[Federal Register Volume 77, Number 56 (Thursday, March 22, 2012)]
[Rules and Regulations]
[Pages 16718-16740]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-6824]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 100217098-2125-02]
RIN 0648-AY64


Taking and Importing Marine Mammals; Naval Explosive Ordnance 
Disposal School Training Operations at Eglin Air Force Base, Florida

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

ACTION: Final rule.

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SUMMARY: NMFS, upon application from the U.S. Department of the Air 
Force, Headquarters 96th Air Base Wing (U.S. Air Force), Eglin Air 
Force Base (Eglin AFB) is issuing regulations to govern the taking of 
Atlantic bottlenose dolphins, by Level B harassment, incidental to 
Naval Explosive Ordnance Disposal School (NEODS) training operations at 
Eglin AFB, Florida, for a 5-year period. The U.S. Air Force activities 
are considered military readiness activities pursuant to the Marine 
Mammal Protection Act (MMPA), as amended by the National Defense 
Authorization Act of 2004 (NDAA). These regulations, which allow for 
the issuance of Letters of Authorization (LOAs) for the incidental take 
of marine mammals during the described activities and specified time 
frames, prescribe the permissible methods of taking and other means of 
effecting the least practicable adverse impact on marine mammal species 
and their habitat, as well as requirements pertaining to the monitoring 
and reporting of such taking. NMFS issued annual Incidental Harassment 
Authorizations (IHAs) pursuant to section 101(a)(5)(D) of the MMPA for 
similar specified activities in 2005, 2006, 2007, and 2008. No 
activities have occurred to date under those IHAs.

DATES: Effective April 23, 2012, through April 24, 2017.

ADDRESSES: A copy of the application containing a list of the 
references used in this document may be obtained by writing to Tammy 
Adams, Acting Chief, Permits and Conservation Division, Office of 
Protected Resources, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910-3225, and telephoning the contact 
listed below (see FOR FURTHER INFORMATION CONTACT), or visiting the 
internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. 
Documents cited in this notice may be viewed, by appointment, during 
regular business hours, at the aforementioned address. NMFS has 
prepared an Environmental Assessment (EA) and Finding of No Significant 
Impact (FONSI) in accordance with the National Environmental Policy Act 
(NEPA) as implemented by the regulations published by the Council on 
Environmental Quality (CEQ).

FOR FURTHER INFORMATION CONTACT: Howard Goldstein or Jolie Harrison, 
Office of Protected Resources, NMFS, 301-427-8401.

SUPPLEMENTARY INFORMATION: 

Background

    Paragraphs 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et 
seq.) direct the Secretary of Commerce (Secretary), upon request, to 
allow for a period of not more than 5 years, the incidental, but not 
intentional, taking of marine mammals by U.S. citizens who engage in a 
specified activity (other than commercial fishing) within a specified 
geographical region if certain findings are made and regulations are 
issued. Alternatively, if the taking is limited to harassment, certain 
determinations are made and the authorization does not exceed one year, 
an IHA may be issued. Upon making a finding that an application for 
incidental take is adequate and complete, NMFS commences the incidental 
take authorization process by publishing in the Federal Register a 
notice of a receipt of an application for the implementation

[[Page 16719]]

of regulations or a proposed IHA initiating a period for public review 
and comment.
    An authorization for the incidental takings may be granted if NMFS 
finds that the taking during the period of the authorization will have 
a negligible impact on the species or stock(s), will not have an 
unmitigable adverse impact on the availability of the species or 
stock(s) for subsistence uses (where relevant), and if the permissible 
methods of taking and requirements pertaining to the mitigation, 
monitoring and reporting of such takings are set forth to achieve the 
least practicable adverse impact.
    NMFS has defined ``negligible impact'' as: ``* * * an impact 
resulting from the specified activity that cannot be reasonably 
expected to, and is not reasonably likely to, adversely affect the 
species or stock through effects on annual rates of recruitment or 
survival.''
    The National Defense Authorization Act of 2004 (NDAA) (Pub. L. 108-
36) modified the MMPA by removing the ``small numbers'' and ``specified 
geographic region'' limitations and amended the definition of 
``harassment'' as it applies to a ``military readiness activity'' to 
read as follows (section 3(18)(B) of the MMPA):

    ``(i) any act that injures or has the significant potential to 
injure a marine mammal or marine mammal stock in the wild (Level A 
harassment); or (ii) any act that disturbs or is likely to disturb a 
marine mammal or marine mammal stock in the wild by causing 
disruption of natural behavioral patterns, including, but not 
limited to, migration, surfacing, nursing, breeding, feeding, or 
behavioral patterns are abandoned or significantly altered (Level B 
harassment).''

Summary of Request

    On November 6, 2009, NMFS received a letter from the U.S. Air Force 
requesting an authorization for the take of marine mammals incidental 
to NEODS training operations. These training operations are properly 
considered ``military readiness activity'' under the provisions of the 
NDAA. On January 15, 2010, NMFS published a notice of receipt (75 FR 
2490) in the Federal Register for the U.S. Air Force's NEODS training 
operations and determined that its application was adequate and 
complete. The Federal Register notice solicited comments from the 
public. After the close of the public comment period and review of 
comments, NMFS, on October 1, 2010, NMFS published a proposed rule (75 
FR 60694) in the Federal Register to authorize the take of marine 
mammals pursuant to the U.S. Air Force's NEODS training operations and 
solicited public comments. On November 30, 2010, NMFS received a 
revised application from the U.S. Air Force which addressed public 
comments received during the comment period for the proposed rule. This 
application re-estimated the Zones of Influence (ZOI) and associated 
takes on revised thresholds for Level A and Level B harassment. On 
December 5, 2011, NMFS received a revised application from Eglin AFB 
with revised monitoring and mitigation measures to reduce the potential 
for lethal take of bottlenose dolphins, in response to an event 
involving the mortality of common dolphins associated with similar 
explosive training operations at the U.S. Navy's Silver Strand Training 
Complex near San Diego, California.
    The U.S. Air Force states and NMFS concurs that underwater 
explosive detonations could result in the take by harassment of marine 
mammals by exposing them to sound. The requested regulations would 
establish a framework for authorizing incidental take with one or more 
future LOAs over a period not to exceed five years. These LOAs, if 
approved, would authorize the take, by Level B (behavioral) harassment, 
of Atlantic bottlenose dolphins (Tursiops truncatus) incidental to 
conducting NEODS training operations and testing at Eglin Gulf Test and 
Training Range (EGTTR) at property off Santa Rosa Island (SRI), 
Florida, in the northern Gulf of Mexico (GOM). Based on the 
application, estimated take, without considering mitigation 
effectiveness, would average approximately 10 animals per year; 
approximately 50 animals over the five year period. NMFS issued annual 
IHAs pursuant to section 101(a)(5)(D) of the MMPA for almost identical 
activities in 2005 (70 FR 51341; August 30, 2005), 2006 (71 FR 60639; 
October 16, 2006), 2007 (72 FR 58290; October 15, 2007), and 2008 (73 
FR 56800; September 30, 2008). No missions have occurred under previous 
IHAs because of a separate concern about the safety of demolition 
charges being transported under a bridge. NEODS missions would involve 
underwater detonations of small, live explosive charges adjacent to 
inert mines. The U.S. Air Force states that underwater detonation of 
the specified explosive charges may expose bottlenose dolphins in the 
area to noise and pressure resulting in non-injurious temporary 
threshold shift (TTS) (temporary hearing loss).
    Additional information on the NEODS training operations is 
contained in the application, which is available upon request (see 
ADDRESSES).

Description of the Specified Activities

Background

    The EGTTR encompasses approximately 222,739 km\2\ (86,000 mi\2\) 
within the GOM and consists of the airspace over the GOM, which is 
scheduled and operated by Eglin AFB. Potential impacts to marine 
mammals from NEODS testing are expected to occur at the NEODS test 
areas of Eglin AFB shown in Figure 1-1 of Eglin AFB's application, 
which are located approximately three nautical miles (nmi) from shore, 
in approximately 18.3 m (60 ft) of water and in area W-151 of the 
EGTTR.
    The mission of NEODS is to detect, recover, identify, evaluate, 
render safe, and dispose of unexploded ordnance (UXO) that constitutes 
a threat to people, material, installations, ships, aircraft, and 
operations. The U.S. Navy EOD force of approximately 1,000 personnel 
has the equipment, mobility, and flexibility to tackle the global 
spectrum of threats in all world environments. Mine Countermeasures 
(MCM) detonations is one function of the U.S. Navy EOD force, which 
involves mine-hunting and mine-clearance operations. The NEODS 
facilities are located at Eglin AFB, Florida. The training at Eglin AFB 
involves focused training on basic EOD skills. Examples of these 
fundamental skills are recognizing ordnance, reconnaissance, 
measurement, basic understanding of demolition charges, and 
neutralization of conventional and chemical ordnance.
    The NEODS at Eglin AFB plan to use the GOM waters off of SRI for a 
portion of the NEODS class. The NEODS would utilize areas approximately 
one to three nmi offshore of Test Site A-15, A-10 or A-3 for MCM 
training (see Figure 1-1 of Eglin AFB's application). A ``test site'' 
is a specific location on EGTTR where the mission activities actually 
occur. The goal of the training is to give NEODS students the tools and 
techniques to implement MCM and for neutralizing mines by diving and 
hand-placing charges adjacent to the mines through real scenarios. The 
students would be taught established techniques for neutralizing mines 
by diving and hand-placing charges adjacent to the mines. The 
detonation of small, live explosive charges adjacent to the mine 
disables the mine function. Inert mines are utilized for training 
purposes. This training would occur offshore of SRI up to eight times 
annually, at varying times within the year.

[[Page 16720]]

NEODS Operations

    MCM training classes are 51 days in duration, with four days of on-
site training in the GOM. Two of these four days will be utilized to 
lay the inert mines prior to the training. The other two days will 
require the use of live detonations in the GOM. One large safety vessel 
and five MK V inflatable 3.1 m (10 ft) rubber boats with 50 horsepower 
(HP) engines would be used to access the GOM waters during training 
activities. The training procedures during the two ``live demolition'' 
days are described as follows.
    First Live Demolition Day: Five inert mines will be placed in a 
compact area on the GOM floor in approximately 60 ft of water. These 
five mines will be utilized for the one or two live demolition days. 
Divers will locate the mines by hand-held sonars (AN/PQS-2A acoustic 
locator and the Dukane Underwater Acoustic Locator System), which 
detect the mine casings (mine shape reacquisition). The hand-held sonar 
has been evaluated by the U.S. Navy and the sound source levels and 
sonar frequency ranges are below the threshold considered Level B 
harassment for marine mammals for sonar use (see Table 1-1 of Eglin 
AFB's application). Approximately 50,000 hrs of use would be required 
to affect one dolphin. It is expected that maximum sonar use associated 
with NEODS operations will be approximately 300 hrs annually. 
Therefore, potential noise impacts from sonar use are not included in 
this analysis.
    Five charges packed with C-4 explosive material (either 2.3 kg or 5 
pound [lb] net explosive weight [NEW] or 4.6 kg [10 lb] NEW) will be 
set up adjacent to the mines. A charge includes detonation cord, non-
electric caps, time fuses and fuse igniters. No more than five charges 
will be utilized over the 2-day period. Live training events will occur 
eight times annually, averaging once every six to seven weeks. Four of 
the training events will involve 5-lb charges, and four events will 
involve 10-lb charges. Because five detonations (maximum) are expected 
during each event, there will be up to twenty 5-lb detonations and 
twenty ten-lb detonations annually, for a total of 40 detonations.
    NMFS and the U.S. Air Force expect that 60 percent of the training 
events will occur in summer, and 40 percent will occur in winter, and 
analyses of potential marine mammal impacts in Section 6 of Eglin AFB's 
application reflect this seasonal distribution. Overpressure from the 
detonation is intended to disrupt the electrical charge on the mine, 
rendering it safe. The five charges will be detonated individually with 
a maximum separation time of 20 minutes between each detonation. The 
time of detonation will be limited to an hour after sunrise and an hour 
before sunset. Mine shapes and debris will be recovered and removed 
from the GOM waters when training is completed.
    Second Live Demolition Day: Each team has two days to complete 
their entire evolution (detonation of five charges). The second day 
will be utilized only for teams not completing their evolution on day 
one.


                     Table 1--(Table 1-1 of the Application) Hand-Held Sonar Characteristics
----------------------------------------------------------------------------------------------------------------
                                                                      AN/PQS-2A                  Dukane
----------------------------------------------------------------------------------------------------------------
Operating Frequency.........................................  115 kHz to 145 kHz......  37.5 kHz +/- 1 kHz.
Sound Pressure Level........................................  178.5 dB re 1 [mu]Pa @    157 to 160.5 dB re 1
                                                               1m.                       [mu]Pa @ 1m.
----------------------------------------------------------------------------------------------------------------

    The AN/PQS-2A sonar system produces a non-continuous audible tone 
in the diver's headset when a target is located. The AN/PQS-2A sonar's 
frequency range is within the hearing range of Atlantic bottlenose 
dolphins. The U.S. Navy evaluated the use of AN/PQS-2A sonar (in 
addition to many other types of sonar systems) in a 2009 Environmental 
Impact Statement for activities in the Panama City, Florida area. Using 
a bottlenose dolphin density of 0.81 animals/km\2\, it would require 
approximately 50,000 hrs of use to reach a take level of 0.5 animals. 
As a point of comparison, if the AN/PQS-2A sonar was in use for 12 hrs 
per day on every day of training in the GOM, the total number of hrs of 
use would be 384 annually. Eglin AFB considers that there would be no 
impacts to bottlenose dolphins from AN/PQS-2A sonar use.
    Additional details regarding the NEODS training operations can be 
found in Eglin AFB's LOA application and NMFS' Environmental Assessment 
on the Promulgation of Regulations and the Issuance of Letters of 
Authorization to Take Marine Mammals, by Level B Harassment, Incidental 
to Naval Explosive Ordnance Disposal School Training Operations at 
Eglin Air Force Base, Florida (EA). The EA can also be found online at: 
http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.

Military Readiness Activity

    NEODS supports the Naval Fleet by providing training to personnel 
from all four armed services, civil officials, and military students 
from over 70 countries. The NEODS facility supports the Department of 
Defense Joint Service Explosive Ordnance Disposal training mission. 
According to the application, the U.S. Navy and the U.S. Marine Corps 
believe that the ability of personnel to detect, characterize, and 
neutralize mines from their operating areas at sea, on the shore, and 
inland, is vital to their doctrines.
    As the U.S. Air Force notes in its application, the U.S. Navy 
believes that an array of trans-national, rogue, and sub-national 
adversaries now pose the most immediate threat to American interests. 
Because of their relative low cost and ease of use, mines will be among 
the adversaries' weapons of choice in shallow-water situations, and 
they will be deployed in an asymmetrical and asynchronous manner. The 
U.S. Navy needs organic means to clear mines and obstacles rapidly in 
three challenging environments: Shallow water; the surf zone; and the 
beach zone. The U.S. Navy also needs a capability for rapid clandestine 
surveillance and reconnaissance of minefields and obstacles in these 
environments. The U.S. Air Force has determined and NMFS concurs that 
the NEODS mission in the GOM offshore of Eglin AFB is a military 
readiness activity for purposes of the MMPA as amended by the National 
Defense Authorization Act for Fiscal Year 2004 (NDAA, Pub. L. 108-236 
referencing the definition in section 315 (f) of Pub. L. 107-314).

