Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to U.S. Marine Corps Training Exercises at Brant Island Bombing Target and Piney Island Bombing Range, USMC Cherry Point Range Complex, North Carolina, 41373-41403 [2014-16454]

Download as PDF Vol. 79 Tuesday, No. 135 July 15, 2014 Part II Department of Commerce mstockstill on DSK4VPTVN1PROD with PROPOSALS2 National Oceanic and Atmospheric Administration 50 CFR Part 218 Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to U.S. Marine Corps Training Exercises at Brant Island Bombing Target and Piney Island Bombing Range, USMC Cherry Point Range Complex, North Carolina; Proposed Rule VerDate Mar<15>2010 18:07 Jul 14, 2014 Jkt 232001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\15JYP2.SGM 15JYP2 41374 Federal Register / Vol. 79, No. 135 / Tuesday, July 15, 2014 / Proposed Rules DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 218 [Docket No. 131119976–3976–01] RIN 0648–BD79 Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to U.S. Marine Corps Training Exercises at Brant Island Bombing Target and Piney Island Bombing Range, USMC Cherry Point Range Complex, North Carolina National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule; request for comments. AGENCY: NMFS has received a request from the U.S. Marine Corps (Marine Corps) for authorization to take marine mammals, specifically bottlenose dolphins (Tursiops truncatus), by harassment, incidental to training operations at the Marine Corps’ Cherry Point Range Complex, North Carolina from September 2014 to September 2019. In this action, NMFS proposes to amend the regulations to establish a framework for authorizing the take of marine mammals incidental to the Marine Corps’ military training operations, and to issue a subsequent Letter of Authorization to the Marine Corps, which would contain mitigation, monitoring, and reporting requirements. Per the Marine Mammal Protection Act (MMPA), NMFS requests comments on its proposal to issue regulations and a subsequent Letter of Authorization to the Marine Corps. DATES: NMFS must receive comments on or before August 14, 2014. ADDRESSES: You may submit comments on this document, identified by NOAA– NMFS–2014–0082, by any one of the following methods: • Electronic Submissions: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to: http://www.regulations.gov/ #!docketDetail;D=NOAA-NMFS-20140082, click the ‘‘Comment Now!’’ icon, complete the required fields, and enter or attach your comments. • Mail: Submit written comments to the Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910–3225. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 SUMMARY: VerDate Mar<15>2010 18:07 Jul 14, 2014 Jkt 232001 Instructions: NMFS may not consider comments sent by any other method, to any other address or individual, or received after the end of the comment period. All comments received are a part of the public record and http:// www.regulations.gov will generally post comments for public viewing without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive or protected information voluntarily submitted by the commenter may be publicly accessible. NMFS will accept anonymous comments (enter N/A in the required fields if you wish to remain anonymous) and attachments to electronic comments in Microsoft Word, Excel, or Adobe PDF file formats only. The public may obtain a copy of the Marine Corps’ application containing a list of references used in this document by visiting the Web page at: http:// www.nmfs.noaa.gov/pr/permits/ incidental.htm#applications. The public may also view documents cited in this proposed rule, by appointment, during regular business hours at the above address. To help NMFS process and review comments more efficiently, please use only one of the described methods to submit comments. FOR FURTHER INFORMATION CONTACT: Jeannine Cody, National Marine Fisheries Service, Office of Protected Resources, (301) 427–8401. SUPPLEMENTARY INFORMATION: This proposed regulation, under the Marine Mammal Protection Act (MMPA; 16 U.S.C. 1361 et seq.), establishes a framework for authorizing the take of marine mammals incidental to the Marine Corps’ military training operations at the Brant Island Bombing Target (BT–9) and Piney Island Bombing Range (BT–11) located within the Marine Corps’ Cherry Point Range Complex in Pamlico Sound, North Carolina. The Marine Corps conducts military training to meet its statutory responsibility to organize, train, equip, and maintain combat-ready forces. The Marine Corps training activities include air-to-ground weapons delivery, weapons firing, and water-based training occurring at the BT–9 and BT– 11 bombing targets located within the Marine Corps’ Cherry Point Range Complex in Pamlico Sound, North Carolina. The Marine Corps’ training activities are military readiness activities under the MMPA as defined by the National Defense Authorization Frm 00002 Fmt 4701 Sfmt 4702 Purpose and Need for This Regulatory Action NMFS received an application from the Marine Corps requesting 5-year regulations and one, 5-year Letter of Authorization to take marine mammals, specifically bottlenose dolphins (Tursiops truncatus), by harassment, injury, and mortality incidental to training operations at BT–9 and BT–11 bombing targets from September 2014 to September 2019. These operations, which constitute a military readiness activity, have the potential to cause behavioral disturbance, serious injury, and mortality to marine mammals. Section 101(a)(5)(A) of the MMPA directs the Secretary of Commerce (Secretary) to allow, upon request, the incidental, but not intentional taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if, after notice and public comment, the agency makes certain findings and issues regulations. This proposed regulation would establish a framework to authorize take of marine mammals, incidental to the Marine Corps’ training exercises through NMFS’ issuance of one, 5-year Letter of Authorization to the Marine Corps, which would contain mitigation, monitoring, and reporting requirements. Legal Authority for the Regulatory Action Executive Summary PO 00000 Act for Fiscal Year 2004 (NDAA; Public Law 108–136). Section 101(a)(5)(A) of the MMPA and our implementing regulations at 50 CFR part 216, subpart I provide the legal basis for issuing the 5-year regulations and subsequent Letter of Authorization. In the case of military readiness activities, such as those proposed to be conducted by the Marine Corps, the specified geographical region and small numbers provisions of section 101(a)(5)(A) do not apply. Summary of Major Provisions Within the Proposed Regulation The following provides a summary of some of the major provisions within this proposed rulemaking for the Marine Corps’ training exercises at Brant Island Bombing Target–BT–9 and Piney Island Bombing Range–BT–11 in Pamlico Sound, North Carolina. The Marine Corps’ adherence to the proposed mitigation, monitoring, and reporting measures listed below would achieve the least practicable adverse impact on the affected marine mammals. They include: E:\FR\FM\15JYP2.SGM 15JYP2 Federal Register / Vol. 79, No. 135 / Tuesday, July 15, 2014 / Proposed Rules • Required pre- and post-exercise monitoring of the training areas to detect the presence of marine mammals during training exercises. • Required monitoring of the training areas during active training exercises with required suspensions/delays of training activities if a marine mammal enters within designated mitigation zones. • Required reporting of stranded or injured marine mammals in the vicinity of the BT–9 and BT–11 bombing targets located within the Marine Corps’ Cherry Point Range Complex in Pamlico Sound, North Carolina to the NMFS Marine Mammal Stranding Network. • Required research on a real-time acoustic monitoring system to automate detection of bottlenose dolphins in the training areas. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Cost and Benefits This proposed rule, specific only to the Marine Corps’ training activities in BT–9 and BT–11 bombing targets, is not significant under Executive Order 12866—Regulatory Planning and Review. Availability of Supporting Information In 2009, the Marine Corps prepared an Environmental Assessment (EA) titled, ‘‘Environmental Assessment MCAS Cherry Point Range Operations,’’ in accordance with the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) and the regulations published by the Council on Environmental Quality. The EA is available at: http://www.nmfs.noaa.gov/ pr/permits/incidental.htm#applications. In 2009, the Marine Corps issued a Finding of No Significant Impact (FONSI) for its activities, which is also available at the same internet address. After evaluating the Marine Corps’ application and the 2009 EA, NMFS has determined that there are changes to the proposed action (i.e., increased ammunitions levels) and new environmental impacts (i.e., the use of revised thresholds for estimating potential impacts on marine mammals from explosives) not addressed in the 2009 document. Thus, NMFS has determined that a Supplemental Environmental Assessment (SEA) is necessary, and the agency intends to prepare a SEA incorporating relevant portions of the Marine Corps’ EA by reference. Information in the Marine Corps’ application including the 2014 addendum, its 2009 EA, and this notice of proposed rulemaking collectively provide the environmental information related to the proposed regulations and subsequent 5-year Letter of Authorization for public review and VerDate Mar<15>2010 18:07 Jul 14, 2014 Jkt 232001 comment. NMFS will review all comments submitted in response to this notice as we complete the NEPA process, including whether to issue a FONSI, prior to finalizing the MMPA rulemaking. SUPPLEMENTARY INFORMATION: Background Section 101(a)(5)(A) of the Marine Mammal Protection Act (MMPA; 16 U.S.C. 1361 et seq.) directs the Secretary to allow, upon request, the incidental, but not intentional taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if, after notice and public review, NMFS makes certain findings and issues regulations. NMFS shall grant authorization for the incidental takings if the agency finds that the total taking will have a negligible impact on the species or stock(s), and will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant). Further, the authorization for incidental takings must set forth the permissible methods of taking; other means of effecting the least practicable adverse impact on the species or stock and its habitat; and requirements pertaining to the mitigation, monitoring, and reporting of such taking. 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; Public Law 108– 136) removed the ‘‘small numbers’’ and ‘‘specified geographical region’’ limitations indicated earlier and amended the definition of harassment as it applies to a ‘‘military readiness activity’’ to read as follows: (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]. PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 41375 Summary of Request On January 28, 2013, NMFS received an application from the Marine Corps requesting a rulemaking and subsequent Letter of Authorization for the take of marine mammals incidental to training exercises conducted at Brant Island Bombing Target (BT–9) and Piney Island Bombing Range (BT–11) bombing targets at the USMC Cherry Point Range Complex located within Pamlico Sound, North Carolina. On March 29, 2013, per the regulations at 50 CFR 216.104(b)(1)(i), NMFS began the public review process by publishing a Notice of Receipt in the Federal Register (78 FR 19224). The Marine Corps plans to conduct weapons delivery training exercises (airto-surface and surface-to-surface) at the two water-based bombing targets located within the Cherry Point Range Complex in North Carolina. The proposed activities would occur between September 2014 and September 2019, year-round, day or night. The Marine Corps proposes to use small arms, large arms, bombs, rockets, grenades, and pyrotechnics for the airto-surface and surface-to-surface training exercises, which qualify as military readiness activities. The following specific aspects of the proposed exercises are likely to result in the take of marine mammals: exposure to sound and pressure from underwater detonations or direct strike by ordnance. Thus, the Marine Corps and NMFS anticipate that take, by Level B (behavioral) and Level A harassment of individuals of Atlantic bottlenose dolphin (Tursiops truncatus) would result from the training exercises. Due to the small potential for serious injury and mortality, the Marine Corps has also requested authorization for serious injury and mortality of up to 30 bottlenose dolphins over the course of the 5-year regulations. The proposed regulations would establish a framework for authorizing incidental take in a future 5-year Letter of Authorization (LOA). The LOA, if approved, would authorize the take of Atlantic bottlenose dolphins (Tursiops truncatus), by Level A harassment, Level B (behavioral) harassment, and serious injury and mortality. NMFS has issued three, one-year Incidental Harassment Authorizations to the Marine Corps under section 101(a)(5)(D) of the MMPA for the conduct of similar training exercises from 2010 to 2014 (75 FR 72807, November 26, 2010; 77 FR 87, January 3, 2012; and 78 FR 42042, July 15, 2013). The Marine Corps’ current E:\FR\FM\15JYP2.SGM 15JYP2 41376 Federal Register / Vol. 79, No. 135 / Tuesday, July 15, 2014 / Proposed Rules Incidental Harassment Authorization expires in 2014. NMFS is committed to the use of the best available science in its decision making. NMFS uses an adaptive, transparent process that allows for both timely scientific updates and public input into agency decisions regarding the use of acoustic research and thresholds. NMFS is currently in the process of re-evaluating acoustic thresholds based on the best available science, as well as how NMFS applies these thresholds under the MMPA to all activity types. This re-evaluation could potentially result in changes to the acoustic thresholds or their application as they apply to future Marine Corps training activities at BT–9 and BT–11. However, it is important to note that while changes in acoustic thresholds may affect the enumeration of ‘‘takes,’’ they do not necessarily change the evaluation of population level effects or the outcome of the negligible impact analysis. In addition, while acoustic criteria may also inform mitigation and monitoring decisions, the Marine Corps will implement an adaptive management program that will address new information allowing for the modification of mitigation and/or monitoring measures as appropriate. importance to the readiness of Marine Corps forces. The types of ordnances proposed for use at the BT–9 and BT–11 bombing targets include gun ammunition (small and large arms), rockets, grenades, bombs, and pyrotechnics. Training for any activity may occur year-round, day or night, with no seasonal restrictions. Active sonar is not a component of these specified training exercises and air-to-ground firing exercises do not impact the water; therefore, NMFS has not included a discussion of marine mammal harassment from active sonar operations within this notice. Description of the Specified Activity Location of Proposed Activities The Marine Corps administers and uses the BT–9 and BT–11 bombing targets (See Figure 1), located at the convergence of the Neuse River and Pamlico Sound, North Carolina, for the purpose of training military personnel in the skill of ordnance delivery by aircraft and small watercraft. The BT–9 area is a water-based bombing target and mining exercise area Overview mstockstill on DSK4VPTVN1PROD with PROPOSALS2 The Marine Corps must meet its statutory responsibility to organize, train, equip, and maintain combat-ready Marine Corps forces at the BT–9 and BT–11 bombing targets in Pamlico Sound, North Carolina. The bombing targets provide unique training environments and are of vital VerDate Mar<15>2010 18:07 Jul 14, 2014 Jkt 232001 Dates and Duration The proposed activities would occur between September 2014 and September 2019. Each type of proposed exercise may occur year-round, day or night. Approximately 15 percent of the activities would occur at night. NMFS proposes regulations to govern the Marine Corps’ training activities at the BT–9 and BT–11 bombing targets within the USMC Cherry Point Range Complex to be effective from September 8, 2014 to September 7, 2019. The Marine Corps is requesting a 5-year Letter of Authorization for these activities. PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 located approximately 52 kilometers (km) (32.3 miles (mi)) northeast of Marine Air Corps Station Cherry Point. The U.S. Army Corps of Engineers, Wilmington District has defined a danger zone (prohibited area) by a 6 statute-mile (sm) diameter boundary around BT–9 (33 CFR 334.420). This restriction prohibits non-military vessels within the designated area. The BT–9 target area ranges in depth from 1.2 to 6.1 meters (m) (3.9 to 20 feet (ft)), with the shallow areas concentrated along the Brandt Island Shoal. The target itself consists of three ship hulls grounded on Brant Island Shoals, located approximately 4.8 km (3.0 mi) southeast of Goose Creek Island. The BT–11 area encompasses a total of 50.6 square kilometers (km2) (19.5 square miles (mi2)) on Piney Island located in Carteret County, NC. The target prohibited area, at a radius of 1.8 sm, is roughly centered on Rattan Bay and includes approximately 9.3 km2 (3.6 mi2) of water and water depths range from 0.3 m (1.0 ft) along the shoreline to 3.1 m (10.1 ft) in the center of Rattan Bay. Water depths in the center of Rattan Bay range from approximately 2.4 to 3 m (8 to 10 ft) with bottom depths ranging from 0.3 to 1.5 m (1 to 5 ft) adjacent to the shoreline of Piney Island. The in-water stationary targets of BT–11 consist of a barge and patrol boat located in roughly the center of Rattan Bay. The Marine Corps also use on an intermittent basis for strafing at water- and land-based targets, a second danger zone, with an inner radius of 1.8 sm and outer radius of 2.5 sm and also roughly centered on Rattan Bay. BILLING CODE 3510–22–P E:\FR\FM\15JYP2.SGM 15JYP2 Federal Register / Vol. 79, No. 135 / Tuesday, July 15, 2014 / Proposed Rules The Marine Corps conducts all inert and live-fire exercises at BT–9 and BT– 11 so that all ammunition and other ordnances strike and/or fall on the land or water-based targets or within the existing danger zones or water restricted areas. Military forces close danger zones to the public on an intermittent or fulltime basis for hazardous operations such as target practice and ordnance firing. They also prohibit or limit public access to water restricted areas to provide security for government property and/or to protect the public VerDate Mar<15>2010 18:07 Jul 14, 2014 Jkt 232001 from the risks of injury or damage that could occur from the government’s use of that area (33 CFR 334.2). Surface danger zones are designated areas of rocket firing, target practice, or other hazardous operations (33 CFR 334.420). The surface danger zone (prohibited area) for BT–9 is a 4.8 km (3.0 mi) radius centered on the south side of Brant Island Shoal. The surface danger zone for BT–11 is a 2.9 km (1.8 mi) radius centered on a barge target in Rattan Bay. NMFS refers the reader to Section 3 of the Marine Corps’ PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 application for more detailed information on the locations and timing restrictions related to these zones. Detailed Description of the Proposed Activities The following sections describe the training activities that have the potential to affect marine mammals present within the BT–9 and BT–11 bombing targets. These activities fall into two categories based on the ordnance delivery method: (1) Surface-to-surface gunnery exercises; and (2) air-to-surface bombing exercises. E:\FR\FM\15JYP2.SGM 15JYP2 EP15JY14.013</GPH> mstockstill on DSK4VPTVN1PROD with PROPOSALS2 BILLING CODE 3510–22–C 41377 41378 Federal Register / Vol. 79, No. 135 / Tuesday, July 15, 2014 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Surface-to-Surface Exercises Gunnery exercises are the only category of surface-to-surface activity currently conducted within BT–9 or BT–11. Surface-to-surface gunnery firing exercises typically involve Special Boat Team personnel firing munitions from a machine gun and 40 mm grenade launchers at a water-based target or throwing concussion grenades into the water (e.g., not at a specific target) from a small boat. The number and type of boats used depend on the unit using the boat and the particular training mission. These include: Small unit river craft, combat rubber raiding craft, rigid hull inflatable boats, and patrol craft. These boats may use inboard or outboard, diesel or gasoline engines with either propeller or water jet propulsion systems. The Marine Corps propose to use a maximum of six boats ranging in size from 7.3 to 26 m (24 to 85 ft) to conduct surface-to-surface firing activities. Each boat would travel between 0 to 20 knots (kts) (0 to 23 miles per hour (mph)) with an average of two vessels to approach and engage the intended targets. The boats typically travel in linear paths and do not operate erratically. Boat sorties occur in all seasons and the number of sorties conducted at each range may vary from year to year based on training needs and worldwide operational tempo. The majority of boat sorties at BT–9 originate from Marine Corps Air Station Cherry Point’s Navy boat docks, but they may also originate from the State Port in Morehead City, NC, Marine Corps Base Camp Lejeune, and U.S. Coast Guard Station Hobucken in Pamlico Sound. The majority of boat sorties at BT–11 originate from launch sites within the range complex. There is no specific schedule associated with the use of BT–9 or BT– 11 by the small boat teams. However, the Marine Corps schedules the exercises for 5-day blocks with exercises at various times throughout the year. Variables such as deployment status, range availability, and completion of crew specific training requirements influence the exercise schedules. Table 1 in this document outlines the number of surface-to-surface exercises that occurred between 2011 and 2013 by bombing target area. TABLE 1—COUNTS OF SURFACE-TOSURFACE SORTIES CONDUCTED IN CALENDAR YEARS 2011, 2012, AND 2013 IN BT–9 AND BT–11 Year 2011 ............. VerDate Mar<15>2010 BT–9 BT–11 223 18:07 Jul 14, 2014 105 Jkt 232001 TABLE 1—COUNTS OF SURFACE-TOSURFACE SORTIES CONDUCTED IN CALENDAR YEARS 2011, 2012, AND 2013 IN BT–9 AND BT–11—Continued Year BT–9 2012 ............. 2013 ............. BT–11 322 87 106 62 The direct-fire gunnery exercises (i.e., all targets are within the line of sight of the military personnel) at BT–9 would typically use 7.62 millimeter (mm) or .50 caliber (cal) machine guns; 40 mm grenade machine guns; or G911 concussion hand grenades. The proposed exercises at BT–9 are usually live-fire exercises. At times Marine Corps personnel would use blanks (inert ordnance) so that the boat crews could practice ship-handling skills during training without being concerned with the safety requirements involved with live weapons. The Marine Corps estimates that it could conduct up to approximately 354 vessel-based sorties annually at BT–9. This estimate includes the highest number of sorties conducted over the past three years (322) plus an additional 10 percent increase (32) in sorties to account for interannual variation based on future training needs and worldwide operational tempo. The direct-fire gunnery exercises at BT–11 would include the use of small arms, large arms, bombs, rockets, and pyrotechnics. All munitions fired within the BT–11 range are nonexplosive with the exception of the small explosives in the single charges. No live firing occurs at BT–11. The Marine Corps estimates that it could conduct up to approximately 117 vesselbased sorties annually at BT–11. This estimate includes the highest number of sorties conducted over the past three years (106) plus an additional 10 percent increase (11) in sorties to account for interannual variation based on future training needs and worldwide operational tempo. Air-to-Surface Exercises Air-to-surface training exercises involve fixed-, rotary-, or tilt-wing aircraft firing munitions at targets on the water’s surface or on land (as in the case of BT–11). There are four types of airto-surface activities conducted within BT–9 and BT–11. They include: Mine laying, bombing, gunnery, or rocket exercises. Table 2 in this document outlines the number of air-to-surface exercises that occurred in 2011, 2012, and 2013 by bombing target area. PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 TABLE 2—COUNTS OF AIR-TO-SURFACE EXERCISES CONDUCTED IN CALENDAR YEARS 2011, 2012, AND 2013 IN BT–9 AND BT–11 Year 2011 ............. 2012 ............. 2013 ............. BT–9 1,554 842 407 BT–11 4,251 11,706 1,177 The Marine Corps estimates that it could conduct up to approximately 1,709 air-based based sorties annually at BT–9. This estimate includes the highest number of sorties conducted over the past three years (1,554) plus an additional 10 percent increase (155) in sorties to account for interannual variation based on future training needs and worldwide operational tempo. For the BT–11 area, the Marine Corps estimates that it could conduct up to approximately 12,877 air-based based sorties annually. This estimate includes the highest number of sorties conducted over the past three years (11,706) plus an additional 10 percent increase (1,171) in sorties to account for interannual variation based on future training needs and worldwide operational tempo. The following sections provide more detail on each exercise type that the Marine Corps proposes to conduct over the next five years. Mine Laying Exercises: Aircraft With Inert Shapes Mine laying exercises are simulations only, meaning that mine detonations would not occur during training. These exercises, regularly conducted at the BT–9 bombing target, involve the use of fixed-wing aircraft (F/A–18F Hornet Strike Fighter, P–3 Orion, or P–8 Poseidon) flying undetected to the target area using either a low- or high-altitude tactical flight pattern. When the aircraft reaches the target area, the pilot would deploy a series of inert mine shapes in an offensive or defensive pattern into the water. The aircraft would make multiple passes along a pre-determined flight azimuth dropping one or more of the inert shapes each time. The mine-laying exercises at BT–9 would include the use of MK–62, MK– 63, MK–76, BDU–45, and BDU–48 inert training shapes. Each inert shape weighs 500, 1000, 25, 500, and 10 pounds (lbs), respectively. Bombing Exercises: Fixed-Wing Aircraft With Inert Bombs Pilots train to destroy or disable enemy ships or boats during bombing exercises. These exercises, conducted at BT–9 or BT–11, normally involve the E:\FR\FM\15JYP2.SGM 15JYP2 Federal Register / Vol. 79, No. 135 / Tuesday, July 15, 2014 / Proposed Rules use of two to four fixed-wing aircraft (i.e., an F/A–18F Hornet Strike Fighter or AV–8 Harrier II) approaching the target area from an altitude of approximately 152 m (500 ft) up to 4,572 m (15,000 ft). When the aircraft reach the target area, they establish a predetermined racetrack pattern relative to the target and deliver the bombs. Participating aircraft follow the same flight path during subsequent target ingress, ordnance delivery, target egress, and downwind pattern. The Marine Corps uses this type of pattern to ensure that only one aircraft releases ordnance at any given time. The pilots deliver the bombs against targets at BT–9 or BT–11, day or night; the average time to complete this type of exercise is approximately one hour. There is no set level or pattern of amount of sorties conducted and there are no cluster munitions authorized for use during bombing exercises. The bombing exercises would typically use unguided MK–76, BDU– 45, MK–82, and MK–83 inert training bombs (25, 500, 500, and 1,000 lbs, respectively); precision-guided munitions consisting of laser-guided bombs (inert); and laser-guided training rounds (inert, but contains a small impact-initiated spotting charge). For unguided munitions, the typical release altitudes are 914 m (3,000 ft) or above 4,572 m (15,000 ft). The typical release altitude for precision-guided munitions is 1.8 km (1.1 mi) or greater in altitude. For laser-guided munitions, onboard laser designators, laser designators from support aircraft, or ground support personnel use lasers to illuminate the certified targets. For either weapons delivery system, the lowest minimum altitude for ordnance delivery (inert bombs) would be 152 m (500 ft). Gunnery Exercises: Aircraft With Cannons During air-to-surface gunnery exercises with cannons, pilots train to destroy or disable enemy ships, boats, or floating/near-surface mines from aircraft with mounted cannons equal to or larger than 20 mm. The Marine Corps proposes to use either fixed-wing (F/A– 18F Hornet Strike Fighter or an AV–8 Harrier II) or rotary-wing (AH–1 Super Cobra), tilt-rotor (V–22), and other aircraft to conduct gunnery exercises at BT–9 or BT–11. During the exercise (i.e., strafing run), two aircraft would approach the target area from an altitude of approximately 914 m (3,000 ft) and within a distance of 1,219 m (4,000 ft) from the target, begin to fire a burst of approximately 30 rounds of munitions before reaching an altitude of 305 m (1,000 ft) to break off the attack. Each aircraft would reposition for another strafing run until each aircraft expends its exercise ordnance of approximately 250 rounds (approximately 8–12 passes per aircraft per exercise). This type of gunnery exercise would typically use a Vulcan M61A1/A2, 20 mm cannon or a GAU–12, 25 mm cannon. The Marine Corps proposes to use inert munitions for these exercises. The aircraft deliver the ordnance against targets at BT–9 or BT–11, day or night. The average time to complete this type of exercise is approximately 1 hour. Gunnery Exercises: Aircraft With Machine Guns During air-to-surface gunnery exercises with machine guns, pilots train to destroy or disable enemy ships, boats, or floating/near-surface mines with aircraft using mounted machine guns. The Marine Corps proposes to use rotary-wing (CH–52 Super Stallion, UH–1 Iroquois Huey, CH–46 Sea Knight, MV–22 Osprey, or H–60 Hawk series, and other types) aircraft to conduct gunnery exercises at BT–9 or BT–11. During the exercise an aircraft would fly around the target area at an altitude between 15 and 30 m (50 and 100 ft) in a 91 m (300 ft) racetrack pattern around the water-based target. Each gunner would expend approximately 400 rounds of 7.62 mm ammunition and 200 rounds of .50 cal ammunition in each exercise. The aircraft deliver the ordnance against the bombing targets at BT–9 or BT–11, day or night. The average time to complete this type of exercise is approximately one hour. 41379 Rocket Exercises The Marine Corps proposes to carry out rocket exercises similar to the bombing exercises. Fixed- and rotarywing aircraft crews launch rockets at surface maritime targets, day and night, to train for destroying or disabling enemy ships or boats. These operations employ 2.75-inch and 5-inch rockets (4.8 and 15.0 lbs net explosive weight, respectively). Generally, personnel would deliver an average of approximately 14 rockets per sortie. As with the bombing exercises, there is no set level or pattern of amount of sorties conducted. Munitions and Estimated Annual Expenditures Tables 3 and 4 in this document provide a list and expenditure levels of the live and inert ordnance proposed for use at BT–9 and BT–11, respectively. There are several varieties of ordnance and net explosive weights (for live munition used at BT–9) can vary according to type. All practice bombs are inert but simulate the same ballistic properties of service type bombs. They are either solid cast metal bodies or thin sheet metal containers. Since practice bombs contain no explosive filler, a practice bomb signal cartridge (smoke) serves as a visual observation of weapon target impact. High explosive detonations convert almost instantly into a gas at very high pressure and temperature. Under the pressure of the gases generated, the weapon case expands and breaks into fragments. The air surrounding the casing compresses and transmits a shock (blast) wave. Typical initial values for a high-explosive weapon are 200 kilobars of pressure (1 bar = 1 atmosphere) and 5,000 degrees Celsius (9,032 degrees Fahrenheit). The Marine Corps proposes to use five types of explosive sources at BT–9: 2.75inch Rocket High Explosives, 5-inch Rocket High Explosives, 30 mm High Explosives, 40 mm High Explosives, and G911 grenades. All munitions proposed for use at BT–11are inert (not live). mstockstill on DSK4VPTVN1PROD with PROPOSALS2 TABLE 3—TYPE OF ORDNANCE, NET EXPLOSIVE WEIGHT, AND PROPOSED LEVELS OF ANNUAL EXPENDITURES AT BT–9 Proposed ordnance Net explosive weight in pounds (lbs) Small arms excluding .50 cal (7.62 mm) ................................... .50 cal ......................................................................................... Large arms—live (30 mm) .......................................................... Large arms—live (40 mm) .......................................................... Large arms—inert (20, 25, 30, and 40 mm) .............................. Rockets—live (2.75-inch) ........................................................... Rockets—live (5-inch) ................................................................ N/A, inert .................................................................................... N/A, inert .................................................................................... 0.1019 ......................................................................................... 0.1199 ......................................................................................... N/A .............................................................................................. 4.8 ............................................................................................... 15.0 ............................................................................................. VerDate Mar<15>2010 18:07 Jul 14, 2014 Jkt 232001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 E:\FR\FM\15JYP2.SGM 15JYP2 Proposed number of rounds 525,610 568,515 3,432 10,420 120,405 220 68 41380 Federal Register / Vol. 79, No. 135 / Tuesday, July 15, 2014 / Proposed Rules TABLE 3—TYPE OF ORDNANCE, NET EXPLOSIVE WEIGHT, AND PROPOSED LEVELS OF ANNUAL EXPENDITURES AT BT–9— Continued Proposed number of rounds Proposed ordnance Net explosive weight in pounds (lbs) Rockets—inert (2.75-inch rocket, 2.75-inch illumination, 2.75inch white phosphorus, 2.75-inch red phosphorus; 5-inch rocket, 5-inch illumination, 5-inch white phosphorus, 5-inch red phosphorus). Grenades—live (G911) ............................................................... Bombs—inert (BDU–45 practice bomb, MK–76 practice bomb, MK–82 practice bomb, MK–83 practice bomb). Pyrotechnics—inert (chaff, LUU–2, self-protection flares) ......... N/A .............................................................................................. 844 0.5 ............................................................................................... 0.083800–0.1676 signal cartridge only ...................................... 144 4,460 N/A .............................................................................................. 4,496 TABLE 4—TYPE OF ORDNANCE, NET EXPLOSIVE WEIGHT, AND PROPOSED LEVELS OF ANNUAL EXPENDITURES AT BT–11 Proposed number of rounds Proposed ordnance Net explosive weight in pounds (lbs) Small arms excluding .50 cal (7.62 mm) ................................... .50 cal ......................................................................................... Large arms—inert (20, 25, 30, and 40 mm) .............................. Rockets—inert (2.75-inch rocket, 2.75-inch illumination, 2.75inch white phosphorus, 2.75-inch red phosphorus; 5-inch rocket, 5-inch illumination, 5-inch white phosphorus, 5-inch red phosphorus). Bombs—inert (BDU–45 practice bomb, MK–76 practice bomb, MK–82 practice bomb, MK–83 practice bomb). Pyrotechnics—inert (chaff, LUU–2, self-protection flares, SMD SAMS). N/A, inert .................................................................................... N/A, inert .................................................................................... N/A .............................................................................................. N/A .............................................................................................. 610,957 366,775 240,334 5,592 0.083800–0.1676 signal cartridge only ...................................... 22,114 N/A .............................................................................................. 8,912 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 The Marine Corps estimates that the 5-year level of expended ordnance at BT–9 and BT–11 (both surface-tosurface and air-to-surface) would be approximately 6,193,070 and 6,273,420 rounds, respectively. The approximate annual quantities of ordnance listed in Tables 3 and 4 represent conservative figures, meaning that the volume of each type of inert and explosive ordnance proposed for is the largest number that personnel could expend annually. The Marine Corps realizes that its evolving training programs, linked to real world events, necessitate flexibility regarding the amounts of ordnance used in air-to-surface and surface-to-surface exercises. Thus, this proposed rule would account for inter-annual variability in ordnance expenditures over the course of the five years. NMFS refers the reader to Table 2–2 of the Marine Corps’ application for a complete list of munitions authorized for use at the Marine Corps Air Station Cherry Point Range Complex. Acoustic Characteristics of Ordnance Noise generated by live or inert ordnance impacting the water and associated detonations from live ordnance may present some risk to bottlenose dolphins. Estimates of the noise fields generated in water by the impact of non-explosive (inert) VerDate Mar<15>2010 18:07 Jul 14, 2014 Jkt 232001 ordnance indicate that the energy radiated is about one to two percent of the total kinetic energy of the impact. This energy level (and likely peak pressure levels) is well below the thresholds for predicting potential physical impacts from underwater pressure waves, because the firing of an inert projectile does not create an explosion even at 1 m (3 ft) from the impact. Therefore, NMFS and the Marine Corps do not expect that the noise generated by the in-water impact of inert ordnance would have the potential to take of marine mammals within the action area. Thus, NMFS will not consider the acoustic impacts of inert ordnance further in this document. However, live ordnance detonated underwater introduces loud, impulsive broadband (producing sound over a wide frequency band) sounds into the marine environment and does have the potential to take marine mammals. Broadband explosives produce significant acoustic energy across several frequency decades of bandwidth. Propagation loss is sufficiently sensitive to frequency as to require model estimates at several frequencies over such a wide band. Three source parameters influence the effect of an explosive: The weight of the explosive material, the type of explosive material, and the detonation depth. The PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 net explosive weight (or NEW) accounts for the first two parameters. The ordnance’s NEW is the weight of trinitrotoluene (TNT) that produces an equivalent explosive power. The detonation depth of an explosive is particularly important due to a propagation effect known as surfaceimage interference. For sources located near the sea surface, a distinct interference pattern arises from the coherent sum of the two paths that differ only by a single reflection from the pressure-release surface. As the source depth and/or the source frequency decreases, these two paths increasingly and destructively interfere with each other, reaching total cancellation at the surface (barring surface-reflection scattering loss). For this proposed rulemaking, the Marine Corps proposes to use five types of explosive sources: 2.75-inch rocket high explosives, 5-inch rocket high explosives, 30 mm high explosives, 40 mm high explosives, and G911 grenades. The firing sequence for some of the munitions consists of a number of rapid bursts, often lasting a second or less. The maximum firing time is 10 to 15 second bursts. Due to the tight spacing in time, the Marine Corps considers each burst as a single detonation. For the energy metrics, the Marine Corps E:\FR\FM\15JYP2.SGM 15JYP2 41381 Federal Register / Vol. 79, No. 135 / Tuesday, July 15, 2014 / Proposed Rules considers the impact area of a burst using a source energy spectrum that is the source spectrum for a single detonation scaled by the number of rounds in a burst. For the pressure metrics, the impact area for a burst is the same as the impact area of a single round. For all metrics, the cumulative impact area of an event consisting of a certain number of bursts is the product of the impact area of a single burst and the number of bursts, as would be the case if the bursts are sufficiently spaced in time or location as to insure that each burst is affecting a different set of marine wildlife. Table 5 provides a comparison of the live explosive ordnance proposed for use during 2014 through 2019. Table 5 lists the number of rounds per burst by ordnance; the acoustic characteristics of the proposed ordnance including the peak one-third octave (OTO) source level (SL); and the approximate frequency at which the peak occurs. TABLE 5—PROPOSED LEVELS OF ORDNANCE, NET EXPLOSIVE WEIGHT, SOURCE LEVELS, AND CENTER FREQUENCIES New (lbs) Proposed ordnance Large arms—live (30 mm) .............................. Large arms—live (40 mm) .............................. Rockets—live (2.75-inch) ................................ Rockets—live (5-inch) ..................................... Grenades—live (G911) ................................... For ordnance detonated at shallow depths, often the source level of the explosion may breech the surface with some of the acoustic energy escaping the water column. The source levels presented in Table 5 do not account for possible venting of the acoustic energy through the water surface which the Marine Corps expects to be minor because of the low source net explosive weights and detonation depth of 1.2 m (3.9 ft). Description of Marine Mammals in the Area of the Specified Activity There is one species of marine mammal with possible or confirmed occurrence in the area of the specified Rounds per burst 0.1019 0.1199 4.8 15.0 0.5 Center frequency of peak 1⁄3 octave (hertz, Hz) Source level of peak 1⁄3 octave (decibels, dB) 30 5 1 1 1 207 208 224 229 214 dB dB dB dB dB re: re: re: re: re: 1μPa 1μPa 1μPa 1μPa 1μPa activity: The Atlantic bottlenose dolphin (Tursiops truncatus) which routinely frequents Pamlico Sound (Lefebvre et al, 2001; DoN 2003). The region of influence for the proposed project includes estuarine waters, and does not include offshore waters. Four out of the seven designated coastal stocks for bottlenose dolphins may occur within the proposed activity area. They include: The Western North Atlantic Northern Migratory Coastal; Western North Atlantic Southern Migratory; Northern North Carolina Estuarine System; and the Southern North Carolina Estuarine System stocks. Dolphins encountered at BT–9 and BT– 11 would most likely belong to the ............................................. ............................................. ............................................. ............................................. ............................................. 4,032 4,032 1,270 1,008 2,540 Northern North Carolina Estuarine System and the Southern North Carolina Estuarine System stocks. Table 6 in this document presents information on the abundance, status, and distribution of the four stocks. The reader may also refer to Section 4 of the Marine Corps’ application, their 2014 application addendum, and Chapter 3 of the Marine Corps’ EA for more detailed information. NMFS summarizes this information and presents updated information on the species’ abundance, status, and distribution from the 2013 NMFS Stock Assessment Report. The publication is available at http:// www.nmfs.noaa.gov/pr/sars/pdf/ ao2013.pdf. TABLE 6—GENERAL INFORMATION ON THE SPECIES/STOCKS THAT COULD POTENTIALLY OCCUR IN THE PROPOSED ACTIVITY AREAS, 2014 THROUGH 2019 Bottlenose dolphin stocks Stock/species abundance Occurrence and range MMPA—D ESA—NL 11,548 (CV = 0.36) .... Occasional Coastal .... Winter. MMPA—D ESA—NL 9,173 (CV = 0.46) ...... Occasional Coastal .... Winter. MMPA—S ESA—NL .. 950 (CV = 0.23) ......... Common Estuarine .... Summer–Fall. MMPA—S ESA—NL .. 118 (CV = 0.19) ......... Common Estuarine .... Late Summer. Regulatory status 1 2 Western North Atlantic Northern Migratory Coastal (NMC). Western North Atlantic Southern Migratory (SMC). Northern North Carolina Estuarine System (NNCES). Southern North Carolina Estuarine System (SNCES). Season 1 MMPA: mstockstill on DSK4VPTVN1PROD with PROPOSALS2 2 ESA: D = Depleted, Strategic Stock; S = Strategic Stock only; NC = Not Classified. NL = Not listed. Bottlenose Dolphins The bottlenose dolphin is one of the most well-known species of marine mammals. They have a robust body and a short, thick beak. Their coloration ranges from light gray to black with lighter coloration on the belly. Inshore and offshore individuals vary in color VerDate Mar<15>2010 18:07 Jul 14, 2014 Jkt 232001 and size. Inshore animals are smaller and lighter in color, while offshore animals are larger, darker in coloration and have smaller flippers. Bottlenose dolphins range in lengths from 1.8 to 3.8 m (6.0 to 12.5 ft) with males slightly larger than females. Adults weight from 300–1,400 lbs (136– 635 kg). Generally, the species has a PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 lifespan of 40 to 45 years for males and more than 50 years for females. Sexual maturity varies by population and ranges from five to 13 years for females and 9 to 14 years for males. Calves, born after a 12-month gestation period, generally wean at 18 to 20 months. On average, calving occurs every 3 to 6 years. E:\FR\FM\15JYP2.SGM 15JYP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 41382 Federal Register / Vol. 79, No. 135 / Tuesday, July 15, 2014 / Proposed Rules Bottlenose dolphins are generalists and feed on a variety of prey items ‘‘endemic’’ to their habitat, foraging individually and cooperatively. Like other dolphins, bottlenose dolphins use high frequency echolocation to locate and capture prey. Coastal animals prey on benthic invertebrates and fish, and offshore animals feed on pelagic squid and fish. Western North Atlantic Northern Migratory Coastal (NMC) Stock: This stock is not listed as threatened or endangered under the Endangered Species Act (ESA; 16 U.S.C. 1531 et seq.); however, it is categorized as depleted (and thus strategic) under the MMPA. The best available abundance estimate for the NMC stock is 11,548 animals (Waring et al., 2014). However, there is insufficient data to determine the population trends for this stock. Based on aerial survey data, tagtelemetry studies, photo-identification data, and genetic studies, the NMC stock of bottlenose dolphins occur along the North Carolina coast and as far north as Long Island, New York (CETAP, 1982; Kenney, 1990; Garrison et al., 2003; Waring et al., 2014). During summer months (July–September), this stock occupies coastal waters from the shoreline to approximately the 25-m (82-ft) isobath between the Chesapeake Bay mouth and Long Island, New York. During the winter months (January– March), the stock moves south to waters of North Carolina and occupies coastal waters from Cape Lookout, North Carolina to the Virginia–North Carolina border (Barco and Swingle, 1996; Waring et al., 2014). Western North Atlantic Southern Migratory Coastal (SMC) Stock: This stock is not listed as threatened or endangered under the Endangered Species Act (ESA; 16 U.S.C. 1531 et seq.); however, it is categorized as depleted (and thus strategic) under the MMPA. The best available abundance estimate for the SMC stock is 9,173 animals (Waring et al., 2014). However, there is insufficient data to determine the population trends for this stock. Based on tag-telemetry studies, the SMC stock of bottlenose dolphins occur in coastal waters between southern North Carolina and Georgia, but the stock’s migratory movements and spatial distribution are the most poorly understood of the coastal stocks (Waring et al., 2014). During the fall (October– December), this stock occupies waters of southern North Carolina (South of Cape Lookout) where it overlaps spatially with the Southern North Carolina Estuarine System stock in coastal waters. In winter months (January– March), the SMC stock moves as far VerDate Mar<15>2010 18:07 Jul 14, 2014 Jkt 232001 south as northern Florida where it overlaps spatially with the South Carolina/Georgia and Northern Florida Coastal stocks. In spring (April–June), the stock moves north to waters of North Carolina where it overlaps with the Southern North Carolina Estuarine System stock and the Northern North Carolina Estuarine System stock. In summer months (July–September), the stock most likely occupies coastal waters north of Cape Lookout, North Carolina, to the eastern shore of Virginia (Waring et al., 2014). Northern North Carolina Estuarine System (NNCES) Stock: This stock is not listed as threatened or endangered under the Endangered Species Act (ESA; 16 U.S.C. 1531 et seq.); however, it is categorized as strategic only (not depleted) under the MMPA. The best available abundance estimate for the NNCES stock is 950 animals (Waring et al., 2014). However, there is insufficient data to determine the population trends for this stock. Based on photo-identification studies, the NNCES stock of bottlenose dolphins occur in the estuarine waters of Pamlico Sound (Waring et al., 2014). The ranging patterns of bottlenose dolphins in those studies support the presence of a group of dolphins within these waters that are distinct from both dolphins occupying estuarine and coastal waters in southern North Carolina and animals in the NMC and SMC stocks that occupy coastal waters of North Carolina at certain times of the year (Read et al., 2003; NMFS, 2001; NMFS, unpublished data). During summer and fall months (July– October), the NNCES stock occupies waters of Pamlico Sound and nearshore coastal (less than 1 km (3,280 ft) from shore) and estuarine waters of central and northern North Carolina to Virginia Beach and the lower Chesapeake Bay (Waring et al., 2014). It likely overlaps with animals from the SMC stock in coastal waters during these months. During late fall and winter (November– March), the NNCES stock moves out of estuarine waters and occupies nearshore coastal waters between the New River and Cape Hatteras (Waring et al., 2013). It overlaps with the NMC stock during this period, particularly between Cape Lookout and Cape Hatteras. It appears that the region near Cape Lookout including Bogue Sound and Core Sound is an area of overlap with the Southern North Carolina Estuarine System stock during late summer (Waring et al., 2014). Southern North Carolina Estuarine System (SNCES) Stock: This stock is not listed as threatened or endangered under the Endangered Species Act (ESA; 16 U.S.C. 1531 et seq.); however, PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 it is categorized as strategic only (not depleted) under the MMPA. The best available abundance estimate for the SNCES stock is 118 animals (Waring et al., 2014). However, there is insufficient data to determine the population trends for this stock. Based on photo-identification studies, the SNCES stock of common bottlenose dolphins occupies estuarine and nearshore coastal waters (less than 3 km from shore) between the Little River Inlet Estuary, including the estuary and the New River (Waring et al., 2014). During summer and fall months (July– October), the SNCES stock occupies estuarine and nearshore coastal waters (less than 3 km (1.7 mi) from shore) between the North Carolina–South Carolina border and Core Sound. It likely overlaps with the NNCES stock in the northern portion of its range (i.e., southern Pamlico Sound) during late summer (Waring et al., 2014). During late fall through spring, the SNCES stock moves south to waters near Cape Fear. In coastal waters, it overlaps with the SMC stock during this period (Waring et al., 2014). Bottlenose Dolphin Distribution Within BT–9 and BT–11 In Pamlico Sound, bottlenose dolphins concentrate in shallow water habitats along shorelines, and few, if any, individuals are present in the central portions of the sounds (Gannon, 2003; Read et al., 2003a, 2003b). The dolphins utilize shallow habitats, such as tributary creeks and the edges of the Neuse River, where the bottom depth is less than 3.5 m (11.5 ft) (Gannon, 2003). Fine-scale distribution of dolphins seems to relate to the presence of topography or vertical structure, such as the steeply-sloping bottom near the shore and oyster reefs. Bottlenose dolphins may use these features to facilitate prey capture (Gannon, 2003). In 2000, Duke University Marine Lab (Duke) conducted a boat-based markrecapture survey throughout the estuaries, bays and sounds of North Carolina (Read et al., 2003). The 2000 boat-based survey produced an estimate of 919 dolphins for the northern inshore waters divided by an estimated 5,015 km2 (1,936 mi2) survey area. In a follow-on aerial study (July, 2002 to June, 2003) specifically in and around BT–9 and BT–11, Duke reported one sighting in the restricted area surrounding BT–9, two sightings in proximity to BT–11, and seven sightings in waters adjacent to the bombing targets (Maher, 2003). In total, the study observed 276 bottlenose dolphins ranging in group size from two to 70 animals. E:\FR\FM\15JYP2.SGM 15JYP2 Federal Register / Vol. 79, No. 135 / Tuesday, July 15, 2014 / Proposed Rules Results of a passive acoustic monitoring effort conducted from 2006– 2007 by Duke University researchers detected that dolphin vocalizations in the BT–11 vicinity were higher in August and September than vocalization detection at BT–9 (Read et al., 2007). Additionally, detected vocalizations of dolphins were more frequent at night for the BT–9 area and during early morning hours at BT–11 (Read et al., 2007). mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Other Marine Mammals in the Proposed Action Area The endangered West Indian manatee (Trichechus manatus), under the jurisdiction of the U.S. Fish and Wildlife Service, rarely occurs in the area (Lefebvre et al, 2001; DoN 2003). The U.S. Fish and Wildlife Service has jurisdiction over the manatee; therefore, NMFS would not include a proposed authorization to harass manatees and does not discuss this species further in this notice. Based on the best available information, there are no observations of the endangered North Atlantic right whale (Eubalaena glacialis) or other large whales within Pamlico Sound or in vicinity of the bombing targets (Kenney, 2006). No suitable habitat exists for these species in the shallow Pamlico Sound or bombing target vicinity; therefore, because NMFS does not expect these species to be present in the action area, there is no potential for take (NMFS, 2012). Thus, NMFS will not discuss these species further in this notice. Other dolphins, such as Atlantic spotted (Stenella frontalis) and the common dolphin (Delphinus delphis), have an oceanic distribution and do not venture into the shallow, brackish waters of southern Pamlico Sound. Because these species are rare and/or have extralimital occurrence in the bombing target area, NMFS will not discuss these species further in this notice. Potential Effects of the Specified Activity on Marine Mammals This section includes a summary and discussion of the ways that the types of stressors associated with the specified activity (e.g., ordnance detonation and vessel movement) could impact marine mammals (via observations or scientific studies). This discussion may also include reactions that NMFS considers to rise to the level of a take and those that NMFS does not consider to rise to the level of a take (for example, with acoustics, we may include a discussion of studies that showed animals not reacting at all to sound or exhibiting barely measurable avoidance). VerDate Mar<15>2010 18:07 Jul 14, 2014 Jkt 232001 NMFS will provide an overview of potential effects of the Marine Corps’ activities in this section and describe the effects of similar activities that have occurred in the past. This section does not consider the specific manner in which the Marine Corps would carry out the proposed activity, what mitigation measures the Marine Corps would implement, and how either of those would shape the anticipated impacts from this specific activity. The ‘‘Estimated Take by Incidental Harassment, Injury, or Mortality’’ section later in this document will include a quantitative analysis of the number of individuals that NMFS expects the Marine Corps to take during this activity. The ‘‘Negligible Impact Analysis’’ section will include the analysis of how this specific activity would impact marine mammals. NMFS will consider the content of the following sections: (1) Estimated Take by Incidental Harassment, Injury, or Mortality; (2) Proposed Mitigation; and (3) Anticipated Effects on Marine Mammal Habitat, to draw conclusions regarding the likely impacts of this activity on the reproductive success or survivorship of individuals—and from that consideration—the likely impacts of this activity on the affected marine mammal populations or stocks. The surface-to-surface and air-tosurface training exercises proposed for taking of marine mammals under these regulations have the potential to take marine mammals by exposing them to impulsive noise and pressure waves generated by live ordnance detonation at or near the surface of the water. Exposure to energy or pressure resulting from these detonations could result in non-lethal injury (Level A harassment), disturbance (Level B harassment), serious injury, and/or mortality. In addition, NMFS also considered the potential for harassment from vessel and aircraft operations. NMFS outlines the analysis of potential impacts from these factors, including consideration of the Marine Corps’ analysis in its application, in the following sections. The potential effects of impulsive sound sources (underwater detonations) from the proposed training activities may include one or more of the following: tolerance, masking, disturbance, hearing threshold shift, stress response, and lethal responses. Brief Background on Sound An understanding of the basic properties of underwater sound is necessary to comprehend many of the concepts and analyses presented in this document. NMFS presents a summary in this section. PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 41383 Sound is a wave of pressure variations propagating through a medium (e.g., water). Pressure variations occur by compressing and relaxing the medium. Sound measurements exist in two forms: Intensity and pressure. Acoustic intensity is the average rate of energy transmitted through a unit area in a specified direction (expressed in watts per square meter (W/m2)). Acoustic intensity is rarely measured directly, but rather from ratios of pressures; the standard reference pressure for underwater sound is 1 microPascal (mPa); for airborne sound, the standard reference pressure is 20 mPa (Richardson et al., 1995). Acousticians have adopted a logarithmic scale for sound intensities, denoted in decibels (dB). Decibel measurements represent the ratio between a measured pressure value and a reference pressure value (in this case 1 mPa or, for airborne sound, 20 mPa). The logarithmic nature of the scale means that each 10-dB increase is a tenfold increase in acoustic power (and a 20-dB increase is then a 100-fold increase in power; and a 30-dB increase is a 1,000-fold increase in power). A tenfold increase in acoustic power does not mean that the listener perceives sound as being ten times louder, however. Humans perceive a 10-dB increase in sound level as a doubling of loudness, and a 10-dB decrease in sound level as a halving of loudness. The term ‘‘sound pressure level’’ implies a decibel measure and a reference pressure that is the denominator of the ratio. Throughout this document, NMFS uses 1 microPascal (denoted re: 1mPa) as a standard reference pressure unless noted otherwise. It is important to note that decibel values underwater and decibel values in air are not the same (different reference pressures and densities/sound speeds between media) and one should not directly compare the two mediums. Because of the different densities of air and water and the different decibel standards (i.e., reference pressures) in air and water, a sound with the same level in air and in water would be approximately 62 dB lower in air. Thus, a sound that measures 160 dB (re: 1 mPa) underwater would have the same approximate effective level as a sound that is 98 dB (re: 20 mPa) in air. Sound frequency is measured in cycles per second, or Hertz (abbreviated Hz), and is analogous to musical pitch; high-pitched sounds contain high frequencies and low-pitched sounds contain low frequencies. Natural sounds in the ocean span a huge range of frequencies: From earthquake noise at 5 Hz to harbor porpoise clicks at 150,000 E:\FR\FM\15JYP2.SGM 15JYP2 41384 Federal Register / Vol. 79, No. 135 / Tuesday, July 15, 2014 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Hz (150 kHz). These sounds are so low or so high in pitch that humans cannot even hear them; acousticians call these infrasonic (typically below 20 Hz) and ultrasonic (typically above 20,000 Hz) sounds, respectively. A single sound may consist of many different frequencies together. Acousticians characterize sounds made up of only a small range of frequencies as ‘‘narrowband’’ and sounds with a broad range of frequencies as ‘‘broadband’’; explosives are an example of a broadband sound source. Acoustic Impacts The effects of noise on marine mammals are highly variable. Categorization of these effects includes the following (based on Richardson et al., 1995): • The sound may be too weak to be heard at the location of the animal (i.e., lower than the prevailing ambient noise level, the hearing threshold of the animal at relevant frequencies, or both); • The sound may be audible but not strong enough to elicit any overt behavioral response; • The sound may elicit reactions of variable conspicuousness and variable relevance to the well-being of the marine mammal; these can range from temporary alert responses to active avoidance reactions, such as stampedes into the sea from terrestrial haul-out sites; • Upon repeated exposure, a marine mammal may exhibit diminishing responsiveness (habituation), or disturbance effects may persist; the latter is most likely with sounds that are highly variable in characteristics, infrequent and unpredictable in occurrence (as are vehicle launches), and associated with situations that a marine mammal perceives as a threat; • Any anthropogenic sound that is strong enough to be heard has the potential to reduce (mask) the ability of a marine mammal to hear natural sounds at similar frequencies, including calls from conspecifics, and underwater environmental sounds such as surf noise; • If marine mammals remain in an area because it is important for feeding, breeding, or some other biologically important purpose even though there is chronic exposure to noise, it is possible that there could be sound-induced physiological stress; this might in turn have negative effects on