[Federal Register Volume 71, Number 149 (Thursday, August 3, 2006)]
[Proposed Rules]
[Pages 44001-44012]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-12556]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 060629183-6183-01; I.D. 022106A]
RIN 0648-AT39


Taking and Importing Marine Mammals; Taking Marine Mammals 
Incidental to Conducting Precision Strike Weapons Testing and Training 
by Eglin Air Force Base in the Gulf of Mexico

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

[[Page 44002]]


ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS has received a request from Eglin Air Force Base (Eglin 
AFB) for an authorization to take marine mammals incidental to 
conducting Precision Strike Weapons (PSW) testing and training in the 
Gulf of Mexico (GOM). By this document, NMFS is proposing regulations 
to govern that take. In order to issue a Letter of Authorization (LOA) 
and final regulations governing the take, NMFS must determine, among 
other things, that the taking will have a negligible impact on the 
affected species and stocks of marine mammals. NMFS regulations must 
set forth the permissible methods of take and other means of effecting 
the least practicable adverse impact on the affected species or stock 
of marine mammals and their habitat. NMFS invites comment on the 
application and the regulations.

DATES: Comments and information must be postmarked no later than 
September 5, 2006.

ADDRESSES: You may submit comments on the application and proposed 
rule, using the identifier 022106A, by any of the following methods:
    E-mail: [email protected].
    Federal e-Rulemaking Portal: http://www.regulations.gov.
    Hand-delivery or mailing of paper, disk, or CD-ROM comments should 
be addressed to: P. Michael Payne, Chief, Permits, Conservation and 
Education Division, Office of Protected Resources, National Marine 
Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-
3225.
    Documents cited in this proposed rule may also be viewed, by 
appointment, during regular business hours at the above address or at 
the Department of the Air Force, AAC/EMSN, Natural Resources Branch, 
501 DeLeon St., Suite 101, Eglin AFB, FL 32542-5133.

FOR FURTHER INFORMATION CONTACT: Kenneth R. Hollingshead, NMFS, 301-
713-2289, ext 128.

SUPPLEMENTARY INFORMATION:

Background

    Section 101(a)(5)(A) of the Marine Mammal Protection Act (16 U.S.C. 
1361 et seq.) (MMPA) directs the Secretary of Commerce (Secretary) to 
allow, upon request, the incidental, but not intentional taking of 
marine mammals by U.S. citizens who engage in a specified activity 
(other than commercial fishing) within a specified geographical region 
if certain findings are made and regulations are issued.
    Permission may be granted for periods of 5 years or less if the 
Secretary finds that the taking will have a negligible impact on the 
species or stock(s) and will not have an unmitigable adverse impact on 
the availability of the species or stock(s) for subsistence uses, and 
if regulations are prescribed setting forth the permissible methods of 
taking and the requirements pertaining to the mitigation, monitoring 
and reporting of such taking.
    NMFS has defined ``negligible impact'' in 50 CFR 216.103 as ``an 
impact resulting from the specified activity that cannot be reasonably 
expected to, and is not reasonably likely to, adversely affect the 
species or stock through effects on annual rates of recruitment or 
survival.'' With respect to military readiness activities, the MMPA 
defines ``harassment'' as:
    (i) any act that injures or has the significant potential to 
injure a marine mammal or marine mammal stock in the wild [Level A 
harassment]; or (ii) any act that disturbs or is likely to disturb a 
marine mammal or marine mammal stock in the wild by causing 
disruption of natural behavioral patterns, including, but not 
limited to, migration, surfacing, nursing, breeding, feeding, or 
sheltering, to a point where such behavioral patterns are abandoned 
or significantly altered [Level B harassment]. 16 U.S.C. 
1362(18)(B).

Summary of Request

    On February 4, 2004, Eglin AFB submitted a request for a 1-year 
Incidental Harassment Authorization(IHA) under MMPA section 
101(a)(5)(D) and for an LOA (to take effect after the expiration of the 
IHA), for the incidental, but not intentional taking (in the form of 
noise-related harassment), of marine mammals incidental to PSW testing 
within the Eglin Gulf Test and Training Range (EGTTR) for the next five 
years, as authorized by section 101(a)(5) of the MMPA. The EGTTR is 
described as the airspace over the GOM that is controlled by Eglin AFB, 
and is also referred to as the ``Eglin Water Range.''
    PSW missions involve air-to-surface impacts of two weapons, the 
Joint Air-to-Surface Stand-off Missile (JASSM) AGM-158 A and B and the 
small-diameter bomb (SDB) (GBU-39/B), that result in underwater 
detonations of up to approximately 300 lbs (136 kg) and 96 lbs (43.5 
kg, double SDB) of net explosive weight (NEW), respectively.
    The JASSM is a precision cruise missile designed for launch from 
outside area defenses to kill hard, medium-hard, soft, and area-type 
targets. The JASSM has a range of more than 200 nautical miles (nm) 
(370 kilometers (km)) and carries a 1,000-lb (453.6 kg) warhead. The 
JASSM has approximately 300 lbs (136 kg) of TNT equivalent NEW. The 
explosive used is AFX-757, a type of plastic bonded explosive (PBX) 
formulation with higher blast characteristics and less sensitivity to 
many physical effects that could trigger unwanted explosions. The JASSM 
would be launched from an aircraft at altitudes greater than 25,000 ft 
(7620 m). The JASSM would cruise at altitudes greater than 12,000 ft 
(3658 m) for the majority of the flight profile until it makes the 
terminal maneuver toward the target. The JASSM exercise involves a 
maximum of two live shots (single) and 4 inert shots (single) each year 
for the next 5 years. One live shot will detonate in water and one will 
detonate in air. Detonation of the JASSM would occur under one of three 
scenarios: (1) Detonation upon impact with the target (about 5 ft (1.5 
m) above the GOM surface); (2) detonation upon impact with a barge 
target at the surface of the GOM; or (3) detonation at 120 milliseconds 
after contact with the surface of the GOM.
    The SDB is a glide bomb. Because of its capabilities, the SDB 
system is an important element of the Air Force's Global Strike Task 
Force. The SDB has a range of up to 50 nm (92.6 km) and carries a 
217.4-lb (98.6 kg) warhead. The SDB has approximately 48 lbs (21.7 kg) 
of TNT equivalent NEW. The explosive used is AFX-757. Launch from an 
aircraft would occur at altitudes greater than 15,000 ft (4572 m). The 
SDB would commence a non-powered glide to the intended target. The SDB 
exercise involves a maximum of six live shots a year, with two of the 
shots occurring simultaneously, and a maximum of 12 inert shots with up 
to two occurring simultaneously. Detonation of the SDBs would occur 
under one of two scenarios: (1) Detonation of one or two bombs upon 
impact with the target (about 5 ft (1.5 m)above the GOM surface), or 
(2) a height of burst (HOB) test: detonation of one or two bombs 10 to 
25 ft (3 to 7.6 m) above the GOM surface. No underwater detonations of 
the SDB are planned.
    The JASSM and SDBs would be launched from B-1, B-2, B-52, F-15, F-
16, F-18, or F-117 aircraft. Chase aircraft would include F-15, F-16, 
and T-38 aircraft. These aircraft would follow the test items during 
captive carry and free flight but would not follow either item below a 
predetermined altitude as directed by Flight Safety. Other assets on 
site may include an E-9 turboprop aircraft or MH-60/53 helicopters 
circling around the target location. Tanker aircraft including KC-10s 
and KC-135s would also be used. A second unmanned barge may also be on 
location to hold

[[Page 44003]]

instrumentation. Targets include a platform of five containers 
strapped, braced, and welded together to form a single structure and a 
hopper barge, typical for transportation of grain.
    The Eglin AFB action would occur in the northern GOM in the EGTTR. 
Targets would be located in water less than 200 ft (61 m) deep and from 
15 to 24 nm (27.8 to 44.5 km) offshore, south of Santa Rosa Island and 
south of Cape San Blas Site D3-A. PSW test and training exercises are a 
military readiness activity.

