[Federal Register Volume 71, Number 226 (Friday, November 24, 2006)]
[Rules and Regulations]
[Pages 67810-67824]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-9380]



[[Page 67810]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 060629183-6289-02; 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.

ACTION: Final rule.

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SUMMARY: NMFS, upon application from Eglin Air Force Base (Eglin AFB), 
is issuing regulations to govern the unintentional takings of marine 
mammals incidental to conducting Precision Strike Weapons (PSW) testing 
and training in the Gulf of Mexico (GOM). Issuance of regulations and 
Letters of Authorization (LOAs) under these regulations governing the 
unintentional incidental takes of marine mammals in connection with 
particular activities is required by the Marine Mammal Protection Act 
(MMPA) when the Secretary of Commerce (Secretary), after notice and 
opportunity for comment, finds, as here, that such takes will have a 
negligible impact on the species and stocks of marine mammals and will 
not have an unmitigable adverse impact on the availability of them for 
subsistence uses. These regulations do not authorize Eglin AFB's PSW 
activities as such authorization is not within the jurisdiction of the 
Secretary. Rather, NMFS' regulations together with a Letter of 
Authorization (LOA) authorize the unintentional incidental take of 
marine mammals in connection with this activity and prescribe methods 
of taking and other means of effecting the least practicable adverse 
impact on marine mammal species and their habitat, and on the 
availability of the species for subsistence uses.

DATES: Effective from December 26, 2006 through December 27, 2011.

ADDRESSES: A copy of the application containing a list of references 
used in this document may be obtained by writing to Mr. 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, by telephoning the contact 
listed under FOR FURTHER INFORMATION CONTACT, or at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm
    Documents cited in this 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.
    An authorization 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].

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

[[Page 67811]]

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 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.
    On November 24, 2003, the National Defense Authorization Act for 
Fiscal Year 2004 (NDAA; Public Law 108-136) became law. Included in the 
NDAA were amendments to Section 101(a)(5) of the MMPA that apply where 
a ``military readiness activity'' is concerned. The term ``military 
readiness activity'' is defined in Public Law 107-314 (16 U.S.C. 703 
note) to include all training and operations of the Armed Forces that 
relate to combat; and the adequate and realistic testing of military 
equipment, vehicles, weapons and sensors for proper operation and 
suitability for combat use. Therefore, pursuant to section 315(b) of 
the NDAA, NMFS has determined that the test and training exercises 
proposed by Eglin AFB are considered to be a ``military readiness 
activity.''