the well-being or reproduction of the animals involved; and • Very strong sounds have the potential to cause temporary or permanent reduction in hearing sensitivity. In terrestrial mammals, and VerDate Mar<15>2010 18:07 Jul 14, 2014 Jkt 232001 presumably marine mammals, received sound levels must far exceed the animal’s hearing threshold for there to be any temporary threshold shift (TTS) in its hearing ability. For transient sounds, there is an inverse relation to the sound level necessary to cause TTS compared to the duration of the sound. Received sound levels must be even higher for there to be risk of permanent hearing impairment (PTS). In addition, intense acoustic or explosive events may cause trauma to tissues associated with organs vital for hearing, sound production, respiration, and other functions. This trauma may include minor to severe hemorrhage. When considering the influence of various kinds of sound on the marine environment, it is necessary to understand that different kinds of marine life are sensitive to different frequencies of sound. Current data indicate that not all marine mammal species have equal hearing capabilities (Richardson et al., 1995; Southall et al., 1997; Wartzok and Ketten, 1999; Au and Hastings, 2008). Southall et al. (2007) designated ‘‘functional hearing groups’’ for marine mammals based on available behavioral data; audiograms derived from auditory evoked potentials; anatomical modeling; and other data. Southall et al. (2007) also estimated the lower and upper frequencies of functional hearing for each group. However, animals are less sensitive to sounds at the outer edges of their functional hearing range and are more sensitive to a range of frequencies within the middle of their functional hearing range. The functional groups and the associated frequencies are: • Low frequency cetaceans (13 species of mysticetes): Functional hearing estimates occur between approximately 7 Hz and 30 kilohertz (kHz) (extended from 22 kHz based on data indicating that some mysticetes can hear above 22 kHz; Au et al., 2006; Lucifredi and Stein, 2007; Ketten and Mountain, 2009; Tubelli et al., 2012); • Mid-frequency cetaceans (32 species of dolphins, six species of larger toothed whales, and 19 species of beaked and bottlenose whales): Functional hearing estimates occur between approximately 150 Hz and 160 kHz; • High-frequency cetaceans (eight species of true porpoises, six species of river dolphins, Kogia, the franciscana, and four species of cephalorhynchids): Functional hearing estimates occur between approximately 200 Hz and 180 kHz; and • Pinnipeds in water: Phocid (true seals) functional hearing estimates occur PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 between approximately 75 Hz and 100 kHz (Hemila et al., 2006; Mulsow et al., 2011; Reichmuth et al., 2013) and otariid (seals and sea lions) functional hearing estimates occur between approximately 100 Hz to 40 kHz. As mentioned previously in this document, one marine mammal species (of the odontocete group) is likely to occur in the proposed action area. NMFS considers a species’ functional hearing group when analyzing the effects of exposure to sound on marine mammals. Vocalization and Hearing Bottlenose dolphins can typically hear within a broad frequency range of 0.04 to 160 kHz (Au, 1993; Turl, 1993). Electrophysiological experiments suggest that the bottlenose dolphin brain has a dual analysis system: One specialized for ultrasonic clicks and another for lower-frequency sounds, such as whistles (Ridgway, 2000). Scientists have reported a range of highest sensitivity between 25 and 70 kHz, with peaks in sensitivity at 25 and 50 kHz (Nachtigall et al., 2000). Research on the same individuals indicates that auditory thresholds obtained by electrophysiological methods correlate well with those obtained in behavior studies, except at lower (10 kHz) and higher (80 and 100 kHz) frequencies (Finneran and Houser, 2006). Sounds emitted by bottlenose dolphins fall into two broad categories: Pulsed sounds (including clicks and burst-pulses) and narrow-band continuous sounds (whistles), which usually are frequency modulated. Clicks have a dominant frequency range of 110 to 130 kHz and a source level of 218 to 228 dB re: 1 mPa (peak-to-peak) (Au, 1993) and 3.4 to 14.5 kHz at 125 to 173 dB re 1 mPa (peak-to-peak) (Ketten, 1998). Whistles are primarily associated with communication and can serve to identify specific individuals (i.e., signature whistles) (Caldwell and Caldwell, 1965; Janik et al., 2006). Cook et al. (2004) classified up to 52 percent of whistles produced by bottlenose dolphin groups with mother-calf pairs as signature whistles. Sound production is also influenced by group type (single or multiple individuals), habitat, and behavior (Nowacek, 2005). Bray calls (low-frequency vocalizations; majority of energy below 4 kHz), for example, are used when capturing fish, specifically sea trout (Salmo trutta) and Atlantic salmon (Salmo salar), in some regions (i.e., Moray Firth, Scotland) (Janik, 2000). Additionally, whistle production has been observed to increase while E:\FR\FM\15JYP2.SGM 15JYP2 Federal Register / Vol. 79, No. 135 / Tuesday, July 15, 2014 / Proposed Rules ´ feeding (Acevedo-Gutierrez and Stienessen, 2004; Cook et al., 2004). mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Effects of Impulsive Sources Marine mammals respond to various types of anthropogenic sounds introduced in the ocean environment. Responses are highly variable and depend on a suite of internal and external factors which in turn results in varying degrees of significance (NRC, 2003; Southall et al., 2007). Internal factors include: (1) Individual hearing sensitivity, activity pattern, and motivational and behavioral state (e.g., feeding, traveling) at the time it receives the stimulus; (2) past exposure of the animal to the noise, which may lead to habituation or sensitization; (3) individual noise tolerance; and (4) demographic factors such as age, sex, and presence of dependent offspring. External factors include: (1) Nonacoustic characteristics of the sound source (e.g., if it is moving or stationary); (2) environmental variables (e.g., substrate) which influence sound transmission; and (3) habitat characteristics and location (e.g., open ocean vs. confined area). Underwater explosive detonations send a shock wave and sound energy through the water and can release gaseous by-products, create an oscillating bubble, or cause a plume of water to shoot up from the water surface. The shock wave and accompanying noise are of most concern to marine animals. Depending on the intensity of the shock wave and size, location, and depth of the animal, an animal can be injured, killed, suffer non-lethal physical effects, experience hearing related effects with or without behavioral responses, or exhibit temporary behavioral responses or tolerance from hearing the blast sound. Generally, exposures to higher levels of impulse and pressure levels would result in greater impacts to an individual animal. Tolerance Numerous studies have shown that underwater sounds are often readily detectable by marine mammals in the water at distances of many kilometers. However, other studies have shown that marine mammals at distances more than a few kilometers away often show no apparent response to activities of various types (Miller et al., 2005). This is often true even in cases when the sounds must be readily audible to the animals based on measured received levels and the hearing sensitivity of that mammal group. Although various baleen whales, toothed whales, and (less frequently) pinnipeds have been shown VerDate Mar<15>2010 18:07 Jul 14, 2014 Jkt 232001 to react behaviorally to underwater sound from sources such as airgun pulses or vessels under some conditions, at other times, mammals of all three types have shown no overt reactions (e.g., Malme et al., 1986; Richardson et al., 1995; Madsen and Mohl, 2000; Croll et al., 2001; Jacobs and Terhune, 2002; Madsen et al., 2002; Miller et al., 2005). Masking Marine mammals use acoustic signals for a variety of purposes, which differ among species, but include communication between individuals, navigation, foraging, reproduction, and learning about their environment (Erbe and Farmer 2000, Tyack 2000). Masking, or auditory interference, generally occurs when sounds in the environment are louder than and of a similar frequency to, auditory signals an animal is trying to receive. Masking is a phenomenon that affects animals that are trying to receive acoustic information about their environment, including sounds from other members of their species, predators, prey, and sounds that allow them to orient in their environment. Masking these acoustic signals can disturb the behavior of individual animals, groups of animals, or entire populations. The extent of the masking interference depends on the spectral, temporal, and spatial relationships between the signals an animal is trying to receive and the masking noise, in addition to other factors. In humans, significant masking of tonal signals occurs as a result of exposure to noise in a narrow band of similar frequencies. As the sound level increases, though, the detection of frequencies above those of the masking stimulus decreases also. NMFS expects this principle to apply to marine mammals because of common biomechanical cochlear properties across taxa. Richardson et al. (1995) argued that the maximum radius of influence of an industrial noise (including broadband low frequency sound transmission) on a marine mammal is the distance from the source to the point at which the animal can barely hear the noise. This range applies to either the hearing sensitivity of the animal or the background noise level present. Industrial masking is most likely to affect some species’ ability to detect communication calls and natural sounds (i.e., surf noise, prey noise, etc.; Richardson et al., 1995). The echolocation calls of toothed whales are subject to masking by high frequency sound. Human data indicate low-frequency sound can mask highfrequency sounds (i.e., upward PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 41385 masking). Studies on captive odontocetes by Au et al. (1974, 1985, and 1993) indicate that some species may use various processes to reduce masking effects (e.g., adjustments in echolocation call intensity or frequency as a function of background noise conditions). There is also evidence that the directional hearing abilities of odontocetes are useful in reducing masking at the high-frequencies these cetaceans use to echolocate, but not at the low-to-moderate frequencies they use to communicate (Zaitseva et al., 1980). A study by Nachtigall and Supin (2008) showed that false killer whales adjust their hearing to compensate for ambient sounds and the intensity of returning echolocation signals. Holt et al. (2009) measured killer whale call source levels and background noise levels in the one to 40 kHz band and reported that the whales increased their call source levels by one dB SPL for every one dB SPL increase in background noise level. Similarly, another study on St. Lawrence River belugas (Delphinapterus leucas) reported a similar rate of increase in vocalization activity in response to passing vessels (Scheifele et al., 2005). Although masking is a phenomenon which may occur naturally, the introduction of loud anthropogenic sounds into the marine environment at frequencies important to marine mammals increases the severity and frequency of occurrence of masking. For example, baleen whales exposed to continuous low-frequency sound from an industrial source, would be present within a reduced acoustic area around where it could hear the calls of another whale. The components of background noise that are similar in frequency to the signal in question primarily determine the degree of masking of that signal. In general, there is little data about the degree to which marine mammals rely upon detection of sounds from conspecifics, predators, prey, or other natural sources. In the absence of specific information about the importance of detecting these natural sounds, it is not possible to predict the impact of masking on marine mammals (Richardson et al., 1995). In general, masking effects are expected to be less severe when sounds are transient than when they are continuous. While it may occur temporarily, NMFS does not expect auditory masking to result in detrimental impacts to an individual’s or population’s survival, fitness, or reproductive success. Dolphin movement is not restricted within the BT–9 or BT–11 ranges, allowing for movement out of the area to avoid masking impacts. Also, E:\FR\FM\15JYP2.SGM 15JYP2 41386 Federal Register / Vol. 79, No. 135 / Tuesday, July 15, 2014 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 masking is typically of greater concern for those marine mammals that utilize low frequency communications, such as baleen whales and, as such, is not likely to occur for marine mammals in BT–9 or BT–11. Disturbance Behavioral responses to sound are highly variable and context-specific. Many different variables can influence an animal’s perception of and response to (in both nature and magnitude) an acoustic event. An animal’s prior experience with a sound or sound source affects whether it is less likely (habituation) or more likely (sensitization) to respond to certain sounds in the future (animals can also be innately pre-disposed to respond to certain sounds in certain ways) (Southall et al., 2007). Related to the sound itself, the perceived nearness of the sound, bearing of the sound (approaching versus retreating), similarity of the sound to biologically relevant sounds in the animal’s environment (i.e., calls of predators, prey, or conspecifics), and familiarity of the sound may affect the way an animal responds to the sound (Southall et al., 2007). Individuals (of different age, gender, reproductive status, etc.) among most populations will have variable hearing capabilities, and differing behavioral sensitivities to sounds that will be affected by prior conditioning, experience, and current activities of those individuals. Often, specific acoustic features of the sound and contextual variables (i.e., proximity, duration, or recurrence of the sound or the current behavior that the marine mammal is engaged in or its prior experience), as well as entirely separate factors such as the physical presence of a nearby vessel, may be more relevant to the animal’s response than the received level alone. Because the few available studies show wide variation in response to underwater sound, it is difficult to quantify exactly how sound from the Marine Corps surface-to-surface and airto-surface training activities would affect marine mammals. Exposure of marine mammals to sound sources can result in, but is not limited to, no response or any of the following observable responses: Increased alertness; orientation or attraction to a sound source; vocal modifications; cessation of feeding; cessation of social interaction; alteration of movement or diving behavior; avoidance; habitat abandonment (temporary or permanent); and, in severe cases, panic, flight, stampede, or stranding, potentially resulting in death (Southall et al., 2007). VerDate Mar<15>2010 18:07 Jul 14, 2014 Jkt 232001 Richardson first conducted a review of marine mammal responses to anthropogenic sound in 1995. A more recent review (Nowacek et al., 2007) addresses studies conducted since 1995 and focuses on observations where researchers knew or could estimate the received sound level of the exposed marine mammal(s). The following sub-sections provide examples of behavioral responses that provide an idea of the variability in behavioral responses expected given the differential sensitivities of marine mammal species to sound and the wide range of potential acoustic sources to which a marine mammal may be exposed. Estimates of the types of behavioral responses that could occur for a given sound exposure should be determined from the literature that is available for each species or extrapolated from closely related species when no information exists. Flight Response: A flight response is a dramatic change in normal movement to a directed and rapid movement away from the perceived location of a sound source. Relatively little information on flight responses of marine mammals to anthropogenic signals exist, although observations of flight responses to the presence of predators have occurred (Connor and Heithaus, 1996). Response to Predators: Evidence suggests that at least some marine mammals have the ability to acoustically identify potential predators. For example, certain groups of killer whales, but not others, frequently target harbor seals residing in the coastal waters off British Columbia. The seals discriminate between the calls of threatening and non-threatening killer whales (Deecke et al., 2002), a capability that should increase survivorship while reducing the energy required for attending to and responding to all killer whale calls. The occurrence of masking or hearing impairment may prevent marine mammals from responding to the acoustic cues produced by their predators. Whether or not this is a possibility depends on the duration of the masking/hearing impairment and the likelihood of encountering a predator during the time that the sound impedes predator cues. Predator evasion is typically of greater concern for coastal marine mammals. Because of the low likelihood of bottlenose dolphin predators, such as killer whales, occurring within the shallow estuarine waters of Pamlico Sound, NMFS does not consider this likely to occur within the BT–9 or BT–11 target areas. Diving: Changes in dive behavior can vary widely. They may consist of increased or decreased dive times and PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 surface intervals as well as changes in the rates of ascent and descent during a dive. Variations in dive behavior may reflect interruptions in biologically significant activities (e.g., foraging) or they may be of little biological significance. Variations in dive behavior may also expose an animal to potentially harmful conditions (e.g., increasing the chance of ship-strike) or may serve as an avoidance response that enhances survivorship. The impact of a variation in diving resulting from an acoustic exposure depends on what the animal is doing at the time of the exposure and the type and magnitude of the response. Nowacek et al. (2004) reported disruptions of dive behaviors in foraging North Atlantic right whales when exposed to an alerting stimulus, an action, they noted, that could lead to an increased likelihood of ship strike. However, the whales did not respond to playbacks of either right whale social sounds or vessel noise, highlighting the importance of the sound characteristics in producing a behavioral reaction. Conversely, studies have observed IndoPacific humpback dolphins (Sousa chinensis) to dive for longer periods of time in areas where vessels were present and/or approaching (Ng and Leung, 2003). In both of these studies, one cannot decouple the influence of the sound exposure from the physical presence of a surface vessel, thus complicating interpretations of the relative contribution of each stimulus to the response. Indeed, the presence of surface vessels, their approach and speed of approach, seemed to be significant factors in the response of the Indo-Pacific humpback dolphins (Ng and Leung, 2003). Researchers did not find that the low frequency signals of the Acoustic Thermometry of Ocean Climate (ATOC) sound source affected dive times of humpback whales (Megaptera novaeangliae) in Hawaiian waters (Frankel and Clark, 2000) or overtly affected elephant seal (Mirounga angustirostris) dives (Costa et al., 2003). They did, however, produce subtle effects that varied in direction and degree among the individual seals, illustrating the equivocal nature of behavioral effects and consequent difficulty in defining and predicting them. Foraging: Disruption of feeding behavior can be difficult to correlate with anthropogenic sound exposure, so it is usually inferred by observed displacement from known foraging areas, the appearance of secondary indicators (e.g., bubble nets or sediment plumes), or changes in dive behavior. Noise from seismic surveys was not E:\FR\FM\15JYP2.SGM 15JYP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 79, No. 135 / Tuesday, July 15, 2014 / Proposed Rules found to impact the feeding behavior in western grey whales off the coast of Russia (Yazvenko et al., 2007) and sperm whales (Physeter macrocephalus) engaged in foraging dives did not abandon dives when exposed to distant signatures of seismic airguns (Madsen et al., 2006). Balaenopterid whales exposed to moderate low-frequency signals similar to the ATOC sound source demonstrated no variation in foraging activity (Croll et al., 2001), whereas five out of six North Atlantic right whales exposed to an acoustic alarm interrupted their foraging dives (Nowacek et al., 2004). Although the received sound pressure level at the animals was similar in the latter two studies, the frequency, duration, and temporal pattern of signal presentation were different. These factors, as well as differences in species sensitivity, are likely contributing factors to the differential response. A determination of whether foraging disruptions incur fitness consequences would require information on or estimates of the energetic requirements of the individuals and the relationship between prey availability, foraging effort, and success, and the life history stage of the animal. Breathing: Variations in respiration naturally vary with different behaviors and variations in respiration rate as a function of acoustic exposure could cooccur with other behavioral reactions, such as a flight response or an alteration in diving. However, respiration rates in and of themselves may be representative of annoyance or an acute stress response. Mean exhalation rates of gray whales at rest and while diving were found to be unaffected by seismic surveys conducted adjacent to the whale feeding grounds (Gailey et al., 2007). Studies with captive harbor porpoises (Phocoena phocoena) showed increased respiration rates upon introduction of acoustic alarms (Kastelein et al., 2001; Kastelein et al., 2006) and emissions for underwater data transmission (Kastelein et al., 2005). However, exposure of the same acoustic alarm to a striped dolphin under the same conditions did not elicit a response (Kastelein et al., 2006), again highlighting the importance in understanding species differences in the tolerance of underwater noise when determining the potential for impacts resulting from anthropogenic sound exposure. Social Relationships: Sound can affect social interactions between mammals via the disruption of communication signals or by the displacement of individuals. Disruption of social relationships therefore depends on the disruption of other behaviors (e.g., VerDate Mar<15>2010 18:07 Jul 14, 2014 Jkt 232001 caused avoidance, masking, etc.) and this notice’s discussion does not provide a specific overview. However, one should consider social disruptions in the context of the relationships that are affected. Long-term disruptions of mother/calf pairs or mating displays have the potential to affect the growth and survival or reproductive effort/ success of individuals, respectively. Vocalizations (also see Masking Section): Vocal changes in response to anthropogenic noise can occur across the repertoire of sound production modes used by marine mammals, such as whistling, echolocation click production, calling, and singing. Changes may result in response to a need to compete with an increase in background noise or may reflect an increased vigilance or startle response. For example, in the presence of lowfrequency active sonar, humpback whales have been observed to increase the length of their ‘‘songs’’ (Miller et al., 2000; Fristrup et al., 2003), possibly due to the overlap in frequencies between the whale song and the low-frequency active sonar. Some have suggested a similar compensatory effect for the presence of low frequency vessel noise for right whales; as researchers have observed right whales shift the frequency content of their calls upward while reducing the rate of calling in areas of increased anthropogenic noise (Parks et al., 2007). Killer whales off the northwestern coast of the United States have been observed to increase the duration of primary calls once a threshold in observing vessel density (e.g., whale watching) was reached, which has been suggested as a response to increased masking noise produced by the vessels (Foote et al., 2004). In contrast, both sperm and pilot whales potentially ceased sound production during the Heard Island feasibility test (Bowles et al., 1994), although it cannot be absolutely determined whether the inability to acoustically detect the animals was due to the cessation of sound production or the displacement of animals from the area. Avoidance: Avoidance is the displacement of an individual from an area as a result of the presence of a sound. Richardson et al., (1995) noted that avoidance reactions are the most obvious manifestations of disturbance in marine mammals. It is qualitatively different from the flight response, but also differs in the magnitude of the response (i.e., directed movement, rate of travel, etc.). Often, avoidance is temporary and animals return to the area once the noise has ceased. Longer term displacement is possible, however, which can lead to changes in abundance PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 41387 or distribution patterns of the species in the affected region if they do not become acclimated to the presence of the sound (Blackwell et al., 2004; Bejder et al., 2006; Teilmann et al., 2006). Studies have observed acute avoidance responses in captive porpoises and pinnipeds exposed to a number of different sound sources (Kastelein et al., 2001; Finneran et al., 2003; Kastelein et al., 2006a, b). Short term avoidance of seismic surveys, low frequency emissions, and acoustic deterrents has also been noted in wild populations of odontocetes (Bowles et al., 1994; Goold, 1996; 1998; Stone et al., 2000; Morton and Symonds, 2002) and to some extent in mysticetes (Gailey et al., 2007), while longer term or repetitive/chronic displacement for some dolphin groups and for manatees has been suggested to be due to the presence of chronic vessel noise (Haviland-Howell et al., 2007; Miksis-Olds et al., 2007). Haviland-Howell et al. (2007) compared sighting rates of bottlenose dolphins within the Wilmington, North Carolina stretch of the Atlantic Intracoastal Waterway (ICW) on weekends, when recreational vessel traffic was high, to weekdays, when vessel traffic was relatively minimal. The authors found that dolphins were less often sighted in the ICW during times of increased boat traffic (i.e., on weekends) and theorized that because vessel noise falls within the frequencies of dolphin communication whistles and primary energy of most fish vocalizations, the continuous vessel traffic along that stretch of the ICW could result in social and foraging impacts. However, the extent to which these impacts affect individual health and population structure is unknown. Orientation: A shift in an animal’s resting state or an attentional change via an orienting response represent behaviors that would be considered mild disruptions if it occurred alone. As previously mentioned, the responses may co-occur with other behaviors; for instance, an animal may initially orient toward a sound source, and then move away from it. Thus, one should consider any orienting response in context of other reactions that may occur. Vessel and Aircraft Presence: The marine mammals most vulnerable to vessel strikes are slow-moving and/or spend extended periods of time at the surface in order to restore oxygen levels within their tissues after deep dives (e.g., right whales, fin whales (Balaenoptera physalus), and sperm whales). Smaller marine mammals such as bottlenose dolphins (the only marine mammal known to occur in BT–9 and BT–11) are agile and move more quickly E:\FR\FM\15JYP2.SGM 15JYP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 41388 Federal Register / Vol. 79, No. 135 / Tuesday, July 15, 2014 / Proposed Rules through the water, making them less susceptible to ship strikes. NMFS and the Marine Corps are not aware of any vessel strikes of bottlenose dolphins in Pamlico Sound during training operations and both parties do not anticipate that Marine Corps vessels engaged in the specified activity would strike any marine mammals. Dolphins within Pamlico Sound are continually exposed to recreational, commercial, and military vessels. Behaviorally, marine mammals may or may not respond to the operation of vessels and associated noise. Responses to vessels vary widely among marine mammals in general, but also among different species of small cetaceans. Responses may include attraction to the vessel (Richardson et al., 1995); altering travel patterns to avoid vessels (Constantine, 2001; Nowacek et al., 2001; Lusseau, 2003, 2006); relocating to other areas (Allen and Read, 2000); cessation of feeding, resting, and social interaction (Baker et al., 1983; Bauer and Herman, 1986; Hall, 1982; Krieger and Wing, 1984; Lusseau, 2003; Constantine et al., 2004); abandoning feeding, resting, and nursing areas (Jurasz and Jurasz 1979; Dean et al., 1985; Glockner-Ferrari and Ferrari, 1985, 1990; Lusseau, 2005; Norris et al., 1985; Salden, 1988; Forest, 2001; Morton and Symonds, 2002; Courbis, 2004; Bejder, 2006); stress (Romano et al., 2004); and changes in acoustic behavior (Van Parijs and Corkeron, 2001). However, in some studies marine mammals display no reaction to vessels (Watkins, 1986; Nowacek et al., 2003) and many odontocetes show considerable tolerance to vessel traffic (Richardson et al., 1995). Dolphins may actually reduce the energetic cost of traveling by riding the bow or stern waves of vessels (Williams et al., 1992; Richardson et al., 1995). Aircraft produce noise at frequencies that are well within the frequency range of cetacean hearing and also produce visual signals such as the aircraft itself and its shadow (Richardson et al., 1995, Richardson and Wursig, 1997). A major difference between aircraft noise and noise caused by other anthropogenic sources is that the sound is generated in the air, transmitted through the water surface and then propagates underwater to the receiver, diminishing the received levels significantly below what is heard above the water’s surface. Sound transmission from air to water is greatest in a sound cone 26 degrees directly under the aircraft. There are fewer reports of reactions of odontocetes to aircraft than those of pinnipeds. Responses to aircraft include diving, slapping the water with pectoral VerDate Mar<15>2010 18:07 Jul 14, 2014 Jkt 232001 fins or tail fluke, or swimming away from the track of the aircraft (Richardson et al., 1995). The nature and degree of the response, or the lack thereof, are dependent upon nature of the flight (e.g., type of aircraft, altitude, straight vs. circular flight pattern). Wursig et al. (1998) assessed the responses of cetaceans to aerial surveys in the north central and western Gulf of Mexico using a DeHavilland Twin Otter fixed-wing airplane. The plane flew at an altitude of 229 m (751.3 ft) at 204 km/hr (126.7 mph) and maintained a minimum of 305 m (1,000 ft) straight line distance from the cetaceans. Water depth was 100 to 1,000 m (328 to 3,281 ft). Bottlenose dolphins most commonly responded by diving (48 percent), while 14 percent responded by moving away. Other species (e.g., beluga and sperm whales) show considerable variation in reactions to aircraft but diving or swimming away from the aircraft are the most common reactions to low flights (less than 500 m; 1,640 ft). Stress Response An 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. Here, 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 occurs 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 results in increases in the secretion of the glucocorticoid steroid hormones, predominantly cortisol in mammals. 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. The stress response may or may not result in a behavioral change, depending on the characteristics of the exposed animal. However, provided that a stress response occurs, NMFS assumes that PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 some contribution is made to the animal’s allostatic load. One can assume that any immediate effect of exposure that produces an injury also produce a stress response and contribute to the 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). If the animal does not perceive the sound, the acoustic source would not produce tissue effects and does not produce a stress response by any other means. Thus, NMFS assumes that the exposure does not contribute to the allostatic load. Additionally, without a stress response or auditory masking, NMFS assumes that there can be no behavioral change. Physiology-Hearing Threshold Shift In mammals, high-intensity sound may rupture the eardrum, damage the small bones in the middle ear, or over stimulate the electromechanical hair cells that convert the fluid motions caused by sound into neural impulses sent to the brain. Lower level exposures may cause a loss of hearing sensitivity, termed a threshold shift (TS) (Miller, 1974). Incidence of TS may be either permanent, referred to as permanent threshold shift (PTS), or temporary, referred to as temporary threshold shift (TTS). The amplitude, duration, frequency, and temporal pattern, and energy distribution of sound exposure all affect the amount of associated TS and the frequency range in which it occurs. As amplitude and duration of sound exposure increase, generally, so does the amount of TS and recovery time. Human non-impulsive noise exposure guidelines are based on exposures of equal energy (the same SEL) producing equal amounts of hearing impairment regardless of how the sound energy distributes over time (NIOSH, 1998). Until recently, previous marine mammal TTS studies have also generally supported this equal energy relationship (Southall et al., 2007). Three newer studies, two by Mooney et al. (2009a, 2009b) on a single bottlenose dolphin either exposed to playbacks of Navy mid-frequency active sonar or octave-band noise (4–8 kHz) and one by Kastak et al. (2007) on a single California sea lion (Zalophus californianus) exposed to airborne octave-band noise (centered at 2.5 kHz), concluded that for all noise exposure situations the equal energy relationship may not be the best indicator to predict TTS onset levels. Generally, with sound exposures of equal energy, those that were quieter (lower SPL) with longer duration induced TTS onset more than E:\FR\FM\15JYP2.SGM 15JYP2 Federal Register / Vol. 79, No. 135 / Tuesday, July 15, 2014 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 louder (higher SPL) and shorter durations (more similar to noise from the Marine Corps’ exercises at BT–9 and BT–11). For intermittent sounds, less threshold shift would occur than from a continuous exposure with the same energy (some recovery will occur between exposures) (Kryter et al., 1966; Ward, 1997). Additionally, although TTS is temporary; very prolonged exposure to sound strong enough to elicit TTS, or shorter-term exposure to sound levels well above the TTS threshold, can cause PTS, at least in terrestrial mammals (Kryter, 1985). However, these studies highlight the inherent complexity of predicting TTS onset in marine mammals, as well as the importance of considering exposure duration when assessing potential impacts. PTS consists of non-recoverable physical damage to the sound receptors in the ear, which can include total or partial deafness, or an impaired ability to hear sounds in specific frequency ranges; NMFS considers PTS as Level A harassment. TTS is recoverable, resulting from temporary, non-injurious impacts to hearing-related tissues. NMFS considers TTS as Level B harassment. Permanent Threshold Shift 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 irreversible and considered to be an injury that could result in PTS. 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. In some cases, there can be total or partial deafness across all frequencies, whereas in other cases, the animal has an impaired ability to hear sounds in specific frequency ranges. There is no empirical data for onset of PTS in any marine mammal for ethical reasons. Therefore, research must extrapolate PTS-onset based on hearing loss growth rates (i.e., rate of how quickly threshold shifts grow in relation to increases in decibel level; expressed in dB of TTS/dB of noise) from limited marine mammal TTS studies and more numerous terrestrial mammal TTS/PTS experiments. Typically, the magnitude of a threshold shift increases with increasing duration or level of exposure, VerDate Mar<15>2010 18:07 Jul 14, 2014 Jkt 232001 until it becomes asymptotic (growth rate begins to level or the upper limit of TTS; Mills et al., 1979; Clark et al., 1987; Laroche et al., 1989; Yost, 2007). One presumes that PTS is likely if reduction to the hearing threshold occurs by greater than or equal to 40 dB (i.e., 40 dB of TTS). Temporary Threshold Shift TTS is the mildest form of hearing impairment that can occur during exposure to a loud sound (Kryter, 1985). 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 as Level B Harassment, not Level A Harassment (injury); however, NMFS does not consider the onset of TTS to be the lowest level at which Level B Harassment may occur (see Behavior section). Southall et al. (2007) considers a 6 dB TTS (i.e., baseline hearing thresholds are elevated by 6 dB) sufficient to be recognized as an unequivocal deviation and thus a sufficient definition of TTS onset. Researchers testing hearing in marine mammals have experimentally induced TTS in bottlenose dolphins. For example, Finneran et al. (2002) exposed a trained captive bottlenose dolphin to a seismic watergun simulator with a single acoustic pulse. No TTS was observed in the dolphin at the highest exposure condition (peak: 207 kiloPascals (kPa; 30 pressure per square inch (psi)); peak-to-peak: 228 dB re: 1 mPa; SEL: 188 dB re: 1 mPa2-s). Schludt et al. (2000) demonstrated temporary shifts in masked hearing thresholds in five bottlenose dolphins occurring generally between 192 and 201 dB rms (192 and 201 dB SEL) after exposure to intense, non-pulse, 1-second tones at 3 kHz, 10 kHz, and 20 kHz. TTS onset occurred at mean sound exposure level of 195 dB rms (195 dB SEL). At 0.4 kHz, no subjects exhibited threshold shifts after SPL exposures of 193 dB re: 1 mPa (192 dB re: 1 mPa2-s). In the same study, at 75 kHz, one dolphin exhibited a TTS after exposure at 182 dB SPL re: 1 mPa but not at higher exposure levels. Another dolphin experienced no threshold shift after exposure to maximum SPL levels of 193 dB re: 1 mPa at the same frequency. Frequencies of explosives used at the Cherry Point Range Complex range from 1–25 kHz; the range where dolphin TTS onset occurred at 195 dB rms in the Schlundt et al. (2000) study. PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 41389 Preliminary research indicates that TTS and recovery after noise exposure are frequency dependent and that an inverse relationship exists between exposure time and sound pressure level associated with exposure (Mooney et al., 2005; Mooney, 2006). For example, Nachtigall et al. (2003) measured TTS in a bottlenose dolphin and found an average 11-dB shift following a 30minute net exposure to the octave-band noise (OBN) at a 7.5 kHz center frequency (maximum SPL of 179 dB re: 1 mPa; SEL: 212–214 dB re: 1 mPa2-s). No TTS was observed after exposure to the same duration and frequency noise with maximum SPLs of 165 and 171 dB re:1 mPa. After 50 minutes of exposure to the same 7.5 kHz frequency OBN, Natchigall et al. (2004) measured a 4–8 dB shift (max SPL: 160 dB re: 1 mPa; SEL: 193–195 dB re: 1 mPa2-s). Finneran et al. (2005) concluded that a sound exposure level of 195 dB re 1 mPa2-s is a reasonable threshold for the onset of TTS in bottlenose dolphins exposed to mid-frequency tones. Lethal Responses The Marine Corps proposes to use five types of explosive sources during its training exercises: 2.75-inch Rocket High Explosives, 5-inch Rocket High Explosives, 30 mm High Explosives, 40 mm High Explosives, and G911 grenades. The underwater explosions from these weapons 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. In general, potential impacts from explosive detonations can range from brief effects (such as short term 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). The effects of an underwater explosion on a marine mammal depend 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. Physical damage of tissues resulting from a shock wave (from an explosive detonation) constitutes 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; E:\FR\FM\15JYP2.SGM 15JYP2 41390 Federal Register / Vol. 79, No. 135 / Tuesday, July 15, 2014 / Proposed Rules 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. 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). Exposure to distance explosions could result only in behavioral changes. Researchers have measured masked underwater hearing thresholds in two bottlenose dolphins and one beluga whale before and after exposure to impulsive underwater sounds with waveforms resembling distant signatures of underwater explosions (Finneran et al., 2000). The authors found no temporary shifts in masked-hearing thresholds, defined as a 6-dB or larger increase in threshold over pre-exposure levels, had been observed at the highest impulse level generated (500 kg at 1.7 km, peak pressure 70 kPa); however, disruptions of the animals’ trained behaviors began to occur at exposures corresponding to 5 kg at 9.3 km and 5 kg at 1.5 km for the dolphins and 500 kg at 1.9 km for the beluga whale. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Direct Strike by Inert Ordnance Another potential risk to marine mammals is direct strike by ordnance, in which the ordnance physically hits an animal. While strike from an item falling through the water column is possible, the potential risk of a direct hit to an animal in the target area would be so low because objects sink slowly and most projectiles fired at targets usually hit those targets. Training Debris In addition to behavioral and physiological impacts from live fire and ammunition testing, NMFS has analyzed impacts from presence of munition debris in the water, as described in the Marine Corps’ application and its 2009 EA. These impacts include falling debris, ingestion of expended ordnance, and entanglement in parachute debris. Ingestion of marine debris by marine mammals can cause digestive tract blockages or damage the digestive VerDate Mar<15>2010 18:07 Jul 14, 2014 Jkt 232001 system (Gorzelany, 1998; Stamper et al., 2006). Debris could be either the expended ordnance or non-munition related products such as chaff and selfprotection flares. Expended ordnance would be small and sink to the bottom. Chaff is composed aluminum-coated glass fibers designed to act as a visual smoke screen; hiding the aircraft from enemy radar. Chaff also serves as a decoy for radar detection, allowing aircraft to maneuver or egress from the area. The chaff, cut into dipoles range in length from 0.3 to over 2.0 inches and its major components are silica, aluminum, and stearic acid; all naturally prevalent in the environment. Based on the dispersion characteristics of chaff, concentrations around the BTs would be low. For example, Hullar et al. (1999) calculated that the deployment of a single cartridge containing 150 grams of chaff would affect an 8-km by 12 km (4.97-mi by 7.46-mi) area; however, the concentration would only be about 5.4 grams per square nautical mile. This corresponds to fewer than 179,000 fibers per square nautical mile or fewer than 0.005 fibers per square foot. Marine Corps personnel deploy selfprotection flares to mislead or confuse heat-sensitive or heat-seeking antiaircraft systems. The flares are magnesium pellets that, when ignited, burn for a short period of time (less than 10 seconds) at 2,000 degrees Fahrenheit. Personnel use air-deployed LUU–2 high-intensity illumination flares to illuminate targets, enhancing a pilot’s ability to see targets while using night vision goggles. The LUU–2B Flare has a light output rating of 1.8 x 106 candlepower and at 1,000 feet altitude illuminates a circle on the ground of 500 meters (1,640 ft). The LUU–2 is housed in a pod or canister and is deployed by ejection. The mechanism has a timer on it that deploys the parachute and ignites the flare candle. The flare candle burns magnesium at high temperature, emitting an intense bright white light. The LUU–2 has a burn time of approximately five minutes while suspended from a parachute. The pyrotechnic candle consumes the flare housing, reducing flare weight, which in turn slows the rate of fall during the last two minutes of burn time. At candle burnout an explosive bolt fires, releasing one parachute support cable, which causes the parachute to collapse. Ingestion of debris by dolphins is not likely, as dolphins typically eat fish and other moving prey items. The Marine Corps solicited information on evidence of debris ingestion from two marine mammal veterinarians who have performed many necropsies on the PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 protected species of North Carolina’s waters. In their experience, no necropsies of bottlenose dolphins have revealed evidence of munition, parachute, or chaff ingestion (pers. comm., Drs. C. Harms and D. Rostein, November 14, 2009). However, they noted that evidence of chaff ingestion would be difficult to detect. In the chance that dolphins do ingest chaff, the filaments are so fine they would likely pass through the digestive system without complication. However, if the chaff is durable enough, it might act as a linear foreign body. In such case, the intestines bunch up on the line restricting movement of the line resulting in an obstruction. The peristalsis on an immovable thin line can cause intestinal lacerations and perforations (pers. comm., C. Harms, November 14, 2009). This is a wellknown complication in cats when they ingest thread, and it occurs occasionally with sea turtles ingesting fishing line. The longevity of chaff filaments, based upon dispersion rates, is unclear. Chaff exposed to synthetic seawater and aqueous environments in the pH range of 4 to 10 exhibited varying levels of degradation suggesting a short lifespan for the outer aluminum coating (Farrell and Siciliano, 1998). The underlying filament is a flexible silica core and composed of primarily silica dioxide. While no studies have been conducted to evaluate the effects of chaff ingestion on marine mammals, the effects are expected to be negligible based upon chaff concentration in the environment, size of fibers, and available toxicity data on fiberglass and aluminum. The likelihood of chaff ingestion is low given the following factors: That the size of chaff fibers are no more than 2 inches long, tidal flushing reduces concentration in the environment, and chaff degradation occurs quickly. Moreover, if swallowed by a marine mammal, the impacts would be negligible. In summary, there is no evidence that dolphins ingest military debris, dolphins in Pamlico Sound forage on moving prey suspended in the water column while expended munition would sink and the property and dispersion characteristics of chaff make potential for ingestion discountable. Because Pamlico Sound is a tidal body of water with continuing flushing, NMFS and the Marine Corps have determined that the presence of training debris would not have an effect on dolphins in Pamlico Sound. Although sometimes large, expended parachutes (e.g., those from the flares) are flimsy and structurally simple. The probability of entanglement with a E:\FR\FM\15JYP2.SGM 15JYP2 Federal Register / Vol. 79, No. 135 / Tuesday, July 15, 2014 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 dolphin is low. There are no known reports of live or stranded dolphins entangled in parachute gear; fishing gear is usually the culprit of reported entanglements. Anticipated Effects on Habitat Detonations of live ordnance would result in temporary changes to the water environment. Munitions could hit the targets and not explode in the water. However, because the targets are located over the water (i.e., a ship’s hull on a shoal), in water explosions could occur. An underwater explosion from these weapons could 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. However, these effects would be temporary and not expected to last more than a few seconds. Similarly, the Marine Corps does not expect any long-term impacts with regard to hazardous constituents to occur. The Marine Corps has an active Range Environmental Vulnerability Assessment (REVA) program in place to monitor impacts to habitat from its activities. One goal of REVA is to determine the horizontal and vertical concentration profiles of heavy metals, explosives constituents, perchlorate nutrients, and dissolved salts in the sediment and seawater surrounding BT– 9 and BT–11. The results of the sampling indicate that the Marine Corps did not detect explosive constituents in any sediment or water sample surrounding the bombing targets. Metals were not present above toxicity screening values. The Marine Corps detected perchlorate in a few sediment samples above the detection limit (0.21 parts per million (ppm)), but below the reporting limit (0.6 ppm). The ongoing REVA would continue to evaluate potential munitions constituent migration from operational range areas to off-range areas and Marine Corps Air Station Cherry Point. While NMFS anticipates that the specified activity may result in marine mammals avoiding certain areas due to temporary ensonification, this impact to habitat and prey resources would be temporary and reversible. The main impact associated with the proposed activity would be temporarily elevated noise levels and the associated direct effects on marine mammals, previously discussed in this notice. Based on the preceding discussion, NMFS does not anticipate that the proposed activity would have any habitat-related effects that could cause significant or long-term consequences for individual marine mammals or their populations. VerDate Mar<15>2010 18:07 Jul 14, 2014 Jkt 232001 Summary of Previous Monitoring The Marine Corps complied with the mitigation and monitoring required under the previous authorizations (2010–2013). The Marine Corps submitted final monitoring reports, which described the activities conducted and observations made. For the 2010 period, the Marine Corps did not observe any marine mammals during training exercises. The only recorded observations—which were bottlenose dolphins—occurred on two occasions by maintenance vessels engaged in target maintenance. Personnel did not observe marine mammals during range sweeps, air-toground or surface-to-surface activities (small boats), or during ad hoc monitoring via range cameras. For the 2012 period, the total amount of ordnance expended at BT–9 and BT– 11 was 301,687 and 955,528 rounds, respectively. During the period of the 2012 IHA, the Marine Corps did not fire any high explosive (live) munitions at BT–9. The Marine Corps do not permit high explosive (live) munitions within BT–11. Maintenance vessels engaged in target maintenance observed marine mammals on two occasions during the 2012 reporting period. Flight crews conducting range sweeps identified dolphins within the confines of Rattan Bay at BT–11 on two separate occasions: February 10, 2012 and August 16, 2012. When the sightings occurred during range sweeps, the Marine Corps suspended military training until the dolphins exited the mouth of the embayment, per Marine Corps Air Station Cherry Point Range standard operating procedures. There were no observations of marine mammals during the air-to surface or surface-to-surface activities (small boats), or during ad hoc monitoring via range cameras other than during follow-up on the two occasions of sightings made during the preexercise range sweeps. Proposed Mitigation In order to issue an incidental take authorization under section 101(a)(5)(A) of the MMPA, NMFS must set 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, and the availability of such species or stock for taking for certain subsistence uses (where relevant). The NDAA of 2004 amended the MMPA as it relates to military-readiness activities and the incidental take PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 41391 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. NMFS and the Marine Corps have worked to identify potential practicable and effective mitigation measures, which include 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.’’ NMFS refers the reader to Appendix B of the Marine Corps’ application for more detailed information on the proposed mitigation measures which include the following: 1. Visual Monitoring: Range operators will conduct or direct visual surveys to monitor BT–9 or BT–11 for protected species before and after each exercise. Range operation and control personnel would monitor the target area through two tower mounted safety and surveillance cameras. The remotely operated range cameras are highresolution cameras that allow viewers to see animals at the surface and breaking the surface, but not underwater. The camera system has night vision (IR) capabilities. Lenses on the camera system have a focal length of 250 mm to 1500 mm, with view angles of 2.2° × 1.65° (in wide-view) and 0.55° × 41° (in narrow-view) respectively. Using the night-time capabilities, with a narrow view, an observer could identify a 1-by1 meter target out to three kilometers. In the event that a marine mammal is sighted within 914 m (3,000 ft) of the BT–9 target area, personnel would declare the area as fouled and cease training exercises. Personnel would commence operations in BT–9 only after the animal has moved 914 m (3,000 ft) away from the target area. For BT–11, in the event that a marine mammal is sighted anywhere within the confines of Rattan Bay, personnel would declare the water-based targets within Rattan Bay as fouled and cease training exercises. Personnel would commence operations in BT–11 only after the animal has moved out of Rattan Bay. 2. Range Sweeps: The VMR–1 squadron, stationed at Marine Corps Air Station Cherry Point, includes three specially equipped HH–46D helicopters. The primary mission of these aircraft, known as PEDRO, is to provide search and rescue for downed 2nd Marine Air Wing aircrews. On-board are a pilot, copilot, crew chief, search and rescue swimmer, and a medical corpsman. Each crew member has received extensive training in search and rescue E:\FR\FM\15JYP2.SGM 15JYP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 41392 Federal Register / Vol. 79, No. 135 / Tuesday, July 15, 2014 / Proposed Rules techniques, and is therefore particularly capable at spotting objects floating in the water. The PEDRO crew would conduct a range sweep the morning of each exercise day prior to the commencement of range operations. The crew would also conduct post-exercise sweeps. The primary goal of the pre-exercise sweep is to ensure that the target area is clear of fisherman, other personnel, and protected species. Generally, the weekly monitoring events would include a maximum of five pre-exercise and four post-exercise sweeps. The maximum number of days that would elapse between pre- and post-exercise monitoring events would be approximately 3 days, and would normally occur on weekends. The sweeps would occur at 100 to 300 meters (328 to 984 ft) above the water surface, at airspeeds between 60 to 100 knots (69 to 115 mph). The path of the sweep runs down the western side of BT–11, circles around BT–9 and then continues down the eastern side of BT– 9 before leaving. The sweep typically takes 20 to 30 minutes to complete. The PEDRO crew communicates directly with range personnel and can provide immediate notification to range operators of a fouled target area due to the presence of protected species. The PEDRO aircraft would remain in the area of a marine mammal sighting until the animal clears the area, if possible or as mission requirements dictate. If the crew sights marine mammals during a range sweep, they would collect sighting data and immediately provide the information to range personnel who would take appropriate management action. Range staff would relay the sighting information to training Commanders scheduled on the range after the observation. Range personnel would enter the data into the Marine Corps’ sighting database, webinterface, or report generator. Sighting data includes the following (collected to the best of the observer’s ability): (1) Species identification; (2) group size; (3) the behavior of marine mammals (e.g., milling, travel, social, foraging); (4) location and relative distance from the bombing target; (5) date, time and visual conditions (e.g., Beaufort sea state, weather) associated with each observation; (6) direction of travel relative to the BT; and (7) duration of the observation. 3. Aircraft Cold Pass: Standard operating procedures for waterborne targets require the pilot to perform a visual check prior to ordnance delivery to ensure the target area is clear of unauthorized civilian boats and personnel, and protected species such VerDate Mar<15>2010 18:07 Jul 14, 2014 Jkt 232001 as turtles and marine mammals. This is referred to as a ‘‘cold’’ or clearing pass. Pilots requesting entry onto the BT–9 and BT–11 airspace must perform a lowaltitude, cold first pass (a pass without any release of ordnance) immediately prior to ordnance delivery at the bombing targets both day and night. Pilots would conduct the cold pass with the aircraft (helicopter or fixedwinged) flying straight and level at altitudes of 61 to 914 m (200 to 3,000 ft) over the target area. The viewing angle is approximately 15 degrees. A blind spot exists to the immediate rear of the aircraft. Based upon prevailing visibility, a pilot can see more than one mile forward upon approach. If marine mammals are present in the target area, the Range Controller may deny ordnance delivery to the target as conditions warrant. If marine mammals are not present in the target area, the Range Controller may grant ordnance delivery as conditions warrant. 4. Delay of Exercises: The Marine Corps would consider an active range as fouled and not available for use if a marine mammal is present within 914 m (3,000 ft) of the target area at BT–9 or anywhere within Rattan Bay (BT–11). Therefore, if Marine Corps personnel observe a marine mammal within 914 m (3,000 ft) of the target at BT–9 or anywhere within Rattan Bay at BT–11 during the cold pass or from range camera detection, they would delay training until the marine mammal moves beyond and on a path away from 914 m (3,000 ft) from the BT–9 target or moved out of Rattan Bay at BT–11. This mitigation applies to air-to-surface and surface-to-surface exercises day or night. 5. Vessel Operation: All vessels used during training operations would abide by NMFS’ Southeast Regional Viewing Guidelines designed to prevent harassment to marine mammals (http:// www.nmfs.noaa.gov/pr/education/ southeast/). 6. Stranding Network Coordination: The Marine Corps would coordinate with the local NMFS Stranding Coordinator to discuss 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. NMFS has carefully evaluated the Marine Corps’ proposed mitigation measures in the context of ensuring that we prescribe the means of effecting the least practicable impact on the affected marine mammal species and stocks and their habitat. NMFS’ evaluation of potential measures included consideration of the following factors in relation to one another: PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 • The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals; • The proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and • The practicability of the measure for applicant implementation. Any mitigation measure(s) prescribed by NMFS should be able 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 here: 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 biologically important time or location) exposed to training exercises that we expect 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 training exercises that we expect 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 training exercises that we expect 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. Avoidance or minimization of 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. Based on the evaluation of the Marine Corps’ proposed measures, as well as other measures considered, NMFS has determined that the proposed mitigation measures provide the means of effecting the least practicable impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of E:\FR\FM\15JYP2.SGM 15JYP2 Federal Register / Vol. 79, No. 135 / Tuesday, July 15, 2014 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 similar significance while also considering personnel safety, practicality of implementation, and the impact of effectiveness of the military readiness activity. The proposed rule comment period will afford the public an opportunity to submit recommendations, views, and/or concerns regarding this action and the proposed mitigation measures. While NMFS has determined that the proposed mitigation measures presented in this document will effect the least practicable adverse impact on the affected species or stocks and their habitat, NMFS will consider all public comments to help inform our final decision. Consequently, the proposed mitigation measures may be refined, modified, removed, or added to prior to the issuance of the final rule based on public comments received and, where appropriate, further analysis of any additional mitigation measures. Proposed Monitoring and Reporting In order to issue an Letter of Authorization for an activity, section 101(a)(5)(A) of the MMPA states that we 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 an authorization must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and our expectations of the level of taking or impacts on populations of marine mammals present in the action area. As part of its application, the Marine Corps provided a monitoring plan, similar to that in previous Incidental Harassment Authorizations issued to them from 2010–2013, for assessing impacts to marine mammals from rocket and missile launches at Marine Air Corps Station Cherry Point. The Marine Corps proposes to conduct the following monitoring activities under these regulations. However, NMFS may modify the proposed monitoring program or supplement the monitoring based on comments or new information received from the public during the public comment period. The Marine Corps’ suggested means of accomplishing the necessary monitoring and reporting includes the following: 1. Protected Species Observer Training: Operators of small boats, and other personnel monitoring for marine mammals from watercraft shall be required to take the Marine Species Awareness Training (Version 2), maintained and promoted by Department of the Navy. Pilots VerDate Mar<15>2010 18:07 Jul 14, 2014 Jkt 232001 conducting range sweeps shall be instructed on marine mammal observation techniques during routine Range Management Department briefings. This training would make personnel knowledgeable of marine mammals, protected species, and visual cues related to the presence of marine mammals and protected species. 