Dates, Duration, and Location of Specified Activity

    NEODS missions will occur over the next five years utilizing 
resources within the Eglin Military Complex, including three sites in 
the EGTTR (Figure 1-1 of Eglin AFB's application). There will be eight 
training events annually, with an average of one event occurring every 
six to seven weeks. Half

[[Page 16721]]

of the events will involve 5-lb charges and half will involve 10-lb 
charges.
    Area W-151: The inshore and offshore boundaries of W-151 are 
roughly parallel to the shoreline contour. The shoreward boundary is 3 
nmi from shore, while the seaward boundary extends approximately 85 to 
100 nmi offshore, depending on the specific location. W-151 covers a 
surface area of approximately 35,145 km\2\ (10,247 nmi\2\), and 
includes water depths ranging from approximately 35 to 700 m (114.8 to 
2,296.6 ft). This range of depth includes continental shelf and slope 
waters. Approximately half of W-151 lies over the shelf. Latitude/
Longitude of corners of W-151:
     30.24006[deg] North, -86.808838[deg] West.
     29.539011[deg] North, -84.995536[deg] West.
     28.03949[deg] North, -85.000147[deg] West.
     28.027598[deg] North, -85.199395[deg] West.
     28.505304[deg] North, -86.799043[deg] West.
    Area W-151A: W-151-A extends approximately 60 nmi offshore and has 
a surface area of 8,797 km\2\ (2,565 nmi\2\). Water depths range from 
approximately 35 to 350 m (114.8 to 1,148.3 ft) and include continental 
shelf and slope zones. However, most of W-151A occurs over the 
continental shelf, in water depths less than 250 m (820.2 ft). 
Latitude/Longitude of four corners of W-151A:
     30.24006[deg] North, -86.808838[deg] West.
     30.07499[deg] North, -85.999327[deg] West.
     29.179968[deg] North, -85.996341[deg] West.
     29.384439[deg] North, -86.802579[deg] West.

Description of Marine Mammals and Habitat Affected in the Activity Area 
of the Specified Activities

    Marine mammal species that potentially occur within the EGTTR 
include several species of cetaceans and one sirenian, the West Indian 
manatee (see Table 1 below). The marine mammals that generally occur in 
the training operations area belong to three taxonomic groups: 
Mysticetes (baleen whales), odontocetes (toothed whales and dolphins), 
and sirenians (the manatee). Marine mammal species listed as Endangered 
under the U.S. Endangered Species Act (ESA), include the humpback, sei, 
fin, blue, North Atlantic right, sperm whale, and Florida manatee. 
Table 2 below outlines the marine mammal species, their habitat in the 
region of the project area, and their ESA and MMPA conservation status.
    During winter months, manatee distribution in the GOM is generally 
confined to southern Florida. During summer months, a few may migrate 
north as far as Louisiana. However, manatees primarily inhabit coastal 
and inshore waters and rarely venture offshore. NEODS missions would be 
conducted one to three nmi from shore. Therefore, effects on manatees 
are considered very unlikely, and the discussion of marine mammal 
species is confined to cetaceans. The primarily cetacean occurring in 
the NEODS area of interest, EGTTR sub-area 197 (Figure 3-1 of Eglin 
AFB's application), is the Atlantic bottlenose dolphin and this 
analysis will focus on that species.

 Table 2--The Habitat and Conservation Status of Marine Mammals Inhabiting the Action Area in the Gulf of Mexico
                                                 Off of Florida
----------------------------------------------------------------------------------------------------------------
              Species                          Habitat                    ESA \1\                MMPA \2\
----------------------------------------------------------------------------------------------------------------
Mysticetes:
    North Atlantic right whale       Coastal and shelf..........  EN....................  D.
     (Eubalaena glacialis).
    Humpback whale (Megaptera        Pelagic, nearshore waters,   EN....................  D.
     novaeangliae).                   and banks.
    Bryde's whale (Balaenoptera      Pelagic and coastal........  NL....................  NC.
     edeni).
    Minke whale (Balaenoptera        Pelagic and coastal........  NL....................  NC.
     acutorostrata).
    Blue whale (Balaenoptera         Pelagic and coastal........  EN....................  D.
     musculus).
    Sei whale (Balaenoptera          Primarily offshore, pelagic  EN....................  D.
     borealis).
    Fin whale (Balaenoptera          Slope, mostly pelagic......  EN....................  D.
     physalus).
Odontocetes:
    Sperm whale (Physeter            Pelagic, deep seas.........  EN....................  D.
     macrocephalus).
    Cuvier's beaked whale (Ziphius   Pelagic....................  NL....................  NC.
     cavirostris).
    Gervais' beaked whale            Pelagic....................  NL....................  NC.
     (Mesoplodon europaeus).
    True's beaked whale (Mesoplodon  Pelagic....................  NL....................  NC.
     mirus).
    Blainville's beaked whale        Pelagic....................  NL....................  NC.
     (Mesoplodon densirostris).
    Sowerby's beaked whale           Pelagic....................  NL....................  NC.
     (Mesoplodon bidens).
    Dwarf sperm whale (Kogia sima).  Offshore, pelagic..........  NL....................  NC.
    Pygmy sperm whale (Kogia         Offshore, pelagic..........  NL....................  NC.
     breviceps).
    Killer whale (Orcinus orca)....  Widely distributed.........  NL....................  NC
                                                                  EN--Southern Resident.  D--Southern Resident,
                                                                                           AT1 Transient.
    Short-finned pilot whale         Inshore and offshore.......  NL....................  NC.
     (Globicephala macrorhynchus).
    False killer whale (Pseudorca    Pelagic....................  NL....................  NC.
     crassidens).
    Melon-headed whale               Pelagic....................  NL....................  NC.
     (Peponocephala electra).
    Pygmy killer whale (Feresa       Pelagic....................  NL....................  NC.
     attenuata).
    Risso's dolphin (Grampus         Pelagic, shelf.............  NL....................  NC.
     griseus).
    Bottlenose dolphin (Tursiops     Offshore, inshore, coastal,  NL....................  NC.
     truncatus).                      estuaries.

[[Page 16722]]

 
                                                                                          S--33 stocks
                                                                                           inhabiting the bays,
                                                                                           sounds, and estuaries
                                                                                           along GOM coast.
                                                                                          D--Western North
                                                                                           Atlantic Coastal.
    Rough-toothed dolphin (Steno     Pelagic....................  NL....................  NC.
     bredanensis).
    Fraser's dolphin (Lagenodelphis  Pelagic....................  NL....................  NC.
     hosei).
    Striped dolphin (Stenella        Pelagic....................  NL....................  NC.
     coeruleolba).
    Pantropical spotted dolphin      Pelagic....................  NL....................  NC
     (Stenella attenuata).                                                                D--Northeastern
                                                                                          Offshore.
    Atlantic spotted dolphin         Coastal to pelagic.........  NL....................  NC.
     (Stenella frontalis).
    Spinner dolphin (Stenella        Mostly pelagic.............  NL....................  NC.
     longirostris).                                                                       D--Eastern.
    Clymene dolphin (Stenella        Pelagic....................  NL....................  NC.
     clymene).
Sirenians:
    West Indian (Florida) manatee    Coastal, rivers, and         En....................  D.
     (Trichechus manatus              estuaries.
     latirostris).
----------------------------------------------------------------------------------------------------------------
\1\ U.S. Endangered Species Act: EN = Endangered, T = Threatened, and NL = Not listed.
\2\ U.S. Marine Mammal Protection Act: NC = Not classified, D = Depleted, and S = Strategic.

    The three species of marine mammals that are known to commonly 
occur in close proximity to the NEODS training area of the GOM are the 
West Indian (Florida) manatee, Atlantic spotted dolphin, and Atlantic 
bottlenose dolphin.

Florida Manatee

    The West Indian manatee in Florida and U.S. waters is listed as 
Endangered under the Endangered Species Act (ESA). They primarily 
inhabit coastal and inshore waters. Because the Florida manatee is 
managed under the jurisdiction of the U.S. Fish and Wildlife Service 
(USFWS) it is not considered further in this analysis.

Atlantic Spotted Dolphins

    The Atlantic spotted dolphin is endemic to the Atlantic Ocean in 
temperate to tropical waters (Perrin et al., 1987, 1994). In the GOM, 
Atlantic spotted dolphins occur primarily from continental shelf waters 
10 to 200 m (33 to 656 ft) deep to slope waters greater than 500 m 
(1,640 ft) deep (Fulling et al., 2003; Mullin and Fulling, 2004). 
Atlantic spotted dolphins were seen in all seasons during GulfCet 
aerial surveys of the northern GOM from 1992 to 1998 (Hansen et al., 
1996; Mullin and Hoggard, 2000). It has been suggested that this 
species may move inshore seasonally during spring, but data supporting 
this hypothesis are limited (Caldwell and Caldwell, 1966; Fritts et 
al., 1983).
    Eglin AFB has included Atlantic spotted dolphins in previous 
requests for IHAs to be conservative, although their occurrence is 
considered unlikely. The stock assessment reports for the northern GOM 
describes the shoreward range of Atlantic spotted dolphins as 10 m (33 
ft) depth. NEODS activities can occur from one to three miles offshore. 
Maximum water depth of the activities is 18.3 m (60 ft), but they often 
train in approximately 9.1 m (30 ft) of water, so this species range 
occurs at the very edge of the activities. Therefore, the chance of 
impacting Atlantic spotted dolphins is remote, especially given the 
monitoring and mitigation measures described below.

Atlantic Bottlenose Dolphins

    The marine mammal species most likely to be affected by the NEODS 
training operations is the Atlantic bottlenose dolphin. Atlantic 
bottlenose dolphins are distributed worldwide in tropical and temperate 
waters. Atlantic bottlenose dolphins occur in slope, shelf, and inshore 
waters of the entire GOM, and their diet consists mainly of fish, 
crabs, squid, and shrimp (Caldwell and Caldwell, 1983). In addition, a 
coastal and an offshore form of the bottlenose dolphin have been 
suggested. Baumgartner et al. (2001) suggest a bimodal distribution in 
the northern GOM, with a shelf population occurring out to the 150 m 
(492 ft) isobath and a shelf break population out to the 750 m (2,460.6 
ft) isobath. Occurrence in water with depth greater than 1,000 m 
(3,280.8 ft) is not considered likely and is not applicable to this 
assessment. Migratory patterns from inshore to offshore are likely 
associated with the movements of prey rather than a preference for a 
particular habitat characteristic (such as surface water temperature) 
(Ridgeway, 1972; Irving, 1973; Jefferson et al., 1992).
    Based on a combination of geography, ecological, and genetic 
research, Atlantic bottlenose dolphins have been divided into many 
separate stocks within the GOM. Within the EGTTR, there are four 
defined stocks of bottlenose dolphins: The Northern GOM Oceanic Stock, 
the Northern GOM Continental Shelf Stock, the Eastern GOM Coastal 
Stock, and the Northern GOM Coastal Stock. In addition, there are 33 
stocks of bottlenose dolphins inhabiting the bays, sounds, and 
estuaries along the GOM coast (Waring et al., 2007). NEODS training 
operations occur offshore of Eglin AFB's SRI property in water depths 
of approximately 60 ft. This location most closely coincides with the 
defined boundary of the Northern GOM Coastal Stock, which is considered 
to occur from the GOM shoreline to the 20 m (65.6 ft) isobath. However, 
individuals from the Northern GOM Bay, Sound, and Estuarine Stocks may 
also potentially enter the training areas, as movement between various 
communities has been documented (see Waring et al., 2009).
    NEODS training operations occur geographically between the 
Pensacola/East Bay and Choctawhatchee Bay stocks, although individuals 
from other

[[Page 16723]]

locations could potentially travel through the training areas as well. 
The Northern GOM coastal stocks and all bay, sound, and estuarine 
stocks are designated as strategic under the MMPA. Strategic stocks are 
defined by the MMPA as a marine mammal stock for which the level of 
direct human-caused mortality exceeds the potential biological removal 
level; which, based on the best available scientific information, is 
declining and is likely to be listed as a threatened species under the 
ESA within the foreseeable future; or which is listed as a threatened 
or endangered species under the ESA, or is designated as depleted under 
the MMPA. For the coastal stocks, total human-caused mortality and 
serious injury for each stock is not known and there is insufficient 
information available to determine whether the total fishery-related 
mortality and serious injury for each stock is insignificant and 
approaching zero mortality and serious injury rate. Because for each 
stock the stock size is currently unknown and potential biological 
removal (PBR) undetermined, and because there are documented cases of 
human-related mortality from a number of sources, each stock is a 
strategic stock. For the bay, sound, and estuarine stocks, human-caused 
mortality and serious injury for each of these stocks is not known, but 
considering the evidence from stranding data, the total fishery-related 
mortality and serious injury exceeds 10 percent of the total known PBR 
or previous PBR, and, therefore, it is probably not insignificant and 
approaching the zero mortality and serious injury rate. Because most of 
the stock sizes are currently unknown, but likely relatively few 
mortalities and serious injuries would exceed PBR, NMFS considers that 
each of these stocks is a strategic stock (NMFS, 2009).
    Prior to the 2007 Garrison survey and model predictions, the best 
estimates of Northern GOM Atlantic bottlenose dolphin abundance were 7 
to 15 years old, occurred during different seasons, and each of the 
surveys suffered from differing degrees of negative bias in abundance 
estimates because all surveys assumed that all animals on the trackline 
were seen. Therefore, estimates based on those surveys would be highly 
uncertain. Based on data from the Protected Species Habitat Modeling in 
the EGTTR, the total estimate of abundance of bottlenose dolphins from 
the winter 2007 survey was 65,861 (95 percent CI 36,699 to 118,200) and 
for the summer 2007 survey was 11,433 animals (95 percent CI 7,346 to 
17,793) (Garrison, 2008). For the summer and winter surveys, the 
highest density of bottlenose dolphins occurred in the northern inshore 
stratum. The summer survey overall abundance estimate for bottlenose 
dolphins was approximately 50 percent lower than the winter survey 
(Garrison, 2008). Bottlenose dolphin stocks for the shelf edge and 
slope are not considered strategic. The PBR for shelf and slope stocks 
is 45 dolphins (Waring et al., 2001). The exact structure of these 
stocks is complex and continues to be revised as research is completed.
    The presence of fish in the stomachs of some individual offshore 
bottlenose dolphins suggest that they dive to depths of more than 500 m 
(1,640 ft). A tagged individual near Bermuda had maximum recorded dives 
of 600 to 700 m (1,969 to 2,297 ft) and durations of 11 to 12 minutes. 
Dive durations up to 15 minutes have been recorded for trained 
individuals. Typical dives, however, are more shallow and of a much 
shorter duration. Data from a tagged individual off Bermuda indicated a 
possible diel dive cycle (i.e., a regular daily dive cycle) in search 
of mesopelagic (living at depths between 180 and 900 m [591 and 2,953 
ft]) prey in the deep scattering layer.
    In the EGTTR as a whole, there were a total of 281 groups of 
bottlenose dolphins during the winter survey and 162 groups during the 
summer survey. According to the species-habitat model for bottlenose 
dolphins, densities were predicted to be highest in relatively shallow 
water, with an offshore peak in density between 40 to 60 m (131 to 
196.9 ft) depth and in waters ranging between 27.5 to 28.5 [deg]C (81.5 
to 83.3 [deg]F) (Garrison, 2008).
    Bottlenose dolphin density estimates for the study area are derived 
from Protected Species Habitat Modeling in the EGTTR (Garrison, 2008). 
NMFS developed habitat models using new aerial survey line transect 
data collected during the winter and summer of 2007. The winter survey 
was conducted primarily during the month of February (water 
temperatures of 12 to 15 [deg]C [53.6 to 59 [deg]F]) while the summer 
survey was primarily during July (water temperatures >26 [deg]C [78.8 
[deg]F]). In combination with remotely sensed habitat parameters (sea 
surface temperature and chlorophyll), these data were used to develop 
spatial density models for bottlenose dolphins within the continental 
shelf and coastal waters of the eastern GOM. Encounter rates during the 
aerial surveys were corrected for sighting probabilities and the 
probability that animals were available to be seen on the surface. The 
models predict the absolute density of bottlenose dolphins within the 
EGTTR. Given that the survey area (EGTTR sub-area 197, Figure 3-1 of 
Eglin AFB's application) completely overlaps the NEODS mission area and 
that this data is currently the best available survey data, these 
models best reflect the occurrence of bottlenose dolphins within the 
EGTTR. Most, but not all, of the NEODS mission area is contained within 
EGTTR subarea 197 (see Figure 3-1 of Eglin AFB's application). The two 
westernmost test areas lie within subarea 197, but the easternmost one 
does not. Dolphin density is not available for the area directly east 
of subarea 197. However, the physical and biological parameters used to 
develop density estimates in this subarea likely do not differ 
significantly between the training areas. The density estimate for 
subarea 197 is therefore considered the best currently available and is 
applied to all locations of NEODS training operations.
    Table 3-1 of Eglin AFB's application provides median and adjusted 
bottlenose dolphin densities in EGTTR sub-area 197. These absolute 
estimates of density (animals per square kilometer [km\2\] were 
produced by combining the spatial density model, sighting probability, 
and availability model (Garrison, 2008). All environmental terms were 
retained in the species-habitat model for the winter survey and the 
summer survey with the exception of glare for the summer survey. The 
model fits for the winter and summer were highly significant, explained 
a significant portion of the variability in the data, and resulted in 
effective predictions of spatial distribution of bottlenose dolphins.
    NEODS missions may be executed at any time during the year. It is 
anticipated that approximately 60 percent of missions will be executed 
during summer months, and 40 percent will be executed during winter 
months. Separate summer and winter density estimates are provided in 
Table 3-1 of Eglin AFB's application. Months with high CV values 
(greater than 1) have high degrees of uncertainty in the model 
predictions. These months include May, June, September, October, and 
November where density was unknown. In order to compensate for the 
months without good estimates, interpolation was used between the 
available months by providing a means of estimating the function at 
intermediate points through presuming that there were linear seasonal 
trends. Interpolation assumes that the poorly estimated periods lie 
somewhere in the middle of the well estimated periods. Adjusted 
densities for each month were reached after

