[Federal Register Volume 72, Number 198 (Monday, October 15, 2007)]
[Notices]
[Pages 58290-58293]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-20230]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 0648-XB13]


Takes of Marine Mammals Incidental to Specified Activities; Naval 
Explosive Ordnance Disposal School Training Operations at Eglin Air 
Force Base, Florida

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

ACTION:  Notice; issuance of an incidental harassment authorization.

-----------------------------------------------------------------------

SUMMARY:  In accordance with the Marine Mammal Protection Act (MMPA) 
regulations, notification is hereby given that NMFS has issued an 
Incidental Harassment Authorization (IHA) to Eglin Air Force Base 
(EAFB) for the take of marine mammals, by Level B harassment only, 
incidental to Naval Explosive Ordnance Disposal School (NEODS) training 
operations at EAFB, Florida.

DATES: Effective from October 5, 2007, through October 4, 2008.

ADDRESSES:  A copy of the IHA and the application are available by 
writing to 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, or by 
telephoning the contact listed here. A copy of the application 
containing a list of references used in this document may be obtained 
by writing to this address, by telephoning the contact listed here (FOR 
FURTHER INFORMATION CONTACT) or online at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. Documents cited in this notice may be viewed, 
by appointment, during regular business hours, at the aforementioned 
address.

FOR FURTHER INFORMATION CONTACT: Jaclyn Daly or Jolie Harrison, Office 
of Protected Resources, NMFS, (301) 713-2289.

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce to allow, upon request, the 
incidental, but not intentional taking of marine mammals by U.S. 
citizens who engage in a military readiness activity if certain 
findings are made and regulations are issued or, if the taking is 
limited to harassment, notice of a proposed authorization is provided 
to the public for review.
    Authorization for incidental takings will be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for certain subsistence uses, 
and if the permissible methods of taking and requirements pertaining to 
the mitigation, monitoring and reporting of such taking are set forth.
    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.
    Subsection 101(a)(5)(D) of the MMPA established an expedited 
process by which citizens of the United States can apply for an 
authorization to incidentally take marine mammals by harassment. With 
respect to miltary readiness activities, harassment is defined as 
follows:
    (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].
    Section 101(a)(5)(D) establishes a 30-day public notice and comment 
period on any proposed IHA. Within 45 days of the close of the comment 
period, NMFS must either issue or deny issuance of the authorization.

Summary of Request

    On June 7, 2007, NMFS received an application from EAFB requesting 
re-issuance of their IHA for the harassment, by Level B harassment 
only, of Atlantic bottlenose dolphins (Tursiops truncatus) and Atlantic 
spotted dolphins (Stenella frontalis) incidental to NEODS training 
operations at EAFB, Florida, in the northern Gulf of Mexico (GOM). Each 
of up to six missions per year would include up to five live 
detonations of approximately 10-lb (4.6-kg) net explosive weight 
charges to occur in approximately 60-ft (18.3-m) deep water from one to 
three nm (1.9 to 5.6 km) off shore. EAFB was granted an IHA in 2005 and 
2006 for this activity.
    Because the relative low cost and ease of use of mines lends itself 
to use by an array of transnational, rogue, and subnational adversaries 
that now pose the most immediate threat to American interests and 
because NEODS supports the Naval Fleet by providing training to 
personnel from all four armed services, civil officials, and military 
students from over 70 countries, this activity constitutes a ``military 
readiness activity,'' as defined in Section 315(f) of Public Law 107-
314 (16 U.S.C. 703 note).