2. Pre- and Post-Exercise Monitoring: The Marine Corps would conduct preexercise monitoring the morning of an exercise and post-exercise monitoring the morning following an exercise, unless an exercise occurs on a Friday, in which case the post-exercise sweep would take place the following Monday. Weekly monitoring events would include a maximum of five pre-exercise and four post-exercise sweeps. The maximum number of days that would elapse between pre- and post-exercise monitoring events would be approximately three days, and would normally occur on weekends. If the Marine Corps observe marine mammals during this monitoring, personnel would record sighting data identical to those collected by the PEDRO crew. 3. Long-term Monitoring: The Marine Corps has awarded Duke University Marine Lab (Duke) a contract to obtain abundance, group dynamics (e.g., group size, age census), behavior, habitat use, and acoustic data on the bottlenose dolphins which inhabit Pamlico Sound, specifically those around BT–9 and BT– 11. Duke began conducting boat-based surveys and passive acoustic monitoring of bottlenose dolphins in Pamlico Sound in 2000 (Read et al., 2003) and specifically at BT–9 and BT–11 in 2003 (Mayer, 2003). To date, boat-based surveys indicate that bottlenose dolphins may be resident to Pamlico Sound and use BT restricted areas on a frequent basis. Passive acoustic monitoring (PAM) provides more detailed insight into how dolphins use the two ranges, by monitoring for their vocalizations year-round, regardless of weather conditions or darkness. In addition to these surveys, Duke’s scientists are testing a real-time passive acoustic monitoring system at BT–9 that will allow automated detection of bottlenose dolphin whistles, providing yet another method of detecting dolphins prior to training operations. 4. Reporting: The Marine Corps will submit an annual report to NMFS on December 7 of each year. The first report will cover the time period from issuance of the Letter of Authorization through September 7, 2015. Each annual report after that time will cover the time period from September 8th through September 7th of the following year. PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 41393 The Marine Corps will submit a final comprehensive report to NMFS no later than 180 days prior to expiration of these regulations. This report must summarize the findings made in all previous reports and assess both the impacts at each of the bombing targets and the cumulative impact on bottlenose dolphin from the specified activities. The reports will summarize the type and amount of training exercises conducted, all marine mammal observations made during monitoring, and if mitigation measures were implemented. The report will also address the effectiveness of the monitoring plan in detecting marine mammals. General Notification of Injured or Dead Marine Mammals The Marine Corps will systematically observe training operations for injured or disabled marine mammals. In addition, the Marine Corps will monitor the principal marine mammal stranding networks and other media to correlate analysis of any dolphin strandings that could potentially be associated with BT–9 or BT–11 training operations. Marine Corps personnel will ensure that they notify NMFS immediately or as soon as clearance procedures allow if an injured, stranded, or dead marine mammal is found during or shortly after, and in the vicinity of, any training operations. The Marine Corps 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). In the event that an injured, stranded, or dead marine mammal is found by Marine Corps personnel that is not in the vicinity of, or found during or shortly after operations, the Marine Corps personnel will report the same information as listed above as soon as operationally feasible and clearance procedures allow. General Notification of a Ship Strike In the event of a vessel strike, at any time or place, the Marine Corps shall do the following: • Immediately report to us the species identification (if known), location (lat/ long) of the animal (or the strike if the animal has disappeared), and whether the animal is alive or dead (or unknown); • Report to us as soon as operationally feasible the size and length of the animal, an estimate of the injury status (e.g., dead, injured but E:\FR\FM\15JYP2.SGM 15JYP2 41394 Federal Register / Vol. 79, No. 135 / Tuesday, July 15, 2014 / Proposed Rules alive, injured and moving, unknown, etc.), vessel class/type and operational status; • Report to NMFS the vessel length, speed, and heading as soon as feasible; and • Provide us a photo or video, if equipment is available. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Adaptive Management NMFS may modify or augment the existing mitigation or monitoring measures (after consulting with the Marine Corps regarding the practicability of the modifications) 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 Marine Corps’ monitoring from the previous year. 2. Results from marine mammal and sound research; or 3. 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. Research The Marine Corps has funded surveys performed by Duke University researchers and provided financial support to augment surveys conducted by the NMFS Southeast Fisheries Science Center. Information and knowledge gained from the Marine Corps-funded research has contributed significantly to the understanding of bottlenose dolphin stocks, including their distribution and movement, in Pamlico Sound, NC. The Marine Corps has contracted with Duke University to develop and test a real-time passive acoustic monitoring system that will allow automated detection of bottlenose dolphin whistles (Appendix C in the application). The work has been performed in two phases. Phase I was the development of an automated signal detector (a software program) to recognize the whistles of dolphins at BT–9 and BT–11. Phase II, currently in progress, is the assembly and deployment of a prototype real-time monitoring unit on one of the towers in the BT–9 range. The success of this effort will help direct future research initiatives and activities within the Marine Corps Air Station Cherry Point Range Complex. As funding becomes available and research opportunities arise, Marine Corps Air Station Cherry Point will continue to fund and participate in studies that will enhance VerDate Mar<15>2010 18:07 Jul 14, 2014 Jkt 232001 the Marine Corps’ understanding of marine mammals in Pamlico Sound. Estimated Numbers of Marine Mammals Taken by Harassment, Injury, and Mortality NMFS’ analysis identified the lethal responses, physiological responses, and behavioral responses that could potentially result from exposure to underwater explosive detonations. In this section, we will relate the potential effects to marine mammals from underwater detonation of explosives and direct strike by ordnance to the MMPA regulatory definitions of Level A and Level B harassment, serious injury, and mortality. This section will also quantify the effects that might occur from the proposed military readiness activities in BT–9 and BT–11. Definition of Harassment The NDAA removed the ‘‘small numbers’’ and ‘‘specified geographic region’’ limitations indicated earlier in this document and amended the definition of harassment as it applies to a ‘‘military readiness activity’’ to read as follows: (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]. Level B Harassment Of the potential effects described earlier in this document, the following are the types of effects that fall into the Level B harassment category: Behavioral Harassment—Behavioral disturbance that rises to the level described in the above definition, when resulting from exposures to nonimpulsive or impulsive sound, is Level B harassment. Some of the lower level physiological stress responses discussed earlier would 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 predicting Level B harassment based on estimated behavioral responses, those takes may have a stress-related physiological component. Acoustic Masking and Communication Impairment—NMFS considers acoustic masking to be Level PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 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. Temporary Threshold Shift (TTS)—As discussed previously, TTS can affect how an animal behaves in response to the environment, including conspecifics, predators, and prey. NMFS classifies TTS (when resulting from exposure to explosives and other impulsive sources) as Level B harassment, not Level A harassment (injury). Level A Harassment Of the potential effects that were described earlier, the following are the types of effects that fall into the Level A Harassment category: Permanent Threshold Shift (PTS)— PTS (resulting either from exposure to explosive detonations) is irreversible and NMFS considers this to be an injury. Physical Disruption of Tissues Resulting from Explosive Shock Wave— NMFS classifies physical damage of tissues resulting from a shock wave (from an explosive detonation) as an injury. Ordnance Strike—NMFS considers direct strike by ordnance associated with the specified activities to be serious injury or mortality. Impulsive Sound Explosive Thresholds For the purposes of this proposed regulation, NMFS has identified three levels of take for the Marine Corps’ training exercises: Level B harassment; Level A harassment; and mortality (or serious injury leading to mortality). We present the acoustic thresholds for impulse sounds in this section. In the absence of mitigation, it is likely that the activities could kill or injure marine mammals as a result of an explosive detonation, due to the response of air cavities in the body (e.g., lungs and intestines). These effects are likely to be most severe in near surface waters where the reflected shock wave creates a region of negative pressure called cavitation. Extensive lung hemorrhage is debilitating and potentially fatal. Suffocation caused by lung hemorrhage is likely to be the major cause of marine mammal death from underwater shock waves. The estimated range for the onset of extensive lung hemorrhage to marine mammals varies depending upon the animal’s weight, with the smallest mammals having the greatest potential hazard range. Table 7 summarizes the marine mammal impulsive sound explosive E:\FR\FM\15JYP2.SGM 15JYP2 41395 Federal Register / Vol. 79, No. 135 / Tuesday, July 15, 2014 / Proposed Rules thresholds used for the Marine Corps’ acoustic impact modeling for marine mammal take in its application and 2009 EA. Several standard acoustic metrics (Urick, 1983) describe the thresholds for predicting potential physical impacts from underwater pressure waves. They are: • Total energy flux density or Sound Exposure Level (SEL). For plane waves (as assumed here), SEL is the time integral of the instantaneous intensity, where the instantaneous intensity is defined as the squared acoustic pressure divided by the characteristic impedance of sea water. Thus, SEL is the instantaneous pressure amplitude squared, summed over the duration of the signal. Standard units are dB referenced to 1 re: mPa2-s. • 1⁄3-octave SEL. This is the SEL in a 1⁄3-octave frequency band. A 1⁄3-octave band has upper and lower frequency limits with a ratio of 21:3, creating bandwidth limits of about 23 percent of center frequency. • Positive impulse. This is the time integral of the initial positive pressure pulse of an explosion or explosive-like wave form. Standard units are Pa-s or psi-ms. • Peak pressure. This is the maximum positive amplitude of a pressure wave, dependent on charge mass and range. Standard units are psi, mPa, or Bar. TABLE 7—IMPULSIVE SOUND EXPLOSIVE THRESHOLDS USED BY THE MARINE CORPS IN ITS PREVIOUS ACOUSTICS IMPACTS MODELING Criterion Criterion definition Mortality ................................ Onset of severe lung injury (mass of dolphin calf: 12.2 kg) (1% probability of mortality). 50% animals would experience ear drum rupture, 30% animals exposed sustain permanent threshold shift. Onset of slight lung injury (mass of dolphin calf: 12.2 kg). TTS and associated behavioral disruption ..................... TTS and associated behavioral disruption (dual criteria) Sub-TTS behavioral disruption (for multiple/sequential detonations only). Level A harassment (injury) Level A harassment (injury) Level B harassment ............. Level B harassment ............. Level B harassment ............. Threshold 31 psi-msec (positive impulse). 205 dB re 1 μPa2-s EFD (full spectrum energy). 13 psi-msec (positive impulse). 23 psi peak pressure 182 dB re: 1 μPa2-s EFD,* 1⁄3 octave band. 177 dB re: 1 μPa2-s EFD,* 1⁄3 octave band. * Note: In greatest 1⁄3-octave band above 10 Hz or 100 Hz. NMFS previously developed the explosive thresholds for assessing impacts of explosions on marine mammals shown in Table 7 for the shock trials of the USS Seawolf and USS Winston S. Churchill. However, at NMFS’ recommendation, the Marine Corps has updated the thresholds used for onset of temporary threshold shift (TTS; Level B Harassment) and onset of permanent threshold shift (PTS; Level A Harassment) to be consistent with the thresholds outlined in the Navy’s report titled, ‘‘Criteria and Thresholds for U.S. Navy Acoustic and Explosive Effects Analysis Technical Report,’’ which the Navy coordinated with NMFS. NMFS believes that the thresholds outlined in the Navy’s report represent the best available science. The report is available on the internet at: http://aftteis.com/ Portals/4/aftteis/Supporting%20 Technical%20Documents/Criteria_and_ Thresholds_for_US_Navy_Acoustic_ and_Explosive_Effects_Analysis-Apr_ 2012.pdf. Table 8 in this document outlines the revised acoustic thresholds used by NMFS for this proposed rulemaking when addressing noise impacts from explosives. TABLE 8—IMPULSIVE SOUND EXPLOSIVE THRESHOLDS USED BY THE MARINE CORPS IN ITS CURRENT ACOUSTICS IMPACTS MODELING Behavior Slight injury Group Behavioral mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Mid-frequency Cetaceans. 167 dB SEL ...... TTS 172 dB SEL or 23 psi. The Marine Corps conservatively modeled that all explosives would detonate at a 1.2 m (3.9 ft) water depth despite the training goal of hitting the target, resulting in an above water or on VerDate Mar<15>2010 18:07 Jul 14, 2014 Jkt 232001 187 dB SEL or 45.86 psi. Lung 104 psi .............. 39.1 M1⁄3 (1+[DRm/ 10.081])1⁄2 Pa-sec. Where: M = mass of the animals in kg. DRm = depth of the receiver (animal) in meters. land explosion. For sources detonated at shallow depths, it is frequently the case that the explosion may breech the surface with some of the acoustic energy escaping the water column. Table 9 PO 00000 Frm 00023 Fmt 4701 Mortality Gastro-intestinal tract PTS Sfmt 4702 91.4 M1⁄3 (1+DRm/ 10.081])1⁄2 Pa-sec Where: M = mass of the animals in kg DRm = depth of the receiver (animal) in meters provides the estimated maximum range or radius, from the detonation point to the various thresholds described in Table 8. E:\FR\FM\15JYP2.SGM 15JYP2 41396 Federal Register / Vol. 79, No. 135 / Tuesday, July 15, 2014 / Proposed Rules TABLE 9—DISTANCES (m) TO HARASSMENT THRESHOLDS FROM THE MARINE CORPS’ EXPLOSIVE ORDNANCE Proposed ordnance NEW (lbs) mstockstill on DSK4VPTVN1PROD with PROPOSALS2 30 mm HE .............. 40 mm HE .............. 2.75-inch Rocket .... 5-inch Rocket ......... G911 Grenade ....... Level A harassment 187 dB 0.1019 0.1199 4.8 15.0 0.5 0 0 29.3 39.8 9.6 Density Estimation The Marine Corps bases its method to estimate the number of marine mammals potentially affected using bottlenose dolphin densities (summer and winter), the amount and type of ordnance proposed, and distances to NMFS’ harassment threshold criteria. In 2000, Duke conducted a boat-based mark-recapture survey throughout the estuaries, bays and sounds of North Carolina (Read et al., 2003). The 2000 boat-based survey yielded a dolphin density of 0.183 per square kilometer (km2) (0.071 square mile (mi2)) based on an estimate of 919 dolphins for the northern inshore waters divided by an estimated 5,015 km2 (1,936 mi2) survey area. In a follow-on aerial study (July 2002– June 2003) specifically in and around BT–9 and BT–11, Duke reported one sighting in the restricted area surrounding BT–9, two sightings in proximity to BT–11, and seven sightings in waters adjacent to the bombing targets (Maher, 2003). In total, 276 bottlenose dolphins were sighted ranging in group size from two to 70 animals with mean dolphin density in BT–11 more than twice as large as the density of any of the other areas; however, the daily densities were not significantly different (Maher, 2003). The researchers calculated the estimated dolphin density at BT–9 and BT–11 based on these surveys to be 0.11 dolphins/km2, and 1.23 dolphins/km2, respectively. For the proposed regulations, the Marine Corps chose to estimate take of dolphins based on the higher density reported from the summer 2000 surveys (0.183/km2). Although the researchers conducted the aerial surveys year round and provided seasonal density estimates, the average year-round VerDate Mar<15>2010 18:07 Jul 14, 2014 Jkt 232001 Level B harassment Mortality 46 psi-msec 297.8 168.2 270.4 346.1 136.4 8.5 9.5 49.1 63.4 23.3 density from the aerial surveys is 0.0936, lower than the 0.183/km2 density chosen to calculate take for purposes of these proposed regulations. Additionally, Goodman et al. (2007) acknowledged that boat based density estimates may be more accurate than the uncorrected estimates derived from the aerial surveys. Estimated Take From Explosives at BT–9 In order to calculate take from ordnance, the Marine Corps considered the distances to which animals could be harassed along with dolphin density (0.183 km2) and based take calculations for munitions firing on 100 percent water detonation. Because the goal of training is to hit the targets and not the water, NMFS considers these take estimates based on 100 percent water detonation of munitions to be conservative. The Marine Corps’ 2009 EA (Appendix B) and its addendum to its application present a detailed discussion of the computational process for the modeling, which ultimately generates two outcomes—the zones of influence and marine mammal exposures. Briefly, the Marine Corps calculated the expected acoustic harassment takes from each source on a per in-water explosive basis using the following steps: • For the relevant environmental acoustic parameters, transmission loss (TL) estimates are computed, sampling the water column over the appropriate depth and range intervals. TL calculations are also made over nonoverlapping one-third octave bands for a wide range of frequencies. • The accumulated energy within the waters where the source is ‘‘operating’’ is sampled over a volumetric grid. At PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 172 dB 677.7 467.5 631.5 778.7 416.2 23 psi 70 64.4 197.3 233.4 103.5 167 dB 856.7 604.6 830.4 1,032.4 547.3 each grid point, the received energy from each source emission is modeled as the effective energy source level reduced by the appropriate propagation loss from the location of the source at the time of the emission to that grid point and summed. For the peak pressure or positive impulse, the appropriate metric is similarly modeled for each emission. The maximum value of that metric, over all emissions, is stored at each grid point. • The impact volume for a given threshold is estimated by summing the incremental volumes represented by each grid point for which the appropriate metric exceeds that threshold. • Finally, they estimate the number of harassments as the vector product of the animal density depth profile and the impact volume and scaled by userspecified surface animal densities. Table 10 presents the annual estimated take of bottlenose dolphins from exposure to explosive ordnance based on current thresholds. The Marine Corps has requested, and NMFS proposes to authorize the incidental take of 323 bottlenose dolphins from Level B Harassment (behavioral and TTS) annually and 33 bottlenose dolphins from Level A Harassment (PTS) annually. Table 10 also includes estimated take by mortality (or serious injury leading to mortality) as a result of exposure to impulsive sound explosions resulting in an estimate of 5 bottlenose dolphins, annually. In consideration of the effectiveness of the mitigation measures, NMFS does not expect take by serious injury or mortality related to exposure to explosive ordnance to occur. However, because the probability is not zero, the Marine Corps has requested these takes incidental to its operations. E:\FR\FM\15JYP2.SGM 15JYP2 41397 Federal Register / Vol. 79, No. 135 / Tuesday, July 15, 2014 / Proposed Rules TABLE 10—ANNUAL AND 5-YEAR ESTIMATED TAKE OF BOTTLENOSE DOLPHINS FROM EXPOSURE TO EXPLOSIVE ORDNANCE BASED ON INDICATED THRESHOLDS Serious injury Proposed ordnance Mortality Level A harassment (PTS) Level B harassment (TTS and behavior) 104 psi 187 dB SEL 30 mm HE ........................................................ 40 mm HE ........................................................ 2.75-inch Rocket .............................................. 5-inch Rocket ................................................... G911 Grenade ................................................. Annual Totals * ................................................. 0 0 0.06 0.03 0.004 1 5-Year Totals ................................................... 0.51 1.81 0.5 0.27 0.8 4 172 dB SEL 3.64 23.78 3.37 1.59 0.06 33 25 167 dB SEL 17.18 153.84 15.35 7.21 4.60 199 165 10.41 95.37 9.82 4.77 2.91 124 1,615 * Estimate rounded to the nearest whole number. Estimated Take by Direct Strike of Ordnance A potential cause of mortality (in the absence of mitigation) would be direct strike by ordnance. In the absence of mitigation, it is likely that the activities could kill or injure marine mammals as a result of ordnance hitting the animals. Table 11 presents the annual estimated take of bottlenose dolphins from direct strike by ordnance. In consideration of the effectiveness of the mitigation measures, NMFS does not expect take by serious injury or mortality related to direct strike to occur. However, because the probability is not zero, NMFS is proposing to authorize a total of five takes by mortality (or serious injury leading to mortality) related to direct strike of ordnance over the course of the 5-year regulation. TABLE 11—ANNUAL ESTIMATED TAKE OF BOTTLENOSE DOLPHINS FROM DIRECT STRIKE BY ORDNANCE Estimated annual ordnance levels Bombing target BT–9 ................................................................. BT–11 ............................................................... 1,225,815 1 451,686.24 Estimated number of strikes Strike probability 2.61 x 10¥7 9.4 x 10¥8 Annual estimate 0.32 0.042 5-Year estimate 1 0 5 0 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 1 BT–11 based on 36 percent of the total estimated ordnance levels (1,254,684) with a deployment footprint over water. NMFS rounded estimates greater than or equal to 0.10 to 1 to be more conservative. NMFS considered the modeled numbers less than 0.10 to be discountable for estimating take. The Marine Corps conducted modeling for the bombing targets to determine the total surface area needed to contain 99.99 percent of initial and ricochet impacts (95 percent confidence interval) for each aircraft and ordnance type. It then generated the surface area or footprints of weapon impact areas associated with air-to-ground ordnance delivery and estimated that at both BT– 9 and BT–11 the probability of deployed ordnance landing in the impact footprint is essentially 1.0, since the footprints were designed to contain 99.99 percent of impacts, including ricochets. However, only 36 percent of the weapon footprint for BT–11 is over water in Rattan Bay. Water depths in Rattan Bay range from 3 m (10 ft) in the deepest part of the bay to 0.5 m (1.6 ft) close to shore. The Marine Corps calculated the probability of hitting a bottlenose dolphin at the bombing targets by multiplying the dolphin’s dorsal surface area by the density estimate of dolphins in the area. It estimated that the dorsal surface area of a bottlenose dolphin was approximately 1.425 m2 (15.3 ft2) with an average length and width of 2.85 m VerDate Mar<15>2010 18:07 Jul 14, 2014 Jkt 232001 (9.3 ft) and 0.5 m (1.6 ft), respectively. Then using the density estimate of 0.183 km2, it calculated the probability of direct strike in the waters of BT–9 as 2.61 x 10¥7 and the probability of direct strike in the waters of BT–11 as 9.4 x 10¥8. The probability for BT–11 is 64 percent lower, because only 36 percent of the weapons footprint occurs over the water column. This method is the best available information for estimating the probability of ordnance striking a marine mammal in BT–9 or BT–11. Take From Vessel Presence Interactions with vessels are not a new experience for bottlenose dolphins in Pamlico Sound. Pamlico Sound is heavily used by recreational, commercial (fishing, daily ferry service, tugs, etc.), and military (including the Navy, Air Force, and Coast Guard) vessels year-round. The NMFS’ Southeast Regional Office has developed marine mammal viewing guidelines to educate the public on how to responsibly view marine mammals in the wild and avoid causing a take (http://www.nmfs.noaa.gov/pr/ education/southeast). The guidelines PO 00000 Frm 00025 Fmt 4701 Sfmt 4702 recommend that vessels should remain a minimum of 50 yards (45.7 m; 150 ft) from a dolphin, operated in a predictable manner, avoid excessive speed or sudden changes in speed or direction in the vicinity of animals, and not pursue, chase, or separate a group of animals. The Marine Corps would abide by these guidelines to the fullest extent practicable. The Marine Corps would not engage in high speed exercises if personnel detect a marine mammal within the immediate area of the bombing targets prior to training commencement and would never closely approach, chase, or pursue dolphins. Personnel monitoring on the vessels, marking success rate of target hits, and monitoring the remote camera would facilitate detection of marine mammals within the bombing targets. Based on the description of the action, the other activities regularly occurring in the area, the species that may be exposed to the activity and their observed behaviors in the presence of vessel traffic, and the implementation of measures to avoid vessel strikes, NMFS has determined that it is unlikely that the small boat maneuvers during E:\FR\FM\15JYP2.SGM 15JYP2 41398 Federal Register / Vol. 79, No. 135 / Tuesday, July 15, 2014 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 surface-to-surface maneuvers would result in the take of any marine mammals, in the form of either behavioral harassment, injury, serious injury, or mortality. based on the information in Tables 3 and 4. NMFS does not anticipate that the take totals proposed for authorization would exceed the 5-year totals indicated in Tables 10 and 11. Negligible Impact Analysis and Preliminary Determinations Negligible impact is ‘‘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’’ (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., populationlevel effects). An estimate of the number of Level B harassment takes, alone, is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be ‘‘taken’’ through behavioral harassment, NMFS must consider other factors, such as the likely nature of any responses (their intensity, duration, etc.), the context of any responses (critical reproductive time or location, migration, etc.), as well as the number and nature of estimated Level A harassment takes, the number of estimated mortalities, and effects on habitat. Pursuant to our regulations implementing the MMPA, NMFS requires an applicant 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, serious injury, and/ or death). This estimate informs the analysis that we must perform to determine whether the activity will have a ‘‘negligible impact’’ on the species or stock. In making a negligible impact determination, NMFS considers a variety of factors, including but not limited to: (1) The number of anticipated serious injuries and mortalities; (2) the number and nature of anticipated injuries (Level A harassment); (3) the number, nature, intensity, and duration of Level B harassment; and (4) the context in which the takes occur. NMFS proposes authorizing Level A and Level B harassment and serious injury and/or mortality of bottlenose dolphins over the course of the 5-year period. The Marine Corps has described its specified activities based on best estimates of the number of sorties that it proposes to conduct training exercises at BT–9 and BT–11. The exact number of ordnance expenditures may vary from year to year, but will not exceed the 5year total of ordnance expenditures Tolerance Depending on the intensity of the shock wave and size, location, and depth of the animal, an animal can exhibit tolerance from hearing the blast sound. However, tolerance effects on bottlenose dolphins within the bombing target areas are difficult to assess given their affinity for the area. Scientific boat based surveys conducted throughout Pamlico Sound conclude that dolphins use the areas around the BTs more frequently than other portions of Pamlico Sound (Maher, 2003), despite the Marine Corps actively training in a manner identical to the specified activities described here for years. Because of the low concentration of bottlenose dolphins present within the BT–9 and BT–11 areas, the incorporation of mitigation measures to lessen effects, and the short durations of the missions, NMFS expects that tolerance effects would be minimal and would affect a small number of marine mammals on an infrequent basis. VerDate Mar<15>2010 18:07 Jul 14, 2014 Jkt 232001 Masking For reasons stated previously in this notice, NMFS expects masking effects from ordnance detonation to be minimal because masking is typically of greater concern for those marine mammals that utilize low frequency communications, such as baleen whales. While it may occur temporarily, NMFS does not expect auditory masking to result in detrimental impacts to an individual’s or population’s survival, fitness, or reproductive success. Dolphin movement is not restricted within the BT–9 or BT–11 ranges, allowing for movement out of the area to avoid masking impacts. Disturbance 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 vicinity of BT–9 and BT–11 and the implementation of monitoring and mitigation measures. Moreover, NMFS does not expect animals to experience repeat exposures to the same sound source, as bottlenose dolphins would likely move away from the source after being exposed. In addition, NMFS expects that these isolated exposures, when received at distances of Level B behavioral harassment, would cause brief startle reactions or short-term behavioral modification by the animals. PO 00000 Frm 00026 Fmt 4701 Sfmt 4702 These brief reactions and behavioral changes would disappear when the exposures cease. The Level B harassment takes would likely result in dolphins being temporarily affected by bombing or gunnery exercises. In addition, NMFS may attribute takes to animals not using the area when exercises are occurring; however, this is difficult to calculate. Instead, NMFS considers if the specified activities occur during and within habitat important to vital life functions to better inform the preliminary negligible impact determination. Read et al. (2003) concluded that dolphins rarely occur in open waters in the middle of North Carolina sounds and large estuaries, but instead are concentrated in shallow water habitats along shorelines. However, no specific areas have been identified as vital reproduction or foraging habitat. NMFS and the Marine Corps have estimated that individuals of bottlenose dolphins may sustain some level of temporary 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. Although the degree of TTS depends on the received noise levels and exposure time, studies show that TTS is reversible. NMFS expects the animals’ sensitivity to recover fully in minutes to hours based on the fact that the proposed underwater detonations are small in scale and isolated. In summary, we do not expect that these levels of received impulse noise from detonations would affect annual rates or recruitment or survival. Stress Response NMFS expects short-term effects such as stress during underwater detonations, as repeated exposure to sounds from underwater explosions may cause physiological stress that could lead to long-term consequences for the individual such as reduced survival, growth, or reproductive capacity. However, the time scale of individual explosions is very limited, and the Marine Corps disperses its training exercises in space and time. Consequently, repeated exposure of individual bottlenose dolphins to sounds from underwater explosions is not likely and most acoustic effects are expected to be short-term and localized. NMFS does not expect long-term consequences for populations because the BT–9 and BT–11 areas continue to support bottlenose dolphins in spite of ongoing missions. The best available data do not suggest that there is a E:\FR\FM\15JYP2.SGM 15JYP2 Federal Register / Vol. 79, No. 135 / Tuesday, July 15, 2014 / Proposed Rules decline in the Pamlico Sound population due to these exercises. Permanent Threshold Shift NMFS believes that many marine mammals would deliberately avoid exposing themselves to the received levels of explosive ordnance necessary to induce injury by moving away from or at least modifying their path to avoid a close approach. Also, in the unlikely event that an animal approaches the bombing target at a close distance, NMFS believes that the mitigation measures (i.e., the delay/postponement of missions) would typically ensure that animals would not be exposed to injurious levels of sound. As discussed previously, the Marine Corps utilizes both aerial and passive acoustic monitoring in addition to personnel on vessels to detect marine mammals for mitigation implementation. The potential for permanent hearing impairment and injury is low due to the incorporation of the proposed mitigation measures specified in the proposed rulemaking. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Lethal Responses As stated previously, NMFS also proposes to authorize take by mortality (and serious injury leading to mortality), though there have been no recorded incidents of mortality or serious injury of marine mammals resulting from previous missions in BT–9 or BT–11 to date. Based on the Marine Corps’ compliance with previous authorizations for the same activities, NMFS expects the proposed mitigation and monitoring measures to minimize the potential risk for serious injury or mortality and does not expect these types of takes to occur. NMFS does not expect the number of takes from mortality or serious injury to increase from previous authorizations to the Marine Corps; rather, the agency is proposing to authorize these takes for the first time. The Marine Corps has conducted gunnery and bombing training exercises at BT–9 and BT–11 for several years and, to date, the monitoring reports do not indicate that dolphin injury, serious injury, or mortality has occurred as a result of its training exercises. Also, the Marine Corps has a history of notifying the NMFS stranding network when any injured or stranded animal comes ashore or is spotted by personnel on the water. The stranding responders have examined each of the stranded animals, confirming that it was unlikely that the Marine Corps’ exercises resulted in the death or injury of the stranded marine mammal. VerDate Mar<15>2010 18:07 Jul 14, 2014 Jkt 232001 Summary As described in the Affected Species section of this notice, bottlenose dolphin stock segregation is complex with stocks overlapping throughout the coastal and estuarine waters of North Carolina. It is not possible for the Marine Corps to determine to which stock any individual dolphin taken during training activities belongs, as this can only be accomplished through genetic testing. However, it is likely that many of the dolphins encountered would belong to the Northern or Southern North Carolina Estuarine System stocks. These stocks have abundance estimates of 950 and 118 animals, respectively and are not listed as threatened or endangered under the ESA. In addition, the potential for temporary or permanent hearing impairment and injury is low and through the incorporation of the proposed mitigation measures specified in this document would have the least practicable adverse impact on the affected species or stocks. The information contained in the Marine Corps’ application, the 2009 EA, and this document support NMFS’ finding that impacts will be mitigated by implementation of a conservative safety range for marine mammal exclusion in Rattan Bay, incorporation of platform and aerial survey monitoring efforts both prior to and after detonation of explosives, and delay/postponement/ cancellation of detonations whenever marine mammals or other specified protected resources are either detected within the bombing target areas or enter the bombing target areas at the time of detonation, or if weather and sea conditions preclude adequate surveillance. The Marine Corps has complied with the requirements of the previous incidental harassment authorizations issued for similar activities, and reported few observed takes of marine mammals incidental to these training exercises. Based on the best available information, NMFS proposes to authorize: Take by Level B harassment of 1,615 bottlenose dolphins; take by Level A harassment of 165 bottlenose dolphins; and take by mortality of 30 bottlenose dolphins. However, this represents an overestimate of the number of individuals harassed over the duration of the final rule and LOA because these totals represent much smaller numbers of individuals that may be harassed multiple times. There are no stocks known from the action area listed as threatened or endangered under the PO 00000 Frm 00027 Fmt 4701 Sfmt 4702 41399 ESA. Two bottlenose dolphin stocks designated as strategic under the MMPA may be affected by the Marine Corps’ activities. In this case, under the MMPA, strategic stock means a marine mammal stock for which the level of direct human-caused mortality exceeds the potential biological removal level. These include the Southern North Carolina Estuarine System and Northern North Carolina Estuarine System Stocks. NMFS does not expect the proposed action likely to result in long-term impacts such as permanent abandonment or reduction in presence with BT–9 or BT–11. No impacts are expected at the population or stock level. For this proposed rulemaking, taking into account information presented in this notice, the Marine Corps’ application and 2014 application addendum, the 2009 EA, and results from previous monitoring reports, NMFS has preliminarily determined that the total level of take incidental to authorized training exercises over the 5year effective period of the regulations would have a negligible impact on the one marine mammal species and stocks affected at BT–9 and BT–11 in Pamlico Sound, NC. Impact on Availability of Affected Species or Stock for Taking for Subsistence Uses There are no relevant subsistence uses of marine mammals implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes. Endangered Species Act (ESA) For the reasons explained above, this action will not affect any ESA-listed species or designated critical habitat under NMFS’ jurisdiction. Therefore, there is no requirement for NMFS to consult under Section 7 of the ESA on the issuance of an Authorization under section 101(a)(5)(A) of the MMPA. National Environmental Policy Act (NEPA) On February 11, 2009, the Marine Corps issued a Finding of No Significant Impact for its Environmental Assessment (EA) on MCAS Cherry Point Range Operations. Based on the analysis of the EA, the Marine Corps determined that the proposed action would not have a significant impact on the human environment. NMFS adopted the Marine Corps’ EA and signed a Finding of No Significant Impact on August 31, 2010. NMFS has reviewed the EA, the E:\FR\FM\15JYP2.SGM 15JYP2 41400 Federal Register / Vol. 79, No. 135 / Tuesday, July 15, 2014 / Proposed Rules application, and public comments, and has determined that a supplemental EA is warranted to address: (1) The proposed increases in ordnance usage; and (2) the use of revised thresholds for estimating potential impacts on marine mammals from explosives because these are substantial changes to the proposed action or new environmental impacts or concerns. The agency intends to prepare a SEA and incorporate relevant portions of the Marine Corps’ EA by reference. The 2009 EA referenced above is available for review at http:// www.nmfs.noaa.gov/pr/permits/ incidental.htm. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Request for Information NMFS requests interested persons to submit comments, information, and suggestions concerning the Marine Corps’ application and this proposed rule (see ADDRESSES). All comments will be reviewed and evaluated as NMFS prepares a final rule and makes final determinations on whether to issue the requested authorization. In addition, this notice and referenced documents provide all environmental information relevant to our proposed action for the public’s review and we solicit comments which we will also consider as we make final NEPA determinations. Classification This action has been determined to be not significant for purposes of Executive Order 12866. 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 proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. This proposed rule would apply only to the U.S. Marine Corps, a Federal agency, which is not considered to be a small governmental jurisdiction, small organization/business, as defined by the Regulatory Flexibility Act. This rulemaking authorizes Marine Corps Air Station Cherry Point Range Complex to take of marine mammals incidental to a specified activity. The specified activity defined in the proposed rule includes the use of explosive detonations, which are only used by the U.S. military, during training activities that are only conducted by the Marine Corps at BT– 9 and BT–11. Additionally, any requirements imposed by a Letter of Authorization issued pursuant to these regulations, and any monitoring or reporting requirements imposed by these regulations, will be applicable only to Marine Corps Air Station Cherry Point Range Complex. VerDate Mar<15>2010 18:07 Jul 14, 2014 Jkt 232001 This action may indirectly affect a small number of contractors providing services related to reporting the impact of the activity on marine mammals, some of whom may be small businesses, but the number involved would not be substantial. Further, since the monitoring and reporting requirements are what would lead to the need for their services, the economic impact on any contractors providing services relating to reporting impacts would be beneficial. Because the Chief Counsel for Regulation certified that this proposed rule would not have significant economic impact on a substantial number of small entities, a regulatory flexibility analysis is not required and none has been prepared. List of Subjects in 50 CFR Part 218 Exports, Fish, Imports, Indians, Labeling, Marine mammals, Penalties, Reporting and recordkeeping requirements, Seafood, Transportation. Dated: July 9, 2014. 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. 2. Subpart E is added to part 218 to read as follows: ■ Subpart E—Taking Marine Mammals Incidental to U.S. Marine Corps Training Exercises at Brant Island Bombing Target and Piney Island Bombing Range, Pamlico Sound, North Carolina Sec. 218.40 Specified activity and location of specified activities. 218.41 Effective dates. 218.42 Permissible methods of taking. 218.43 Prohibitions. 218.44 Mitigation. 218.45 Requirements for monitoring and reporting. 218.46 Applications for Letters of Authorization. 218.47 Letters of Authorization. 218.48 Renewal and Modifications of Letters of Authorization. PO 00000 Frm 00028 Fmt 4701 Sfmt 4702 Subpart E—Taking Marine Mammals Incidental to U.S. Marine Corps Training Exercises at Brant Island Bombing Target and Piney Island Bombing Range, Pamlico Sound, North Carolina § 218.40 Specified activity and location of specified activities. (a) Regulations in this subpart apply only to the U.S. Marine Corps (Marine Corps) for the incidental taking of marine mammals that occurs in the area outlined in paragraph (b) of this section and that occurs incidental to the activities described in paragraph (c) of this section. (b) The taking of marine mammals by the Marine Corps is only authorized if it occurs within the Brant Island Target (BT–9) and Piney Island Bombing Range (BT–11) bombing targets at the Marine Corps Air Station Cherry Point Range Complex located within Pamlico Sound, North Carolina (as depicted in Figure 3– 1 of the Marine Corps’ request for regulations and Letter of Authorization). The BT–9 area is a water-based bombing target and mining exercise area located approximately 52 kilometers (km) (32.3 miles (mi)) northeast of Marine Air Corps Station Cherry Point. The BT–11 area encompasses a total of 50.6 square kilometers (km2) (19.5 square miles (mi2)) on Piney Island located in Carteret County, North Carolina. (c) The taking of marine mammals by the Marine Corps is only authorized of it occurs incidental to the following activities within the annual amounts of use: (1) The level of training activities in the amounts indicated here: (i) Surface-to-Surface Exercises—up to 471 vessel-based sorties annually at BT– 9 and BT–11; and (ii) Air-to-Surface Exercises—up to 14,586 air-based based sorties annually at BT–9 and BT–11. (2) The use of the following live ordnance for Marine Corps training activities at BT–9, in the total amounts over the course of the five-year rule indicated here: (i) 30 mm HE—17,160 rounds; (ii) 40 mm HE—52,100 rounds; (iii) 2.75-inch Rocket—1,100 rounds; (iv) 5-inch Rocket—340 rounds; and (v) G911 Grenade—720 rounds. (3) The use of the following inert ordnance for Marine Corps training activities at BT–9 and BT–11, in the total amounts over the course of the five-year rule indicated here: (i) Small arms excluding .50 cal (7.62 mm)—2,628,050 rounds at BT–9 and 3,054,785 rounds at BT–11; (ii) 0.50 Caliber arms—2,842,575 rounds at BT–9 and 1,833,875 rounds at BT–11; E:\FR\FM\15JYP2.SGM 15JYP2 Federal Register / Vol. 79, No. 135 / Tuesday, July 15, 2014 / Proposed Rules (iii) Large arms (up to 25 mm)— 602,025 rounds at BT–9 and 1,201,670 rounds at BT–11; (iv) Rockets, inert (2.75-inch rocket, 2.75-inch illumination, 2.75-inch white phosphorus, 2.75-inch red phosphorus; 5-inch rocket, 5-inch illumination, 5inch white phosphorus, 5-inch red phosphorus)—4,220 rounds at BT–9 and 27,960 rounds at BT–11; (v) Bombs, inert (BDU–45 practice bomb, MK–76 practice bomb, MK–82 practice bomb, MK–83 practice bomb)— 4,055 rounds at BT–9 and 22,114 rounds at BT–11; and (vi) Pyrotechnics—4,496 rounds at BT–9 and 8,912 at BT–11. § 218.41 Effective dates. Regulations in this subpart are effective from September 8, 2014 until September 7, 2019. § 218.42 Permissible methods of taking. (a) Under a Letter of Authorization issued pursuant to §§ 216.106 and 218.47 of this chapter, the Holder of the Letter of Authorization may incidentally, but not intentionally, take marine mammals by Level A and Level B harassment, serious injury, and mortality within the area described in § 218.40(b) of this chapter, provided the activity is in compliance with all terms, conditions, and requirements of these regulations and the appropriate Letter of Authorization. (b) The activities identified in § 218.40(c) of this chapter must be conducted in a manner that minimizes, to the greatest extent practicable, any adverse impact on marine mammals and their habitat. (c) The incidental take of marine mammals under the activities identified in § 218.40(c) is limited to the following species, by the indicated method of take and the indicated number: (1) Level B Harassment: (i) Atlantic bottlenose dolphin (Tursiops truncatus)—1,615. (ii) [Reserved] (2) Level A Harassment: (i) Atlantic bottlenose dolphin—165. (ii) [Reserved] (3) Mortality: (i) Atlantic bottlenose dolphin—30. (ii) [Reserved] mstockstill on DSK4VPTVN1PROD with PROPOSALS2 § 218.43 Prohibitions. No person in connection with the activities described in § 218.40 shall: (a) Take any marine mammal not specified in § 218.42(c); (b) Take any marine mammal specified in § 218.42(c) other than by incidental take as specified in § 218.42(c)(1),(c)(2), (c)(3), and (c)(4); (c) Take a marine mammal specified in § 218.42(c) if such taking results in VerDate Mar<15>2010 18:07 Jul 14, 2014 Jkt 232001 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 these regulations or a Letter of Authorization issued under §§ 216.106 and 218.47 of this chapter. § 218.44 Mitigation. (a) The activities identified in § 218.40(c) must be conducted in a manner that minimizes, to the greatest extent practicable, adverse impacts on marine mammals and their habitats. When conducting operations identified in § 218.40(c), the mitigation measures contained in the Letter of Authorization issued under §§ 216.106 and 218.47 of this chapter must be implemented. These mitigation measures include, but are not limited to: (b) Training Exercises at BT–9 and BT–11: (1) Safety Zone: (i) The Marine Corps shall establish and monitor a safety zone for marine mammals comprising the entire Rattan Bay area at BT–11. (ii) [Reserved] (2) For training exercises, the Marine Corps shall comply with the monitoring requirements, including pre-mission and post-mission monitoring, set forth in § 218.45(4). (3) When detonating explosives: (i) If personnel observe any marine mammals within the safety zone prescribed in paragraph (b)(1) of this section, or if personnel observe marine mammals that are on a course that will put them within designated safety zone prior to surface-to-surface or air-tosurface training exercises, the Marine Corps shall delay ordnance delivery and/or explosives detonations until all marine mammals are no longer within the designated safety zone. (ii) If personnel cannot reacquire marine mammals detected in the safety zone after delaying training missions, the Marine Corps shall not commence activities until the next verified location of the animal is outside of the safety zone and the animal is moving away from the mission area. (iii) If personnel are unable to monitor the safety zone prescribed in paragraph (b)(1) of this section, the Marine Corps shall delay training exercises. (iv) If daytime weather and/or sea conditions preclude adequate surveillance for detecting marine mammals, the Marine Corps shall postpone training exercises until adequate sea conditions exist for adequate monitoring of the safety zone prescribed in paragraph (b)(1) of this section. PO 00000 Frm 00029 Fmt 4701 Sfmt 4702 41401 (4) Pre-Mission and Post-Mission Monitoring: (i) Range operators shall conduct or direct visual surveys to monitor BT–9 or BT–11 for marine mammals before and after each exercise. Range operation and control personnel shall monitor the target area through two tower-mounted safety and surveillance cameras. (ii) Range operators shall use the surveillance camera’s night vision (i.e., infrared) capabilities to monitor BT–9 or BT–11 for marine mammals during night-time exercises. (iii) For BT–11, in the event that a marine mammal is sighted anywhere within the confines of Rattan Bay, personnel shall declare the water-based targets within Rattan Bay as fouled and cease training exercises. Personnel shall commence operations in BT–11 only after the animal has moved out of Rattan Bay. (5) Range Sweeps: (i) The Marine Corps shall conduct a range sweep the morning of each exercise day prior to the commencement of range operations. (ii) The Marine Corps shall also conduct a range sweep after each exercise following the conclusion of range operations. (iii) Marine Corps Air Station personnel shall conduct the sweeps by aircraft at an altitude of 100 to 300 meters (328 to 984 ft) above the water surface, at airspeeds between 60 to100 knots. (iv) The path of the sweeps shall run down the western side of BT–11, circle around BT–9, and then continue down the eastern side of BT–9 before leaving the area. (v) The maximum number of days that shall elapse between pre- and postexercise monitoring events shall be approximately 3 days, and will normally occur on weekends. (6) Cold Pass by Aircraft: (i) For waterborne targets, the pilot must perform a low-altitude visual check immediately prior to ordnance delivery at the bombing targets both day and night to ensure the target area is clear of marine mammals. This is referred to as a ‘‘cold’’ or clearing pass. (ii) Pilots shall conduct the cold pass with the aircraft (helicopter or fixedwinged) flying straight and level at altitudes of 61 to 914 m (200 to 3,000 ft) over the target area. (iii) If marine mammals are present in the target area, the Range Controller shall deny ordnance delivery to the target as conditions warrant. If marine mammals are not present in the target area, the Range Controller may grant clearance to the pilot as conditions warrant. E:\FR\FM\15JYP2.SGM 15JYP2 41402 Federal Register / Vol. 79, No. 135 / Tuesday, July 15, 2014 / Proposed Rules (7) Vessel Operation: (i) All vessels used during training operations shall abide by NMFS’ Southeast Regional Viewing Guidelines designed to prevent harassment to marine mammals (http:// www.nmfs.noaa.gov/pr/education/ southeast/). mstockstill on DSK4VPTVN1PROD with PROPOSALS2 § 218.45 Requirements for monitoring and reporting. (a) The Holder of the Letter of Authorization issued pursuant to §§ 216.106 and 218.47 of this chapter for activities described in § 218.40(c) is required to conduct the monitoring and reporting measures specified in this section and § 218.44 and any additional monitoring measures contained in the Letter of Authorization. (b) The Holder of the Letter of Authorization is required to cooperate with the National Marine Fisheries Service, and any other Federal, state, or local agency monitoring the impacts of the activity on marine mammals. Unless specified otherwise in the Letter of Authorization, the Holder of the Letter of Authorization must notify the Director, Office of Protected Resources, National Marine Fisheries Service, or designee, by letter or telephone (301– 427–8401), at least 2 weeks prior to any modification to the activity identified in § 218.40(c) that has the potential to result in the serious injury, mortality, or Level A or Level B harassment of a marine mammal that was not identified and addressed previously. (c) Monitoring Procedures for Missions at BT–9 and BT–11: (1) The Holder of this Authorization shall: (i) Designate qualified on-site individual(s) to record the effects of training exercises on marine mammals that inhabit Pamlico Sound; (ii) Require operators of small boats, and other personnel monitoring for marine mammals from watercraft to take the Marine Species Awareness Training (Version 2), provided by the Department of the Navy. (iii) Instruct pilots conducting range sweeps on marine mammal observation techniques during routine Range Management Department briefings. This training would make personnel knowledgeable of marine mammals, protected species, and visual cues related to the presence of marine mammals and protected species. (iv) Continue the Long-Term Monitoring Program to obtain abundance, group dynamics (e.g., group size, age census), behavior, habitat use, and acoustic data on the bottlenose dolphins which inhabit Pamlico Sound, VerDate Mar<15>2010 18:07 Jul 14, 2014 Jkt 232001 specifically those around BT–9 and BT–11. (v) Continue the Passive Acoustic Monitoring (PAM) Program to provide additional insight into how dolphins use BT–9 and BT–11 and to monitor for vocalizations. (vi) Continue to refine the real-time passive acoustic monitoring system at BT–9 to allow automated detection of bottlenose dolphin whistles. (d) Reporting. (1) Unless specified otherwise in the Letter of Authorization, the Holder of the Letter of Authorization shall conduct all of the monitoring and reporting required under the LOA and shall submit an annual and comprehensive report to the Director, Office of Protected Resources, National Marine Fisheries Service by a date certain to be specified in the LOA. This report must include the following information: (i) Date and time of each training exercise; (ii) A complete description of the preexercise and post-exercise activities related to mitigating and monitoring the effects of the training exercises on marine mammal populations; (iii) Results of the monitoring program, including numbers by species/ stock of any marine mammals injured or killed as a result of the training exercises and number of marine mammals (by species, if possible) that may have been harassed due to presence within the applicable safety zone; (iv) A detailed assessment of the effectiveness of sensor-based monitoring in detecting marine mammals in the area of the training exercises; and (v) Results of coordination with coastal marine mammal stranding networks. The Marine Corps shall coordinate with the local NMFS Stranding Coordinator to discuss any unusual marine mammal behavior and any stranding, beached (live or dead), or floating marine mammals that may occur at any time during training activities or within 24 hours after completion of training. (2) The Marine Corps shall submit an annual report to NMFS on December 7 of each year. The first report shall cover the time period from issuance of the Letter of Authorization through September 7, 2015. Each annual report after that time shall cover the time period from September 8th through September 7th. (3) The final comprehensive report on all marine mammal monitoring and research conducted during the period of these regulations shall be submitted to the Director, Office of Protected Resources, National Marine Fisheries Service at least 180 days prior to PO 00000 Frm 00030 Fmt 4701 Sfmt 4702 expiration of these regulations or 180 days after the expiration of these regulations if new regulations will not be requested. (4) General Notification of Injured or Dead Marine Mammals: (i) The Marine Corps shall systematically observe training operations for injured or disabled marine mammals. In addition, the Marine Corps shall monitor the principal marine mammal stranding networks and other media to correlate analysis of any dolphin strandings that could potentially be associated with BT–9 or BT–11 training operations. (ii) Marine Corps personnel shall notify NMFS immediately, or as soon as clearance procedures allow, if an injured, stranded, or dead marine mammal is found during or shortly after, and in the vicinity of, any training operations. The Marine Corps 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). (iii) In the event that an injured, stranded, or dead marine mammal is found by Marine Corps personnel that is not in the vicinity of, or found during or shortly after operations, the Marine Corps personnel will report the same information listed above as soon as operationally feasible and clearance procedures allow. (5) General Notification of a Ship Strike: (i) In the event of a vessel strike, at any time or place, the Marine Corps shall do the following: (ii) Immediately report to NMFS the species identification (if known), location (lat/long) of the animal (or the strike if the animal has disappeared), and whether the animal is alive or dead (or unknown); (iii) Report to NMFS as soon as operationally feasible the size and length of the animal, an estimate of the injury status (e.g., dead, injured but alive, injured and moving, unknown, etc.), vessel class/type, and operational status; (iv) Report to NMFS the vessel length, speed, and heading as soon as feasible; and (v) Provide NMFS with a photo or video, if equipment is available. § 218.46 Applications for Letters of Authorization. To incidentally take marine mammals pursuant to these regulations, the U.S. citizen (as defined at § 216.103) conducting the activities identified in E:\FR\FM\15JYP2.SGM 15JYP2 Federal Register / Vol. 79, No. 135 / Tuesday, July 15, 2014 / Proposed Rules § 218.40 must apply for and obtain either an initial Letter of Authorization in accordance with §§ 216.106 and 218.47 of this chapter or a renewal under § 218.48 of this chapter. § 218.47 Letter of Authorization. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 (a) To incidentally take marine mammals pursuant to these regulations, the Marine Corps must apply for and obtain a Letter of Authorization. (b) A Letter of Authorization, unless suspended or revoked, may be effective for a period of time not to exceed the expiration date of these regulations. (c) If a Letter of Authorization expires prior to the expiration date of these regulations, the Marine Corps must apply for and obtain a renewal of the Letter of Authorization. (d) In the event of any changes to the activity or to mitigation and monitoring measures required by a Letter of Authorization, the Marine Corps must apply for and obtain a modification of the Letter of Authorization as described in § 218.48. (e) The Letter of Authorization shall set forth: (1) Permissible methods of incidental taking; (2) Means of effecting the least practicable adverse impact (i.e., mitigation) on the species, its habitat, and on the availability of the species for subsistence uses; and (3) Requirements for monitoring and reporting. (f) Issuance of the Letter of Authorization shall be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under these regulations. (g) Notice of issuance or denial of a Letter of Authorization shall be published in the Federal Register within 30 days of a determination. VerDate Mar<15>2010 18:51 Jul 14, 2014 Jkt 232001 § 218.48 Renewals and Modifications of Letters of Authorization. (a) A Letter of Authorization issued under § 216.106 and § 218.47 of this chapter for the activity identified in § 218.40 shall be renewed or modified upon request by the applicant, provided that: (1) The proposed specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for these regulations (excluding changes made pursuant to the adaptive management provision in § 218.47(c)(1) of this chapter), and (2) NMFS determines that the mitigation, monitoring, and reporting measures required by the previous Letter of Authorization under these regulations were implemented. (b) For Letter of Authorization modification or renewal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision in § 218.47(c)(1)) that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS may publish a notice of proposed Letter of Authorization in the Federal Register, including the associated analysis illustrating the change, and solicit public comment before issuing the Letter of Authorization. (c) A Letter of Authorization issued under § 216.106 and § 218.47 of this chapter for the activity identified in § 218.40 may be modified by NMFS under the following circumstances: (1) Adaptive Management. NMFS may modify (including augment) the existing PO 00000 Frm 00031 Fmt 4701 Sfmt 9990 41403 mitigation, monitoring, or reporting measures (after consulting with the Marine Corps regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring set forth in the preamble for these regulations. (i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in a Letter of Authorization include: (A) Results from the Marine Corps’ monitoring from the previous year(s); (B) Results from other marine mammal and/or sound research or studies; or (C) Any information that reveals marine mammals may have been taken in a manner, extent, or number not authorized by these regulations or subsequent Letters of Authorization. (ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS shall publish a notice of proposed Letter of Authorization in the Federal Register and solicit public comment. (2) Emergencies. If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in § 218.42(c) of this chapter, a Letter of Authorization may be modified without prior notice or opportunity for public comment. NMFS will publish a notice in the Federal Register within 30 days subsequent to the action. [FR Doc. 2014–16454 Filed 7–14–14; 8:45 am] BILLING CODE 3510–22–P E:\FR\FM\15JYP2.SGM 15JYP2

