[Federal Register Volume 71, Number 149 (Thursday, August 3, 2006)]
[Proposed Rules]
[Pages 44001-44012]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-12556]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 216
[Docket No. 060629183-6183-01; I.D. 022106A]
RIN 0648-AT39
Taking and Importing Marine Mammals; Taking Marine Mammals
Incidental to Conducting Precision Strike Weapons Testing and Training
by Eglin Air Force Base in the Gulf of Mexico
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
[[Page 44002]]
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS has received a request from Eglin Air Force Base (Eglin
AFB) for an authorization to take marine mammals incidental to
conducting Precision Strike Weapons (PSW) testing and training in the
Gulf of Mexico (GOM). By this document, NMFS is proposing regulations
to govern that take. In order to issue a Letter of Authorization (LOA)
and final regulations governing the take, NMFS must determine, among
other things, that the taking will have a negligible impact on the
affected species and stocks of marine mammals. NMFS regulations must
set forth the permissible methods of take and other means of effecting
the least practicable adverse impact on the affected species or stock
of marine mammals and their habitat. NMFS invites comment on the
application and the regulations.
DATES: Comments and information must be postmarked no later than
September 5, 2006.
ADDRESSES: You may submit comments on the application and proposed
rule, using the identifier 022106A, by any of the following methods:
E-mail: [email protected].
Federal e-Rulemaking Portal: http://www.regulations.gov.
Hand-delivery or mailing of paper, disk, or CD-ROM comments should
be addressed 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-
3225.
Documents cited in this proposed rule may also be viewed, by
appointment, during regular business hours at the above address or at
the Department of the Air Force, AAC/EMSN, Natural Resources Branch,
501 DeLeon St., Suite 101, Eglin AFB, FL 32542-5133.
FOR FURTHER INFORMATION CONTACT: Kenneth R. Hollingshead, NMFS, 301-
713-2289, ext 128.
SUPPLEMENTARY INFORMATION:
Background
Section 101(a)(5)(A) of the Marine Mammal Protection Act (16 U.S.C.
1361 et seq.) (MMPA) directs the Secretary of Commerce (Secretary) to
allow, upon request, the incidental, but not intentional taking of
marine mammals by U.S. citizens who engage in a specified activity
(other than commercial fishing) within a specified geographical region
if certain findings are made and regulations are issued.
Permission may be granted for periods of 5 years or less if the
Secretary 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 subsistence uses, and
if regulations are prescribed setting forth the permissible methods of
taking and the 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.'' With respect to military readiness activities, the MMPA
defines ``harassment'' as:
(i) any act that injures or has the significant potential to
injure a marine mammal or marine mammal stock in the wild [Level A
harassment]; or (ii) any act that disturbs or is likely to disturb a
marine mammal or marine mammal stock in the wild by causing
disruption of natural behavioral patterns, including, but not
limited to, migration, surfacing, nursing, breeding, feeding, or
sheltering, to a point where such behavioral patterns are abandoned
or significantly altered [Level B harassment]. 16 U.S.C.
1362(18)(B).
Summary of Request
On February 4, 2004, Eglin AFB submitted a request for a 1-year
Incidental Harassment Authorization(IHA) under MMPA section
101(a)(5)(D) and for an LOA (to take effect after the expiration of the
IHA), for the incidental, but not intentional taking (in the form of
noise-related harassment), of marine mammals incidental to PSW testing
within the Eglin Gulf Test and Training Range (EGTTR) for the next five
years, as authorized by section 101(a)(5) of the MMPA. The EGTTR is
described as the airspace over the GOM that is controlled by Eglin AFB,
and is also referred to as the ``Eglin Water Range.''
PSW missions involve air-to-surface impacts of two weapons, the
Joint Air-to-Surface Stand-off Missile (JASSM) AGM-158 A and B and the
small-diameter bomb (SDB) (GBU-39/B), that result in underwater
detonations of up to approximately 300 lbs (136 kg) and 96 lbs (43.5
kg, double SDB) of net explosive weight (NEW), respectively.
The JASSM is a precision cruise missile designed for launch from
outside area defenses to kill hard, medium-hard, soft, and area-type
targets. The JASSM has a range of more than 200 nautical miles (nm)
(370 kilometers (km)) and carries a 1,000-lb (453.6 kg) warhead. The
JASSM has approximately 300 lbs (136 kg) of TNT equivalent NEW. The
explosive used is AFX-757, a type of plastic bonded explosive (PBX)
formulation with higher blast characteristics and less sensitivity to
many physical effects that could trigger unwanted explosions. The JASSM
would be launched from an aircraft at altitudes greater than 25,000 ft
(7620 m). The JASSM would cruise at altitudes greater than 12,000 ft
(3658 m) for the majority of the flight profile until it makes the
terminal maneuver toward the target. The JASSM exercise involves a
maximum of two live shots (single) and 4 inert shots (single) each year
for the next 5 years. One live shot will detonate in water and one will
detonate in air. Detonation of the JASSM would occur under one of three
scenarios: (1) Detonation upon impact with the target (about 5 ft (1.5
m) above the GOM surface); (2) detonation upon impact with a barge
target at the surface of the GOM; or (3) detonation at 120 milliseconds
after contact with the surface of the GOM.
The SDB is a glide bomb. Because of its capabilities, the SDB
system is an important element of the Air Force's Global Strike Task
Force. The SDB has a range of up to 50 nm (92.6 km) and carries a
217.4-lb (98.6 kg) warhead. The SDB has approximately 48 lbs (21.7 kg)
of TNT equivalent NEW. The explosive used is AFX-757. Launch from an
aircraft would occur at altitudes greater than 15,000 ft (4572 m). The
SDB would commence a non-powered glide to the intended target. The SDB
exercise involves a maximum of six live shots a year, with two of the
shots occurring simultaneously, and a maximum of 12 inert shots with up
to two occurring simultaneously. Detonation of the SDBs would occur
under one of two scenarios: (1) Detonation of one or two bombs upon
impact with the target (about 5 ft (1.5 m)above the GOM surface), or
(2) a height of burst (HOB) test: detonation of one or two bombs 10 to
25 ft (3 to 7.6 m) above the GOM surface. No underwater detonations of
the SDB are planned.
The JASSM and SDBs would be launched from B-1, B-2, B-52, F-15, F-
16, F-18, or F-117 aircraft. Chase aircraft would include F-15, F-16,
and T-38 aircraft. These aircraft would follow the test items during
captive carry and free flight but would not follow either item below a
predetermined altitude as directed by Flight Safety. Other assets on
site may include an E-9 turboprop aircraft or MH-60/53 helicopters
circling around the target location. Tanker aircraft including KC-10s
and KC-135s would also be used. A second unmanned barge may also be on
location to hold
[[Page 44003]]
instrumentation. Targets include a platform of five containers
strapped, braced, and welded together to form a single structure and a
hopper barge, typical for transportation of grain.
The Eglin AFB action would occur in the northern GOM in the EGTTR.
