[Federal Register Volume 78, Number 88 (Tuesday, May 7, 2013)]
[Proposed Rules]
[Pages 26586-26607]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-10700]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 120820371-3366-01]
RIN 0648-BC46


Taking and Importing Marine Mammals; Precision Strike Weapon and 
Air-to-Surface Gunnery Training and Testing Operations at Eglin Air 
Force Base, FL

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS has received an 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) for authorization to take marine mammals, by 
harassment, incidental to testing and training activities associated 
with Precision Strike Weapon (PSW) and Air-to-Surface (AS) gunnery 
missions, both of which are military readiness activities, at Eglin 
AFB, FL from approximately June 2013, to June 2018. Pursuant to Marine 
Mammal Protection Act (MMPA) and its implementing regulations, NMFS 
proposes regulations to govern that take. In order to implement the 
final rule and issue a Letter of Authorization (LOA), NMFS must 
determine, among other things, that the total taking will have a 
negligible impact on the affected species and stocks of marine mammals 
and will not have an unmitigable adverse impact on the availability of 
the species for subsistence use. NMFS' proposed regulations would set 
forth the permissible methods of take and other means of effecting the 
least practicable adverse impact on the affected species or stocks of 
marine mammals and their habitat. NMFS invites comments on the 
application and the proposed regulations.

DATES: Comments and information must be received no later than June 6, 
2013.

ADDRESSES: You may submit comments, identified by 0648-BC46, by either 
of the following methods:
     Electronic submissions: submit all electronic public 
comments via the Federal eRulemaking Portal http://www.regulations.gov.
     Hand delivery of mailing of paper, disk, or CD-ROM 
comments should be addressed to P. Michael Payne, Chief, Permits and 
Conservation Division, Office of Protected Resources, National Marine 
Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-
3225.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information.
    NMFS will accept anonymous comments (enter N/A in the required 
fields if you wish to remain anonymous). Attachments to electronic 
comments will be accepted in Microsoft Work, Excel, WordPerfect, or 
Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Brian D. Hopper, Office of Protected 
Resources, NMFS, 301-427-8401.

SUPPLEMENTARY INFORMATION:

Availability

    An electronic copy of the application containing a list of the 
references used in this document may be obtained by writing to the 
address specified above, 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.

Background

    In the case of military readiness activities (as defined by section 
315(f) of Pub. L. 107-314; 16 U.S.C. 703 note), sections 101(a)(5)(A) 
and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of 
Commerce (Secretary) to allow, upon request, the incidental, but not 
intentional, taking of marine mammals by U.S. citizens who engage in a 
specified activity (other than commercial fishing) within a specified 
geographical region if certain findings are made and regulations are 
issued, or if the taking is limited to harassment an Incidental 
Harassment Authorization (IHA) is 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 of regulations or a proposed IHA.
    An authorization for the incidental takings may be granted if NMFS 
finds that the total taking during the relevant period will have a 
negligible impact on the species or stock(s), and will not have an 
unmitigable adverse impact on the availability of the species or 
stock(s) for subsistence uses (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'' in 50 CFR 216.103 as ``an 
impact resulting from the specified activity that cannot be reasonably 
expected to, and is not reasonably likely to, adversely affect the 
species or stock through effects on annual rates of recruitment or 
survival.''
    With respect to military readiness activities, the MMPA defines 
``harassment'' as: (i) Any act that injures or has the significant 
potential to injure a marine mammal or marine mammal stock in the wild 
(Level A harassment); or (ii) any act that disturbs or is likely to 
disturb a marine mammal or marine mammal stock in the wild by causing 
disruption of natural behavioral patterns, including, but not limited 
to, migration, surfacing, nursing, breeding, feeding, or behavioral 
patterns are abandoned or significantly altered (Level B harassment).