Agencies

[Federal Register Volume 79, Number 135 (Tuesday, July 15, 2014)]
[Proposed Rules]
[Pages 41373-41403]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-16454]



[[Page 41373]]

Vol. 79

Tuesday,

No. 135

July 15, 2014

Part II





Department of Commerce





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National Oceanic and Atmospheric Administration





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50 CFR Part 218





Taking and Importing Marine Mammals; Taking Marine Mammals Incidental 
to U.S. Marine Corps Training Exercises at Brant Island Bombing Target 
and Piney Island Bombing Range, USMC Cherry Point Range Complex, North 
Carolina; Proposed Rule

Federal Register / Vol. 79 , No. 135 / Tuesday, July 15, 2014 / 
Proposed Rules

[[Page 41374]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 218

[Docket No. 131119976-3976-01]
RIN 0648-BD79


Taking and Importing Marine Mammals; Taking Marine Mammals 
Incidental to U.S. Marine Corps Training Exercises at Brant Island 
Bombing Target and Piney Island Bombing Range, USMC Cherry Point Range 
Complex, North Carolina

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 a request from the U.S. Marine Corps (Marine 
Corps) for authorization to take marine mammals, specifically 
bottlenose dolphins (Tursiops truncatus), by harassment, incidental to 
training operations at the Marine Corps' Cherry Point Range Complex, 
North Carolina from September 2014 to September 2019. In this action, 
NMFS proposes to amend the regulations to establish a framework for 
authorizing the take of marine mammals incidental to the Marine Corps' 
military training operations, and to issue a subsequent Letter of 
Authorization to the Marine Corps, which would contain mitigation, 
monitoring, and reporting requirements. Per the Marine Mammal 
Protection Act (MMPA), NMFS requests comments on its proposal to issue 
regulations and a subsequent Letter of Authorization to the Marine 
Corps.

DATES: NMFS must receive comments on or before August 14, 2014.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2014-0082, by any one of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to: http://www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2014-0082, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Mail: Submit written comments to the Chief, Permits and 
Conservation Division, Office of Protected Resources, National Marine 
Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-
3225.
    Instructions: NMFS may not consider comments sent by any other 
method, to any other address or individual, or received after the end 
of the comment period. All comments received are a part of the public 
record and http://www.regulations.gov will generally post comments for 
public viewing without change. All personal identifying information 
(e.g., name, address, etc.), confidential business information, or 
otherwise sensitive or protected information voluntarily submitted by 
the commenter may be publicly accessible. NMFS will accept anonymous 
comments (enter N/A in the required fields if you wish to remain 
anonymous) and attachments to electronic comments in Microsoft Word, 
Excel, or Adobe PDF file formats only.
    The public may obtain a copy of the Marine Corps' application 
containing a list of references used in this document by visiting the 
Web page at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. The public may also view documents cited 
in this proposed rule, by appointment, during regular business hours at 
the above address. To help NMFS process and review comments more 
efficiently, please use only one of the described methods to submit 
comments.

FOR FURTHER INFORMATION CONTACT: Jeannine Cody, National Marine 
Fisheries Service, Office of Protected Resources, (301) 427-8401.