Targets would be located in water less than 200 ft (61 m) deep and from
15 to 24 nm (27.8 to 44.5 km) offshore, south of Santa Rosa Island and
south of Cape San Blas Site D3-A. PSW test and training exercises are a
military readiness activity.
Comments and Responses on Eglin AFB's Application
A notice of receipt of Eglin AFB's application for a 1-year IHA and
5-year LOA was published in the Federal Register on April 22, 2004 (69
FR 21816). That notice described, in detail, Eglin AFB's proposed
activity, the marine mammal species that may be affected by the
activity, and the anticipated effects on marine mammals. Comments
received on Eglin AFB's application during the 30-day public comment
period were addressed in the August 19, 2005, Federal Register notice
(70 FR 48675) announcing issuance of a 1-year IHA to Eglin AFB for PSW
activities. Please review the 2005 notice prior to submitting comments
on this proposed rule.
Description of Marine Mammals Affected by the Activity
There are 29 species of marine mammals documented as occurring in
Federal waters of the GOM. Information on those species that may be
impacted by this activity are discussed in the Eglin AFB application
and Eglin's Final PEA. A summary of that information is provided in
this section.
General information on these marine mammal species can be found in
Wursig et al. (2000) and in the NMFS Stock Assessment Report (Waring,
2006). The NMFS Stock Assessment Report is available at: http://www.nefsc.noaa.gov/nefsc/publications/tm/tm194/.
Marine mammal species that potentially occur within the EGTTR
include several species of cetaceans and one sirenian, the West Indian
manatee. During winter months, manatee distribution in the GOM is
generally confined to southern Florida. During summer months, a few may
migrate north as far as Louisiana. However, manatees primarily inhabit
coastal and inshore waters and rarely venture offshore. PSW missions
would be conducted offshore. Therefore, effects on manatees are
considered very unlikely.
Cetacean abundance estimates for the study area are derived from
GulfCet II (Davis et al., 2000) aerial surveys of the continental shelf
within the Minerals Management Service Eastern Planning Area, an area
of 70,470 km\2\. Texas A&M University and NMFS conducted these surveys
from 1996 to 1998. Abundance and density data from the aerial survey
portion of the survey best reflect the occurrence of cetaceans within
the EGTTR, given that the survey area overlaps approximately one-third
of the EGTTR and nearly the entire continental shelf region of the
EGTTR where military activity is highest. The GulfCet II aerial surveys
identified different density estimates of marine mammals for the shelf
and slope geographic locations. Only the shelf data is used because PSW
missions will only be conducted on the shelf.
In order to maximize species conservation and protection, the
species density estimate data were adjusted to reflect more realistic
encounters of these animals in their natural environment. Refer to
``Conservative Estimates of Marine Mammal Densities'' in this document
and Eglin AFB's application for more information on density estimates.
The four marine mammal species observed during GulfCet II aerial
surveys on the shelf that have the potential to be present in the PSW
test area and thereby affected are: Atlantic bottlenose dolphins
(Tursiops truncatus), Atlantic spotted dolphins (Stenella frontalis),
dwarf sperm whales (Kogia simus), and pygmy sperm whales (Kogia
breviceps). Brief descriptions of these species were provided in
earlier Federal Register notices (69 FR 21816, April 22, 2004; 70 FR
48675, August 19, 2005) and are not repeated here.
Impacts to Marine Mammals
Potential impacts to marine mammals from the detonation of the PSWs
and SDBs include both lethal and non-lethal injury, as well as Level B
harassment in the form of a temporary shift in hearing sensitivity
(called temporary threshold shift (TTS) and behavioral responses due to
TTS. Although unlikely due to the extensive mitigation measures
proposed herein, marine mammals have the potential to be killed or
injured as a result of a blast due to the response of air cavities in
the body, such as the lungs and bubbles in the intestines. Any effects
would likely be most severe in near-surface waters where the reflected
shock wave creates a region of negative pressure called ``cavitation.''
This is a region of near total physical trauma within which no animals
would be expected to survive. A second criterion used by NMFS for
categorizing taking by mortality is the onset of extensive lung
hemorrhage. Extensive lung hemorrhage is considered to be debilitating
and thereby potentially fatal. Suffocation caused by lung hemorrhage
would likely be the major cause of any marine mammal death from
underwater shock waves.
For the acoustic analysis in this document, the exploding charge is
characterized as a point source. The impact thresholds used for marine
mammals relate to potential effects on hearing from underwater noise
from detonations. For the explosives in question, actual detonation
heights would range from 0 to 25 ft (7.6 m) above the water surface.
Detonation depths would range from 0 to 80 ft (73.2 m) below the
surface. To bracket the range of possibilities, detonation scenarios
just above and below the surface were used by Eglin AFB to analyze
bombs set to detonate on contact with the target barge. Potentially,
the barge may interact with the propagation of noise into the water.
However, barge effects on the propagation of noise into the water
column cannot be determined without in-water noise monitoring at the
time of detonation.
Potential exposure of a sensitive species to detonation noise could
theoretically occur at the surface or at any number of depths with
differing consequences. As a conservative measure, a mid-depth scenario
was selected by Eglin AFB to ensure the greatest direct path for the
harassment ranges, and to give the greatest impact range for the injury
thresholds.
Explosive Criteria and Thresholds for Impact of Noise on Marine Mammals
NMFS' criteria for explosives and thresholds for assessing impacts
of explosions on marine mammals were discussed by NMFS in detail in its
issuance of an IHA for Eglin's PSW testing activity (70 FR 48675,
August 19, 2005) and are not repeated here. Please refer to that
document for background information on this criteria. Based on the
discussion in that document, Table 1 illustrates estimated zones of
impact for potential mortality (31 psi-ms), Level A harassment (injury;
205 dB EFDL) and Level B harassment (TTS; 182 dB EFDL/23 psi).
[[Page 44004]]
Table 1. Zones of Impact for Underwater Explosions (Mid-depth Animal)
----------------------------------------------------------------------------------------------------------------
Depth or Ranges
NEW Height of for 31 Ranges for EFDL > 205 dB Ranges for 182 dB EFDL
Ordnance (TNT in Explosion psi -ms (m) in 1/3-Octave Band/ 23
lb) (m) (m) psi (m)
----------------------------------------------------------------------------------------------------------------
Summer
------------------------------- ------------ ---------------------------------------------------
Single SDB 48 1.5 n/a 12 447
7.6 n/a 12 447
----------------------------------------------------------------------------------------------------------------
Double SDB 96 1.5 n/a 16 550
7.6 n/a 17 550
----------------------------------------------------------------------------------------------------------------
Single JASSM 300 0.3 75 170 770
>6.1 320 550 2490
----------------------------------------------------------------------------------------------------------------
Winter
------------------------------- ------------ ---------------------------------------------------
Single SDB 48 1.5 n/a 12 471
7.6 n/a 12 471
----------------------------------------------------------------------------------------------------------------
Double SDB 96 1.5 n/a 16 594
7.6 n/a 16 594
----------------------------------------------------------------------------------------------------------------
Single JASSM 300 0.3 75 170 871
>6.1 320 590 3250
----------------------------------------------------------------------------------------------------------------
Incidental Take Estimates
For Eglin AFB's PSW exercises, three key sources of information are
necessary for estimating potential take levels from noise on marine
mammals: (1) The zones of influence (ZOIs) for noise exposure; (2) the
number of distinct firing or test events; and (3) the density of
animals that potentially reside within a ZOI.
