[Federal Register Volume 75, Number 190 (Friday, October 1, 2010)]
[Proposed Rules]
[Pages 60694-60709]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-24689]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 217
[Docket No. 100217098-0373-01]
RIN 0648-AY64
Taking and Importing Marine Mammals; Naval Explosive Ordnance
Disposal School Training Operations at Eglin Air Force Base, Florida
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 an application from the U.S. Department of
[[Page 60695]]
the Air Force, Headquarters 96th Air Base Wing (U.S. Air Force), Eglin
Air Force Base (Eglin AFB) for authorization to take marine mammals, by
Level B harassment, incidental to Naval Explosive Ordnance Disposal
School (NEODS) training operations, military readiness activities, at
Eglin AFB, FL from approximately December, 2010, to November, 2015.
Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is proposing
regulations to govern the requested take and requesting information,
suggestions, and comments on its proposed regulations. NMFS issued
annual Incidental Harassment Authorizations pursuant to the MMPA for
similar specified activities in 2005, 2006, 2007, and 2008. No
activities have occurred to date.
DATES: Information, suggestions, and comments must be received no later
than November 1, 2010.
ADDRESSES: Comments on the application 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. Submit all electronic
public comments via the Federal eRulemaking Portal: http://www.regulations.gov.
Instructions: All comments received are a part of the public record
and will generally be posted to http://www.nmfs.noaa.gov/pr/permits/incidental.htm without change. All Personal Identifying Information
(for example, name, address, etc.) voluntarily submitted by the
commenter may be publicly accessible. Do not submit Confidential
Business Information or otherwise sensitive or protected information.
A copy of the application containing a list of the references used
in this document may be obtained by writing to the address specified
above, telephoning the contact listed below (see FOR FURTHER
INFORMATION CONTACT), or visiting the Internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. Documents cited in this
notice may be viewed, by appointment, during regular business hours, at
the aforementioned address. NMFS is current preparing a Draft
Environmental Assessment in accordance with the National Environmental
Policy Act (NEPA) as implemented by the regulations published by the
Council on Environmental Quality (CEQ).
FOR FURTHER INFORMATION CONTACT: Howard Goldstein or Jolie Harrison,
Office of Protected Resources, NMFS, 301-713-2289, ext. 172.
SUPPLEMENTARY INFORMATION:
Availability
A copy of the application containing a list of the references used
in this document may be obtained by writing to the address specified
above, telephoning the contact listed below (see FOR FURTHER
INFORMATION CONTACT), or visiting the Internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm.
Documents cited in this notice may be viewed, by appointment,
during regular business hours, at the aforementioned address.
Background
Paragraphs 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et
seq.) direct the Secretary of Commerce (Secretary), upon request, to
allow for a period of not more than five years, 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. Alternatively, if the taking is limited to harassment an
Incidental Harassment Authorization (IHA) is issued. Upon making a
finding that an application for incidental take is adequate and
complete, NMFS commences the incidental take authorization process by
publishing in the Federal Register a notice of a receipt of an
application for the implementation of regulations or a proposed IHA.
An authorization for the incidental takings may be granted if NMFS
finds that the taking during the period of the authorization will have
a negligible impact on the species or stock(s), will not have an
unmitigable adverse impact on the availability of the species or
stock(s) for subsistence uses (where relevant), and if the permissible
methods of taking and requirements pertaining to the mitigation,
monitoring and reporting of such takings are set forth to achieve the
least practicable adverse impact.
NMFS has defined ``negligible impact'' in 50 CFR 216.103 as:
* * * an impact resulting from the specified activity that
cannot be reasonably expected to, and is not reasonably likely to,
adversely affect the species or stock through effects on annual
rates of recruitment or survival.
The National Defense Authorization Act of 2004 (NDAA) (Pub. L. 108-
36) modified the MMPA by removing the ``small numbers'' and ``specified
geographic region'' limitations and amended the definition of
``harassment'' as it applies to a ``military readiness activity'' to
read as follows (Section 3(18)(B) of the MMPA):
(i) any act that injures or has the significant potential to
injure a marine mammal or marine mammal stock in the wild (Level A
harassment); or (ii) any act that disturbs or is likely to disturb a
marine mammal or marine mammal stock in the wild by causing
disruption of natural behavioral patterns, including, but not
limited to, migration, surfacing, nursing, breeding, feeding, or
behavioral patterns are abandoned or significantly altered (Level B
harassment).
Summary of Request
On November 6, 2009, NMFS received a letter from the U.S. Air Force
requesting an authorization for the take of marine mammals incidental
to NEODS training operations. These training operations are properly
considered ``military readiness activity'' under the provisions of the
NDAA. On January 15, 2010, NMFS published a Notice of Receipt (75 FR
2490) in the Federal Register for the U.S. Air Force's NEODS training
operations and determined that its application was adequate and
complete. The U.S. Air Force states and NMFS concurs that underwater
explosive detonations could result in the take by harassment of marine
mammals by exposing them to sound. The requested regulations would
establish a framework for authorizing incidental take with future LOAs.
These LOAs, if approved, would authorize the take, by Level B
(behavioral) harassment, of Atlantic bottlenose dolphins (Tursiops
truncatus) incidental to conducting NEODS training operations and
testing at Eglin Gulf Test and Training Range (EGTTR) at property off
Santa Rosa Island (SRI), Florida, in the northern Gulf of Mexico (GOM).
Based on the application, pre-mitigation take would average
approximately 10 animals per year; approximately 50 animals over the
five year period. NMFS issued annual Incidental Harassment
Authorizations (IHA) for almost identical activities in 2005 (70 FR
51341; August 30, 2005), 2006 (71 FR 60639; October 16, 2006), 2007 (72
FR 58290; October 15, 2007), and 2008 (73 FR 56800; September 30,
2008). The past missions have been delayed due to safety issues related
to bringing demolition charges under a bridge. No missions have
occurred to date under any of the IHAs. NEODS missions would involve
underwater detonations of small, live explosive charges adjacent to
inert mines. The NEODS training activities are classified as military
readiness activities. The U.S. Air Force states that underwater
detonation of the specified explosive charges may expose bottlenose
dolphins
[[Page 60696]]
in the area to noise and pressure resulting in non-injurious temporary
threshold shift (TTS) (temporary hearing loss).
Additional information on the NEODS training operations is
contained in the application, which is available upon request (see
ADDRESSES).
Description of the Proposed Specified Activities
Background
Potential impacts to listed species and habitat from NEODS testing
are limited to the sites offshore of Eglin AFB shown in Figure 1-1 of
Eglin AFB's application. The EGTTR encompasses approximately 222,739
km\2\ (86,000 mi\2\) within the GOM and consists of the airspace over
the GOM, which is scheduled and operated by Eglin AFB. NEODS test areas
are located approximately three nautical miles (nmi) from shore, in
approximately 18.3 m (60 ft) of water and in area W-151 of the EGTTR.
The mission of NEODS is to detect, recover, identify, evaluate,
render safe, and dispose of unexploded ordnance (UXO) that constitutes
a threat to people, material, installations, ships, aircraft, and
operations. The U.S. Navy EOD force of approximately 1,000 men and
women has the equipment, mobility, and flexibility to tackle the global
spectrum of threats in all world environments. Mine Countermeasures
(MCM) detonations is one function of the U.S. Navy EOD force, which
involves mine-hunting and mine-clearance operations. The NEODS
facilities are located at Eglin AFB, Florida. The proposed training at
Eglin AFB involves focused training on basic EOD skills. Examples of
these fundamental skills are recognizing ordnance, reconnaissance,
measurement, basic understanding of demolition charges, and
neutralization of conventional and chemical ordnance.
The NEODS at Eglin AFB proposes to use the GOM waters off of SRI
for a portion of the NEODS class. The NEODS would utilize areas
approximately one to three nmi offshore of Test Site A-15, A-10 or A-3
for MCM training (see Figure 1-1 of Eglin AFB's application). A ``test
site'' is a specific location on EGTTR where the mission activities
actually occur. The goal of the training is to give NEODS students the
tools and techniques to implement MCM through real scenarios. The
students would be taught established techniques to implement MCM
through real scenarios. The students would be taught established
techniques for neutralizing mines by diving and hand-placing charges
adjacent to the mines. The detonation of small, live explosive charges
adjacent to the mine disables the mine function. Inert mines are
utilized for training purposes. This training would occur offshore of
SRI up to eight times annually, at varying times within the year.
Proposed NEODS Operations
MCM training classes are 51 days in duration, with four days of on-
site training in the GOM. Two of these four days will be utilized to
lay the inert mines prior to the training. The other two days will
require the use of live detonations in the GOM. One large safety vessel
and five MK V inflatable 3.1 m (10 ft) rubber boats with 50 horsepower
(HP) engines would be used to access the GOM waters during training
activities. The training procedures during the two ``live demolition''
days are described as follows.
First Live Demolition Day: Five inert mines will be placed in a
compact area on the GOM floor in approximately 60 ft of water. These
five mines will be utilized for the one or two live demolition days.
Divers will locate the mines by hand-held sonars (AN/PQS-2A acoustic
locator and the Dukane Underwater Acoustic Locator System), which
detect the mine casings (mine shape reacquisition). The hand-held sonar
would not impact any protected marine species because the sonar ranges
are below any current threshold for protected marine species (see Table
1-1 of Eglin AFB's application); therefore, potential noise impacts
from sonars are not included in this analysis.