[[Page 16724]]

interpolation calculations (see Table 3-1 of Eglin AFB's application). 
Based on the adjusted densities, January, March, and July have the 
highest bottlenose dolphin densities while the months from August 
through December months have the lowest densities. On average, there 
are 0.81 bottlenose dolphins/km\2\ throughout the year in EGTTR sub-
area 197. Seasonally there are on average 0.84 dolphins/km\2\ during 
summer and 0.78 dolphins/km\2\ during winter in sub-area 197. NMFS has 
independently evaluated the foregoing approach for calculating the 
likely occurrence and density of bottlenose dolphins in the specified 
geographic area and determined that it yields the best scientific data 
available for purposes of determining the extent of impacts to affected 
stocks, the likely amount of incidental harassment, and informing the 
negligible impact determination.

           Table 3--(Table 3-1 of the Application) Bottlenose Dolphin Densities for EGTTR Sub-Area 197
----------------------------------------------------------------------------------------------------------------
                                                                                                     Adjusted
                                              Median  density                                        density
                    Month                       (individuals/         CV             Valid        (individuals/
                                                   km\2\)                                           km\2\) \a\
----------------------------------------------------------------------------------------------------------------
November....................................             0.00            31.62                0             0.51
December....................................             0.52             0.25                1             0.52
January.....................................             1.24             0.22                1             1.24
February....................................             0.73             0.20                1             0.73
March.......................................             1.22             0.28                1             1.22
April.......................................             0.84             0.46                1             0.84
                                             -------------------------------------------------------------------
    Average Winter Density..................  ...............  ...............  ...............             0.84
                                             -------------------------------------------------------------------
May.........................................             0.00            22.41                0             0.95
June........................................             0.00             4.47                0             1.06
July........................................             1.17             0.24                1             1.17
August......................................             0.48             0.22                1             0.48
September...................................             0.01             3.02                0             0.49
October.....................................             0.00            20.43                0             0.50
                                             -------------------------------------------------------------------
    Average Summer Density..................  ...............  ...............  ...............             0.78
                                             -------------------------------------------------------------------
        Overall Average Density.............  ...............  ...............  ...............             0.81
----------------------------------------------------------------------------------------------------------------
\a\ Adjusted through interpolation.

    NMFS anticipates that no bottlenose dolphins will be injured, 
seriously injured, or killed during the NEODS training operations. The 
specific objective of the U.S. Air Force's mitigation and monitoring 
plan is to ensure that no dolphins (or manatees) or other protected 
species are in the action area where they might be impacted by the 
explosive detonations. Because of the circumstances and the mitigation 
and monitoring requirements discussed in this document, NMFS believes 
it highly unlikely that the activities would result in injury (Level A 
harassment), serious injury, or mortality of bottlenose dolphins; 
however, they may temporarily avoid the area where the explosive 
demolitions will occur (after there has been at least one detonation). 
Eglin AFB has requested the incidental take of 10 bottlenose dolphin 
each year and approximately 50 animals during the five year duration of 
the action.
    Further information on the biology, habitat, and local distribution 
of these species and others in the region can be found in Eglin AFB's 
application, which is available upon request (see ADDRESSES), and the 
NMFS Marine Mammal Stock Assessment Reports, which are available online 
at: http://www.nmfs.noaa.gov/pr/species/.

Comments and Responses

    On January 15, 2010, NMFS published a notice of receipt of 
application for a LOA in the Federal Register (75 FR 2490) and 
requested comments, information, and suggestions from the public for 30 
days. NMFS received comments from the Marine Mammal Commission 
(Commission) and a private citizen. The private citizen's comments 
opposed the issuance of an authorization without providing any specific 
rationale for that position. NMFS, therefore, cannot respond to this 
comment. NMFS' responses to the Commission's comments are addressed in 
the proposed rule (75 FR 60694, October 1, 2010). On October 1, 2010, 
NMFS published a Notice of Proposed Rule (75 FR 60694) on the U.S. Air 
Force's request to take marine mammals incidental to NEODS training 
operations at Eglin AFB and requested, comments, information, and 
suggestions concerning the request. During the 30-day public comment 
period for the proposed rule, NMFS received comments from two private 
citizens and the Commission. The following are the comments and NMFS' 
responses.
    Comment 1: A comment from a private citizen does not support giving 
this permit to Eglin AFB because marine mammals ``deserve to live, not 
be bombed to death or have sonar cause brain hemorrhages so that they 
can't navigate and die from blood hemorrhages.''
    Response: Eglin AFB and NMFS have evaluated the potential harm to 
marine mammals resulting from NEODS activities using the best currently 
available science. It is possible that bottlenose dolphins may be 
affected by underwater detonations. However, as discussed in the 
proposed rule, these effects will most likely be in the form of 
temporary behavioral disturbance, not injury or death. NMFS is 
requiring monitoring and mitigation measures to be implemented during 
all missions, and expects that these measures will significantly 
decrease the potential for impacts and reduce likely incidental 
harassment to a level that does not exceed negligible impact as defined 
by 50 CFR 216.103. The hand-held sonar used during NEODS activities are 
not likely to affect marine mammals. Due to the location of the NEODS 
training operations and required pre-mission monitoring, it is highly 
unlikely that manatees will be affected. In addition, section 
101(a)(5)(A) of the MMPA requires that the Secretary to issue the

[[Page 16725]]

requested authorization to the U.S. Air Force only if the Secretary 
determines that the NEODS training operations will result in a 
negligible impact on the affected species or stocks, and the 
authorization prescribes the permissible methods of taking, mitigation 
measures for effecting the least practicable adverse impact to species 
or stocks, and requirements for monitoring and reporting.
    Comment 2: A comment from a private citizen states that the 
proposed rule is an immediate threat to bottlenose dolphins and even 
manatees in the coastal waters surrounding Florida. The suggestion that 
Level B harassment to marine species is acceptable in order for Naval 
students to arm/disarm underwater mines is negligent and extreme, 
especially when our oceans are facing rapid change in temperature, 
over-fishing, and toxic waste.
    Moreover, the Sarasota Dolphin Research Agency states ``evaluating 
the effects of * * * noise on marine mammals [in order to] expand 
understanding of * * * threats to bottlenose dolphins * * * 
observations made during * * * detonation * * * indicated that dolphins 
do exhibit behavioral responses'' (Buckstaff and Ganon, 2010; http://www.sarasotadolphin.org/Human/ResponseConstruction.asp). Essentially, 
not enough research has been conducted on long term outcome of sound 
and noise on bottlenose dolphins (or other marine life), and blatant 
disregard for marine environments is an abuse of the Naval authority.
    The commenter challenges the rule in its entirety, and requests the 
U.S. Navy find other manners in which to test the student aptitude of 
arming/disarming underwater mines. Ordnance training can occur in 
simulated marine environments without posing needless harm to the 
animals and ecosystems of coastal waters.
    Response: The NEODS training operations are necessary to train U.S. 
Navy personnel to detect, recover, identify, evaluate, render safe, and 
dispose of unexploded ordnance that constitutes a threat to people, 
material, installations, ships, aircraft, and operations. Although most 
NEODS components of the training operations are conducted on land and 
in controlled environments, the training described in this application 
is carried out in real-world conditions in order to make the training 
as effective as reasonably possible. Simulated environments (e.g., 
pools) generally do not effectively represent open-ocean conditions.
    While better understanding the effects of underwater noise on 
marine species is an important goal, Eglin AFB and NMFS has evaluated 
the potential harm to marine mammals resulting from NEODS activities 
using the best currently available science. While bottlenose dolphins 
may be affected by underwater detonations, because of the infrequency 
and short duration of the detonations these impacts are expected to be 
minimal. Additionally, the U.S. Air Force and NMFS will require 
monitoring and mitigation measures to be implemented during all NEODS 
missions, and expects that these measures will result in the lowest 
practicable adverse impact on marine mammal species and stocks and 
reduce likely incidental harassment to a level that does not exceed a 
negligible impact as defined by 50 CFR 216.103. Due to the location of 
NEODS training operations and required pre-mission monitoring, it is 
highly unlikely that manatees will be affected.
    Comment 3: The Commission recommends that the NMFS require the U.S. 
Air Force to describe in detail the environmental parameters and 
procedures used to determine the safety zones and subsequent takes and 
incorporate these in the final rule.
    Response: Before issuing the final rule, NMFS required the U.S. Air 
Force to describe in detail the environmental parameters and procedures 
used to determine safety zones (i.e. ZOIs) and subsequent takes. 
Underwater noise propagation, and therefore the distance to which noise 
thresholds are estimated to extend, depends upon a number of 
environmental parameters. For estimating threshold distances in the 
U.S. Air Force's MMPA application for NEODS training operations, Eglin 
AFB used a proprietary application developed by a contractor, Science 
Applications International Corporation. The application permits users 
to input data related to underwater explosions into an Excel 
spreadsheet, including net explosive weight, number of detonations, and 
the desired noise threshold metrics. The possible metrics include 
energy expressed as decibel levels (total energy and/or greatest 1/3 
octave band), peak pressure (psi), and positive impulse (psi-msec). The 
program output then displays the distance from source to which a 
particular threshold extends. Various threshold distances are provided 
according to depth of detonation, season (summer or winter), and 
province number.
    The Warning Areas most frequently used for military testing and 
training exercises in the Gulf of Mexico (W-155, W-151, and W-470) have 
been divided into 16 acoustic provinces derived from U.S. Navy 
oceanographic and environmental databases. Within a given province, 
water depth, sound speed, and sediment properties are similar, and 
therefore acoustic properties are expected to be similar. NEODS 
training operations will occur in W-151. The relevant oceanographic and 
environmental data was entered into the spreadsheet, and noise 
threshold distances corresponding to the appropriate depth, season, and 
province number were provided and used to populate Table 6-2 in Eglin 
AFB's application. NMFS has included these environmental parameters and 
procedures used to determine the safety zones (i.e., ZOIs) and 
subsequent takes and incorporated these in the final rule.
    Comment 4: The Commission recommends that before issuing the final 
rule, NMFS require the U.S. Air Force to re-estimate the safety zones 
and associated takes based on the Level A harassment (injury) threshold 
of 13 psi-msec and the Level B harassment (non-TTS) threshold of 177 dB 
re 1 [mu]Pa\2\-sec.
    Response: Before issuing the final rule, NMFS has required and 
Eglin AFB Natural Resources Section has re-estimated the safety zones 
and associated incidental takes so that they include 13psi-msec (Level 
A harassment) and 177 dB re 1 [mu]Pa\2\-sec (Level B harassment) 
thresholds. Revisions were made in the application accordingly and are 
also reflected in NMFS' take estimates and final rule, and will be in 
subsequent authorizations. The application is available online on the 
NMFS Incidental Take Authorization Web site at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#iha. NMFS has relied on 
those revisions in establishing safety zones in the final rule.
    Comment 5: The Commission recommends that before issuing the final 
rule, NMFS provide additional justification for its preliminary 
determination that the mitigation and monitoring measures would be 
sufficient to detect, with a high level of confidence, all marine 
mammals within or entering the identified safety zones; this would 
include describing changes in detection probability under various sea 
state and weather conditions. If such information is not available, 
then NMFS and the U.S. Air Force should undertake the studies needed to 
verify that the proposed mitigation and monitoring measures are likely 
to detect all or nearly all marine mammals in or near the safety zones 
and, if necessary, develop alternative means of detecting marine 
mammals in or near those zones. As it has noted in past correspondence, 
the Commission would be pleased to

[[Page 16726]]

discuss with NMFS and the U.S. Air Force the collection and analysis of 
such data and the design of such experiments to promote a better 
understanding of the utility and shortcomings of visual monitoring as 
an effective mitigation measure.
    Response: The probability of sighting bottlenose dolphins within 
the monitoring zone is affected by animal behavior, observer 
effectiveness, and weather/Beaufort sea state and wind force. Species 
that occur in groups, exhibit conspicuous surface activity (e.g., 
leaping, splashing, and visible blows), and surface often are more 
likely to be observed than species for which one or more of these 
attributes is not applicable. Bottlenose dolphin behavior is considered 
conducive to effective observation. The typical group size of 2 to 15 
individuals (DON, 2007a; Wursig et al., 2000) is expected to occur in 
the area of NEODS training operations. Although dives of 10 to 15 
minutes have been recorded for trained individuals, the typical dive 
time is 3 to 4 minutes (Wynne and Schwartz, 1999). Observation for 
dolphins will occur at least 30 minutes before detonations occur. 
Therefore, it is likely that at least one individual will be at the 
surface during the observation time frame. In addition, bottlenose 
dolphins are generally surface-active and, due to dive times, surface 
relatively frequently. Caretta et al. (2000) considered the likelihood 
of bottlenose dolphins being observed during surveys in the Pacific 
great enough that the possibility of missed individuals on the transect 
line was discounted.
    Eglin AFB will require the use of trained observers during NEODS 
training operations involving detonations. Due in part to the dolphin 
behavioral characteristics and mission requirements described above, it 
is expected that observers will have a high detection rate in 
acceptable weather conditions. A Beaufort sea state of less than 3 is 
considered optimal for cetacean observation (Davis et al., 2000), and 
mitigation measures stipulate that missions will be delayed if sea 
state is greater than 3. Detection probability generally decreases with 
distance from the observer. However NMFS expects that observation 
effectiveness will be acceptable within the specified range (880 m 
maximum or 2,887 ft).
    Specific information on the probability of observing bottlenose 
dolphins from a stationary platform in the nearshore GOM is not 
available. Various authors have generally addressed the issue of 
observation effectiveness during cetacean surveys. Two types of bias 
are often discussed in this context, including perception and 
availability bias. Perception bias refers to the failure of observers 
to detect animals, although they are present in the survey area and 
available to be seen. Availability bias refers to animals that are in 
the survey area, but are not able to be seen because they are submerged 
when observers are present. The probability of detecting bottlenose 
dolphins on a transect line during shipboard surveys has been estimated 
by various authors as between 62 and 100 percent (DON, 2007b). These 
probabilities take into account perception and availability bias. 
However, these estimates are not necessarily applicable to NEODS 
operations because they represent results from survey efforts on moving 
vessels (NEODS observers will be stationary) and occur in different 
geographic locations.
    Comment 6: The Commission recommends that NMFS condition the final 
rule and any LOA issued under that rule to require suspension of the 
proposed activities if a marine mammal is seriously injured or killed 
and the injury or death could be associated with the proposed 
activities and, if supplementary measures are unlikely to reduce the 
risk of serious injury or death to a very low level, require the U.S. 
Air Force to suspend its activities until an authorization for such 
taking has been obtained.
    Response: Although Eglin AFB Natural Resources Section believes the 
required monitoring and mitigation measures will substantially reduce 
the potential for impacts to bottlenose dolphins, the U.S. Air Force is 
willing to require that NEODS activities be suspended if a marine 
mammal is seriously injured or killed and the injury or death can be 
associated by the U.S. Air Force with the NEODS operations. In 
addition, Eglin AFB agrees that, if supplementary measures are unlikely 
to reduce the risk of serious injury or death to a very low level, 
activities should be suspended until an authorization for such take has 
been obtained. This requirement has been added to the application under 
the Mitigation Procedures Plan and NMFS has included it as a 
requirement in the final rule.
    Comment 7: In exchanged emails, the Commission and NMFS noted 
discrepancies within both the application and NMFS' proposed rule. In 
response, the U.S. Air Force made several clarifications and agreed to 
work with NMFS to correct the other discrepancies, including 
determining safety zones and estimated takes associated with Level B 
harassment (non-TTS) for multiple detonations. The Commission 
recommends that NMFS ensure that numerous discrepancies in the 
application and proposed rule are corrected in the final rule.
    Response: Eglin AFB has addressed all issues noted in the 
Commission's comments submitted via email as well as those officially 
submitted during the public comment period for the proposed rule. NMFS 
has ensured that these discrepancies in the application and proposed 
rule are corrected in the final rule.