SUPPLEMENTARY INFORMATION:

Executive Summary

    This proposed regulation, under the Marine Mammal Protection Act 
(MMPA; 16 U.S.C. 1361 et seq.), establishes a framework for authorizing 
the take of marine mammals incidental to the Marine Corps' military 
training operations at the Brant Island Bombing Target (BT-9) and Piney 
Island Bombing Range (BT-11) located within the Marine Corps' Cherry 
Point Range Complex in Pamlico Sound, North Carolina.
    The Marine Corps conducts military training to meet its statutory 
responsibility to organize, train, equip, and maintain combat-ready 
forces. The Marine Corps training activities include air-to-ground 
weapons delivery, weapons firing, and water-based training occurring at 
the BT-9 and BT-11 bombing targets located within the Marine Corps' 
Cherry Point Range Complex in Pamlico Sound, North Carolina. The Marine 
Corps' training activities are military readiness activities under the 
MMPA as defined by the National Defense Authorization Act for Fiscal 
Year 2004 (NDAA; Public Law 108-136).

Purpose and Need for This Regulatory Action

    NMFS received an application from the Marine Corps requesting 5-
year regulations and one, 5-year Letter of Authorization to take marine 
mammals, specifically bottlenose dolphins (Tursiops truncatus), by 
harassment, injury, and mortality incidental to training operations at 
BT-9 and BT-11 bombing targets from September 2014 to September 2019. 
These operations, which constitute a military readiness activity, have 
the potential to cause behavioral disturbance, serious injury, and 
mortality to marine mammals.
    Section 101(a)(5)(A) of the MMPA directs the Secretary of Commerce 
(Secretary) to allow, upon request, the incidental, but not intentional 
taking of small numbers of marine mammals by U.S. citizens who engage 
in a specified activity (other than commercial fishing) within a 
specified geographical region if, after notice and public comment, the 
agency makes certain findings and issues regulations.
    This proposed regulation would establish a framework to authorize 
take of marine mammals, incidental to the Marine Corps' training 
exercises through NMFS' issuance of one, 5-year Letter of Authorization 
to the Marine Corps, which would contain mitigation, monitoring, and 
reporting requirements.

Legal Authority for the Regulatory Action

    Section 101(a)(5)(A) of the MMPA and our implementing regulations 
at 50 CFR part 216, subpart I provide the legal basis for issuing the 
5-year regulations and subsequent Letter of Authorization. In the case 
of military readiness activities, such as those proposed to be 
conducted by the Marine Corps, the specified geographical region and 
small numbers provisions of section 101(a)(5)(A) do not apply.

Summary of Major Provisions Within the Proposed Regulation

    The following provides a summary of some of the major provisions 
within this proposed rulemaking for the Marine Corps' training 
exercises at Brant Island Bombing Target-BT-9 and Piney Island Bombing 
Range-BT-11 in Pamlico Sound, North Carolina. The Marine Corps' 
adherence to the proposed mitigation, monitoring, and reporting 
measures listed below would achieve the least practicable adverse 
impact on the affected marine mammals. They include:

[[Page 41375]]

     Required pre- and post-exercise monitoring of the training 
areas to detect the presence of marine mammals during training 
exercises.
     Required monitoring of the training areas during active 
training exercises with required suspensions/delays of training 
activities if a marine mammal enters within designated mitigation 
zones.
     Required reporting of stranded or injured marine mammals 
in the vicinity of the BT-9 and BT-11 bombing targets located within 
the Marine Corps' Cherry Point Range Complex in Pamlico Sound, North 
Carolina to the NMFS Marine Mammal Stranding Network.
     Required research on a real-time acoustic monitoring 
system to automate detection of bottlenose dolphins in the training 
areas.

Cost and Benefits

    This proposed rule, specific only to the Marine Corps' training 
activities in BT-9 and BT-11 bombing targets, is not significant under 
Executive Order 12866--Regulatory Planning and Review.

Availability of Supporting Information

    In 2009, the Marine Corps prepared an Environmental Assessment (EA) 
titled, ``Environmental Assessment MCAS Cherry Point Range 
Operations,'' in accordance with the National Environmental Policy Act 
(NEPA; 42 U.S.C. 4321 et seq.) and the regulations published by the 
Council on Environmental Quality. The EA is available at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. In 2009, the 
Marine Corps issued a Finding of No Significant Impact (FONSI) for its 
activities, which is also available at the same internet address.
    After evaluating the Marine Corps' application and the 2009 EA, 
NMFS has determined that there are changes to the proposed action 
(i.e., increased ammunitions levels) and new environmental impacts 
(i.e., the use of revised thresholds for estimating potential impacts 
on marine mammals from explosives) not addressed in the 2009 document. 
Thus, NMFS has determined that a Supplemental Environmental Assessment 
(SEA) is necessary, and the agency intends to prepare a SEA 
incorporating relevant portions of the Marine Corps' EA by reference. 
Information in the Marine Corps' application including the 2014 
addendum, its 2009 EA, and this notice of proposed rulemaking 
collectively provide the environmental information related to the 
proposed regulations and subsequent 5-year Letter of Authorization for 
public review and comment. NMFS will review all comments submitted in 
response to this notice as we complete the NEPA process, including 
whether to issue a FONSI, prior to finalizing the MMPA rulemaking.

SUPPLEMENTARY INFORMATION:

Background

    Section 101(a)(5)(A) of the Marine Mammal Protection Act (MMPA; 16 
U.S.C. 1361 et seq.) directs the Secretary to allow, upon request, the 
incidental, but not intentional taking of small numbers of marine 
mammals by U.S. citizens who engage in a specified activity (other than 
commercial fishing) within a specified geographical region if, after 
notice and public review, NMFS makes certain findings and issues 
regulations.
    NMFS shall grant authorization for the incidental takings if the 
agency finds that the total taking will have a negligible impact on the 
species or stock(s), and will not have an unmitigable adverse impact on 
the availability of the species or stock(s) for subsistence uses (where 
relevant). Further, the authorization for incidental takings must set 
forth the permissible methods of taking; other means of effecting the 
least practicable adverse impact on the species or stock and its 
habitat; and requirements pertaining to the mitigation, monitoring, and 
reporting of such taking.
    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; Public Law 
108-136) removed the ``small numbers'' and ``specified geographical 
region'' limitations indicated earlier and amended the definition of 
harassment as it applies to a ``military readiness activity'' to read 
as follows: (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 January 28, 2013, NMFS received an application from the Marine 
Corps requesting a rulemaking and subsequent Letter of Authorization 
for the take of marine mammals incidental to training exercises 
conducted at Brant Island Bombing Target (BT-9) and Piney Island 
Bombing Range (BT-11) bombing targets at the USMC Cherry Point Range 
Complex located within Pamlico Sound, North Carolina.
    On March 29, 2013, per the regulations at 50 CFR 216.104(b)(1)(i), 
NMFS began the public review process by publishing a Notice of Receipt 
in the Federal Register (78 FR 19224).
    The Marine Corps plans to conduct weapons delivery training 
exercises (air-to-surface and surface-to-surface) at the two water-
based bombing targets located within the Cherry Point Range Complex in 
North Carolina.
    The proposed activities would occur between September 2014 and 
September 2019, year-round, day or night. The Marine Corps proposes to 
use small arms, large arms, bombs, rockets, grenades, and pyrotechnics 
for the air-to-surface and surface-to-surface training exercises, which 
qualify as military readiness activities.
    The following specific aspects of the proposed exercises are likely 
to result in the take of marine mammals: exposure to sound and pressure 
from underwater detonations or direct strike by ordnance. Thus, the 
Marine Corps and NMFS anticipate that take, by Level B (behavioral) and 
Level A harassment of individuals of Atlantic bottlenose dolphin 
(Tursiops truncatus) would result from the training exercises. Due to 
the small potential for serious injury and mortality, the Marine Corps 
has also requested authorization for serious injury and mortality of up 
to 30 bottlenose dolphins over the course of the 5-year regulations.
    The proposed regulations would establish a framework for 
authorizing incidental take in a future 5-year Letter of Authorization 
(LOA). The LOA, if approved, would authorize the take of Atlantic 
bottlenose dolphins (Tursiops truncatus), by Level A harassment, Level 
B (behavioral) harassment, and serious injury and mortality.
    NMFS has issued three, one-year Incidental Harassment 
Authorizations to the Marine Corps under section 101(a)(5)(D) of the 
MMPA for the conduct of similar training exercises from 2010 to 2014 
(75 FR 72807, November 26, 2010; 77 FR 87, January 3, 2012; and 78 FR 
42042, July 15, 2013). The Marine Corps' current

[[Page 41376]]

Incidental Harassment Authorization expires in 2014.
    NMFS is committed to the use of the best available science in its 
decision making. NMFS uses an adaptive, transparent process that allows 
for both timely scientific updates and public input into agency 
decisions regarding the use of acoustic research and thresholds. NMFS 
is currently in the process of re-evaluating acoustic thresholds based 
on the best available science, as well as how NMFS applies these 
thresholds under the MMPA to all activity types. This re-evaluation 
could potentially result in changes to the acoustic thresholds or their 
application as they apply to future Marine Corps training activities at 
BT-9 and BT-11. However, it is important to note that while changes in 
acoustic thresholds may affect the enumeration of ``takes,'' they do 
not necessarily change the evaluation of population level effects or 
the outcome of the negligible impact analysis. In addition, while 
acoustic criteria may also inform mitigation and monitoring decisions, 
the Marine Corps will implement an adaptive management program that 
will address new information allowing for the modification of 
mitigation and/or monitoring measures as appropriate.

Description of the Specified Activity

Overview

    The Marine Corps must meet its statutory responsibility to 
organize, train, equip, and maintain combat-ready Marine Corps forces 
at the BT-9 and BT-11 bombing targets in Pamlico Sound, North Carolina. 
The bombing targets provide unique training environments and are of 
vital importance to the readiness of Marine Corps forces.
    The types of ordnances proposed for use at the BT-9 and BT-11 
bombing targets include gun ammunition (small and large arms), rockets, 
grenades, bombs, and pyrotechnics. Training for any activity may occur 
year-round, day or night, with no seasonal restrictions.
    Active sonar is not a component of these specified training 
exercises and air-to-ground firing exercises do not impact the water; 
therefore, NMFS has not included a discussion of marine mammal 
harassment from active sonar operations within this notice.

Dates and Duration

    The proposed activities would occur between September 2014 and 
September 2019. Each type of proposed exercise may occur year-round, 
day or night. Approximately 15 percent of the activities would occur at 
night.
    NMFS proposes regulations to govern the Marine Corps' training 
activities at the BT-9 and BT-11 bombing targets within the USMC Cherry 
Point Range Complex to be effective from September 8, 2014 to September 
7, 2019. The Marine Corps is requesting a 5-year Letter of 
Authorization for these activities.

Location of Proposed Activities

    The Marine Corps administers and uses the BT-9 and BT-11 bombing 
targets (See Figure 1), located at the convergence of the Neuse River 
and Pamlico Sound, North Carolina, for the purpose of training military 
personnel in the skill of ordnance delivery by aircraft and small 
watercraft.
    The BT-9 area is a water-based bombing target and mining exercise 
area located approximately 52 kilometers (km) (32.3 miles (mi)) 
northeast of Marine Air Corps Station Cherry Point. The U.S. Army Corps 
of Engineers, Wilmington District has defined a danger zone (prohibited 
area) by a 6 statute-mile (sm) diameter boundary around BT-9 (33 CFR 
334.420). This restriction prohibits non-military vessels within the 
designated area. The BT-9 target area ranges in depth from 1.2 to 6.1 
meters (m) (3.9 to 20 feet (ft)), with the shallow areas concentrated 
along the Brandt Island Shoal. The target itself consists of three ship 
hulls grounded on Brant Island Shoals, located approximately 4.8 km 
(3.0 mi) southeast of Goose Creek Island.
    The BT-11 area encompasses a total of 50.6 square kilometers 
(km\2\) (19.5 square miles (mi\2\)) on Piney Island located in Carteret 
County, NC. The target prohibited area, at a radius of 1.8 sm, is 
roughly centered on Rattan Bay and includes approximately 9.3 km\2\ 
(3.6 mi\2\) of water and water depths range from 0.3 m (1.0 ft) along 
the shoreline to 3.1 m (10.1 ft) in the center of Rattan Bay. Water 
depths in the center of Rattan Bay range from approximately 2.4 to 3 m 
(8 to 10 ft) with bottom depths ranging from 0.3 to 1.5 m (1 to 5 ft) 
adjacent to the shoreline of Piney Island. The in-water stationary 
targets of BT-11 consist of a barge and patrol boat located in roughly 
the center of Rattan Bay. The Marine Corps also use on an intermittent 
basis for strafing at water- and land-based targets, a second danger 
zone, with an inner radius of 1.8 sm and outer radius of 2.5 sm and 
also roughly centered on Rattan Bay.
BILLING CODE 3510-22-P

[[Page 41377]]

[GRAPHIC] [TIFF OMITTED] TP15JY14.013

BILLING CODE 3510-22-C
    The Marine Corps conducts all inert and live-fire exercises at BT-9 
and BT-11 so that all ammunition and other ordnances strike and/or fall 
on the land or water-based targets or within the existing danger zones 
or water restricted areas. Military forces close danger zones to the 
public on an intermittent or full-time basis for hazardous operations 
such as target practice and ordnance firing. They also prohibit or 
limit public access to water restricted areas to provide security for 
government property and/or to protect the public from the risks of 
injury or damage that could occur from the government's use of that 
area (33 CFR 334.2). Surface danger zones are designated areas of 
rocket firing, target practice, or other hazardous operations (33 CFR 
334.420). The surface danger zone (prohibited area) for BT-9 is a 4.8 
km (3.0 mi) radius centered on the south side of Brant Island Shoal. 
The surface danger zone for BT-11 is a 2.9 km (1.8 mi) radius centered 
on a barge target in Rattan Bay. NMFS refers the reader to Section 3 of 
the Marine Corps' application for more detailed information on the 
locations and timing restrictions related to these zones.

Detailed Description of the Proposed Activities

    The following sections describe the training activities that have 
the potential to affect marine mammals present within the BT-9 and BT-
11 bombing targets. These activities fall into two categories based on 
the ordnance delivery method: (1) Surface-to-surface gunnery exercises; 
and (2) air-to-surface bombing exercises.

[[Page 41378]]

Surface-to-Surface Exercises

    Gunnery exercises are the only category of surface-to-surface 
activity currently conducted within BT-9 or BT-11. Surface-to-surface 
gunnery firing exercises typically involve Special Boat Team personnel 
firing munitions from a machine gun and 40 mm grenade launchers at a 
water-based target or throwing concussion grenades into the water 
(e.g., not at a specific target) from a small boat. The number and type 
of boats used depend on the unit using the boat and the particular 
training mission. These include: Small unit river craft, combat rubber 
raiding craft, rigid hull inflatable boats, and patrol craft. These 
boats may use inboard or outboard, diesel or gasoline engines with 
either propeller or water jet propulsion systems.
    The Marine Corps propose to use a maximum of six boats ranging in 
size from 7.3 to 26 m (24 to 85 ft) to conduct surface-to-surface 
firing activities. Each boat would travel between 0 to 20 knots (kts) 
(0 to 23 miles per hour (mph)) with an average of two vessels to 
approach and engage the intended targets. The boats typically travel in 
linear paths and do not operate erratically.
    Boat sorties occur in all seasons and the number of sorties 
conducted at each range may vary from year to year based on training 
needs and worldwide operational tempo. The majority of boat sorties at 
BT-9 originate from Marine Corps Air Station Cherry Point's Navy boat 
docks, but they may also originate from the State Port in Morehead 
City, NC, Marine Corps Base Camp Lejeune, and U.S. Coast Guard Station 
Hobucken in Pamlico Sound. The majority of boat sorties at BT-11 
originate from launch sites within the range complex.
    There is no specific schedule associated with the use of BT-9 or 
BT-11 by the small boat teams. However, the Marine Corps schedules the 
exercises for 5-day blocks with exercises at various times throughout 
the year. Variables such as deployment status, range availability, and 
completion of crew specific training requirements influence the 
exercise schedules. Table 1 in this document outlines the number of 
surface-to-surface exercises that occurred between 2011 and 2013 by 
bombing target area.

   Table 1--Counts of Surface-to-Surface Sorties Conducted in Calendar
              Years 2011, 2012, and 2013 in BT-9 and BT-11
------------------------------------------------------------------------
                       Year                            BT-9      BT-11
------------------------------------------------------------------------
2011..............................................        223        105
2012..............................................        322        106
2013..............................................         87         62
------------------------------------------------------------------------

    The direct-fire gunnery exercises (i.e., all targets are within the 
line of sight of the military personnel) at BT-9 would typically use 
7.62 millimeter (mm) or .50 caliber (cal) machine guns; 40 mm grenade 
machine guns; or G911 concussion hand grenades. The proposed exercises 
at BT-9 are usually live-fire exercises. At times Marine Corps 
personnel would use blanks (inert ordnance) so that the boat crews 
could practice ship-handling skills during training without being 
concerned with the safety requirements involved with live weapons.
    The Marine Corps estimates that it could conduct up to 
approximately 354 vessel-based sorties annually at BT-9. This estimate 
includes the highest number of sorties conducted over the past three 
years (322) plus an additional 10 percent increase (32) in sorties to 
account for interannual variation based on future training needs and 
worldwide operational tempo.
    The direct-fire gunnery exercises at BT-11 would include the use of 
small arms, large arms, bombs, rockets, and pyrotechnics. All munitions 
fired within the BT-11 range are non-explosive with the exception of 
the small explosives in the single charges. No live firing occurs at 
BT-11. The Marine Corps estimates that it could conduct up to 
approximately 117 vessel-based sorties annually at BT-11. This estimate 
includes the highest number of sorties conducted over the past three 
years (106) plus an additional 10 percent increase (11) in sorties to 
account for interannual variation based on future training needs and 
worldwide operational tempo.

Air-to-Surface Exercises

    Air-to-surface training exercises involve fixed-, rotary-, or tilt-
wing aircraft firing munitions at targets on the water's surface or on 
land (as in the case of BT-11). There are four types of air-to-surface 
activities conducted within BT-9 and BT-11. They include: Mine laying, 
bombing, gunnery, or rocket exercises. Table 2 in this document 
outlines the number of air-to-surface exercises that occurred in 2011, 
2012, and 2013 by bombing target area.

 Table 2--Counts of Air-to-Surface Exercises Conducted in Calendar Years
                 2011, 2012, and 2013 in BT-9 and BT-11
------------------------------------------------------------------------
                       Year                            BT-9      BT-11
------------------------------------------------------------------------
2011..............................................      1,554      4,251
2012..............................................        842     11,706
2013..............................................        407      1,177
------------------------------------------------------------------------

    The Marine Corps estimates that it could conduct up to 
approximately 1,709 air-based based sorties annually at BT-9. This 
estimate includes the highest number of sorties conducted over the past 
three years (1,554) plus an additional 10 percent increase (155) in 
sorties to account for interannual variation based on future training 
needs and worldwide operational tempo.
    For the BT-11 area, the Marine Corps estimates that it could 
conduct up to approximately 12,877 air-based based sorties annually. 
This estimate includes the highest number of sorties conducted over the 
past three years (11,706) plus an additional 10 percent increase 
(1,171) in sorties to account for interannual variation based on future 
training needs and worldwide operational tempo.
    The following sections provide more detail on each exercise type 
that the Marine Corps proposes to conduct over the next five years.

Mine Laying Exercises: Aircraft With Inert Shapes

    Mine laying exercises are simulations only, meaning that mine 
detonations would not occur during training. These exercises, regularly 
conducted at the BT-9 bombing target, involve the use of fixed-wing 
aircraft (F/A-18F Hornet Strike Fighter, P-3 Orion, or P-8 Poseidon) 
flying undetected to the target area using either a low- or high-
altitude tactical flight pattern. When the aircraft reaches the target 
area, the pilot would deploy a series of inert mine shapes in an 
offensive or defensive pattern into the water. The aircraft would make 
multiple passes along a pre-determined flight azimuth dropping one or 
more of the inert shapes each time.
    The mine-laying exercises at BT-9 would include the use of MK-62, 
MK-63, MK-76, BDU-45, and BDU-48 inert training shapes. Each inert 
shape weighs 500, 1000, 25, 500, and 10 pounds (lbs), respectively.

Bombing Exercises: Fixed-Wing Aircraft With Inert Bombs

    Pilots train to destroy or disable enemy ships or boats during 
bombing exercises. These exercises, conducted at BT-9 or BT-11, 
normally involve the

[[Page 41379]]

use of two to four fixed-wing aircraft (i.e., an F/A-18F Hornet Strike 
Fighter or AV-8 Harrier II) approaching the target area from an 
altitude of approximately 152 m (500 ft) up to 4,572 m (15,000 ft). 
When the aircraft reach the target area, they establish a predetermined 
racetrack pattern relative to the target and deliver the bombs. 
Participating aircraft follow the same flight path during subsequent 
target ingress, ordnance delivery, target egress, and downwind pattern. 
The Marine Corps uses this type of pattern to ensure that only one 
aircraft releases ordnance at any given time.
    The pilots deliver the bombs against targets at BT-9 or BT-11, day 
or night; the average time to complete this type of exercise is 
approximately one hour. There is no set level or pattern of amount of 
sorties conducted and there are no cluster munitions authorized for use 
during bombing exercises.
    The bombing exercises would typically use unguided MK-76, BDU-45, 
MK-82, and MK-83 inert training bombs (25, 500, 500, and 1,000 lbs, 
respectively); precision-guided munitions consisting of laser-guided 
bombs (inert); and laser-guided training rounds (inert, but contains a 
small impact-initiated spotting charge).
    For unguided munitions, the typical release altitudes are 914 m 
(3,000 ft) or above 4,572 m (15,000 ft). The typical release altitude 
for precision-guided munitions is 1.8 km (1.1 mi) or greater in 
altitude. For laser-guided munitions, onboard laser designators, laser 
designators from support aircraft, or ground support personnel use 
lasers to illuminate the certified targets. For either weapons delivery 
system, the lowest minimum altitude for ordnance delivery (inert bombs) 
would be 152 m (500 ft).

Gunnery Exercises: Aircraft With Cannons

    During air-to-surface gunnery exercises with cannons, pilots train 
to destroy or disable enemy ships, boats, or floating/near-surface 
mines from aircraft with mounted cannons equal to or larger than 20 mm. 
The Marine Corps proposes to use either fixed-wing (F/A-18F Hornet 
Strike Fighter or an AV-8 Harrier II) or rotary-wing (AH-1 Super 
Cobra), tilt-rotor (V-22), and other aircraft to conduct gunnery 
exercises at BT-9 or BT-11. During the exercise (i.e., strafing run), 
two aircraft would approach the target area from an altitude of 
approximately 914 m (3,000 ft) and within a distance of 1,219 m (4,000 
ft) from the target, begin to fire a burst of approximately 30 rounds 
of munitions before reaching an altitude of 305 m (1,000 ft) to break 
off the attack. Each aircraft would reposition for another strafing run 
until each aircraft expends its exercise ordnance of approximately 250 
rounds (approximately 8-12 passes per aircraft per exercise). This type 
of gunnery exercise would typically use a Vulcan M61A1/A2, 20 mm cannon 
or a GAU-12, 25 mm cannon. The Marine Corps proposes to use inert 
munitions for these exercises. The aircraft deliver the ordnance 
against targets at BT-9 or BT-11, day or night. The average time to 
complete this type of exercise is approximately 1 hour.

Gunnery Exercises: Aircraft With Machine Guns

    During air-to-surface gunnery exercises with machine guns, pilots 
train to destroy or disable enemy ships, boats, or floating/near-
surface mines with aircraft using mounted machine guns. The Marine 
Corps proposes to use rotary-wing (CH-52 Super Stallion, UH-1 Iroquois 
Huey, CH-46 Sea Knight, MV-22 Osprey, or H-60 Hawk series, and other 
types) aircraft to conduct gunnery exercises at BT-9 or BT-11. During 
the exercise an aircraft would fly around the target area at an 
altitude between 15 and 30 m (50 and 100 ft) in a 91 m (300 ft) 
racetrack pattern around the water-based target. Each gunner would 
expend approximately 400 rounds of 7.62 mm ammunition and 200 rounds of 
.50 cal ammunition in each exercise. The aircraft deliver the ordnance 
against the bombing targets at BT-9 or BT-11, day or night. The average 
time to complete this type of exercise is approximately one hour.

Rocket Exercises

    The Marine Corps proposes to carry out rocket exercises similar to 
the bombing exercises. Fixed- and rotary-wing aircraft crews launch 
rockets at surface maritime targets, day and night, to train for 
destroying or disabling enemy ships or boats. These operations employ 
2.75-inch and 5-inch rockets (4.8 and 15.0 lbs net explosive weight, 
respectively). Generally, personnel would deliver an average of 
approximately 14 rockets per sortie. As with the bombing exercises, 
there is no set level or pattern of amount of sorties conducted.

Munitions and Estimated Annual Expenditures

    Tables 3 and 4 in this document provide a list and expenditure 
levels of the live and inert ordnance proposed for use at BT-9 and BT-
11, respectively.
    There are several varieties of ordnance and net explosive weights 
(for live munition used at BT-9) can vary according to type. All 
practice bombs are inert but simulate the same ballistic properties of 
service type bombs. They are either solid cast metal bodies or thin 
sheet metal containers. Since practice bombs contain no explosive 
filler, a practice bomb signal cartridge (smoke) serves as a visual 
observation of weapon target impact.
    High explosive detonations convert almost instantly into a gas at 
very high pressure and temperature. Under the pressure of the gases 
generated, the weapon case expands and breaks into fragments. The air 
surrounding the casing compresses and transmits a shock (blast) wave. 
Typical initial values for a high-explosive weapon are 200 kilobars of 
pressure (1 bar = 1 atmosphere) and 5,000 degrees Celsius (9,032 
degrees Fahrenheit).
    The Marine Corps proposes to use five types of explosive sources at 
BT-9: 2.75-inch Rocket High Explosives, 5-inch Rocket High Explosives, 
30 mm High Explosives, 40 mm High Explosives, and G911 grenades. All 
munitions proposed for use at BT-11are inert (not live).

       Table 3--Type of Ordnance, Net Explosive Weight, and Proposed Levels of Annual Expenditures at BT-9
----------------------------------------------------------------------------------------------------------------
                                                                                                     Proposed
               Proposed ordnance                       Net explosive weight in pounds (lbs)          number of
                                                                                                      rounds
----------------------------------------------------------------------------------------------------------------
Small arms excluding .50 cal (7.62 mm).........  N/A, inert.....................................         525,610
.50 cal........................................  N/A, inert.....................................         568,515
Large arms--live (30 mm).......................  0.1019.........................................           3,432
Large arms--live (40 mm).......................  0.1199.........................................          10,420
Large arms--inert (20, 25, 30, and 40 mm)......  N/A............................................         120,405
Rockets--live (2.75-inch)......................  4.8............................................             220
Rockets--live (5-inch).........................  15.0...........................................              68

[[Page 41380]]

 
Rockets--inert (2.75-inch rocket, 2.75-inch      N/A............................................             844
 illumination, 2.75-inch white phosphorus, 2.75-
 inch red phosphorus; 5-inch rocket, 5-inch
 illumination, 5-inch white phosphorus, 5-inch
 red phosphorus).
Grenades--live (G911)..........................  0.5............................................             144
Bombs--inert (BDU-45 practice bomb, MK-76        0.083800-0.1676 signal cartridge only..........           4,460
 practice bomb, MK-82 practice bomb, MK-83
 practice bomb).
Pyrotechnics--inert (chaff, LUU-2, self-         N/A............................................           4,496
 protection flares).
----------------------------------------------------------------------------------------------------------------


      Table 4--Type of Ordnance, Net Explosive Weight, and Proposed Levels of Annual Expenditures at BT-11
----------------------------------------------------------------------------------------------------------------
                                                                                                     Proposed
               Proposed ordnance                       Net explosive weight in pounds (lbs)          number of
                                                                                                      rounds
----------------------------------------------------------------------------------------------------------------
Small arms excluding .50 cal (7.62 mm).........  N/A, inert.....................................         610,957
.50 cal........................................  N/A, inert.....................................         366,775
Large arms--inert (20, 25, 30, and 40 mm)......  N/A............................................         240,334
Rockets--inert (2.75-inch rocket, 2.75-inch      N/A............................................           5,592
 illumination, 2.75-inch white phosphorus, 2.75-
 inch red phosphorus; 5-inch rocket, 5-inch
 illumination, 5-inch white phosphorus, 5-inch
 red phosphorus).
Bombs--inert (BDU-45 practice bomb, MK-76        0.083800-0.1676 signal cartridge only..........          22,114
 practice bomb, MK-82 practice bomb, MK-83
 practice bomb).
Pyrotechnics--inert (chaff, LUU-2, self-         N/A............................................           8,912
 protection flares, SMD SAMS).
----------------------------------------------------------------------------------------------------------------

    The Marine Corps estimates that the 5-year level of expended 
ordnance at BT-9 and BT-11 (both surface-to-surface and air-to-surface) 
would be approximately 6,193,070 and 6,273,420 rounds, respectively. 
The approximate annual quantities of ordnance listed in Tables 3 and 4 
represent conservative figures, meaning that the volume of each type of 
inert and explosive ordnance proposed for is the largest number that 
personnel could expend annually.
    The Marine Corps realizes that its evolving training programs, 
linked to real world events, necessitate flexibility regarding the 
amounts of ordnance used in air-to-surface and surface-to-surface 
exercises. Thus, this proposed rule would account for inter-annual 
variability in ordnance expenditures over the course of the five years. 
NMFS refers the reader to Table 2-2 of the Marine Corps' application 
for a complete list of munitions authorized for use at the Marine Corps 
Air Station Cherry Point Range Complex.

Acoustic Characteristics of Ordnance

    Noise generated by live or inert ordnance impacting the water and 
associated detonations from live ordnance may present some risk to 
bottlenose dolphins. Estimates of the noise fields generated in water 
by the impact of non-explosive (inert) ordnance indicate that the 
energy radiated is about one to two percent of the total kinetic energy 
of the impact. This energy level (and likely peak pressure levels) is 
well below the thresholds for predicting potential physical impacts 
from underwater pressure waves, because the firing of an inert 
projectile does not create an explosion even at 1 m (3 ft) from the 
impact. Therefore, NMFS and the Marine Corps do not expect that the 
noise generated by the in-water impact of inert ordnance would have the 
potential to take of marine mammals within the action area. Thus, NMFS 
will not consider the acoustic impacts of inert ordnance further in 
this document.
    However, live ordnance detonated underwater introduces loud, 
impulsive broadband (producing sound over a wide frequency band) sounds 
into the marine environment and does have the potential to take marine 
mammals. Broadband explosives produce significant acoustic energy 
across several frequency decades of bandwidth. Propagation loss is 
sufficiently sensitive to frequency as to require model estimates at 
several frequencies over such a wide band. Three source parameters 
influence the effect of an explosive: The weight of the explosive 
material, the type of explosive material, and the detonation depth. The 
net explosive weight (or NEW) accounts for the first two parameters. 
The ordnance's NEW is the weight of trinitrotoluene (TNT) that produces 
an equivalent explosive power. The detonation depth of an explosive is 
particularly important due to a propagation effect known as surface-
image interference. For sources located near the sea surface, a 
distinct interference pattern arises from the coherent sum of the two 
paths that differ only by a single reflection from the pressure-release 
surface. As the source depth and/or the source frequency decreases, 
these two paths increasingly and destructively interfere with each 
other, reaching total cancellation at the surface (barring surface-
reflection scattering loss).
    For this proposed rulemaking, the Marine Corps proposes to use five 
types of explosive sources: 2.75-inch rocket high explosives, 5-inch 
rocket high explosives, 30 mm high explosives, 40 mm high explosives, 
and G911 grenades.
    The firing sequence for some of the munitions consists of a number 
of rapid bursts, often lasting a second or less. The maximum firing 
time is 10 to 15 second bursts. Due to the tight spacing in time, the 
Marine Corps considers each burst as a single detonation. For the 
energy metrics, the Marine Corps

[[Page 41381]]

considers the impact area of a burst using a source energy spectrum 
that is the source spectrum for a single detonation scaled by the 
number of rounds in a burst. For the pressure metrics, the impact area 
for a burst is the same as the impact area of a single round. For all 
metrics, the cumulative impact area of an event consisting of a certain 
number of bursts is the product of the impact area of a single burst 
and the number of bursts, as would be the case if the bursts are 
sufficiently spaced in time or location as to insure that each burst is 
affecting a different set of marine wildlife.
    Table 5 provides a comparison of the live explosive ordnance 
proposed for use during 2014 through 2019. Table 5 lists the number of 
rounds per burst by ordnance; the acoustic characteristics of the 
proposed ordnance including the peak one-third octave (OTO) source 
level (SL); and the approximate frequency at which the peak occurs.

        Table 5--Proposed Levels of Ordnance, Net Explosive Weight, Source Levels, and Center Frequencies
----------------------------------------------------------------------------------------------------------------
                                                                                                      Center
                                                                                                   frequency of
           Proposed ordnance               New (lbs)      Rounds per    Source level of peak \1/    peak \1/3\
                                                             burst      3\ octave (decibels, dB)  octave (hertz,
                                                                                                        Hz)
----------------------------------------------------------------------------------------------------------------
Large arms--live (30 mm)..............          0.1019              30  207 dB re: 1[mu]Pa......           4,032
Large arms--live (40 mm)..............          0.1199               5  208 dB re: 1[mu]Pa......           4,032
Rockets--live (2.75-inch).............             4.8               1  224 dB re: 1[mu]Pa......           1,270
Rockets--live (5-inch)................            15.0               1  229 dB re: 1[mu]Pa......           1,008
Grenades--live (G911).................             0.5               1  214 dB re: 1[mu]Pa......           2,540
----------------------------------------------------------------------------------------------------------------

    For ordnance detonated at shallow depths, often the source level of 
the explosion may breech the surface with some of the acoustic energy 
escaping the water column. The source levels presented in Table 5 do 
not account for possible venting of the acoustic energy through the 
water surface which the Marine Corps expects to be minor because of the 
low source net explosive weights and detonation depth of 1.2 m (3.9 
ft).

Description of Marine Mammals in the Area of the Specified Activity

    There is one species of marine mammal with possible or confirmed 
occurrence in the area of the specified activity: The Atlantic 
bottlenose dolphin (Tursiops truncatus) which routinely frequents 
Pamlico Sound (Lefebvre et al, 2001; DoN 2003). The region of influence 
for the proposed project includes estuarine waters, and does not 
include offshore waters.
    Four out of the seven designated coastal stocks for bottlenose 
dolphins may occur within the proposed activity area. They include: The 
Western North Atlantic Northern Migratory Coastal; Western North 
Atlantic Southern Migratory; Northern North Carolina Estuarine System; 
and the Southern North Carolina Estuarine System stocks. Dolphins 
encountered at BT-9 and BT-11 would most likely belong to the Northern 
North Carolina Estuarine System and the Southern North Carolina 
Estuarine System stocks.
    Table 6 in this document presents information on the abundance, 
status, and distribution of the four stocks. The reader may also refer 
to Section 4 of the Marine Corps' application, their 2014 application 
addendum, and Chapter 3 of the Marine Corps' EA for more detailed 
information. NMFS summarizes this information and presents updated 
information on the species' abundance, status, and distribution from 
the 2013 NMFS Stock Assessment Report. The publication is available at 
http://www.nmfs.noaa.gov/pr/sars/pdf/ao2013.pdf.

 Table 6--General Information on the Species/Stocks That Could Potentially Occur in the Proposed Activity Areas,
                                                2014 Through 2019
----------------------------------------------------------------------------------------------------------------
                                   Regulatory status     Stock/species      Occurrence and
    Bottlenose dolphin stocks             1 2              abundance             range              Season
----------------------------------------------------------------------------------------------------------------
Western North Atlantic Northern   MMPA--D ESA--NL...  11,548 (CV = 0.36)  Occasional Coastal  Winter.
 Migratory Coastal (NMC).
Western North Atlantic Southern   MMPA--D ESA--NL...  9,173 (CV = 0.46).  Occasional Coastal  Winter.
 Migratory (SMC).
Northern North Carolina           MMPA--S ESA--NL...  950 (CV = 0.23)...  Common Estuarine..  Summer-Fall.
 Estuarine System (NNCES).
Southern North Carolina           MMPA--S ESA--NL...  118 (CV = 0.19)...  Common Estuarine..  Late Summer.
 Estuarine System (SNCES).
----------------------------------------------------------------------------------------------------------------
\1\ MMPA: D = Depleted, Strategic Stock; S = Strategic Stock only; NC = Not Classified.
\2\ ESA: NL = Not listed.

Bottlenose Dolphins

    The bottlenose dolphin is one of the most well-known species of 
marine mammals. They have a robust body and a short, thick beak. Their 
coloration ranges from light gray to black with lighter coloration on 
the belly. Inshore and offshore individuals vary in color and size. 
Inshore animals are smaller and lighter in color, while offshore 
animals are larger, darker in coloration and have smaller flippers.
    Bottlenose dolphins range in lengths from 1.8 to 3.8 m (6.0 to 12.5 
ft) with males slightly larger than females. Adults weight from 300-
1,400 lbs (136-635 kg). Generally, the species has a lifespan of 40 to 
45 years for males and more than 50 years for females.
    Sexual maturity varies by population and ranges from five to 13 
years for females and 9 to 14 years for males. Calves, born after a 12-
month gestation period, generally wean at 18 to 20 months. On average, 
calving occurs every 3 to 6 years.

[[Page 41382]]

    Bottlenose dolphins are generalists and feed on a variety of prey 
items ``endemic'' to their habitat, foraging individually and 
cooperatively. Like other dolphins, bottlenose dolphins use high 
frequency echolocation to locate and capture prey. Coastal animals prey 
on benthic invertebrates and fish, and offshore animals feed on pelagic 
squid and fish.
    Western North Atlantic Northern Migratory Coastal (NMC) Stock: This 
stock is not listed as threatened or endangered under the Endangered 
Species Act (ESA; 16 U.S.C. 1531 et seq.); however, it is categorized 
as depleted (and thus strategic) under the MMPA. The best available 
abundance estimate for the NMC stock is 11,548 animals (Waring et al., 
2014). However, there is insufficient data to determine the population 
trends for this stock.
    Based on aerial survey data, tag-telemetry studies, photo-
identification data, and genetic studies, the NMC stock of bottlenose 
dolphins occur along the North Carolina coast and as far north as Long 
Island, New York (CETAP, 1982; Kenney, 1990; Garrison et al., 2003; 
Waring et al., 2014). During summer months (July-September), this stock 
occupies coastal waters from the shoreline to approximately the 25-m 
(82-ft) isobath between the Chesapeake Bay mouth and Long Island, New 
York. During the winter months (January-March), the stock moves south 
to waters of North Carolina and occupies coastal waters from Cape 
Lookout, North Carolina to the Virginia-North Carolina border (Barco 
and Swingle, 1996; Waring et al., 2014).
    Western North Atlantic Southern Migratory Coastal (SMC) Stock: This 
stock is not listed as threatened or endangered under the Endangered 
Species Act (ESA; 16 U.S.C. 1531 et seq.); however, it is categorized 
as depleted (and thus strategic) under the MMPA. The best available 
abundance estimate for the SMC stock is 9,173 animals (Waring et al., 
2014). However, there is insufficient data to determine the population 
trends for this stock.
    Based on tag-telemetry studies, the SMC stock of bottlenose 
dolphins occur in coastal waters between southern North Carolina and 
Georgia, but the stock's migratory movements and spatial distribution 
are the most poorly understood of the coastal stocks (Waring et al., 
2014). During the fall (October-December), this stock occupies waters 
of southern North Carolina (South of Cape Lookout) where it overlaps 
spatially with the Southern North Carolina Estuarine System stock in 
coastal waters. In winter months (January-March), the SMC stock moves 
as far south as northern Florida where it overlaps spatially with the 
South Carolina/Georgia and Northern Florida Coastal stocks. In spring 
(April-June), the stock moves north to waters of North Carolina where 
it overlaps with the Southern North Carolina Estuarine System stock and 
the Northern North Carolina Estuarine System stock. In summer months 
(July-September), the stock most likely occupies coastal waters north 
of Cape Lookout, North Carolina, to the eastern shore of Virginia 
(Waring et al., 2014).
    Northern North Carolina Estuarine System (NNCES) Stock: This stock 
is not listed as threatened or endangered under the Endangered Species 
Act (ESA; 16 U.S.C. 1531 et seq.); however, it is categorized as 
strategic only (not depleted) under the MMPA. The best available 
abundance estimate for the NNCES stock is 950 animals (Waring et al., 
2014). However, there is insufficient data to determine the population 
trends for this stock.
    Based on photo-identification studies, the NNCES stock of 
bottlenose dolphins occur in the estuarine waters of Pamlico Sound 
(Waring et al., 2014). The ranging patterns of bottlenose dolphins in 
those studies support the presence of a group of dolphins within these 
waters that are distinct from both dolphins occupying estuarine and 
coastal waters in southern North Carolina and animals in the NMC and 
SMC stocks that occupy coastal waters of North Carolina at certain 
times of the year (Read et al., 2003; NMFS, 2001; NMFS, unpublished 
data).
    During summer and fall months (July-October), the NNCES stock 
occupies waters of Pamlico Sound and nearshore coastal (less than 1 km 
(3,280 ft) from shore) and estuarine waters of central and northern 
North Carolina to Virginia Beach and the lower Chesapeake Bay (Waring 
et al., 2014). It likely overlaps with animals from the SMC stock in 
coastal waters during these months. During late fall and winter 
(November-March), the NNCES stock moves out of estuarine waters and 
occupies nearshore coastal waters between the New River and Cape 
Hatteras (Waring et al., 2013). It overlaps with the NMC stock during 
this period, particularly between Cape Lookout and Cape Hatteras. It 
appears that the region near Cape Lookout including Bogue Sound and 
Core Sound is an area of overlap with the Southern North Carolina 
Estuarine System stock during late summer (Waring et al., 2014).
    Southern North Carolina Estuarine System (SNCES) Stock: This stock 
is not listed as threatened or endangered under the Endangered Species 
Act (ESA; 16 U.S.C. 1531 et seq.); however, it is categorized as 
strategic only (not depleted) under the MMPA. The best available 
abundance estimate for the SNCES stock is 118 animals (Waring et al., 
2014). However, there is insufficient data to determine the population 
trends for this stock.
    Based on photo-identification studies, the SNCES stock of common 
bottlenose dolphins occupies estuarine and nearshore coastal waters 
(less than 3 km from shore) between the Little River Inlet Estuary, 
including the estuary and the New River (Waring et al., 2014). During 
summer and fall months (July-October), the SNCES stock occupies 
estuarine and nearshore coastal waters (less than 3 km (1.7 mi) from 
shore) between the North Carolina-South Carolina border and Core Sound. 
It likely overlaps with the NNCES stock in the northern portion of its 
range (i.e., southern Pamlico Sound) during late summer (Waring et al., 
2014). During late fall through spring, the SNCES stock moves south to 
waters near Cape Fear. In coastal waters, it overlaps with the SMC 
stock during this period (Waring et al., 2014).

