2011-14148. Taking and Importing Marine Mammals: Taking Marine Mammals Incidental to Navy Training Exercises in Three East Coast Range Complexes

AGENCY:

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

ACTION:

Notice; issuance of three Letters of Authorization.

SUMMARY:

In accordance with the Marine Mammal Protection Act (MMPA), as amended, and implementing regulations, notification is hereby given that NMFS has issued three one-year Letters of Authorization (LOAs) to take marine mammals by harassment incidental to the U.S. Navy's training activities within the Navy's Virginia Capes (VACAPES), Jacksonville (JAX), and Cherry Point (CHPT) Range Complexes to the Commander, U.S. Fleet Forces Command, 1562 Mitscher Avenue, Suite 250, Norfolk, VA 23551-2487 and persons operating under his authority.

DATES:

Effective from June 5, 2011, through June 4, 2012.

ADDRESSES:

Copies of the Navy's January 2011 LOA applications, the LOAs, the Navy's 2010 marine mammal monitoring report and the Navy's 2010 exercise report are available by writing to P. Michael Payne, Chief, Permits, Conservation, and Education Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910, by telephoning the contact listed here (see FOR FURTHER INFORMATION CONTACT), or online at: http://www.nmfs.noaa.gov/​pr/​permits/​incidental.htm#applications. Documents cited in this notice may be viewed, by appointment, during regular business hours, at the aforementioned address.

FOR FURTHER INFORMATION CONTACT:

Shane Guan, Office of Protected Resources, NMFS [phone] x 137.

SUPPLEMENTARY INFORMATION:

Background

Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361 et seq.) directs the Secretary of Commerce to allow, upon request, the incidental, but not intentional taking of marine mammals by U.S. citizens who engage in a military readiness activity if certain findings are made and regulations are issued.

Authorization may be granted for periods of 5 years or less if NMFS finds that the 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 certain subsistence uses. In addition, NMFS must prescribe regulations that include permissible methods of taking and other means effecting the least practicable adverse impact on the species and its habitat, and on the availability of the species for subsistence uses, paying particular attention to rookeries, mating grounds, and areas of similar significance. The regulations also must include requirements pertaining to the monitoring and reporting of such taking.

Regulations governing the taking of marine mammals incidental to the U.S. Navy's training activities at the Navy's VACAPES, JAX, and Cherry Point range complexes were published on June 15, 2009 (VACAPES: 74 FR 28328; JAX: 74 FR 28349; CHPT: 74 FR 28370) and remain in effect through June 4, 2014. They are codified at 50 CFR part 218 subpart A (for VACAPES Range Complex), subpart B (for JAX Range Complex), and subpart C (for Cherry Point Range Complex). These regulations include mitigation, monitoring, and reporting requirements for the incidental taking of marine mammals by the Navy's range complex training exercises. For detailed information on these actions, please refer to the June 15, 2009 Federal Register Notices and 50 CFR part 218 subparts A, B, and C. An interim final rule for the modification of certain Navy training activities at VACAPES and JAX was published on May 26, 2011 (76 FR 30552).

Summary of LOA Request

NMFS received an application from the U.S. Navy for three LOAs covering the Navy's training activities at the VACAPES, JAX, and CHPT range complexes off the US East Coast under the regulations issued on June 15, 2009 (VACAPES: 74 FR 28328; JAX: 74 FR 28349; Cherry Point: 74 FR 28370). The Navy requested several minor modifications to their training activities within the VACAPES and JAX Range Complexes starting in 2011 (see detailed description in “Planned Activities for 2011” section), and requested that these LOAs become effective on June 5, 2011. In order to allow for the Navy's proposed modification in its training activities at VACAPES and JAX range complexes, NMFS issued an interim final rule (76 FR 30552; May 26, 2011) to allow flexibilities in the Navy's evolving training programs as long as the impacts to the environment do not exceed the impacts analyzed in the original regulations for these range complexes. The application requested authorization, for a period not to exceed one year, to take, by harassment, marine mammals incidental to proposed training activities that involve underwater explosives.