Five charges packed with C-4 explosive material (either 2.3 kg [5
lb] NEW or 4.6 kg [10 lb] NEW) will be set up adjacent to the mines. A
charge includes detonation cord, non-electric caps, time fuses and fuse
igniters. No more than five charges will be utilized over the two-day
period. Live training events will occur eight times annually, averaging
once every six to seven weeks. Four of the training events will involve
five-lb charges, and four events will involve ten-lb charges. Because
five detonations (maximum) are expected during each event, there will
be up to twenty five-lb detonations and twenty ten-lb detonations
annually, for a total of forty detonations. It is expected that 60
percent of the training events will occur in summer, and 40 percent
will occur in winter. Therefore, analyses of potential marine mammal
impacts in Section 6 of Eglin AFB's application reflect this seasonal
distribution. Overpressure from the detonation is intended to disrupt
the electrical charge on the mine, rendering it safe. The five charges
will be detonated individually with a maximum separation time of 20
minutes between each detonation. The time of detonation will be limited
to an hour after sunrise and an hour before sunset. Mine shapes and
debris will be recovered and removed from the GOM waters when training
is completed.
Second Live Demolition Day: Each team has two days to complete
their entire evolution (detonation of five charges). The second day
will be utilized only if the teams cannot complete their evolution on
day one.
Table 1--(Table 1-1 of the Application) Hand-Held Sonar Characteristics
----------------------------------------------------------------------------------------------------------------
AN/PQS-2A Dukane
----------------------------------------------------------------------------------------------------------------
Frequency Operating Range............ 115 kHz-145 kHz........ 30-45 kHz.
Audible Frequency Range.............. N/A.................... 250 Hz-2,500 Hz.
Operating Frequency.................. 115 kHz-145 kHz........ 37.5 kHz 1 kHz.
Sound Pressure Level................. 1.78.5 re 1 [mu]Pa @ 1m 157-160.5 re 1 [mu]Pa @ 1m.
----------------------------------------------------------------------------------------------------------------
Additional details regarding the proposed NEODS training operations
can be found in Eglin AFB's LOA application and Draft Environmental
Assessment on the Promulgation of Regulations and the Issuance of
Letters of Authorization to Take Marine Mammals, by Harassment,
Incidental to Naval Explosive Ordnance Disposal School Training
Operations at Eglin Air Force Base, Florida (Draft EA). The Draft EA
can also be found online at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.
Military Readiness Activity
NEODS supports the Naval Fleet by providing training to personnel
from all four armed services, civil officials, and
[[Page 60697]]
military students from over 70 countries. The NEODS facility supports
the Department of Defense Joint Service Explosive Ordnance Disposal
training mission. According to the application, the Navy and the Marine
Corps believe that the ability of Sailors and Marines to detect,
characterize, and neutralize mines from their operating areas at sea,
on the shore, and inland, is vital to their doctrines.
As described in the application, the Navy believes that an array of
trans-national, rogue, and sub-national adversaries now pose the most
immediate threat to American interests. Because of their relative low
cost and ease of use, mines will be among the adversaries' weapons of
choice in shallow-water situations, and they will be deployed in an
asymmetrical and asynchronous manner. The Navy needs organic means to
clear mines and obstacles rapidly in three challenging environments:
Shallow water; the surf zone; and the beach zone. The Navy also needs a
capability for rapid clandestine surveillance and reconnaissance of
minefields and obstacles in these environments. The NEODS mission in
the GOM offshore of Eglin AFB is considered a military readiness
activity pursuant to the National Defense Authorization Act (NDAA)
(Pub. L. 108-136).
Proposed Dates, Duration, and Location of Specified Activity
NEODS missions will occur over the next five years utilizing
resources within the Eglin Military Complex, including three sites in
the EGTTR (Figure 1-1 of Eglin AFB's application). There will be eight
training events annually, with an average of one event occurring every
six to seven weeks. Half of the events will involve 5 lb charges and
half will involve 10 lb charges.
Description of Marine Mammals and Habitat Affected in the Activity Area
of the Specified Activities
Marine mammal species that potentially occur within the EGTTR
include several species of cetaceans and one sirenian, the West Indian
manatee (see Table 1 below). Marine mammal species listed as Endangered
under the U.S. Endangered Species Act (ESA), includes the humpback,
sei, fin, blue, North Atlantic right, sperm whale, and Florida manatee.
The marine mammals that generally occur in the proposed training
operations area belong to three taxonomic groups: Mysticetes (baleen
whales), odontocetes (toothed whales), and sirenians (the manatee).
Table 2 below outlines the cetacean species and their habitat in the
region of the proposed project area.
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. NEODS missions would be
conducted one to three nmi from shore. Therefore, effects on manatees
are considered very unlikely, and the discussion of marine mammal
species is confined to cetaceans. The primarily cetacean occurring in
the NEODS area of interest, EGTTR sub-area 197 (Figure 3-1 of Eglin
AFB's application), is the Atlantic bottlenose dolphin and this
analysis will focus on that species.
Table 2--The Habitat and Conservation Status of Marine Mammals Inhabiting the Proposed Study Area in the Gulf of
Mexico off of Florida.
----------------------------------------------------------------------------------------------------------------
Species Habitat ESA \1\ MMPA \2\
----------------------------------------------------------------------------------------------------------------
Mysticetes
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale (Eubalaena Coastal and shelf....... EN D.
glacialis).
Humpback whale (Megaptera Pelagic, neashore waters EN D.
novaeangliae). and banks.
Bryde's whale (Balaenoptera brydei).. Pelagic and coastal..... NL NC.
Minke whale (Balaenoptera Pelagic and coastal..... NL NC.
acutorostrata).
Blue whale (Balaenoptera musculus)... Pelagic and coastal..... EN D.
Sei whale (Balaenoptera borealis).... Primarily offshore, EN D.
pelagic.
Fin whale (Balaenoptera physalus).... Slope, mostly pelagic... EN D.
----------------------------------------------------------------------------------------------------------------
Odontocetes
----------------------------------------------------------------------------------------------------------------
Sperm whale (Physeter macrocephalus). Pelagic, deep seas...... EN D.
Cuvier's beaked whale (Ziphius Pelagic................. NL NC.
cavirostris).
Gervais' beaked whale (Mesoplodon Pelagic................. NL NC.
europaeus).
True's beaked whale (Mesoplodon Pelagic................. NL NC.
mirus).
Blainville's beaked whale (Mesoplodon Pelagic................. NL NC.
densirostris).
Dwarf sperm whale (Kogia sima)....... Offshore, pelagic....... NL NC.
Pygmy sperm whale (Kogia breviceps).. Offshore, pelagic....... NL NC.
Killer whale (Orcinus orca).......... Widely distributed...... NL NC.
D (Southern Resident, AT1
Transient).
Short-finned pilot whale Inshore and offshore.... NL NC.
(Globicephala macrorhynchus).
False killer whale (Pseudorca Pelagic................. NL NC.
crassidens).
Melon-headed whale (Peponocephala Pelagic................. NL NC.
electra).
Pygmy killer whale (Feresa attenuata) Pelagic................. NL NC.
Risso's dolphin (Grampus griseus).... Pelagic, shelf.......... NL NC.
Bottlenose dolphin (Tursiops Offshore, inshore, NL NC.
truncatus). coastal, estuaries. D (Western North Atlantic
Coastal).
Rough toothed dolphin (Steno Pelagic................. NL NC.
bredanensis).
Fraser's dolphin (Lagenodelphis Pelagic................. NL NC.
hosei).
Striped dolphin (Stenella Pelagic................. NL NC.
coeruleoalba).
Pantropical spotted dolphin (Stenella Pelagic................. NL NC.
attenuata). D (Northeastern Offshore).
[[Page 60698]]
Atlantic spotted dolphin (Stenella Coastal to pelagic...... NL NC.
frontalis).
Spinner dolphin (Stenella Mostly pelagic.......... NL NC.
longirostris). D (Eastern).
Clymene dolphin (Stenella clymene)... Pelagic................. NL NC.
----------------------------------------------------------------------------------------------------------------
Sirenians
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West Indian (Florida) manatee Coastal, rivers and EN D.
(Trichechus manatus latirostris). estuaries.
----------------------------------------------------------------------------------------------------------------
\1\ U.S. Endangered Species Act: EN = Endangered, T = Threatened, NL = Not listed.
\2\ U.S. Marine Mammal Protection Act: NC = Not Classified, D = Depleted, S = Strategic.
The three species of marine mammals that are known to commonly
occur in close proximity to the NEODS training area of the GOM are the
West Indian (Florida) manatee, Atlantic spotted dolphin, and Atlantic
bottlenose dolphin.
Florida Manatee
The West Indian manatee in Florida and U.S. waters is listed as
Endangered under the Endangered Species Act (ESA). They primarily
inhabit coastal and inshore waters. Because the Florida manatee is
managed under the jurisdiction of the U.S. Fish and Wildlife Service it
is not considered further in this analysis.
Atlantic Spotted Dolphins
The Atlantic spotted dolphin is endemic to the Atlantic Ocean in
temperate to tropical waters (Perrin et al., 1987, 1994). In the GOM,
Atlantic spotted dolphins occur primarily from continental shelf waters
10 to 200 m (33 to 656 ft) deep to slope waters greater than 500 m
(1,640 ft) deep (Fulling et al., 2003; Mullin and Fulling, 2004).
Atlantic spotted dolphins were seen in all seasons during GulfCet
aerial surveys of the northern GOM from 1992 to 1998 (Hansen et al.,
1996; Mullin and Hoggard, 2000). It has been suggested that this
species may move inshore seasonally during spring, but data supporting
this hypothesis are limited (Caldwell and Caldwell, 1966; Fritts et
al., 1983).
Eglin AFB has included Atlantic spotted dolphins in previous
requests for IHAs to be conservative, although their occurrence is
considered unlikely. The stock assessment reports for the northern GOM
describes the shoreward range of Atlantic spotted dolphins as 10 m (33
ft) depth. NEODS activities can occur from one to three miles offshore.