Potential Effects of Specified Activities on Marine Mammals and 
Estimates of Take by Harassment

    In general, potential impacts to marine mammals from explosive 
detonations could include non-lethal injury (Level A harassment), 
serious injury, and mortality, as well as Level B harassment, which can 
consist of behavioral disturbance or temporary loss of hearing 
sensitivity. In the absence of monitoring and mitigation, marine 
mammals may be killed or injured as a result of an explosive detonation 
due to direct physiological effects such as the response of air 
cavities in the body, including the lungs and bubbles in the 
intestines. Effects are likely to be most severe in near surface waters 
where the reflected shock wave creates a region of negative pressure 
called ``cavitation.''
    A second potential possible cause of mortality is the onset of 
extensive lung hemorrhage. Extensive lung hemorrhage is considered 
debilitating and potentially fatal. Suffocation caused by lung 
hemorrhage is likely to be the major cause of marine mammal death from 
underwater shock waves. The estimated range for the onset of extensive 
lung hemorrhage to marine mammals varies depending upon the animal's 
weight, with the smallest mammals having the greatest potential hazard 
range.
    Marine mammals may potentially be harassed due to noise from NEODS 
mission involving underwater detonations. For example, exposing 
bottlenose dolphins to underwater noise from explosive detonations 
could result in disturbing important behavioral patterns. The potential 
numbers and species harassed by noise are assessed in this section. 
Three key sources of information are necessary for estimating potential 
noise effects on marine resources: (1) The number of distinct firing or 
test events; (2) the ZOI for noise exposure; and (3) the population 
density of animals that potentially occur within the ZOI. The ZOI 
reflects the geographic extent of the effects anticipated from the

[[Page 16727]]

action. The ``test site'' and ``mission area'' are both found within 
the ZOI.
    For the acoustic analysis, the exploding charge is characterized as 
a point source. The impact thresholds used for marine mammals relate to 
potential effects on hearing from underwater detonation noise. No ESA-
listed marine mammals would be affected given the location of the 
action in nearshore waters. The only ESA-listed marine mammal likely to 
be found in the northeastern GOM, the Federal and state-listed 
endangered sperm whale (Physeter macrocephalus), occurs farther out on 
the continental slope in water generally deeper than 600 m (1,968.5 
ft). Manatees are not considered likely to occur in the mission areas 
(see Figure 1-1 of Eglin AFB's application) and are therefore not 
considered in this analysis.
    For the explosives in question, actual detonation depths would 
occur at 60 ft near the sand bottom. The inert mines and sea floor may 
potentially interact with the propagation of noise into the water. 
However, effects on the propagation of noise into the water column 
cannot be determined without in-water noise monitoring at the time of 
detonation. Potential exposure of a sensitive species to detonation 
noise could theoretically occur at the surface or at any number of 
depths with differing consequences. A conservative acoustic analysis 
was selected to ensure the greatest direct path for the harassment 
ranges and to give the greatest impact range for the injury thresholds.
    Criteria and thresholds that are the basis of the analysis of NEODS 
noise impacts to cetaceans were initially used in U.S. Navy 
Environmental Impact Statements for ship shock trials of the Seawolf 
submarine and the Winston S. Churchill (Churchill) vessel (DON, 1998; 
DON, 2001) and adopted by NMFS (NMFS, 2001). Supplemental criteria and 
thresholds have been introduced in the EGTTR Programmatic Environmental 
Assessment (U.S. Air Force, 2002), subsequent EGTTR LOA (U.S. Air 
Force, 2003) permit request, Precision Strike Weapons (PSW) LOA (U.S. 
Air Force, 2004), and Naval Surface Warfare Center Panama City Division 
LOA (U.S. Navy, 2008).
    Standard impulsive and acoustic metrics were used to analyze 
underwater pressure waves in this document.
     Energy flux density (EFD) is the time integral of the 
squared pressure divided by the impedance. EFD levels have units of dB 
re 1 [mu]Pa\2\[middot]s.
     1/3-Octave EFD is the energy flux density in a 1/3-octave 
frequency band; the 1/3 octave selected is the hearing range at which 
the subject animals' hearing is believed to be most sensitive.
     Peak pressure is the maximum positive pressure for an 
arrival of a sound pressure wave that a marine mammal would receive at 
some distance away from a detonation.
     Positive impulse represents a time-averaged pressure 
disturbance from an explosive source with units in psi-milliseconds 
(psi-msec).
     Units used here are psi and dB levels.
    Level A harassment is non-lethal injury, the onset of which is 
estimated based on levels associated with eardrum rupture (i.e., 
tympanic-membrane [TM] rupture) and the onset of slight lung 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 threshold is stated in terms of an EFD 
value of 1.17 in-lb/in\2\, which is about 205 dB re 1 
[mu]Pa\2\[middot]s EFD. Use of this value acknowledges 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. Ketten (1998) indicates a 30 percent incidence of 
permanent threshold shift (PTS) at the same threshold. The onset of 
slight lung injury is the second threshold considered indicative of 
non-lethal injury. A dolphin would be expected to recover from this 
type of injury. Slight lung injury is considered to occur at a positive 
impulse level of 13 psi-msec. At distances closer to the detonation, 
the pressure wave could cause extensive lung injury, leading to 
mortality. It is assumed that the range of extensive lung injury is 
less than that of slight injury; therefore, using the range of slight 
lung injury provides a more conservative take estimate.
    Public Law 108-136 (2004) amended the definition of Level B 
harassment under the MMPA for military readiness activities, such as 
this action (and also for scientific research on marine mammals 
conducted by or on the behalf of the Federal Government). For military 
readiness activities, Level B harassment is now defined as ``any act 
that disturbs or is likely to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption of natural behavioral patterns 
including, but not limited to, migration, surfacing, nursing, breeding, 
feeding, or sheltering to a point where such behavioral patterns are 
abandoned or significantly altered.'' Unlike Level A harassment, which 
is solely associated with physiological effects, both physiological and 
behavioral effects may cause Level B harassment.
    The physiological effect associated with non-injurious Level B 
harassment is known as temporary threshold shift (TTS), which is 
defined as a temporary, recoverable loss of hearing sensitivity (NMFS, 
2001; DON, 2001). Two criteria are considered indicative of the onset 
of peak pressure at 23 psi (peak). This threshold is derived from the 
Environmental Impact Statement for the (Churchill) shock testing and 
was subsequently adopted by NMFS in its final rule on the unintentional 
taking of marine mammals incidental to the shock testing (NMFS, 2001). 
The original criteria in Churchill incorporated 12 psi (peak). The 
current criteria and threshold for peak pressure over all exposures was 
updated from 12 psi (peak) to 23 psi (peak) for explosives less than 
907 kg (2,000 lb) based on an IHA issued to the U.S. Air Force for a 
similar action (NMFS, 2006a). See Table 4 (below) for NMFS' current 
criteria and thresholds for explosives. Peak pressure threshold are 
much greater than those for the energy metric when charge weights are 
small, even when source and animal are away from the surface. In order 
to more accurately estimate TTS for smaller detonations while 
preserving the safety feature provided by the peak pressure threshold, 
the peak pressure threshold is appropriately scaled for small shot 
detonations. This scaling is based on the similitude formulas (e.g., 
Urick, 1983) used in virtually all compliance documents for short 
ranges. Further, the peak-pressure threshold for TTS due to explosives 
offers a safety margin for source or animal near the ocean surface. The 
more conservative isopleth of the criteria for estimating TTS is used 
in take analysis.
    Behavioral reactions may occur at noise levels below those 
considered to cause TTS in marine mammals, particularly in cases where 
multiple detonations occur. Behavioral effects may include decreased 
ability to feed, communicate, migrate, or reproduce, among others. Such 
effects are known as sub-TTS Level B harassment. Although repetitive 
exposures (below TTS) to the same animals are considered unlikely due 
to the infrequent test events (no more than 5 detonations over a one or 
two day period), the potential variability in target locations, and the 
continuous movement of marine mammals in the northeastern GOM, the 
potential exists for a marine mammal to be impacted during multiple 
detonations. In this document, behavioral effects associated with such 
a scenario are considered to occur at an EFD level of 177 dB re 1 
[mu]Pa\2\[middot]s EFD. The tables below provide a

[[Page 16728]]

summary of threshold criteria and metrics for potential noise impacts 
to sensitive species.

 Table 4--(Table 6-1 of the Application) NMFS' Threshold Criteria and Metrics Utilized for Impact Analyses From
                                              the Use of Explosives
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
            Mortality             Level A harassment (non-lethal injury)  Level B harassment     Level B
                                                                            (non-injurious;       harassment
                                                                                TTS and       (non-injurious
                                                                               associated      behavioral, sub-
                                                                               behavioral      TTS)
                                                                            disruption [dual
                                                                               criteria])
----------------------------------------------------------------------------------------------------------------
31 psi-msec (onset of severe      205 dB re 1         13 psi-msec         182 dB re 1         177 dB re 1
 lung injury [mass of dolphin      [mu]Pa\2\[middot]   positive pressure   [mu]Pa\2\[middot]   [mu]Pa\2\[middot]
 calf]).                           s EFD (50 percent   (onset of slight    s EFD*; 23 psi      sEFD* (for
                                   of animals would    lung injury).       peak pressure (<    multiple
                                   experience TM                           2,000 lb) 12 psi    detonations
                                   rupture).                               peak pressure (>    only).
                                                                           2,000 lb).
----------------------------------------------------------------------------------------------------------------
* Note: In greatest 1/3-octave band above 10 Hz or 100 Hz.

    Noise ZOIs were calculated for bottom detonation scenarios at 60 ft 
for both Level A harassment (i.e., injury) and Level B harassment 
(significant behavioral disturbance). To determine the number of 
potential ``takes'' or animals affected, cetacean population 
information from surveys was applied to the various ZOIs. The impact 
calculations for this section utilize marine mammal density estimates 
that have been derived from a Legacy-funded NMFS/Air Force project 
(Garrison, 2008). The species density estimate data were adjusted to 
reflect the best available data and more realistic encounters of these 
animals in their natural environment (Garrison, 2008). These 
calculations and estimates are explained in detail in Section 3, and 
adjusted density estimates are provided in Table 3-1 of Eglin AFB's 
application. Although mission schedules are variable and may occur 
during any time of year, 60 percent (24 detonations) are expected to 
occur during summer and 40 percent (16 detonations) are expected to 
occur in winter. Therefore, seasonal bottlenose dolphin density 
estimates (0.78 dolphins/km\2\) in summer and 0.84 dolphins/km\2\ in 
winter) are used for take analysis.
    Table 6-2 of Eglin AFB's application gives the estimated impact 
ranges for the two explosive weights. The test locations are one to 
three nmi south of SRI. NEODS detonations were modeled for bottom 
detonations at 60 ft.

                                          Table 5--(Table 6-2 of the Application) ZOI for Underwater Explosions
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               Ranges for 205 dB                   Ranges for 182 dB                  Ranges for  177 dB
                                                 Depth of            re 1          Ranges for 13         re 1          Ranges for 23         re 1
          Ordnance               NEW (lbs)     explosion (m)  [mu]Pa\2\[middot]s   psi-msec (m)   [mu]Pa\2\[middot]s      psi (m)     [mu]Pa\2\[middot]s
                                                                   EFDL (m)                            EFDL  (m)                           EFDL  (m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Summer:
    NEODS MCM 2.3 kg (5 lb)                5              18              52.1               156             227.5               222               520
     charge.................
    NEODS MCM 4.5 kg (10 lb)              10              18                77               225               385               280               845
     charge.................
Winter:
    NEODS MCM 5 lb charge...               5              18              52.2               156             229.8               222               529
    NEODS MCM 10 lb charge..              10              18                77               226               389               280               880
--------------------------------------------------------------------------------------------------------------------------------------------------------
EFDL = Energy Flux Density Level.

    Applying the harassment ranges in Table 6-2 of the application to 
the species densities of Table 3-1 of the application, the number of 
animals potentially occurring within the ZOI was estimated. These 
results are presented in Tables 6-3, 6-4, and 6-5 of the application. 
For Level A harassment calculations (Table 6-3 of the application), the 
ZOI corresponding to 13 psi-msec is used because this radius is in all 
cases greater than the radius corresponding to 205 dB re 1 
[mu]Pa\2\[middot] s EFD. For Level B harassment calculations (Table 6-4 
of the application), the ZOI corresponding to the 182 dB re 1 
[mu]Pa\2\[middot] s EFD metric is used because this radius is in all 
cases greater than the radius corresponding to 23 psi (peak). A whole 
animal (and potential take) is defined as 0.5 or greater, where 
calculation totals result in fractions of an animal. Where less than 
0.5 animals are affected, no take is assumed. The calculations in 
Tables 6-3 and 6-4 of the application are based on the expected tempo 
of: (1) 40 total detonations per year; (2) one-half of detonations are 
of 5 lb charges, and one-half are of 10 lb charges; and (3) 60 percent 
of detonations occur in summer, and 40 percent occur in winter.