Summary of Activity Under the 2010 VACAPES, JAX, and CHPT LOAs

As described in the Navy's exercise reports for VACAPES, JAX, and CHPT Range Complexes, in 2010, the training activities conducted by the Navy were within the scope and amounts contemplated by the final rule and identified by the 2010 LOAs. In fact, the number of training exercises was below the Navy's proposed 2010 operations, except for mine exercises (MINEX) at VACAPES Range Complex, which exceeded the annual planned amount of 24 events by an extra 31 events. However, this level is still under the total of 120 events authorized under the 5-year rule, and the take of marine mammals was still below that authorized in the LOAs. A detailed description of the Navy's 2010 training activities can be found in the exercise reports posted on NMFS Web site: http://www.nmfs.noaa.gov/​pr/​permits/​incidental.htm#applications.

Planned Activities for 2011

In 2011, the Navy plans to make some minor modifications to its training activities at the VACAPES and JAX range complexes, while maintaining the same type and amount of training activities at the CHPT Range Complex, as compared to the final rules and the 2010 LOAs. A detailed description of these proposed modifications is provided below.

Modification for Training at VACAPES Range Complex

Within the VACAPES Range Complex, the Navy estimates an increase in the number of MINEX training events. In June 2009, NMFS specified 20 lb NEW charges for VACAPES Range Complex based on the Navy's preliminary estimate of 24 events at the time of the original Request for Letter of Authorization. To accommodate emergent MINEX training requirements, the Navy requested a revised authorization of 9 5-lb NEW charges, 150 10-lb NEW charges, and 160 20-lb NEW charges per year, as listed in Table 1. No change is requested for MINEX using the Airborne Mine Neutralization System (AMNS).

Training using 5-, 10-, and 20-lb NEW charges during MINEX would occur at the same locations in VACAPES where previous 20-lb NEW charges would typically occur. These locations are the same MINEX training areas described under NMFS June 15, 2009, final rule (VACAPES: 74 FR 28328).

In addition, the Navy estimates an increase in the number of bombing exercise (BOMBEX) training events. However, instead of training with the MK-83 (1,000 lb) bombs, training will use the MK-82 (500 lb) bombs. In June 2009, NMFS authorized 20 MK-83 bombs per year for VACAPES Range Complex based on the Navy's preliminary estimate at the time of the original Request for Letter of Authorization. To accommodate an increased need for BOMBEX training based on changes to training requirements, the Navy requests that MK-82 bombs be added to the list of ordnance for BOMBEX. For 2011-2013, the Navy anticipates 40 MK-82 (500 lb) bombs and no MK-83 (1,000 lb) bombs will be used per year, as listed in Table 1. Although the number of bombs requested is increasing, the type of bomb (MK-82) is smaller (500 lb) and has fewer explosives, and therefore the potential exposures are reduced.

Training using MK-82 bombs during BOMBEX would occur at the same location in VACAPES Range Complex where MK-83 bomb use would typically occur. This location is the same BOMBEX training area described under NMFS June 15, 2009, final rule (VACAPES: 74 FR 28328).

Modification for Training at JAX Range Complex

With in the JAX Range Complex, the Navy estimates a reduction in the number of MINEX 20-lb NEW charge training events. In June 2009, NMFS authorized 12 events using 20-lb NEW charges per year for JAX Range Complex based on the Navy's preliminary estimate at the time of the original Request for Letter of Authorization. Given new information on planned Fleet MINEX training that was not previously available, the Navy requested a revised authorization for 10 MINEX events per year as listed in Table 1.