Summary of Request

    On December 30, 2011, NMFS received an application from the U.S. 
Air Force requesting an authorization for the take of marine mammals 
incidental to PSW and AS gunnery testing and training operations within 
the Eglin Gulf Test and Training Range (EGTTR). On June 28, 2012, 
pursuant to 50 CFR 216.104(b)(1)(ii), NMFS began the public review 
process by publishing its determination that the application was 
adequate and complete by publishing a Notice of Receipt in the Federal 
Register (77 FR 38595). The requested regulations would establish a 
framework for authorizing incidental take in future Letters of 
Authorization (LOAs). These LOAs, if approved, would authorize the 
take, by Level A (physiological) and Level B (behavioral) harassment, 
of Atlantic bottlenose dolphin (Tursiops truncatus) and

[[Page 26587]]

Atlantic spotted dolphin (Stenella frontalis) incidental to PSW testing 
and training activities. Takes of dwarf sperm whale (Kogia simus), 
pygmy sperm whale (K. breviceps), Atlantic bottlenose dolphins 
(Tursiops truncatus), Atlantic spotted dolphin (Stenella frontalis), 
pan tropical spotted dolphin (S. attenuate), and spinner dolphin (S. 
longirostris) by Level B harassment would also be authorized incidental 
to AS gunnery testing and training operations.
    PSW missions would involve air-to-surface impacts of two weapons: 
(1) The Joint Air-to-Surface Stand-off Missile (JASSM) AGM-158 A and B; 
and (2) the small diameter bomb (SDB) (GBU-39/B), which result in 
underwater detonations of up to approximately 300 lbs (136 kg) and 96 
lbs (43.5 kg, double SDB) of net explosive weight (NEW), respectively. 
AS gunnery missions would involve surface impacts of projectiles and 
small underwater detonations. Pursuant to the MMPA, NMFS issued 
regulations and annual LOAs for PSW activities from 2006 to 2011, and 
annual Incidental Harassment Authorizations for AS gunnery activities 
in 2006, 2007, 2008, 2009, 2010, and 2011.

Description of the Specified Activities

    This section describes the PSW and AS gunnery testing and training 
missions that have the potential to affect marine mammals present 
within the test area. Both are considered to be a ``military readiness 
activity'' as defined under 16 U.S.C. 703 note, and involve detonations 
above the water, near the water surface, and under water within the 
EGTTR. The PSW missions involve the two weapons identified above, the 
JASSM and SDB, and AS gunnery missions typically involve the use of 25-
mm, 40-mm, and 105-mm gunnery rounds. These activities are described in 
more detail in the following paragraphs.

PSW Missions

    The JASSM is a precision cruise missile designed for launch from a 
variety of aircraft at altitudes greater than 25,000 ft (7.6 km). The 
JASSM has a range of more than 200 nautical miles (370.4 km) and 
carries a 1,000-pound warhead. The JASSM has approximately 300 lbs of 
TNT equivalent net explosive weight (NEW). After launch from the 
aircraft, the JASSM cruises at altitudes greater than 12,000 ft (3.7 
km) for the majority of its flight until making the terminal maneuver 
towards the target. The testing exercises involving the JASSM would 
consist of a maximum of two live shots (single) and four inert shots 
(single) during the year (Table 1). One live shot will detonate in 
water and one will detonate in air. Detonation of the JASSM would occur 
under one of the following three scenarios: (1) Detonation upon impact 
with the target (about 1.5 m above the water's surface); (2) detonation 
upon impact with a barge target at the surface of the water; or (3) 
detonation at 120 milliseconds after contact with the surface of the 
water.
    The SDB is a GPS-guided bomb that can be carried and launched from 
most USAF aircraft, which makes it an important element of the USAF's 
Global Strike Task Force. The SDB has a range of up to 50 nautical 
miles and carries a 217-lb warhead. The SDB has approximately 48 lbs of 
TNT equivalent NEW. After being released from the aircraft at an 
altitude greater than 15,000 ft (4.6 km), the SDB deploys ``Diamond 
Back'' type wings that increase glide time and range as it descends 
towards the target. Exercises involving the SDB consist of a maximum of 
six live shots with two of the shots occurring simultaneously, and a 
maximum of 12 inert shots with up to two occurring simultaneously 
(Table 1).