Noise ZOIs were calculated for depth detonation scenarios of 1 ft
(0.3 m) and 20 ft (6.1 m) for lethality and for harassment (both Level
A and Level B). To estimate the number of potential ``takes'' or
animals affected, the adjusted data on cetacean population information
from ship and aerial surveys were applied to the various ZOIs.
Table 1 in this document gives the estimated ZOI ranges for various
explosive weights for summer and wintertime scenarios for JASSM and
SDB. For example, for JASSM, the range, in winter, extends to 320 m
(1050 ft), 590 m (1936 ft) and 3250 m (10663 ft) for potential
mortality (31 psi-ms), injury (205 dB re 1 microPa\2\ -s) and TTS (182
dB re 1 microPa\2\-s/23 psi zones), respectively. SDB scenarios are for
in-air detonations at heights of 1.5 m (5 ft) and 7.6 m (25 ft) during
both seasons (whichever criterion provides the largest zone is used for
calculating potential impacts). JASSM detonations were modeled for
near- surface (i.e., 1-ft (0.3-m) depth) and below-surface (>20-ft
depth (>6.1 m)). To account for ``double'' (2 nearly simultaneous)
events, the charge weights are added (doubled) when modeling for the
determination of energy estimates (since energy is proportional to
weight). Pressure estimates only utilize the single charge weights for
these estimates.
Applying the lethality (31 psi) and harassment (205 and 182 dB
EFDL) impact ranges shown in Table 1 to the calculated species
densities (in Table 3-1 in Eglin AFB's application), the number of
animals potentially occurring within the various ZOIs without
implementation of mitigation was estimated. These results are presented
in Tables 2, 3, and 4 in this document. In summary, without any
mitigation, a small possibility exists for one bottlenose and one
Atlantic spotted dolphin to be exposed to blast levels sufficient to
cause mortality. Additionally, less than 2 cetaceans might be exposed
to noise levels sufficient to induce Level A harassment (injury) (205
dB re 1 microPa2-s) annually, and as few as 31 or as many as 52
cetaceans (depending on the season and water depth) could potentially
be exposed (annually) to noise levels sufficient to induce Level B
harassment in the form of TTS (182 dB re 1 microPa2-s/23 psi). While
none of these impact estimates consider the proposed mitigation
measures that will be employed by Eglin AFB to minimize potential
impacts to protected species, NMFS proposes to authorize Eglin AFB to
lethally take one marine mammal, 2 marine mammals by Level A
harassment, and up to 53 marine mammals by Level B harassment (TTS)
annually. The proposed mitigation measures described later in this
document are anticipated to reduce potential impacts to marine mammals,
in both numbers and degree of severity.
Table 2. Marine Mammal Densities and Risk Estimates for Lethality (31 psi) Noise Exposure for All In-Water and
In-Air Detonations
----------------------------------------------------------------------------------------------------------------
Number of Animals
Exposed from All Adjusted Number Exposed Based on 30%
Species Density In-Air and In- Mitigation Effectiveness
Water Detonations
----------------------------------------------------------------------------------------------------------------
Summer
----------------------------------- --------------------------------------------------------------
Dwarf/pygmy sperm whale 0.013 0.004 0.003
----------------------------------------------------------------------------------------------------------------
Bottlenose dolphin 0.81 0.262 0.183
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[[Page 44005]]
Atlantic spotted dolphin 0.677 0.219 0.153
----------------------------------------------------------------------------------------------------------------
T. truncatus/S. frontalis 0.053 0.017 0.012
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TOTAL ............. 0.502 0.351
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Winter
----------------------------------- --------------------------------------------------------------
Dwarf/pygmy sperm whale 0.013 0.004 0.003
----------------------------------------------------------------------------------------------------------------
Bottlenose dolphin 0.81 0.262 0.183
----------------------------------------------------------------------------------------------------------------
Atlantic spotted dolphin 0.677 0.219 0.153
----------------------------------------------------------------------------------------------------------------
T. truncatus/S. frontalis 0.053 0.017 0.012
----------------------------------------------------------------------------------------------------------------
TOTAL ............. 0.502 0.351
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Table 3. Marine Mammal Densities and Risk Estimates for Level A Harassment (205 dB EFD 1/3-Octave Band) Noise
Exposure for All In-Water and In-Air Detonations
----------------------------------------------------------------------------------------------------------------
Number of Animals
Exposed from All Adjusted Number Exposed Based on 30%
Species Density In-Air and In- Mitigation Effectiveness
Water Detonations
----------------------------------------------------------------------------------------------------------------
Summer
----------------------------------- --------------------------------------------------------------
Dwarf/pygmy sperm whale 0.013 0.014 0.010
----------------------------------------------------------------------------------------------------------------
Bottlenose dolphin 0.81 0.893 0.625
----------------------------------------------------------------------------------------------------------------
Atlantic spotted dolphin 0.677 0.747 0.523
----------------------------------------------------------------------------------------------------------------
T. truncatus/S. frontalis 0.053 0.058 0.041
----------------------------------------------------------------------------------------------------------------
TOTAL ............. 1.712 1.198
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Winter
----------------------------------- --------------------------------------------------------------
Dwarf/pygmy sperm whale 0.013 0.014 0.010
----------------------------------------------------------------------------------------------------------------
Bottlenose dolphin 0.81 0.893 0.625
----------------------------------------------------------------------------------------------------------------
Atlantic spotted dolphin 0.677 0.747 0.523
----------------------------------------------------------------------------------------------------------------
T. truncatus/S. frontalis 0.053 0.058 0.041
----------------------------------------------------------------------------------------------------------------
TOTAL ............. 1.712 1.198
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Table 4. Marine Mammal Densities and Combined Risk Estimates for the 23 psi Peak Pressure and the 182 dB EFD 1/3-
Octave Band Level B Harassment Metrics for All In-Water and In-Air Detonations
----------------------------------------------------------------------------------------------------------------
Number of Animals
Exposed from All Adjusted Number Exposed Based on 30%
Species Density In-Air and In- Mitigation Effectiveness
Water Detonations
----------------------------------------------------------------------------------------------------------------
Summer
----------------------------------- --------------------------------------------------------------
Dwarf/pygmy sperm whale 0.013 0.26 0.182
----------------------------------------------------------------------------------------------------------------
Bottlenose dolphin 0.81 16.209 11.3463
----------------------------------------------------------------------------------------------------------------
Atlantic spotted dolphin 0.677 13.547 9.4829
----------------------------------------------------------------------------------------------------------------
T. truncatus/S. frontalis 0.053 1.061 0.7427
----------------------------------------------------------------------------------------------------------------
TOTAL ............. 31.076 21.7532
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[[Page 44006]]
Winter
----------------------------------- --------------------------------------------------------------
Dwarf/pygmy sperm whale 0.013 0.44 0.308
----------------------------------------------------------------------------------------------------------------
Bottlenose dolphin 0.81 27.387 19.1709
----------------------------------------------------------------------------------------------------------------
Atlantic spotted dolphin 0.677 22.89 16.023
----------------------------------------------------------------------------------------------------------------
T. truncatus/S. frontalis 0.053 1.792 1.2544
----------------------------------------------------------------------------------------------------------------
TOTAL ............. 52.509 36.7563
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Mitigation and Monitoring
Under the current IHA and as proposed here, Eglin will establish
and survey the relevant ZOIs and buffer zones around a planned
detonation site. The ZOI for the JASSM will be a radius of 2.0 nm (3.7
km) around the detonation site and the buffer zone will be established
at a 1.0-nm (1.85-km) radius outside the safety zone. The ZOI for the
SDB will be a radius of 5-10 nm (9.3-18.5 km) depending upon weight of
the explosive and the buffer zone will be established at a 2.5 - 5 nm
(4.6 -18.5 km) radius outside the SDB ZOI. Prior to the planned
detonation, trained observers aboard aircraft will survey (visually
monitor) the ZOI and buffer area, a very effective method for detecting
cetaceans. The aircraft/helicopters will fly approximately 500 ft (152
m) above the sea surface to allow observers to scan a large distance.