Table 1—Comparison of Changes for Annual Training Activities Starting From 2011 at the VACAPES and JAX Range Complexes

	2009	2010	2011	2012	2013
VACAPES Range Complex
MINEX (5-lb NEW charges)	0	0	9	9	9
MINEX (10-lb NEW charges)	0	0	150	150	150
MINEX (20-lb NEW charges)	24	24	160	160	160
BOMBEX (MK-82 bombs)	0	0	40	40	40
BOMBEX (MK-83 bombs)	20	20	0	0	0
JAX Range Complex
MINEX (20-lb NEW charges)	12	12	12	10	10
MISSILEX (Maverick missiles)	3	3	10	10	10
FIREX with IMPASS (BB & CC box)	10	10	5	5	5
FIREX with IMPASS (JAX Deepwater Site)	0	0	5	5	5

In addition, the Navy estimates an increase in the number of Maverick missile exercise (MISSILEX) training events. In June 2009, NMFS authorized 3 events using Maverick missiles per year for training at the JAX Range Complex based on the Navy's preliminary estimate at the time of original Request for Letter of Authorizations submission. To accommodate an increased need for Maverick MISSILEX training based on changes to training requirements, the Navy requested a revised authorization of 10 events using Maverick missiles per year as listed in Table 1.

Finally, the Navy requires an additional training location for firing exercise (FIREX) with Integrated Maritime Portable Acoustic Scoring and Simulation System (IMPASS) training events. In June 2009, NMFS authorized 10 FIREX with IMPASS events per year for JAX Range Complex within the BB and CC boxes based on the preliminary estimate available at the time of the original Request for Letter of Authorization. Given new information on planned Fleet FIREX with IMPASS training that was not previously available, the Navy requested a revised annual authorization for FIREX with IMPASS events to also occur in the new proposed FIREX with IMPASS training location, the JAX Deepwater IMPASS Site further offshore. The Navy also requested a reduction in the number of events occurring at the BB and CC sites. The total number of events from training at both locations remains the same (10 events).

No modification is proposed by the Navy for its planned 2011 activities at the CHPT Range Complex.

In addition, due to a recent underwater detonation (UNDET) training event during which common dolphins were killed, the Navy is suspending all underwater explosive detonations using time-delay devices during training. While this suspension is in place, the Navy will continue to conduct UNDETs under positive control, when detonation can be suspended if a marine mammal enters a pre-established safety zone. For these events, the Navy shall continue to follow all UNDET training mitigation measures as outlined in the final rule and the LOA.

Estimated Take for 2011

The estimated takes for the Navy's proposed 2011 training exercises are the same as those authorized in 2010. No change has been made in the estimated takes from the 2009 LOAs.

Although the Navy has made several changes to its training activities within the VACAPES and JAX range complexes, the calculation of exposures for these changes were completed by the Navy using the same model, criteria, and location originally used to calculate exposures from these activities when the Navy applied for the LOAs. The methodology is described on pages 6—21 of the original VACAPES LOA application (DoN 2008a) and pages 6—17 of the original JAX LOA application (DoN 2008b), respectively.

For the MINEX activities within the VACAPES Range Complex, the change from 24 20-lb NEW charges to 9 5-lb NEW charges, 150 10-lb NEW charges, and 160 20-lb NEW charges would result in an additional 7 Level B exposures and 1 Level A exposure.

For the BOMBEX activities within the VACAPES Range Complex, the change from 20 MK-83 (1,000 lb) bombs to 40 MK-82 (500 lb) bombs would result in a reduction of 313 Level B exposures and 4 Level A exposures.

A detailed description of these changes by species in Level A and Level B exposure at the VACAPES Range Complex is shown in Table 2. While the annual exposures anticipated from the requested changes are less than the amount of take originally authorized as a result of the conservative analyses, the amount of annual take requested remains the same as in the original authorization.