Comments and Responses

    On August 3, 2006 (71 FR 44001), NMFS published a proposed rule to 
authorize the taking of marine mammals incidental to Eglin AFB's PSW 
activities. During the 30-day public comment period, comments were 
received from the Marine Mammal Commission (Commission), the Humane 
Society of the United States (HSUS) and a member of the public.
    Comment 1: The member of the public is opposed ``to the killing and 
murder of marine mammals for the testing of weapons.'' This person 
recommends that these weapons be tested in other places which have 
already been reduced to rubble by U.S. weapons.
    Response: Section 101(a)(5)(A) of the MMPA authorizes the 
incidental, but not intentional, harassment, injury, or mortality of 
marine mammals provided the taking is having a negligible impact on 
affected species and stocks of marine mammals, is at the lowest level 
practicable (i.e., through mitigation), and monitoring and reporting of 
take is conducted. As provided in this document, Eglin AFB has shown 
that few or no marine mammals will be seriously injured or killed as a 
result of Eglin AFB's PSW activities. As NMFS has made a determination 
that this activity will have a negligible impact on marine mammals, 
promulgation of these regulations and issuance of the LOA is warranted. 
In addition, NMFS believes that implementation of the monitoring and 
mitigation measures required in the regulations and subsequent LOAs 
will be effective in minimizing or avoiding serious injury or 
mortality.
    Comment 2: The HSUS noted that it would be extremely helpful if the 
Federal Register notice had contained a map indicating the location of 
the Eglin EGTTR.
    Response: NMFS posted Eglin AFB's application on its web site (see 
ADDRESSES) and noted in the Federal Register how that document could be 
accessed. Figure 1-1 of Eglin's application is a map indicating the 
target areas proposed for PSW activities.
    Comment 3: The HSUS does not understand why sperm whales are not 
included for potential taking since the range map for the species in 
the stock assessment report overlaps with that of both pygmy sperm 
whales and dwarf sperm whales. The NMFS needs to reconsider impacts to 
this endangered species.
    Response: Sperm whales in the GOM are located in waters of the 
continental slope, not in shallow continental shelf waters. For Eglin 
AFB, the PSW 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. As a result, 
sperm whales will not be affected by PSW activities.
    Comment 4: The HSUS notes that the FR notice does not specify the 
stock(s) of bottlenose dolphins that may be impacted by the PSW 
activity. The HSUS notes that given the location of the activity in 
water less than 200 ft (61 m) deep and from 15 to 24 nm (27.8 to 44.5 
km) offshore, the stocks most likely affected are the Northern Gulf of 
Mexico Continental Shelf Stock and the Northern Gulf of Mexico Coastal 
Stock. Both stocks should be considered likely to be impacted.
    Response: In the proposed Federal Register notice for Eglin's PSW 
activities, NMFS recommended readers reference Waring et al. (2006) for 
information on potentially impacted marine mammal stocks. Waring et al 
(2006) notes that the GOM Continental Shelf Stock may overlap with the 
GOM coastal stocks and the GOM oceanic stock in some areas and may be 
genetically indistinguishable from those stocks. To develop an average 
abundance estimate, data were collected from 1998 to 2001, and survey 
effort was pooled across all years. The best abundance estimate of 
bottlenose dolphins for continental shelf waters was 25,320 (CV=0.26) 
(Fulling et al. 2003). This estimate is considered the best estimate 
because these surveys have the most complete coverage of the species' 
habitat (Waring et al., 2006). The minimum population (pmin) for the 
northern GOM Continental Shelf stock is 20,414 bottlenose dolphins. 
Based on assumptions made by Waring et al.(2006), NMFS estimates that 
the potential biological removal (PBR) for the northern GOM Continental 
Shelf bottlenose dolphin stock is 204. Although no mortality has been 
observed in commercial fishing, this stock may be subject to incidental 
take resulting in serious injury or mortality (Waring et al., 2006).
    The northern GOM coastal stock has been divided into 3 stocks: 
eastern, northern and western. This stock is located from the shore (or 
bays) to the 20-m (66-ft) isobath. As the northern stock is distributed 
from 84[deg] West to the Mississippi River delta, PSW activities would 
affect only the northern coastal stock. Portions of the coastal stocks 
may co-occur with the northern GOM continental shelf stock and the bay, 
sound and estuary stock, the 20-m (66-ft) isobath generally corresponds 
to survey strata. The northern stock has an estimated population 
abundance of 4,191 animals (CV=0.21) with a pmin of 3,518 
(from estimates made in 1993). The PBR is unknown. A total of 1,377 
bottlenose dolphins were found stranded in the northern GOM from 1999 
through 2003. Of these, 73 or 5

