[Federal Register Volume 73, Number 190 (Tuesday, September 30, 2008)]
[Notices]
[Pages 56800-56804]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-22817]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 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.

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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, 2008, through October 4, 2009.

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: Howard Goldstein or Jaclyn Daly, 
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 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].

    Section 101(a)(5)(D) establishes a 30-day public notice and comment 
period on any proposed IHA. Within 45 days

[[Page 56801]]

of the close of the comment period, NMFS must either issue or deny 
issuance of the authorization.

Summary of Request

    On May 13, 2008, NMFS received an application from EAFB requesting 
re-issuance of their IHA for the taking, by Level B harassment only, of 
Atlantic bottlenose dolphins (Tursiops truncatus) and Atlantic spotted 
dolphins (Stenella frontalis) incidental to NEODS training operations 
and testing at Eglin Gulf Test and Training Range (EGTTR) 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 (up to 30 
charges per year) of approximately 5-lb (2.3-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) offshore. Because this activity will be a 
multi-year activity, NMFS also plans to develop proposed regulations 
for NEODS training operations at EAFB. EAFB was granted an IHA in 2005, 
2006, and 2007 for this activity. No missions have occurred to date.
    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 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, 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 
initial Federal Register notice (73 FR 46592, August 11, 2008) and 
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 
(Trichechus manatus). While a few manatees may migrate as far north 
from southern Florida (where they are generally confined in the winter) 
to Louisiana in the summer, they primarily inhabit coastal and inshore 
waters, rarely venture offshore, and sightings of manatees in the EGTTR 
are rare. Dwarf (Kogia sima) and pygmy sperm whales (Kogia breviceps), 
while present in the Gulf of Mexico, are pelagic species and not 
usually found close to shore. NEODS missions are conducted one to three 
nm (5.6 km) from shore; therefore, impact to manatees, dwarf and pygmy 
sperm whales are not likely to occur because their potential for being 
found near the project site is remote and not discussed further in this 
analysis. 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 two 
marine mammal species that may be affected by these activities, whose 
status and distribution were discussed in the proposed IHA (73 FR 
46592, August 11, 2008), are the bottlenose dolphin (Tursiops 
truncatus) and the Atlantic spotted dolphin (Stenella frontalis). 
Although Atlantic spotted dolphins do not normally inhabit nearshore 
waters, NMFS has included them in the analysis due to the potential for 
occurrence and to ensure conservative mitigation measures are applied. 
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 and energy explosions. 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)

[[Page 56802]]

(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 to 
provide a more conservative range 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 one public comment and 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. Marine 
Mammal Observers (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 submitted on the 2005 and 2006 NEODS IHA. In summary, the Commission 
recommends NMFS should further explain its rationale for determining 
that the takings will be by harassment only and that the potential for 
lethal injuries is sufficiently remote to warrant the issuance of an 
authorization under 101(a)(5)(d) of the MMPA. In addition, the 
Commission questioned NMFS' assessment that TTS constitutes no more 
than Level B harassment and NMFS should further explain and justify the 
dual criteria established for determining non-lethal injury; the ``non-
injurious behavioral response'' threshold; and the 23 psi criterion for 
estimating TTS threshold.
    Response: NMFS stated the Commission's concerns and addressed them 
in the Federal Register notice announcing the issuance of the 2005 and 
2006 IHA's (70 FR 51341, August 30, 2005; 71 FR 60693, October 16, 
2006), and they may be referenced there.
    Comment 4: A member of the public opposes the issuance of this 
permit based on the assumption it would allow for the killing of marine 
mammals.
    Response: NMFS does not believe that the authorized activities will 
result in the death of any marine mammals, nor does this IHA authorize 
any marine mammal injury or mortality.