Comments and Responses on Eglin AFB's Application

    A notice of receipt of Eglin AFB's application for a 1-year IHA and 
5-year LOA was published in the Federal Register on April 22, 2004 (69 
FR 21816). That notice described, in detail, Eglin AFB's proposed 
activity, the marine mammal species that may be affected by the 
activity, and the anticipated effects on marine mammals. Comments 
received on Eglin AFB's application during the 30-day public comment 
period were addressed in the August 19, 2005, Federal Register notice 
(70 FR 48675) announcing issuance of a 1-year IHA to Eglin AFB for PSW 
activities. Please review the 2005 notice prior to submitting comments 
on this proposed rule.

Description of Marine Mammals Affected by the Activity

    There are 29 species of marine mammals documented as occurring in 
Federal waters of the GOM. Information on those species that may be 
impacted by this activity are discussed in the Eglin AFB application 
and Eglin's Final PEA. A summary of that information is provided in 
this section.
    General information on these marine mammal species can be found in 
Wursig et al. (2000) and in the NMFS Stock Assessment Report (Waring, 
2006). The NMFS Stock Assessment Report is available at: http://www.nefsc.noaa.gov/nefsc/publications/tm/tm194/.
    Marine mammal species that potentially occur within the EGTTR 
include several species of cetaceans and one sirenian, the West Indian 
manatee. During winter months, manatee distribution in the GOM is 
generally confined to southern Florida. During summer months, a few may 
migrate north as far as Louisiana. However, manatees primarily inhabit 
coastal and inshore waters and rarely venture offshore. PSW missions 
would be conducted offshore. Therefore, effects on manatees are 
considered very unlikely.
    Cetacean abundance estimates for the study area are derived from 
GulfCet II (Davis et al., 2000) aerial surveys of the continental shelf 
within the Minerals Management Service Eastern Planning Area, an area 
of 70,470 km\2\. Texas A&M University and NMFS conducted these surveys 
from 1996 to 1998. Abundance and density data from the aerial survey 
portion of the survey best reflect the occurrence of cetaceans within 
the EGTTR, given that the survey area overlaps approximately one-third 
of the EGTTR and nearly the entire continental shelf region of the 
EGTTR where military activity is highest. The GulfCet II aerial surveys 
identified different density estimates of marine mammals for the shelf 
and slope geographic locations. Only the shelf data is used because PSW 
missions will only be conducted on the shelf.
    In order to maximize species conservation and protection, the 
species density estimate data were adjusted to reflect more realistic 
encounters of these animals in their natural environment. Refer to 
``Conservative Estimates of Marine Mammal Densities'' in this document 
and Eglin AFB's application for more information on density estimates. 
The four marine mammal species observed during GulfCet II aerial 
surveys on the shelf that have the potential to be present in the PSW 
test area and thereby affected are: Atlantic bottlenose dolphins 
(Tursiops truncatus), Atlantic spotted dolphins (Stenella frontalis), 
dwarf sperm whales (Kogia simus), and pygmy sperm whales (Kogia 
breviceps). Brief descriptions of these species were provided in 
earlier Federal Register notices (69 FR 21816, April 22, 2004; 70 FR 
48675, August 19, 2005) and are not repeated here.

Impacts to Marine Mammals

    Potential impacts to marine mammals from the detonation of the PSWs 
and SDBs include both lethal and non-lethal injury, as well as Level B 
harassment in the form of a temporary shift in hearing sensitivity 
(called temporary threshold shift (TTS) and behavioral responses due to 
TTS. Although unlikely due to the extensive mitigation measures 
proposed herein, marine mammals have the potential to be killed or 
injured as a result of a blast due to the response of air cavities in 
the body, such as the lungs and bubbles in the intestines. Any effects 
would likely be most severe in near-surface waters where the reflected 
shock wave creates a region of negative pressure called ``cavitation.'' 
This is a region of near total physical trauma within which no animals 
would be expected to survive. A second criterion used by NMFS for 
categorizing taking by mortality is the onset of extensive lung 
hemorrhage. Extensive lung hemorrhage is considered to be debilitating 
and thereby potentially fatal. Suffocation caused by lung hemorrhage 
would likely be the major cause of any marine mammal death from 
underwater shock waves.
    For the acoustic analysis in this document, the exploding charge is 
characterized as a point source. The impact thresholds used for marine 
mammals relate to potential effects on hearing from underwater noise 
from detonations. For the explosives in question, actual detonation 
heights would range from 0 to 25 ft (7.6 m) above the water surface. 
Detonation depths would range from 0 to 80 ft (73.2 m) below the 
surface. To bracket the range of possibilities, detonation scenarios 
just above and below the surface were used by Eglin AFB to analyze 
bombs set to detonate on contact with the target barge. Potentially, 
the barge may interact with the propagation of noise into the water. 
However, barge effects on the propagation of noise into the water 
column cannot be determined without in-water noise monitoring at the 
time of detonation.
    Potential exposure of a sensitive species to detonation noise could 
theoretically occur at the surface or at any number of depths with 
differing consequences. As a conservative measure, a mid-depth scenario 
was selected by Eglin AFB to ensure the greatest direct path for the 
harassment ranges, and to give the greatest impact range for the injury 
thresholds.

Explosive Criteria and Thresholds for Impact of Noise on Marine Mammals

    NMFS' criteria for explosives and thresholds for assessing impacts 
of explosions on marine mammals were discussed by NMFS in detail in its 
issuance of an IHA for Eglin's PSW testing activity (70 FR 48675, 
August 19, 2005) and are not repeated here. Please refer to that 
document for background information on this criteria. Based on the 
discussion in that document, Table 1 illustrates estimated zones of 
impact for potential mortality (31 psi-ms), Level A harassment (injury; 
205 dB EFDL) and Level B harassment (TTS; 182 dB EFDL/23 psi).

[[Page 44004]]



                      Table 1. Zones of Impact for Underwater Explosions (Mid-depth Animal)
----------------------------------------------------------------------------------------------------------------
                                          Depth or    Ranges
                                  NEW     Height of   for 31  Ranges for EFDL > 205 dB   Ranges for 182 dB EFDL
           Ordnance             (TNT in   Explosion  psi -ms             (m)             in 1/3-Octave Band/ 23
                                  lb)        (m)       (m)                                       psi (m)
----------------------------------------------------------------------------------------------------------------
Summer
-------------------------------         ------------         ---------------------------------------------------
Single SDB                      48       1.5         n/a                           12                       447
                                         7.6         n/a                           12                       447
----------------------------------------------------------------------------------------------------------------
Double SDB                      96       1.5         n/a                           16                       550
                                         7.6         n/a                           17                       550
----------------------------------------------------------------------------------------------------------------
Single JASSM                    300      0.3         75                           170                       770
                                         >6.1        320                          550                      2490
----------------------------------------------------------------------------------------------------------------
Winter
-------------------------------         ------------         ---------------------------------------------------
Single SDB                      48       1.5         n/a                           12                       471
                                         7.6         n/a                           12                       471
----------------------------------------------------------------------------------------------------------------
Double SDB                      96       1.5         n/a                           16                       594
                                         7.6         n/a                           16                       594
----------------------------------------------------------------------------------------------------------------
Single JASSM                    300      0.3         75                           170                       871
                                         >6.1        320                          590                      3250
 