In addition, trained observers aboard surface support vessels will
conduct ship-based monitoring for non-participating vessels as well as
protected species. Using 25X power ``Big-eye'' binoculars, surface
observation would be effective out to several kilometers.
Weather that supports the ability to sight marine life is required
to effectively mitigate impacts on marine life (DON, 1998). Wind,
visibility, and surface conditions in the GOM are the most critical
factors affecting mitigation operations. Higher winds typically
increase wave height and create ``white cap'' conditions, both of which
limit an observer's ability to locate surfacing marine mammals.
Therefore, PSW missions would be delayed if the Beaufort scale sea
state are greater than 3.5.
Visibility is also a critical factor for flight safety issues. A
minimum ceiling of 305 m (1000 ft) and visibility of 5.6 km (3 nm) is
required to support mitigation and safety-of-flight concerns (DON,
2001).
Aerial Survey/Monitoring Team
Eglin will complete an aerial survey before each mission and train
personnel to conduct aerial surveys for protected species. The aerial
survey/monitoring team would consist of two observers. Aircraft provide
a preferable viewing platform for detection of protected marine
species. Each aerial observer will be experienced in marine mammal
surveying and familiar with species that may occur in the area. Each
aircraft would have a data recorder who would be responsible for
relaying the location, the species if possible, the direction of
movement, and the number of animals sighted. Standard line transect
aerial surveying methods, as developed by NMFS (Blaylock and Hoggard,
1994; Buckland et al., 1993) would be used. Aerial observers are
expected to have above average to excellent sighting conditions at
sunrise to 1.85 km (1 nm) on either side of the aircraft within the
weather limitation noted previously. Observed marine mammals would be
identified to the species or the lowest possible taxonomic level and
the relative position recorded. In order to ensure adequate daylight
for pre- and post-mission monitoring, the mission activity would occur
no earlier than 2 hours after sunrise and no later than 2 hours prior
to sunset.
Shipboard Monitoring Team
Eglin AFB will conduct shipboard monitoring to reduce impacts to
protected species. The monitoring would be staged from the highest
point possible on a mission ship. Observers would be familiar with the
marine life of the area. The observer on the vessel must be equipped
with optical equipment with sufficient magnification (e.g., 25X power
``Big-Eye'' binoculars, as these have been successfully used in
monitoring activities from ships), which should allow the observer to
sight surfacing mammals from as far as 11.6 km (6.3 nm) and provide
overlapping coverage from the aerial team. A team leader would be
responsible for reporting sighting locations, which would be based on
bearing and distance.
The aerial and shipboard monitoring teams will have proper lines of
communication to avoid communication deficiencies. The observers from
the aerial team and operations vessel will have direct communication
with the lead scientist aboard the operations vessel. The lead
scientist will be a qualified marine biologist familiar with marine
surveys. The lead scientist reviews the range conditions and recommends
a Go/No-Go decision to the test director. The test director makes the
final Go/No-Go decision.
Mitigation Procedures Plan
All zones (injury, ZOI and buffer zones) are monitored. Although
unexpected, any mission may be delayed or aborted due to technical
reasons. Actual delay times depend on the aircraft supporting the test,
test assets, and range time. Should a technical delay occur, all
mitigation procedures would continue and remain in place until either
the test takes place or is canceled. The ZOI and buffer zone around
JASSM missions will be monitored by shipboard observers from the
highest point of the vessel. Vessels will be positioned as close to the
safety zone as allowed without infringing on the missile flight
corridor. The SDB has many mission profiles and does not have a flight
termination system; therefore, the safety buffer zone may be quite
large (5-10 nm radius (9.3-18.5 km)).
PSW mitigation must be regulated by Air Force safety parameters
(pers. comm. Monteith and Nowers, 2004) to
[[Page 44007]]
ensure personnel safety. Therefore, marine mammal mitigation
effectiveness may be reduced for some missions due to mandatory safety
buffers which limit the time and type of marine mammal mitigation. Even
though mitigation may be limited for PSW and SDB missions, all SDB
detonations are above the water surface (5-25 ft (1.5-7.6 m) above the
surface) and of much smaller net explosive weight than JASSM. Table 5
describes safety zones and clearance times for JASSM and SDB missions
(time in minutes).
Table 5. Safety Zone Monitoring Time Frames and Effectiveness
----------------------------------------------------------------------------------------------------------------
Safety Safety Total Time
Clearance Clearance of Vessel Total Time of
Flight Time for Time for Safety Aircraft Safety
Time Vessels Aircraft Clearance Clearance before Human Safety Area
before before before Detonation
Launch Launch Detonation
----------------------------------------------------------------------------------------------------------------
JASSM :30-1 :30 :15 1:30 1:15 2 NM
hr
----------------------------------------------------------------------------------------------------------------
SDB :20 :60 :30 1:20 :50 5-10 NM
----------------------------------------------------------------------------------------------------------------
Stepwise mitigation and monitoring procedures for PSW missions are
outlined here.
Pre-mission Monitoring
The purposes of pre-mission monitoring are to (1) evaluate the test
site for environmental suitability of the mission (e.g., relatively low
numbers of marine mammals) and (2) verify that the ZOI is free of
visually detectable marine mammals. On the morning of the test, the
lead scientist would confirm that the test sites can still support the
mission and that the weather is adequate to support mitigation.
Five Hours Prior to Mission Launch
Approximately 5 hours prior to mission launch, or at daybreak, the
appropriate vessel(s) would be on-site in the primary test site near
the location of the earliest planned mission point. Observers onboard
the vessel will assess the suitability of the test site, based on
visual observation of marine mammals, and overall environmental
conditions (visibility, sea state, etc.). This information will be
relayed to the lead scientist.