                                         Table 1--Annual PSW Activities
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                                      Number of live shots
               Weapon                       per year                   Number of inert shots per year
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JASSM..............................  2 single shots.......  4 inert shots.
SDB................................  6 shots (2 single and  12 shots (4 single and 4 double).
                                      2 double).
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    Chase aircraft will accompany the launch of JASSM and SDB ordnance. 
Chase aircraft include F-15, F-16, and T-38 aircraft. These aircraft 
would follow the test items during captive carry and free flight, but 
would not follow either item below a predetermined altitude as directed 
by Flight Safety. Other airborne assets on site may include an E-9 
turboprop aircraft or MH-60/53 helicopters circling around the target 
location. Tanker aircraft, including KC-10s and KC-135s, would also be 
used for aerial refueling of aircraft involved in training exercises. 
In addition, an unmanned barge may also be on location to hold 
instrumentation. If used, the barge would be up to 1,000 ft (304.8 m) 
away from the target location.
    Based on availability, there are two possible target types to be 
used for the PSW mission tests. The first is a Container Express 
(CONEX) target (see figure 1-4 in Eglin AFB's application) that 
consists of five containers strapped, braced, and welded together to 
form a single structure. The dimensions of each container are 
approximately 8 ft by 8 ft by 40 ft (2.4 m by 2.4 m by 12.2 m). Each 
container would contain 200 55-gallon steel drums (filled with air and 
sealed) to provide buoyancy for the target. The second type of target 
is a hopper barge, which is a non-self propelled vessel typically used 
for transportation of bulk cargo (see figure 1-5 in Eglin AFB's 
application). A typical hopper barge is approximately 30 ft by 12 ft 
and 125 ft long (9.1 m by 3.7 m and 38.1 m long). The targets would be 
held in place by a 4-point anchoring system using cables.
    PSW testing and training activities conducted by Eglin AFB would 
occur in the northern GOM in the EGTTR. Targets would be located in 
water less than 200 ft (61 m) deep and from 15 to 24 nm (27.8 to 44.5 
km) offshore, south of Santa Rosa Island and south of Cape San Blas 
Site D3-A. PSW test missions may occur during any season of the year, 
but only during daytime hours.

AS Gunnery Missions

    AS gunnery missions involve the firing of 25-mm, 40-mm, and 105-mm 
gunnery rounds from a circling AC-130 gunship. Each round contains 30 
g, 392 g, and 2.1 kg of explosive, respectively. Live rounds must be 
used to produce a visible surface splash that must be used to ``score'' 
the round (the impact of inert rounds on the sea surface would not be 
detected). The U.S. Air Force has developed a 105-mm training round 
(TR) that contains less than 10 percent of the amount of explosive 
material (0.16 kg) as compared to the ``Full-Up'' (FU) 105-mm round. 
The TR was developed as one method to mitigate effects on marine life 
during nighttime AS gunnery exercises when visibility at the water 
surface is poor. However, the TR cannot be used in the daytime because 
the amount of explosive material is insufficient to be detected from 
the aircraft. To establish the test target area, two Mk-25 flares are 
deployed or a target is towed into the

[[Page 26588]]

center of a 9.3 km cleared area on the water's surface. A typical 
gunship mission lasts approximately 5 hrs without refueling and 6 hrs 
when air-to-air refueling is accomplished. The total anticipated number 
of missions and rounds for daytime and nighttime activities is shown in 
Table 2.

                                      Table 2--Annual AS Gunnery Activities
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                                                                     Number of      Rounds per
               Category                         Ordnance             missions         mission        Quantity
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Daytime Missions......................  105 mm HE (FU)..........              25              30             750
                                        40 mm HE................              25              64           1,600
                                        25 mm HE................              25             560          14,000
Nighttime Missions....................  105 mm HE (TR)..........              45              30           1,350
                                        40 mm HE................              45              64           2,880
                                        25 mm HE................              45             560          25,200
                                       -------------------------------------------------------------------------
    Total.............................  ........................              70  ..............          45,780
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    Water ranges within the EGTTR that are typically used for AS 
gunnery operations are located in the GOM offshore from the Florida 
Panhandle (areas W-151A, W151B, W-151C, and W-151D as shown in Figure 
1-9 in the Eglin AFB application). Data indicate that W-151A (Figure 1-
10 in the Eglin AFB application) is the most frequently used water 
range due to its proximity to Hurlburt Field, but activities may occur 
anywhere within the EGTTR. Eglin AFB proposes to conduct AS gunnery 
missions year round during both daytime and nighttime hours.
    Additional information on the Eglin AFB training operations is 
contained in the application, which is available upon request (see 
ADDRESSES).