----------------------------------------------------------------------------------------------------------------

Incidental Take Estimates

    For Eglin AFB's PSW exercises, three key sources of information are 
necessary for estimating potential take levels from noise on marine 
mammals: (1) The zones of influence (ZOIs) for noise exposure; (2) the 
number of distinct firing or test events; and (3) the density of 
animals that potentially reside within a ZOI.
    Noise ZOIs were calculated for depth detonation scenarios of 1 ft 
(0.3 m) and 20 ft (6.1 m) for lethality and for harassment (both Level 
A and Level B). To estimate the number of potential ``takes'' or 
animals affected, the adjusted data on cetacean population information 
from ship and aerial surveys were applied to the various ZOIs.
    Table 1 in this document gives the estimated ZOI ranges for various 
explosive weights for summer and wintertime scenarios for JASSM and 
SDB. For example, for JASSM, the range, in winter, extends to 320 m 
(1050 ft), 590 m (1936 ft) and 3250 m (10663 ft) for potential 
mortality (31 psi-ms), injury (205 dB re 1 microPa\2\ -s) and TTS (182 
dB re 1 microPa\2\-s/23 psi zones), respectively. SDB scenarios are for 
in-air detonations at heights of 1.5 m (5 ft) and 7.6 m (25 ft) during 
both seasons (whichever criterion provides the largest zone is used for 
calculating potential impacts). JASSM detonations were modeled for 
near- surface (i.e., 1-ft (0.3-m) depth) and below-surface (>20-ft 
depth (>6.1 m)). To account for ``double'' (2 nearly simultaneous) 
events, the charge weights are added (doubled) when modeling for the 
determination of energy estimates (since energy is proportional to 
weight). Pressure estimates only utilize the single charge weights for 
these estimates.
    Applying the lethality (31 psi) and harassment (205 and 182 dB 
EFDL) impact ranges shown in Table 1 to the calculated species 
densities (in Table 3-1 in Eglin AFB's application), the number of 
animals potentially occurring within the various ZOIs without 
implementation of mitigation was estimated. These results are presented 
in Tables 2, 3, and 4 in this document. In summary, without any 
mitigation, a small possibility exists for one bottlenose and one 
Atlantic spotted dolphin to be exposed to blast levels sufficient to 
cause mortality. Additionally, less than 2 cetaceans might be exposed 
to noise levels sufficient to induce Level A harassment (injury) (205 
dB re 1 microPa2-s) annually, and as few as 31 or as many as 52 
cetaceans (depending on the season and water depth) could potentially 
be exposed (annually) to noise levels sufficient to induce Level B 
harassment in the form of TTS (182 dB re 1 microPa2-s/23 psi). While 
none of these impact estimates consider the proposed mitigation 
measures that will be employed by Eglin AFB to minimize potential 
impacts to protected species, NMFS proposes to authorize Eglin AFB to 
lethally take one marine mammal, 2 marine mammals by Level A 
harassment, and up to 53 marine mammals by Level B harassment (TTS) 
annually. The proposed mitigation measures described later in this 
document are anticipated to reduce potential impacts to marine mammals, 
in both numbers and degree of severity.

 Table 2. Marine Mammal Densities and Risk Estimates for Lethality (31 psi) Noise Exposure for All In-Water and
                                               In-Air Detonations
----------------------------------------------------------------------------------------------------------------
                                                   Number of Animals
                                                    Exposed from All     Adjusted Number Exposed Based on 30%
              Species                  Density       In-Air and In-            Mitigation Effectiveness
                                                   Water Detonations
----------------------------------------------------------------------------------------------------------------
Summer
-----------------------------------               --------------------------------------------------------------
Dwarf/pygmy sperm whale             0.013          0.004                                                  0.003
----------------------------------------------------------------------------------------------------------------
Bottlenose dolphin                  0.81           0.262                                                  0.183
----------------------------------------------------------------------------------------------------------------

[[Page 44005]]

 
Atlantic spotted dolphin            0.677          0.219                                                  0.153
----------------------------------------------------------------------------------------------------------------
T. truncatus/S. frontalis           0.053          0.017                                                  0.012
----------------------------------------------------------------------------------------------------------------
TOTAL                               .............  0.502                                                  0.351
----------------------------------------------------------------------------------------------------------------
Winter
-----------------------------------               --------------------------------------------------------------
Dwarf/pygmy sperm whale             0.013          0.004                                                  0.003
----------------------------------------------------------------------------------------------------------------
Bottlenose dolphin                  0.81           0.262                                                  0.183
----------------------------------------------------------------------------------------------------------------
Atlantic spotted dolphin            0.677          0.219                                                  0.153
----------------------------------------------------------------------------------------------------------------
T. truncatus/S. frontalis           0.053          0.017                                                  0.012
----------------------------------------------------------------------------------------------------------------
TOTAL                               .............  0.502                                                  0.351
 
----------------------------------------------------------------------------------------------------------------


  Table 3. Marine Mammal Densities and Risk Estimates for Level A Harassment (205 dB EFD 1/3-Octave Band) Noise
                                Exposure for All In-Water and In-Air Detonations
----------------------------------------------------------------------------------------------------------------
                                                   Number of Animals
                                                    Exposed from All     Adjusted Number Exposed Based on 30%
              Species                  Density       In-Air and In-            Mitigation Effectiveness
                                                   Water Detonations
----------------------------------------------------------------------------------------------------------------
Summer
-----------------------------------               --------------------------------------------------------------
Dwarf/pygmy sperm whale             0.013          0.014                                                  0.010
----------------------------------------------------------------------------------------------------------------
Bottlenose dolphin                  0.81           0.893                                                  0.625
----------------------------------------------------------------------------------------------------------------
Atlantic spotted dolphin            0.677          0.747                                                  0.523
----------------------------------------------------------------------------------------------------------------
T. truncatus/S. frontalis           0.053          0.058                                                  0.041
----------------------------------------------------------------------------------------------------------------
TOTAL                               .............  1.712                                                  1.198
----------------------------------------------------------------------------------------------------------------
Winter
-----------------------------------               --------------------------------------------------------------
Dwarf/pygmy sperm whale             0.013          0.014                                                  0.010
----------------------------------------------------------------------------------------------------------------
Bottlenose dolphin                  0.81           0.893                                                  0.625
----------------------------------------------------------------------------------------------------------------
Atlantic spotted dolphin            0.677          0.747                                                  0.523
----------------------------------------------------------------------------------------------------------------
T. truncatus/S. frontalis           0.053          0.058                                                  0.041
----------------------------------------------------------------------------------------------------------------
TOTAL                               .............  1.712                                                  1.198
 
----------------------------------------------------------------------------------------------------------------


Table 4. Marine Mammal Densities and Combined Risk Estimates for the 23 psi Peak Pressure and the 182 dB EFD 1/3-
                 Octave Band Level B Harassment Metrics for All In-Water and In-Air Detonations
----------------------------------------------------------------------------------------------------------------
                                                   Number of Animals
                                                    Exposed from All     Adjusted Number Exposed Based on 30%
              Species                  Density       In-Air and In-            Mitigation Effectiveness
                                                   Water Detonations
----------------------------------------------------------------------------------------------------------------
Summer
-----------------------------------               --------------------------------------------------------------
Dwarf/pygmy sperm whale             0.013          0.26                                                   0.182
----------------------------------------------------------------------------------------------------------------
Bottlenose dolphin                  0.81           16.209                                               11.3463
----------------------------------------------------------------------------------------------------------------
Atlantic spotted dolphin            0.677          13.547                                                9.4829
----------------------------------------------------------------------------------------------------------------
T. truncatus/S. frontalis           0.053          1.061                                                 0.7427
----------------------------------------------------------------------------------------------------------------
TOTAL                               .............  31.076                                               21.7532
----------------------------------------------------------------------------------------------------------------