Three Hours Prior to Mission Launch
Approximately three hours prior to mission launch, aerial
monitoring would commence within the test site to evaluate the test
site for environmental suitability. Evaluation of the entire test site
would take approximately 1 to 1.5 hours. Shipboard observers would
monitor the ``ZOI'' and buffer zone, and the lead scientist would enter
all marine mammals sightings, including the time of sighting and the
direction of travel, into a marine animal tracking and sighting
database. The aerial monitoring team would begin monitoring the ZOI and
buffer zone around the target area. The shipboard monitoring team would
combine with the aerial team to monitor the area immediately around the
mission area including both the ZOI and buffer zone.
One to 1.5 Hours Prior to Mission Launch
As noted in Table 6 and depending upon the mission, aerial and
shipboard viewers would be instructed to leave the area and remain
outside the human personnel safety area (over 2 nm (3.7 km) from impact
for JASSM and 5-10 nm (9.3-18.5 km) for SDB). The aerial team would
report all marine animals spotted and their directions of travel to the
lead scientist onboard the vessel. The shipboard monitoring team would
continue searching the buffer zone for protected species as it leaves.
The aircraft will leave the area and land on base. The surface vessels
will stay on the outside of the human personnel safety area (5-10 nm
for SDB and 2 nm for JASSM) until after detonation.
Fifteen Minutes Prior to Launch and Go/No-Go Decision Process
Visual monitoring from surface vessels outside the human personnel
safety zone would continue to document any animals that may have gone
undetected during the past two hours and track animals moving in the
direction of the detonation area.
The lead scientist would plot and record sightings and bearing for
all marine animals detected. This would depict animal sightings
relative to the mission area. The lead scientist would have the
authority to declare the range fouled and recommend a hold until
monitoring indicates that the ZOI is and will remain clear of
detectable animals.
The mission would be postponed if:
(1) Any marine mammal is visually detected within the relevant ZOI
(see Table 1) prior to mission launch. The delay would continue until
the marine mammal that caused the postponement is confirmed to be
outside of the ZOI due to the animal moving out of the range, and
(2) Any marine mammal is detected in the buffer zone and cannot be
subsequently re-sighted. The mission would not continue until the last
verified location is outside of the ZOI and the animal is moving away
from the mission area.
In the event of a postponement, pre-mission monitoring would
continue as long as weather and daylight hours allow. Aerial monitoring
is limited by fuel and the on-station time of the monitoring aircraft.
If a live warhead failed to explode operations would attempt to
recognize and solve the problem while continuing with all mitigation
measures in place. The probability of this occurring is very remote but
does exist. Should a weapon fail to explode, the activity sponsor would
attempt to identify the problem and detonate the charge with all marine
mammal mitigation measures in place as described. If a live warhead
fails to explode the weapon is rendered safe after 15 minutes. The
feasibility and practicality of recovering the warhead will be
evaluated on a case-by-case basis. If at all feasible, the warhead will
be recovered.
Launch to Impact
Visual monitoring from vessels would continue to survey the ZOI and
surrounding buffer zone and track animals moving in the direction of
the impact area. The lead scientist would continue to plot and record
sightings and bearing for all marine animals detected. This will depict
animal sightings relative to the impact area. Due to economic (costs of
testing $2 million per test) and practical (in-air destruction of the
missile) reasons, NMFS is not proposing to require Eglin AFB to
terminate an in-flight missile or bomb due to sighting of a protected
species.
[[Page 44008]]
Post-mission monitoring
Post-mission monitoring is designed to gauge the effectiveness of
pre-mission mitigation by reporting any sightings of dead or injured
marine mammals. Post-detonation monitoring via shipboard surveyors
would commence immediately following each detonation; no aerial surveys
would be conducted during this monitoring stage. The vessels will move
into the ZOI from outside the safety zone and continue monitoring for
at least two hours, concentrating on the area down current of the test
site.
Although it is highly unlikely that marine mammals will be killed
or seriously injured by this activity, any marine mammals killed by an
explosion would likely suffer lung rupture, which would cause them to
float to the surface immediately due to air in the blood stream. Any
animals that are not killed instantly but are mortally wounded would
likely resurface within a few days, though this would depend on the
size and type of animal, fat stores, depth, and water temperature (DON,
2001). The monitoring team would attempt to document any marine mammals
that are killed or injured as a result of the test and, if practicable,
recover and examine any dead animals. The species, number, location,
and behavior of any animals observed by the observation teams would be
documented and reported to the lead scientist.
Post-mission monitoring activities include coordination with marine
animal stranding networks. NMFS maintains stranding networks along
coasts to collect and circulate information about marine mammal
standings. Local coordinators report stranding data to state and
regional coordinators. Any observed dead or injured marine mammals
would be reported to the appropriate coordinator.
Summary of Mitigation Plan
The PSW test will be postponed if any human safety concerns arise,
protected species are sighted within the ZOI, any protected species is
detected in the buffer zone and subsequently cannot be reacquired, or a
marine mammal is moving into the ZOI from the buffer zone. The delay
would continue until the marine mammal that caused the postponement is
confirmed to be outside of the ZOI due to the animal swimming out of
the range.
Avoidance of impacts to pods of cetaceans will most likely be
realized through these measures since groups of dolphins are relatively
easy to spot with the survey distances and methods that will be
employed. Typically solitary marine mammals such as dwarf/pygmy sperm
whales, while more challenging to detect, will also be afforded
substantial protection through pre-test monitoring.
The safety vessels would conduct post-mission monitoring for two
hours after each mission. The monitoring team would document any marine
mammals observed dead or injured and, if practicable, recover and
examine any dead animals.
Conservative Estimates of Marine Mammal Densities
Using conservative mathematical calculations and conservative
density estimates can serve as a technique for making conservative
``take'' estimates. Marine mammal densities used to calculate takes
were based on the most current and comprehensive GOM surveys available
(GulfCet II). The densities are adjusted for the time the animals are
submerged, and further adjusted by applying standard deviations to
provide an approximately 99 percent confidence level. As an example,
the density estimates for bottlenose dolphins range from 0.06 to 0.15
animals/km2 in GulfCet II aerial surveys of the shelf and slope.
However, the final adjusted density used in take calculations is 0.81
animals/km\2\.
Reporting
As in the current IHA, NMFS proposes to continue to require Eglin
AFB to submit an annual report on the results of the monitoring
requirements. This annual report will be due within 30 days prior to
the expiration of the current LOA. This report will then be used by
NMFS to determine whether incidental takings by Eglin AFB from this
activity continue to have a negligible impact on affected species and
stocks of marine mammals. This report will include a discussion on the
effectiveness of the mitigation in addition to the following
information: (1) Date and time of each of the detonations; (2) a
detailed description of the pre-test and post-test activities related
to mitigating and monitoring the effects of explosives detonation on
marine mammals and marine mammal populations; (3) the results of the
monitoring program, including numbers by species/stock of any marine
mammals noted injured or dead, presumably as a result of the detonation
and numbers that may have been harassed due to undetected presence
within the ZOI (NMFS and Eglin presume that if an area is determined to
be clear of marine mammals and later, during post-event monitoring,
marine mammals are found in the area, those marine mammals will be
considered ``taken''); and (4) results of coordination with coastal
marine mammal stranding networks.