Specified Activities

    The mission of NEODS is to train personnel to detect, recover, 
identify, evaluate, render safe, and dispose of unexploded ordnance 
(UXO) that constitutes a threat to people, material, installations, 
ships, aircraft, and operations. The NEODS plans to utilize three areas 
within the Eglin Gulf Test and Training Range (EGTTR), consisting of 
approximately 86,000 mi\2\ (222,739 km\2\) within the GOM and the 
airspace above, for Mine Countermeasures (MCM) detonations, which 
involve mine-hunting and mine-clearance operations. The detonation of 
small, live explosive charges disables the function of the mines, which 
are inert for training purposes. The training would occur approximately 
one to three nautical miles (nm) (1.9 to 5.6 km) offshore of Santa Rosa 
Island (SRI) six times annually, at varying times within the year.
    Each of the six training classes would include one or two ``Live 
Demolition Days.'' During each set of Live Demolition Days, five inert 
mines would be placed in a compact area on the sea floor in 
approximately 60 ft (18.3 m) of water. Divers would locate the mines by 
hand-held sonars. The AN/PQS-2A hand-held acoustic locator has a sound 
pressure level (SPL) of 178.5 re 1 microPascal @ 1 meter and the Dukane 
Underwater Acoustic Locator has a SPL of 157-160.5 re 1 microPascal @ 1 
meter. Because output from these hand-held sound sources would 
attenuate to below any current threshold for protected species within 
approximately 10-15 m,

[[Page 58291]]

noise impacts are not anticipated and are not addressed further in this 
analysis.
    Five charges packed with five lbs (2.3 kg) of C-4 explosive 
material will be set up adjacent to each of the mines. No more than 
five charges will be detonated over the 2-day period. Detonation times 
will begin no earlier than 2 hours after sunrise and end no later than 
2 hours before dusk and charges utilized within the same hour period 
will have a maximum separation time of 20 minutes. Mine shapes and 
debris will be recovered and removed from the water when training is 
completed. A more detailed description of the work is contained in the 
application which is available upon request (see ADDRESSES).

Marine Mammals and Habitat Affected by the Activity

    Marine mammal species that potentially occur within the EGTTR 
include several species of cetaceans and the West Indian manatee. While 
a few manatees may migrate as far north from southern Florida (where 
there are generally confined in the winter) as Louisiana in the summer, 
they primarily inhabit coastal and inshore waters and rarely venture 
offshore. NEODS missions are conducted one to three nm (5.6 km) from 
shore and effects on manatees are therefore considered very unlikely. 
Accordingly, EAFB did not seek an incidental take authorization from 
the U.S. Fish and Wildlife Service, which has jurisdiction over 
manatees.
    Cetacean abundance estimates for the project area are derived from 
GulfCet II aerial surveys conducted from 1996 to 1998 over a 70,470 
km\2\ area, including nearly the entire continental shelf region of the 
EGTTR, which extends approximately 9 nm (16.7 km) from shore. The dwarf 
and pygmy sperm whales are not included in this analysis because their 
potential for being found near the project site is remote. Although 
Atlantic spotted dolphins do not normally inhabit nearshore waters, 
NMFS has included them in the analysis to ensure conservative 
mitigation measures are applied. The two marine mammal species expected 
to be affected by these activities, whose status and distribution were 
discussed in the proposed IHA (71 FR 43470; August 1, 2006), are the 
bottlenose dolphin (Tursiops truncatus) and the Atlantic spotted 
dolphin (Stenella frontalis). Further descriptions of the biology and 
local distribution of these species can be found in the application 
(see ADDRESSES); other sources such as Wursig et al. (2000), and the 
NMFS Stock Assessments, can be viewed at: http://www.NMFS.noaa.gov/pr/PR2/Stock_Assessment_Program/sars.html.