[[Page 16729]]



        Table 6--(Table 6-3 of the Application) Marine Mammal Densities and Risk Estimates for Level A Harassment (13 PSI-MSEC Positive Pressure)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      ZOI (km)                     Number of animals exposed to level A harassment
                Species                      Density     -----------------------------------------------------------------------------------------------
                                         (animals/km\2\)    5 lb charge      10 lb charge           5 lb charge                   10 lb charge
--------------------------------------------------------------------------------------------------------------------------------------------------------
Summer:
    Bottlenose Dolphin.................             0.78            0.156            0.225  0.72                        1.49
                                                                                            (12 detonations)..........  (12 detonations).
Winter:
Bottlenose Dolphin.....................             0.84            0.156            0.226  0.51                        1.08
                                                                                            (8 detonations)...........  (8 detonations).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total Number Animals Potentially Exposed To Level A Harassment A3.80lly
--------------------------------------------------------------------------------------------------------------------------------------------------------


Table 7--(Table 6-4 of the Application) Marine Mammal Densities and Risk Estimates for Level B Harassment (182 dB re 1 [mu]Pa\2\[middot]s EFD 1/3 Octave
                                                                  Band) Noise Exposure
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      ZOI (km)                 Number of animals exposed to Level B harassment (TTS)
                 Species                      Density     ----------------------------------------------------------------------------------------------
                                          (animals/km\2\)    5 lb charge    10 lb charge           5 lb charge                    10 lb charge
--------------------------------------------------------------------------------------------------------------------------------------------------------
Summer:
    Bottlenose Dolphin..................             0.78          0.2275           0.385  1.52.......................  4.36
                                                                                           (12 detonations)...........  (12 detonations).
Winter:
    Bottlenose Dolphin..................             0.84          0.2298           0.389  1.11.......................  3.19
                                                                                           (8 detonations)............  (8 detonations).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total number animals potentially exposed to Level B harassment 10.18and
 behavioral) annually
--------------------------------------------------------------------------------------------------------------------------------------------------------


Table 8--(Table 6-4 of the Application) Marine Mammal Densities and Risk Estimates for Level B Harassment (177 dB re 1 [mu]Pa\2\[middot]s EFD 1/3 Octave
                                                                  Band) Noise Exposure
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      ZOI (km)              Number of animals exposed to level B harassment (behavioral)
                Species                      Density     -----------------------------------------------------------------------------------------------
                                         (animals/km\2\)    5 lb charge      10 lb charge           5 lb charge                   10 lb charge
--------------------------------------------------------------------------------------------------------------------------------------------------------
Summer:
    Bottlenose Dolphin.................             0.78            0.520            0.845  7.95......................  20.99
                                                                                            (12 detonations)..........  (12 detonations).
Winter:
    Bottlenose Dolphin.................             0.84            0.529            0.880  5.91......................  16.35
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total number animals potentially exposed to Level B har51.20nt (sub-TTS and behavioral)
 annually
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The tables above indicate that the potential takes of marine 
mammals for non-injurious (Level B) harassment, as well as the onset of 
injury (Level A harassment) to cetaceans is possible but low, even 
without implementing any monitoring and mitigation measures. Slightly 
fewer than four bottlenose dolphins are estimated to be exposed 
annually to a positive pressure level corresponding to Level A 
harassment (13 psi-msec). Noise levels corresponding to Level B 
harassment (182 dB re 1 [mu]Pa\2\ [middot] s EFD) would potentially 
affect approximately 10 dolphins. Finally, approximately 50 dolphins 
could be exposed to noise levels associated with sub-TTS behavioral 
harassment. None of the above impact estimates take into account the 
monitoring and mitigation measures that will be employed by the 
proponent to minimize potential impacts to protected species. These 
monitoring and mitigation measures are described in Eglin AFB's 
application (see below) and are anticipated to substantially reduce the 
potential impacts to marine mammals.
    Based on the analyses and results provided here and in Section 6 of 
Eglin AFB's application, approximately four Atlantic bottlenose 
dolphins could be exposed to pressure levels (13 psi-msec) 
corresponding to Level A harassment annually in the absence of 
monitoring and mitigation measures. Approximately 10 dolphins could be 
exposed to noise levels corresponding to Level B harassment (TTS and 
associated behavioral), while 50 individuals could be exposed to noise 
levels corresponding to Level B harassment. NMFS expects that 
monitoring and mitigation measures set forth in the final rule would 
substantially reduce the number of animals impacted. The individuals 
potentially affected could be part of the Northern GOM Coastal Stock 
and/or part of one or more of the Northern GOM bay, sound, and 
estuarine stocks. The Northern GOM coastal stock and all bay, sound, 
and estuarine stocks are considered

[[Page 16730]]

strategic. Although the NEODS training area lies outside the defined 
range of the bay, sound, and estuarine stocks, movement between such 
stocks has been documented in GOM coastal waters, as described in 
Waring et al. (2009). Movements have ranged from travel through 
adjacent communities to movement over several hundred kms off Texas, 
and may include seasonal movements into GOM waters. NEODS training 
operations will occur between the ranges of the Pensacola/East Bay and 
Choctawhatchee Bay Stocks, although individuals from other locations 
could potentially travel through the training areas as well. These 
stocks and their movements are not fully understood; therefore, it is 
possible that individuals from these stocks could be affected. PBR has 
not been determined for the coastal stock due to insufficient 
information. Similarly, PBR has not been determined for many of the 
bay, sound, and estuarine stocks, including the Pensacola/East Bay and 
Choctawhatchee Bay stocks.
    Based on the calculation methods discussed above, NMFS estimated 
take numbers per year of 10 individuals and 50 individuals during the 
five-year rule for Atlantic bottlenose dolphins. The actual number of 
individual animals being exposed or taken may be less due to the U.S. 
Air Force's implementation of monitoring and mitigation measures.

Possible Effects of Activities on Marine Mammal Habitat

    The primary source of marine mammal habitat impact is noise 
resulting from live NEODS missions. However, the noise does not 
constitute a long-term physical alteration of the water column or 
bottom topography, as the occurrences are of limited duration and are 
intermittent in time. Surface vessels associated with the missions are 
present in limited duration and are intermittent as well.
    Other sources that may affect marine mammal habitat were considered 
and potentially include the introduction of fuel, debris, ordnance, and 
chemical residues in the water column. The effects of each of these 
components were considered in the NEODS BA and were determined to be 
unlikely to adversely affect protected marine species. Marine mammal 
habitat would not be affected, lost or modified.
    NMFS anticipates that the action will result in no impacts to 
marine mammal habitat beyond rendering the areas immediately around the 
NEODS training operations in the EGTTR less desirable shortly after 
each demolition event. The impacts will be localized and instantaneous. 
Impacts to marine mammal, invertebrate, and fish species are not 
expected to be detrimental.

Mitigation

    In order to issue an Incidental Take Authorization under section 
101(a)(5)(A) and (D) of the MMPA, NMFS must set forth the permissible 
methods of taking pursuant to such activity, and other means of 
effecting the least practicable adverse impact on such species or stock 
and its habitat, paying particular attention to rookeries, mating 
grounds, and areas of similar significance, and on the availability of 
such species or stock for taking for certain subsistence uses. The NDAA 
of 2004 amended the MMPA as it relates to military readiness activities 
and the incidental take authorization process such that ``the least 
practicable adverse impact'' includes consideration of personnel, 
safety, practicality of implementation, and the impact on the 
effectiveness of the ``military readiness activity.'' NEODS training 
involves military readiness activities.
    NEODS has employed a number of mitigation measures in an effort to 
substantially decrease the number of animals potentially affected. 
Eglin AFB is committed to assessing the mission activity for 
opportunities to provide operational mitigations while potentially 
sacrificing some mission flexibility.
    Mitigation consists of visual monitoring of the mission site that 
is required in order to decrease the likelihood of potential impacts to 
marine mammals and other protected species. Pre- and post-mission 
surveys using trained observers are required for each NEODS mission. 
Surveys will be conducted from surface vessels and possibly 
helicopters. Missions will only be conducted during daylight hours 
(i.e., an hour after sunrise and an hour before sunset). Depending on 
visibility, surface observation would be effective out to several kms.
    Trained observers onboard support boats would be staged from the 
highest point possible. The observer on the vessel will be familiar 
with marine life in the mission area and must be equipped with optical 
equipment with sufficient magnification (e.g., binoculars), which 
should allow the observer to sight and report surfacing marine mammals 
from a significant distance. The trained observer will have proper 
lines of communication to make recommendations to the Officer in 
Tactical Command so that he/she can then decide on whether or not the 
mission can proceed.
    Weather that supports the ability to sight marine life is required 
in order to mitigate the test site effectively (DON, 1998). Wind, 
visibility, and surface conditions of the GOM are the most critical 
factors affecting mitigation operations. Higher winds typically 
increase wave height and create ``white cap'' conditions, limiting an 
observer's ability to locate surfacing marine mammals. NEODS missions 
would be canceled or delayed if the sea state were greater than the 
Scale Number 3 described on Table 9 (below) and in Eglin AFB's 
application.

         Table 9--(Table 11-1 of the Application) Beaufort Sea State Scale for Marine Mammal Observation
----------------------------------------------------------------------------------------------------------------
                             Scale No.                                             Sea conditions
----------------------------------------------------------------------------------------------------------------
0.................................................................  Flat calm, no waves or ripples.
1.................................................................  Small wavelets, few if any whitecaps.
2.................................................................  Whitecaps on 0 to 33 percent of surface; 0.3
                                                                     to 0.6 m (1 to 2 ft) waves.
3.................................................................  Whitecaps on 33 to 50 percent of surface;
                                                                     0.6 to 0.9 m (2 to 3 ft) waves.
4.................................................................  Whitecaps on greater than 50 percent of
                                                                     surface; greater than 0.9 m (3 ft) waves.
----------------------------------------------------------------------------------------------------------------

    During a typical mission in the GOM, visual surveys are conducted 
out to a distance from the detonation point corresponding to the 
largest impact ZOI, which would be the Level B sub-TTS behavioral 
harassment range. However, due to recent dolphin mortalities associated 
with EOD activities at the Silver Strand Training Complex (SSTC) off of 
San Diego, California, new survey protocols will be implemented. These 
protocols represent an agreement between the U.S. Navy and NMFS 
regarding the size of the visual survey areas for training activities 
using time-delay fuses. Such fuses are used so that U.S. Navy personnel 
can safely vacate the area before detonation occurs. The

[[Page 16731]]

U.S. Air Force will ensure that the U.S. Navy complies with the 
mitigation and monitoring protocols set forth herein this document, and 
future reference will be to the U.S. Navy, as the U.S. Navy carries out 
the NEODS training operations.
    Under the new protocol, the survey radius (distance from the 
detonation point) is increased so that marine mammals would not likely 
have time to swim into the affected area after the charge has been set 
and U.S. Navy divers have left the area. Once the system is armed and 
divers exit the water, they are typically not allowed back into the 
water to disarm the charge. Therefore, the distance that a dolphin 
could typically swim during the time delay is added to the survey 
distance. The typical swim speed for dolphin species is considered to 
be 5.6 km per hour (three knots), or approximately 93.3 m (102 yards 
[yd]) per minute. Table 10 (Table 11-2 of the application) lists the 
distance a dolphin might travel at this swim speed during various time 
delays. In addition, NMFS requested that an additional 182.9 m (200 yd) 
buffer be added to this distance to account for dolphins possibly 
swimming faster than the average speed of three knots. This additional 
buffer is shown in the table below.

 Table 10--(Table 11-2 of the Application) Potential Swim Distance of a Dolphin With an Additional 200 yd Buffer
----------------------------------------------------------------------------------------------------------------
                                                                                          Distance traveled with
      Typical dolphin swim speed              Time delay           Distance traveled        additional 200 yd
                                                                   during time delay              buffer
----------------------------------------------------------------------------------------------------------------
3 knots (102 yd/minute)..............  5 minutes..............  510 yd.................  710 yd.
                                       6 minutes..............  612 yd.................  812 yd.
                                       7 minutes..............  714 yd.................  914 yd.
                                       8 minutes..............  816 yd.................  1,016 yd.
                                       9 minutes..............  918 yd.................  1,118 yd.
                                       10 minutes.............  1,020 yd...............  1,220 yd.
----------------------------------------------------------------------------------------------------------------

    The total distance potentially traveled during the time delay, as 
listed in Table 10, is then added to the range of the applicable NMFS 
injury criteria to determine the final survey radius. The more 
conservative (larger) of the ranges between the injury dual criteria is 
used, which for the document is the 13 psi-msec threshold (see Table 5 
above or Table 6-2 of the application). If marine mammals are not 
observed within the mitigation-monitoring zone before the charge is 
set, they would be unlikely to swim into the injury zone during the 
time-delay window. The adjusted survey radius for various time delays 
is Table 11 below (see Table 11-3 of the application). The injury 
criterion range and final survey distance are shown in meters in order 
to be consistent with U.S. Navy standards established for the SSTC.

                                 Table 11--(Table 11-3 of the Application) Survey Radius for Time-Delayed Firing Devices
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   Survey radius for time delay, adjusted for swim distance and buffer
     Charge  weight (new)         13 psi-msec   --------------------------------------------------------------------------------------------------------
                                     range           5 minutes         6 minutes        7 minutes        8 minutes        9 minutes        10 minutes
--------------------------------------------------------------------------------------------------------------------------------------------------------
5 lb.........................  171 * yd........  881 yd..........  983 yd..........  1,085 yd.......  1,187 yd.......  1,289 yd.......  1,391 yd.
10 lb........................  247 * yd........  957 yd..........  1,059 yd........  1,161 yd.......  1,263 yd.......  1,365 yd.......  1,467 yd.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Ranges from Table 5 are converted to yd.

    In order to provide a more practical implementation of mitigation 
measures, the U.S. Navy and NMFS agreed to round survey ranges to 
distances more easily delineated in the field. Therefore, to be 
consistent with the method used for missions at the U.S. Navy's SSTC, 
the survey distances shown in Table 11 are rounded to either 914.4 or 
1,280.2 m (1,000 or 1,400 yd). A different number of survey vessels are 
required for each distance. The final rounded distances are shown in 
Table 12 (Table 11-4 of the application).