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percent showed evidence of human interactions as the cause of death 
(e.g., gear entanglement, mutilation, gunshot wounds).
    Comment 5: The HSUS is concerned that there have been a high number 
of deaths of bottlenose dolphins along the Florida Panhandle (and the 
most heavily impacted stocks have not yet been identified). The 
relatively high number of bottlenose dolphin deaths that have occurred 
since 1990 raises a concern that not only are some of the stocks 
stressed, but they may even be in decline. Adding additional impacts 
from acoustic or physical trauma is something the stocks can ill 
afford.
    Response: Waring et al. (2006) describe several potential causes 
for impacts to bottlenose dolphin stocks in the GOM. These include the 
potential for takes in commercial fishing, disease and shootings. 
However, because Eglin AFB's PSW activities will take place only a few 
times a year, with no serious injury or mortality expected, Eglin's 
activities are unlikely to add to existing mortality levels. In 
addition, NMFS believes that impacts to bottlenose dolphins, and other 
marine mammals, will be minimized or avoided through implementation of 
the required mitigation and monitoring requirements. As a result, NMFS 
does not believe that authorizing the taking of bottlenose dolphins by 
Level B harassment will have more than a negligible impact on the 
affected dolphin stocks.
    Comment 6: The HSUS notes that NMFS has also considered a proposal 
by Eglin to conduct assault exercises that may also affect this 
bottlenose dolphin stock and cumulative impacts are not addressed.
    Response: NMFS has made determinations of negligible impact and 
issued IHAs to Eglin AFB for the taking of marine mammals incidental to 
air-to-surface gunnery exercises (71 FR 27695, May 12, 2006), naval 
explosive ordnance exercises at Santa Rosa Island (70 FR 51341, August 
30, 2005; 71 FR 35870, June 22, 2006) and previously for the PSW 
activity (70 FR 48675, August 19, 2005). Cumulative impacts from Eglin 
AFB's military activities on bottlenose dolphins (and other marine 
mammals) in addition to cumulative impacts from shipping, oil and gas 
exploration and production and commercial fishing on marine mammals 
have been addressed in several PEAs developed for Eglin AFB activities 
and adopted by NMFS for those IHAs mentioned above. Findings of No 
Significant Impact (FONSIs) have been made by Eglin AFB and NMFS as a 
result of those environmental studies. In contrast to the potential 
serious injury and mortality from commercial fishing and ship strikes, 
and Level B harassment from oil and gas seismic exploration, NMFS 
believes that the cumulative impact from Eglin AFB's PSW exercises is 
expected to be negligible. For Eglin AFB, cumulative impacts on marine 
mammals from all activities indicate that no marine mammals would be 
killed during a single year of activities, that 6 dolphins may be 
injured and 480 dolphins may be harassed annually. Additionally, NMFS 
anticipates that with the required mitigation measures, these numbers 
will be lower.
    Comment 7: The Commission recommends NMFS grant the requested 
authorizations provided that Eglin AFB conduct all practicable 
monitoring and mitigation measures to afford the potentially affected 
marine mammal species adequate protection from serious and lethal 
injury.
    Response: The monitoring effort for PSW is similar to that used in 
previous ship-shock actions wherein detonations of 10,000 lbs (4536 kg) 
were used without any serious injury or mortality being detected during 
extensive follow-up monitoring. Eglin AFB has calculated the potential 
for a marine mammal to be seriously injured or killed as a result of 
PSW activities (see Tables 2,3 and 4 later in this document). As noted, 
while it is unlikely that a marine mammal will be seriously injured or 
killed, a small potential exists that a marine mammal may be missed 
during the aerial and vessel monitoring program.
    Comment 8: The HSUS notes that post-mission monitoring will be 
conducted by vessels only, which will roam the area for 2 hours. In 
order to determine impact from exercises, this post-exercise monitoring 
relies on animals floating immediately or resurfacing within a few 
days, if mortally wounded; and then being found by cooperating 
stranding networks. The HSUS notes that stranding networks do not 
regularly survey the coastline for carcasses and, when discovered, they 
are often in a state of decomposition such that the cause of death is 
not readily ascertained.
    Response: While Eglin AFB does not routinely monitor Eglin AFB 
shoreline for strandings, they have a marine animal stranding program 
that responds to strandings when alerted by personnel. In addition, 
frequent offshore activity by Eglin AFB personnel will alert the 
network to any injured or dead marine mammals observed. However, NMFS 
believes that, if a marine mammal was seriously injured or killed as a 
result of PSW activities, a mortality would occur very close to the 
detonation (see Table 1) and would be observed during the subsequent 
post-event monitoring. The HSUS is correct that often these animals are 
decomposed and the cause of death cannot be determined.
    Currents and counter-currents both factor into where a marine 
mammal might eventually resurface if mortally wounded as a result of 
PSW activities and the animal sinks prior to detection. When 
decomposition advances, an animal that initially sank would resurface. 
Depending upon the amount of time between sinking and subsequent 
surfacing, the animal may be moved by surface and/or subsurface 
currents in a direction different from where one would surmise it would 
surface based solely on surface currents. Once the animal surfaces, 
wind and surface currents (which might not be the same direction) would 
affect where a marine mammal might eventually be located when a follow-
up survey was initiated. As this could mean a very large area for 
accurate post-detonation surveying, this survey effort would require an 
aircraft. Also, a dolphin that surfaced a significant distance from the 
detonation site would be indistinguishable from a dolphin that died 
from other causes. To recover the animal for necropsy would require a 
support vessel. Considering the low probability of a marine mammal 
being seriously injured or killed as a result of Eglin AFB's PSW 
activities, the high cost of large scale aerial and vessel surveys, and 
the low likelihood that a link between the cause of the dolphin's death 
and PSW activities could be made after several days underwater, NMFS 
does not believe lengthy post-event monitoring is warranted.
    Comment 9: The HSUS states that because this area has recently been 
subject to mortality events, carcasses seen along the beaches may not 
necessarily be linked to the Air Force activity unless necropsies are 
done. This is something that will not be possible for most carcasses. 
Thus, even if the cause of death is related to Air Force activities, it 
may remain undetected. However, the FR notice states that death is 
unlikely because of the precautionary nature of the mitigation 
measures. The HSUS does not agree that the mitigation measures are 
precautionary.
    Response: While the stranding network monitoring the beaches of the 
Florida Panhandle or Eglin personnel monitoring Eglin AFB beaches may 
recover a deceased marine mammal, it is true that cause-and-effect may 
be difficult after an animal spends a significant time at sea. However,