Maximum water depth of the proposed activities is 18.3 m (60 ft), but
they often train in approximately 9.1 m (30 ft) of water, so this
species range occurs at the very edge of the proposed activities.
Therefore, the chance of impacting Atlantic spotted dolphins is remote,
especially given the monitoring and mitigation measures described
below.
Atlantic Bottlenose Dolphins
The marine mammal species potentially affected is the Atlantic
bottlenose dolphin. Atlantic bottlenose dolphins are distributed
worldwide in tropical and temperate waters. Atlantic bottlenose
dolphins occur in slope, shelf, and inshore waters of the entire GOM,
and their diet consists mainly of fish, crabs, squid, and shrimp
(Caldwell and Caldwell, 1983). In addition, a coastal and an offshore
form of the bottlenose dolphin have been suggested. Baumgartner et al.
(2001) suggest a bimodal distribution in the northern GOM, with a shelf
population occurring out to the 150 m (492 ft) isobath and a shelf
break population out to the 750 m (2,460.6 ft) isobath. Occurrence in
water with depth greater than 1,000 m (3,280.8 ft) is not considered
likely and not applicable to this assessment. Migratory patterns from
inshore to offshore are likely associated with the movements of prey
rather than a preference for a particular habitat characteristic (such
as surface water temperature) (Ridgeway, 1972; Irving, 1973; Jefferson
et al., 1992).
Within the EGTTR, there are four defined stocks of bottlenose
dolphins: the Northern GOM Oceanic Stock, the Northern GOM Continental
Shelf Stock, the Eastern GOM Coastal Stock, and the Northern GOM
Coastal Stock. In addition, there are 33 stocks of bottlenose dolphins
inhabiting the bays, sounds, and estuaries along the GOM coast (Waring
et al., 2007). Prior to the 2007 Garrison survey and model predictions,
the best estimates of abundance were 7 to 15 years old, occurred during
different seasons, and each of the surveys suffered from differing
degrees of negative bias in abundance estimates because all surveys
assumed that all animals on the trackline were seen. Therefore,
estimates based on those surveys would be highly uncertain. Based on
data from the Protected Species Habitat Modeling in the EGTTR, the
total estimate of abundance of bottlenose dolphins from the winter 2007
survey was 65,861 (95 percent CI 36,699 to 118,200) and for the summer
2007 survey was 11,433 animals (95 percent CI 7,346 to 17,793)
(Garrison, 2008). For both the summer and winter surveys, the highest
density of bottlenose dolphins occurred in the northern inshore
stratum. The summer survey overall abundance estimate for bottlenose
dolphins was approximately 50 percent lower than the winter survey
(Garrison, 2008). Bottlenose dolphin stocks for the shelf edge and
slope are not considered strategic. The potential for biological
removal (PBR) for shelf and slope stocks is 45 dolphins (Waring et al.,
2001).
The presence of fish in the stomachs of some individual offshore
bottlenose dolphins suggest that they dive to depths of more than 500 m
(1,640 ft). A tagged individual near Bermuda had maximum recorded dives
of 600 to 700 m (1,969 to 2,297 ft) and durations of 11 to 12 min. Dive
durations up to 15 min have been recorded for trained individuals.
Typical dives, however, are more shallow and of a much shorter
duration. Data from a tagged individual off Bermuda indicated a
possible diel dive cycle (i.e., a regular daily dive cycle) in search
of mesopelagic (living at depths between 180 and 900 m [591 and 2,953
ft]) prey in the deep scattering layer.
In the EGTTR as a whole, there were a total of 281 groups of
bottlenose dolphins during the winter survey and 162 groups during the
summer survey. According to the species-habitat model for bottlenose
dolphins, densities were predicted to be highest in relatively shallow
water, with an offshore peak in density between 40 to 60 m (131 to
196.9 ft) depth and in waters ranging
[[Page 60699]]
between 27.5 to 28.5 [deg]C (81.5 to 83.3 [deg]F) (Garrison, 2008).
Bottlenose dolphin density estimates for the study area are derived
from Protected Species Habitat Modeling in the EGTTR (Garrison, 2008).
NMFS developed habitat models using new aerial survey line transect
data collected during the winter and summer of 2007. The winter survey
was conducted primarily during the month of February (water
temperatures of 12 to 15 [deg]C [53.6 to 59 [deg]F]) while the summer
survey was primarily during July (water temperatures >26 [deg]C [78.8
[deg]F]). In combination with remotely sensed habitat parameters (sea
surface temperature and chlorophyll), these data were used to develop
spatial density models for bottlenose dolphins within the continental
shelf and coastal waters of the eastern GOM. Encounter rates during the
aerial surveys were corrected for sighting probabilities and the
probability that animals were available to be seen on the surface. The
models predict the absolute density of bottlenose dolphins within the
EGTTR. Given that the survey area (EGTTR sub-area 197, Figure 3-1 of
Eglin AFB's application) completely overlaps the NEODS mission area and
that this data is currently the best available survey data, these
models best reflect the occurrence of bottlenose dolphins within the
EGTTR.
Table 3-1 of Eglin AFB's application provides median and adjusted
bottlenose dolphin densities in EGTTR sub-area 197. These absolute
estimates of density (animals per square kilometer [km\2\] were
produced by combining the spatial density model, sighting probability,
and availability model (Garrison, 2008). All environmental terms were
retained in the species-habitat model for the winter survey and the
summer survey with the exception of glare for the summer survey. The
model fits for the winter and summer were highly significant, explained
a significant portion of the variability in the data, and resulted in
effective predictions of spatial distribution of bottlenose dolphins.
NEODS missions may be executed at any time during the year. It is
anticipated that approximately 60 percent of missions will be executed
during summer months, and 40 percent will be executed during winter
months. Separate summer and winter density estimates are provided in
Table 3-1 of Eglin AFB's application. Months with high CV values
(greater than 1) have high degrees of uncertainty in the model
predictions. These months include May, June, September, October, and
November where density was unknown. In order to compensate for the
months without good estimates, interpolation was used between the
available months by providing a means of estimating the function at
intermediate points through presuming that there were linear seasonal
trends. Interpolation assumes that the poorly estimated periods lie
somewhere in the middle of the well estimated periods. Adjusted
densities for each month were reached after interpolation calculations
(see Table 3-1 of Eglin AFB's application). Based on the adjusted
densities, January, March, and July have the highest bottlenose dolphin
densities while the months from August through December months have the
lowest densities. On average, there are 0.81 bottlenose dolphins/km\2\
throughout the year in EGTTR sub-area 197. Seasonally there are on
average 0.84 dolphins/km\2\ during summer and 0.78 dolphins/km\2\
during winter in sub-area 197.
Table 3--(Table 3-1 of the Application) Bottlenose Dolphin Densities for EGTTR Sub-Area 197
----------------------------------------------------------------------------------------------------------------
Median
density Adjusted density
Month (Individuals/ CV Valid (Individuals/km\2\)\a\
km\2\)
----------------------------------------------------------------------------------------------------------------
November...................................... 0.00 31.62 0 0.51
December...................................... 0.52 0.25 1 0.52
January....................................... 1.24 0.22 1 1.24
February...................................... 0.73 0.20 1 0.73
March......................................... 1.22 0.28 1 1.22
April......................................... 0.84 0.46 1 0.84
----------------------------------------------------------------------------------------------------------------
Average Winter Density
----------------------------------------------------------------------------------------------------------------
May........................................... 0.00 22.41 0 0.95
June.......................................... 0.00 4.47 0 1.06
July.......................................... 1.17 0.24 1 1.17
August........................................ 0.48 0.22 1 0.48
September..................................... 0.01 3.02 0 0.49
October....................................... 0.00 20.43 0 0.50
----------------------------------------------------------------------------------------------------------------
Average Summer Density ............. ........... ........... 0.78
Overall Average Density ............. ........... ........... 0.81
----------------------------------------------------------------------------------------------------------------
\a\ Adjusted through interpolation.
NMFS anticipates that no bottlenose dolphins will be injured,
seriously injured, or killed during the proposed NEODS training
operations. The specific objective of the U.S. Air Force's mitigation
and monitoring plan is to ensure that no dolphins (or manatees) or
other protected species are in the action area where they might be
impacted by the explosive detonations. Because of the circumstances and
the proposed mitigation and monitoring requirements discussed in this
document, NMFS believes it highly unlikely that the proposed activities
would result in injury (Level A harassment), serious injury, or
mortality of bottlenose dolphins, however, they may temporarily avoid
the area where the proposed explosive demolition will occur. Eglin AFB
has requested the incidental take of 10 bottlenose dolphin each year
and approximately 50 animals during the five year duration of the
proposed action.
Further information on the biology, habitat, and local distribution
of these species and others in the region can be found in Eglin AFB's
application, which is available upon request (see ADDRESSES), and the
NMFS Marine Mammal Stock Assessment Reports, which are available online
at: http://www.nmfs.noaa.gov/pr/species/.
[[Page 60700]]
Comments and Responses
On January 15, 2010, NMFS published a notice of receipt of
application for a LOA in the Federal Register (75 FR 2490) and
requested comments, information, and suggestions from the public for 30
days. NMFS received comments from the Marine Mammal Commission
(Commission) and a private citizen. The private citizen's comments
opposed the issuance of an authorization without providing any specific
rationale for that position. NMFS, therefore, cannot respond to this
comment.
Comment 1: The Commission supports NMFS' intent to publish proposed
small-take regulations for these activities, provided the research,
mitigation, and monitoring activities described in the application are
incorporated into the rule. The Commission looks forward to reviewing
the proposed regulations.