Potential Effects of Activities on Marine Mammals

    The primary potential impact to Atlantic bottlenose and the 
Atlantic spotted dolphins occurring in the EGTTR from the planned 
detonations is Level B harassment from noise. In the absence of any 
mitigation or monitoring measures, there is a very small chance that a 
marine mammal could be injured or killed when exposed to the energy 
generated from an explosive force on the sea floor. However, NMFS 
believes the required mitigation measures will preclude this 
possibility in the case of this particular activity. Analysis of NEODS 
noise impacts to cetaceans was based on criteria and thresholds 
initially presented in U.S. Navy Environmental Impact Statements for 
ship shock trials of the SEAWOLF submarine and the WINSTON CHURCHILL 
vessel and subsequently adopted by NMFS.
    Non-lethal injurious impacts (Level A Harassment) are defined in 
EAFB's application and this document as tympanic membrane (TM) rupture 
and the onset of slight lung injury. The threshold for Level A 
Harassment corresponds to a 50-percent rate of TM rupture, which can be 
stated in terms of an energy flux density (EFD) value of 205 dB re 1 
microPa\2\ s. TM rupture is well-correlated with permanent hearing 
impairment (Ketten (1998) indicates a 30-percent incidence of permanent 
threshold shift (PTS) at the same threshold). The zone of influence 
(ZOI) (farthest distance from the source at which an animal is exposed 
to the EFD level referred to) for the Level A Harassment threshold is 
52 m (172 ft).
    Level B (non-injurious) Harassment includes temporary (auditory) 
threshold shift (TTS), a slight, recoverable loss of hearing 
sensitivity. One criterion used for TTS is 182 dB re 1 microPa\2\ s 
maximum EFD level in any 1/3-octave band above 100 Hz for toothed 
whales (e.g., dolphins). The ZOI for this threshold is 230 m (754 ft). 
A second criterion, 23 psi, has recently been established by NMFS for 
TTS when the explosive or animal approaches the sea surface, in which 
case explosive energy is reduced, but the peak pressure is not. The ZOI 
for 23 psi is 222 m (728 ft). NMFS will apply the more conservative of 
these two.
    Level B Harassment also includes behavioral modifications resulting 
from repeated noise exposures (below TTS) to the same animals (usually 
resident) over a relatively short period of time. Threshold criteria 
for this particular type of harassment are currently still under 
debate. One recommendation is a level of 6 dB below TTS (see 69 FR 
21816, April 22, 2004), which would be 176 dB re 1 microPa\2\ s. 
However, due to the infrequency of the detonations, the potential 
variability in target locations, and the continuous movement of marine 
mammals off the northern Gulf, NMFS believes that behavioral 
modification from repeated exposures to the same animal is highly 
unlikely.

Comments and Responses

    On July 12, 2007, NMFS published in the Federal Register a notice 
of a proposed IHA for EAFB's request to take marine mammals incidental 
to NEODS training exercises in the GOM, and requested comments 
regarding this request (See 72 FR 38061). During the 30-day public 
comment period, NMFS received comments from the Marine Mammal 
Commission (Commission).
    Comment 1: 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: NMFS believes that the IHA includes all practicable 
monitoring and mitigation measures to avoid serious or lethal injury of 
marine mammals, and we believe that they will be effective. The radius 
around the site of the explosion where the animals could potentially be 
injured is 52 m, and animals would have to be significantly closer than 
that for the potential for serious injury or death to occur. MMOs will 
be monitoring a 460-m radius area for the entire 15 minutes leading up 
to the detonation and the operation will be postponed if animals are 
seen within the 230-dB ZOI or if large schools of fish, which could 
attract the delphinids, are seen within the ZOI.
    Comment 2: The Commission recommends that NEODS training operations 
be suspended immediately if a seriously injured or dead marine mammal 
is found in the vicinity of the operations and the death or injury 
could be attributable to the NEODS activities. Further,the Commission 
recommends that any suspension should remain in place until NMFS has 
(1) reviewed the situation and determined that further deaths or 
serious injuries are unlikely to occur or (2) issued regulations 
authorizing such takes under section 101(a)(5)(A) of the MMPA.
    Response: NMFS concurs with the Commission's recommendation and 
will include this provision in the IHA.
    Comment 3: The Commission also resubmitted the identical comments 
it

[[Page 58292]]

submitted on the 2005 and 2006 NEODS IHA.
    Response: NMFS stated the Commission's concerns and addressed them 
in the Federal Register notice announcing the issuance of the 2005 IHA 
(70 FR 51341; August 30, 2005), and they may be referenced there.