                          Table 12--(Table 11-4 of the Application) Final Rounded Survey Radius for Time-Delayed Firing Devices
--------------------------------------------------------------------------------------------------------------------------------------------------------
      Charge weight (new)                                               Final rounded survey radius by time delay
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                      5 minutes           6 minutes           7 minutes           8 minutes           9 minutes           10 minutes
--------------------------------------------------------------------------------------------------------------------------------------------------------
5 lb...........................  1,000 yd..........  1,000 yd..........  1,000 yd..........  1,000 yd..........  1,400 yd..........  1,400 yd.
10 lb..........................  1,000 yd..........  1,000 yd..........  1,000 yd..........  1,400 yd..........  1,400 yd..........  1,400 yd.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The following visual monitoring requirements will be implemented 
for each NEODS mission. These requirements are based on the agreement 
between NMFS and the U.S. Navy for EOD activities conducted in water 
depths of 7.3 m (24 ft) or greater.
     Underwater detonations using timed delay devices will only 
be conducted during daylight hours (i.e., an hour after sunrise and an 
hour before sunset).
     Time delays longer than 10 minutes will not be used. 
Initiation of the timer device will not start until the mitigation-
monitoring zone is clear of marine mammals for 30 minutes.
     A mitigation-monitoring zone will be established around 
each underwater detonation location as indicated in Table 12 based on 
charge weight and

[[Page 16732]]

length of time-delay used. When conducting surveys within the 
mitigation-monitoring zone radius (but always outside the detonation 
plume radius/human safety zone) boats will travel in a circular pattern 
around the detonation point, surveying the inner (toward the detonation 
site) and outer (away from the detonation site) areas. For a survey 
radius of 1,000 yd, the boat will be positioned at 457.2 m (500 yd) 
from the detonation point. Similarly, for a survey radius of 1,400 yd, 
boats will be positioned at a distance of 640.1 m (700 yd).
     For a survey radius of 1,000 yd, two boats are required. 
For a radius of 1,400 yd, either three boats or two boats/one 
helicopter are required.
     When using two boats, each boat will be positioned on 
opposite sides of the detonation location, separated by 180 degrees. 
When using three boats, each boat will be separated by 120 degrees 
(equidistant from each other).
     Two observers in each boat will conduct continuous visual 
surveys of the mitigation-monitoring zone for the entire duration of 
the training event, including at least 30 minutes prior to detonation. 
Observers will search the mitigation-monitoring zone for the presence 
of marine mammals, and other marine species such as sea turtles, diving 
birds, large concentrations of fish or jellyfish, and large Sargassum 
mats. The presence of diving birds, fish, jellyfish, and Sargassum may 
indicate an increased likelihood of dolphin presence.
     The mission would be postponed if large concentrations of 
fish, jellyfish, and/or large Sargassum rafts are observed within the 
mitigation-monitoring zone. The delay would continue until the fish, 
jellyfish, and/or large Sargassum rafts that caused the postponement 
are confirmed to be outside the mitigation-monitoring zone.
     To the extent practicable, boats will maintain a 18.5 km 
per hour (10 knot or 11.5 miles per hour) search speed. This search 
speed is expected to ensure adequate coverage of the buffer zone. While 
weather conditions and sea state may require slower speeds in some 
instances, 10 knots is considered a prudent, safe, and executable speed 
that will allow adequate surveillance. For a 1,000-yd survey zone, a 
boat travelling at 10 knots and 500 yd from the detonation point would 
circle the point approximately 3.2 times during a 30-minute survey 
period. By using two boats, approximately 6.4 circles would be 
completed in total. Similarly, for a 1,400 yd radius, each boat would 
circle the detonation point approximately 2.3 times within 30 minutes, 
and use of three boats would result in 6.9 total circles.
     If available, a U.S. Navy helicopter can be used in lieu 
of one of the survey boats, so long as safety of flight is not 
jeopardized. U.S. Navy helicopter pilots are trained to conduct 
searches for relatively small objects in the water, such as a missing 
persons. A helicopter search pattern is dictated by standard U.S. Navy 
protocols and accounts for multiple variables, such as size and shape 
of the search area, size of the object, and environmental conditions, 
among others.
     The mitigation-monitoring zone will be surveyed for 30 
minutes prior to detonation and continue for 30 minutes after 
detonation (concentrated on the area down current of the test site), in 
order to monitor for marine mammals and other protected species. It is 
the U.S. Navy's intent to conduct five successive detonations with a 
maximum time of 20-minutes between detonations, although a variety of 
factors can cause a delay of longer than 20 minutes, including a delay 
until the following day. Monitoring would continue during the 20 minute 
interval between detonations, and would serve as both post-detonation 
monitoring as well as pre-mission monitoring for the next detonation. 
If the time between detonations is delayed beyond 20 minutes, post-
mission monitoring will be conducted for 30 minutes. At the conclusion 
of the final detonation, post-monitoring will be conducted for 30 
minutes.
     Other personnel besides designated observers shall also 
maintain situational awareness of the presence of marine mammals within 
the mitigation-monitoring zone to the extent practicable given dive 
safety considerations.
     Divers placing the charges on mines will observe the 
immediate underwater area around the detonation site for marine mammals 
and other marine species such as diving birds, sea turtles, and Gulf 
sturgeon, and report sightings to surface observers.
     If a marine mammal is sighted within an established 
mitigation-monitoring zone or moving towards it, underwater detonation 
events will be postponed or suspended until the marine mammal that 
caused the postponement/suspension of training operations has 
voluntarily left the area and the area is clear of marine mammals for 
at least 30 minutes.
     If a marine mammal is detected within or about to enter an 
established mitigation-monitoring zone and subsequently cannot be 
reacquired, the mission will be postponed or suspended until the last 
verified location is outside the mitigation-monitoring zone, the animal 
is moving away from the area, and the area is clear of marine mammals 
for at least 30 minutes.
     Any marine mammal observed after an underwater detonation 
either injured or exhibiting signs of distress will be reported to the 
Eglin AFB. Eglin AFB will coordinate with other members of marine 
mammal stranding networks, as appropriate, and report these events to 
NMFS or USFWS. The report will contain date and time of sighting, 
location, species description, and indications of the animal's status 
(see section below for more information on reporting).
    NEODS training operations will be suspended and the U.S. Air Force 
will re-initiate consultation under the MMPA with NMFS' Office of 
Protected Resources if (1) a marine mammal is killed or seriously 
injured and the injury or death could be associated with the NEODS 
training operations; and (2) implementing supplemental mitigation and 
monitoring measures is not likely to reduce the risk of serious injury 
or death to a very low level. The U.S. Air Force will suspend 
operations until the proper authorization for incidental take is 
obtained from NMFS.

Monitoring and Reporting

    In order to issue an ITA for an activity, section 101(a)(5)(A) of 
the MMPA states that NMFS must set forth ``requirements pertaining to 
the monitoring and reporting of such taking.'' The MMPA implementing 
regulations at 50 CFR 216.104(a)(13) indicate that requests for ITAs 
must include the suggested means of accomplishing the necessary 
monitoring and reporting that will result in increased knowledge of the 
species and of the level of taking or impacts on populations of marine 
mammals that are expected to be present. Any authorization issued 
pursuant to this final rule will require the U.S. Air Force to conduct 
mitigation monitoring before, during, and after completion of training 
exercises in accordance with the procedures discussed above. Methods 
for monitoring will include trained observers positioned on vessels. 
Monitors will be required to record and report specific data to NMFS in 
an annual monitoring report.
    Mitigation may include any supplemental activities that are 
designed and exercised to help reduce or eliminate the potential 
adverse impacts to the marine resources. The U.S. Air Force recognizes 
the importance of such ``in-place'' mitigations and is aware that NMFS

[[Page 16733]]

recommends an approved mitigation plan that outlines the scope and 
effectiveness of the action's mitigations.
    The risk of harassment (Levels A and B) to marine mammals has been 
determined to be relatively small. Eglin AFB has determined that with 
the implementation and commitment to utilizing the ``visual 
monitoring'' mitigations, potential takes are greatly reduced.
    For NEODS testing, areas to be used in missions are visually 
monitored for marine mammal presence from a surface vessel prior to 
detonation of mine neutralization charges. Monitoring would be 
conducted before missions to clear marine mammals within the ZOI. If 
protected animals are inside the ZOI, firing would be postponed until 
they left the area. The following procedures will be conducted during 
the mission activities:
     Conduct survey clearance procedures using best operational 
methods possible.
     Clear ZOI and avoid all dolphins and protected species 
indicators (e.g., Sargassum rafts) to the maximum extent possible.
     Re-conduct clearance procedures if dolphins or protected 
species indicators (e.g., Sargassum rafts) are encountered.
     All observers must complete the Marine Observer 
Certification course annually.
     Conduct post-mission observation and report operations 
data as required by Eglin's Natural Resources Section, 96 CEG/CEVSN.
     Submit an annual summary (coordinated through 96 CEG/
CEVSN) of mission observations to:

National Marine Fisheries Service, Southeast Regional Office, Protected 
Resources Division, 9721 Executive Center Drive North, St. Petersburg, 
FL 33702

    and

National Marine Fisheries Service, Office of Protected Resources, 1315 
East West Highway, Silver Spring, MD 20910.

    Information recorded will include species counts, numbers of 
observed disturbances, and descriptions of the disturbance behaviors 
before, during, and after explosive activities. Observations of unusual 
behaviors, numbers, or distributions of marine mammals in the activity 
area will be reported to NMFS and USFWS so that any potential follow-up 
observations can be conducted by the appropriate personnel. In 
addition, observations of tag-bearing marine mammals, sea turtles, and 
fish carcasses as well as any rare or unusual species of marine mammals 
and fish would be reported to NMFS and USFWS.
    Eglin AFB would notify NMFS and the Regional Office prior to 
initiating of each explosive demolition session. If at any time injury 
or death of any marine mammal occurs that may be a result of the NEODS 
activities, Eglin AFB would suspend activities and contact NMFS 
immediately to determine how best to proceed to ensure that another 
injury, serious injury, or death does not occur, and to ensure that the 
applicant remains in compliance with the MMPA. Any takes of marine 
mammals other than those authorized by the LOA, as well as any injuries 
or deaths of marine mammals, will be reported to the Southeast Regional 
Administrator, within 24 hours. An annual draft final report must be 
submitted to NMFS within 90 days after the conclusion of the NEODS 
activities. An annual report must be submitted at the time of renewal 
of the LOA as well. Also, a report must be submitted at least 180 days 
prior to the expiration of these regulations. The report will include a 
summary of the activities undertaken and information gathered pursuant 
to the monitoring requirements set forth in the regulations and LOA, 
including dates and times of detonations as well as pre- and post-
blasting monitoring observations. A final report must be submitted to 
the Regional Administrator within 30 days after receiving comments from 
NMFS on the draft final report. If no comments are received from NMFS, 
the draft final report would be considered to be the final report.
    In the unanticipated event that the specified activity clearly 
causes the take of a marine mammal in a manner prohibited by this rule, 
such as an injury, serious injury or mortality, Eglin AFB will 
immediately cease the specified activities and report the incident to 
the Chief of the Permits and Conservation Division, Office of Protected 
Resources, NMFS at (301) 427-8401 and/or by email to 
[email protected] and [email protected], and the NMFS 
Southeast Region Marine Mammal Stranding Network at (877) 433-8299 
([email protected] and [email protected]) (Florida Marine Mammal 
Stranding Hotline at (888) 404-3922). The report must include the 
following information:
     Time, date, and location (latitude/longitude) of the 
incident;
     Description of the incident;
     Status of all noise-generating sources use in the 24 hours 
preceding the incident;
     Water depth;
     Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, and visibility);
     Description of all marine mammal observations in the 24 
hours preceding the incident;
     Species identification or description of the animal(s) 
involved;
     Fate of the animal(s); and
     Photographs or video footage of the animal(s) (if 
equipment is available).
    Activities shall not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS shall work with Eglin AFB to 
determine what is necessary to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. Eglin AFB may not resume 
their activities until notified by NMFS via letter or email, or 
telephone.
    In the event that Eglin AFB discovers an injured or dead marine 
mammal, and the lead observer determines that the cause of injury or 
death is unknown and the death is relatively recent (i.e., in less than 
a moderate state of decomposition as described in the next paragraph), 
Eglin AFB will immediately report the incident to the Chief of the 
Permits and Conservation Division, Office of Protected Resources, NMFS, 
at (301) 427-8401, and/or by email to [email protected] and 
[email protected], and the NMFS Southeast Region Marine Mammal 
Stranding Network ((877) 433-8299) and/or by email to the Southeast 
Regional Stranding Coordinator ([email protected]) and Southeast 
Regional Stranding Program Administrator ([email protected]). The 
report must include the same information identified in the paragraph 
above. Activities may continue while NMFS reviews the circumstances of 
the incident. NMFS will work with Eglin AFB to determine whether 
modifications in the activities are appropriate.
    In the event that Eglin AFB discovers an injured or dead marine 
mammal, and the lead observer determines that the injury or death is 
not associated with or related to the activities authorized in the 
final rule (e.g., previously wounded animal, carcass with moderate to 
advanced decomposition, or scavenger damage), Eglin AFB will report the 
incident to the Chief of the Permits and Conservation Division, Office 
of Protected Resources, NMFS, at (301) 427-8401, and/or by email to 
[email protected] and [email protected], and the NMFS 
Southeast Regional Marine Mammal Stranding Network ((877) 433-8299), 
and/or by email to the Southeast

[[Page 16734]]

Regional Stranding Coordinator ([email protected]) and Southeast 
Regional Stranding Program Administrator ([email protected]), 
within 24 hours of discovery. Eglin AFB will provide photographs or 
video footage (if available) or other documentation of the stranded 
animals sighting to NMFS and the Marine Mammal Stranding Network.

Encouraging and Coordinating Research

    Although Eglin AFB does not currently conduct independent Air Force 
monitoring efforts, Eglin's Natural Resources Section does participate 
in marine animal tagging and monitoring programs lead by other 
agencies. Additionally, the Natural Resources Section supports 
participation in annual surveys of marine mammals in the GOM with NMFS. 
From 1999 to 2002, Eglin AFB's Natural Resources Section, through a 
contract representative, participated in summer cetacean monitoring and 
research opportunities. The contractor participated in visual surveys 
in 1999 for cetaceans in the GOM, photographic identification of sperm 
whales in the northeastern GOM in 2001, and as a visual observer during 
the 2000 Sperm Whale Pilot Study and the 2002 sperm whale Satellite-tag 
(S-tag) cruise. In addition, Eglin's Natural Resources Section has 
obtained Department of Defense funding for two marine mammal habitat 
modeling projects. The latest such project (Garrison, 2008) included 
funding and extensive involvement of NMFS personnel so that the most 
recent aerial survey data could be utilized for habitat modeling and 
animal density estimates in the northeastern GOM.
    Eglin AFB conducts other research efforts that utilize marine 
mammal stranding information as a means of ascertaining the 
effectiveness of mitigation techniques. Stranding data is collected and 
maintained for the Florida panhandle and GOM-wide areas. This is 
undertaken through the establishment and maintenance of contacts with 
local, state, and regional stranding networks.
    Eglin AFB assists with stranding data collection by maintaining its 
own team of stranding personnel. In addition to simply collecting 
stranding data, various analyses are performed. Stranding events are 
tracked by year, season, and NMFS' statistical zone, both GOM-wide and 
on the coastline in proximity to Eglin AFB. Stranding data is combined 
with records of EGTTR mission activity in each water range and analyzed 
for any possible correlation. In addition to being used as a measure of 
the effectiveness of mission mitigations, stranding data can yield 
insight into the species composition of cetaceans in the region.

Negligible Impact Determination

    As explained, NMFS will only issue an authorization to incidentally 
take marine mammals pursuant to section 101(a)(5)(A) of the MMPA if, 
based on review of the best scientific information available and 
consideration of applicable mitigation and their likely effectiveness, 
it determines that the total taking authorized over the five-year 
period will have a negligible impact on affected species or stocks of 
marine mammals. NMFS implementing regulations codified at 50 CFR 
216.103 state that ``negligible impact is an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival.''
    In making a negligible impact determination NMFS evaluated factors 
such as:
    (1) The number of anticipated injuries, serious injuries, or 
mortalities;
    (2) The number, nature, intensity, and duration of Level B 
harassment (all relatively limited);
    (3) The context in which the takes occur (i.e., impacts to areas of 
significance, impacts to local populations, and cumulative impacts when 
taking into account successive contemporaneous actions when added to 
baseline data);
    (4) The status of stock or species of marine mammal (i.e., 
depleted, not depleted, decreasing, increasing, stable, and impact 
relative to the size of the population);
    (5) Impacts on habitat affecting rates of recruitment or survival; 
and
    (6) The effectiveness of monitoring and mitigation measures (i.e., 
the manner and degree in which the measure is likely to reduce adverse 
impacts to marine mammals, the likely effectiveness of the measures, 
and the practicability of implementation).
    Tables 2, 3, 6, 7, and 8 in this document disclose the habitat, 
regional abundance, conservation status, density, and the number of 
individuals exposed to sound levels considered the threshold for Level 
A and B harassment. Also, there are no known important reproductive or 
feeding areas in the action area.
    For reasons stated previously in this document, and in the proposed 
rule (76 FR 60694, October 1, 2010), the specified activities 
associated with the NEODS training operations are not likely to cause 
PTS or other non-auditory injury, serious injury, or death to affected 
marine mammals. As a result, no take by injury, serious injury, or 
death is anticipated or authorized, and the potential for temporary or 
permanent hearing impairment is very low and will be minimized through 
the incorporation of the monitoring and mitigation measures.
    Approximately 50 Atlantic bottlenose dolphins are anticipated to 
incur hearing impairment (TTS). While some other species of marine 
mammals (none of which are ESA-listed) occur in the project area year-
round, only Atlantic bottlenose dolphins are anticipated to be 
potentially impacted by the NEODS operations. Due to the nature, 
degree, and context of the Level B harassment anticipated, the activity 
is not expected to impact rates of recruitment or survival.
    Many animals perform vital functions, such as feeding, resting, 
traveling, and socializing, on a diel cycle (24-hr cycle). Behavioral 
reactions to noise exposure (such as disruption of critical life 
functions, displacement, or avoidance of important habitat) are more 
likely to be significant if they last more than one diel cycle or recur 
on subsequent days (Southall et al., 2007). Consequently, a behavioral 
response lasting less than one day and not recurring on subsequent days 
is not considered particularly severe unless it could directly affect 
reproduction or survival (Southall et al., 2007). NEODS operations 
would occur up to eight times annually, at varying times within the 
year, and include two ``live demolition'' days. Therefore, the U.S. Air 
Force's NEODS operations will not be creating increased sound levels in 
the marine environment for prolonged periods of time.
    The population estimates for the species that may be taken by 
harassment from the most recent U.S. Gulf of Mexico Stock Assessment 
Reports and Protected Species Habitat Modeling in the EGTTR were 
provided earlier in this document. From the most conservative estimates 
of both marine mammal densities in the action area and the size of the 
harassment thresholds, the maximum calculated number of individual 
Atlantic bottlenose dolphins that could potentially be harassed 
annually and over the five-year rule is 6 (summer) and 4 (winter) (10 
total annually), which numbers amount to 0.05 percent (summer) and less 
than 0.01 percent (winter) of the total estimated population size.
    Based on the analysis contained herein, of the likely effects of 
the specified activity on marine mammals and their habitat, and taking 
into

[[Page 16735]]

consideration the implementation of the mitigation and monitoring 
measures, NMFS has determined that NEODS operations by the U.S. Air 
Force will result in the incidental take of marine mammals, by Level B 
harassment only, and that the total taking from the NEODS training 
operations over the five-year period covered by the regulations would 
have a negligible impact on the affected species or stocks of marine 
mammals.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

    Section 101(a)(5)(A) of the MMPA also requires NMFS to determine 
that the total of such taking authorized will not have an unmitigable 
adverse effect on the availability of marine mammal species or stocks 
for taking for subsistence uses. There is no subsistence hunting for 
marine mammals in the waters off of the coast of Florida that 
implicates section 101(a)(5)(A) of the MMPA.