[[Page 44006]]

 
Winter
-----------------------------------               --------------------------------------------------------------
Dwarf/pygmy sperm whale             0.013          0.44                                                   0.308
----------------------------------------------------------------------------------------------------------------
Bottlenose dolphin                  0.81           27.387                                               19.1709
----------------------------------------------------------------------------------------------------------------
Atlantic spotted dolphin            0.677          22.89                                                 16.023
----------------------------------------------------------------------------------------------------------------
T. truncatus/S. frontalis           0.053          1.792                                                 1.2544
----------------------------------------------------------------------------------------------------------------
TOTAL                               .............  52.509                                               36.7563
 
----------------------------------------------------------------------------------------------------------------

Mitigation and Monitoring

    Under the current IHA and as proposed here, Eglin will establish 
and survey the relevant ZOIs and buffer zones around a planned 
detonation site. The ZOI for the JASSM will be a radius of 2.0 nm (3.7 
km) around the detonation site and the buffer zone will be established 
at a 1.0-nm (1.85-km) radius outside the safety zone. The ZOI for the 
SDB will be a radius of 5-10 nm (9.3-18.5 km) depending upon weight of 
the explosive and the buffer zone will be established at a 2.5 - 5 nm 
(4.6 -18.5 km) radius outside the SDB ZOI. Prior to the planned 
detonation, trained observers aboard aircraft will survey (visually 
monitor) the ZOI and buffer area, a very effective method for detecting 
cetaceans. The aircraft/helicopters will fly approximately 500 ft (152 
m) above the sea surface to allow observers to scan a large distance. 
In addition, trained observers aboard surface support vessels will 
conduct ship-based monitoring for non-participating vessels as well as 
protected species. Using 25X power ``Big-eye'' binoculars, surface 
observation would be effective out to several kilometers.
    Weather that supports the ability to sight marine life is required 
to effectively mitigate impacts on marine life (DON, 1998). Wind, 
visibility, and surface conditions in the GOM are the most critical 
factors affecting mitigation operations. Higher winds typically 
increase wave height and create ``white cap'' conditions, both of which 
limit an observer's ability to locate surfacing marine mammals. 
Therefore, PSW missions would be delayed if the Beaufort scale sea 
state are greater than 3.5.
    Visibility is also a critical factor for flight safety issues. A 
minimum ceiling of 305 m (1000 ft) and visibility of 5.6 km (3 nm) is 
required to support mitigation and safety-of-flight concerns (DON, 
2001).

Aerial Survey/Monitoring Team

    Eglin will complete an aerial survey before each mission and train 
personnel to conduct aerial surveys for protected species. The aerial 
survey/monitoring team would consist of two observers. Aircraft provide 
a preferable viewing platform for detection of protected marine 
species. Each aerial observer will be experienced in marine mammal 
surveying and familiar with species that may occur in the area. Each 
aircraft would have a data recorder who would be responsible for 
relaying the location, the species if possible, the direction of 
movement, and the number of animals sighted. Standard line transect 
aerial surveying methods, as developed by NMFS (Blaylock and Hoggard, 
1994; Buckland et al., 1993) would be used. Aerial observers are 
expected to have above average to excellent sighting conditions at 
sunrise to 1.85 km (1 nm) on either side of the aircraft within the 
weather limitation noted previously. Observed marine mammals would be 
identified to the species or the lowest possible taxonomic level and 
the relative position recorded. In order to ensure adequate daylight 
for pre- and post-mission monitoring, the mission activity would occur 
no earlier than 2 hours after sunrise and no later than 2 hours prior 
to sunset.

Shipboard Monitoring Team

    Eglin AFB will conduct shipboard monitoring to reduce impacts to 
protected species. The monitoring would be staged from the highest 
point possible on a mission ship. Observers would be familiar with the 
marine life of the area. The observer on the vessel must be equipped 
with optical equipment with sufficient magnification (e.g., 25X power 
``Big-Eye'' binoculars, as these have been successfully used in 
monitoring activities from ships), which should allow the observer to 
sight surfacing mammals from as far as 11.6 km (6.3 nm) and provide 
overlapping coverage from the aerial team. A team leader would be 
responsible for reporting sighting locations, which would be based on 
bearing and distance.
    The aerial and shipboard monitoring teams will have proper lines of 
communication to avoid communication deficiencies. The observers from 
the aerial team and operations vessel will have direct communication 
with the lead scientist aboard the operations vessel. The lead 
scientist will be a qualified marine biologist familiar with marine 
surveys. The lead scientist reviews the range conditions and recommends 
a Go/No-Go decision to the test director. The test director makes the 
final Go/No-Go decision.

Mitigation Procedures Plan

    All zones (injury, ZOI and buffer zones) are monitored. Although 
unexpected, any mission may be delayed or aborted due to technical 
reasons. Actual delay times depend on the aircraft supporting the test, 
test assets, and range time. Should a technical delay occur, all 
mitigation procedures would continue and remain in place until either 
the test takes place or is canceled. The ZOI and buffer zone around 
JASSM missions will be monitored by shipboard observers from the 
highest point of the vessel. Vessels will be positioned as close to the 
safety zone as allowed without infringing on the missile flight 
corridor. The SDB has many mission profiles and does not have a flight 
termination system; therefore, the safety buffer zone may be quite 
large (5-10 nm radius (9.3-18.5 km)).
    PSW mitigation must be regulated by Air Force safety parameters 
(pers. comm. Monteith and Nowers, 2004) to

[[Page 44007]]

ensure personnel safety. Therefore, marine mammal mitigation 
effectiveness may be reduced for some missions due to mandatory safety 
buffers which limit the time and type of marine mammal mitigation. Even 
though mitigation may be limited for PSW and SDB missions, all SDB 
detonations are above the water surface (5-25 ft (1.5-7.6 m) above the 
surface) and of much smaller net explosive weight than JASSM. Table 5 
describes safety zones and clearance times for JASSM and SDB missions 
(time in minutes).

                          Table 5. Safety Zone Monitoring Time Frames and Effectiveness
----------------------------------------------------------------------------------------------------------------
                                        Safety     Safety   Total Time
                                      Clearance  Clearance   of Vessel     Total Time of
                              Flight   Time for   Time for    Safety      Aircraft Safety
                               Time    Vessels    Aircraft   Clearance    Clearance before    Human Safety Area
                                        before     before     before         Detonation
                                        Launch     Launch   Detonation
----------------------------------------------------------------------------------------------------------------
JASSM                         :30-1   :30        :15        1:30                      1:15                 2 NM
                               hr
----------------------------------------------------------------------------------------------------------------
SDB                           :20     :60        :30        1:20                       :50              5-10 NM
 
----------------------------------------------------------------------------------------------------------------