Response: NMFS appreciates with the Commission's comments and has
incorporated the research, mitigation, and monitoring activities
described in the application into the proposed rule.
Potential Effects of Specified Activities on Marine Mammals
In general, potential impacts to marine mammals from explosive
detonations could include non-lethal injury (Level A harassment),
serious injury, and mortality, as well as Level B harassment. In the
absence of monitoring and mitigation, marine mammals may be killed or
injured as a result of an explosive detonation due to the response of
air cavities in the body, such as the lungs and bubbles in the
intestines. Effects are likely to be most severe in near surface waters
where the reflected shock wave creates a region of negative pressure
called ``cavitation.'' While these direct physiological effects are
possible, they are considered unlikely in association with the
specified activities due to the monitoring and mitigation measures
described below.
A second potential possible cause of mortality is the onset of
extensive lung hemorrhage. Extensive lung hemorrhage is considered
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.
Marine mammals may potentially be harassed due to noise from NEODS
mission involving underwater detonations. The potential numbers and
species taken by noise are assessed in this section. Three key sources
of information are necessary for estimating potential noise effects on
marine resources: (1) The number of distinct firing or test events; (2)
the Zone of Influence (ZOI) for noise exposure; and (3) the density of
animals that potentially reside within the ZOI. The ZOI is the area
where potential impacts from the mission could occur. The ``test site''
and ``mission area'' are both found within the ZOI.
For the acoustic analysis, the exploding charge is characterized as
a point source. The impact thresholds used for marine mammals relate to
potential effects on hearing from underwater detonation noise. No ESA-
listed marine mammals would be affected given the location of the
proposed action in nearshore waters. The only ESA-listed marine mammal
likely to be found in the northeastern GOM, the Federal and state-
listed endangered sperm whale (Physeter macrocephalus), occurs farther
out on the continental slope in water generally deeper than 600 m
(1,968.5 ft). Manatees are not considered likely to occur in the
mission areas (see Figure 1-1 of Eglin AFB's application) and are
therefore not considered in this analysis.
For the explosives in question, actual detonation depths would
occur at 60 ft near the sand bottom. The inert mines and sea floor may
potentially interact with the propagation of noise into the water.
However, 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. A conservative acoustic analysis
was selected to ensure the greatest direct path for the harassment
ranges and to give the greatest impact range for the injury thresholds.
Criteria and thresholds that are the basis of the analysis of NEODS
noise impacts to cetaceans were initially used in U.S. Navy
Environmental Impact Statements for ship shock trials of the Seawolf
submarine and the Winston S. Churchill (Churchill) vessel (DON, 1998;
DON, 2001) and adopted by NMFS (NMFS, 2001). Supplemental criteria and
thresholds have been introduced in the EGTTR Programmatic Environmental
Assessment (U.S. Air Force, 2002), subsequent EGTTR LOA (U.S. Air
Force, 2003) permit request, Precision Strike Weapons (PSW) LOA (U.S.
Air Force, 2004), and Naval Surface Warfare Center Panama City Division
LOA (U.S. Navy, 2008).
Standard impulsive and acoustic metrics were used for the analysis
of underwater pressure waves in this document.
Energy flux density (EFD) is the time integral of the
squared pressure divided by the impedance. EFD levels have units of dB
re 1 [mu]Pa\2\[middot]s.
\1/3\-Octave EFD is the energy flux density in a \1/3\-
octave frequency band; the \1/3\ octave selected is the hearing range
at which the subject animals' hearing is believed to be most sensitive.
Peak pressure is the maximum positive pressure for an
arrival of a sound pressure wave that a marine mammal would receive at
some distance away from a detonation. Units used here are pounds per
square inch (psi) and dB levels.
Non-lethal injurious impacts are defined in this document as
eardrum rupture (i.e., tympanic-membrane (TM rupture) and the onset of
slight lung injury. These are considered indicative of the onset of
injury. The threshold for TM rupture corresponds to a 50 percent rate
of rupture (i.e., 50 percent of animals exposed to the level are
expected to suffer TM rupture); this is stated in terms of an EFD value
of 1.17 in-lb/in\2\, which is about 205 dB re 1 [mu]Pa\2\[middot]s.
This recognizes that TM rupture is not necessarily a life-threatening
injury, but is a useful index of possible injury that is well-
correlated with measures of permanent hearing impairment (e.g., Ketten
[1998] indicates a 30 percent incidence of permanent threshold shift
[PTS] at the same threshold). 205 re 1 [mu]Pa\2\[middot]s has been
requested by NMFS to calculate harassment distances for Level A
harassment (NMFS, 2008).
Public Law 108-136 (2004) amended the definition of Level B
harassment under the MMPA for military readiness activities, such as
this action (and also for scientific research on marine mammals
conducted by or on the behalf of the Federal Government). For military
readiness activities, Level B harassment is now defined as ``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.'' Unlike Level A harassment, which
is solely associated with physiological effects, both physiological and
behavioral effects may cause Level B harassment.
[[Page 60701]]
NMFS (2008) requested a dual criterion (i.e., 182 dB re 1
[mu]Pa\2\[middot]s and 23 psi peak) be used to calculate Level B
harassment. Since the mission (five detonations over one or two days)
does not meet multiple explosion criteria and the potential for
significant alteration of behavior will not be expected for the short
duration of noise produced from single detonations from NEODS missions,
thresholds for behavioral effects to explosive sound will not be
analyzed. The first criterion for non-injurious harassment is TTS,
which is defined as a temporary, recoverable loss of hearing
sensitivity (NMFS, 2001; DON, 2001). The criterion for TTS is 182 dB re
1 [mu]Pa\2\[middot]s. The potential for significant alteration of
behavior described below will not be expected for the short duration of
noise produced from single detonations from NEODS tests.
The second criterion for estimating TTS threshold applies to all
cetacean species and is stated in terms of peak pressure at 23 psi. The
threshold is derived from the Churchill threshold which was
subsequently adopted by NMFS in its Final Rule on the unintentional
taking of marine animals incidental to the shock testing (NMFS, 2001).
The original criteria in Churchill incorporated 12 psi. The current
criteria and threshold for peak pressure over all exposures was updated
from 12 psi to 23 psi for explosives less than 907 kg (2,000 lb) based
on an IHA issued to the Air Force for a similar action (NOAA, 2006a).
Peak pressure and energy scale at different rates with charge weight,
so that ranges based on the peak-pressure threshold are much greater
than those for the energy metric when charge weights are small, even
when source and animal are away from the surface. In order to more
accurately estimate TTS for smaller shots while preserving the safety
feature provided by the peak pressure threshold, the peak pressure
threshold is appropriately scaled for small shot detonations. This
scaling is based on the similitude formulas (e.g., Urick, 1983) used in
virtually all compliance documents for short ranges. Further, the peak-
pressure threshold for marine mammal TTS for explosives offers a safety
margin for source or animals near the ocean surface.
The more conservative isopleths of the criterion for estimating
Level B harassment will be used in take analysis. Table 6-1 of Elgin
AFB's application provides a summary of threshold criteria and metrics
for potential noise impacts to sensitive species.
Table 4--(Table 6-1 of the Application) Threshold Criteria and Metrics
Utilized for Impact Analyses
------------------------------------------------------------------------
------------------------------------------------------------------------
Level A harassment Level B harassment
------------------------------------------------------------------------
Injurious; eardrum rupture (for Non-injurious; TTS Non-injurious;
50 percent of animals exposed). (temporary peak-pressure
hearing loss). threshold for
TTS.
205 dB re 1 [mu]Pa\2\[middot]s 182 dB re 1 23 psi.
EFD. [mu]Pa\2\[middot]
s.
EFD* and/or 12 psi
------------------------------------------------------------------------
* Note: In greatest \1/3\-octave band above 10 Hz or 100 Hz.
Noise ZOIs were calculated for bottom detonation scenarios at 60 ft
both lethality and harassment (Level A and B harassment). To determine
the number of potential ``takes'' or animals affected, cetacean
population information from surveys was applied to the various ZOIs.
The impact calculations for this section utilize marine mammal density
estimates that have been derived from a Legacy funded NMFS/Air Force
project (Garrison, 2008). The species density estimate data were
adjusted to reflect the best available data and more realistic
encounters of these animals in their natural environment (Garrison,
2008). These calculations and estimates are explained in detail in
Section 3, and adjusted density estimates are provided in Table 3-1 of
Eglin AFB's application.
Given the variability in mission schedules (any time during the
year), an overall average of bottlenose dolphin density of 0.81
individuals/km\2\ is used for take analysis.
Table 6-2 of Eglin AFB's application gives the estimated impact
ranges for the two explosive weights. The proposed test locations are
one to three nmi south of SRI. NEODS detonations were modeled for
bottom detonations at 60 ft.
No behavioral impacts (176 dB re 1 [mu]Pa\2\[middot]s) are
anticipated with the NEODS test activities and are not considered in
this analysis. Repetitive exposure (below TTS) to the same resident
animals is highly unlikely due to the infrequent test events (no more
than 5 detonations over a one or two day period), the potential
variability in target locations, and the continuous movement of marine
mammals in the northern GOM.
Table 5--(Table 6-2 of the Application) ZOI for Underwater Explosions
----------------------------------------------------------------------------------------------------------------
Ranges for EFDL
Ordnance NEW (lbs) Depth of Ranges for EFDL in \1/3\ 23 psi (m)
explosion (m) >205 dB (m) octave band (m)
----------------------------------------------------------------------------------------------------------------
Summer
----------------------------------------------------------------------------------------------------------------
NEODS MCM 2.3 kg (5 lb) charge 5 18 52.1 227.5 222
NEODS MCM 4.5 kg (10 lb) 10 18 77 385 280
charge.......................