Description of Marine Mammals in the Area of the Specified Activity

    There are 29 species of marine mammals documented as occurring in 
Federal waters of the GOM. Cetaceans inhabiting the waters of the GOM 
may be grouped as odontocetes (toothed whales, including dolphins) or 
mysticetes (baleen whales), but most of the cetaceans occurring in the 
Gulf are odontocetes. Typically, very few baleen whales are found in 
the Gulf and none are expected to occur within the study area given the 
known distribution of these species. Within the bulk of the EGTTR, over 
the west Florida continental shelf, the most common species is the 
bottlenose dolphin (Garrison, 2008), and the Atlantic spotted dolphin 
also occurs commonly over the continental shelf (Fulling et al., 2003). 
One species of sirenian inhabits the GOM, the West Indian manatee 
(Trichechus manatus), which is managed by the U.S. Fish and Wildlife 
Service and is not considered further in this proposed rule.
    Approximately 21 marine mammal species may be found in the vicinity 
of the proposed action area, the EGTTR. These species are the Bryde's 
whale (Balaenoptera edeni), sperm whale (Physeter macrocephalus), dwarf 
sperm whale (Kogia sima), pygmy sperm whale (K. breviceps), Atlantic 
bottlenose dolphin (Tursiops truncatus), Atlantic spotted dolphin 
(Stenella frontalis), pantropical spotted dolphin (S. atenuarta), 
Blainville's beaked whale (Mesoplodon densirostris), Cuvier's beaked 
whale (Ziphius cavirostris), Gervais' beaked whale (M. europaeus), 
Clymene dolphin (S. clymene), spinner dolphin (S. longirostris), 
striped dolphin (S. coeruleoalba), killer whale (Orcinus orca), false 
killer whale (Pseudorca crassidens), pygmy killer whale (Feresa 
attenuata), Risso's dolphin (Grampus griseus), Fraser's dolphin 
(Lagenodelphis hosei), melon-headed whale (Peponocephala electra), 
rough-toothed dolphin (Steno bredanensis), and short-finned pilot whale 
(Globicephala macrorhynchus). Of these species, only the sperm whale is 
listed as endangered under the Endangered Species Act (ESA) and as 
depleted throughout its range under the MMPA. While some of the other 
species listed here have depleted status under the MMPA, none of the 
GOM stocks of those species are considered depleted. Eglin AFB's 2011 
MMPA application contains a detailed discussion on the description, 
status, distribution, regional distribution, diving behavior, and 
acoustics and hearing for the marine mammals in the EGTTR. 
Additionally, more detailed information on these species can be found 
in W[uuml]rsig et al. (2000), NMFS' 2008 EA (see ADDRESSES), and in the 
NMFS U.S. Atlantic and GOM Stock Assessment Reports (SARs; Waring et 
al., 2010). This latter document is available at: http://www.nefsc.noaa.gov/publications/tm/tm210/.
    The species most likely to occur in the area of Eglin AFB's 
proposed activities for which takes have been requested include: 
Atlantic bottlenose dolphin; Atlantic spotted dolphin; pantropical 
spotted dolphin; spinner dolphin; and dwarf and pygmy sperm whales. 
Bryde's whales, sperm whales, Blainville's beaked whales, Cuvier's 
beaked whales, Gervais' beaked whales, killer whales, false killer 
whales, pygmy killer whales, Risso's dolphins, Fraser's dolphins, 
striped dolphins, Clymene dolphins, rough-toothed dolphins, short-
finned pilot whales, and melon-headed whales are rare in the project 
area and are not anticipated to be impacted by the PSW and AS gunnery 
mission activities. Therefore, these species are not considered further 
in this proposed rule.

