 28-day public 
comment period was reasonable.
    Comment 2: The Commission recommends that NMFS require the Navy to 
conduct an external peer review of its marine mammal density estimates, 
including the data upon which those estimates are based and the manner 
in which those data are collected and used.
    Response: As discussed in detail in the proposed rule (74 FR 11052; 
March 16, 2009), marine mammal density estimates were based on the most 
recent data and information on the occurrence, distribution, and 
density of marine mammals. The updated density estimates presented in 
this assessment are derived from the Navy OPAREA Density Estimates 
(NODE) for the Southeast OPAREAs report (DoN, 2007).
    Density estimates for cetaceans were derived in one of three ways, 
in order of preference: (1) Through spatial models using line-transect 
survey data provided by the NMFS (as discussed below); (2) using 
abundance estimates from Mullin and Fulling (2003); or (3) based on the 
cetacean abundance estimates found in the NMFS stock assessment reports 
(SAR; Waring et al., 2007), which can be viewed at https://www.nmfs.noaa.gov/pr/sars/species.htm.
    For the model-based approach, density estimates were calculated for 
each species within areas containing survey effort. A relationship 
between these density estimates and the associated environmental 
parameters such as depth, slope, distance from the shelf break, sea 
surface temperature, and chlorophyll concentration was formulated using 
generalized additive models. This relationship was then used to 
generate a two-dimensional density surface for the region by predicting 
densities in areas where no survey data exist.
    The analyses for cetaceans were based on sighting data collected 
through shipboard surveys conducted by NMFS Northeast Fisheries Science 
Center (NEFSC) and Southeast Fisheries Science Center (SEFSC) between 
1998 and 2005. Species-specific density estimates derived through 
spatial modeling were compared with abundance estimates found in the 
most current NMFS SAR to ensure consistency. All spatial models and 
density estimates were reviewed by and

[[Page 28380]]

coordinated with NMFS Science Center technical staff and scientists 
with the University of St. Andrews, Scotland, Centre for Environmental 
and Ecological Modeling (CREEM). Draft models and preliminary results 
were reviewed during a joint workshop attended by Navy, NMFS Science 
Center, and CREEM representatives. Subsequent revisions and draft 
reports were reviewed by these same parties. Therefore, NMFS considers 
that the density estimates, including the data upon which those 
estimates are based and the manner in which those are collected and 
used, has already gone through an independent review process.
    Comment 3: The Commission recommends that NMFS require the Navy to 
revise its explosive ordnance analysis to provide a more realistic 
assessment of potential occurrences and outcomes of explosions. The 
Commission states that the Navy analyzes the effects of infrequent 
explosive events by assuming that those events will be distributed 
evenly over four seasons, resulting in fractional quarterly totals. The 
Commission points out that these discrete events either occur or they 
do not; they cannot occur in fractions. For that reason, the Commission 
states that it does not believe that assessing the effect of a 0.25 or 
0.5 event per season pro