Research
Although Eglin AFB does not currently conduct independent Air Force
monitoring efforts, Eglin AFB's Natural Resources Branch does
participate in marine animal tagging and monitoring programs led by
other agencies. The Natural Resources Branch also supports
participation in annual surveys of marine mammals in the GOM with NOAA
Fisheries. From 1999 to 2002, Eglin AFB's Natural Resources Branch
participated in summer cetacean monitoring and research opportunities
through a contract representative. The contractor participated in
visual surveys in 1999 for cetaceans in GOM, photographic
identification of sperm whales in the northeastern Gulf in 2001, and
served as a visual observer during the 2000 Sperm Whale Pilot Study and
the 2002 sperm whale Satellite-tag (S-tag) cruise. Support for these
research efforts is anticipated to continue.
Eglin AFB utilizes marine mammal stranding information to ascertain
the effectiveness of its mitigation measures for offshore activities.
Stranding data is collected and maintained for the Florida panhandle
and Gulf-wide areas. This is undertaken through the establishment and
maintenance of contacts with local, state, and regional stranding
networks. Eglin AFB assists with stranding data collection by
maintaining its own team of stranding personnel. In addition to simply
collecting stranding data, various analyses are performed. Stranding
events are tracked by year, season, and NMFS statistical zone, both
Gulf-wide and on the coastline in proximity to Eglin AFB. Stranding
data is combined with records of EGTTR mission activity in each water
range and analyzed for any possible correlation. In addition to being
used as a measure of the effectiveness of mission mitigation, stranding
data can yield insight into the species composition of cetaceans in the
region.
Endangered Species Act (ESA)
NMFS issued a biological opinion regarding the effects of Eglin's
PSW activity on ESA-listed species and critical habitat under the
jurisdiction of NMFS. That biological opinion concluded that Eglin's
PSW activity is not likely to jeopardize the continued existence of
listed species or result in the destruction or adverse modification of
critical habitat. On August 11, 2005, NMFS determined that issuance of
an
[[Page 44009]]
annual authorization under section 101(a)(5) of the MMPA to Eglin AFB
for this activity will not have effects beyond what was analyzed in
2004 in the Biological Opinion. NMFS has preliminarily determined that
the issuance of up to 5 LOAs to Eglin under these regulations (if
implemented) would not have effects beyond what was analyzed in the
2004 Biological Opinion. A copy of the Biological Opinion is available
upon request (see ADDRESSES).
National Environmental Policy Act (NEPA)
In December, 2003, Eglin AFB released a Draft PEA on the PSW
activity. On April 22, 2004 (69 FR 21816), NMFS noted that Eglin AFB
had prepared a Draft PEA for PSW activities and made this PEA available
upon request. Eglin AFB updated the information in that PEA and issued
a Final PEA and a Finding of No Significant Impact (FONSI) on the PSW
activities.
In accordance with NOAA Administrative Order 216-6 (Environmental
Review Procedures for Implementing the National Environmental Policy
Act, May 20, 1999), NMFS reviewed the information contained in Eglin
AFB's Final PEA and determined that the Eglin AFB's PEA accurately and
completely describes the proposed action alternative, reasonable
additional alternatives, and the potential impacts on marine mammals,
endangered species, and other marine life that could be impacted by the
preferred alternative and the other alternatives. Based on this review
and analysis, NMFS adopted Eglin's PEA under 40 CFR 1506.3 and made its
own FONSI statement on July 25, 2005. Therefore, it was not necessary
to issue a new EA, supplemental EA or an environmental impact statement
for the issuance of an IHA to Eglin AFB to take marine mammals
incidental to this activity. NMFS will review its determination as part
of this rulemaking. A decision will be made prior to making a final
determination on issuing a final rule for this activity. A copy of
NMFS' FONSI for this activity is available upon request (see
ADDRESSES). A paper copy of the Eglin AFB Programmatic EA for this
activity is available by contacting either Eglin AFB or NMFS (see
ADDRESSES).
Preliminary Determinations
NMFS has preliminarily determined that, based on the information
provided in Eglin's application, the Final PEA and this document, the
total taking of marine mammals by PSW activities will have a negligible
impact on the affected species or stocks over the 5-year period of take
authorizations. While no take by serious injury or death is anticipated
during this period, limited mortality is proposed to be authorized in
the event that the extensive mitigation measures are not totally
successful. However, even if serious injury or mortality were to occur,
the total taking still would have no more than a negligible impact on
the affected marine mammal species or stocks.
In addition, the potential for temporary or permanent hearing
impairment is low and will have the least practicable adverse impact on
the affected species or stocks through the incorporation of the
mitigation measures mentioned in this document. The information
contained in Eglin's EA and incidental take application support NMFS'
finding that impacts will be mitigated by implementation of a
conservative safety range for marine mammal exclusion, incorporation of
aerial and shipboard survey monitoring efforts in the program 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 safety zone or may
enter the safety zone at the time of detonation or if weather and sea
conditions preclude adequate aerial surveillance. Since the taking will
not result in more than the incidental harassment of certain species of
marine mammals, will have only a negligible impact on these stocks,
will not have an unmitigable adverse impact on the availability of
these stocks for subsistence uses (as there are no known subsistence
uses of marine mammal stocks in the GOM), and, through implementation
of required mitigation and monitoring measures, will result in the
least practicable adverse impact on the affected marine mammal stocks,
NMFS has preliminarily determined that the requirements of section
101(a)(5)(A) of the MMPA have been met and this proposed rule can be
issued.
Request for Information
NMFS requests interested persons to submit comments, information,
and suggestions concerning Eglin's application and this proposed rule.
Prior to submitting comments, NMFS recommends reviewers of this
document read the responses to comments made previously (70 FR 48675,
August 19, 2005) for this action as NMFS does not plan to address these
issues further without the submission of additional scientific
information or reasoning supporting the comment.
Comments sent via e-mail, including all attachments, must not
exceed a 10-megabyte file size. To submit comments through the Federal
e-Rulemaking Portal, go to http://www.regulations.gov and follow the
instructions for submitting comments. To help us process and review
comments more efficiently, please use only one method.
A copy of the application containing a list of references used in
this document may be obtained by writing to NMFS (see ADDRESSES), by
telephoning the contact listed under FOR FURTHER INFORMATION CONTACT,
or at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. A paper copy
of Eglin AFB's Final Programmatic Environmental Assessment (Final PEA)
is available by writing to the Department of the Air Force (see
ADDRESSES).
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
since it would apply only to the U.S. Air Force, a federal agency. It
may 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 them would be beneficial. Because of this certification, a
regulatory flexibility analysis is not required and none has been
prepared.