----------------------------------------------------------------------------------------------------------------
Winter
----------------------------------------------------------------------------------------------------------------
NEODS MCM 5 lb charge......... 5 18 52.2 229.8 222
NEODS MCM 10 lb charge........ 10 18 77 389 280
----------------------------------------------------------------------------------------------------------------
EFDL = Energy Flux Density Level.
[[Page 60702]]
Applying the harassment ranges in Table 6-2 of the application to
the species densities of Table 3-1 of the application, the number of
animals potentially occurring within the ZOI was estimated. These
results are presented in Tables 6-3 and 6-4 of the application. For
Level B harassment calculations (Table 6-4 of the application), the ZOI
corresponding to the 182 dB re 1 [mu]Pa\2\[middot]s metric is used
because this radius is in all cases greater than the radius
corresponding to 23 psi. The total number of animals potentially
exposed annually is in bold. A whole animal (and potential take) is
defined as 0.5 or greater, where calculation totals result in fractions
of an animal. Where less than 0.5 animals are affected, no calculation
totals result in fractions of an animals. Where less than 0.5 animals
are affected, no take is assumed. The calculations in Tables 6-3 and 6-
4 of the application are based on the expected tempo of: (1) 40 total
detonations per year, (2) one-half of detonations are of 5 lb charges,
and one-half are of 10 lb charges, and (3) 60 percent of detonations
occur in summer, and 40 percent occur in winter.
Table 6--(Table 6-3 of the Application) Marine Mammal Densities and Risk Estimates for Level A Harassment (205 dB EFD \1/3\ Octave Band) Noise Exposure
for Summer and Winter
--------------------------------------------------------------------------------------------------------------------------------------------------------
ZOI (km) Number of animals exposed to Level A harassment
Species Density (animals/-------------------------------------------------------------------------------------------------
km\2\) 5 lb charge 10 lb charge 5 lb charge 10 lb charge
--------------------------------------------------------------------------------------------------------------------------------------------------------
Summer
--------------------------------------------------------------------------------------------------------------------------------------------------------
Bottlenose Dolphin.................. 0.78 0.0521 0.0770 0.08........................... 0.17.
(12 detonations)............... (12 detonations).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Winter
--------------------------------------------------------------------------------------------------------------------------------------------------------
Bottlenose Dolphin.................. 0.84 0.0522 0.0770 0.06........................... 0.13.
(8 detonations)................ (8 detonations).
-------------------------------------------------------------------------------------------------------------------
Total Number Animals Potentially ................ .............. .............. 0.44
Exposed To Level A Harassment...
Annually........................
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 7--(Table 6-4 of the Application) Marine Mammal Densities and Risk Estimates for Level B Harassment (182 dB EFT \1/3\ Octave Band) Noise Exposure
--------------------------------------------------------------------------------------------------------------------------------------------------------
ZOI (km) Number of animals exposed to Level B harassment
Species Density (animals/-------------------------------------------------------------------------------------------------
km\2\) 5 lb charge 10 lb charge 5 lb charge 10 lb charge
--------------------------------------------------------------------------------------------------------------------------------------------------------
Summer
--------------------------------------------------------------------------------------------------------------------------------------------------------
Bottlenose Dolphin.................. 0.78 0.2275 0.385 1.52........................... 4.36.
(12 detonations)............... (12 detonations).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Winter
--------------------------------------------------------------------------------------------------------------------------------------------------------
Bottlenose Dolphin.................. 0.84 0.2298 0.389 1.11........................... 3.19.
(8 detonations)................ (8 detonations).
-------------------------------------------------------------------------------------------------------------------
Total Number Animals Potentially ................ .............. .............. 10.18
Exposed To Level B Harassment...
Annually........................
--------------------------------------------------------------------------------------------------------------------------------------------------------
The tables above indicate that the potential for non-injurious
(Level B) harassment, as well as the onset of injury (Level A
harassment) to cetaceans is possible but unlikely even without any
mitigation measures. Wintertime ZOIs are generally slightly larger but
do not significantly affect the numbers of animals potentially exposed
to noise.
Less than 0.5 cetaceans are estimated to be exposed to Level A
harassment (205 dB re 1 [mu]Pa\2\[middot]s) ZOI. Therefore, as
discussed above, no potential Level A exposures are anticipated. Level
B harassment (182 dB re 1 [mu]Pa\2\[middot]s) noise would potentially
affect approximately 10 cetaceans. None of the above impact estimates
consider mitigation measures that will be employed by the proponent to
minimize potential impacts to protected species. These mitigation
measures are described in Section 11 and are anticipated to greatly
reduce potential impacts to marine mammals.
Based on the analyses and results provided here and in Section 6 of
Eglin AFB's application, no strategic marine mammal stocks would be
affected, and none of the marine mammal species that could potentially
be taken is listed as threatened or endangered. The PBR for bottlenose
dolphin is 45. No strategic marine mammal stocks would be affected.
Possible Effects of Activities on Marine Mammal Habitat
The primary source of marine mammal habitat impact is noise
resulting from live NEODS missions. However, the noise does not
constitute a long-term physical alteration of the
[[Page 60703]]
water column or bottom topography, as the occurrences are of limited
duration and are intermittent in time. Surface vessels associated with
the missions are present in limited duration and are intermittent as
well.
Other sources that may affect marine mammal habitat were considered
and potentially include the introduction of fuel, debris, ordnance, and
chemical residues in the water column. The effects of each of these
components were considered in the NEODS BA and were determined to be
unlikely to adversely affect protected marine species. Marine mammal
habitat would not be affected, lost or modified.
NMFS anticipates that the action will result in no impacts to
marine mammal habitat beyond rendering the areas immediately around the
NEODS training operations in the EGTTR less desirable shortly after
each demolition event. The impacts will be localized and instantaneous.
Impacts to marine mammal, invertebrate, and fish species are not
expected to be detrimental.
Proposed Mitigation
In order to issue an Incidental Take Authorization under Section
101(a)(5)(A) and (D) 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 on the availability of
such species or stock for taking for certain subsistence uses. The NDAA
of 2004 amended the MMPA as it relates to military readiness activities
and the incidental take authorization process such that ``the least
practicable adverse impact'' shall include consideration of personnel,
safety, practicality of implementation, and the impact on the
effectiveness of the ``military readiness activity.'' NEODS training
involves military readiness activities.
The NEODS has employed a number of mitigation measures in an effort
to substantially decrease the number of animals potentially affected.
Eglin AFB is committed to assessing the mission activity for
opportunities to provide operational mitigations while potentially
sacrificing some mission flexibility.
Prior to the mission, a trained observer aboard the largest surface
support vessel will survey (visually monitor) the test area for the
presence of sea turtles and cetaceans. The area to be surveyed will
span 230 m (754.6 ft) in every direction from the target, which is
approximately the size of the largest harassment ZOI. The trained
observer will conduct ship-based monitoring for non-participating
vessels as well as for protected species. Dependent on visibility,
surface observation would be effective out to several kilometers.
Weather that supports the ability to sight small marine life is
required in order to mitigate the test site effectively (DON, 1998).
Wind, visibility, and surface conditions of the GOM are the most
critical factors affecting mitigation operations. Higher winds
typically increase wave height and create ``white cap'' conditions,
limiting an observer's ability to locate surfacing marine mammals.
NEODS missions would be delayed if the sea state were greater than the
Scale Number 3 described on Table 8 (below) and in Eglin AFB's
application. Such a delay would maximize detection of marine mammals.
Table 8--(Table 11-1 of the Application) Sea State Scale for Marine
Mammal and Sea Turtle Observation
------------------------------------------------------------------------
Scale No. Sea Conditions
------------------------------------------------------------------------
0..................................... Flat calm, no waves or ripples.
1..................................... Small wavelets, few if any
whitecaps.
2..................................... Whitecaps on 0 to 33 percent of
surface; 0.3 to 0.6 m (1 to 2
ft) waves.
3..................................... Whitecaps on 33 to 50 percent of
surface; 0.6 to 0.9 m (2 to 3
ft) waves.
4..................................... Whitecaps on greater than 50
percent of surface; greater
than 0.9 m (3 ft) waves.
------------------------------------------------------------------------
Shipboard Monitoring Team
Shipboard monitoring would be staged from the highest point
possible on a support ship. The trained observer will be experienced in
shipboard surveys and 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., binoculars, as these have been
successfully used in monitoring from ships), which should allow the
observer to sight surfacing mammals from a significant distance past
the safety zone of 230 m (754.6 ft). The trained observer would be
responsible for reporting sighting locations, which would be based on
bearing and distance.
The trained observer will have proper lines of communication to
avoid communication deficiencies to make Go/No-Go recommendations for
the detonations. The observer recommends the Go/No-Go decision to the
Officer in Tactical Command, who makes the final Go/No-Go decision. As
long as no protected species are sighted by the observer, then the
mission is a Go, meaning it can proceed. However, if the area is
fouled, meaning a protected species has entered the area, then the
mission is a No-Go and cannot proceed until those individuals have left
the mission area.
Mitigation Procedures Plan
Stepwise mitigation procedures for NEODS missions are outlined
below. All zones (TTS, injury, and safety zones) are monitored, plus a
buffer area that is twice the size of the largest ZOI (460 m or 1,509.2
ft).
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, few or no
patches of Sargassum, etc.) and (2) verify that the ZOI is free of
visually detectable marine mammals, large schools of fish, large flocks
of birds, large Sargassum mats, and large concentrations of jellyfish.
On the morning of the test, the Officer in Tactical Command would
confirm that the test sites can still support the mission and that the
weather is adequate to support mitigation.