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animals sighted during the 2-hour post-event monitoring would be 
available for possible rescue and rehabilitation or euthanasia and/or 
necropsy by a qualified individual.
    NMFS believes that the mitigation measures, which are designed to 
detect marine mammals prior to detonation and preventing subsequent 
potential injury or mortality are the best that can be successfully 
implemented in view of the need to also ensure the safety of the 
monitoring teams (see text for details). However, post-event 
activities, such as determining a cause of mortality are considered 
monitoring measures and do not affect the actual taking of marine 
mammals.
    Comment 10: The HSUS notes that the Federal Register notice states 
there will be a buffer zone of 1.0 nm (1.8 km) established outside the 
zone of influence, which is stated to be 2.0 nm (3.7 km) for the JASSM 
or 5-10 nm (9.3-18.5 km) for the SDB with a buffer zone of 2.5 - 5 nm 
(4.6-9.3 km). However, the Federal Register notice acknowledges that 
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. This is not acceptable. Why bother having a 
mitigation plan if part of the plan is to obviate it if it seems 
impractical?
    Response: Because visual observation is the primary mitigation 
technique for PSW tests, mitigation effectiveness is affected by the 
distance of observers from the target. Protected species observers will 
survey from inside the Zone of Influence (ZOI) until 1 to 1.5 hours 
before weapon launch, depending on the specific type of test. At this 
time, observers will be required to move outside the ZOI/safety zone. 
This is a mandatory requirement directed by Air Force safety policy, 
and applies to Air Force personnel as well as civilian contracted 
observers. Both the JASSM and SDB are precision-guided munitions. 
However, due in part to the long distance from which these weapons are 
potentially launched (40 to 200 nautical miles), slight errors in 
flight trajectory, though not expected, could jeopardize the life of 
anyone within the safety zone. In addition to Air Force safety policy, 
the MMPA as amended by the NDAA requires the Secretary of Commerce to 
consider personnel safety when making incidental take determinations 
for military readiness activities.
    Aerial observers will leave the area 1 to 1.5 hours before weapon 
launch. However, ship-based observers will continue to monitor for 
protected species from the edge of the safety zone, up to the time of 
impact. The safety zone is larger for the SDB due to differences in 
flight characteristics. Therefore, observers may be farther from the 
target during SDB tests than during JASSM tests.
    Comment 11: The HSUS notes that there are two types of monitoring: 
aerial and shipboard. Aerial monitoring will occur using observers 
experienced in marine mammal surveying and familiar with the species 
that may occur in the area. It is not stated whether these personnel 
will be NMFS staff or how they might be ``experienced'' in survey 
methodology and marine mammal species identification, especially in 
light of the fact that identifying pygmy from dwarf sperm whales is 
difficult even for NMFS science center personnel.
    Response: NMFS does not provide marine mammal scientists to Eglin 
AFB for this, or any other project. Eglin AFB uses biologically-trained 
marine mammal observers, who are either employees or contract 
personnel, that have been approved in advance by NMFS. This is standard 
practice for all authorizations under section 101(a)(5) of the MMPA. It 
should be recognized that using NMFS scientists would reduce our 
agency's ability to conduct important marine mammal research. As a 
result, private companies have been established to train and provide 
trained biologists for activities such as this one.
    Next, it is widely recognized that it is difficult to identify some 
marine mammal species, generally referred to as being cryptic species. 
Usually, unidentified species are listed as such and then, later, 
tallied based on known stock proportions for the geographic area. 
However, when marine mammal observers are monitoring a safety or buffer 
zone, it is less critical that they be able to identify an animal by 
species; rather it is more important at the time that they are able to 
actually see the marine mammal.
    Comment 12: The HSUS notes that the Federal Register notice does 
not provide information on the type of aircraft used although the 
notice discusses turboprop craft, tanker aircraft and helicopters being 
involved in the exercise, none of which is well suited for this 
purpose.
    Response: The application notes that Eglin AFB plans to use 
helicopters for monitoring marine mammal safety zones for this 
activity. Helicopters are an effective means to monitor the relatively 
small safety zones for PSW activities. Alternatively, Eglin AFB will be 
authorized to use types of aircraft that are often used by marine 
mammal observers. While other aircraft (turboprop and tankers) may be 
used during the PSW exercise, they will not be used to monitor safety 
zones.
    Comment 13: The HSUS notes that with regard to shipboard 
monitoring, the Federal Register notice states that it will be from the 
highest point possible on the mission ship. The notice discusses barges 
that will be on-site. The highest point possible, may or may not be 
effective depending upon the size of the vessel involved but that is 
not specified and should be.
    Response: As barges are the target for PSW detonations, the target 
barge and nearby instrumentation barge (if one is used) are not an 
appropriate vessel for marine mammal observations. As a result of this 
comment, NMFS has clarified in the regulations that the marine mammal 
observation platform must provide observers a platform to see a major 
portion of the safety zone. It must also be mobile in order to observe 
the largest area possible. However, as this rule will be effective for 
a 5-year period, specifying the exact type of vessel Eglin AFB will use 
for the vessel monitoring program is not practical since it could 
preclude use of larger, more effective platforms.
    Comment 14: The HSUS notes the Federal Register notice states that 
the onboard observers will be familiar with the marine life of the 
area. This is not sufficiently specific to be reassuring. The small 
size of the marine mammals and the long dive time of sperm whales and 
dwarf and pygmy sperm whales makes them particularly difficult to 
observe, as is referenced throughout stock assessments and published 
literature.
    Response: As mentioned previously, sperm whales are unlikely to be 
encountered in the shallow, shelf waters off Eglin AFB. In this 
document, NMFS clarifies that Eglin AFB must use biologists trained in 
the at-sea detection of marine mammals.
    Comment 15: The HSUS believes that the mitigation measures should 
also include acoustic monitoring techniques.
    Response: NMFS does not believe that additional mitigation is 
warranted for this activity. Passive acoustic monitoring (PAM), which 
is designed to detect vocalizing marine mammals, can be effective when 
safety zones are significantly large so that visual monitoring 
effectiveness might be compromised. In this case, Eglin AFB has 
implemented an aerial monitoring program that is believed to be more 
effective than using PAM because of increased visibility of marine 
mammals in the shallow water areas Additionally, when using PAM in 
shallow water areas with relatively small safety zones it is difficult 
to determine whether the