                         Table 3--Marine Mammal Density Estimates Within the Study Area
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                                                       Density (animals/  Dive profile (% of   Adjusted density
                       Species                              km\2\)         time at surface)     (animals/km\2\)
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Bottlenose dolphin..................................            0.442600                 n/a            0.442600
Atlantic spotted dolphin............................            0.105700                  30            0.352333
Pantropical spotted dolphin.........................            0.042870                  30            0.142900
Spinner dolphin.....................................            0.038100                  30            0.127000

[[Page 26589]]

 
Dwarf/pygmy sperm whale.............................            0.000381                  20            0.001905
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    With one exception, marine mammal densities estimates for species 
which takes have been requested, as provided in the LOA application, 
are consistent with those included in a recent LOA request and LOA 
addendum for Navy actions conducted offshore of Navy Surface Warfare 
Center Panama City Division (75 FR 3395, January 21, 2010). The 
geographic area covered by that LOA overlaps the area associated with 
PSW and AS gunnery activities, and is considered applicable for the 
purpose of estimating marine mammal occurrence and densities. The one 
exception is bottlenose dolphin, for which density estimates were 
recently provided through a Department of Defense-funded study.
    For all species other than the bottlenose dolphin, density 
estimates were derived from the Navy OPAREA Density Estimates (NODE) 
for the GOMEX OPAREA report (DON, 2007). Densities were determined 
using one of two methods: (1) Model-derived estimates; or (2) SAR or 
other literature-derived estimates. For the model-based approach, 
density estimates were calculated for each species within areas 
containing survey effort. A relationship between these density 
estimates and associated environmental parameters such as depth, slope, 
distance from the shelf break, sea surface temperature, and 
chlorophyll-a concentration was formulated using generalized additive 
models. This relationship was then used to generate a two-dimensional 
density surface for the region by predicting densities in areas where 
no survey data exist. All analyses for cetaceans in the GOM were based 
on data collected through NMFS-derived vessel surveys conducted between 
1996 and 2004. Species-specific density estimates derived through 
spatial modeling were compared with abundance estimates found in the 
most current SAR to ensure consistency.
    Cetacean density estimates provided by various researchers often do 
not contain adjustments for perception or 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. Perception and availability bias result in the underestimation 
of abundance and density numbers (negative bias). The density estimates 
provided in the NODE report are not corrected for negative bias and, 
therefore, likely underestimate density. In order to address potential 
negative bias, density estimates were adjusted using submergence 
factors. Although submergence time versus surface time probably varies 
between and among species populations based on geographic location, 
season, and other factors, submergence times suggested by Moore and 
Clark (1998) were used for this proposed rule.
    Bottlenose dolphin density estimates were derived from Protected 
Species Habitat Modeling in the EGTTR (Garrison, 2008). NMFS developed 
habitat models using recent aerial survey line transect data collected 
during winter and summer. In combination with remotely sensed habitat 
parameters (sea surface temperature and chlorophyll), these data were 
used to develop spatial density models for cetaceans 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 on the 
surface to be seen. Given that the survey area completely overlaps the 
present study area and that these survey data are the most recent and 
best available, these models are considered to best reflect the 
occurrence of bottlenose dolphins within the study area. Density 
estimates were calculated for a number of subareas within the EGTTR, 
and also aggregated into four principal area categories: (1) North-
Inshore; (2) South-Inshore; (3) North-Offshore; and (4) South-Offshore. 
The proposed action would occur within W-151A and W-151B, which are 
located in the northernmost portion of the EGTTR in water depths 
between 30 and 350 m; however, all missions would occur in water depths 
less than 200 m. Therefore, density in the North-Offshore area is 
considered to be the most applicable. In order to provide conservative 
impact estimates, the greatest density between summer and winter 
seasons was selected, resulting in an overall density estimate of 
0.4426 bottlenose dolphins per square kilometer (km\2\) to be used in 
this proposed rule.