(a) Two Hours Prior to Mission
Approximately two hours prior to the mission, or at daybreak,
(whichever is closest to time of the mission) the appropriate vessel(s)
would be on-site near the location of the earliest planned detonation
point. Observers onboard the vessels and the trained observer would
assess the suitability of the test site, based on visual observation of
marine mammals, the presence of large Sargassum mats, and overall
environmental conditions (visibility, sea state, etc.). This
information would be relayed to the Officer in Tactical Command.
[[Page 60704]]
(b) One Hour Prior to Mission
One hour prior to the mission, monitoring would commence within the
test site to evaluate the test site for environmental suitability. The
observer would monitor the area around the detonation site, out to 0.47
km (0.25 nmi) from the site, and record in a database all marine
mammals sightings, include the time of each sighting.
(c) Five Minutes Prior to Mission
Visual monitoring would continue to document any protected animals
seen inside the ZOI and farther out to 0.47 km (0.25 nmi). If a marine
mammal is traveling toward the test area, the time and distance can be
calculated to determine if it will enter the test area during
detonation.
(d) Go/No-Go Decision Process
The observer would plot and record sightings and bearings for all
marine animals detected. This would depict animal sightings relative to
the mission area. The observer would have the authority to declare the
range fouled and recommend a hold until monitoring indicates that the
test area (or ZOI) is and will remain clear of detectable marine
mammals.
(e) Throughout the Mission
Monitoring of the test area will continue until the last detonation
is complete. If any change in the status of the test area is observed
or a protected marine mammal is sighted, the mission will be postponed
until the area can be certified clear of protected marine mammals.
The mission would be postponed if:
1. Any marine mammal is visually detected within the ZOI. 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.
2. Any marine mammal is detected within or about to enter the ZOI
(230 m [754.6 ft]) and subsequently cannot be reacquired. 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.
3. Large Sargassum rafts or large concentrations of jellyfish are
observed within the ZOI. The delay would continue until the Sargassum
rafts or jellyfish that caused the postponement are confirmed to be
outside of the ZOI either due to the current and/or wind moving them
out of the mission area.
4. Large schools of fish are observed in the water within 230 m
(754.6 ft) of the mission area. The delay would continue until the
large fish schools are confirmed to be outside the ZOI.
In the event of a postponement, pre-mission monitoring would
continue as long as weather and daylight hours allow. If a charge
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 the possibility still
exists. Should a charge fail to explode, the Proponent would attempt to
identify the problem and detonate the charge with all marine mammal
mitigation measures in place as described.
Post-mission monitoring: Post-mission monitoring is designed to
determine the effectiveness of pre-mission mitigation by reporting any
sightings of dead or injured marine mammals. Post-detonation monitoring
would commence immediately following each detonation and would be
concentrated on the area down current of the test site.
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. Animals that were not killed instantly but
were 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 were 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 Officer in
Tactical Command.
The NMFS maintains stranding networks along coasts to collect and
circulate information about marine mammal strandings. Local
coordinators report stranding data to state and regional coordinators.
Any observed dead or injured marine mammal would be reported to the
appropriate coordinator.
Summary of Mitigation Plan
In the event either any human safety concerns arise or marine
mammals are sighted within the ZOI, the test will be postponed. The
area to be surveyed will be 0.3 km (0.15 nmi) in every direction from
the target (approximately the size of the largest harassment ZOI).
Additionally, a buffer area (0.5 km or 0.25 nmi) will be surveyed for
protected marine animals moving toward the ZOI. The total area to be
monitored is 0.7 km\2\ (0.2 nmi\2\). The survey vessel will leave the
safety footprint immediately prior to detonation; however, given the
relatively small impact area, visual observation of the ZOI will be
ongoing.
Avoidance of impacts to schools of cetaceans will most likely be
realized through visual monitoring since groups of dolphins are
relatively easy to spot with the survey distances and methods that will
be employed.
Post-mission monitoring would be conducted after each mission and
would attempt to document any marine mammals that were killed or
injured as a result of the test and, if practicable, recover and
examine any dead animals. Post-mission monitoring activities may
include coordination with marine animals stranding networks if any dead
or injured marine mammal or sea turtles are observed.
Hard-bottom habitats and artificial reefs would be avoided to
alleviate any potential impacts to protected habitat. NEODS testing
would be delayed if large Sargassum mats or large schools of fish or
jellyfish were found in the ZOI. Testing would resume only when the
mats or schools move outside of the largest ZOI. The NEODS personnel
will recover all debris from the targets and charges following test
activities.
Proposed Monitoring and Reporting
In order to issue an ITA for an activity, Section 101(a)(5)(A) of
the MMPA states that NMFS must set forth ``requirements pertaining to
the monitoring and reporting of such taking.'' The MMPA implementing
regulations at 50 CFR 216.104(a)(13) indicate that requests for ITAs
must include the suggested means of accomplishing the necessary
monitoring and reporting that will result in increased knowledge of the
species and of the level of taking or impacts on populations of marine
mammals that are expected to be present.
Mitigations may include any supplemental activities that are
designed, proposed, and exercised to help reduce or eliminate the
potential impacts to the marine resources. The Air Force recognizes the
importance of such ``in-place'' mitigations and is aware that NMFS
recommends an approved mitigation plan that outlines the scope and
effectiveness of the Proposed Action's mitigations.
The risk of harassment (Levels A and B) to marine mammals has been
determined to be relatively small. Eglin AFB has determined that with
the implementation and commitment to utilizing the ``visual
monitoring'' mitigations, potential takes are greatly reduced.
[[Page 60705]]
For NEODS testing, areas to be used in missions are visually
monitored for marine mammal presence from a surface vessel prior to
detonation of mine neutralization charges. Monitoring would be
conducted before missions to clear marine mammals within the ZOI. If
protected animals are inside the ZOI, firing would be postponed until
they left the area. The following procedures may be feasible during the
mission activities using the operational aircraft.
Conduct survey clearance procedures using best operational
methods possible.
Clear ZOI and avoid all dolphins and Sargassum rafts to
the maximum extent possible.
Re-conduct clearance procedures if dolphins or Sargassum
rafts are encountered.
Conduct post-mission observation and report operations
data as required by Eglin's Natural Resources Section, 96 CEG/CEVSN.
Submit an annual summary (coordinated through 96 CEG/
CEVSN) of mission observations to: National Marine Fisheries Service,
Southeast Regional Office, Protected Resources Division, 9721 Executive
Center Drive North, St. Petersburg, FL 33702.
Proposed monitoring requirements in relation to Eglin AFB's NEODS
training activities would include observations made by the applicant
and their associates. Information recorded would include species
counts, numbers of observed disturbances, and descriptions of the
disturbance behaviors before, during, and after explosive activities.
Observations of unusual behaviors, numbers, or distributions of marine
mammals in the activity area will be reported to NMFS and USFWS so that
any potential follow-up observations can be conducted by the
appropriate personnel. In addition, observations of tag-bearing marine
mammals, sea turtles, and fish carcasses as well as any rare or unusual
species of marine mammals and fish would be reported to NMFS and USFWS.
Eglin AFB would notify NMFS and the Regional Office prior to
initiation of each explosive demolition session. If at any time injury
or death of any marine mammal occurs that may be a result of the
proposed NEODS activities, Eglin AFB would suspend activities and
contact NMFS immediately to determine how best to proceed to ensure
that another injury, serious injury, or death does not occur and to
ensure that the applicant remains in compliance with the MMPA. Any
takes of marine mammals other than those authorized by the LOA, as well
as any injuries or deaths of marine mammals, will be reported to the
Southeast Regional Administrator, within 24 hours. An annual draft
final report must be submitted to NMFS within 90 days after the
conclusion of the NEODS activities. An annual report must be submitted
at the time of renewal of the LOA as well. Also, a report must be
submitted at least 180 days prior to the expiration of these
regulations. The report would include a summary of the activities
undertaken and information gathered pursuant to the monitoring
requirements set forth in the regulations and LOA, including dates and
times of detonations as well as pre- and post-blasting monitoring
observations. A final report must be submitted to the Regional
Administrator within 30 days after receiving comments from NMFS on the
draft final report. If no comments are received from NMFS, the draft
final report would be considered to be the final report.
Research
Although Eglin AFB does not currently conduct independent Air Force
monitoring efforts, Eglin's Natural Resources Section does participate
in marine animal tagging and monitoring programs led by other agencies.
Additionally, the Natural Resources Section also supports participation
in annual surveys of marine mammals in the GOM with NMFS. From 1999 to
2002, Eglin AFB's Natural Resources Section, through a contract
representative, participated in summer cetacean monitoring and research
opportunities. The contractor participated in visual surveys in 1999
for cetaceans in the GOM, photographic identification of sperm whales
in the northeastern GOM in 2001, and 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. In addition, Eglin's Natural Resources Section has obtained
Department of Defense funding for two marine mammal habitat modeling
projects. The latest such project (2008) included funding and extensive
involvement of NMFS personnel so that the most recent aerial survey
data could be utilized for habitat modeling and animal density
estimates in the northeastern GOM.
Eglin AFB conducts other research efforts that utilize marine
mammal stranding information as a means of ascertaining the
effectiveness of mitigation techniques. Stranding data is collected and
maintained for the Florida panhandle and GOM-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 GOM-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 mitigations, stranding data can yield
insight into the species composition of cetaceans in the region.
Negligible Impact Determination
NMFS implementing regulations codified at 50 CFR 216.103 states
that ``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.''