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 calculated ZOI area, 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.
    Using a high density estimate for each species of dolphin, the ZOI 
of charge employed and the total of events per year, an annual estimate 
for the potential number of animals exposed to noise was derived. 
Without any mitigation, up to one cetacean is estimated to be within 
the Level A Harassment 205 dB ZOI. Because in-place mitigations would 
clear the area of any marine mammals before detonation, it is 
anticipated that no marine mammal takes by mortality or injury (Level A 
Harassment) would result. No Level A Harassment or mortality is 
authorized by NMFS during NEODS activities.
    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. This represents less than 
0.0002 percent for each species and perhaps 1-2 percent of an inshore 
stock of Atlantic bottlenose dolphins if one individual for that stock 
is harassed. While it is highly unlikely that the offshore bottlenose 
dolphin stock would be affected by this action due their distribution, 
it not possible to distinguish from inshore stocks of this species.

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),

[[Page 56803]]

ordnance, fuel, and chemical residues were analyzed in the NEODS 
Biological Assessment and NMFS' Environmental Assessment. These 
documents conclude that marine mammal habitat would not be affected 
from the specified activity.
    EAFB initiated consultation with NMFS Southeast Region (SER) on 
July 27, 2007 for effects regarding Essential Fish Habitat (EFH). On 
August 6, 2007, NMFS SER concurred with EAFB's determination that NEODS 
activities are not likely to adversely affect EFH. NMFS Office of 
Protected Resources adopts the SERs determinations and accordingly 
finds that EFH is not likely to be adversely affected from NEODS 
activities.

Mitigation and Monitoring

    Mitigation will consist primarily of surveying and taking action to 
avoid detonating charges when protected species are within the Level A 
harassment ZOI. A trained, NMFS-approved observer will 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 (1,509 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 
the waves are greater than 0.91 m (3 feet) (Beaufort Sea State 4).
    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 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 any ZOI 
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 ZOI is and will remain clear of 
detectable marine mammals.
    Monitoring of the survey 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 Level B 
Harassment 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 Level B Harassment ZOI and 
subsequently is not seen again within 15 minutes. 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. If a charge fails 
to explode, mitigation measures would continue while operations 
personnel attempt to recognize and solve the problem (i.e., 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 an injured (Level A 
Harassment), 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 NMFS has (1) reviewed the situation and determined that 
further injury or death is unlikely to occur or (2) issued regulations 
to authorize such takes under section 101(a)(5)(A) of the MMPA.

Reporting

    The Air Force will notify NMFS two 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 
conducted under this IHA.

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 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). In 2007, NMFS issued a FONSI 
based on a supplemental EA (SEA) to address new available information 
regarding the effects of the described activities to Essential Fish 
Habitat and other operations EAFB is conducting that may have 
cumulative impacts to the physical and biological environment. 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 
section 102(2) of the NEPA or its implementing regulations.

Conclusions

    NMFS has issued an IHA for a one-year period to the EAFB for the 
NEODS training missions to take place within the EGTTR, Florida. The 
issuance of this IHA is contingent upon adherence to the previously 
mentioned mitigation, monitoring, and reporting requirements. NMFS has 
determined that the impact of the NEODS training, which entails up

[[Page 56804]]

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-ft (18 m) deep water from one to three nm 
offshore, may result in the Level B Harassment of a few Atlantic 
bottlenose dolphins and Atlantic spotted dolphins; this would have a 
negligible impact on these affected marine mammals species and stocks. 
Dwarf and pygmy sperm whales and manatees are unlikely to be found in 
the area and, therefore, are unlikely to be affected. While behavioral 
modifications may be made by Atlantic bottlenose dolphins and Atlantic 
spotted dolphins to avoid the resultant acoustic stimuli, there is 
virtually no possibility of injury or mortality when the potential 
density of dolphins in the area and extent of mitigation and monitoring 
are taken into consideration. The effects of the NEODS training are 
expected to be limited to short-term and localized TTS-related 
behavioral changes. No subsistence users are located within the 
geographic area of this project.
    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: September 19, 2008.
Helen M. Golde,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. E8-22817 Filed 9-29-08; 8:45 am]
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