Potential Effects of the Specified Activity on Marine Mammals

    PSW and AS gunnery operations have the potential to impact marine 
mammals by exposing them to impulsive noise and pressure waves 
generated by ordnance detonation at or near the surface of the water 
(maximum range of 25 ft (7.6 m) height and 80 ft (24 m) depth). 
Exposure to energy or pressure resulting from these detonations could 
result in non-lethal injury (Level A harassment) and disturbance (Level 
B harassment). Takes in the form of serious injury and mortality are 
neither anticipated nor requested. For PSW missions, a maximum of six 
detonations annually were analyzed to assess potential impacts to 
marine mammals, including two live JASSM, two live single SDB, and two 
live double SDB missions. This averages one mission every two months, 
although the actual timing of missions over the 5-year period is 
unknown. Only one mission would occur in any 24-hour period. A maximum 
of 70 annual AS gunnery missions were analyzed, which averages one 
mission approximately every 5 days. Live fire lasts for approximately 
30 minutes per mission, which would result in a maximum of one-half 
hour of noise producing activities every 5 days occurring at a 
discreet, variable location within the 2,500 nm\2\ area of W-151A 
(although activities could occur within the larger, overall 10,000 
nm\2\ area of W-151). The potential effects of sound from the proposed 
PSW and AS gunnery missions may include one or more of the following: 
Tolerance; masking of natural sounds; disturbance; stress response; and 
temporary or permanent hearing impairment (Richardson et al., 1995). As 
outlined in previous NMFS documents, the effects of sound on marine 
mammals are highly variable, and can be categorized as follows (based 
on Richardson et al., 1995):
     The sound may be too weak to be heard at the location of 
the animal (i.e., lower than the prevailing ambient sound level, the 
hearing threshold of the animal at relevant frequencies, or both);
     The sound may be audible but not strong enough to elicit 
any overt behavioral response;

[[Page 26590]]

     The sound may elicit reactions of varying degrees and 
variable relevance to the well-being of the marine mammal; these can 
range from temporary alert responses to active avoidance reactions such 
as vacating an area until the stimulus ceases, but potentially for 
longer periods of time;
     Upon repeated exposure, a marine mammal may exhibit 
diminishing responsiveness (habituation), or disturbance effects may 
persist; the latter is most likely with sounds that are highly variable 
in characteristics and unpredictable in occurrence, and associated with 
situations that a marine mammal perceives as a threat;
     Any anthropogenic sound that is strong enough to be heard 
has the potential to result in masking, or reduce the ability of a 
marine mammal to hear biological sounds at similar frequencies, 
including calls from conspecifics and underwater environmental sounds 
such as surf sound;
     If mammals remain in an area because it is important for 
feeding, breeding, or some other biologically important purpose even 
though there is chronic exposure to sound, it is possible that there 
could be sound-induced physiological stress; this might in turn have 
negative effects on the well-being or reproduction of the animals 
involved; and
     Very strong sounds have the potential to cause a temporary 
or permanent reduction in hearing sensitivity, also referred to as 
threshold shift. In terrestrial mammals, and presumably marine mammals, 
received sound levels must far exceed the animal's hearing threshold 
for there to be any temporary threshold shift (TTS). For transient 
sounds, the sound level necessary to cause TTS is inversely related to 
the duration of the sound. Received sound levels must be even higher 
for there to be risk of permanent hearing impairment (PTS). In 
addition, intense acoustic or explosive events may cause trauma to 
tissues associated with organs vital for hearing, sound production, 
respiration and other functions. This trauma may include minor to 
severe hemorrhage.

Tolerance

    Numerous studies have shown that underwater sounds are often 
readily detectable by marine mammals in the water at distances of many 
kilometers. However, other studies have shown that marine mammals at 
distances more than a few kilometers away often show no apparent 
response to activities of various types (Miller et al., 2005). This is 
often true even in cases when the sounds must be readily audible to the 
animals based on measured received levels and the hearing sensitivity 
of that mammal group. Although various baleen whales, toothed whales, 
and (less frequently) pinnipeds have been shown to react behaviorally 
to underwater sound from sources such as airgun pulses or vessels under 
some conditions, at other times, mammals of all three types have shown 
no overt reactions (e.g., Malme et al., 1986; Richardson et al., 1995; 
Madsen and Mohl, 2000; Croll et al., 2001; Jacobs and Terhune, 2002; 
Madsen et al., 2002; Miller et al., 2005).