Table 2—Changes of modeled exposures by species at the VACAPES Range Complex

Species	Original modeled exposure	Revised modeled exposure	Change	Level
MINEX:
Bottlenose Dolphin	0	2	+2	B
Clymene dolphin	0	2	+2	B
Pantropical spotted dolphin	1	4	+3	B
Pantropical spotted dolphin	0	1	+1	A
BOMBEX:
Atlantic spotted dolphin	9	7	-2	B
Bottlenose dolphin	17	15	-2	B
Clymene dolphin	31	26	-5	B
Common dolphin	2,059	1,766	-293	B
Pantropical spotted dolphin	64	55	-9	B
Risso's dolphin	11	9	-2	B
Common dolphin	17	15	-2	A
Pantropical spotted dolphin	1	0	-1	A

For the MINEX activities within the JAX Range Complex, the change from 12 20-lb NEW charges to 10 20-lb NEW charges would result in no change in exposure numbers.

For the MISSILEX activities within the JAX Range Complex, the change from 3 Maverick missiles to 10 Maverick missiles would result in an additional 4 Level B exposures.

For the FIREX with IMPASS activities within the JAX Range Complex, the change from 10 events in BB and CC boxes to 5 events in BB and CC boxes and 5 events in the new JAX Deepwater IMPASS Site would result in a reduction of 15 Level B exposures and 1 Level A exposure. This reduction of exposures is mainly due to the lower marine mammal density at the JAX Deepwater IMPASS Site.

A detailed description of these changes by species in Level A and Level B exposure at the JAX Range Complex is shown in Table 3. While the annual exposures anticipated from the requested changes are less than the amount of take originally authorized as a result of the conservative analyses, the amount of annual take requested remains the same as in the original authorization.

Table 3—Changes of modeled exposures by species at the JAX Range Complex

Species	Original modeled exposure	Revised modeled exposure	Change	Level
MISSILEX:
Atlantic spotted dolphin	1	5	+4	B
FIREX with IMPASS:
Atlantic spotted dolphin	23	12	-11	B
Bottlenose Dolphin	10	6	-4	B
Clymene dolphin	1	0	-1	B
Pantropical spotted dolphin	1	2	+1	B
Pilot whale	1	2	+1	B
Risso's dolphin	3	2	-1	B
Atlantic spotted dolphin	1	0	-1	A

Summary of Monitoring, Reporting, and Other Requirements Under the 2010 LOA

Annual Exercise Reports

The Navy submitted their 2010 exercise report within the required timeframes and it is posted on NMFS Web site: http://www.nmfs.noaa.gov/​pr/​permits/​incidental.htm. NMFS has reviewed the report and it contains the information required by the 2010 LOAs. The report lists the amount of training exercises conducted between June 2010 and January 2011. For training exercises conducted at the VACAPES Range Complex, the Navy conducted 77 exercises out of the total of 176 proposed. For training exercises at the JAX Range Complex, the Navy conducted 14 out of 175 exercises proposed. No training exercise was conducted at the Cherry Point Range Complex, though a total of 38 exercises were proposed.

Monitoring and Annual Monitoring Reports

The Navy conducted the monitoring required by the 2010 LOA and described in the Monitoring Plan, which included aerial and vessel surveys of training exercises by marine mammal observers. The Navy submitted their 2010 Monitoring Report, which is posted on NMFS' Web site (http://www.nmfs.noaa.gov/​pr/​permits/​incidental.htm), within the required timeframe. The Navy included a summary of their 2010 monitoring effort and results (beginning on page 3 of the monitoring report).

Based on the Navy's monitoring report, approximately 107 cetaceans were sighted from 7 sightings during the MINEX vessel visual survey and FIREX visual survey on August 9 and 10, 2010, respectively. These cetaceans include 65 common dolphins, 12 bottlenose dolphins, 6 Risso's dolphins, 10 Atlantic spotted dolphins, and 14 unidentified cetacean species. None of these animals were expected to be affected because they were all outside the take zones.

In addition, approximately 172 cetaceans were sighted from 11 sightings during the MISSILEX (Maverick) aerial visual survey on August 9, 2010, and during the FIREX aerial visual surveys on October 5 and 6, 2010. These cetaceans include approximately 100 Atlantic spotted dolphins, 51 bottlenose dolphins, and 21 unidentified cetacean species. Most of the cetaceans were sighted either outside the take zone or before the Navy exercise, and were not expected to be affected. Only one bottlenose dolphin was sighted approximately 68 yards from the vessel during a break between the 1st and 2nd round of FIREX event. No unusual behavior was observed from the bottlenose dolphin, and the area was monitored for 30 minutes after the sighting, without the animal being sighted again, before training activities were resumed.