Endangered Species Act (ESA)

    For the reasons already described in this preamble, NMFS has 
determined that the described NEODS training operations and the 
accompanying LOA are not likely to affect marine mammal species managed 
under NMFS jurisdiction and protected by the ESA. The U.S. Air Force 
requested an informal section 7 consultation with NMFS SERO on May 9, 
2010 and NMFS SERO concurred that the action may affect, but is not 
likely to adversely affect, ESA-listed species or designated critical 
habitat in a letter to the U.S. Air Force dated July 28, 2010.

National Environmental Policy Act (NEPA)

    NMFS has conducted the necessary NEPA analysis and has prepared an 
``Environmental Assessment on the Promulgation of Regulations and the 
Issuance of a Letter of Authorization to Take Marine Mammals, by 
Harassment, Incidental to Naval Explosive Ordnance Disposal School 
Training Operations at Eglin Air Force Base, Florida,'' which analyzes 
the project's purpose and need, alternatives, affected environment, and 
environmental effects for the action prior to making a determination on 
the final rule. Based on the analysis in the EA and the underlying 
information in the record, including the application, proposed rule, 
public comments and informal section 7 consultation, NMFS has prepared 
and issued a Finding of No Significant Impact determining that 
preparation of an Environmental Impact Statement is not required.

Determinations

    Based on Eglin AFB's application, as well as the analysis contained 
herein, NMFS has determined that the impact of the described NEODS 
training operations will result, at most, in a temporary modification 
in behavior (Level B harassment) of Atlantic bottlenose dolphins, which 
are expected to temporarily vacate the action area to avoid NEODS 
training activities. The activities may also result in minor visual and 
acoustic disturbances from detonations. The effect of the NEODS 
training operations is expected to be limited to non-TTS behavioral 
disturbance and short-term and localized TTS-related behavioral 
changes.
    Due to the infrequency, short time-frame, and localized nature of 
these activities, NMFS only expects and has thus authorized the 
incidental take of up to 50 Atlantic bottlenose dolphins. In addition, 
no take by injury, serious injury, or death is anticipated, and take by 
Level B harassment will be at the lowest level practicable due to 
incorporation of the monitoring and mitigation measures mentioned 
previously in this document. No injury (Level A harassment), serious 
injury, or mortality is expected or authorized for marine mammals, and 
take by harassment will be at the lowest level practicable due to 
incorporation of the monitoring and mitigation measures mentioned 
previously in this document. Further, NMFS has determined that the 
anticipated takes incidental to this activity are expected to result in 
a negligible impact on the affected species or stocks of marine 
mammals. The provision requiring that the activity not have an 
unmitigable adverse impact on the availability of the affected species 
or stock for subsistence uses does not apply to this action as there 
are no subsistence users within the specified geographic area of the 
project.

Classification

    For purposes of Executive Order 12866, the Office of Management and 
Budget has determined that this rule stage is not significant.
    Pursuant to section 605(b) of the Regulatory Flexibility Act, the 
Chief Counsel for Regulation of the Department of Commerce has 
certified to the Chief of Counsel for Advocacy of the Small Business 
Administration that this final rule 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. Accordingly, no regulatory flexibility analysis is 
required, and none has been prepared.

Authorization

    As a result of these determinations, NMFS is issuing five-year 
regulations establishing a framework for the issuance of LOAs to Eglin 
AFB for the take of Atlantic bottlenose dolphins by Level B harassment 
incidental to NEODS training operations, provided the previously 
mentioned mitigation, monitoring, and reporting requirements are 
incorporated.

Changes From the Proposed Rule

    In addition to minor edits to the rule for clarification, NMFS has 
made the following changes to the rule:
     Revised dates;
     Revised safety zones based on the weight of the charge;
     Revised analysis of takes based on the Level A harassment 
(injury) threshold of 13 psi-msec and the Level B harassment (non-TTS) 
threshold of 177 dB re 1 [mu]Pa2-sec;
     Revised monitoring and mitigation measures to increase the 
probability of detecting all marine mammals within or entering the 
identified safety zones under various Beaufort sea state and weather 
conditions;
     Revised monitoring and mitigation measures to reduce the 
potential for lethal take of bottlenose dolphins, as occurred in 
similar explosive training operations at the U.S. Navy's Silver Strand 
Training Complex near San Diego, California; and
     Require suspension of the NEODS training operations if a 
marine mammal is seriously injured or killed and the injury or death 
could be associated with the Eglin AFB activities and, if supplementary 
measures are unlikely to reduce the risk of serious injury or death to 
a very low level, require the U.S. Air Force to suspend its activities 
until an authorization for such taking has been obtained.

List of Subjects in 50 CFR Part 217

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

    Dated: March 14, 2012.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.
    For reasons set forth in the preamble, 50 CFR part 217 is amended 
as follows:

[[Page 16736]]

PART 217--REGULATIONS GOVERNING THE TAKE OF MARINE MAMMALS 
INCIDENTAL TO SPECIFIED ACTIVITIES

0
1. The authority citation for part 217 continues to read as follows:

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


0
2. Subpart I is added to part 217 to read as follows:
Subpart I--Taking of Marine Mammals Incidental to Naval Explosive 
Ordnance Disposal School Training Operations
Sec.
217.80 Specified activity and specified geographical region.
217.81 Effective dates.
217.82 Permissible methods of taking.
217.83 Prohibitions.
217.84 Mitigation.
217.85 Requirements for monitoring and reporting.
217.86 Applications for Letters of Authorization.
217.87 Letters of Authorization.
217.88 Renewal and review of Letters of Authorization and adaptive 
management.
217.89 Modifications of Letters of Authorization.

Subpart I--Taking of Marine Mammals Incidental to Naval Explosive 
Ordnance Disposal School (NEODS) Training Operations


Sec.  217.80  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the incidental taking 
of those marine mammals specified in paragraph (b) of this section by 
the United States Air Force, Headquarters 96th Air Base Wing, Eglin Air 
Force Base, and those persons who engage in activities described in 
paragraphs (a)(1) through (7) of this section and the area set forth in 
paragraph (b) of this section.
    (1) NEODS missions involving underwater detonations of small, live 
explosive charges adjacent to inert mines in order to disable the mine 
function,
    (2) Live training events occurring eight times annually, averaging 
one event occurring every 6 to 7 weeks,
    (3) Four of the training events involving 5-lb charges, and four 
events involving 10-lb charges,
    (4) Up to 20 5-lb detonations and twenty 10-lb detonations 
annually, for a total of 40 detonations,
    (5) The five charges occurring for each training event shall be 
detonated individually with a maximum separation time of 20 minutes 
between each detonation,
    (6) Mine shapes and debris shall be recovered and removed from the 
Gulf of Mexico waters when training is completed, and
    (7) Each training team has two days to complete their entire 
evolution (i.e., detonation of five charges). If operations cannot be 
completed on the first live demolition day, the second live demolition 
day shall be utilized to complete the evolution.
    (b) The incidental take of marine mammals at Eglin Air Force Base, 
within the Eglin Military Complex, including three sites in the Eglin 
Gulf Test and Training Range at property off Santa Rosa Island, 
Florida, in the northern Gulf of Mexico, under the activity identified 
in paragraph (a) of this section, is limited to the following species: 
Atlantic bottlenose dolphins (Tursiops truncatus).
    (1) The latitude/longitude of corners of W-151 in the Eglin Gulf 
Test and Training Range are:
    (i) 30.24006[deg] North, -86.808838[deg] West
    (ii) 29.539011[deg] North, -84.995536[deg] West
    (iii) 28.03949[deg] North, -85.000147[deg] West
    (iv) 28.027598[deg] North, -85.199395[deg] West
    (v) 28.505304[deg] North, -86.799043[deg] West
    (2) The latitude/longitude of corners of W-151A in the Eglin Gulf 
Test and Training Range are:
    (i) 30.24006[deg] North, -86.808838[deg] West
    (ii) 30.07499[deg] North, -85.999327[deg] West
    (iii) 29.179968[deg] North, -85.996341[deg] West
    (iv) 29.384439[deg] North, -86.802579[deg] West


Sec.  217.81  Effective dates.

    Regulations in this subpart are effective from April 23, 2012, 
through April 24, 2017.


Sec.  217.82  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec.  216.106 
of this chapter and Sec.  217.87, the U.S. Department of the Air Force, 
Headquarters 96th Air Base Wing, Eglin Air Force Base (U.S. Air Force), 
its contractors, and clients, may incidentally, but not intentionally, 
take marine mammals by Level B harassment, within the area described in 
Sec.  217.80, provided the activity is in compliance with all terms, 
conditions, and requirements of these regulations and the appropriate 
Letter of Authorization.
    (b) The incidental taking of marine mammals is authorized for the 
species listed in Sec.  217.80(b) and is limited to Level B harassment.
    (c) The incidental taking of an average of 10 individuals annually 
and 50 individuals during the 5-year rule, for Atlantic bottlenose 
dolphins.
    (d) The U.S. Air Force shall suspend NEODS training operations 
until it obtains additional authorization for the take of marine 
mammals if:
    (1) A marine mammal is injured, seriously injured, or killed during 
training operations;
    (2) The injury, serious injury, or death could be associated with 
the activities; and
    (3) After coordination and concurrence with NMFS, the U.S. Air 
Force determines that supplementary measures are unlikely to reduce the 
risk of injury, serious injury or death to a very low level, require 
the U.S. Air Force to suspend its activities until an authorization for 
such taking has been obtained.


Sec.  217.83  Prohibitions.

    Notwithstanding takings contemplated in Sec.  217.80 and authorized 
by a Letter of Authorization issued under Sec. Sec.  216.106 of this 
chapter and 217.87, no person in connection with the activities 
described in Sec.  217.80 may:
    (a) Take any marine mammal not specified in Sec.  217.80(b);
    (b) Take any marine mammal specified in Sec.  217.80(b) other than 
by incidental take as specified in Sec.  217.82(a) through (d);
    (c) Take a marine mammal specified in Sec.  217.80(b) if such 
taking results in more than a negligible impact on the species or 
stocks of such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or a Letter of Authorization issued under 
Sec. Sec.  216.106 of this chapter and 217.87.


Sec.  217.84  Mitigation.

    (a) The activity identified in Sec.  217.80(a) must be conducted in 
a manner that minimizes, to the greatest extent practicable, adverse 
impacts on marine mammals and their habitats. When conducting 
operations identified in Sec.  217.80(a), the mitigation measures 
contained in the Letter of Authorization issued under Sec. Sec.  
216.106 of this chapter and 217.87 must be implemented. These 
mitigation measures include (but are not limited to):
    (1) Underwater detonations using timed delay devices will only be 
conducted during daylight hours. The time of detonation shall be 
limited to an hour after sunrise and an hour before sunset.
    (2) NEODS missions shall be postponed if:

[[Page 16737]]

    (i) The Beaufort sea state is greater than scale number three. Such 
a delay would maximize detection of marine mammals.
    (ii) Large concentrations of fish, jellyfish, and/or large 
Sargassum rafts are observed within the mitigation-monitoring zone. The 
delay would continue until the fish, jellyfish, and/or Sargassum rafts 
that cause the postponement are confirmed to be outside the mitigation-
monitoring zone.
    (3) Time delays longer than 10 minutes will not be used. Initiation 
of the timer device will not start until the mitigation-monitoring zone 
is clear of marine mammals for 30 minutes.
    (4) A calculated mitigation-monitoring zone will be established 
around each underwater detonation location based on charge weight and 
length of time-delay used. When conducting surveys within the 
mitigation-monitoring zone radius (but always outside the detonation 
plume radius/human safety zone) and travel in a circular pattern around 
the detonation point, surveying the inner (toward the detonation site) 
and outer (away from the detonation site) areas. For a survey radius of 
914.4 meters, the boat will be positioned at 457.2 meters from the 
detonation point. Similarly, for a survey radius of 1,280.2 meters, 
boats will be positioned at 640.1 meter distance.
    (5) For a survey radius of 914.4 meters, two boats are required. 
For a radius of 1,280.2 meters, either three boats or two boats/one 
helicopter are required.
    (6) When using two boats, each boat will be positioned on opposite 
sides of the detonation location, separated by 180 degrees. When using 
three boats, each boat will be separated by 120 degrees (equidistant 
from each other).
    (7) Two observers in each boat will conduct continuous visual 
surveys of the mitigation-monitoring zone for the entire duration of 
the training event, including at least 30 minutes prior to detonation. 
Observers will search the mitigation-monitoring zone for the presence 
of marine mammals, and other marine species such as sea turtles, diving 
birds, large concentrations of fish or jellyfish, and large Sargassum 
mats. The presence of diving birds, fish, jellyfish, and Sargassum may 
indicate an increased likelihood of dolphin presence.
    (8) To the extent practicable, boats will maintain 18.5 kilometer 
per hour search speed. This search speed is expected to ensure adequate 
coverage of the buffer zone. While weather conditions and sea state may 
require slower speeds in some instances, 18.5 kilometers per hour is 
considered a prudent, safe, and executable speed that will allow 
adequate surveillance. For a 914.4 meter survey zone, a boat traveling 
at 18.5 kilometers per hour and 457.2 meters from the detonation point 
would circle the point approximately 3.2 times during a 30 minute 
survey period. By using two boats, approximately 6.4 circles would be 
completed in total. Similarly, for a 1,280.2 meter radius, each boat 
would circle the detonation point approximately 2.3 times within 30 
minutes, and use of three boats would result in 6.9 total circles.
    (9) If available, a U.S. Navy helicopter can be used in lieu of one 
of the survey boats, so long as safety of flight is not jeopardized. 
U.S. Navy helicopter pilots are trained to conduct searches for 
relatively small objects in the water, such as a missing person. A 
helicopter search pattern is dictated by standard U.S. Navy protocols 
and accounts for multiple variables, such as size and shape of the 
search area, size of the object, and environmental conditions, among 
others.
    (10) The mitigation-monitoring zone will be surveyed for 30 minutes 
prior to detonation and continue for 30 minutes after detonation 
(concentrated on the area down current of the test site), in order to 
monitor for marine mammals and other protected species. It is the U.S. 
Air Force's (on behalf of the U.S. Navy) intent to conduct five 
successive detonations with a maximum time of 20 minutes between 
detonations, although a variety of factors can cause a delay of longer 
than 20 minutes between detonations, although a variety of factors can 
cause a delay of longer than 20 minutes, including a delay until the 
following day. Monitoring would continue during the 20 minutes time 
between detonations, and would serve as both post-detonation monitoring 
as well as pre-mission monitoring for the next detonation. If the time 
between detonations is delayed beyond 20 minutes, post-mission 
monitoring will be conducted for 30 minutes. At the conclusion of the 
final detonation, post-monitoring will be conducted for 30 minutes.
    (11) Other personnel besides designated observers shall also 
maintain situational awareness of the presence of marine mammals within 
the mitigation-monitoring zone to the extent practicable given dive 
safety considerations.
    (12) Divers placing the charges on mines will observe the immediate 
underwater area around the detonation site for marine mammals and other 
marine species such as diving birds, sea turtles, and Gulf sturgeon, 
and report sightings to surface observers.
    (13) If a marine mammal is sighted within an established 
mitigation-monitoring zone or moving towards it, underwater detonation 
events will be postponed or suspended until the marine mammal that 
caused the postponement/suspension of training operations has 
voluntarily left the area and the area is clear of marine mammals for 
at least 30 minutes.
    (14) If a marine mammal is detected within or about to enter an 
established mitigation-monitoring zone and subsequently cannot be 
reacquired, the mission will be postponed or suspended until the last 
verified location is outside the mitigation-monitoring zone, the 
animals is moving away from the area, and the area is clear of marine 
mammals for at least 30 minutes.
    (15) Any marine mammal observed after an underwater detonation 
either injured or exhibiting signs of distress will be reported to 
Eglin Air Force Base. Eglin Air Force Base will coordinate with other 
members of marine mammal stranding networks, as appropriate, and report 
these events to NMFS or U.S. Fish and Wildlife Service. The report will 
contain date and time of sighting, location, species description, and 
indications of the animal's status.
    (16) Training operations shall be suspended if the conditions of 
Sec.  217.83(a)-(d) regarding the injury, serious injury, or death of a 
marine mammal during NEODS training operations are met.
    (17) Additional mitigation measures as contained in a Letter of 
Authorization.
    (b) [Reserved]