Masking

    Marine mammals use acoustic signals for a variety of purposes, 
which differ among species, but include communication between 
individuals, navigation, foraging, reproduction, and learning about 
their environment (Erbe and Farmer, 2000; Tyack, 2000). Masking, or 
auditory interference, generally occurs when sounds in the environment 
are louder than, and of a similar frequency as, auditory signals an 
animal is trying to receive. Masking is a phenomenon that affects 
animals that are trying to receive acoustic information about their 
environment, including sounds from other members of their species, 
predators, prey, and sounds that allow them to orient in their 
environment. Masking these acoustic signals can disturb the behavior of 
individual animals, groups of animals, or entire populations.
    The extent of the masking interference depends on the spectral, 
temporal, and spatial relationships between the signals an animal is 
trying to receive and the masking noise, in addition to other factors. 
In humans, significant masking of tonal signals occurs as a result of 
exposure to noise in a narrow band of similar frequencies. As the sound 
level increases, the detection of frequencies above those of the 
masking stimulus decreases. This principle is expected to apply to 
marine mammals as well because of common biomechanical cochlear 
properties across taxa.
    Richardson et al. (1995) argued that the maximum radius of 
influence of an industrial noise (including broadband low-frequency 
sound transmission) on a marine mammal is the distance from the source 
to the point at which the noise can barely be heard. This range is 
determined by either the hearing sensitivity of the animal or the 
background noise level present. Industrial masking is most likely to 
affect some species' ability to detect communication calls and natural 
sounds (i.e., surf noise, prey noise, etc.) (Richardson et al., 1995).
    The echolocation calls of toothed whales are subject to masking by 
high-frequency sound. Human data indicate that low-frequency sounds can 
mask high-frequency sounds (i.e., upward masking). Studies on captive 
odontocetes by Au et al. (1974, 1985, 1993) indicate that some species 
may use various processes to reduce masking effects (e.g., adjustments 
in echolocation call intensity or frequency as a function of background 
noise conditions). There is also evidence that the directional hearing 
abilities of odontocetes are useful in reducing masking at the higher 
frequencies these cetaceans use to echolocate, but not at the low-to-
moderate frequencies they use to communicate (Zaitseva et al., 1980). A 
study by Nachtigall and Supin (2008) showed that false killer whales 
adjust their hearing to compensate for ambient sounds and the intensity 
of returning echolocation signals. Holt et al. (2009) measured killer 
whale call source levels and background noise levels in the one to 40 
kHz band and reported that the whales increased their call source 
levels by one dB SPL for every one dB SPL increase in background noise 
level. Similarly, another study on St. Lawrence River belugas reported 
a similar rate of increase in vocalization activity in response to 
passing vessels (Scheifele et al., 2005).
    Although masking is a phenomenon which may occur naturally, the 
introduction of loud anthropogenic sounds into the marine environment 
at frequencies important to marine mammals increases the severity and 
frequency of occurrence of masking. For example, if a baleen whale is 
exposed to continuous low-frequency sound from an industrial source, 
this would reduce the size of the area around that whale within which 
it can hear the calls of another whale. The components of background 
noise that are similar in frequency to the signal in question primarily 
determine the degree of masking of that signal. In general, little is 
known about the degree to which marine mammals rely upon detection of 
sounds from conspecifics, predators, prey, or other natural sources. In 
the absence of specific information about the importance of detecting 
these natural sounds, it is not possible to predict the impact of 
masking on marine mammals (Richardson et al., 1995). In general, 
masking effects are expected to be less severe when sounds are 
transient than when they are continuous. Masking is typically of 
greater concern for those marine mammals that utilize low frequency 
communications, such as baleen whales and, as such, is not likely

[[Page 26591]]

to occur for marine mammals in the EGTTR.