    Stepwise mitigation and monitoring procedures for PSW missions are 
outlined here.
Pre-mission Monitoring
    The purposes of pre-mission monitoring are to (1) evaluate the test 
site for environmental suitability of the mission (e.g., relatively low 
numbers of marine mammals) and (2) verify that the ZOI is free of 
visually detectable marine mammals. On the morning of the test, the 
lead scientist would confirm that the test sites can still support the 
mission and that the weather is adequate to support mitigation.
Five Hours Prior to Mission Launch
    Approximately 5 hours prior to mission launch, or at daybreak, the 
appropriate vessel(s) would be on-site in the primary test site near 
the location of the earliest planned mission point. Observers onboard 
the vessel will assess the suitability of the test site, based on 
visual observation of marine mammals, and overall environmental 
conditions (visibility, sea state, etc.). This information will be 
relayed to the lead scientist.
Three Hours Prior to Mission Launch
    Approximately three hours prior to mission launch, aerial 
monitoring would commence within the test site to evaluate the test 
site for environmental suitability. Evaluation of the entire test site 
would take approximately 1 to 1.5 hours. Shipboard observers would 
monitor the ``ZOI'' and buffer zone, and the lead scientist would enter 
all marine mammals sightings, including the time of sighting and the 
direction of travel, into a marine animal tracking and sighting 
database. The aerial monitoring team would begin monitoring the ZOI and 
buffer zone around the target area. The shipboard monitoring team would 
combine with the aerial team to monitor the area immediately around the 
mission area including both the ZOI and buffer zone.
One to 1.5 Hours Prior to Mission Launch
    As noted in Table 6 and depending upon the mission, aerial and 
shipboard viewers would be instructed to leave the area and remain 
outside the human personnel safety area (over 2 nm (3.7 km) from impact 
for JASSM and 5-10 nm (9.3-18.5 km) for SDB). The aerial team would 
report all marine animals spotted and their directions of travel to the 
lead scientist onboard the vessel. The shipboard monitoring team would 
continue searching the buffer zone for protected species as it leaves. 
The aircraft will leave the area and land on base. The surface vessels 
will stay on the outside of the human personnel safety area (5-10 nm 
for SDB and 2 nm for JASSM) until after detonation.
Fifteen Minutes Prior to Launch and Go/No-Go Decision Process
    Visual monitoring from surface vessels outside the human personnel 
safety zone would continue to document any animals that may have gone 
undetected during the past two hours and track animals moving in the 
direction of the detonation area.
    The lead scientist would plot and record sightings and bearing for 
all marine animals detected. This would depict animal sightings 
relative to the mission area. The lead scientist would have the 
authority to declare the range fouled and recommend a hold until 
monitoring indicates that the ZOI is and will remain clear of 
detectable animals.
    The mission would be postponed if:
    (1) Any marine mammal is visually detected within the relevant ZOI 
(see Table 1) prior to mission launch. The delay would continue until 
the marine mammal that caused the postponement is confirmed to be 
outside of the ZOI due to the animal moving out of the range, and
    (2) Any marine mammal is detected in the buffer zone and cannot be 
subsequently re-sighted. The mission would not continue until the last 
verified location is outside of the ZOI and the animal is moving away 
from the mission area.
    In the event of a postponement, pre-mission monitoring would 
continue as long as weather and daylight hours allow. Aerial monitoring 
is limited by fuel and the on-station time of the monitoring aircraft. 
If a live warhead failed to explode operations would attempt to 
recognize and solve the problem while continuing with all mitigation 
measures in place. The probability of this occurring is very remote but 
does exist. Should a weapon fail to explode, the activity sponsor would 
attempt to identify the problem and detonate the charge with all marine 
mammal mitigation measures in place as described. If a live warhead 
fails to explode the weapon is rendered safe after 15 minutes. The 
feasibility and practicality of recovering the warhead will be 
evaluated on a case-by-case basis. If at all feasible, the warhead will 
be recovered.
Launch to Impact
    Visual monitoring from vessels would continue to survey the ZOI and 
surrounding buffer zone and track animals moving in the direction of 
the impact area. The lead scientist would continue to plot and record 
sightings and bearing for all marine animals detected. This will depict 
animal sightings relative to the impact area. Due to economic (costs of 
testing $2 million per test) and practical (in-air destruction of the 
missile) reasons, NMFS is not proposing to require Eglin AFB to 
terminate an in-flight missile or bomb due to sighting of a protected 
species.

[[Page 44008]]

Post-mission monitoring
    Post-mission monitoring is designed to gauge the effectiveness of 
pre-mission mitigation by reporting any sightings of dead or injured 
marine mammals. Post-detonation monitoring via shipboard surveyors 
would commence immediately following each detonation; no aerial surveys 
would be conducted during this monitoring stage. The vessels will move 
into the ZOI from outside the safety zone and continue monitoring for 
at least two hours, concentrating on the area down current of the test 
site.
    Although it is highly unlikely that marine mammals will be killed 
or seriously injured by this activity, any marine mammals killed by an 
explosion would likely suffer lung rupture, which would cause them to 
float to the surface immediately due to air in the blood stream. Any 
animals that are not killed instantly but are mortally wounded would 
likely resurface within a few days, though this would depend on the 
size and type of animal, fat stores, depth, and water temperature (DON, 
2001). The monitoring team would attempt to document any marine mammals 
that are killed or injured as a result of the test and, if practicable, 
recover and examine any dead animals. The species, number, location, 
and behavior of any animals observed by the observation teams would be 
documented and reported to the lead scientist.
    Post-mission monitoring activities include coordination with marine 
animal stranding networks. NMFS maintains stranding networks along 
coasts to collect and circulate information about marine mammal 
standings. Local coordinators report stranding data to state and 
regional coordinators. Any observed dead or injured marine mammals 
would be reported to the appropriate coordinator.

Summary of Mitigation Plan

    The PSW test will be postponed if any human safety concerns arise, 
protected species are sighted within the ZOI, any protected species is 
detected in the buffer zone and subsequently cannot be reacquired, or a 
marine mammal is moving into the ZOI from the buffer zone. The delay 
would continue until the marine mammal that caused the postponement is 
confirmed to be outside of the ZOI due to the animal swimming out of 
the range.
    Avoidance of impacts to pods of cetaceans will most likely be 
realized through these measures since groups of dolphins are relatively 
easy to spot with the survey distances and methods that will be 
employed. Typically solitary marine mammals such as dwarf/pygmy sperm 
whales, while more challenging to detect, will also be afforded 
substantial protection through pre-test monitoring.
    The safety vessels would conduct post-mission monitoring for two 
hours after each mission. The monitoring team would document any marine 
mammals observed dead or injured and, if practicable, recover and 
examine any dead animals.

Conservative Estimates of Marine Mammal Densities

    Using conservative mathematical calculations and conservative 
density estimates can serve as a technique for making conservative 
``take'' estimates. Marine mammal densities used to calculate takes 
were based on the most current and comprehensive GOM surveys available 
(GulfCet II). The densities are adjusted for the time the animals are 
submerged, and further adjusted by applying standard deviations to 
provide an approximately 99 percent confidence level. As an example, 
the density estimates for bottlenose dolphins range from 0.06 to 0.15 
animals/km2 in GulfCet II aerial surveys of the shelf and slope. 
However, the final adjusted density used in take calculations is 0.81 
animals/km\2\.

Reporting

    As in the current IHA, NMFS proposes to continue to require Eglin 
AFB to submit an annual report on the results of the monitoring 
requirements. This annual report will be due within 30 days prior to 
the expiration of the current LOA. This report will then be used by 
NMFS to determine whether incidental takings by Eglin AFB from this 
activity continue to have a negligible impact on affected species and 
stocks of marine mammals. This report will include a discussion on the 
effectiveness of the mitigation in addition to the following 
information: (1) Date and time of each of the detonations; (2) a 
detailed description of the pre-test and post-test activities related 
to mitigating and monitoring the effects of explosives detonation on 
marine mammals and marine mammal populations; (3) the results of the 
monitoring program, including numbers by species/stock of any marine 
mammals noted injured or dead, presumably as a result of the detonation 
and numbers that may have been harassed due to undetected presence 
within the ZOI (NMFS and Eglin presume that if an area is determined to 
be clear of marine mammals and later, during post-event monitoring, 
marine mammals are found in the area, those marine mammals will be 
considered ``taken''); and (4) results of coordination with coastal 
marine mammal stranding networks.