[[Page 67814]]

marine mammal is actually within the safety zone due to reflection and 
refraction of the acoustic signal.
    Comment 16: The HSUS believes that extended monitoring (of the 
exercise) by skilled observers is critical in highly mobile species 
which often have long dive times.
    Response: NMFS agrees that skilled marine mammal observers are 
critical for detecting marine mammals within a safety zone and delaying 
detonations (in this case the launch) until the marine mammal(s) depart 
from the safety zone. The length of time for marine mammal observations 
depends on the type and weight of the explosive which influences the 
size of the safety zone, as described later in this document. These 
observation times are sufficient to ensure that a marine mammal is 
detected prior to detonation.
    Comment 17: The Commission recommends that NMFS cooperate with 
Eglin AFB to develop a long-term strategy to monitor the abundance and 
distribution of marine mammals in the subject activity area to ensure 
that the proposed activity is not having any population-level effects 
on marine mammals over the 5 years that the regulations are in effect. 
The Commission would be pleased to assist with the development of such 
a strategy.
    Response: While NMFS and Eglin would be pleased to discuss such a 
monitoring strategy with the Commission, it is unclear whether a 
monitoring program could be designed that would be able to make a 
determination that the injury of approximately 6 dolphins and an 
additional 480 that may be harassed by all Eglin AFB activities was 
having population level impacts. As NMFS has been unable to identify 
mortality levels in the GOM from commercial fishing, shipping, and 
pollution (Waring et al., 2006), it is unlikely that Level B harassment 
by Eglin's military-readiness activities can be empirically determined 
to be more than negligible, either individually or cumulatively. 
Finally, while monitoring the impacts that an activity might have on 
marine mammal stocks is the responsibility of an LOA applicant, 
undertaking studies on the distribution and abundance of these stocks 
is the responsibility of NMFS and other agencies. To the extent that 
these studies are underfunded does not mean that that responsibility 
should be transferred to LOA holders.

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 AFB'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 mortality and serious 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.

[[Page 67815]]