List of Subjects in 50 CFR Part 216
Exports, Fish, Imports, Indians, Labeling, Marine mammals,
Penalties, Reporting and recordkeeping requirements, Seafood,
Transportation.
Dated: July 27, 2006.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine
Fisheries Service.
For reasons set forth in the preamble, 50 CFR part 216 is proposed
to be amended as follows:
[[Page 44010]]
PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS
1. The authority citation for part 216 continues to read as
follows:
Authority: 16 U.S.C. 1361 et seq.
2. Subpart V is added and reserved.
3. Subpart W is added to part 216 to read as follows:
Subpart W--Taking Marine Mammals Incidental to Conducting Precision
Strike Weapon Missions in the Gulf of Mexico
Sec.
216.250 Specified activity and specified geographical region.
216.251 Effective dates.
216.252 Permissible methods of taking.
216.253 Prohibitions.
216.254 Mitigation.
216.255 Requirements for monitoring and reporting.
216.256 Applications for Letters of Authorization.
216.257 Letter of Authorization.
216.258 Renewal of Letters of Authorization.
216.259 Modifications to Letters of Authorization.
Subpart W--Taking Marine Mammals Incidental to Conducting Precision
Strike Weapon Missions in the Gulf of Mexico
Sec. 216.250 Specified activity and specified geographical region.
(a) Regulations in this subpart apply only to the incidental taking
of those marine mammal species specified in paragraph (b) of this
section by U.S. citizens engaged in U.S. Air Force Precision Strike
Weapon missions within the Eglin Air Force Base Gulf Test and Training
Range within the northern Gulf of Mexico. The authorized activities as
specified in a Letter of Authorization issued under Sec. Sec. 216.106
and 216.257 include, but are not limited to, activities associated with
(1) The Joint Air-to-Surface Stand-off Missile (JASSM) exercise for
a maximum of two live shots (single) and 4 inert shots (single)
annually and
(2) The small-diameter bomb (SDB) exercise for a maximum of six
live shots a year, with two of the shots occurring simultaneously and a
maximum of 12 inert shots, with up to two occurring simultaneously.
(b) The incidental take by Level A harassment, Level B harassment,
or mortality of marine mammals under the activity identified in this
section is limited to the following species: Atlantic bottlenose
dolphins (Tursiops truncatus), Atlantic spotted dolphins (Stenella
frontalis), dwarf sperm whales (Kogia simus) and pygmy sperm whale
(Kogia breviceps).
Sec. 216.251 Effective dates.
Regulations in this subpart are effective from 30 days after the
date of publication of the final rule in the Federal Register until 5
years and 30 days after the date of publication of the final rule in
the Federal Register.
Sec. 216.252 Permissible methods of taking.
(a) Under Letters of Authorization issued pursuant to Sec. Sec.
216.106 and 216.257, the Holder of the Letter of Authorization may
incidentally, but not intentionally, take marine mammals by Level A and
Level B harassment, and mortality within the area described in Sec.
216.250(a), provided the activity is in compliance with all terms,
conditions, and requirements of these regulations and the appropriate
Letter of Authorization.
(b) The taking of marine mammals under a Letter of Authorization is
limited to the species listed in Sec. 216.252(b) and is limited to a
total of 1 mortality, 2 takes by Level A harassment, and 53 takes by
Level B harassment annually.
Sec. 216.253 Prohibitions.
Notwithstanding takings contemplated in Sec. 216.250 and
authorized by a Letter of Authorization issued under Sec. Sec. 216.106
and 216.257, no person in connection with the activities described in
Sec. 216.250 shall:
(a) Take any marine mammal not specified in
Sec. 216.250(b);
(b) Take any marine mammal specified in Sec. 216.250(b) other than
by incidental, unintentional Level A or Level B harassment or
mortality;
(c) Take a marine mammal specified in Sec. 216.250(b) 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 216.257.
Sec. 216.254 Mitigation.
The activity identified in Sec. 216.250(a) 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. 216.250(a) under a Letter of
Authorization, the following mitigation measures must be implemented:
(a)(1) For the JASSM, the holder of the Letter of Authorization
must establish and monitor a safety zone for marine mammals with a
radius of 2.0 nm (3.7 km) from the center of the detonation and a
buffer zone with a radius of 1.0 nm (1.85 km) radius from the outer
edge of the safety zone.
(2) For the SDB, the holder of the Letter of Authorization must
establish and monitor a safety for marine mammals with a radius of no
less than 5 nm (9.3 km) for single bombs and 10 nm (18.5 km) for double
bombs and a buffer zone from the outer edge of the safety zone with a
radius of at least 2.5 nm (4.6 km) for single bombs and 5 nm (18.5 km)
for double bombs.
(b) When detonating explosives:
(1) If any marine mammals are observed within the designated safety
zone prescribed in condition (a)(1) of this section, or within the
buffer zone prescribed in condition (a)(2) of this section that are on
a course that will put them within the safety zone prior to JASSM or
SDB launch, the launching must be delayed until all marine mammals are
no longer within the designated safety zone.
(2) If any marine mammals are detected in the buffer zone and
subsequently cannot be reacquired, the mission launch will not continue
until the next verified location is outside of the safety zone and the
animal is moving away from the mission area.
(3) If weather and/or sea conditions preclude adequate aerial
surveillance for detecting marine mammals, detonation must be delayed
until adequate sea conditions exist for aerial surveillance to be
undertaken. Adequate sea conditions means the sea state does not exceed
Beaufort sea state 3.5 (i.e., whitecaps on 33 to 50 percent of surface;
0.6 m (2 ft) to 0.9 m (3 ft) waves), the visibility is 5.6 km (3 nm) or
greater, and the ceiling is 305 m (1,000 ft) or greater.
(4) To ensure adequate daylight for pre- and post-detonation
monitoring, mission launches may not take place earlier than 2 hours
after sunrise, and detonations may not take place later than 2 hours
prior to sunset, or whenever darkness or weather conditions will
preclude completion of the post-test survey effort described in Sec.
216.255.
(5) If post-detonation surveys determine that a serious injury or
lethal take of a marine mammal has occurred, the test procedure and the
monitoring methods must be reviewed with the National Marine Fisheries
Service and appropriate changes must be made prior to conducting the
next mission detonation.
(6) Mission launches must be delayed if aerial or vessel monitoring
programs
[[Page 44011]]
described under Sec. 216.255 cannot be fully carried out.
Sec. 216.255 Requirements for monitoring and reporting.
(a) The Holder of the Letter of Authorization issued pursuant to
Sec. Sec. 216.106 and 216.257 for activities described in Sec.
216.250(a) is required to conduct the monitoring and reporting measures
specified in this section 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 (301-713-2289), at least 2
weeks prior to any modification to the activity identified in Sec.
216.250(a) that has the potential to result in the mortality or Level A
or Level B harassment of marine mammals that was not identified and
addressed previously.
(c) The Holder of this Authorization must:
(1) Designate qualified on-site individual(s) to record the effects
of mission launches on marine mammals that inhabit the northern Gulf of
Mexico;
(2) Have on-site individuals, approved in advance by the National
Marine Fisheries Service, to conduct the mitigation, monitoring and
reporting activities specified in these regulations and in the Letter
of Authorization issued pursuant to Sec. 216.106 and Sec. 216.257.