Bottlenose Dolphin Distribution Within BT-9 and BT-11

    In Pamlico Sound, bottlenose dolphins concentrate in shallow water 
habitats along shorelines, and few, if any, individuals are present in 
the central portions of the sounds (Gannon, 2003; Read et al., 2003a, 
2003b). The dolphins utilize shallow habitats, such as tributary creeks 
and the edges of the Neuse River, where the bottom depth is less than 
3.5 m (11.5 ft) (Gannon, 2003). Fine-scale distribution of dolphins 
seems to relate to the presence of topography or vertical structure, 
such as the steeply-sloping bottom near the shore and oyster reefs. 
Bottlenose dolphins may use these features to facilitate prey capture 
(Gannon, 2003).
    In 2000, Duke University Marine Lab (Duke) conducted a boat-based 
mark-recapture survey throughout the estuaries, bays and sounds of 
North Carolina (Read et al., 2003). The 2000 boat-based survey produced 
an estimate of 919 dolphins for the northern inshore waters divided by 
an estimated 5,015 km\2\ (1,936 mi\2\) survey area.
    In a follow-on aerial study (July, 2002 to June, 2003) specifically 
in and around BT-9 and BT-11, Duke reported one sighting in the 
restricted area surrounding BT-9, two sightings in proximity to BT-11, 
and seven sightings in waters adjacent to the bombing targets (Maher, 
2003). In total, the study observed 276 bottlenose dolphins ranging in 
group size from two to 70 animals.

[[Page 41383]]

    Results of a passive acoustic monitoring effort conducted from 
2006-2007 by Duke University researchers detected that dolphin 
vocalizations in the BT-11 vicinity were higher in August and September 
than vocalization detection at BT-9 (Read et al., 2007). Additionally, 
detected vocalizations of dolphins were more frequent at night for the 
BT-9 area and during early morning hours at BT-11 (Read et al., 2007).

Other Marine Mammals in the Proposed Action Area

    The endangered West Indian manatee (Trichechus manatus), under the 
jurisdiction of the U.S. Fish and Wildlife Service, rarely occurs in 
the area (Lefebvre et al, 2001; DoN 2003). The U.S. Fish and Wildlife 
Service has jurisdiction over the manatee; therefore, NMFS would not 
include a proposed authorization to harass manatees and does not 
discuss this species further in this notice.
    Based on the best available information, there are no observations 
of the endangered North Atlantic right whale (Eubalaena glacialis) or 
other large whales within Pamlico Sound or in vicinity of the bombing 
targets (Kenney, 2006). No suitable habitat exists for these species in 
the shallow Pamlico Sound or bombing target vicinity; therefore, 
because NMFS does not expect these species to be present in the action 
area, there is no potential for take (NMFS, 2012). Thus, NMFS will not 
discuss these species further in this notice.
    Other dolphins, such as Atlantic spotted (Stenella frontalis) and 
the common dolphin (Delphinus delphis), have an oceanic distribution 
and do not venture into the shallow, brackish waters of southern 
Pamlico Sound. Because these species are rare and/or have extralimital 
occurrence in the bombing target area, NMFS will not discuss these 
species further in this notice.

Potential Effects of the Specified Activity on Marine Mammals

    This section includes a summary and discussion of the ways that the 
types of stressors associated with the specified activity (e.g., 
ordnance detonation and vessel movement) could impact marine mammals 
(via observations or scientific studies). This discussion may also 
include reactions that NMFS considers to rise to the level of a take 
and those that NMFS does not consider to rise to the level of a take 
(for example, with acoustics, we may include a discussion of studies 
that showed animals not reacting at all to sound or exhibiting barely 
measurable avoidance).
    NMFS will provide an overview of potential effects of the Marine 
Corps' activities in this section and describe the effects of similar 
activities that have occurred in the past. This section does not 
consider the specific manner in which the Marine Corps would carry out 
the proposed activity, what mitigation measures the Marine Corps would 
implement, and how either of those would shape the anticipated impacts 
from this specific activity. The ``Estimated Take by Incidental 
Harassment, Injury, or Mortality'' section later in this document will 
include a quantitative analysis of the number of individuals that NMFS 
expects the Marine Corps to take during this activity. The ``Negligible 
Impact Analysis'' section will include the analysis of how this 
specific activity would impact marine mammals. NMFS will consider the 
content of the following sections: (1) Estimated Take by Incidental 
Harassment, Injury, or Mortality; (2) Proposed Mitigation; and (3) 
Anticipated Effects on Marine Mammal Habitat, to draw conclusions 
regarding the likely impacts of this activity on the reproductive 
success or survivorship of individuals--and from that consideration--
the likely impacts of this activity on the affected marine mammal 
populations or stocks.
    The surface-to-surface and air-to-surface training exercises 
proposed for taking of marine mammals under these regulations have the 
potential to take marine mammals by exposing them to impulsive noise 
and pressure waves generated by live ordnance detonation at or near the 
surface of the water. Exposure to energy or pressure resulting from 
these detonations could result in non-lethal injury (Level A 
harassment), disturbance (Level B harassment), serious injury, and/or 
mortality. In addition, NMFS also considered the potential for 
harassment from vessel and aircraft operations. NMFS outlines the 
analysis of potential impacts from these factors, including 
consideration of the Marine Corps' analysis in its application, in the 
following sections. The potential effects of impulsive sound sources 
(underwater detonations) from the proposed training activities may 
include one or more of the following: tolerance, masking, disturbance, 
hearing threshold shift, stress response, and lethal responses.

Brief Background on Sound

    An understanding of the basic properties of underwater sound is 
necessary to comprehend many of the concepts and analyses presented in 
this document. NMFS presents a summary in this section.
    Sound is a wave of pressure variations propagating through a medium 
(e.g., water). Pressure variations occur by compressing and relaxing 
the medium. Sound measurements exist in two forms: Intensity and 
pressure. Acoustic intensity is the average rate of energy transmitted 
through a unit area in a specified direction (expressed in watts per 
square meter (W/m\2\)). Acoustic intensity is rarely measured directly, 
but rather from ratios of pressures; the standard reference pressure 
for underwater sound is 1 microPascal ([mu]Pa); for airborne sound, the 
standard reference pressure is 20 [mu]Pa (Richardson et al., 1995).
    Acousticians have adopted a logarithmic scale for sound 
intensities, denoted in decibels (dB). Decibel measurements represent 
the ratio between a measured pressure value and a reference pressure 
value (in this case 1 [mu]Pa or, for airborne sound, 20 [mu]Pa). The 
logarithmic nature of the scale means that each 10-dB increase is a 
ten-fold increase in acoustic power (and a 20-dB increase is then a 
100-fold increase in power; and a 30-dB increase is a 1,000-fold 
increase in power). A ten-fold increase in acoustic power does not mean 
that the listener perceives sound as being ten times louder, however. 
Humans perceive a 10-dB increase in sound level as a doubling of 
loudness, and a 10-dB decrease in sound level as a halving of loudness. 
The term ``sound pressure level'' implies a decibel measure and a 
reference pressure that is the denominator of the ratio. Throughout 
this document, NMFS uses 1 microPascal (denoted re: 1[mu]Pa) as a 
standard reference pressure unless noted otherwise.
    It is important to note that decibel values underwater and decibel 
values in air are not the same (different reference pressures and 
densities/sound speeds between media) and one should not directly 
compare the two mediums. Because of the different densities of air and 
water and the different decibel standards (i.e., reference pressures) 
in air and water, a sound with the same level in air and in water would 
be approximately 62 dB lower in air. Thus, a sound that measures 160 dB 
(re: 1 [mu]Pa) underwater would have the same approximate effective 
level as a sound that is 98 dB (re: 20 [mu]Pa) in air.
    Sound frequency is measured in cycles per second, or Hertz 
(abbreviated Hz), and is analogous to musical pitch; high-pitched 
sounds contain high frequencies and low-pitched sounds contain low 
frequencies. Natural sounds in the ocean span a huge range of 
frequencies: From earthquake noise at 5 Hz to harbor porpoise clicks at 
150,000

[[Page 41384]]

Hz (150 kHz). These sounds are so low or so high in pitch that humans 
cannot even hear them; acousticians call these infrasonic (typically 
below 20 Hz) and ultrasonic (typically above 20,000 Hz) sounds, 
respectively. A single sound may consist of many different frequencies 
together. Acousticians characterize sounds made up of only a small 
range of frequencies as ``narrowband'' and sounds with a broad range of 
frequencies as ``broadband''; explosives are an example of a broadband 
sound source.

Acoustic Impacts

    The effects of noise on marine mammals are highly variable. 
Categorization of these effects includes the following (based on 
Richardson et al., 1995):
     The sound may be too weak to be heard at the location of 
the animal (i.e., lower than the prevailing ambient noise level, the 
hearing threshold of the animal at relevant frequencies, or both);
     The sound may be audible but not strong enough to elicit 
any overt behavioral response;
     The sound may elicit reactions of variable conspicuousness 
and variable relevance to the well-being of the marine mammal; these 
can range from temporary alert responses to active avoidance reactions, 
such as stampedes into the sea from terrestrial haul-out sites;
     Upon repeated exposure, a marine mammal may exhibit 
diminishing responsiveness (habituation), or disturbance effects may 
persist; the latter is most likely with sounds that are highly variable 
in characteristics, infrequent and unpredictable in occurrence (as are 
vehicle launches), and associated with situations that a marine mammal 
perceives as a threat;
     Any anthropogenic sound that is strong enough to be heard 
has the potential to reduce (mask) the ability of a marine mammal to 
hear natural sounds at similar frequencies, including calls from 
conspecifics, and underwater environmental sounds such as surf noise;
     If marine mammals remain in an area because it is 
important for feeding, breeding, or some other biologically important 
purpose even though there is chronic exposure to noise, it is possible 
that there could be sound-induced physiological stress; this might in 
turn have negative effects on the well-being or reproduction of the 
animals involved; and
     Very strong sounds have the potential to cause temporary 
or permanent reduction in hearing sensitivity. In terrestrial mammals, 
and presumably marine mammals, received sound levels must far exceed 
the animal's hearing threshold for there to be any temporary threshold 
shift (TTS) in its hearing ability. For transient sounds, there is an 
inverse relation to the sound level necessary to cause TTS compared to 
the duration of the sound. Received sound levels must be even higher 
for there to be risk of permanent hearing impairment (PTS). In 
addition, intense acoustic or explosive events may cause trauma to 
tissues associated with organs vital for hearing, sound production, 
respiration, and other functions. This trauma may include minor to 
severe hemorrhage.
    When considering the influence of various kinds of sound on the 
marine environment, it is necessary to understand that different kinds 
of marine life are sensitive to different frequencies of sound. Current 
data indicate that not all marine mammal species have equal hearing 
capabilities (Richardson et al., 1995; Southall et al., 1997; Wartzok 
and Ketten, 1999; Au and Hastings, 2008).
    Southall et al. (2007) designated ``functional hearing groups'' for 
marine mammals based on available behavioral data; audiograms derived 
from auditory evoked potentials; anatomical modeling; and other data. 
Southall et al. (2007) also estimated the lower and upper frequencies 
of functional hearing for each group. However, animals are less 
sensitive to sounds at the outer edges of their functional hearing 
range and are more sensitive to a range of frequencies within the 
middle of their functional hearing range.
    The functional groups and the associated frequencies are:
     Low frequency cetaceans (13 species of mysticetes): 
Functional hearing estimates occur between approximately 7 Hz and 30 
kilohertz (kHz) (extended from 22 kHz based on data indicating that 
some mysticetes can hear above 22 kHz; Au et al., 2006; Lucifredi and 
Stein, 2007; Ketten and Mountain, 2009; Tubelli et al., 2012);
     Mid-frequency cetaceans (32 species of dolphins, six 
species of larger toothed whales, and 19 species of beaked and 
bottlenose whales): Functional hearing estimates occur between 
approximately 150 Hz and 160 kHz;
     High-frequency cetaceans (eight species of true porpoises, 
six species of river dolphins, Kogia, the franciscana, and four species 
of cephalorhynchids): Functional hearing estimates occur between 
approximately 200 Hz and 180 kHz; and
     Pinnipeds in water: Phocid (true seals) functional hearing 
estimates occur between approximately 75 Hz and 100 kHz (Hemila et al., 
2006; Mulsow et al., 2011; Reichmuth et al., 2013) and otariid (seals 
and sea lions) functional hearing estimates occur between approximately 
100 Hz to 40 kHz.
    As mentioned previously in this document, one marine mammal species 
(of the odontocete group) is likely to occur in the proposed action 
area. NMFS considers a species' functional hearing group when analyzing 
the effects of exposure to sound on marine mammals.

Vocalization and Hearing

    Bottlenose dolphins can typically hear within a broad frequency 
range of 0.04 to 160 kHz (Au, 1993; Turl, 1993). Electrophysiological 
experiments suggest that the bottlenose dolphin brain has a dual 
analysis system: One specialized for ultrasonic clicks and another for 
lower-frequency sounds, such as whistles (Ridgway, 2000). Scientists 
have reported a range of highest sensitivity between 25 and 70 kHz, 
with peaks in sensitivity at 25 and 50 kHz (Nachtigall et al., 2000). 
Research on the same individuals indicates that auditory thresholds 
obtained by electrophysiological methods correlate well with those 
obtained in behavior studies, except at lower (10 kHz) and higher (80 
and 100 kHz) frequencies (Finneran and Houser, 2006).
    Sounds emitted by bottlenose dolphins fall into two broad 
categories: Pulsed sounds (including clicks and burst-pulses) and 
narrow-band continuous sounds (whistles), which usually are frequency 
modulated. Clicks have a dominant frequency range of 110 to 130 kHz and 
a source level of 218 to 228 dB re: 1 [mu]Pa (peak-to-peak) (Au, 1993) 
and 3.4 to 14.5 kHz at 125 to 173 dB re 1 [mu]Pa (peak-to-peak) 
(Ketten, 1998). Whistles are primarily associated with communication 
and can serve to identify specific individuals (i.e., signature 
whistles) (Caldwell and Caldwell, 1965; Janik et al., 2006). Cook et 
al. (2004) classified up to 52 percent of whistles produced by 
bottlenose dolphin groups with mother-calf pairs as signature whistles. 
Sound production is also influenced by group type (single or multiple 
individuals), habitat, and behavior (Nowacek, 2005). Bray calls (low-
frequency vocalizations; majority of energy below 4 kHz), for example, 
are used when capturing fish, specifically sea trout (Salmo trutta) and 
Atlantic salmon (Salmo salar), in some regions (i.e., Moray Firth, 
Scotland) (Janik, 2000). Additionally, whistle production has been 
observed to increase while

[[Page 41385]]

feeding (Acevedo-Guti[eacute]rrez and Stienessen, 2004; Cook et al., 
2004).

Effects of Impulsive Sources

    Marine mammals respond to various types of anthropogenic sounds 
introduced in the ocean environment. Responses are highly variable and 
depend on a suite of internal and external factors which in turn 
results in varying degrees of significance (NRC, 2003; Southall et al., 
2007). Internal factors include: (1) Individual hearing sensitivity, 
activity pattern, and motivational and behavioral state (e.g., feeding, 
traveling) at the time it receives the stimulus; (2) past exposure of 
the animal to the noise, which may lead to habituation or 
sensitization; (3) individual noise tolerance; and (4) demographic 
factors such as age, sex, and presence of dependent offspring. External 
factors include: (1) Non-acoustic characteristics of the sound source 
(e.g., if it is moving or stationary); (2) environmental variables 
(e.g., substrate) which influence sound transmission; and (3) habitat 
characteristics and location (e.g., open ocean vs. confined area).
    Underwater explosive detonations send a shock wave and sound energy 
through the water and can release gaseous by-products, create an 
oscillating bubble, or cause a plume of water to shoot up from the 
water surface. The shock wave and accompanying noise are of most 
concern to marine animals. Depending on the intensity of the shock wave 
and size, location, and depth of the animal, an animal can be injured, 
killed, suffer non-lethal physical effects, experience hearing related 
effects with or without behavioral responses, or exhibit temporary 
behavioral responses or tolerance from hearing the blast sound. 
Generally, exposures to higher levels of impulse and pressure levels 
would result in greater impacts to an individual animal.

Tolerance

    Numerous studies have shown that underwater sounds are often 
readily detectable by marine mammals in the water at distances of many 
kilometers. However, other studies have shown that marine mammals at 
distances more than a few kilometers away often show no apparent 
response to activities of various types (Miller et al., 2005). This is 
often true even in cases when the sounds must be readily audible to the 
animals based on measured received levels and the hearing sensitivity 
of that mammal group. Although various baleen whales, toothed whales, 
and (less frequently) pinnipeds have been shown to react behaviorally 
to underwater sound from sources such as airgun pulses or vessels under 
some conditions, at other times, mammals of all three types have shown 
no overt reactions (e.g., Malme et al., 1986; Richardson et al., 1995; 
Madsen and Mohl, 2000; Croll et al., 2001; Jacobs and Terhune, 2002; 
Madsen et al., 2002; Miller et al., 2005).

Masking

    Marine mammals use acoustic signals for a variety of purposes, 
which differ among species, but include communication between 
individuals, navigation, foraging, reproduction, and learning about 
their environment (Erbe and Farmer 2000, Tyack 2000).
    Masking, or auditory interference, generally occurs when sounds in 
the environment are louder than and of a similar frequency to, auditory 
signals an animal is trying to receive. Masking is a phenomenon that 
affects animals that are trying to receive acoustic information about 
their environment, including sounds from other members of their 
species, predators, prey, and sounds that allow them to orient in their 
environment. Masking these acoustic signals can disturb the behavior of 
individual animals, groups of animals, or entire populations.
    The extent of the masking interference depends on the spectral, 
temporal, and spatial relationships between the signals an animal is 
trying to receive and the masking noise, in addition to other factors. 
In humans, significant masking of tonal signals occurs as a result of 
exposure to noise in a narrow band of similar frequencies. As the sound 
level increases, though, the detection of frequencies above those of 
the masking stimulus decreases also. NMFS expects this principle to 
apply to marine mammals because of common biomechanical cochlear 
properties across taxa.
    Richardson et al. (1995) argued that the maximum radius of 
influence of an industrial noise (including broadband low frequency 
sound transmission) on a marine mammal is the distance from the source 
to the point at which the animal can barely hear the noise. This range 
applies to either the hearing sensitivity of the animal or the 
background noise level present. Industrial masking is most likely to 
affect some species' ability to detect communication calls and natural 
sounds (i.e., surf noise, prey noise, etc.; Richardson et al., 1995).
    The echolocation calls of toothed whales are subject to masking by 
high frequency sound. Human data indicate low-frequency sound can mask 
high-frequency sounds (i.e., upward masking). Studies on captive 
odontocetes by Au et al. (1974, 1985, and 1993) indicate that some 
species may use various processes to reduce masking effects (e.g., 
adjustments in echolocation call intensity or frequency as a function 
of background noise conditions). There is also evidence that the 
directional hearing abilities of odontocetes are useful in reducing 
masking at the high-frequencies these cetaceans use to echolocate, but 
not at the low-to-moderate frequencies they use to communicate 
(Zaitseva et al., 1980). A study by Nachtigall and Supin (2008) showed 
that false killer whales adjust their hearing to compensate for ambient 
sounds and the intensity of returning echolocation signals.
    Holt et al. (2009) measured killer whale call source levels and 
background noise levels in the one to 40 kHz band and reported that the 
whales increased their call source levels by one dB SPL for every one 
dB SPL increase in background noise level. Similarly, another study on 
St. Lawrence River belugas (Delphinapterus leucas) reported a similar 
rate of increase in vocalization activity in response to passing 
vessels (Scheifele et al., 2005).
    Although masking is a phenomenon which may occur naturally, the 
introduction of loud anthropogenic sounds into the marine environment 
at frequencies important to marine mammals increases the severity and 
frequency of occurrence of masking. For example, baleen whales exposed 
to continuous low-frequency sound from an industrial source, would be 
present within a reduced acoustic area around where it could hear the 
calls of another whale. The components of background noise that are 
similar in frequency to the signal in question primarily determine the 
degree of masking of that signal. In general, there is little data 
about the degree to which marine mammals rely upon detection of sounds 
from conspecifics, predators, prey, or other natural sources. In the 
absence of specific information about the importance of detecting these 
natural sounds, it is not possible to predict the impact of masking on 
marine mammals (Richardson et al., 1995). In general, masking effects 
are expected to be less severe when sounds are transient than when they 
are continuous.
    While it may occur temporarily, NMFS does not expect auditory 
masking to result in detrimental impacts to an individual's or 
population's survival, fitness, or reproductive success. Dolphin 
movement is not restricted within the BT-9 or BT-11 ranges, allowing 
for movement out of the area to avoid masking impacts. Also,

[[Page 41386]]

masking is typically of greater concern for those marine mammals that 
utilize low frequency communications, such as baleen whales and, as 
such, is not likely to occur for marine mammals in BT-9 or BT-11.

Disturbance

    Behavioral responses to sound are highly variable and context-
specific. Many different variables can influence an animal's perception 
of and response to (in both nature and magnitude) an acoustic event. An 
animal's prior experience with a sound or sound source affects whether 
it is less likely (habituation) or more likely (sensitization) to 
respond to certain sounds in the future (animals can also be innately 
pre-disposed to respond to certain sounds in certain ways) (Southall et 
al., 2007). Related to the sound itself, the perceived nearness of the 
sound, bearing of the sound (approaching versus retreating), similarity 
of the sound to biologically relevant sounds in the animal's 
environment (i.e., calls of predators, prey, or conspecifics), and 
familiarity of the sound may affect the way an animal responds to the 
sound (Southall et al., 2007). Individuals (of different age, gender, 
reproductive status, etc.) among most populations will have variable 
hearing capabilities, and differing behavioral sensitivities to sounds 
that will be affected by prior conditioning, experience, and current 
activities of those individuals. Often, specific acoustic features of 
the sound and contextual variables (i.e., proximity, duration, or 
recurrence of the sound or the current behavior that the marine mammal 
is engaged in or its prior experience), as well as entirely separate 
factors such as the physical presence of a nearby vessel, may be more 
relevant to the animal's response than the received level alone.
    Because the few available studies show wide variation in response 
to underwater sound, it is difficult to quantify exactly how sound from 
the Marine Corps surface-to-surface and air-to-surface training 
activities would affect marine mammals. Exposure of marine mammals to 
sound sources can result in, but is not limited to, no response or any 
of the following observable responses: Increased alertness; orientation 
or attraction to a sound source; vocal modifications; cessation of 
feeding; cessation of social interaction; alteration of movement or 
diving behavior; avoidance; habitat abandonment (temporary or 
permanent); and, in severe cases, panic, flight, stampede, or 
stranding, potentially resulting in death (Southall et al., 2007). 
Richardson first conducted a review of marine mammal responses to 
anthropogenic sound in 1995. A more recent review (Nowacek et al., 
2007) addresses studies conducted since 1995 and focuses on 
observations where researchers knew or could estimate the received 
sound level of the exposed marine mammal(s).
    The following sub-sections provide examples of behavioral responses 
that provide an idea of the variability in behavioral responses 
expected given the differential sensitivities of marine mammal species 
to sound and the wide range of potential acoustic sources to which a 
marine mammal may be exposed. Estimates of the types of behavioral 
responses that could occur for a given sound exposure should be 
determined from the literature that is available for each species or 
extrapolated from closely related species when no information exists.
    Flight Response: A flight response is a dramatic change in normal 
movement to a directed and rapid movement away from the perceived 
location of a sound source. Relatively little information on flight 
responses of marine mammals to anthropogenic signals exist, although 
observations of flight responses to the presence of predators have 
occurred (Connor and Heithaus, 1996).
    Response to Predators: Evidence suggests that at least some marine 
mammals have the ability to acoustically identify potential predators. 
For example, certain groups of killer whales, but not others, 
frequently target harbor seals residing in the coastal waters off 
British Columbia. The seals discriminate between the calls of 
threatening and non-threatening killer whales (Deecke et al., 2002), a 
capability that should increase survivorship while reducing the energy 
required for attending to and responding to all killer whale calls. The 
occurrence of masking or hearing impairment may prevent marine mammals 
from responding to the acoustic cues produced by their predators. 
Whether or not this is a possibility depends on the duration of the 
masking/hearing impairment and the likelihood of encountering a 
predator during the time that the sound impedes predator cues. Predator 
evasion is typically of greater concern for coastal marine mammals. 
Because of the low likelihood of bottlenose dolphin predators, such as 
killer whales, occurring within the shallow estuarine waters of Pamlico 
Sound, NMFS does not consider this likely to occur within the BT-9 or 
BT-11 target areas.
    Diving: Changes in dive behavior can vary widely. They may consist 
of increased or decreased dive times and surface intervals as well as 
changes in the rates of ascent and descent during a dive. Variations in 
dive behavior may reflect interruptions in biologically significant 
activities (e.g., foraging) or they may be of little biological 
significance. Variations in dive behavior may also expose an animal to 
potentially harmful conditions (e.g., increasing the chance of ship-
strike) or may serve as an avoidance response that enhances 
survivorship. The impact of a variation in diving resulting from an 
acoustic exposure depends on what the animal is doing at the time of 
the exposure and the type and magnitude of the response.
    Nowacek et al. (2004) reported disruptions of dive behaviors in 
foraging North Atlantic right whales when exposed to an alerting 
stimulus, an action, they noted, that could lead to an increased 
likelihood of ship strike. However, the whales did not respond to 
playbacks of either right whale social sounds or vessel noise, 
highlighting the importance of the sound characteristics in producing a 
behavioral reaction. Conversely, studies have observed Indo-Pacific 
humpback dolphins (Sousa chinensis) to dive for longer periods of time 
in areas where vessels were present and/or approaching (Ng and Leung, 
2003). In both of these studies, one cannot decouple the influence of 
the sound exposure from the physical presence of a surface vessel, thus 
complicating interpretations of the relative contribution of each 
stimulus to the response. Indeed, the presence of surface vessels, 
their approach and speed of approach, seemed to be significant factors 
in the response of the Indo-Pacific humpback dolphins (Ng and Leung, 
2003). Researchers did not find that the low frequency signals of the 
Acoustic Thermometry of Ocean Climate (ATOC) sound source affected dive 
times of humpback whales (Megaptera novaeangliae) in Hawaiian waters 
(Frankel and Clark, 2000) or overtly affected elephant seal (Mirounga 
angustirostris) dives (Costa et al., 2003). They did, however, produce 
subtle effects that varied in direction and degree among the individual 
seals, illustrating the equivocal nature of behavioral effects and 
consequent difficulty in defining and predicting them.
    Foraging: Disruption of feeding behavior can be difficult to 
correlate with anthropogenic sound exposure, so it is usually inferred 
by observed displacement from known foraging areas, the appearance of 
secondary indicators (e.g., bubble nets or sediment plumes), or changes 
in dive behavior. Noise from seismic surveys was not

[[Page 41387]]

found to impact the feeding behavior in western grey whales off the 
coast of Russia (Yazvenko et al., 2007) and sperm whales (Physeter 
macrocephalus) engaged in foraging dives did not abandon dives when 
exposed to distant signatures of seismic airguns (Madsen et al., 2006). 
Balaenopterid whales exposed to moderate low-frequency signals similar 
to the ATOC sound source demonstrated no variation in foraging activity 
(Croll et al., 2001), whereas five out of six North Atlantic right 
whales exposed to an acoustic alarm interrupted their foraging dives 
(Nowacek et al., 2004). Although the received sound pressure level at 
the animals was similar in the latter two studies, the frequency, 
duration, and temporal pattern of signal presentation were different. 
These factors, as well as differences in species sensitivity, are 
likely contributing factors to the differential response. A 
determination of whether foraging disruptions incur fitness 
consequences would require information on or estimates of the energetic 
requirements of the individuals and the relationship between prey 
availability, foraging effort, and success, and the life history stage 
of the animal.
    Breathing: Variations in respiration naturally vary with different 
behaviors and variations in respiration rate as a function of acoustic 
exposure could co-occur with other behavioral reactions, such as a 
flight response or an alteration in diving. However, respiration rates 
in and of themselves may be representative of annoyance or an acute 
stress response. Mean exhalation rates of gray whales at rest and while 
diving were found to be unaffected by seismic surveys conducted 
adjacent to the whale feeding grounds (Gailey et al., 2007). Studies 
with captive harbor porpoises (Phocoena phocoena) showed increased 
respiration rates upon introduction of acoustic alarms (Kastelein et 
al., 2001; Kastelein et al., 2006) and emissions for underwater data 
transmission (Kastelein et al., 2005). However, exposure of the same 
acoustic alarm to a striped dolphin under the same conditions did not 
elicit a response (Kastelein et al., 2006), again highlighting the 
importance in understanding species differences in the tolerance of 
underwater noise when determining the potential for impacts resulting 
from anthropogenic sound exposure.
    Social Relationships: Sound can affect social interactions between 
mammals via the disruption of communication signals or by the 
displacement of individuals. Disruption of social relationships 
therefore depends on the disruption of other behaviors (e.g., caused 
avoidance, masking, etc.) and this notice's discussion does not provide 
a specific overview. However, one should consider social disruptions in 
the context of the relationships that are affected. Long-term 
disruptions of mother/calf pairs or mating displays have the potential 
to affect the growth and survival or reproductive effort/success of 
individuals, respectively.
    Vocalizations (also see Masking Section): Vocal changes in response 
to anthropogenic noise can occur across the repertoire of sound 
production modes used by marine mammals, such as whistling, 
echolocation click production, calling, and singing. Changes may result 
in response to a need to compete with an increase in background noise 
or may reflect an increased vigilance or startle response. For example, 
in the presence of low-frequency active sonar, humpback whales have 
been observed to increase the length of their ``songs'' (Miller et al., 
2000; Fristrup et al., 2003), possibly due to the overlap in 
frequencies between the whale song and the low-frequency active sonar. 
Some have suggested a similar compensatory effect for the presence of 
low frequency vessel noise for right whales; as researchers have 
observed right whales shift the frequency content of their calls upward 
while reducing the rate of calling in areas of increased anthropogenic 
noise (Parks et al., 2007). Killer whales off the northwestern coast of 
the United States have been observed to increase the duration of 
primary calls once a threshold in observing vessel density (e.g., whale 
watching) was reached, which has been suggested as a response to 
increased masking noise produced by the vessels (Foote et al., 2004). 
In contrast, both sperm and pilot whales potentially ceased sound 
production during the Heard Island feasibility test (Bowles et al., 
1994), although it cannot be absolutely determined whether the 
inability to acoustically detect the animals was due to the cessation 
of sound production or the displacement of animals from the area.
    Avoidance: Avoidance is the displacement of an individual from an 
area as a result of the presence of a sound. Richardson et al., (1995) 
noted that avoidance reactions are the most obvious manifestations of 
disturbance in marine mammals. It is qualitatively different from the 
flight response, but also differs in the magnitude of the response 
(i.e., directed movement, rate of travel, etc.). Often, avoidance is 
temporary and animals return to the area once the noise has ceased. 
Longer term displacement is possible, however, which can lead to 
changes in abundance or distribution patterns of the species in the 
affected region if they do not become acclimated to the presence of the 
sound (Blackwell et al., 2004; Bejder et al., 2006; Teilmann et al., 
2006). Studies have observed acute avoidance responses in captive 
porpoises and pinnipeds exposed to a number of different sound sources 
(Kastelein et al., 2001; Finneran et al., 2003; Kastelein et al., 
2006a, b). Short term avoidance of seismic surveys, low frequency 
emissions, and acoustic deterrents has also been noted in wild 
populations of odontocetes (Bowles et al., 1994; Goold, 1996; 1998; 
Stone et al., 2000; Morton and Symonds, 2002) and to some extent in 
mysticetes (Gailey et al., 2007), while longer term or repetitive/
chronic displacement for some dolphin groups and for manatees has been 
suggested to be due to the presence of chronic vessel noise (Haviland-
Howell et al., 2007; Miksis-Olds et al., 2007).
    Haviland-Howell et al. (2007) compared sighting rates of bottlenose 
dolphins within the Wilmington, North Carolina stretch of the Atlantic 
Intracoastal Waterway (ICW) on weekends, when recreational vessel 
traffic was high, to weekdays, when vessel traffic was relatively 
minimal. The authors found that dolphins were less often sighted in the 
ICW during times of increased boat traffic (i.e., on weekends) and 
theorized that because vessel noise falls within the frequencies of 
dolphin communication whistles and primary energy of most fish 
vocalizations, the continuous vessel traffic along that stretch of the 
ICW could result in social and foraging impacts. However, the extent to 
which these impacts affect individual health and population structure 
is unknown.
    Orientation: A shift in an animal's resting state or an attentional 
change via an orienting response represent behaviors that would be 
considered mild disruptions if it occurred alone. As previously 
mentioned, the responses may co-occur with other behaviors; for 
instance, an animal may initially orient toward a sound source, and 
then move away from it. Thus, one should consider any orienting 
response in context of other reactions that may occur.
    Vessel and Aircraft Presence: The marine mammals most vulnerable to 
vessel strikes are slow-moving and/or spend extended periods of time at 
the surface in order to restore oxygen levels within their tissues 
after deep dives (e.g., right whales, fin whales (Balaenoptera 
physalus), and sperm whales). Smaller marine mammals such as bottlenose 
dolphins (the only marine mammal known to occur in BT-9 and BT-11) are 
agile and move more quickly

[[Page 41388]]

through the water, making them less susceptible to ship strikes. NMFS 
and the Marine Corps are not aware of any vessel strikes of bottlenose 
dolphins in Pamlico Sound during training operations and both parties 
do not anticipate that Marine Corps vessels engaged in the specified 
activity would strike any marine mammals.
    Dolphins within Pamlico Sound are continually exposed to 
recreational, commercial, and military vessels. Behaviorally, marine 
mammals may or may not respond to the operation of vessels and 
associated noise. Responses to vessels vary widely among marine mammals 
in general, but also among different species of small cetaceans. 
Responses may include attraction to the vessel (Richardson et al., 
1995); altering travel patterns to avoid vessels (Constantine, 2001; 
Nowacek et al., 2001; Lusseau, 2003, 2006); relocating to other areas 
(Allen and Read, 2000); cessation of feeding, resting, and social 
interaction (Baker et al., 1983; Bauer and Herman, 1986; Hall, 1982; 
Krieger and Wing, 1984; Lusseau, 2003; Constantine et al., 2004); 
abandoning feeding, resting, and nursing areas (Jurasz and Jurasz 1979; 
Dean et al., 1985; Glockner-Ferrari and Ferrari, 1985, 1990; Lusseau, 
2005; Norris et al., 1985; Salden, 1988; Forest, 2001; Morton and 
Symonds, 2002; Courbis, 2004; Bejder, 2006); stress (Romano et al., 
2004); and changes in acoustic behavior (Van Parijs and Corkeron, 
2001). However, in some studies marine mammals display no reaction to 
vessels (Watkins, 1986; Nowacek et al., 2003) and many odontocetes show 
considerable tolerance to vessel traffic (Richardson et al., 1995). 
Dolphins may actually reduce the energetic cost of traveling by riding 
the bow or stern waves of vessels (Williams et al., 1992; Richardson et 
al., 1995).
    Aircraft produce noise at frequencies that are well within the 
frequency range of cetacean hearing and also produce visual signals 
such as the aircraft itself and its shadow (Richardson et al., 1995, 
Richardson and Wursig, 1997). A major difference between aircraft noise 
and noise caused by other anthropogenic sources is that the sound is 
generated in the air, transmitted through the water surface and then 
propagates underwater to the receiver, diminishing the received levels 
significantly below what is heard above the water's surface. Sound 
transmission from air to water is greatest in a sound cone 26 degrees 
directly under the aircraft.
    There are fewer reports of reactions of odontocetes to aircraft 
than those of pinnipeds. Responses to aircraft include diving, slapping 
the water with pectoral fins or tail fluke, or swimming away from the 
track of the aircraft (Richardson et al., 1995). The nature and degree 
of the response, or the lack thereof, are dependent upon nature of the 
flight (e.g., type of aircraft, altitude, straight vs. circular flight 
pattern). Wursig et al. (1998) assessed the responses of cetaceans to 
aerial surveys in the north central and western Gulf of Mexico using a 
DeHavilland Twin Otter fixed-wing airplane. The plane flew at an 
altitude of 229 m (751.3 ft) at 204 km/hr (126.7 mph) and maintained a 
minimum of 305 m (1,000 ft) straight line distance from the cetaceans. 
Water depth was 100 to 1,000 m (328 to 3,281 ft). Bottlenose dolphins 
most commonly responded by diving (48 percent), while 14 percent 
responded by moving away. Other species (e.g., beluga and sperm whales) 
show considerable variation in reactions to aircraft but diving or 
swimming away from the aircraft are the most common reactions to low 
flights (less than 500 m; 1,640 ft).

Stress Response

    An 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. Here, 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 occurs 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 results 
in increases in the secretion of the glucocorticoid steroid hormones, 
predominantly cortisol in mammals. 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. The stress response may or may not result in a 
behavioral change, depending on the characteristics of the exposed 
animal. However, provided that a stress response occurs, NMFS assumes 
that some contribution is made to the animal's allostatic load. One can 
assume that any immediate effect of exposure that produces an injury 
also produce a stress response and contribute to the 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). If the animal does 
not perceive the sound, the acoustic source would not produce tissue 
effects and does not produce a stress response by any other means. 
Thus, NMFS assumes that the exposure does not contribute to the 
allostatic load. Additionally, without a stress response or auditory 
masking, NMFS assumes that there can be no behavioral change.

Physiology-Hearing Threshold Shift

    In mammals, high-intensity sound may rupture the eardrum, damage 
the small bones in the middle ear, or over stimulate the 
electromechanical hair cells that convert the fluid motions caused by 
sound into neural impulses sent to the brain. Lower level exposures may 
cause a loss of hearing sensitivity, termed a threshold shift (TS) 
(Miller, 1974). Incidence of TS may be either permanent, referred to as 
permanent threshold shift (PTS), or temporary, referred to as temporary 
threshold shift (TTS). The amplitude, duration, frequency, and temporal 
pattern, and energy distribution of sound exposure all affect the 
amount of associated TS and the frequency range in which it occurs. As 
amplitude and duration of sound exposure increase, generally, so does 
the amount of TS and recovery time. Human non-impulsive noise exposure 
guidelines are based on exposures of equal energy (the same SEL) 
producing equal amounts of hearing impairment regardless of how the 
sound energy distributes over time (NIOSH, 1998). Until recently, 
previous marine mammal TTS studies have also generally supported this 
equal energy relationship (Southall et al., 2007). Three newer studies, 
two by Mooney et al. (2009a, 2009b) on a single bottlenose dolphin 
either exposed to playbacks of Navy mid-frequency active sonar or 
octave-band noise (4-8 kHz) and one by Kastak et al. (2007) on a single 
California sea lion (Zalophus californianus) exposed to airborne 
octave-band noise (centered at 2.5 kHz), concluded that for all noise 
exposure situations the equal energy relationship may not be the best 
indicator to predict TTS onset levels. Generally, with sound exposures 
of equal energy, those that were quieter (lower SPL) with longer 
duration induced TTS onset more than

[[Page 41389]]

louder (higher SPL) and shorter durations (more similar to noise from 
the Marine Corps' exercises at BT-9 and BT-11). For intermittent 
sounds, less threshold shift would occur than from a continuous 
exposure with the same energy (some recovery will occur between 
exposures) (Kryter et al., 1966; Ward, 1997). Additionally, although 
TTS is temporary; very prolonged exposure to sound strong enough to 
elicit TTS, or shorter-term exposure to sound levels well above the TTS 
threshold, can cause PTS, at least in terrestrial mammals (Kryter, 
1985). However, these studies highlight the inherent complexity of 
predicting TTS onset in marine mammals, as well as the importance of 
considering exposure duration when assessing potential impacts.
    PTS consists of non-recoverable physical damage to the sound 
receptors in the ear, which can include total or partial deafness, or 
an impaired ability to hear sounds in specific frequency ranges; NMFS 
considers PTS as Level A harassment. TTS is recoverable, resulting from 
temporary, non-injurious impacts to hearing-related tissues. NMFS 
considers TTS as Level B harassment.