Research

    Although Eglin AFB does not currently conduct independent Air Force 
monitoring efforts, Eglin AFB's Natural Resources Branch does 
participate in marine animal tagging and monitoring programs led by 
other agencies. The Natural Resources Branch also supports 
participation in annual surveys of marine mammals in the GOM with NOAA 
Fisheries. From 1999 to 2002, Eglin AFB's Natural Resources Branch 
participated in summer cetacean monitoring and research opportunities 
through a contract representative. The contractor participated in 
visual surveys in 1999 for cetaceans in GOM, photographic 
identification of sperm whales in the northeastern Gulf in 2001, and 
served as a visual observer during the 2000 Sperm Whale Pilot Study and 
the 2002 sperm whale Satellite-tag (S-tag) cruise. Support for these 
research efforts is anticipated to continue.
    Eglin AFB utilizes marine mammal stranding information to ascertain 
the effectiveness of its mitigation measures for offshore activities. 
Stranding data is collected and maintained for the Florida panhandle 
and Gulf-wide areas. This is undertaken through the establishment and 
maintenance of contacts with local, state, and regional stranding 
networks. Eglin AFB assists with stranding data collection by 
maintaining its own team of stranding personnel. In addition to simply 
collecting stranding data, various analyses are performed. Stranding 
events are tracked by year, season, and NMFS statistical zone, both 
Gulf-wide and on the coastline in proximity to Eglin AFB. Stranding 
data is combined with records of EGTTR mission activity in each water 
range and analyzed for any possible correlation. In addition to being 
used as a measure of the effectiveness of mission mitigation, stranding 
data can yield insight into the species composition of cetaceans in the 
region.

Endangered Species Act (ESA)

    NMFS issued a biological opinion regarding the effects of Eglin's 
PSW activity on ESA-listed species and critical habitat under the 
jurisdiction of NMFS. That biological opinion concluded that Eglin's 
PSW activity is not likely to jeopardize the continued existence of 
listed species or result in the destruction or adverse modification of 
critical habitat. On August 11, 2005, NMFS determined that issuance of 
an

[[Page 44009]]

annual authorization under section 101(a)(5) of the MMPA to Eglin AFB 
for this activity will not have effects beyond what was analyzed in 
2004 in the Biological Opinion. NMFS has preliminarily determined that 
the issuance of up to 5 LOAs to Eglin under these regulations (if 
implemented) would not have effects beyond what was analyzed in the 
2004 Biological Opinion. A copy of the Biological Opinion is available 
upon request (see ADDRESSES).

National Environmental Policy Act (NEPA)

    In December, 2003, Eglin AFB released a Draft PEA on the PSW 
activity. On April 22, 2004 (69 FR 21816), NMFS noted that Eglin AFB 
had prepared a Draft PEA for PSW activities and made this PEA available 
upon request. Eglin AFB updated the information in that PEA and issued 
a Final PEA and a Finding of No Significant Impact (FONSI) on the PSW 
activities.
    In accordance with NOAA Administrative Order 216-6 (Environmental 
Review Procedures for Implementing the National Environmental Policy 
Act, May 20, 1999), NMFS reviewed the information contained in Eglin 
AFB's Final PEA and determined that the Eglin AFB's PEA accurately and 
completely describes the proposed action alternative, reasonable 
additional alternatives, and the potential impacts on marine mammals, 
endangered species, and other marine life that could be impacted by the 
preferred alternative and the other alternatives. Based on this review 
and analysis, NMFS adopted Eglin's PEA under 40 CFR 1506.3 and made its 
own FONSI statement on July 25, 2005. Therefore, it was not necessary 
to issue a new EA, supplemental EA or an environmental impact statement 
for the issuance of an IHA to Eglin AFB to take marine mammals 
incidental to this activity. NMFS will review its determination as part 
of this rulemaking. A decision will be made prior to making a final 
determination on issuing a final rule for this activity. A copy of 
NMFS' FONSI for this activity is available upon request (see 
ADDRESSES). A paper copy of the Eglin AFB Programmatic EA for this 
activity is available by contacting either Eglin AFB or NMFS (see 
ADDRESSES).

Preliminary Determinations

    NMFS has preliminarily determined that, based on the information 
provided in Eglin's application, the Final PEA and this document, the 
total taking of marine mammals by PSW activities will have a negligible 
impact on the affected species or stocks over the 5-year period of take 
authorizations. While no take by serious injury or death is anticipated 
during this period, limited mortality is proposed to be authorized in 
the event that the extensive mitigation measures are not totally 
successful. However, even if serious injury or mortality were to occur, 
the total taking still would have no more than a negligible impact on 
the affected marine mammal species or stocks.
    In addition, the potential for temporary or permanent hearing 
impairment is low and will have the least practicable adverse impact on 
the affected species or stocks through the incorporation of the 
mitigation measures mentioned in this document. The information 
contained in Eglin's EA and incidental take application support NMFS' 
finding that impacts will be mitigated by implementation of a 
conservative safety range for marine mammal exclusion, incorporation of 
aerial and shipboard survey monitoring efforts in the program both 
prior to and after detonation of explosives, and delay/postponement/
cancellation of detonations whenever marine mammals or other specified 
protected resources are either detected within the safety zone or may 
enter the safety zone at the time of detonation or if weather and sea 
conditions preclude adequate aerial surveillance. Since the taking will 
not result in more than the incidental harassment of certain species of 
marine mammals, will have only a negligible impact on these stocks, 
will not have an unmitigable adverse impact on the availability of 
these stocks for subsistence uses (as there are no known subsistence 
uses of marine mammal stocks in the GOM), and, through implementation 
of required mitigation and monitoring measures, will result in the 
least practicable adverse impact on the affected marine mammal stocks, 
NMFS has preliminarily determined that the requirements of section 
101(a)(5)(A) of the MMPA have been met and this proposed rule can be 
issued.

Request for Information

    NMFS requests interested persons to submit comments, information, 
and suggestions concerning Eglin's application and this proposed rule. 
Prior to submitting comments, NMFS recommends reviewers of this 
document read the responses to comments made previously (70 FR 48675, 
August 19, 2005) for this action as NMFS does not plan to address these 
issues further without the submission of additional scientific 
information or reasoning supporting the comment.
    Comments sent via e-mail, including all attachments, must not 
exceed a 10-megabyte file size. To submit comments through the Federal 
e-Rulemaking Portal, go to http://www.regulations.gov and follow the 
instructions for submitting comments. To help us process and review 
comments more efficiently, please use only one method.
    A copy of the application containing a list of references used in 
this document may be obtained by writing to NMFS (see ADDRESSES), by 
telephoning the contact listed under FOR FURTHER INFORMATION CONTACT, 
or at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. A paper copy 
of Eglin AFB's Final Programmatic Environmental Assessment (Final PEA) 
is available by writing to the Department of the Air Force (see 
ADDRESSES).

Classification

    This action has been determined to be not significant for purposes 
of Executive Order 12866.
    The Chief Counsel for Regulation of the Department of Commerce has 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities 
since it would apply only to the U.S. Air Force, a federal agency. It 
may affect a small number of contractors providing services related to 
reporting the impact of the activity on marine mammals, some of whom 
may be small businesses, but the number involved would not be 
substantial. Further, since the monitoring and reporting requirements 
are what would lead to the need for their services, the economic impact 
on them would be beneficial. Because of this certification, a 
regulatory flexibility analysis is not required and none has been 
prepared.