(3) Conduct aerial surveys to reduce impacts on protected species.
The aerial survey/monitoring team will consist of two experienced
marine mammal observers, approved in advance by the Southeast Region,
National Marine Fisheries Service. The aircraft will also have a data
recorder who would be responsible for relaying the location, the
species if possible, the direction of movement, and the number of
animals sighted.
(4) Conduct shipboard monitoring to reduce impacts to protected
species. Trained observers will conduct monitoring from the highest
point possible on each mission or support vessel(s). The observer on
the vessel must be equipped with optical equipment with sufficient
magnification (e.g., 25X power ``Big-Eye'' binoculars.
(d) The aerial and shipboard monitoring teams will maintain proper
lines of communication to avoid communication deficiencies. The
observers from the aerial team and operations vessel will have direct
communication with the lead scientist aboard the operations vessel.
(e) Pre-mission Monitoring: Approximately 5 hours prior to the
mission, or at daybreak, the appropriate vessel(s) would be on-site in
the primary test site near the location of the earliest planned mission
point. Observers onboard the vessel will assess the suitability of the
test site, based on visual observation of marine mammals and overall
environmental conditions (visibility, sea state, etc.). This
information will be relayed to the lead scientist.
(f) Three Hours Prior to Mission:
(1) Approximately three hours prior to the mission launch, aerial
monitoring will commence within the test site to evaluate the test site
for environmental suitability. Evaluation of the entire test site would
take approximately 1 to 1.5 hours. The aerial monitoring team will
begin monitoring the safety zone and buffer zone around the target
area.
(2) Shipboard observers will monitor the safety and buffer zone,
and the lead scientist will enter all marine mammal sightings,
including the time of sighting and the direction of travel, into a
marine animal tracking and sighting database.
(g) One to 1.5 Hours Prior to Mission Launch:
(1) Depending upon the mission, aerial and shipboard viewers will
be instructed to leave the area and remain outside the safety area. The
aerial team will report all marine animals spotted and their directions
of travel to the lead scientist onboard the vessel.
(2) The shipboard monitoring team will continue searching the
buffer zone for protected species as it leaves the safety zone. The
surface vessels will continue to monitor from outside of the safety
area until after impact.
(h) Post-mission monitoring:
(1) The vessels will move into the safety zone from outside the
safety zone and continue monitoring for at least two hours,
concentrating on the area down current of the test site.
(2) The Holder of the Letter of Authorization will closely
coordinate mission launches with marine animal stranding networks.
(3) The monitoring team will document any dead or injured marine
mammals and, if practicable, recover and examine any dead animals.
(i) Activities related to the monitoring described in this section
may include retention of marine mammals without the need for a separate
scientific research permit.
(j) In accordance with provisions in Sec. 216.258(b)(2), the
Holder of the Letter of Authorization must conduct the research
required under the Letter of Authorization.
(k) Reporting
(1) Unless specified otherwise in the Letter of Authorization, the
Holder of the Letter of Authorization must submit an annual report to
the Director, Office of Protected Resources, National Marine Fisheries
Service, no later than 60 days prior to the date of expiration of the
Letter of Authorization. This report must contain all information
required by these regulations and the Letter of Authorization.
(2) The final comprehensive report on all marine mammal monitoring
and research conducted during the period of these regulations must be
submitted to the Director, Office of Protected Resources, National
Marine Fisheries Service at least 240 days prior to expiration of these
regulations or 240 days after the expiration of these regulations if
new regulations will not be requested.
Sec. 216.256 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 activity
identified in Sec. 216.250(a) must apply for and obtain either an
initial Letter of Authorization in accordance with Sec. Sec. 216.106
and 216.257 or a renewal under Sec. 216.258.
Sec. 216.257 Letter of Authorization.
(a) A Letter of Authorization, unless suspended or revoked, will be
valid for a period of time not to exceed the period of validity of this
subpart, but must be renewed annually subject to annual renewal
conditions in Sec. 216.258.
(b) Each Letter of Authorization will set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact on the
species, its habitat, and on the availability of the species for
subsistence uses; and
(3) Requirements for monitoring and reporting.
(c) Issuance and renewal of the Letter of Authorization will be
based on a determination that the total number of marine mammals taken
by the activity as a whole will have no more than a negligible impact
on the species or stock of affected marine mammals.
(d) Except for the initial Letter of Authorization, notice of
issuance or
[[Page 44012]]
denial of a Letter of Authorization will be published in the Federal
Register within 30 days of a determination.
Sec. 216.258 Renewal of Letters of Authorization.
(a) A Letter of Authorization issued under Sec. 216.106 and Sec.
216.257 for the activity identified in Sec. 216.250(a) will be renewed
annually upon:
(1) Notification to the National Marine Fisheries Service that the
activity described in the application submitted under Sec. 216.256
will be undertaken and that there will not be a substantial
modification to the described work, mitigation or monitoring undertaken
during the upcoming 12 months;
(2) Timely receipt of the monitoring report required under
Sec. 216.255(b), and the Letter of Authorization, which has been
reviewed and accepted by the National Marine Fisheries Service; and
(3) A determination by the National Marine Fisheries Service that
the mitigation, monitoring and reporting measures required under Sec.
216.254 and the Letter of Authorization issued under Sec. Sec. 216.106
and 216.257, were undertaken and will be undertaken during the upcoming
annual period of validity of a renewed Letter of Authorization.
(b) If a request for a renewal of a Letter of Authorization issued
under Sec. Sec. 216.106 and 216.258 indicates that a substantial
modification to the described work, mitigation, monitoring or research
undertaken during the upcoming season will occur, the National Marine
Fisheries Service will provide the public a period of 30 days for
review and seek comment on:
(1) New cited information and data that indicates that the
determinations made for promulgating these regulations are in need of
reconsideration, and
(2) Proposed changes to the mitigation, monitoring and research
requirements contained in these regulations or in the current Letter of
Authorization.
Sec. 216.259 Modifications to Letters of Authorization.
(a) Except as provided in paragraph (b) of this section, no
substantive modification (including withdrawal or suspension) to a
Letter of Authorization issued pursuant to Sec. Sec. 216.106 shall be
made until after notification and an opportunity for public comment has
been provided. For purposes of this paragraph, a renewal of a Letter of
Authorization under Sec. 216.258, without modification (except for the
period of validity), is not considered a substantive modification.
(b) If the Assistant Administrator determines that an emergency
exists that poses a significant risk to the well-being of the species
or stocks of marine mammals specified in Sec. 216.250(b), a Letter of
Authorization issued pursuant to Sec. Sec. 216.106 and 216.257 may be
substantively modified without prior notification and an opportunity
for public comment. Notification will be published in the Federal
Register within 30 days subsequent to the action.
[FR Doc. E6-12556 Filed 8-2-06; 8:45 am]
BILLING CODE 3510-22-S