Integrated Comprehensive Management Program (ICMP) Plan

The ICMP will be used both as: (1) A planning tool to focus Navy monitoring priorities (pursuant to ESA/MMPA requirements) across Navy Range Complexes and Exercises; and (2) an adaptive management tool, through the consolidation and analysis of the Navy's monitoring and marine observer data, as well as new information from other Navy programs (e.g., research and development), and other appropriate newly published information. The Navy updated its 2010 ICMP Plan and will comply with the Plan. The ICMP may be viewed at: http://www.nmfs.noaa.gov/​pr/​permits/​incidental.htm.

NOAA Workshops

In a January 19, 2010, letter to the Council on Environmental Quality, NOAA identified the need for two interrelated workshops on marine mammals and sound in the ocean. To address this commitment, NOAA is convening two parallel, focused, relatively small, and product-driven working groups. One will identify and map cetacean “hot spots”, defined as areas of known, or reasonably predictable, biological importance (i.e., for reproduction, feeding, migration) and/or high densities. The second working group will be directed toward developing a comprehensive data collection and analysis plan for describing and predicting underwater sound fields in different areas. The outcomes of these working groups will be integrated and analyzed in a broader follow-on symposium to include a larger audience of scientists, industries, federal agencies, conservation managers, and environmental NGOs. The final products and analyses will provide a more robust, comprehensive, and context-specific biological and acoustic basis by which to inform subsequent management decisions regarding human noise in our oceans. The steering committee has been convened and met for the first time in October 2010. Both working groups had their first meeting in March 2011 in Boston, MA. The working group efforts should take about a year to complete, and we expect the final symposium to be held in early 2012. The results of these working groups will be analyzed by NMFS in an adaptive management context, as related to the three east coast training ranges final rules, and mitigation or monitoring measures may be modified, as appropriate.

Adaptive Management

NMFS and the Navy conducted an adaptive management meeting in October 2010 wherein we reviewed the Navy monitoring results through August 1, 2010, discussed other Navy research and development efforts, and discussed other new information that could potentially inform decisions regarding Navy mitigation and monitoring. Based on the review, NMFS determines that the Navy's current monitoring plans for the VACAPES, JAX, and CHPT range complexes are robust and no changes are warranted.

In terms of the Navy's proposed modification for its future training activities, NMFS conducted a thorough analysis and issued an interim final rule to allow flexibility in the Navy's training program, as long as the effects on marine mammal species and their habitat are within the scope of NMFS' analysis conducted in 2009 for the initial final rules governing authorization of these actions (see Planned Activities for 2011 section above).

Authorization

The Navy complied with the requirements of the 2010 LOAs. Based on our review of the record, NMFS has determined that the marine mammal take resulting from the 2010 military readiness training and research activities falls within the levels previously anticipated, analyzed, and authorized, and was likely lower given the fact that Navy conducted fewer operations in 2010 than originally planned. Further, the level of taking authorized in 2011 for the Navy's training exercises at VACAPES, JAX, and CHPT range complexes is consistent with our previous findings made for the total taking allowed under these range complexes regulations. Finally, the record supports NMFS' conclusion that the total number of marine mammals taken by the 2011 training exercises at VACAPES, JAX, and CHPT range complexes will have no more than a negligible impact on the affected species or stock of marine mammals and will not have an unmitigable adverse impact on the availability of these species or stocks for taking for subsistence uses. Accordingly, NMFS has issued three one-year LOAs for Navy training exercises conducted at these East Coast range complexes from June 5, 2011, through June 4, 2012.

Dated: June 1, 2011.

James H. Lecky,

Director, Office of Protected Resources, National Marine Fisheries Service.