Explosive Criteria and Thresholds for Impact of Noise on Marine Mammals

    Criteria and thresholds that are the basis of the analysis of PSW 
noise impacts to cetaceans were initially used in U.S. Navy's 
environmental impact statements (EISs) for ship shock trials of the 
SEAWOLF submarine and the USS WINSTON S. CHURCHILL vessel (DON, 1998; 
DON, 2001) and accepted by NMFS as representing the best science 
available (see 66 FR 22450, May 4, 2001). With a single exception 
mentioned in this document, NMFS believes that the criteria developed 
for the shock trials represent the best science available. The 
following sections summarize the information contained in those 
actions.
Criteria and Thresholds: Lethality
    The criterion for mortality for marine mammals used in the 
CHURCHILL Final EIS is 'onset of severe lung injury.' This is 
conservative in that it corresponds to a 1 percent chance of mortal 
injury, and yet any animal experiencing onset severe lung injury is 
counted as a lethal take. The threshold is stated in terms of the 
Goertner (1982) modified positive impulse with value ``indexed to 31 
psi-ms.'' Since the Goertner approach depends on propagation, source/
animal depths, and animal mass in a complex way, the actual impulse 
value corresponding to the 31-psi-ms index is a complicated 
calculation. The acoustic threshold is derived from:
    I1% = 42.9 (M/34)1/3 psi-ms,
    where M is animal mass in kg. Again, to be conservative, CHURCHILL 
used the mass of a calf dolphin (at 12.2 kg), so that the threshold 
index is 30.5 psi-ms.
Criteria and Thresholds: Injury (Level A Harassment)
    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 microPa\2\-s. (Note: 
EFD is the time integral of the squared pressure divided by the 
impedance in values of dB re 1 microPa\2\-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).
Criteria and Thresholds: Non-injurious Impacts (Level B Harassment)
    Marine mammals may also be harassed due to noise from PSW missions 
involving high explosive detonations in the EGTTR. The CHURCHILL 
criterion for non-injurious harassment from detonations, as established 
through NMFS' incidental take rulemaking (see 66 FR 22450, May 4, 
2001), is temporary (auditory) threshold shift (TTS), which is a 
slight, recoverable loss of hearing sensitivity (DoN, 2001). The 
criterion for TTS used in this document is 182 dB re 1 microPa\2\-s 
maximum EFD level in any 1/3-octave band at frequencies above 100 Hz 
for all toothed whales (e.g., sperm whales, beaked whales, dolphins). 
(Note: 1/3-octave band is the EFD in a 1/3-octave frequency band; the 
1/3 octave selected is the hearing range at which the affected species' 
hearing is believed to be most sensitive.) A 1/3-octave band above 10 
Hz is used for impact assessments on all baleen whales, but those 
species do not inhabit the affected environment of this project.
    The CHURCHILL rulemaking also established a second criterion for 
estimating TTS threshold: 12 psi. The appropriate application of this 
second TTS criterion is currently under debate, as this 12-psi 
criterion was originally established for estimating the impact of a 
10,000-lb (4536-kg) explosive to be employed for the Navy's shock 
trial. It was introduced to provide a more conservative safety zone for 
TTS when the explosive or the animal approaches the sea surface (for 
which cases the explosive energy is reduced but the peak pressure is 
not).
    For large explosives (2000 to 10,000 lbs (907-4536 kg)) and the 
explosives and/or the mammals not too close to the surface, the TTS 
impact zones for these two TTS criteria are approximately the same. 
However, for small detonations, some acousticians contend the ranges 
for the two TTS thresholds may be quite different, with ranges for the 
peak pressure threshold several times greater than those for energy. In 
its application, Eglin AFB endorsed an approach, currently being 
developed by the Navy, for appropriately ``scaling'' the peak pressure 
threshold, in order to more accurately estimate TTS for small shots 
while preserving the safety feature provided by the peak pressure 
threshold. As such, in its application, Eglin AFB requested the energy-
based criterion for TTS, 182 dB re 1 microPa\2\-s (maximum EFD level in 
any 1/3-octave band), be used alone to conservatively estimate the zone 
in which non-injurious (Level B) harassment of marine mammals may 
occur. NMFS acousticians have reviewed the scientific basis for this 
proposal and agree, in part, with the statements made by Eglin AFB that 
the pressure criterion of 12 psi is not fully supportable for small 
charges or when either the charge or the recipient are at the surface. 
The model used in CHURCHILL assumed the detonation occurred in deep 
water with the charge placed below 318 ft (100 m) in depth, and that 
the bottom depth is at least 20 times the detonation depth. In 
contrast, in PSW missions, both the detonation and the recipient will 
be near the surface in relatively shallow water. Therefore, although 
this issue remains under review by NMFS and the Navy for future Navy 
actions involving small net weight explosives, as an interim criterion 
for this rule and LOAs, NMFS is adopting the experimental findings of 
Finneran et al. (2002) that TTS can be induced at a pressure level of 
23 psi (at least in belugas). As explained here, this is considered 
conservative since a 23-psi pressure level was below the level that 
induced TTS in bottlenose dolphins.
    Finneran et al. (2000; as described in Finneran et al. (2002)) 
conducted a study designed to measure masked TTS (MTTS) in bottlenose 
dolphins and belugas exposed to single underwater impulses. This study 
used an ``explosion simulator'' (ES) to generate impulsive sounds with 
pressure waveforms resembling those produced by distant underwater 
explosions. No substantial (i.e., 6 dB or larger) threshold shifts were 
observed in any of the subjects (two bottlenose dolphins and 1 beluga) 
at the highest received level produced by the ES: approximately 70 kPa 
(10 psi) peak pressure, 221 dB re re 1 micro Pa peak-to-peak (pk-pk) 
pressure, and 179 dB re 1 microPa\2\-s total EFD. In Finneran et al. 
(2002), a watergun was substituted for the ES because it is capable of 
producing impulses with higher peak pressures and total energy fluxes 
than the pressure waveforms produced using the ES. It was also 
preferable to other seismic sources because its impulses contain more 
energy at higher frequencies, where odontocete hearing thresholds are 
relatively low (i.e., more sensitive). Hearing thresholds were measured 
at 0.4, 4 and 30 kHz. MTTSs of 7 and 6 dB were observed in the beluga 
at 0.4 and 30 kHz, respectively, approximately 2 minutes following 
exposure to single impulses with peak