Based on the analysis contained herein, of the likely effects of
the specified activity on marine mammals and their habitat, and taking
into consideration the implementation of the mitigation and monitoring
measures, NMFS, on behalf of the Secretary, preliminarily finds that
Eglin AFB's proposed activities would result in the incidental take of
marine mammals, by Level B harassment only, and that the total taking
from the NEODS training operations would have a negligible impact on
the affected species or stocks of marine mammals.
Tables 2, 3, 6 and 7 in this document disclose the habitat,
regional abundance, conservation status, density, and the number of
individuals exposed to sound levels considered the threshold for Level
A and B harassment. Also, there are no known important reproductive or
feeding areas in the proposed action area.
For reasons stated previously in this document, the specified
activities associated with the proposed NEODS operations are not likely
to cause TTS, PTS, or other non-auditory injury, serious injury, or
death to affected marine mammals. As a result, no take by injury,
serious injury, or death is anticipated or authorized, and the
potential for temporary or permanent hearing impairment is very low and
will be avoided through the incorporation of the proposed monitoring
and mitigation measures.
In making a negligible impact determination NMFS evaluated factors
such as: No anticipated injury, serious injury, or mortality; the
number, nature,
[[Page 60706]]
intensity, and duration of harassment (all relatively limited); the low
probability that take will likely result in effects to annual rates of
recruitment of survival; the context in which it occurs (i.e., impacts
to areas of significance, impacts to local populations, and cumulative
impacts when taking into account successive/contemporaneous actions
when added to baseline data); the status of stock or species of marine
mammals (i.e., depleted, not depleted, decreasing, increasing, stable,
impact relative to the size of the population); impacts on habitat
affecting rates of recruitment/survival; and the effectiveness of
monitoring and mitigation measures.
Impact on Availability of Affected Species for Taking for Subsistence
Uses
There is no subsistence hunting for marine mammals in the waters
off of the coast of Florida that implicates MMPA Section 101(a)(5)(D).
Endangered Species Act (ESA)
For the reasons already described in this Federal Register notice,
NMFS has determined that the described proposed NEODS training
operations and the accompanying IHA may have the potential to adversely
affect species under NMFS jurisdiction and protected by the ESA. Eglin
AFB requested a Section 7 consultation pursuant to the ESA with NMFS'
Southeast Regional Office (SERO) for the revised proposed NEODS
training operations. NMFS SERO issued a Biological Opinion on October
25, 2004 for a five year plan of NEODS training operations in the EGTTR
(Consultation No. F/SER/2004/00361). The U.S. Air Force requested
informal Section 7 consultation with SERO on May 9, 2010 and SERO
concurred that the proposed action may affect, but is not likely to
adversely affect, ESA-listed species or designated critical habitat in
a letter to the U.S. Air Force dated July 28, 2010.
National Environmental Policy Act (NEPA)
NMFS has begun conducting NEPA analysis and preparing a Draft
Environmental Assessment on the Promulgation of Regulations and the
Issuance of Letters of Authorization to Take Marine Mammals, by
Harassment, Incidental to Naval Explosive Ordnance Disposal School
Training Operations at Eglin Air Force Base, Florida, which analyzes
the project's purpose and need, alternatives, affected environment, and
environmental effects for the proposed action. NMFS will complete the
necessary NEPA analysis and the public comments received prior to
making a determination on the issuance of the final rule and LOA.
Preliminary Determinations
Based on Eglin AFB's application, as well as the analysis contained
herein, NMFS has preliminarily determined that the impact of the
described NEODS training operations will result, at most, in a
temporary modification in behavior (Level B harassment) of Atlantic
bottlenose dolphins, in the form of temporarily vacating the action
area to avoid NEODS training activities and potential for minor visual
and acoustic disturbance from detonations. The effect of the NEODS
training operations is expected to be limited to short-term and
localized TTS-related behavioral changes.
Due to the infrequency, short time-frame, and localized nature of
these activities, the number of marine mammals, relative to the stock
population size, potentially taken by harassment is small. In addition,
no take by injury, serious injury, or death is anticipated, and take by
Level B harassment will be at the lowest level practicable due to
incorporation of the proposed monitoring and mitigation measures
mentioned previously in this document. No injury (Level A harassment),
serious injury, or mortality is expected or authorized for marine
mammals, and take by harassment will be at the lowest level practicable
due to incorporation of the monitoring and mitigation measures
mentioned previously in this document. Further, NMFS has preliminarily
determined that the anticipated takes incidental to this activity is
expected to result in a negligible impact on the affected species or
stocks of marine mammals. The provision requiring that the activity not
have an unmitigable adverse impact on the availability of the affected
species or stock for subsistence uses does not apply to this proposed
action as there are no subsistence users within the geographic area of
the proposed project.
Classification
For purposes of Executive Order 12866, the Office of Management and
Budget has determined that this proposed rule is not significant.
Pursuant to section 605(b) of the Regulatory Flexibility Act, the
Chief Counsel for Regulation of the Department of Commerce has
certified to the Chief of 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.
The U.S. Air Force is the entity that will be affected by this
rulemaking, not a small governmental jurisdiction, small organization
or small business, as defined by the Regulatory Flexibility Act. The
requested authorization is specific to an will only govern the behavior
of the U.S. Air Force as it carries out the specified training
activities on water ranges at Eglin AFB. The primary effect of the
authorization will be to impose mitigation and monitoring requirements
on the U.S. Air Force for a specified, limited number of annual
training events. Thus, the regulated activity involves only military
activities on a Federal military installation. The requested
authorization will not affect the activities of the private sector or
result in any costs to local government jurisdictions. As a result,
NMFS concludes the action would not result in a significant economic
impact on a substantial number of small entities.
Proposed Authorization
As a result of these preliminary determinations, NMFS proposes to
issue five-year regulations establishing a framework for the issuance
of LOAs to Eglin AFB for the harassment of Atlantic bottlenose dolphins
incidental to NEODS training operations, provided the previously
mentioned mitigation, monitoring, and reporting requirements are
incorporated.
List of Subjects in 50 CFR Part 217
Exports, Fish, Imports, Indians, Labeling, Marine mammals,
Penalties, Reporting and recordkeeping requirements, Seafood,
Transportation.
Dated: September 24, 2010.
Eric C. Schwaab,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For reasons set forth in the preamble, 50 CFR part 217 is proposed
to be amended as follows:
PART 217--REGULATIONS GOVERNING THE TAKE OF MARINE MAMMALS
INCIDENTAL TO SPECIFIED ACTIVITIES
1. The authority citation for part 217 continues to read as
follows:
Authority: 16 U.S.C. 1361 et seq.
2. Subpart I is added to part 217 to read as follows.
Subpart I--Taking of Marine Mammals Incidental to Naval Explosive
Ordnance Disposal School Training Operations
Sec.
217.80 Specified activity and specified geographical region.
217.81 Effective dates.
217.82 Permissible methods of taking.
217.83 Prohibitions.
[[Page 60707]]
217.84 Mitigation.
217.85 Requirements for monitoring and reporting.
217.86 Applications for Letters of Authorization.
217.87 Letters of Authorization.
217.88 Renewal of Letters of Authorization.
217.89 Modifications of Letters of Authorization.
Subpart I-Taking of Marine Mammals Incidental to Naval Explosive
Ordnance Disposal School (NEODS) Training Operations
Sec. 217.80 Specified activity and specified geographical region.
(a) Regulations in this subpart apply only to the incidental taking
of those marine mammals specified in paragraph (b) of this section by
the United States Air Force, Headquarters 96th Air Base Wing, Eglin Air
Force Base, and those persons who engage in activities described in
paragraphs (a)(1) through (7) of this section and the area set forth in
paragraph (b) of this section:
(1) NEODS missions involving underwater detonations of small, live
explosive charges adjacent to inert mines in order to disable the mine
function.
(2) Live training events occurring eight times annually, averaging
one event occurring every six to seven weeks.
(3) Four of the training events involving 5-lb charges, and four
events involving 10-lb charges.
(4) Up to twenty 5-lb detonations and twenty 10-lb detonations
annually, for a total of forty detonations.
(5) The five charges will be detonated individually with a maximum
separation time of 20 minutes between each detonation.
(6) Mine shapes and debris will be recovered and removed from the
Gulf of Mexico waters when training is completed.
(7) Each training team has two days to complete their entire
evolution (i.e., detonation of five charges). If operations cannot be
completed on the first live demolition day, the second live demolition
day will be utilized to complete the evolution.
(b) The incidental take of marine mammals at Eglin Air Force Base,
within the Eglin Military Complex, including three sites in the Eglin
Gulf Test and Training Range at property off Santa Rosa Island,
Florida, in the northern Gulf of Mexico, under the activity identified
in paragraph (a) of this section, is limited to the following species:
Atlantic bottlenose dolphins (Tursiops truncatus).
Sec. 217.81 Effective dates.
Regulations in this subpart are effective from December 1, 2010,
through November 30, 2015.
Sec. 217.82 Permissible methods of taking.
(a) Under Letters of Authorization issued pursuant to Sec. Sec.
216.106 and 217.87, the U.S. Department of the Air Force, Headquarters
96th Air Base Wing, Eglin Air Force Base, its contractors, and clients,
may incidentally, but not intentionally, take marine mammals by Level B
harassment, within the area described in Sec. 217.80, 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 is authorized for the species
listed in Sec. 217.80(b) and is limited to Level B harassment.
Sec. 217.83 Prohibitions.
Notwithstanding takings contemplated in Sec. 217.80 and authorized
by a Letter of Authorization issued under Sec. 216.106 and Sec.
217.87, no person in connection with the activities described in Sec.
217.80 may:
(a) Take any marine mammal not specified in Sec. 217.80(b);
(b) Take any marine mammal specified in Sec. 217.80(b) other than
by incidental, unintentional harassment;
(c) Take a marine mammal specified in Sec. 217.80(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 this subpart or a Letter of Authorization issued under
Sec. Sec. 216.106 and 217.87.