Sec.  217.85  Requirements for monitoring and reporting.

    (a) Holders of Letters of Authorization pursuant to Sec.  216.106 
of this chapter and Sec.  217.87 for activities described in Sec.  
216.80(a) are required to cooperate with NMFS, and any other Federal, 
state, or local agency with authority to monitor the impacts of the 
activity on marine mammals. Unless specified otherwise in the Letter of 
Authorization, the Holder of the Letter of Authorization must notify 
the Administrator, Southeast Region, NMFS, by letter or telephone, 
prior to activities possibly involving the taking of marine mammals. If 
the authorized activity identified in Sec.  217.80(a) is thought to 
have resulted in the mortality or injury of any marine mammals or in 
any take of marine mammals not identified in Sec.  217.80(b), then the 
Holder of the Letter of Authorization must, in addition to complying 
with the requirements of

[[Page 16738]]

Sec.  217.82(a)-(d), notify the Director, Office of Protected 
Resources, NMFS, or designee, by telephone (301-427-8400), within 24 
hours of the discovery of the injured or dead animal.
    (b) Holders of Letters of Authorization must designate trained, 
qualified, on-site individuals approved in advance by NMFS, as 
specified in the Letter of Authorization, to perform the following 
monitoring requirements:
    (1) For NEODS testing, areas to be used in missions shall be 
visually monitored for marine mammal presence from a surface support 
vessel prior to detonation of mine neutralization charges. Monitoring 
shall be conducted 30 minutes before missions to clear the mitigation-
monitoring zone. Post-mission monitoring shall also be conducted for 30 
minutes after the final detonation (concentrated on the area down 
current of the test site). If marine mammals are inside the mitigation-
monitoring zone, detonations shall be postponed until they have left 
the area. The observer on the vessel must be equipped with the proper 
optical equipment and lines of communication in order to recommend the 
decision to move forward with the mission.
    (2) Monitoring shall occur pre-mission (for 30 minutes), throughout 
the mission, and post-mission (for 30 minutes). Post-mission monitoring 
shall concentrate on the area down current of the test site.
    (3) Survey clearance procedures shall be conducted using best 
operational methods possible. After the mitigation-monitoring zone is 
cleared, all dolphins and protected species indicators (e.g., Sargassum 
rafts) shall be avoided to the maximum extent possible.
    (4) Clearance procedures shall be re-conducted if dolphins or 
protected species indicators (e.g., Sargassum rafts) are encountered.
    (5) After conducting post-mission monitoring, NEODS training 
operations data as required by Eglin Air Force Base's Natural Resources 
Section, 96 CEG/CEVSN shall be reported. Post-mission monitoring shall 
commence immediately following each detonation and shall be 
concentrated on the area down current of the test site. If any injured 
or dead marine mammals are observed, that information will be reported 
and coordinated with marine animals stranding networks.
    (6) An annual summary (coordinated through 96 CEG/CEVSN) of mission 
observations shall be submitted to: NMFS, Southeast Regional Office, 
Protected Resources Division, 9721 Executive Center Drive North, St. 
Petersburg, Florida 33702; and NMFS, Office of Protected Resources, 
1315 East West Highway, Silver Spring, Maryland 20910.
    (c) Holders of Letters of Authorization must conduct additional 
monitoring as required under an annual Letter of Authorization.
    (d) Holders of Letters of Authorization must submit an annual 
report summarizing the specified activity as well as monitoring and 
mitigation data to the Southeast Regional Administrator and Director of 
the Office of Protected Resources, NMFS, within 90 days after the 
conclusion of the NEODS training operations. This report must contain 
the following information:
    (1) Date(s), time(s), and location(s) of explosive activities,
    (2) Design of the monitoring program,
    (3) Results of the monitoring program including, but not 
necessarily limited to:
    (i) Species counts,
    (ii) Numbers of observed disturbances,
    (iii) Descriptions of the disturbance behaviors before, during, and 
after explosive activities,
    (iv) Bearing and distances,
    (v) Observations of unusual behaviors, numbers, or distributions of 
marine mammals in the activity area shall be reported to NMFS and the 
U.S. Fish and Wildlife Service so that any potential follow-up 
observations can be conducted by the appropriate personnel. In 
addition, observations of tag-bearing marine mammals, sea turtles, and 
fish carcasses as well as any rare or unusual species of marine mammals 
and fish shall be reported to NMFS and U.S. Fish and Wildlife Service.
    (e) An annual report (referred to in Sec.  217.85(d)) must be 
submitted at the time of notification of the renewal of the Letter of 
Authorization.
    (f) A draft comprehensive final report must be submitted at least 
180 days prior to expiration of these regulations. This comprehensive 
technical report shall provide full documentation of methods, results, 
and interpretation of all monitoring during the first four and a half 
years of the Letter of Authorization. A revised final comprehensive 
technical report, including all monitoring results during the entire 
period of the Letters of Authorization, must be submitted 90 days after 
the end of the period of effectiveness of the regulations. This report 
shall summarize the activities undertaken and the results reported in 
all previous reports.
    (g)(1) In the unanticipated event that the specified activity 
clearly causes the take of a marine mammal in a manner prohibited by a 
Letter of Authorization, such as an injury, serious injury, or 
mortality, Eglin Air Force Base will immediately cease the specified 
activities and immediately report the incident to the Chief of the 
Permits and Conservation Division, Office of Protected Resources, NMFS 
at 301-427-8401 and/or by email to [email protected] and 
[email protected], and the NMFS Southeast Regional Marine 
Mammal Stranding Network at 877-433-8299 ([email protected] and 
[email protected]) (Florida Marine Mammal Stranding Hotline at 
888-404-3922). The report must include the following information:
    (i) Time, date, and location (latitude/longitude) of the incident;
    (ii) Description of the incident;
    (iii) Status of all noise-generating source use in the 24 hours 
preceding the incident;
    (iv) Water depth;
    (v) Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, and visibility);
    (vi) Description of all marine mammal observations in the 24 hours 
preceding the incident;
    (vii) Species identification or description of the animal(s) 
involved;
    (viii) Fate of the animal(s); and
    (ix) Photographs or video footage of the animal(s) (if equipment is 
available).
    Activities shall not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS shall work with Eglin Air 
Force Base to determine what is necessary to minimize the likelihood of 
further prohibited take and ensure MMPA compliance. Eglin Air Force 
Base may not resume their activities until notified by NMFS via letter 
or email, or telephone.
    (2) In the event that Eglin Air Force Base discovers an injured or 
dead marine mammal, and the lead observer determines that the cause of 
injury or death is unknown and the death is relatively recent (i.e., 
less than a moderate state of decomposition as described in the next 
paragraph), Eglin Air Force Base will immediately report the incident 
to the Chief of the Permits and Conservation Division, Office of 
Protected Resources, NMFS, at 301-427-8401, and/or by email to 
[email protected] and [email protected] and the NMFS 
Southeast Region Marine Mammal Stranding Network (877-433-8299) and/or 
by email to the Southeast Regional Stranding Coordinator 
([email protected]) and Southeast Regional Stranding Program 
Administrator ([email protected]). The report must include the 
same information

[[Page 16739]]

identified in the paragraph above. Activities may continue while NMFS 
reviews the circumstances of the incident, NMFS will work with Eglin 
Air Force Base to determine whether modifications in the activities are 
appropriate.
    (3) In the event that Eglin Air Force Base discovers an injured or 
dead marine mammal, and the lead observer determines that the injury or 
death is not associated with or related to the activities authorized in 
the Letter of Authorization (e.g., previously wounded animal, carcass 
with moderate to advanced decomposition, or scavenger damage), Eglin 
Air Force Base will report the incident to the Chief of the Permits and 
Conservation Division, Office of Protected Resources, NMFS, at 301-427-
8401, and/or by email to [email protected] and 
[email protected], and the NMFS Southeast Regional Marine 
Mammal Stranding Network (877-433-8299), and/or by email to the 
Southeast Regional Stranding Coordinator ([email protected]) and 
Southeast Regional Stranding Program Administrator 
([email protected]), within 24 hours of discovery. Eglin Air Force 
Base will provide photographs or video footage (if available) or other 
documentation of the stranded animals sighting to NMFS and the Marine 
Mammal Stranding Network.


Sec.  217.86  Applications for Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, the U.S. citizen (as defined by Sec.  216.103) conducting 
the activity identified in Sec.  217.80(a) must apply for and obtain 
either an initial Letter of Authorization in accordance with Sec.  
217.87 or a renewal under Sec.  217.88.
    (b) The application must be submitted to NMFS at least 30 days 
before the activity is scheduled to begin.
    (c) Application for a Letter of Authorization and for renewals of 
Letters of Authorization must include the following:
    (1) Name of the U.S. citizen requesting the authorization;
    (2) A description of the activity, the dates of the activity, and 
the specific location of the activity; and
    (3) Plans to monitor the behavior and effects of the activity on 
marine mammals.
    (d) A copy of the Letter of Authorization must be in the possession 
of the persons conducting activities that may involve incidental 
takings of marine mammals.
    (e) [Reserved]


Sec.  217.87  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, shall 
be valid for a period of time not to exceed the period of validity of 
this subpart.
    (b) The Letter of Authorization shall set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact on the 
species, its habitat, and on the availability of the species for 
subsistence uses (i.e., mitigation); and
    (3) Requirements for mitigation, monitoring, and reporting.
    (c) Issuance and renewal of the Letter of Authorization shall be 
based on a determination that the total number of marine mammals taken 
by the activity as a whole shall have no more than a negligible impact 
on the affected species or stock of marine mammal(s).


Sec.  217.88  Renewal of Letters of Authorization and adaptive 
management.

    (a) A Letter of Authorization issued under Sec.  216.106 of this 
chapter and Sec.  217.87 for the activity identified in Sec.  217.80(a) 
shall be renewed upon a request by the applicant or determination by 
NMFS and the applicant that modifications are appropriate pursuant to 
the adaptive management component of these regulations, provided that:
    (1) NMFS is notified that the activity described in the application 
submitted under Sec.  217.86 shall be undertaken and there shall not be 
a substantial modification to the described work, mitigation or 
monitoring undertaken during the upcoming 12 months;
    (2) NMFS has received, reviewed, and accepted the monitoring 
reports required under Sec.  217.85(d) and (e) and the Letter of 
Authorization issued under Sec.  217.87;
    (3) NMFS determines that the mitigation, monitoring, and reporting 
measures required under Sec. Sec.  217.84 and 217.85 and the Letter of 
Authorization issued under Sec. Sec.  216.106 and 217.87 of this 
chapter, were undertaken and shall be undertaken during the upcoming 
annual period of validity of a renewed Letter of Authorization; and
    (4) NMFS makes the determination required by Sec.  217.87(c).
    (b) If either a request for a renewal of a Letter of Authorization 
issued under Sec.  216.106 of this chapter and Sec.  217.88, or a 
determination by NMFS and the applicant that modifications are 
appropriate pursuant to the adaptive management component of these 
regulations indicates that a substantial modification, as determined by 
NMFS, to the described work, mitigation or monitoring undertaken during 
the upcoming season shall occur, NMFS shall publish a proposed 
modification to the Letter of Authorization in the Federal Register and 
provide the public a period of 30 days for review and comment. Review 
and comment on renewals or modifications of Letters of Authorization 
are restricted to:
    (1) New cited information and data indicating that the 
determinations made in this document are in need of reconsideration, 
and
    (2) Proposed substantive changes to the mitigation and monitoring 
requirements contained in these regulations or in the current Letter of 
Authorization.
    (c) A notice of issuance or denial of a renewal of a Letter of 
Authorization shall be published in the Federal Register.
    (d) Adaptive Management--NMFS may modify or augment the existing 
mitigation or monitoring measures (after consulting with the U.S. Air 
Force regarding the practicability of the modifications) if doing so 
creates a reasonable likelihood of more effectively accomplishing the 
goals of mitigation and monitoring set forth in the preamble of these 
regulations. Below are some of the possible sources of new data that 
could contribute to the decision to modify the mitigation or monitoring 
measures:
    (1) Results from the U.S. Air Force's monitoring from the previous 
year;
    (2) Results from marine mammal and sound research; or
    (3) Any information which reveals that marine mammals may have been 
taken in a manner, extent or number not authorized by these regulations 
or subsequent Letters of Authorization.


Sec.  217.89  Modifications of Letters of Authorization.

    (a) Except as provided in paragraph (b) of this section, no 
substantive modification (including withdrawal or suspension) to the 
Letter of Authorization by NMFS issued pursuant to Sec.  216.106 of 
this chapter and Sec.  217.87 of this chapter and subject to the 
provisions of this subpart shall be made until after notification and 
an opportunity for public comment has been provided. For purposes of 
this paragraph, a renewal of a Letter of Authorization under Sec.  
217.88, without modification (except for the period of validity), is 
not considered a substantive modification.
    (b) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species 
or stocks of marine mammals specified in Sec.  217.80(b), a

[[Page 16740]]

Letter of Authorization issued pursuant to Sec.  216.106 of this 
chapter and Sec.  217.87 of this chapter may be substantively modified 
without prior notification and an opportunity for public comment. 
Notification shall be published in the Federal Register within 30 days 
subsequent to the action.

[FR Doc. 2012-6824 Filed 3-21-12; 8:45 am]
BILLING CODE 3510-22-P