[[Page 67816]]

pressures of 160 kPa (23 psi), pk-pk pressures of 226 dB re 1 microPa, 
and total EFD of 186 dB re 1 microPa\2\-s. Thresholds returned to 
within 2 dB of the pre-exposure value approximately 4 minutes post 
exposure. No MTTS was observed in the single bottlenose dolphin tested 
at the highest exposure conditions: peak pressure of 207 kPa (30 psi), 
228 dB re 1 microPa pk-pk pressure, and 188 dB re 1 microPa\2\-s total 
energy flux. Therefore, until more scientific information is obtained, 
NMFS has determined that the pressure criterion for small explosions 
can be amended from 12 psi to 23 psi. At this time, NMFS believes that 
setting the pressure metric of the dual explosive criteria at 23 psi is 
conservative, while setting the pressure metric at a higher level has 
not been scientifically validated at this time. 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).

                     Table 1. Zones of Impact for Underwater Explosions (Mid-depth Animal).
----------------------------------------------------------------------------------------------------------------
                                                                                                  Ranges for 182
                                                     Depth or      Ranges for 31    Ranges for    dB EFDL in 1/3-
            Ordnance             NEW (TNT in lb)     Height of      psi -ms (m)    EFDL >205 dB    Octave Band/
                                                   Explosion (m)                        (m)          23 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
 
----------------------------------------------------------------------------------------------------------------

Criteria and Thresholds: Behavioral Modification (Sub-TTS)
    No strictly sub-TTS behavioral responses (i.e., Level B harassment) 
are anticipated with the JASSM and SBD test activities because there 
are no successive detonations (the 2 SBD explosions occur almost 
simultaneously) which could provide causation for a behavioral 
disruption rising to the level of a significant alteration or 
abandonment of behavioral patterns without also causing TTS. Also, 
repetitive exposures (below TTS) to the same resident animals are 
highly unlikely due to the infrequent JASSM and SBD test events, the 
potential variability in target locations, and the continuous movement 
of marine mammals in the northern GOM.

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 and 3 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 
microPa\2\-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 microPa\2\-s/23 psi). While none of

[[Page 67817]]

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        Adjusted
                                            Exposed from  Number Exposed
            Species              Density     All In-Air    Based on 30%
                                            and In-Water    Mitigation
                                            Detonations    Effectiveness
------------------------------------------------------------------------
Summer
-------------------------------           ---------------
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
------------------------------------------------------------------------
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        Adjusted
                                            Exposed from  Number Exposed
            Species              Density     All In-Air    Based on 30%
                                            and In-Water    Mitigation
                                            Detonations    Effectiveness
------------------------------------------------------------------------
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
 
------------------------------------------------------------------------


[[Page 67818]]


 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        Adjusted
                                            Exposed from  Number Exposed
            Species              Density     All In-Air    Based on 30%
                                            and In-Water    Mitigation
                                            Detonations    Effectiveness
------------------------------------------------------------------------
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
------------------------------------------------------------------------
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

    Eglin AFB is required to establish and survey 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 marine mammal 
observers (MMOs) 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 MMOs 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 MMO's ability to locate surfacing marine mammals. Therefore, 
PSW missions would be delayed if the Beaufort scale sea state is 
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 AFB 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 MMOs. Aircraft 
provide a preferable viewing platform for detection of protected marine 
species. Each aerial MMO 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 MMOs 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. MMOs would be familiar with the 
protected resources (marine mammals/sea turtles) of the area. The MMOs 
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 MMOs from the 
aerial team and operations vessel will have direct communication with 
the lead scientist aboard the operations vessel. The lead

[[Page 67819]]

scientist will be a qualified marine biologist familiar with marine 
mammal 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 by trained 
MMOs. 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 ensure personnel safety. 
Therefore, in compliance with AF safety parameters and the constraints 
on mitigation under the MMPA, as amended by the NDAA, 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    Total Time
                                              Clearance     Clearance     of Vessel    of Aircraft
                                              Time for      Time for       Safety        Safety     Human Safety
                               Flight Time     Vessels      Aircraft      Clearance     Clearance       Area
                                               before        before        before        before
                                               Launch        Launch      Detonation    Detonation
----------------------------------------------------------------------------------------------------------------
JASSM                         :30 - 1 hr    :30           :15           1:30          1:15          2 NM
----------------------------------------------------------------------------------------------------------------
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 turtles, few or no patches of Sargassum, 
etc.) 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. MMOs 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 MMOs 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 5 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

[[Page 67820]]

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 the practical considerations (in-air 
destruction of the missile), NMFS is not proposing to require Eglin AFB 
to terminate an in-flight missile or bomb due to sighting of a 
protected species.
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 
or turtles 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 or turtles observed dead or injured and, if practicable, 
recover and examine any dead animals.