Permanent Threshold Shift

    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 irreversible and considered to be an injury that 
could result in PTS. 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. In some cases, there can be total or partial deafness 
across all frequencies, whereas in other cases, the animal has an 
impaired ability to hear sounds in specific frequency ranges.
    There is no empirical data for onset of PTS in any marine mammal 
for ethical reasons. Therefore, research must extrapolate PTS-onset 
based on hearing loss growth rates (i.e., rate of how quickly threshold 
shifts grow in relation to increases in decibel level; expressed in dB 
of TTS/dB of noise) from limited marine mammal TTS studies and more 
numerous terrestrial mammal TTS/PTS experiments. Typically, the 
magnitude of a threshold shift increases with increasing duration or 
level of exposure, until it becomes asymptotic (growth rate begins to 
level or the upper limit of TTS; Mills et al., 1979; Clark et al., 
1987; Laroche et al., 1989; Yost, 2007). One presumes that PTS is 
likely if reduction to the hearing threshold occurs by greater than or 
equal to 40 dB (i.e., 40 dB of TTS).

Temporary Threshold Shift

    TTS is the mildest form of hearing impairment that can occur during 
exposure to a loud sound (Kryter, 1985). 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 as Level 
B Harassment, not Level A Harassment (injury); however, NMFS does not 
consider the onset of TTS to be the lowest level at which Level B 
Harassment may occur (see Behavior section).
    Southall et al. (2007) considers a 6 dB TTS (i.e., baseline hearing 
thresholds are elevated by 6 dB) sufficient to be recognized as an 
unequivocal deviation and thus a sufficient definition of TTS onset. 
Researchers testing hearing in marine mammals have experimentally 
induced TTS in bottlenose dolphins. For example, Finneran et al. (2002) 
exposed a trained captive bottlenose dolphin to a seismic watergun 
simulator with a single acoustic pulse. No TTS was observed in the 
dolphin at the highest exposure condition (peak: 207 kiloPascals (kPa; 
30 pressure per square inch (psi)); peak-to-peak: 228 dB re: 1 [mu]Pa; 
SEL: 188 dB re: 1 [mu]Pa\2\-s). Schludt et al. (2000) demonstrated 
temporary shifts in masked hearing thresholds in five bottlenose 
dolphins occurring generally between 192 and 201 dB rms (192 and 201 dB 
SEL) after exposure to intense, non-pulse, 1-second tones at 3 kHz, 10 
kHz, and 20 kHz. TTS onset occurred at mean sound exposure level of 195 
dB rms (195 dB SEL). At 0.4 kHz, no subjects exhibited threshold shifts 
after SPL exposures of 193 dB re: 1 [mu]Pa (192 dB re: 1 [mu]Pa\2\-s). 
In the same study, at 75 kHz, one dolphin exhibited a TTS after 
exposure at 182 dB SPL re: 1 [mu]Pa but not at higher exposure levels. 
Another dolphin experienced no threshold shift after exposure to 
maximum SPL levels of 193 dB re: 1 [mu]Pa at the same frequency. 
Frequencies of explosives used at the Cherry Point Range Complex range 
from 1-25 kHz; the range where dolphin TTS onset occurred at 195 dB rms 
in the Schlundt et al. (2000) study.
    Preliminary research indicates that TTS and recovery after noise 
exposure are frequency dependent and that an inverse relationship 
exists between exposure time and sound pressure level associated with 
exposure (Mooney et al., 2005; Mooney, 2006). For example, Nachtigall 
et al. (2003) measured TTS in a bottlenose dolphin and found an average 
11-dB shift following a 30-minute net exposure to the octave-band noise 
(OBN) at a 7.5 kHz center frequency (maximum SPL of 179 dB re: 1 
[mu]Pa; SEL: 212-214 dB re: 1 [mu]Pa\2\-s). No TTS was observed after 
exposure to the same duration and frequency noise with maximum SPLs of 
165 and 171 dB re:1 [mu]Pa. After 50 minutes of exposure to the same 
7.5 kHz frequency OBN, Natchigall et al. (2004) measured a 4-8 dB shift 
(max SPL: 160 dB re: 1 [mu]Pa; SEL: 193-195 dB re: 1 [mu]Pa\2\-s). 
Finneran et al. (2005) concluded that a sound exposure level of 195 dB 
re 1 [mu]Pa2-s is a reasonable threshold for the onset of TTS in 
bottlenose dolphins exposed to mid-frequency tones.

Lethal Responses

    The Marine Corps proposes to use five types of explosive sources 
during its training exercises: 2.75-inch Rocket High Explosives, 5-inch 
Rocket High Explosives, 30 mm High Explosives, 40 mm High Explosives, 
and G911 grenades. The underwater explosions from these weapons 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. In general, potential impacts from 
explosive detonations can range from brief effects (such as short term 
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).
    The effects of an underwater explosion on a marine mammal depend 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. Physical damage of 
tissues resulting from a shock wave (from an explosive detonation) 
constitutes 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;

[[Page 41390]]

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.
    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). Exposure to distance explosions could result only in behavioral 
changes. Researchers have measured masked underwater hearing thresholds 
in two bottlenose dolphins and one beluga whale before and after 
exposure to impulsive underwater sounds with waveforms resembling 
distant signatures of underwater explosions (Finneran et al., 2000). 
The authors found no temporary shifts in masked-hearing thresholds, 
defined as a 6-dB or larger increase in threshold over pre-exposure 
levels, had been observed at the highest impulse level generated (500 
kg at 1.7 km, peak pressure 70 kPa); however, disruptions of the 
animals' trained behaviors began to occur at exposures corresponding to 
5 kg at 9.3 km and 5 kg at 1.5 km for the dolphins and 500 kg at 1.9 km 
for the beluga whale.

Direct Strike by Inert Ordnance

    Another potential risk to marine mammals is direct strike by 
ordnance, in which the ordnance physically hits an animal. While strike 
from an item falling through the water column is possible, the 
potential risk of a direct hit to an animal in the target area would be 
so low because objects sink slowly and most projectiles fired at 
targets usually hit those targets.

Training Debris

    In addition to behavioral and physiological impacts from live fire 
and ammunition testing, NMFS has analyzed impacts from presence of 
munition debris in the water, as described in the Marine Corps' 
application and its 2009 EA. These impacts include falling debris, 
ingestion of expended ordnance, and entanglement in parachute debris.
    Ingestion of marine debris by marine mammals can cause digestive 
tract blockages or damage the digestive system (Gorzelany, 1998; 
Stamper et al., 2006). Debris could be either the expended ordnance or 
non-munition related products such as chaff and self-protection flares. 
Expended ordnance would be small and sink to the bottom. Chaff is 
composed aluminum-coated glass fibers designed to act as a visual smoke 
screen; hiding the aircraft from enemy radar. Chaff also serves as a 
decoy for radar detection, allowing aircraft to maneuver or egress from 
the area. The chaff, cut into dipoles range in length from 0.3 to over 
2.0 inches and its major components are silica, aluminum, and stearic 
acid; all naturally prevalent in the environment.
    Based on the dispersion characteristics of chaff, concentrations 
around the BTs would be low. For example, Hullar et al. (1999) 
calculated that the deployment of a single cartridge containing 150 
grams of chaff would affect an 8-km by 12 km (4.97-mi by 7.46-mi) area; 
however, the concentration would only be about 5.4 grams per square 
nautical mile. This corresponds to fewer than 179,000 fibers per square 
nautical mile or fewer than 0.005 fibers per square foot.
    Marine Corps personnel deploy self-protection flares to mislead or 
confuse heat-sensitive or heat-seeking anti-aircraft systems. The 
flares are magnesium pellets that, when ignited, burn for a short 
period of time (less than 10 seconds) at 2,000 degrees Fahrenheit. 
Personnel use air-deployed LUU-2 high-intensity illumination flares to 
illuminate targets, enhancing a pilot's ability to see targets while 
using night vision goggles. The LUU-2B Flare has a light output rating 
of 1.8 x 10\6\ candlepower and at 1,000 feet altitude illuminates a 
circle on the ground of 500 meters (1,640 ft). The LUU-2 is housed in a 
pod or canister and is deployed by ejection. The mechanism has a timer 
on it that deploys the parachute and ignites the flare candle. The 
flare candle burns magnesium at high temperature, emitting an intense 
bright white light. The LUU-2 has a burn time of approximately five 
minutes while suspended from a parachute. The pyrotechnic candle 
consumes the flare housing, reducing flare weight, which in turn slows 
the rate of fall during the last two minutes of burn time. At candle 
burnout an explosive bolt fires, releasing one parachute support cable, 
which causes the parachute to collapse.
    Ingestion of debris by dolphins is not likely, as dolphins 
typically eat fish and other moving prey items. The Marine Corps 
solicited information on evidence of debris ingestion from two marine 
mammal veterinarians who have performed many necropsies on the 
protected species of North Carolina's waters. In their experience, no 
necropsies of bottlenose dolphins have revealed evidence of munition, 
parachute, or chaff ingestion (pers. comm., Drs. C. Harms and D. 
Rostein, November 14, 2009). However, they noted that evidence of chaff 
ingestion would be difficult to detect. In the chance that dolphins do 
ingest chaff, the filaments are so fine they would likely pass through 
the digestive system without complication. However, if the chaff is 
durable enough, it might act as a linear foreign body. In such case, 
the intestines bunch up on the line restricting movement of the line 
resulting in an obstruction. The peristalsis on an immovable thin line 
can cause intestinal lacerations and perforations (pers. comm., C. 
Harms, November 14, 2009). This is a well-known complication in cats 
when they ingest thread, and it occurs occasionally with sea turtles 
ingesting fishing line. The longevity of chaff filaments, based upon 
dispersion rates, is unclear. Chaff exposed to synthetic seawater and 
aqueous environments in the pH range of 4 to 10 exhibited varying 
levels of degradation suggesting a short lifespan for the outer 
aluminum coating (Farrell and Siciliano, 1998). The underlying filament 
is a flexible silica core and composed of primarily silica dioxide. 
While no studies have been conducted to evaluate the effects of chaff 
ingestion on marine mammals, the effects are expected to be negligible 
based upon chaff concentration in the environment, size of fibers, and 
available toxicity data on fiberglass and aluminum. The likelihood of 
chaff ingestion is low given the following factors: That the size of 
chaff fibers are no more than 2 inches long, tidal flushing reduces 
concentration in the environment, and chaff degradation occurs quickly. 
Moreover, if swallowed by a marine mammal, the impacts would be 
negligible.
    In summary, there is no evidence that dolphins ingest military 
debris, dolphins in Pamlico Sound forage on moving prey suspended in 
the water column while expended munition would sink and the property 
and dispersion characteristics of chaff make potential for ingestion 
discountable. Because Pamlico Sound is a tidal body of water with 
continuing flushing, NMFS and the Marine Corps have determined that the 
presence of training debris would not have an effect on dolphins in 
Pamlico Sound.
    Although sometimes large, expended parachutes (e.g., those from the 
flares) are flimsy and structurally simple. The probability of 
entanglement with a

[[Page 41391]]

dolphin is low. There are no known reports of live or stranded dolphins 
entangled in parachute gear; fishing gear is usually the culprit of 
reported entanglements.

Anticipated Effects on Habitat

    Detonations of live ordnance would result in temporary changes to 
the water environment. Munitions could hit the targets and not explode 
in the water. However, because the targets are located over the water 
(i.e., a ship's hull on a shoal), in water explosions could occur. An 
underwater explosion from these weapons could 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. However, these effects would be temporary and not 
expected to last more than a few seconds.
    Similarly, the Marine Corps does not expect any long-term impacts 
with regard to hazardous constituents to occur. The Marine Corps has an 
active Range Environmental Vulnerability Assessment (REVA) program in 
place to monitor impacts to habitat from its activities. One goal of 
REVA is to determine the horizontal and vertical concentration profiles 
of heavy metals, explosives constituents, perchlorate nutrients, and 
dissolved salts in the sediment and seawater surrounding BT-9 and BT-
11. The results of the sampling indicate that the Marine Corps did not 
detect explosive constituents in any sediment or water sample 
surrounding the bombing targets. Metals were not present above toxicity 
screening values. The Marine Corps detected perchlorate in a few 
sediment samples above the detection limit (0.21 parts per million 
(ppm)), but below the reporting limit (0.6 ppm). The ongoing REVA would 
continue to evaluate potential munitions constituent migration from 
operational range areas to off-range areas and Marine Corps Air Station 
Cherry Point.
    While NMFS anticipates that the specified activity may result in 
marine mammals avoiding certain areas due to temporary ensonification, 
this impact to habitat and prey resources would be temporary and 
reversible. The main impact associated with the proposed activity would 
be temporarily elevated noise levels and the associated direct effects 
on marine mammals, previously discussed in this notice. Based on the 
preceding discussion, NMFS does not anticipate that the proposed 
activity would have any habitat-related effects that could cause 
significant or long-term consequences for individual marine mammals or 
their populations.

Summary of Previous Monitoring

    The Marine Corps complied with the mitigation and monitoring 
required under the previous authorizations (2010-2013). The Marine 
Corps submitted final monitoring reports, which described the 
activities conducted and observations made. For the 2010 period, the 
Marine Corps did not observe any marine mammals during training 
exercises. The only recorded observations--which were bottlenose 
dolphins--occurred on two occasions by maintenance vessels engaged in 
target maintenance. Personnel did not observe marine mammals during 
range sweeps, air-to-ground or surface-to-surface activities (small 
boats), or during ad hoc monitoring via range cameras.
    For the 2012 period, the total amount of ordnance expended at BT-9 
and BT-11 was 301,687 and 955,528 rounds, respectively. During the 
period of the 2012 IHA, the Marine Corps did not fire any high 
explosive (live) munitions at BT-9. The Marine Corps do not permit high 
explosive (live) munitions within BT-11. Maintenance vessels engaged in 
target maintenance observed marine mammals on two occasions during the 
2012 reporting period. Flight crews conducting range sweeps identified 
dolphins within the confines of Rattan Bay at BT-11 on two separate 
occasions: February 10, 2012 and August 16, 2012. When the sightings 
occurred during range sweeps, the Marine Corps suspended military 
training until the dolphins exited the mouth of the embayment, per 
Marine Corps Air Station Cherry Point Range standard operating 
procedures. There were no observations of marine mammals during the 
air-to surface or surface-to-surface activities (small boats), or 
during ad hoc monitoring via range cameras other than during follow-up 
on the two occasions of sightings made during the pre-exercise range 
sweeps.

Proposed Mitigation

    In order to issue an incidental take authorization under section 
101(a)(5)(A) of the MMPA, NMFS must set 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, and the availability of such species or 
stock for taking for certain subsistence uses (where relevant).
    The NDAA of 2004 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.
    NMFS and the Marine Corps have worked to identify potential 
practicable and effective mitigation measures, which include 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.'' NMFS refers the reader to Appendix B of the Marine Corps' 
application for more detailed information on the proposed mitigation 
measures which include the following:
    1. Visual Monitoring: Range operators will conduct or direct visual 
surveys to monitor BT-9 or BT-11 for protected species before and after 
each exercise. Range operation and control personnel would monitor the 
target area through two tower mounted safety and surveillance cameras. 
The remotely operated range cameras are high-resolution cameras that 
allow viewers to see animals at the surface and breaking the surface, 
but not underwater. The camera system has night vision (IR) 
capabilities. Lenses on the camera system have a focal length of 250 mm 
to 1500 mm, with view angles of 2.2[deg] x 1.65[deg] (in wide-view) and 
0.55[deg] x 41[deg] (in narrow-view) respectively. Using the night-time 
capabilities, with a narrow view, an observer could identify a 1-by-1 
meter target out to three kilometers.
    In the event that a marine mammal is sighted within 914 m (3,000 
ft) of the BT-9 target area, personnel would declare the area as fouled 
and cease training exercises. Personnel would commence operations in 
BT-9 only after the animal has moved 914 m (3,000 ft) away from the 
target area.
    For BT-11, in the event that a marine mammal is sighted anywhere 
within the confines of Rattan Bay, personnel would declare the water-
based targets within Rattan Bay as fouled and cease training exercises. 
Personnel would commence operations in BT-11 only after the animal has 
moved out of Rattan Bay.
    2. Range Sweeps: The VMR-1 squadron, stationed at Marine Corps Air 
Station Cherry Point, includes three specially equipped HH-46D 
helicopters. The primary mission of these aircraft, known as PEDRO, is 
to provide search and rescue for downed 2nd Marine Air Wing aircrews. 
On-board are a pilot, co-pilot, crew chief, search and rescue swimmer, 
and a medical corpsman. Each crew member has received extensive 
training in search and rescue

[[Page 41392]]

techniques, and is therefore particularly capable at spotting objects 
floating in the water.
    The PEDRO crew would conduct a range sweep the morning of each 
exercise day prior to the commencement of range operations. The crew 
would also conduct post-exercise sweeps. The primary goal of the pre-
exercise sweep is to ensure that the target area is clear of fisherman, 
other personnel, and protected species. Generally, the weekly 
monitoring events would include a maximum of five pre-exercise and four 
post-exercise sweeps. The maximum number of days that would elapse 
between pre- and post-exercise monitoring events would be approximately 
3 days, and would normally occur on weekends.
    The sweeps would occur at 100 to 300 meters (328 to 984 ft) above 
the water surface, at airspeeds between 60 to 100 knots (69 to 115 
mph). The path of the sweep runs down the western side of BT-11, 
circles around BT-9 and then continues down the eastern side of BT-9 
before leaving. The sweep typically takes 20 to 30 minutes to complete.
    The PEDRO crew communicates directly with range personnel and can 
provide immediate notification to range operators of a fouled target 
area due to the presence of protected species. The PEDRO aircraft would 
remain in the area of a marine mammal sighting until the animal clears 
the area, if possible or as mission requirements dictate.
    If the crew sights marine mammals during a range sweep, they would 
collect sighting data and immediately provide the information to range 
personnel who would take appropriate management action. Range staff 
would relay the sighting information to training Commanders scheduled 
on the range after the observation. Range personnel would enter the 
data into the Marine Corps' sighting database, web-interface, or report 
generator. Sighting data includes the following (collected to the best 
of the observer's ability): (1) Species identification; (2) group size; 
(3) the behavior of marine mammals (e.g., milling, travel, social, 
foraging); (4) location and relative distance from the bombing target; 
(5) date, time and visual conditions (e.g., Beaufort sea state, 
weather) associated with each observation; (6) direction of travel 
relative to the BT; and (7) duration of the observation.
    3. Aircraft Cold Pass: Standard operating procedures for waterborne 
targets require the pilot to perform a visual check prior to ordnance 
delivery to ensure the target area is clear of unauthorized civilian 
boats and personnel, and protected species such as turtles and marine 
mammals. This is referred to as a ``cold'' or clearing pass. Pilots 
requesting entry onto the BT-9 and BT-11 airspace must perform a low-
altitude, cold first pass (a pass without any release of ordnance) 
immediately prior to ordnance delivery at the bombing targets both day 
and night.
    Pilots would conduct the cold pass with the aircraft (helicopter or 
fixed-winged) flying straight and level at altitudes of 61 to 914 m 
(200 to 3,000 ft) over the target area. The viewing angle is 
approximately 15 degrees. A blind spot exists to the immediate rear of 
the aircraft. Based upon prevailing visibility, a pilot can see more 
than one mile forward upon approach. If marine mammals are present in 
the target area, the Range Controller may deny ordnance delivery to the 
target as conditions warrant. If marine mammals are not present in the 
target area, the Range Controller may grant ordnance delivery as 
conditions warrant.
    4. Delay of Exercises: The Marine Corps would consider an active 
range as fouled and not available for use if a marine mammal is present 
within 914 m (3,000 ft) of the target area at BT-9 or anywhere within 
Rattan Bay (BT-11). Therefore, if Marine Corps personnel observe a 
marine mammal within 914 m (3,000 ft) of the target at BT-9 or anywhere 
within Rattan Bay at BT-11 during the cold pass or from range camera 
detection, they would delay training until the marine mammal moves 
beyond and on a path away from 914 m (3,000 ft) from the BT-9 target or 
moved out of Rattan Bay at BT-11. This mitigation applies to air-to-
surface and surface-to-surface exercises day or night.
    5. Vessel Operation: All vessels used during training operations 
would abide by NMFS' Southeast Regional Viewing Guidelines designed to 
prevent harassment to marine mammals (http://www.nmfs.noaa.gov/pr/education/southeast/).
    6. Stranding Network Coordination: The Marine Corps would 
coordinate with the local NMFS Stranding Coordinator to discuss 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.
    NMFS has carefully evaluated the Marine Corps' proposed mitigation 
measures in the context of ensuring that we prescribe the means of 
effecting the least practicable impact on the affected marine mammal 
species and stocks and their habitat. NMFS' evaluation of potential 
measures included consideration of the following factors in relation to 
one another:
     The manner in which, and the degree to which, the 
successful implementation of the measure is expected to minimize 
adverse impacts to marine mammals;
     The proven or likely efficacy of the specific measure to 
minimize adverse impacts as planned; and
     The practicability of the measure for applicant 
implementation.
    Any mitigation measure(s) prescribed by NMFS should be able 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 here:
    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 biologically important time or location) exposed to training 
exercises that we expect 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 training exercises that we expect 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 training 
exercises that we expect 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. Avoidance or minimization of 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.
    Based on the evaluation of the Marine Corps' proposed measures, as 
well as other measures considered, NMFS has determined that the 
proposed mitigation measures provide the means of effecting the least 
practicable impact on marine mammal species or stocks and their 
habitat, paying particular attention to rookeries, mating grounds, and 
areas of

[[Page 41393]]

similar significance while also considering personnel safety, 
practicality of implementation, and the impact of effectiveness of the 
military readiness activity.
    The proposed rule comment period will afford the public an 
opportunity to submit recommendations, views, and/or concerns regarding 
this action and the proposed mitigation measures. While NMFS has 
determined that the proposed mitigation measures presented in this 
document will effect the least practicable adverse impact on the 
affected species or stocks and their habitat, NMFS will consider all 
public comments to help inform our final decision. Consequently, the 
proposed mitigation measures may be refined, modified, removed, or 
added to prior to the issuance of the final rule based on public 
comments received and, where appropriate, further analysis of any 
additional mitigation measures.

Proposed Monitoring and Reporting

    In order to issue an Letter of Authorization for an activity, 
section 101(a)(5)(A) of the MMPA states that we 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 an authorization must include the suggested 
means of accomplishing the necessary monitoring and reporting that will 
result in increased knowledge of the species and our expectations of 
the level of taking or impacts on populations of marine mammals present 
in the action area.
    As part of its application, the Marine Corps provided a monitoring 
plan, similar to that in previous Incidental Harassment Authorizations 
issued to them from 2010-2013, for assessing impacts to marine mammals 
from rocket and missile launches at Marine Air Corps Station Cherry 
Point. The Marine Corps proposes to conduct the following monitoring 
activities under these regulations. However, NMFS may modify the 
proposed monitoring program or supplement the monitoring based on 
comments or new information received from the public during the public 
comment period.
    The Marine Corps' suggested means of accomplishing the necessary 
monitoring and reporting includes the following:
    1. Protected Species Observer Training: Operators of small boats, 
and other personnel monitoring for marine mammals from watercraft shall 
be required to take the Marine Species Awareness Training (Version 2), 
maintained and promoted by Department of the Navy. Pilots conducting 
range sweeps shall be instructed on marine mammal observation 
techniques during routine Range Management Department briefings. This 
training would make personnel knowledgeable of marine mammals, 
protected species, and visual cues related to the presence of marine 
mammals and protected species.
    2. Pre- and Post-Exercise Monitoring: The Marine Corps would 
conduct pre-exercise monitoring the morning of an exercise and post-
exercise monitoring the morning following an exercise, unless an 
exercise occurs on a Friday, in which case the post-exercise sweep 
would take place the following Monday. Weekly monitoring events would 
include a maximum of five pre-exercise and four post-exercise sweeps. 
The maximum number of days that would elapse between pre- and post-
exercise monitoring events would be approximately three days, and would 
normally occur on weekends. If the Marine Corps observe marine mammals 
during this monitoring, personnel would record sighting data identical 
to those collected by the PEDRO crew.
    3. Long-term Monitoring: The Marine Corps has awarded Duke 
University Marine Lab (Duke) a contract to obtain abundance, group 
dynamics (e.g., group size, age census), behavior, habitat use, and 
acoustic data on the bottlenose dolphins which inhabit Pamlico Sound, 
specifically those around BT-9 and BT-11. Duke began conducting boat-
based surveys and passive acoustic monitoring of bottlenose dolphins in 
Pamlico Sound in 2000 (Read et al., 2003) and specifically at BT-9 and 
BT-11 in 2003 (Mayer, 2003). To date, boat-based surveys indicate that 
bottlenose dolphins may be resident to Pamlico Sound and use BT 
restricted areas on a frequent basis. Passive acoustic monitoring (PAM) 
provides more detailed insight into how dolphins use the two ranges, by 
monitoring for their vocalizations year-round, regardless of weather 
conditions or darkness. In addition to these surveys, Duke's scientists 
are testing a real-time passive acoustic monitoring system at BT-9 that 
will allow automated detection of bottlenose dolphin whistles, 
providing yet another method of detecting dolphins prior to training 
operations.
    4. Reporting: The Marine Corps will submit an annual report to NMFS 
on December 7 of each year. The first report will cover the time period 
from issuance of the Letter of Authorization through September 7, 2015. 
Each annual report after that time will cover the time period from 
September 8th through September 7th of the following year.
    The Marine Corps will submit a final comprehensive report to NMFS 
no later than 180 days prior to expiration of these regulations. This 
report must summarize the findings made in all previous reports and 
assess both the impacts at each of the bombing targets and the 
cumulative impact on bottlenose dolphin from the specified activities.
    The reports will summarize the type and amount of training 
exercises conducted, all marine mammal observations made during 
monitoring, and if mitigation measures were implemented. The report 
will also address the effectiveness of the monitoring plan in detecting 
marine mammals.

General Notification of Injured or Dead Marine Mammals

    The Marine Corps will systematically observe training operations 
for injured or disabled marine mammals. In addition, the Marine Corps 
will monitor the principal marine mammal stranding networks and other 
media to correlate analysis of any dolphin strandings that could 
potentially be associated with BT-9 or BT-11 training operations.
    Marine Corps personnel will ensure that they notify NMFS 
immediately or as soon as clearance procedures allow if an injured, 
stranded, or dead marine mammal is found during or shortly after, and 
in the vicinity of, any training operations. The Marine Corps 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).
    In the event that an injured, stranded, or dead marine mammal is 
found by Marine Corps personnel that is not in the vicinity of, or 
found during or shortly after operations, the Marine Corps personnel 
will report the same information as listed above as soon as 
operationally feasible and clearance procedures allow.

General Notification of a Ship Strike

    In the event of a vessel strike, at any time or place, the Marine 
Corps shall do the following:
     Immediately report to us the species identification (if 
known), location (lat/long) of the animal (or the strike if the animal 
has disappeared), and whether the animal is alive or dead (or unknown);
     Report to us as soon as operationally feasible the size 
and length of the animal, an estimate of the injury status (e.g., dead, 
injured but

[[Page 41394]]

alive, injured and moving, unknown, etc.), vessel class/type and 
operational status;
     Report to NMFS the vessel length, speed, and heading as 
soon as feasible; and
     Provide us a photo or video, if equipment is available.

Adaptive Management

    NMFS may modify or augment the existing mitigation or monitoring 
measures (after consulting with the Marine Corps regarding the 
practicability of the modifications) 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 Marine Corps' monitoring from the previous 
year.
    2. Results from marine mammal and sound research; or
    3. 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.

Research

    The Marine Corps has funded surveys performed by Duke University 
researchers and provided financial support to augment surveys conducted 
by the NMFS Southeast Fisheries Science Center. Information and 
knowledge gained from the Marine Corps-funded research has contributed 
significantly to the understanding of bottlenose dolphin stocks, 
including their distribution and movement, in Pamlico Sound, NC.
    The Marine Corps has contracted with Duke University to develop and 
test a real-time passive acoustic monitoring system that will allow 
automated detection of bottlenose dolphin whistles (Appendix C in the 
application). The work has been performed in two phases. Phase I was 
the development of an automated signal detector (a software program) to 
recognize the whistles of dolphins at BT-9 and BT-11. Phase II, 
currently in progress, is the assembly and deployment of a prototype 
real-time monitoring unit on one of the towers in the BT-9 range. The 
success of this effort will help direct future research initiatives and 
activities within the Marine Corps Air Station Cherry Point Range 
Complex. As funding becomes available and research opportunities arise, 
Marine Corps Air Station Cherry Point will continue to fund and 
participate in studies that will enhance the Marine Corps' 
understanding of marine mammals in Pamlico Sound.
Estimated Numbers of Marine Mammals Taken by Harassment, Injury, and 
Mortality
    NMFS' analysis identified the lethal responses, physiological 
responses, and behavioral responses that could potentially result from 
exposure to underwater explosive detonations. In this section, we will 
relate the potential effects to marine mammals from underwater 
detonation of explosives and direct strike by ordnance to the MMPA 
regulatory definitions of Level A and Level B harassment, serious 
injury, and mortality. This section will also quantify the effects that 
might occur from the proposed military readiness activities in BT-9 and 
BT-11.

Definition of Harassment

    The NDAA removed the ``small numbers'' and ``specified geographic 
region'' limitations indicated earlier in this document and amended the 
definition of harassment as it applies to a ``military readiness 
activity'' to read as follows: (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].

Level B Harassment

    Of the potential effects described earlier in this document, the 
following are the types of effects that fall into the Level B 
harassment category:
    Behavioral Harassment--Behavioral disturbance that rises to the 
level described in the above definition, when resulting from exposures 
to non-impulsive or impulsive sound, is Level B harassment. Some of the 
lower level physiological stress responses discussed earlier would 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 predicting 
Level B harassment based on estimated behavioral responses, those takes 
may have a stress-related physiological component.
    Acoustic Masking and Communication Impairment--NMFS considers 
acoustic masking to be 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.
    Temporary Threshold Shift (TTS)--As discussed previously, TTS can 
affect how an animal behaves in response to the environment, including 
conspecifics, predators, and prey. NMFS classifies TTS (when resulting 
from exposure to explosives and other impulsive sources) as Level B 
harassment, not Level A harassment (injury).

Level A Harassment

    Of the potential effects that were described earlier, the following 
are the types of effects that fall into the Level A Harassment 
category:
    Permanent Threshold Shift (PTS)--PTS (resulting either from 
exposure to explosive detonations) is irreversible and NMFS considers 
this to be an injury.
    Physical Disruption of Tissues Resulting from Explosive Shock 
Wave-- NMFS classifies physical damage of tissues resulting from a 
shock wave (from an explosive detonation) as an injury.
    Ordnance Strike--NMFS considers direct strike by ordnance 
associated with the specified activities to be serious injury or 
mortality.

Impulsive Sound Explosive Thresholds

    For the purposes of this proposed regulation, NMFS has identified 
three levels of take for the Marine Corps' training exercises: Level B 
harassment; Level A harassment; and mortality (or serious injury 
leading to mortality). We present the acoustic thresholds for impulse 
sounds in this section.
    In the absence of mitigation, it is likely that the activities 
could kill or injure marine mammals as a result of an explosive 
detonation, due to the response of air cavities in the body (e.g., 
lungs and intestines). These effects are likely to be most severe in 
near surface waters where the reflected shock wave creates a region of 
negative pressure called cavitation. Extensive lung hemorrhage is 
debilitating and potentially fatal. Suffocation caused by lung 
hemorrhage is likely to be the major cause of marine mammal death from 
underwater shock waves. The estimated range for the onset of extensive 
lung hemorrhage to marine mammals varies depending upon the animal's 
weight, with the smallest mammals having the greatest potential hazard 
range.
    Table 7 summarizes the marine mammal impulsive sound explosive

[[Page 41395]]

thresholds used for the Marine Corps' acoustic impact modeling for 
marine mammal take in its application and 2009 EA. Several standard 
acoustic metrics (Urick, 1983) describe the thresholds for predicting 
potential physical impacts from underwater pressure waves. They are:
     Total energy flux density or Sound Exposure Level (SEL). 
For plane waves (as assumed here), SEL is the time integral of the 
instantaneous intensity, where the instantaneous intensity is defined 
as the squared acoustic pressure divided by the characteristic 
impedance of sea water. Thus, SEL is the instantaneous pressure 
amplitude squared, summed over the duration of the signal. Standard 
units are dB referenced to 1 re: [mu]Pa\2\-s.
     \1/3\-octave SEL. This is the SEL in a \1/3\-octave 
frequency band. A \1/3\-octave band has upper and lower frequency 
limits with a ratio of 21:3, creating bandwidth limits of about 23 
percent of center frequency.
     Positive impulse. This is the time integral of the initial 
positive pressure pulse of an explosion or explosive-like wave form. 
Standard units are Pa-s or psi-ms.
     Peak pressure. This is the maximum positive amplitude of a 
pressure wave, dependent on charge mass and range. Standard units are 
psi, [mu]Pa, or Bar.

 Table 7--Impulsive Sound Explosive Thresholds Used by the Marine Corps
               in its Previous Acoustics Impacts Modeling
------------------------------------------------------------------------
          Criterion           Criterion definition        Threshold
------------------------------------------------------------------------
Mortality...................  Onset of severe lung  31 psi-msec
                               injury (mass of       (positive impulse).
                               dolphin calf: 12.2
                               kg) (1% probability
                               of mortality).
Level A harassment (injury).  50% animals would     205 dB re 1
                               experience ear drum   [micro]Pa\2\-s EFD
                               rupture, 30%          (full spectrum
                               animals exposed       energy).
                               sustain permanent
                               threshold shift.
Level A harassment (injury).  Onset of slight lung  13 psi-msec
                               injury (mass of       (positive impulse).
                               dolphin calf: 12.2
                               kg).
Level B harassment..........  TTS and associated    23 psi peak pressure
                               behavioral
                               disruption.
Level B harassment..........  TTS and associated    182 dB re: 1
                               behavioral            [micro]Pa\2\-s
                               disruption (dual      EFD,* \1/3\ octave
                               criteria).            band.
Level B harassment..........  Sub-TTS behavioral    177 dB re: 1
                               disruption (for       [micro]Pa\2\-s
                               multiple/sequential   EFD,* \1/3\ octave
                               detonations only).    band.
------------------------------------------------------------------------
* Note: In greatest \1/3\-octave band above 10 Hz or 100 Hz.

    NMFS previously developed the explosive thresholds for assessing 
impacts of explosions on marine mammals shown in Table 7 for the shock 
trials of the USS Seawolf and USS Winston S. Churchill. However, at 
NMFS' recommendation, the Marine Corps has updated the thresholds used 
for onset of temporary threshold shift (TTS; Level B Harassment) and 
onset of permanent threshold shift (PTS; Level A Harassment) to be 
consistent with the thresholds outlined in the Navy's report titled, 
``Criteria and Thresholds for U.S. Navy Acoustic and Explosive Effects 
Analysis Technical Report,'' which the Navy coordinated with NMFS. NMFS 
believes that the thresholds outlined in the Navy's report represent 
the best available science. The report is available on the internet at: 
http://aftteis.com/Portals/4/aftteis/Supporting%20Technical%20Documents/Criteria_and_Thresholds_for_US_Navy_Acoustic_and_Explosive_Effects_Analysis-Apr_2012.pdf.
    Table 8 in this document outlines the revised acoustic thresholds 
used by NMFS for this proposed rulemaking when addressing noise impacts 
from explosives.

                    Table 8--Impulsive Sound Explosive Thresholds Used by the Marine Corps in Its Current Acoustics Impacts Modeling
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                           Behavior                                            Slight injury
         Group          --------------------------------------------------------------------------------------------------------------     Mortality
                                Behavioral                TTS                 PTS         Gastro-intestinal tract         Lung
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mid-frequency Cetaceans  167 dB SEL.............  172 dB SEL or 23    187 dB SEL or       104 psi................  39.1 M\1/3\         91.4 M\1/3\
                                                   psi.                45.86 psi.                                   (1+[DRm/            (1+DRm/
                                                                                                                    10.081])\1/2\ Pa-   10.081])\1/2\ Pa-
                                                                                                                    sec.                sec
                                                                                                                   Where: M = mass of  Where: M = mass
                                                                                                                    the animals in kg.  of the animals
                                                                                                                   DRm = depth of the   in kg
                                                                                                                    receiver (animal)  DRm = depth of
                                                                                                                    in meters.          the receiver
                                                                                                                                        (animal) in
                                                                                                                                        meters
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The Marine Corps conservatively modeled that all explosives would 
detonate at a 1.2 m (3.9 ft) water depth despite the training goal of 
hitting the target, resulting in an above water or on land explosion. 
For sources detonated at shallow depths, it is frequently the case that 
the explosion may breech the surface with some of the acoustic energy 
escaping the water column. Table 9 provides the estimated maximum range 
or radius, from the detonation point to the various thresholds 
described in Table 8.

[[Page 41396]]



                                Table 9--Distances (m) to Harassment Thresholds From the Marine Corps' Explosive Ordnance
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                               Level A harassment                       Level B harassment
           Proposed ordnance              NEW  (lbs)       Mortality    --------------------------------------------------------------------------------
                                                                             187 dB        46 psi-msec       172 dB           23 psi          167 dB
--------------------------------------------------------------------------------------------------------------------------------------------------------
30 mm HE..............................          0.1019              0             297.8             8.5           677.7             70             856.7
40 mm HE..............................          0.1199              0             168.2             9.5           467.5             64.4           604.6
2.75-inch Rocket......................          4.8                29.3           270.4            49.1           631.5            197.3           830.4
5-inch Rocket.........................         15.0                39.8           346.1            63.4           778.7            233.4         1,032.4
G911 Grenade..........................          0.5                 9.6           136.4            23.3           416.2            103.5           547.3
--------------------------------------------------------------------------------------------------------------------------------------------------------

Density Estimation

    The Marine Corps bases its method to estimate the number of marine 
mammals potentially affected using bottlenose dolphin densities (summer 
and winter), the amount and type of ordnance proposed, and distances to 
NMFS' harassment threshold criteria.
    In 2000, Duke conducted a boat-based mark-recapture survey 
throughout the estuaries, bays and sounds of North Carolina (Read et 
al., 2003). The 2000 boat-based survey yielded a dolphin density of 
0.183 per square kilometer (km\2\) (0.071 square mile (mi\2\)) based on 
an estimate of 919 dolphins for the northern inshore waters divided by 
an estimated 5,015 km\2\ (1,936 mi\2\) survey area.
    In a follow-on aerial study (July 2002-June 2003) specifically in 
and around BT-9 and BT-11, Duke reported one sighting in the restricted 
area surrounding BT-9, two sightings in proximity to BT-11, and seven 
sightings in waters adjacent to the bombing targets (Maher, 2003). In 
total, 276 bottlenose dolphins were sighted ranging in group size from 
two to 70 animals with mean dolphin density in BT-11 more than twice as 
large as the density of any of the other areas; however, the daily 
densities were not significantly different (Maher, 2003). The 
researchers calculated the estimated dolphin density at BT-9 and BT-11 
based on these surveys to be 0.11 dolphins/km\2\, and 1.23 dolphins/
km\2\, respectively.
    For the proposed regulations, the Marine Corps chose to estimate 
take of dolphins based on the higher density reported from the summer 
2000 surveys (0.183/km\2\). Although the researchers conducted the 
aerial surveys year round and provided seasonal density estimates, the 
average year-round density from the aerial surveys is 0.0936, lower 
than the 0.183/km\2\ density chosen to calculate take for purposes of 
these proposed regulations. Additionally, Goodman et al. (2007) 
acknowledged that boat based density estimates may be more accurate 
than the uncorrected estimates derived from the aerial surveys.