Numbers of Marine Mammals Estimated to be Harassed

    Estimates of the potential number of Atlantic bottlenose dolphins 
and Atlantic spotted dolphins to be harassed by the training were 
calculated using the number of distinct firing or test events (maximum 
30 per year), the ZOI for noise exposure, and the density of animals 
that potentially occur in the ZOI. The take estimates provided here do 
not include mitigation measures, which are expected to further minimize 
impacts to protected species and make injury or death highly unlikely.
    The estimated number of Atlantic bottlenose dolphins and Atlantic 
spotted dolphins potentially taken through exposure to the Level A 
Harassment threshold (205 dB re 1 microPa\2\ s), are less than one 
(0.22 and 0.19, respectively) annually.
    For Level B Harassment, two separate criteria were established, one 
expressed in dB re 1 microPa\2\ s maximum EFD level in any 1/3-octave 
band above 100 Hz, and one expressed in psi. The estimated numbers of 
Atlantic bottlenose dolphins and Atlantic spotted dolphins potentially 
taken through exposure to 182 dB are 4 and 3 individuals, respectively. 
The estimated numbers potentially taken through exposure to 23 psi are 
also 4 and 3 individuals, respectively.

Possible Effects of Activities on Marine Mammal Habitat

    NMFS anticipates no loss or modification to the habitat used by 
Atlantic bottlenose dolphins or Atlantic spotted dolphins in the EGTTR. 
The primary source of marine mammal habitat impact resulting from the 
NEODS missions is noise, which is intermittent (maximum 30 times per 
year) and of limited duration. The effects of debris (which will be 
recovered following test activities), ordnance, fuel, and chemical 
residues were analyzed in the NEODS Biological Assessment and the Air 
Force concluded that marine mammal habitat would not be affected.

Mitigation and Monitoring

    Mitigation will consist primarily of surveying and taking action to 
avoid detonating charges when protected species are within the ZOI. A 
trained, NMFS-approved observerwill be staged from the highest point 
possible on a support ship and have proper lines of communication to 
the Officer in Tactical Command. The survey area will be 460 m (1509 
ft) in every direction from the target, which is twice the radius of 
the ZOI for Level B Harassment (230 m (755 ft)). To ensure visibility 
of marine mammals to observers, NEODS missions will be delayed if 
whitecaps cover more than 50 percent of the surface or if conditions 
exceed a Beaufort 3 sea state.
    Pre-mission monitoring will be used to evaluate the test site for 
environmental suitability of the mission. Visual surveys will be 
conducted two hours, one hour, and the entire 15 minutes prior to the 
mission to verify that the ZOI (230 m (755 ft)) is free of visually 
detectable marine mammals and large schools of fish, and that the 
weather is adequate to support visual surveys. The observer will plot 
and record sightings, bearing, and time for all marine mammals 
detected, which would allow the observer to determine if the animal is 
likely to enter the test area during detonation. If a marine mammal 
appears likely to enter the test area during detonation, if large 
schools of fish are present, or if the weather is inadequate to support 
monitoring, the observer will declare the range fouled and the tactical 
officer will implement a hold until monitoring indicates that the test 
area is and will remain clear of detectable marine mammals.
    Monitoring of the test area will continue throughout the mission 
until the last detonation is complete. The mission would be postponed 
if:
    (1) Any marine mammal is visually detected within the ZOI (230 m 
(755 ft)). The delay would continue until the animal that caused the 
postponement is confirmed to be outside the ZOI (visually observed 
swimming out of the range).
    (2) Any marine mammal is detected in the ZOI and subsequently is 
not seen again. The mission would not continue until the last verified 
location is outside of the ZOI and the animal is moving away from the 
mission area.
    (3) Large schools of fish are observed in the water within of the 
ZOI. The delay would continue until large fish schools are confirmed to 
be outside the ZOI.
    In the event of a postponement, pre-mission monitoring would 
continue as long as weather and daylight hours allow. If a charge fails 
to explode, mitigation measures would continue while operations 
personnel attempt to recognize and solve the problem (e.g., detonate 
the charge).
    Post-mission monitoring is designed to determine the effectiveness 
of pre-mission mitigation by reporting any sightings of dead or injured 
marine mammals. Post-detonation monitoring, concentrating on the area 
down current of the test site, would commence immediately following 
each detonation and continue for at least two hours after the last 
detonation. The monitoring team would document and report to the 
appropriate marine animal stranding network any marine mammals killed 
or injured during the test and, if practicable, recover and examine any 
dead animals. The species, number, location, and behavior of any 
animals observed by the teams would be documented and reported to the 
Officer in Tactical Command.
    Additionally, in the unlikely event that a seriously injured or 
dead marine mammal is found in the vicinity of the operations and the 
death or injury could be attributable to the NEODS activities, training 
operations will be suspended and NMFS contacted immediately. This 
suspension would remain in place until the Service has (1) reviewed the 
situation and determined that further deaths or serious injuries are 
unlikely to occur or (2) issued regulations authorizing such takes 
under section 101(a)(5)(A) of the MMPA.