Conservative Estimates of Marine Mammal Densities

    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/km\2\ 
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

    NMFS is requiring 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 AFB 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 NMFS. 
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

[[Page 67821]]

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 
AFB's PSW activity on ESA-listed species and critical habitat under the 
jurisdiction of NMFS. That biological opinion concluded that Eglin 
AFB'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 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 also determined that the 
issuance of up to 5 LOAs to Eglin AFB 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 has reviewed the information contained in 
Eglin AFB's Final PEA and determined that the Eglin AFB's PEA 
accurately and completely describes the preferred action alternative, a 
reasonable range of alternatives, and the potential impacts on marine 
mammals, endangered species, and other marine life that could be 
impacted by the preferred and non-preferred alternatives. Based on this 
review and analysis, NMFS adopted Eglin AFB's PEA under 40 CFR 1506.3 
and, on July 25, 2005, made its own FONSI statement on issuance of an 
annual authorization under section 101(a)(5) of the MMPA. As the 
impacts on the human environment by issuance of this rulemaking and 
annual LOAs to Eglin AFB are not substantially different from the 
action analyzed in Eglin's PEA and NMFS' July 25, 2005 FONSI and as no 
incremental change would occur under this new authority, NMFS has 
determined that it is not necessary to issue a new EA, a supplemental 
EA or an environmental impact statement for the issuance of an LOA to 
Eglin AFB to take marine mammals incidental to this activity. A copy of 
NMFS' July 25, 2006, 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).

Determinations

    NMFS has determined that, based on the information provided in 
Eglin AFB'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 AFB's EA and incidental take application support 
NMFS' finding that impacts will be mitigated by: (1)implementation of a 
conservative safety range for marine mammal exclusion; (2) 
incorporation of aerial and shipboard survey monitoring efforts in the 
program both prior to and after detonation of explosives; and (3) 
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 determined that the requirements of 
section 101(a)(5)(A) of the MMPA have been met and this final rule can 
be issued.

Changes from the Proposed Rule

    Based on a public comment, these regulations require the marine 
mammal observation platform to provide observers a platform to see a 
major portion of the safety zone.

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 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration during the proposed rule stage that this action would 
not have a significant economic impact on a substantial number of small 
entities. The factual basis for the certification was published in the 
proposed rule and is not repeated here. No comments were received 
regarding this certification. As a result, a regulatory flexibility 
analysis was not required and none was prepared.

List of Subjects in 50 CFR Part 216

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

    Dated: November 15, 2006.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.

0
For reasons set forth in the preamble, 50 CFR part 216 is amended as 
follows:

[[Page 67822]]

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

0
1. The authority citation for part 216 continues to read as follows:

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

0
2. Subpart V is reserved.

0
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 Letters 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 December 26, 2006 
until December 27, 2011.


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, including lethal take 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.  216.250(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 mammal species and stocks 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) Prior to a JASSM or SDB launch:
    (1) If any marine mammals are observed within the designated safety 
zone prescribed in condition (a)(1) above, or within the buffer zone 
prescribed in condition (a)(2) above and it/they are on a course that 
will put them within the safety zone prior to an JASSM or SDB launch, 
the launch 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 described under Sec.  216.255 cannot be carried out fully.

[[Page 67823]]

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 authorized to monitor 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 marine mammal observers to record 
the effects of mission launches on marine mammals that inhabit the 
northern Gulf of Mexico;
    (2) Have on-site marine mammal observers 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 marine mammal 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. The 
marine mammal observation platform must be of sufficient height to 
provide observers a platform to see a major portion of the safety zone.
    (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. 
Coordination shall include:
    (i) Pre-activity notification of a PSW exercise; and
    (ii) Post-event surveying of the Eglin AFB shore-line in the 
vicinity of the PSW exercise.
    (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) The Holder of the Letter of Authorization must conduct any 
marine mammal 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 30 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 specified in the Letter of Authorization, 
but may not to exceed the period of validity of this subpart, and must 
be renewed annually subject to annual renewal conditions in Sec.  
216.258.
    (b) A Letter of Authorization with a period of validity less than 
the period of this subpart may be renewed subject to renewal conditions 
in Sec.  216.258.
    (c) Each Letter of Authorization will set forth:
    (1) Permissible methods of incidental taking;

[[Page 67824]]

    (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 incidental takes.
    (d) 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.
    (e) Except for the initial Letter of Authorization, notice of 
issuance or denial of subsequent Letters 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(k), 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, Sec.  216.255, 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. 06-9380 Filed 11-22-06; 8:45 am]
BILLING CODE 3510-22-S