Estimated Take From Explosives at BT-9

    In order to calculate take from ordnance, the Marine Corps 
considered the distances to which animals could be harassed along with 
dolphin density (0.183 km\2\) and based take calculations for munitions 
firing on 100 percent water detonation. Because the goal of training is 
to hit the targets and not the water, NMFS considers these take 
estimates based on 100 percent water detonation of munitions to be 
conservative.
    The Marine Corps' 2009 EA (Appendix B) and its addendum to its 
application present a detailed discussion of the computational process 
for the modeling, which ultimately generates two outcomes--the zones of 
influence and marine mammal exposures. Briefly, the Marine Corps 
calculated the expected acoustic harassment takes from each source on a 
per in-water explosive basis using the following steps:
     For the relevant environmental acoustic parameters, 
transmission loss (TL) estimates are computed, sampling the water 
column over the appropriate depth and range intervals. TL calculations 
are also made over non-overlapping one-third octave bands for a wide 
range of frequencies.
     The accumulated energy within the waters where the source 
is ``operating'' is sampled over a volumetric grid. At each grid point, 
the received energy from each source emission is modeled as the 
effective energy source level reduced by the appropriate propagation 
loss from the location of the source at the time of the emission to 
that grid point and summed. For the peak pressure or positive impulse, 
the appropriate metric is similarly modeled for each emission. The 
maximum value of that metric, over all emissions, is stored at each 
grid point.
     The impact volume for a given threshold is estimated by 
summing the incremental volumes represented by each grid point for 
which the appropriate metric exceeds that threshold.
     Finally, they estimate the number of harassments as the 
vector product of the animal density depth profile and the impact 
volume and scaled by user-specified surface animal densities.
    Table 10 presents the annual estimated take of bottlenose dolphins 
from exposure to explosive ordnance based on current thresholds. The 
Marine Corps has requested, and NMFS proposes to authorize the 
incidental take of 323 bottlenose dolphins from Level B Harassment 
(behavioral and TTS) annually and 33 bottlenose dolphins from Level A 
Harassment (PTS) annually. Table 10 also includes estimated take by 
mortality (or serious injury leading to mortality) as a result of 
exposure to impulsive sound explosions resulting in an estimate of 5 
bottlenose dolphins, annually. In consideration of the effectiveness of 
the mitigation measures, NMFS does not expect take by serious injury or 
mortality related to exposure to explosive ordnance to occur. However, 
because the probability is not zero, the Marine Corps has requested 
these takes incidental to its operations.

[[Page 41397]]



           Table 10--Annual and 5-Year Estimated Take of Bottlenose Dolphins From Exposure to Explosive Ordnance Based on Indicated Thresholds
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                   Serious injury        Level A         Level B harassment  (TTS and
                                                                                 ------------------    harassment                  behavior)
                       Proposed ordnance                            Mortality                             (PTS)      -----------------------------------
                                                                                       104 psi     ------------------
                                                                                                       187 dB SEL        172 dB SEL        167 dB SEL
--------------------------------------------------------------------------------------------------------------------------------------------------------
30 mm HE......................................................                 0              0.51              3.64             17.18             10.41
40 mm HE......................................................                 0              1.81             23.78            153.84             95.37
2.75-inch Rocket..............................................              0.06               0.5              3.37             15.35              9.82
5-inch Rocket.................................................              0.03              0.27              1.59              7.21              4.77
G911 Grenade..................................................             0.004               0.8              0.06              4.60              2.91
Annual Totals *...............................................                 1                 4                33               199               124
                                                               -----------------------------------------------------------------------------------------
5-Year Totals.................................................                  25                               165                 1,615
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Estimate rounded to the nearest whole number.

Estimated Take by Direct Strike of Ordnance

    A potential cause of mortality (in the absence of mitigation) would 
be direct strike by ordnance. In the absence of mitigation, it is 
likely that the activities could kill or injure marine mammals as a 
result of ordnance hitting the animals. Table 11 presents the annual 
estimated take of bottlenose dolphins from direct strike by ordnance. 
In consideration of the effectiveness of the mitigation measures, NMFS 
does not expect take by serious injury or mortality related to direct 
strike to occur. However, because the probability is not zero, NMFS is 
proposing to authorize a total of five takes by mortality (or serious 
injury leading to mortality) related to direct strike of ordnance over 
the course of the 5-year regulation.

                                  Table 11--Annual Estimated Take of Bottlenose Dolphins From Direct Strike by Ordnance
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                Estimated annual       Strike       Estimated number
                        Bombing target                           ordnance levels     probability       of strikes      Annual estimate   5-Year estimate
--------------------------------------------------------------------------------------------------------------------------------------------------------
BT-9..........................................................         1,225,815       2.61 x 10-7              0.32                 1                 5
BT-11.........................................................    \1\ 451,686.24        9.4 x 10-8             0.042                 0                 0
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ BT-11 based on 36 percent of the total estimated ordnance levels (1,254,684) with a deployment footprint over water. NMFS rounded estimates greater
  than or equal to 0.10 to 1 to be more conservative. NMFS considered the modeled numbers less than 0.10 to be discountable for estimating take.

    The Marine Corps conducted modeling for the bombing targets to 
determine the total surface area needed to contain 99.99 percent of 
initial and ricochet impacts (95 percent confidence interval) for each 
aircraft and ordnance type. It then generated the surface area or 
footprints of weapon impact areas associated with air-to-ground 
ordnance delivery and estimated that at both BT-9 and BT-11 the 
probability of deployed ordnance landing in the impact footprint is 
essentially 1.0, since the footprints were designed to contain 99.99 
percent of impacts, including ricochets. However, only 36 percent of 
the weapon footprint for BT-11 is over water in Rattan Bay. Water 
depths in Rattan Bay range from 3 m (10 ft) in the deepest part of the 
bay to 0.5 m (1.6 ft) close to shore.
    The Marine Corps calculated the probability of hitting a bottlenose 
dolphin at the bombing targets by multiplying the dolphin's dorsal 
surface area by the density estimate of dolphins in the area. It 
estimated that the dorsal surface area of a bottlenose dolphin was 
approximately 1.425 m\2\ (15.3 ft\2\) with an average length and width 
of 2.85 m (9.3 ft) and 0.5 m (1.6 ft), respectively. Then using the 
density estimate of 0.183 km\2\, it calculated the probability of 
direct strike in the waters of BT-9 as 2.61 x 10-7 and the 
probability of direct strike in the waters of BT-11 as 9.4 x 
10-8. The probability for BT-11 is 64 percent lower, because 
only 36 percent of the weapons footprint occurs over the water column. 
This method is the best available information for estimating the 
probability of ordnance striking a marine mammal in BT-9 or BT-11.

Take From Vessel Presence

    Interactions with vessels are not a new experience for bottlenose 
dolphins in Pamlico Sound. Pamlico Sound is heavily used by 
recreational, commercial (fishing, daily ferry service, tugs, etc.), 
and military (including the Navy, Air Force, and Coast Guard) vessels 
year-round. The NMFS' Southeast Regional Office has developed marine 
mammal viewing guidelines to educate the public on how to responsibly 
view marine mammals in the wild and avoid causing a take (http://www.nmfs.noaa.gov/pr/education/southeast). The guidelines recommend 
that vessels should remain a minimum of 50 yards (45.7 m; 150 ft) from 
a dolphin, operated in a predictable manner, avoid excessive speed or 
sudden changes in speed or direction in the vicinity of animals, and 
not pursue, chase, or separate a group of animals. The Marine Corps 
would abide by these guidelines to the fullest extent practicable. The 
Marine Corps would not engage in high speed exercises if personnel 
detect a marine mammal within the immediate area of the bombing targets 
prior to training commencement and would never closely approach, chase, 
or pursue dolphins. Personnel monitoring on the vessels, marking 
success rate of target hits, and monitoring the remote camera would 
facilitate detection of marine mammals within the bombing targets.
    Based on the description of the action, the other activities 
regularly occurring in the area, the species that may be exposed to the 
activity and their observed behaviors in the presence of vessel 
traffic, and the implementation of measures to avoid vessel strikes, 
NMFS has determined that it is unlikely that the small boat maneuvers 
during

[[Page 41398]]

surface-to-surface maneuvers would result in the take of any marine 
mammals, in the form of either behavioral harassment, injury, serious 
injury, or mortality.

Negligible Impact Analysis and Preliminary Determinations

    Negligible impact is ``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'' (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of Level B harassment takes, 
alone, is not enough information on which to base an impact 
determination. In addition to considering estimates of the number of 
marine mammals that might be ``taken'' through behavioral harassment, 
NMFS must consider other factors, such as the likely nature of any 
responses (their intensity, duration, etc.), the context of any 
responses (critical reproductive time or location, migration, etc.), as 
well as the number and nature of estimated Level A harassment takes, 
the number of estimated mortalities, and effects on habitat.
    Pursuant to our regulations implementing the MMPA, NMFS requires an 
applicant 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, serious injury, and/or death). This estimate 
informs the analysis that we must perform to determine whether the 
activity will have a ``negligible impact'' on the species or stock. In 
making a negligible impact determination, NMFS considers a variety of 
factors, including but not limited to: (1) The number of anticipated 
serious injuries and mortalities; (2) the number and nature of 
anticipated injuries (Level A harassment); (3) the number, nature, 
intensity, and duration of Level B harassment; and (4) the context in 
which the takes occur.
    NMFS proposes authorizing Level A and Level B harassment and 
serious injury and/or mortality of bottlenose dolphins over the course 
of the 5-year period. The Marine Corps has described its specified 
activities based on best estimates of the number of sorties that it 
proposes to conduct training exercises at BT-9 and BT-11. The exact 
number of ordnance expenditures may vary from year to year, but will 
not exceed the 5-year total of ordnance expenditures based on the 
information in Tables 3 and 4. NMFS does not anticipate that the take 
totals proposed for authorization would exceed the 5-year totals 
indicated in Tables 10 and 11.

Tolerance

    Depending on the intensity of the shock wave and size, location, 
and depth of the animal, an animal can exhibit tolerance from hearing 
the blast sound. However, tolerance effects on bottlenose dolphins 
within the bombing target areas are difficult to assess given their 
affinity for the area. Scientific boat based surveys conducted 
throughout Pamlico Sound conclude that dolphins use the areas around 
the BTs more frequently than other portions of Pamlico Sound (Maher, 
2003), despite the Marine Corps actively training in a manner identical 
to the specified activities described here for years. Because of the 
low concentration of bottlenose dolphins present within the BT-9 and 
BT-11 areas, the incorporation of mitigation measures to lessen 
effects, and the short durations of the missions, NMFS expects that 
tolerance effects would be minimal and would affect a small number of 
marine mammals on an infrequent basis.

Masking

    For reasons stated previously in this notice, NMFS expects masking 
effects from ordnance detonation to be minimal because masking is 
typically of greater concern for those marine mammals that utilize low 
frequency communications, such as baleen whales. While it may occur 
temporarily, NMFS does not expect auditory masking to result in 
detrimental impacts to an individual's or population's survival, 
fitness, or reproductive success. Dolphin movement is not restricted 
within the BT-9 or BT-11 ranges, allowing for movement out of the area 
to avoid masking impacts.

Disturbance

    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 vicinity of BT-9 and BT-11 and the implementation 
of monitoring and mitigation measures. Moreover, NMFS does not expect 
animals to experience repeat exposures to the same sound source, as 
bottlenose dolphins would likely move away from the source after being 
exposed. In addition, NMFS expects that these isolated exposures, when 
received at distances of Level B behavioral harassment, would cause 
brief startle reactions or short-term behavioral modification by the 
animals. These brief reactions and behavioral changes would disappear 
when the exposures cease.
    The Level B harassment takes would likely result in dolphins being 
temporarily affected by bombing or gunnery exercises. In addition, NMFS 
may attribute takes to animals not using the area when exercises are 
occurring; however, this is difficult to calculate. Instead, NMFS 
considers if the specified activities occur during and within habitat 
important to vital life functions to better inform the preliminary 
negligible impact determination. Read et al. (2003) concluded that 
dolphins rarely occur in open waters in the middle of North Carolina 
sounds and large estuaries, but instead are concentrated in shallow 
water habitats along shorelines. However, no specific areas have been 
identified as vital reproduction or foraging habitat.
    NMFS and the Marine Corps have estimated that individuals of 
bottlenose dolphins may sustain some level of temporary 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. Although the degree of TTS depends on the received noise 
levels and exposure time, studies show that TTS is reversible. NMFS 
expects the animals' sensitivity to recover fully in minutes to hours 
based on the fact that the proposed underwater detonations are small in 
scale and isolated. In summary, we do not expect that these levels of 
received impulse noise from detonations would affect annual rates or 
recruitment or survival.

Stress Response

    NMFS expects short-term effects such as stress during underwater 
detonations, as repeated exposure to sounds from underwater explosions 
may cause physiological stress that could lead to long-term 
consequences for the individual such as reduced survival, growth, or 
reproductive capacity. However, the time scale of individual explosions 
is very limited, and the Marine Corps disperses its training exercises 
in space and time.
    Consequently, repeated exposure of individual bottlenose dolphins 
to sounds from underwater explosions is not likely and most acoustic 
effects are expected to be short-term and localized. NMFS does not 
expect long-term consequences for populations because the BT-9 and BT-
11 areas continue to support bottlenose dolphins in spite of ongoing 
missions. The best available data do not suggest that there is a

[[Page 41399]]

decline in the Pamlico Sound population due to these exercises.

Permanent Threshold Shift

    NMFS believes that many marine mammals would deliberately avoid 
exposing themselves to the received levels of explosive ordnance 
necessary to induce injury by moving away from or at least modifying 
their path to avoid a close approach. Also, in the unlikely event that 
an animal approaches the bombing target at a close distance, NMFS 
believes that the mitigation measures (i.e., the delay/postponement of 
missions) would typically ensure that animals would not be exposed to 
injurious levels of sound. As discussed previously, the Marine Corps 
utilizes both aerial and passive acoustic monitoring in addition to 
personnel on vessels to detect marine mammals for mitigation 
implementation. The potential for permanent hearing impairment and 
injury is low due to the incorporation of the proposed mitigation 
measures specified in the proposed rulemaking.

Lethal Responses

    As stated previously, NMFS also proposes to authorize take by 
mortality (and serious injury leading to mortality), though there have 
been no recorded incidents of mortality or serious injury of marine 
mammals resulting from previous missions in BT-9 or BT-11 to date. 
Based on the Marine Corps' compliance with previous authorizations for 
the same activities, NMFS expects the proposed mitigation and 
monitoring measures to minimize the potential risk for serious injury 
or mortality and does not expect these types of takes to occur. NMFS 
does not expect the number of takes from mortality or serious injury to 
increase from previous authorizations to the Marine Corps; rather, the 
agency is proposing to authorize these takes for the first time.
    The Marine Corps has conducted gunnery and bombing training 
exercises at BT-9 and BT-11 for several years and, to date, the 
monitoring reports do not indicate that dolphin injury, serious injury, 
or mortality has occurred as a result of its training exercises. Also, 
the Marine Corps has a history of notifying the NMFS stranding network 
when any injured or stranded animal comes ashore or is spotted by 
personnel on the water. The stranding responders have examined each of 
the stranded animals, confirming that it was unlikely that the Marine 
Corps' exercises resulted in the death or injury of the stranded marine 
mammal.

Summary

    As described in the Affected Species section of this notice, 
bottlenose dolphin stock segregation is complex with stocks overlapping 
throughout the coastal and estuarine waters of North Carolina. It is 
not possible for the Marine Corps to determine to which stock any 
individual dolphin taken during training activities belongs, as this 
can only be accomplished through genetic testing. However, it is likely 
that many of the dolphins encountered would belong to the Northern or 
Southern North Carolina Estuarine System stocks. These stocks have 
abundance estimates of 950 and 118 animals, respectively and are not 
listed as threatened or endangered under the ESA.
    In addition, the potential for temporary or permanent hearing 
impairment and injury is low and through the incorporation of the 
proposed mitigation measures specified in this document would have the 
least practicable adverse impact on the affected species or stocks. The 
information contained in the Marine Corps' application, the 2009 EA, 
and this document support NMFS' finding that impacts will be mitigated 
by implementation of a conservative safety range for marine mammal 
exclusion in Rattan Bay, incorporation of platform and aerial survey 
monitoring efforts both prior to and after detonation of explosives, 
and delay/postponement/cancellation of detonations whenever marine 
mammals or other specified protected resources are either detected 
within the bombing target areas or enter the bombing target areas at 
the time of detonation, or if weather and sea conditions preclude 
adequate surveillance.
    The Marine Corps has complied with the requirements of the previous 
incidental harassment authorizations issued for similar activities, and 
reported few observed takes of marine mammals incidental to these 
training exercises.
    Based on the best available information, NMFS proposes to 
authorize: Take by Level B harassment of 1,615 bottlenose dolphins; 
take by Level A harassment of 165 bottlenose dolphins; and take by 
mortality of 30 bottlenose dolphins. However, this represents an 
overestimate of the number of individuals harassed over the duration of 
the final rule and LOA because these totals represent much smaller 
numbers of individuals that may be harassed multiple times. There are 
no stocks known from the action area listed as threatened or endangered 
under the ESA. Two bottlenose dolphin stocks designated as strategic 
under the MMPA may be affected by the Marine Corps' activities. In this 
case, under the MMPA, strategic stock means a marine mammal stock for 
which the level of direct human-caused mortality exceeds the potential 
biological removal level. These include the Southern North Carolina 
Estuarine System and Northern North Carolina Estuarine System Stocks. 
NMFS does not expect the proposed action likely to result in long-term 
impacts such as permanent abandonment or reduction in presence with BT-
9 or BT-11. No impacts are expected at the population or stock level.
    For this proposed rulemaking, taking into account information 
presented in this notice, the Marine Corps' application and 2014 
application addendum, the 2009 EA, and results from previous monitoring 
reports, NMFS has preliminarily determined that the total level of take 
incidental to authorized training exercises over the 5-year effective 
period of the regulations would have a negligible impact on the one 
marine mammal species and stocks affected at BT-9 and BT-11 in Pamlico 
Sound, NC.

Impact on Availability of Affected Species or Stock for Taking for 
Subsistence Uses

    There are no relevant subsistence uses of marine mammals implicated 
by this action. Therefore, NMFS has determined that the total taking of 
affected species or stocks would not have an unmitigable adverse impact 
on the availability of such species or stocks for taking for 
subsistence purposes.

Endangered Species Act (ESA)

    For the reasons explained above, this action will not affect any 
ESA-listed species or designated critical habitat under NMFS' 
jurisdiction. Therefore, there is no requirement for NMFS to consult 
under Section 7 of the ESA on the issuance of an Authorization under 
section 101(a)(5)(A) of the MMPA.

National Environmental Policy Act (NEPA)

    On February 11, 2009, the Marine Corps issued a Finding of No 
Significant Impact for its Environmental Assessment (EA) on MCAS Cherry 
Point Range Operations. Based on the analysis of the EA, the Marine 
Corps determined that the proposed action would not have a significant 
impact on the human environment. NMFS adopted the Marine Corps' EA and 
signed a Finding of No Significant Impact on August 31, 2010. NMFS has 
reviewed the EA, the

[[Page 41400]]

application, and public comments, and has determined that a 
supplemental EA is warranted to address: (1) The proposed increases in 
ordnance usage; and (2) the use of revised thresholds for estimating 
potential impacts on marine mammals from explosives because these are 
substantial changes to the proposed action or new environmental impacts 
or concerns. The agency intends to prepare a SEA and incorporate 
relevant portions of the Marine Corps' EA by reference. The 2009 EA 
referenced above is available for review at http://www.nmfs.noaa.gov/pr/permits/incidental.htm.

Request for Information

    NMFS requests interested persons to submit comments, information, 
and suggestions concerning the Marine Corps' application and this 
proposed rule (see ADDRESSES). All comments will be reviewed and 
evaluated as NMFS prepares a final rule and makes final determinations 
on whether to issue the requested authorization. In addition, this 
notice and referenced documents provide all environmental information 
relevant to our proposed action for the public's review and we solicit 
comments which we will also consider as we make final NEPA 
determinations.

Classification

    This action has been determined to be not significant for purposes 
of Executive Order 12866.
    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 proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
This proposed rule would apply only to the U.S. Marine Corps, a Federal 
agency, which is not considered to be a small governmental 
jurisdiction, small organization/business, as defined by the Regulatory 
Flexibility Act. This rulemaking authorizes Marine Corps Air Station 
Cherry Point Range Complex to take of marine mammals incidental to a 
specified activity. The specified activity defined in the proposed rule 
includes the use of explosive detonations, which are only used by the 
U.S. military, during training activities that are only conducted by 
the Marine Corps at BT-9 and BT-11. Additionally, any requirements 
imposed by a Letter of Authorization issued pursuant to these 
regulations, and any monitoring or reporting requirements imposed by 
these regulations, will be applicable only to Marine Corps Air Station 
Cherry Point Range Complex.
    This action may indirectly affect a small number of contractors 
providing services related to reporting the impact of the activity on 
marine mammals, some of whom may be small businesses, but the number 
involved would not be substantial. Further, since the monitoring and 
reporting requirements are what would lead to the need for their 
services, the economic impact on any contractors providing services 
relating to reporting impacts would be beneficial. Because the Chief 
Counsel for Regulation certified that this proposed rule would not have 
significant economic impact on a substantial number of small entities, 
a regulatory flexibility analysis is not required and none has been 
prepared.

List of Subjects in 50 CFR Part 218

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

    Dated: July 9, 2014.
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

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

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

0
2. Subpart E is added to part 218 to read as follows:
Subpart E--Taking Marine Mammals Incidental to U.S. Marine Corps 
Training Exercises at Brant Island Bombing Target and Piney Island 
Bombing Range, Pamlico Sound, North Carolina
Sec.
218.40 Specified activity and location of specified activities.
218.41 Effective dates.
218.42 Permissible methods of taking.
218.43 Prohibitions.
218.44 Mitigation.
218.45 Requirements for monitoring and reporting.
218.46 Applications for Letters of Authorization.
218.47 Letters of Authorization.
218.48 Renewal and Modifications of Letters of Authorization.

Subpart E--Taking Marine Mammals Incidental to U.S. Marine Corps 
Training Exercises at Brant Island Bombing Target and Piney Island 
Bombing Range, Pamlico Sound, North Carolina


Sec.  218.40  Specified activity and location of specified activities.

    (a) Regulations in this subpart apply only to the U.S. Marine Corps 
(Marine Corps) for the incidental taking of marine mammals that occurs 
in the area outlined in paragraph (b) of this section and that occurs 
incidental to the activities described in paragraph (c) of this 
section.
    (b) The taking of marine mammals by the Marine Corps is only 
authorized if it occurs within the Brant Island Target (BT-9) and Piney 
Island Bombing Range (BT-11) bombing targets at the Marine Corps Air 
Station Cherry Point Range Complex located within Pamlico Sound, North 
Carolina (as depicted in Figure 3-1 of the Marine Corps' request for 
regulations and Letter of Authorization). The BT-9 area is a water-
based bombing target and mining exercise area located approximately 52 
kilometers (km) (32.3 miles (mi)) northeast of Marine Air Corps Station 
Cherry Point. The BT-11 area encompasses a total of 50.6 square 
kilometers (km\2\) (19.5 square miles (mi\2\)) on Piney Island located 
in Carteret County, North Carolina.
    (c) The taking of marine mammals by the Marine Corps is only 
authorized of it occurs incidental to the following activities within 
the annual amounts of use:
    (1) The level of training activities in the amounts indicated here:
    (i) Surface-to-Surface Exercises--up to 471 vessel-based sorties 
annually at BT-9 and BT-11; and
    (ii) Air-to-Surface Exercises--up to 14,586 air-based based sorties 
annually at BT-9 and BT-11.
    (2) The use of the following live ordnance for Marine Corps 
training activities at BT-9, in the total amounts over the course of 
the five-year rule indicated here:
    (i) 30 mm HE--17,160 rounds;
    (ii) 40 mm HE--52,100 rounds;
    (iii) 2.75-inch Rocket--1,100 rounds;
    (iv) 5-inch Rocket--340 rounds; and
    (v) G911 Grenade--720 rounds.
    (3) The use of the following inert ordnance for Marine Corps 
training activities at BT-9 and BT-11, in the total amounts over the 
course of the five-year rule indicated here:
    (i) Small arms excluding .50 cal (7.62 mm)--2,628,050 rounds at BT-
9 and 3,054,785 rounds at BT-11;
    (ii) 0.50 Caliber arms--2,842,575 rounds at BT-9 and 1,833,875 
rounds at BT-11;

[[Page 41401]]

    (iii) Large arms (up to 25 mm)--602,025 rounds at BT-9 and 
1,201,670 rounds at BT-11;
    (iv) Rockets, inert (2.75-inch rocket, 2.75-inch illumination, 
2.75-inch white phosphorus, 2.75-inch red phosphorus; 5-inch rocket, 5-
inch illumination, 5-inch white phosphorus, 5-inch red phosphorus)--
4,220 rounds at BT-9 and 27,960 rounds at BT-11;
    (v) Bombs, inert (BDU-45 practice bomb, MK-76 practice bomb, MK-82 
practice bomb, MK-83 practice bomb)--4,055 rounds at BT-9 and 22,114 
rounds at BT-11; and
    (vi) Pyrotechnics--4,496 rounds at BT-9 and 8,912 at BT-11.


Sec.  218.41  Effective dates.

    Regulations in this subpart are effective from September 8, 2014 
until September 7, 2019.


Sec.  218.42  Permissible methods of taking.

    (a) Under a Letter of Authorization issued pursuant to Sec. Sec.  
216.106 and 218.47 of this chapter, the Holder of the Letter of 
Authorization may incidentally, but not intentionally, take marine 
mammals by Level A and Level B harassment, serious injury, and 
mortality within the area described in Sec.  218.40(b) of this chapter, 
provided the activity is in compliance with all terms, conditions, and 
requirements of these regulations and the appropriate Letter of 
Authorization.
    (b) The activities identified in Sec.  218.40(c) of this chapter 
must be conducted in a manner that minimizes, to the greatest extent 
practicable, any adverse impact on marine mammals and their habitat.
    (c) The incidental take of marine mammals under the activities 
identified in Sec.  218.40(c) is limited to the following species, by 
the indicated method of take and the indicated number:
    (1) Level B Harassment:
    (i) Atlantic bottlenose dolphin (Tursiops truncatus)--1,615.
    (ii) [Reserved]
    (2) Level A Harassment:
    (i) Atlantic bottlenose dolphin--165.
    (ii) [Reserved]
    (3) Mortality:
    (i) Atlantic bottlenose dolphin--30.
    (ii) [Reserved]


Sec.  218.43  Prohibitions.

    No person in connection with the activities described in Sec.  
218.40 shall:
    (a) Take any marine mammal not specified in Sec.  218.42(c);
    (b) Take any marine mammal specified in Sec.  218.42(c) other than 
by incidental take as specified in Sec.  218.42(c)(1),(c)(2), (c)(3), 
and (c)(4);
    (c) Take a marine mammal specified in Sec.  218.42(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 these regulations or a Letter of Authorization issued 
under Sec. Sec.  216.106 and 218.47 of this chapter.


Sec.  218.44  Mitigation.

    (a) The activities identified in Sec.  218.40(c) must be conducted 
in a manner that minimizes, to the greatest extent practicable, adverse 
impacts on marine mammals and their habitats. When conducting 
operations identified in Sec.  218.40(c), the mitigation measures 
contained in the Letter of Authorization issued under Sec. Sec.  
216.106 and 218.47 of this chapter must be implemented. These 
mitigation measures include, but are not limited to:
    (b) Training Exercises at BT-9 and BT-11:
    (1) Safety Zone:
    (i) The Marine Corps shall establish and monitor a safety zone for 
marine mammals comprising the entire Rattan Bay area at BT-11.
    (ii) [Reserved]
    (2) For training exercises, the Marine Corps shall comply with the 
monitoring requirements, including pre-mission and post-mission 
monitoring, set forth in Sec.  218.45(4).
    (3) When detonating explosives:
    (i) If personnel observe any marine mammals within the safety zone 
prescribed in paragraph (b)(1) of this section, or if personnel observe 
marine mammals that are on a course that will put them within 
designated safety zone prior to surface-to-surface or air-to-surface 
training exercises, the Marine Corps shall delay ordnance delivery and/
or explosives detonations until all marine mammals are no longer within 
the designated safety zone.
    (ii) If personnel cannot reacquire marine mammals detected in the 
safety zone after delaying training missions, the Marine Corps shall 
not commence activities until the next verified location of the animal 
is outside of the safety zone and the animal is moving away from the 
mission area.
    (iii) If personnel are unable to monitor the safety zone prescribed 
in paragraph (b)(1) of this section, the Marine Corps shall delay 
training exercises.
    (iv) If daytime weather and/or sea conditions preclude adequate 
surveillance for detecting marine mammals, the Marine Corps shall 
postpone training exercises until adequate sea conditions exist for 
adequate monitoring of the safety zone prescribed in paragraph (b)(1) 
of this section.
    (4) Pre-Mission and Post-Mission Monitoring:
    (i) Range operators shall conduct or direct visual surveys to 
monitor BT-9 or BT-11 for marine mammals before and after each 
exercise. Range operation and control personnel shall monitor the 
target area through two tower-mounted safety and surveillance cameras.
    (ii) Range operators shall use the surveillance camera's night 
vision (i.e., infrared) capabilities to monitor BT-9 or BT-11 for 
marine mammals during night-time exercises.
    (iii) For BT-11, in the event that a marine mammal is sighted 
anywhere within the confines of Rattan Bay, personnel shall declare the 
water-based targets within Rattan Bay as fouled and cease training 
exercises. Personnel shall commence operations in BT-11 only after the 
animal has moved out of Rattan Bay.
    (5) Range Sweeps:
    (i) The Marine Corps shall conduct a range sweep the morning of 
each exercise day prior to the commencement of range operations.
    (ii) The Marine Corps shall also conduct a range sweep after each 
exercise following the conclusion of range operations.
    (iii) Marine Corps Air Station personnel shall conduct the sweeps 
by aircraft at an altitude of 100 to 300 meters (328 to 984 ft) above 
the water surface, at airspeeds between 60 to100 knots.
    (iv) The path of the sweeps shall run down the western side of BT-
11, circle around BT-9, and then continue down the eastern side of BT-9 
before leaving the area.
    (v) The maximum number of days that shall elapse between pre- and 
post-exercise monitoring events shall be approximately 3 days, and will 
normally occur on weekends.
    (6) Cold Pass by Aircraft:
    (i) For waterborne targets, the pilot must perform a low-altitude 
visual check immediately prior to ordnance delivery at the bombing 
targets both day and night to ensure the target area is clear of marine 
mammals. This is referred to as a ``cold'' or clearing pass.
    (ii) Pilots shall conduct the cold pass with the aircraft 
(helicopter or fixed-winged) flying straight and level at altitudes of 
61 to 914 m (200 to 3,000 ft) over the target area.
    (iii) If marine mammals are present in the target area, the Range 
Controller shall deny ordnance delivery to the target as conditions 
warrant. If marine mammals are not present in the target area, the 
Range Controller may grant clearance to the pilot as conditions 
warrant.

[[Page 41402]]

    (7) Vessel Operation:
    (i) All vessels used during training operations shall abide by 
NMFS' Southeast Regional Viewing Guidelines designed to prevent 
harassment to marine mammals (http://www.nmfs.noaa.gov/pr/education/southeast/).


Sec.  218.45  Requirements for monitoring and reporting.

    (a) The Holder of the Letter of Authorization issued pursuant to 
Sec. Sec.  216.106 and 218.47 of this chapter for activities described 
in Sec.  218.40(c) is required to conduct the monitoring and reporting 
measures specified in this section and Sec.  218.44 and any additional 
monitoring measures contained in the Letter of Authorization.
    (b) The Holder of the Letter of Authorization is required to 
cooperate with the National Marine Fisheries Service, and any other 
Federal, state, or local agency monitoring the impacts of the activity 
on marine mammals. Unless specified otherwise in the Letter of 
Authorization, the Holder of the Letter of Authorization must notify 
the Director, Office of Protected Resources, National Marine Fisheries 
Service, or designee, by letter or telephone (301-427-8401), at least 2 
weeks prior to any modification to the activity identified in Sec.  
218.40(c) that has the potential to result in the serious injury, 
mortality, or Level A or Level B harassment of a marine mammal that was 
not identified and addressed previously.
    (c) Monitoring Procedures for Missions at BT-9 and BT-11:
    (1) The Holder of this Authorization shall:
    (i) Designate qualified on-site individual(s) to record the effects 
of training exercises on marine mammals that inhabit Pamlico Sound;
    (ii) Require operators of small boats, and other personnel 
monitoring for marine mammals from watercraft to take the Marine 
Species Awareness Training (Version 2), provided by the Department of 
the Navy.
    (iii) Instruct pilots conducting range sweeps on marine mammal 
observation techniques during routine Range Management Department 
briefings. This training would make personnel knowledgeable of marine 
mammals, protected species, and visual cues related to the presence of 
marine mammals and protected species.
    (iv) Continue the Long-Term Monitoring Program to obtain abundance, 
group dynamics (e.g., group size, age census), behavior, habitat use, 
and acoustic data on the bottlenose dolphins which inhabit Pamlico 
Sound, specifically those around BT-9 and BT-11.
    (v) Continue the Passive Acoustic Monitoring (PAM) Program to 
provide additional insight into how dolphins use BT-9 and BT-11 and to 
monitor for vocalizations.
    (vi) Continue to refine the real-time passive acoustic monitoring 
system at BT-9 to allow automated detection of bottlenose dolphin 
whistles.
    (d) Reporting. (1) Unless specified otherwise in the Letter of 
Authorization, the Holder of the Letter of Authorization shall conduct 
all of the monitoring and reporting required under the LOA and shall 
submit an annual and comprehensive report to the Director, Office of 
Protected Resources, National Marine Fisheries Service by a date 
certain to be specified in the LOA. This report must include the 
following information:
    (i) Date and time of each training exercise;
    (ii) A complete description of the pre-exercise and post-exercise 
activities related to mitigating and monitoring the effects of the 
training exercises on marine mammal populations;
    (iii) Results of the monitoring program, including numbers by 
species/stock of any marine mammals injured or killed as a result of 
the training exercises and number of marine mammals (by species, if 
possible) that may have been harassed due to presence within the 
applicable safety zone;
    (iv) A detailed assessment of the effectiveness of sensor-based 
monitoring in detecting marine mammals in the area of the training 
exercises; and
    (v) Results of coordination with coastal marine mammal stranding 
networks. The Marine Corps shall coordinate with the local NMFS 
Stranding Coordinator to discuss any unusual marine mammal behavior and 
any stranding, beached (live or dead), or floating marine mammals that 
may occur at any time during training activities or within 24 hours 
after completion of training.
    (2) The Marine Corps shall submit an annual report to NMFS on 
December 7 of each year. The first report shall cover the time period 
from issuance of the Letter of Authorization through September 7, 2015. 
Each annual report after that time shall cover the time period from 
September 8th through September 7th.
    (3) The final comprehensive report on all marine mammal monitoring 
and research conducted during the period of these regulations shall be 
submitted to the Director, Office of Protected Resources, National 
Marine Fisheries Service at least 180 days prior to expiration of these 
regulations or 180 days after the expiration of these regulations if 
new regulations will not be requested.
    (4) General Notification of Injured or Dead Marine Mammals:
    (i) The Marine Corps shall systematically observe training 
operations for injured or disabled marine mammals. In addition, the 
Marine Corps shall monitor the principal marine mammal stranding 
networks and other media to correlate analysis of any dolphin 
strandings that could potentially be associated with BT-9 or BT-11 
training operations.
    (ii) Marine Corps personnel shall notify NMFS immediately, or as 
soon as clearance procedures allow, if an injured, stranded, or dead 
marine mammal is found during or shortly after, and in the vicinity of, 
any training operations. The Marine Corps 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).
    (iii) In the event that an injured, stranded, or dead marine mammal 
is found by Marine Corps personnel that is not in the vicinity of, or 
found during or shortly after operations, the Marine Corps personnel 
will report the same information listed above as soon as operationally 
feasible and clearance procedures allow.
    (5) General Notification of a Ship Strike:
    (i) In the event of a vessel strike, at any time or place, the 
Marine Corps shall do the following:
    (ii) Immediately report to NMFS the species identification (if 
known), location (lat/long) of the animal (or the strike if the animal 
has disappeared), and whether the animal is alive or dead (or unknown);
    (iii) Report to NMFS as soon as operationally feasible the size and 
length of the animal, an estimate of the injury status (e.g., dead, 
injured but alive, injured and moving, unknown, etc.), vessel class/
type, and operational status;
    (iv) Report to NMFS the vessel length, speed, and heading as soon 
as feasible; and
    (v) Provide NMFS with a photo or video, if equipment is available.


Sec.  218.46  Applications for Letters of Authorization.

    To incidentally take marine mammals pursuant to these regulations, 
the U.S. citizen (as defined at Sec.  216.103) conducting the 
activities identified in

[[Page 41403]]

Sec.  218.40 must apply for and obtain either an initial Letter of 
Authorization in accordance with Sec. Sec.  216.106 and 218.47 of this 
chapter or a renewal under Sec.  218.48 of this chapter.


Sec.  218.47  Letter of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, the Marine Corps must apply for and obtain a Letter of 
Authorization.
    (b) A Letter of Authorization, unless suspended or revoked, may be 
effective for a period of time not to exceed the expiration date of 
these regulations.
    (c) If a Letter of Authorization expires prior to the expiration 
date of these regulations, the Marine Corps must apply for and obtain a 
renewal of the Letter of Authorization.
    (d) In the event of any changes to the activity or to mitigation 
and monitoring measures required by a Letter of Authorization, the 
Marine Corps must apply for and obtain a modification of the Letter of 
Authorization as described in Sec.  218.48.
    (e) The Letter of Authorization shall set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact (i.e., 
mitigation) on the species, its habitat, and on the availability of the 
species for subsistence uses; and
    (3) Requirements for monitoring and reporting.
    (f) Issuance of the Letter of Authorization shall be based on a 
determination that the level of taking will be consistent with the 
findings made for the total taking allowable under these regulations.
    (g) Notice of issuance or denial of a Letter of Authorization shall 
be published in the Federal Register within 30 days of a determination.


Sec.  218.48  Renewals and Modifications of Letters of Authorization.

    (a) A Letter of Authorization issued under Sec.  216.106 and Sec.  
218.47 of this chapter for the activity identified in Sec.  218.40 
shall be renewed or modified upon request by the applicant, provided 
that:
    (1) The proposed specified activity and mitigation, monitoring, and 
reporting measures, as well as the anticipated impacts, are the same as 
those described and analyzed for these regulations (excluding changes 
made pursuant to the adaptive management provision in Sec.  
218.47(c)(1) of this chapter), and
    (2) NMFS determines that the mitigation, monitoring, and reporting 
measures required by the previous Letter of Authorization under these 
regulations were implemented.
    (b) For Letter of Authorization modification or renewal requests by 
the applicant that include changes to the activity or the mitigation, 
monitoring, or reporting (excluding changes made pursuant to the 
adaptive management provision in Sec.  218.47(c)(1)) that do not change 
the findings made for the regulations or result in no more than a minor 
change in the total estimated number of takes (or distribution by 
species or years), NMFS may publish a notice of proposed Letter of 
Authorization in the Federal Register, including the associated 
analysis illustrating the change, and solicit public comment before 
issuing the Letter of Authorization.
    (c) A Letter of Authorization issued under Sec.  216.106 and Sec.  
218.47 of this chapter for the activity identified in Sec.  218.40 may 
be modified by NMFS under the following circumstances:
    (1) Adaptive Management. NMFS may modify (including augment) the 
existing mitigation, monitoring, or reporting measures (after 
consulting with the Marine Corps regarding the practicability of the 
modifications) if doing so creates a reasonable likelihood of more 
effectively accomplishing the goals of the mitigation and monitoring 
set forth in the preamble for these regulations.
    (i) Possible sources of data that could contribute to the decision 
to modify the mitigation, monitoring, or reporting measures in a Letter 
of Authorization include:
    (A) Results from the Marine Corps' monitoring from the previous 
year(s);
    (B) Results from other marine mammal and/or sound research or 
studies; or
    (C) Any information that reveals marine mammals may have been taken 
in a manner, extent, or number not authorized by these regulations or 
subsequent Letters of Authorization.
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, NMFS 
shall publish a notice of proposed Letter of Authorization in the 
Federal Register and solicit public comment.
    (2) Emergencies. If NMFS 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.  218.42(c) of this chapter, a Letter 
of Authorization may be modified without prior notice or opportunity 
for public comment. NMFS will publish a notice in the Federal Register 
within 30 days subsequent to the action.

[FR Doc. 2014-16454 Filed 7-14-14; 8:45 am]
BILLING CODE 3510-22-P