Reporting

    The Air Force will notify NMFS 2 weeks prior to initiation of each 
training session. Any takes of marine mammals other than those 
authorized by the IHA, as well as any injuries or deaths of marine 
mammals, will be reported to the Southeast Regional Administrator, 
NMFS, within 24 hours. A summary of mission observations and test 
results, including dates and times of detonations as well as pre- and 
post-mission monitoring observations, will be submitted to the 
Southeast Regional Office (NMFS) and to the Division of Permits, 
Conservation, and Education, Office of Protected Resources (NMFS) 
within 90 days after the completion of the last training session.

Endangered Species Act

    In a Biological Opinion issued on October 25, 2004, NMFS concluded 
that the NEODS training missions and their associated actions are not 
likely to jeopardize the continued existence of threatened or 
endangered species under the jurisdiction of NMFS or destroy or 
adversely modify critical habitat that has been designated for those 
species. NMFS has issued an incidental take statement (ITS) for NEODS 
for sea turtles pursuant to section 7 of the Endangered Species Act. 
The ITS

[[Page 58293]]

contains reasonable and prudent measures with implementing terms and 
conditions to minimize the effects of this take. This IHA action is 
within the scope of the previously analyzed action and does not change 
the action in a manner that was not considered previously.

National Environmental Policy Act

    In 2005, NMFS prepared an Environmental Assessment (EA) on the 
Issuance of Authorizations to Take Marine Mammals, by Harassment, 
Incidental to Naval Explosive Ordnance Disposal School Training 
Operations at Eglin Air Force Base, Florida and subsequently issued a 
Finding of No Significant Impact (FONSI). This IHA action is within the 
scope of the previously analyzed action and does not change the action 
in a manner that was not considered previously. Therefore, preparation 
of an EIS on this action is not required by NEPA or its implementing 
regulations. However, in 2007, a supplemental EA was prepared to 
address new information on the effects to EFH and cumulative impacts to 
the physical and biological environment from other EAFB activities.

Conclusions

     NMFS has issued an IHA to the Air Force for the NEODS training 
missions to take place at EAFB over a 1-year period. The issuance of 
this IHA is contingent upon adherence to the previously mentioned 
mitigation, monitoring, and reporting requirements. NMFS has determined 
that the NEODS training, which entails up to six missions per year, 
including up to five live detonations per mission of approximately 5-lb 
(2.3 kg) net explosive weight charges to occur in approximately 60-foot 
(18 m) deep water from one to three nm off shore, will result in the 
Level B harassment of Atlantic bottlenose dolphins and Atlantic spotted 
dolphins (less than 0.0002 percent of the population for each species, 
and perhaps 1-2 percent of an inshore stock of bottlenose dolphin, if 
one of them were harassed) and will have a negligible impact on these 
marine mammal species and stocks. While behavioral modifications may be 
made by Atlantic bottlenose dolphins and Atlantic spotted dolphins to 
avoid the resultant acoustic stimuli, when the potential density of 
dolphins in the area and the required mitigation and monitoring are 
taken into consideration NMFS does expect any injury or mortality to 
result. The effects of the NEODS training are expected to be limited to 
short-term and localized TTS-related behavioral changes. No rookeries, 
mating grounds, areas of concentrated feeding, or other areas of 
special significance for marine mammals occur within or near the NEODS 
test sites.

Authorization

    As a result of these determinations, NMFS proposes to issue an IHA 
to the Air Force for NEODS training operations at EAFB, Florida, 
provided the previously mentioned mitigation, monitoring, and reporting 
requirements are incorporated.

    Dated: October 9, 2007.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. E7-20230 Filed 10-12-07; 8:45 am]
BILLING CODE 3510-22-S