[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
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AN/PQS-2A Dukane
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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.
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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
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Species Habitat ESA \1\ MMPA \2\
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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