Sec. 217.84 Mitigation.
(a) The activity identified in Sec. 217.80(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. 217.80(a), the mitigation measures
contained in the Letter of Authorization issued under Sec. Sec.
216.106 and 217.87 must be implemented. These mitigation measures
include (but are not limited to):
(1) The time of detonation will be limited to an hour after sunrise
and an hour before sunset.
(2) NEODS missions would be postponed if:
(i) The Beaufort sea state is greater than scale number three. Such
a delay would maximize detection of marine mammals.
(ii) Any marine mammal is visually detected within the Zone of
Influence. The delay would continue until the marine mammal that caused
the postponement is confirmed to be outside of the Zone of Influence
due to the animal swimming out of the range.
(iii) Any marine mammal is detected within or about to enter the
Zone of Influence (i.e., the exclusion radius of 230 m or 754.6 ft) and
subsequently cannot be reacquired. The mission would not continue until
the last verified location is outside of the Zone of Influence and the
animal is moving away from the mission area.
(iv) Large Sargassum rafts of large concentrations of jellyfish are
observed within the Zone of Influence. The delay would continue until
the Sargassum rafts or jellyfish that caused the postponement are
confirmed to be outside of the Zone of Influence either due to the
current and/or wind moving them out of the mission area.
(v) Large schools of fish are observed in the water within 230 m
(754.6 ft) of the mission area. The delay would continue until the
large fish schools are confirmed to be outside the Zone of Influence.
(3) A Go/No-Go decision process if the range is fouled and if
monitoring indicates that the test area is and will remain clear of
detectable marine mammals. As long as no protected species are sighted
by the observer, then the mission is a Go, meaning it can proceed.
However, if the area is fouled, meaning a protected species has entered
the area, then the mission is a No-Go and cannot proceed until those
individuals have left the mission area.
(4) In the event of a postponement, pre-mission monitoring would
continue as long as weather and daylight hours allow. If a charge
failed to explode, operations would attempt to recognize and solve the
problem while continuing with all mitigation measures in place. Should
a charge fail to explode, the proponent would attempt to identify the
problem and detonate the charge with all marine mammal mitigation
measures in place as described.
(5) Additional mitigation measures as contained in a Letter of
Authorization.
(b) [Reserved]
Sec. 217.85 Requirements for monitoring and reporting.
(a) Holders of Letters of Authorization pursuant to Sec. Sec.
216.106 and 217.87 for activities described in 216.80(a) are required
to cooperate with NMFS, and any other Federal, state, or local agency
with authority to monitor the impacts of the activity on marine
mammals. Unless specified otherwise in the Letter of
[[Page 60708]]
Authorization, the Holder of the Letter of Authorization must notify
the Administrator, Southeast Region, NMFS, by letter or telephone,
prior to activities possibly involving the taking of marine mammals. If
the authorized activity identified in Sec. 217.80(a) is thought to
have resulted in the mortality or injury of any marine mammals or in
any take of marine mammals not identified in Sec. 217.80(b), then the
Holder of the Letter of Authorization must notify the Director, Office
of Protected Resources, NMFS, or designee, by telephone (301-713-2289),
within 24 hours of the discovery of the injured or dead animal.
(b) Holders of Letters of Authorization must designate trained,
qualified, on-site individuals approved in advance by NMFS, as
specified in the Letter of Authorization, to perform the following
monitoring requirements:
(1) For NEODS testing, areas to be used in missions are visually
monitored for marine mammal presence from a surface support vessel
prior to detonation of mine neutralization charges. The observer on the
vessel must be equipped with the proper optical equipment and lines of
communication in order to recommend the Go/No-Go decision.
(2) Monitoring (pre-mission, two hours prior to mission, one hour
prior to mission, five minutes prior to mission, throughout the
mission, post-mission) will be conducted before missions to evaluate
the test site for environmental suitability of the mission and to
verify the area is clear of marine mammals within the Zone of
Influence. If marine mammals are inside the Zone of Influence, firing
would be postponed until they have left the area.
(3) Conduct survey clearance procedures using best operational
methods possible.
(4) Re-conduct clearance procedures if dolphins or Sargassum rafts
are encountered.
(5) Conduct post-mission observation and report operations data as
required by Eglin Air Force Base's Natural Resources Section, 96 CEG/
CEVSN. Post-mission monitoring would commence immediately following
each detonation and would be concentrated on the area down current of
the test site. If any injured or dead marine mammals are observed, that
information will be reported and coordinated with marine animals
stranding networks.
(6) Submit an annual summary (coordinated through 96 CEG/CEVSN) of
mission observations to: NMFS, Southeast Regional Office, Protected
Resources Division, 9721 Executive Center Drive North, St. Petersburg,
Florida 33702.
(c) Holders of Letters of Authorization must conduct additional
monitoring as required under an annual Letter of Authorization.
(d) Holders of Letters of Authorization must submit an annual
report summarizing the specified activity as well as monitoring and
mitigation data to the Southeast Regional Administrator, NMFS, within
90 days after the conclusion of the NEODS activities. This report must
contain the following information:
(1) Date(s), time(s), and location(s) of explosive activities,
(2) Design of the monitoring program,
(3) Results of the monitoring program including, but not
necessarily limited to:
(i) Species counts,
(ii) Numbers of observed disturbances,
(iii) Descriptions of the disturbance behaviors before, during, and
after explosive activities,
(iv) Bearing and distances,
(v) Observations of unusual behaviors, numbers, or distributions of
marine mammals in the activity area will be reported to NMFS and the
U.S. Fish and Wildlife Service so that any potential follow-up
observations can be conducted by the appropriate personnel. In
addition, observations of tag-bearing marine mammals, sea turtles, and
fish carcasses as well as any rare or unusual species of marine mammals
and fish would be reported to NMFS and U.S. Fish and Wildlife Service.
(e) An annual report must be submitted at the time of renewal of
the Letter of Authorization.
(f) A final report must be submitted at least 180 days prior to
expiration of these regulations. This report will summarize the
activities undertaken and the results reported in all previous reports.
Sec. 217.86 Applications for Letters of Authorization.
(a) To incidentally take marine mammals pursuant to these
regulations, the U.S. citizen (as defined by Sec. 216.103) conducting
the activity identified in Sec. 217.80(a) must apply for and obtain
either an initial Letter of Authorization in accordance with Sec.
217.87 or a renewal under Sec. 217.88.
(b) The application must be submitted to NMFS at least 30 days
before the activity is scheduled to begin.
(c) Application for a Letter of Authorization and for renewals of
Letters of Authorization must include the following:
(1) Name of the U.S. citizen requesting the authorization.
(2) A description of the activity, the dates of the activity, and
the specific location of the activity, and
(3) Plans to monitor the behavior and effects of the activity on
marine mammals.
(d) A copy to the Letter of Authorization must be in the possession
of the persons conducting activities that may involve incidental
takings of marine mammals.
Sec. 217.87 Letters of Authorization.
(a) A Letter of Authorization, unless suspended or revoked, will be
valid for a period of time not to exceed the period of validity of this
subpart, but must be renewed annually subject to annual renewal
conditions in Sec. 217.88.
(b) Each Letter of Authorization will set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact on the
species, its habitat, and on the availability of the species for
subsistence uses (i.e., mitigation); and
(3) Requirements for mitigation, monitoring, and reporting.
(c) Issuance and renewal of the Letter of Authorization will be
based on a determination that the total number of marine mammals taken
by the activity as a whole will have no more than a negligible impact
on the affected species or stock of marine mammal(s).
Sec. 217.88 Renewal of Letters of Authorization.
(a) A Letter of Authorization issued under Sec. Sec. 216.106 and
217.87 for the activity identified in Sec. 217.80(a) will be renewed
annually upon:
(1) Notification to NMFS that the activity described in the
application submitted under Sec. 217.86 will be undertaken and there
will not be a substantial modification to the described work,
mitigation or monitoring undertaken during the upcoming 12 months;
(2) Timely receipt of the monitoring reports required under Sec.
217.85(d) and (e), and the Letter of Authorization issued under Sec.
217.87, which has been reviewed and accepted by NMFS; and
(3) A determination by NMFS that the mitigation, monitoring, and
reporting measures required under Sec. Sec. 217.84 and 217.85 and the
Letter of Authorization issued under Sec. Sec. 216.106 and 217.87,
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 217.88 indicates that a
[[Page 60709]]
substantial modification to the described work, mitigation or
monitoring undertaken during the upcoming season will occur, NMFS will
provide the public a period of 30 days for review and comment on the
request. Review and comment on renewals of Letters of Authorization are
restricted to:
(1) New cited information and data indicating that the
determinations made in this document are in need of reconsideration,
and
(2) Proposed changes to the mitigation and monitoring requirements
contained in these regulations or in the current Letter of
Authorization.
(c) A notice of issuance or denial of a renewal of a Letter of
Authorization will be published in the Federal Register.
Sec. 217.89 Modifications of Letters of Authorization.
(a) Except as provided in paragraph (b) of this section, no
substantive modification (including withdrawal or suspension) to the
Letter of Authorization by NMFS issued pursuant to Sec. Sec. 216.106
and 217.87 and subject to the provisions of this subpart shall be made
until after notification and an opportunity for public comment has been
provided. For purposes of this paragraph, a renewal of a Letter of
Authorization under Sec. 217.88, 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. 217.80(b), a Letter of
Authorization issued pursuant to Sec. Sec. 216.106 and 217.87 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. 2010-24689 Filed 9-30-10; 8:45 am]
BILLING CODE 3510-22-P