List of Subjects in 50 CFR Part 216

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

    Dated: July 27, 2006.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
    For reasons set forth in the preamble, 50 CFR part 216 is proposed 
to be amended as follows:

[[Page 44010]]

PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE 
MAMMALS

    1. The authority citation for part 216 continues to read as 
follows:

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

    2. Subpart V is added and reserved.
    3. Subpart W is added to part 216 to read as follows:

Subpart W--Taking Marine Mammals Incidental to Conducting Precision 
Strike Weapon Missions in the Gulf of Mexico

Sec.
216.250 Specified activity and specified geographical region.
216.251 Effective dates.
216.252 Permissible methods of taking.
216.253 Prohibitions.
216.254 Mitigation.
216.255 Requirements for monitoring and reporting.
216.256 Applications for Letters of Authorization.
216.257 Letter of Authorization.
216.258 Renewal of Letters of Authorization.
216.259 Modifications to Letters of Authorization.

Subpart W--Taking Marine Mammals Incidental to Conducting Precision 
Strike Weapon Missions in the Gulf of Mexico


Sec.  216.250  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the incidental taking 
of those marine mammal species specified in paragraph (b) of this 
section by U.S. citizens engaged in U.S. Air Force Precision Strike 
Weapon missions within the Eglin Air Force Base Gulf Test and Training 
Range within the northern Gulf of Mexico. The authorized activities as 
specified in a Letter of Authorization issued under Sec. Sec.  216.106 
and 216.257 include, but are not limited to, activities associated with
    (1) The Joint Air-to-Surface Stand-off Missile (JASSM) exercise for 
a maximum of two live shots (single) and 4 inert shots (single) 
annually and
    (2) The small-diameter bomb (SDB) exercise for a maximum of six 
live shots a year, with two of the shots occurring simultaneously and a 
maximum of 12 inert shots, with up to two occurring simultaneously.
    (b) The incidental take by Level A harassment, Level B harassment, 
or mortality of marine mammals under the activity identified in this 
section is limited to the following species: Atlantic bottlenose 
dolphins (Tursiops truncatus), Atlantic spotted dolphins (Stenella 
frontalis), dwarf sperm whales (Kogia simus) and pygmy sperm whale 
(Kogia breviceps).


Sec.  216.251  Effective dates.

    Regulations in this subpart are effective from 30 days after the 
date of publication of the final rule in the Federal Register until 5 
years and 30 days after the date of publication of the final rule in 
the Federal Register.


Sec.  216.252  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec. Sec.  
216.106 and 216.257, the Holder of the Letter of Authorization may 
incidentally, but not intentionally, take marine mammals by Level A and 
Level B harassment, and mortality within the area described in Sec.  
216.250(a), provided the activity is in compliance with all terms, 
conditions, and requirements of these regulations and the appropriate 
Letter of Authorization.
    (b) The taking of marine mammals under a Letter of Authorization is 
limited to the species listed in Sec.  216.252(b) and is limited to a 
total of 1 mortality, 2 takes by Level A harassment, and 53 takes by 
Level B harassment annually.


Sec.  216.253  Prohibitions.

    Notwithstanding takings contemplated in Sec.  216.250 and 
authorized by a Letter of Authorization issued under Sec. Sec.  216.106 
and 216.257, no person in connection with the activities described in 
Sec.  216.250 shall:
    (a) Take any marine mammal not specified in
    Sec.  216.250(b);
    (b) Take any marine mammal specified in Sec.  216.250(b) other than 
by incidental, unintentional Level A or Level B harassment or 
mortality;
    (c) Take a marine mammal specified in Sec.  216.250(b) if such 
taking results in more than a negligible impact on the species or 
stocks of such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of these regulations or a Letter of Authorization issued 
under Sec. Sec.  216.106 and 216.257.


Sec.  216.254  Mitigation.

    The activity identified in Sec.  216.250(a) must be conducted in a 
manner that minimizes, to the greatest extent practicable, adverse 
impacts on marine mammals and their habitats. When conducting 
operations identified in Sec.  216.250(a) under a Letter of 
Authorization, the following mitigation measures must be implemented:
    (a)(1) For the JASSM, the holder of the Letter of Authorization 
must establish and monitor a safety zone for marine mammals with a 
radius of 2.0 nm (3.7 km) from the center of the detonation and a 
buffer zone with a radius of 1.0 nm (1.85 km) radius from the outer 
edge of the safety zone.
    (2) For the SDB, the holder of the Letter of Authorization must 
establish and monitor a safety for marine mammals with a radius of no 
less than 5 nm (9.3 km) for single bombs and 10 nm (18.5 km) for double 
bombs and a buffer zone from the outer edge of the safety zone with a 
radius of at least 2.5 nm (4.6 km) for single bombs and 5 nm (18.5 km) 
for double bombs.
    (b) When detonating explosives:
    (1) If any marine mammals are observed within the designated safety 
zone prescribed in condition (a)(1) of this section, or within the 
buffer zone prescribed in condition (a)(2) of this section that are on 
a course that will put them within the safety zone prior to JASSM or 
SDB launch, the launching must be delayed until all marine mammals are 
no longer within the designated safety zone.
    (2) If any marine mammals are detected in the buffer zone and 
subsequently cannot be reacquired, the mission launch will not continue 
until the next verified location is outside of the safety zone and the 
animal is moving away from the mission area.
    (3) If weather and/or sea conditions preclude adequate aerial 
surveillance for detecting marine mammals, detonation must be delayed 
until adequate sea conditions exist for aerial surveillance to be 
undertaken. Adequate sea conditions means the sea state does not exceed 
Beaufort sea state 3.5 (i.e., whitecaps on 33 to 50 percent of surface; 
0.6 m (2 ft) to 0.9 m (3 ft) waves), the visibility is 5.6 km (3 nm) or 
greater, and the ceiling is 305 m (1,000 ft) or greater.
    (4) To ensure adequate daylight for pre- and post-detonation 
monitoring, mission launches may not take place earlier than 2 hours 
after sunrise, and detonations may not take place later than 2 hours 
prior to sunset, or whenever darkness or weather conditions will 
preclude completion of the post-test survey effort described in Sec.  
216.255.
    (5) If post-detonation surveys determine that a serious injury or 
lethal take of a marine mammal has occurred, the test procedure and the 
monitoring methods must be reviewed with the National Marine Fisheries 
Service and appropriate changes must be made prior to conducting the 
next mission detonation.
    (6) Mission launches must be delayed if aerial or vessel monitoring 
programs

[[Page 44011]]

described under Sec.  216.255 cannot be fully carried out.


Sec.  216.255  Requirements for monitoring and reporting.

    (a) The Holder of the Letter of Authorization issued pursuant to 
Sec. Sec.  216.106 and 216.257 for activities described in Sec.  
216.250(a) is required to conduct the monitoring and reporting measures 
specified in this section and any additional monitoring measures 
contained in the Letter of Authorization.
    (b) The Holder of the Letter of Authorization is required to 
cooperate with the National Marine Fisheries Service, and any other 
Federal, state or local agency monitoring the impacts of the activity 
on marine mammals. Unless specified otherwise in the Letter of 
Authorization, the Holder of the Letter of Authorization must notify 
the Director, Office of Protected Resources, National Marine Fisheries 
Service, or designee, by letter or telephone (301-713-2289), at least 2 
weeks prior to any modification to the activity identified in Sec.  
216.250(a) that has the potential to result in the mortality or Level A 
or Level B harassment of marine mammals that was not identified and 
addressed previously.
    (c) The Holder of this Authorization must:
    (1) Designate qualified on-site individual(s) to record the effects 
of mission launches on marine mammals that inhabit the northern Gulf of 
Mexico;
    (2) Have on-site individuals, approved in advance by the National 
Marine Fisheries Service, to conduct the mitigation, monitoring and 
reporting activities specified in these regulations and in the Letter 
of Authorization issued pursuant to Sec.  216.106 and Sec.  216.257.
    (3) Conduct aerial surveys to reduce impacts on protected species. 
The aerial survey/monitoring team will consist of two experienced 
marine mammal observers, approved in advance by the Southeast Region, 
National Marine Fisheries Service. The aircraft will also have a data 
recorder who would be responsible for relaying the location, the 
species if possible, the direction of movement, and the number of 
animals sighted.
    (4) Conduct shipboard monitoring to reduce impacts to protected 
species. Trained observers will conduct monitoring from the highest 
point possible on each mission or support vessel(s). The observer on 
the vessel must be equipped with optical equipment with sufficient 
magnification (e.g., 25X power ``Big-Eye'' binoculars.
    (d) The aerial and shipboard monitoring teams will maintain proper 
lines of communication to avoid communication deficiencies. The 
observers from the aerial team and operations vessel will have direct 
communication with the lead scientist aboard the operations vessel.
    (e) Pre-mission Monitoring: Approximately 5 hours prior to the 
mission, or at daybreak, the appropriate vessel(s) would be on-site in 
the primary test site near the location of the earliest planned mission 
point. Observers onboard the vessel will assess the suitability of the 
test site, based on visual observation of marine mammals and overall 
environmental conditions (visibility, sea state, etc.). This 
information will be relayed to the lead scientist.
    (f) Three Hours Prior to Mission:
    (1) Approximately three hours prior to the mission launch, aerial 
monitoring will commence within the test site to evaluate the test site 
for environmental suitability. Evaluation of the entire test site would 
take approximately 1 to 1.5 hours. The aerial monitoring team will 
begin monitoring the safety zone and buffer zone around the target 
area.
    (2) Shipboard observers will monitor the safety and buffer zone, 
and the lead scientist will enter all marine mammal sightings, 
including the time of sighting and the direction of travel, into a 
marine animal tracking and sighting database.
    (g) One to 1.5 Hours Prior to Mission Launch:
    (1) Depending upon the mission, aerial and shipboard viewers will 
be instructed to leave the area and remain outside the safety area. The 
aerial team will report all marine animals spotted and their directions 
of travel to the lead scientist onboard the vessel.
    (2) The shipboard monitoring team will continue searching the 
buffer zone for protected species as it leaves the safety zone. The 
surface vessels will continue to monitor from outside of the safety 
area until after impact.
    (h) Post-mission monitoring:
    (1) The vessels will move into the safety zone from outside the 
safety zone and continue monitoring for at least two hours, 
concentrating on the area down current of the test site.
    (2) The Holder of the Letter of Authorization will closely 
coordinate mission launches with marine animal stranding networks.
    (3) The monitoring team will document any dead or injured marine 
mammals and, if practicable, recover and examine any dead animals.
    (i) Activities related to the monitoring described in this section 
may include retention of marine mammals without the need for a separate 
scientific research permit.
    (j) In accordance with provisions in Sec.  216.258(b)(2), the 
Holder of the Letter of Authorization must conduct the research 
required under the Letter of Authorization.
    (k) Reporting
    (1) Unless specified otherwise in the Letter of Authorization, the 
Holder of the Letter of Authorization must submit an annual report to 
the Director, Office of Protected Resources, National Marine Fisheries 
Service, no later than 60 days prior to the date of expiration of the 
Letter of Authorization. This report must contain all information 
required by these regulations and the Letter of Authorization.
    (2) The final comprehensive report on all marine mammal monitoring 
and research conducted during the period of these regulations must be 
submitted to the Director, Office of Protected Resources, National 
Marine Fisheries Service at least 240 days prior to expiration of these 
regulations or 240 days after the expiration of these regulations if 
new regulations will not be requested.


Sec.  216.256  Applications for Letters of Authorization.

    To incidentally take marine mammals pursuant to these regulations, 
the U.S. citizen (as defined at Sec.  216.103 ) conducting the activity 
identified in Sec.  216.250(a) must apply for and obtain either an 
initial Letter of Authorization in accordance with Sec. Sec.  216.106 
and 216.257 or a renewal under Sec.  216.258.


Sec.  216.257  Letter of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the period of validity of this 
subpart, but must be renewed annually subject to annual renewal 
conditions in Sec.  216.258.
    (b) Each Letter of Authorization will set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact on the 
species, its habitat, and on the availability of the species for 
subsistence uses; and
    (3) Requirements for monitoring and reporting.
    (c) Issuance and renewal of the Letter of Authorization will be 
based on a determination that the total number of marine mammals taken 
by the activity as a whole will have no more than a negligible impact 
on the species or stock of affected marine mammals.
    (d) Except for the initial Letter of Authorization, notice of 
issuance or

[[Page 44012]]

denial of a Letter of Authorization will be published in the Federal 
Register within 30 days of a determination.


Sec.  216.258  Renewal of Letters of Authorization.

    (a) A Letter of Authorization issued under Sec.  216.106 and Sec.  
216.257 for the activity identified in Sec.  216.250(a) will be renewed 
annually upon:
    (1) Notification to the National Marine Fisheries Service that the 
activity described in the application submitted under Sec.  216.256 
will be undertaken and that there will not be a substantial 
modification to the described work, mitigation or monitoring undertaken 
during the upcoming 12 months;
    (2) Timely receipt of the monitoring report required under
    Sec.  216.255(b), and the Letter of Authorization, which has been 
reviewed and accepted by the National Marine Fisheries Service; and
    (3) A determination by the National Marine Fisheries Service that 
the mitigation, monitoring and reporting measures required under Sec.  
216.254 and the Letter of Authorization issued under Sec. Sec.  216.106 
and 216.257, were undertaken and will be undertaken during the upcoming 
annual period of validity of a renewed Letter of Authorization.
    (b) If a request for a renewal of a Letter of Authorization issued 
under Sec. Sec.  216.106 and 216.258 indicates that a substantial 
modification to the described work, mitigation, monitoring or research 
undertaken during the upcoming season will occur, the National Marine 
Fisheries Service will provide the public a period of 30 days for 
review and seek comment on:
    (1) New cited information and data that indicates that the 
determinations made for promulgating these regulations are in need of 
reconsideration, and
    (2) Proposed changes to the mitigation, monitoring and research 
requirements contained in these regulations or in the current Letter of 
Authorization.


Sec.  216.259  Modifications to Letters of Authorization.

    (a) Except as provided in paragraph (b) of this section, no 
substantive modification (including withdrawal or suspension) to a 
Letter of Authorization issued pursuant to Sec. Sec.  216.106 shall be 
made until after notification and an opportunity for public comment has 
been provided. For purposes of this paragraph, a renewal of a Letter of 
Authorization under Sec.  216.258, without modification (except for the 
period of validity), is not considered a substantive modification.
    (b) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species 
or stocks of marine mammals specified in Sec.  216.250(b), a Letter of 
Authorization issued pursuant to Sec. Sec.  216.106 and 216.257 may be 
substantively modified without prior notification and an opportunity 
for public comment. Notification will be published in the Federal 
Register within 30 days subsequent to the action.
[FR Doc. E6-12556 Filed 8-2-06; 8:45 am]
BILLING CODE 3510-22-S