Disturbance

    Behavioral responses to sound are highly variable and context-
specific. Many different variables can influence an animal's perception 
of and response to (in both nature and magnitude) an acoustic event. An 
animal's prior experience with a sound or sound source affects whether 
it is less likely (habituation) or more likely (sensitization) to 
respond to certain sounds in the future (animals can also be innately 
pre-disposed to respond to certain sounds in certain ways) (Southall et 
al., 2007). Related to the sound itself, the perceived nearness of the 
sound, bearing of the sound (approaching vs. retreating), similarity of 
the sound to biologically relevant sounds in the animal's environment 
(i.e., calls of predators, prey, or conspecifics), and familiarity of 
the sound may affect the way an animal responds to the sound (Southall 
et al., 2007). Individuals (of different age, gender, reproductive 
status, etc.) among most populations will have variable hearing 
capabilities, and differing behavioral sensitivities to sounds that 
will be affected by prior conditioning, experience, and current 
activities of those individuals. Often, specific acoustic features of 
the sound and contextual variables (i.e., proximity, duration, or 
recurrence of the sound or the current behavior that the marine mammal 
is engaged in or its prior experience), as well as entirely separate 
factors such as the physical presence of a nearby vessel, may be more 
relevant to the animal's response than the received level alone.
    Because the few available studies show wide variation in response 
to underwater sound, it is difficult to quantify exactly how sound from 
PSW and AS gunnery missions would affect marine mammals. Exposure of 
marine mammals to sound sources can result in, but is not limited to, 
no response or any of the following observable responses: Increased 
alertness; orientation or attraction to a sound source; vocal 
modifications; cessation of feeding; cessation of social interaction; 
alteration of movement or diving behavior; avoidance; habitat 
abandonment (temporary or permanent); and, in severe cases, panic, 
flight, stampede, or stranding, potentially resulting in death 
(Southall et al., 2007). A review of marine mammal responses to 
anthropogenic sound was first conducted by Richardson (1995). A more 
recent review (Nowacek et al., 2007) addresses studies conducted since 
1995 and focuses on observations where the received sound level of the 
exposed marine mammal(s) was known or could be estimated. The following 
sub-sections provide examples of behavioral responses that provide an 
idea of the variability in behavioral responses that would be expected 
given the differential sensitivities of marine mammal species to sound 
and the wide range of potential acoustic sources to which a marine 
mammal may be exposed. Estimates of the types of behavioral responses 
that could occur for a given sound exposure should be determined from 
the literature that is available for each species, or extrapolated from 
closely related species when no information exists.
    Flight Response--A flight response is a dramatic change in normal 
movement to a directed and rapid movement away from the perceived 
location of a sound source. Relatively little information on flight 
responses of marine mammals to anthropogenic signals exist, although 
observations of flight responses to the presence of predators have 
occurred (Connor and Heithaus, 1996). Flight responses have been 
speculated as being a component of marine mammal strandings associated 
with sonar activities (Evans and England, 2001).
    Response to Predator--Evidence suggests that at least some marine 
mammals have the ability to acoustically identify potential predators. 
For example, harbor seals that reside in the coastal waters off British 
Columbia are frequently targeted by certain groups of killer whales, 
but not others. The seals discriminate between the calls of threatening 
and non-threatening killer whales (Deecke et al., 2002), a capability 
that should increase survivorship while reducing the energy required 
for attending to and responding to all killer whale calls. The 
occurrence of masking or hearing impairment provides a means by which 
marine mammals may be prevented from responding to the acoustic cues 
produced by their predators. Whether or not this is a possibility 
depends on the duration of the masking/hearing impairment and the 
likelihood of encountering a predator during the time that predator 
cues are impeded.
    Diving--Changes in dive behavior can vary widely. They may consist 
of increased or decreased dive times and surface intervals as well as 
changes in the rates of ascent and descent during a dive. Variations in 
dive behavior may reflect interruptions in biologically significant 
activities (e.g., foraging) or they may be of little biological 
significance. Variations in dive behavior may also expose an animal to 
potentially harmful conditions (e.g., increasing the chance of ship-
strike) or may serve as an avoidance response that enhances 
survivorship. The impact of a variation in diving resulting from an 
acoustic exposure depends on what the animal is doing at the time of 
the exposure and the type and magnitude of the response.
    Nowacek et al. (2004) reported disruptions of dive behaviors in 
foraging North Atlantic right whales when exposed to an alerting 
stimulus, an action, they noted, that could lead to an increased 
likelihood of ship strike. However, the whales did not respond to 
playbacks of either right whale social sounds or vessel noise, 
highlighting the importance of the sound characteristics in producing a 
behavioral reaction. Conversely, Indo-Pacific humpback dolphins have 
been observed to dive for longer periods of time in areas where vessels 
were present and/or approaching (Ng and Leung, 2003). In both of these 
studies, the influence of the sound exposure cannot be decoupled from 
the physical presence of a surface vessel, thus complicating 
intepretations of the relative contribution of each stimulus to the 
response. Indeed, the presence of surface vessels, their approach and 
speed of approach, seemed to be significant factors in the response of 
the Indo-Pacific humpback dolphins (Ng and Leung, 2003). Low frequency 
signals of the Acoustic Thermometry of Ocean Climate (ATOC) sound 
source were not found to affect dive times of humpback whales in 
Hawaiian waters (Frankel and Clark, 2000) or to overtly affect elephant 
seal dives (Costa et al., 2003). They did, however, produce subtle 
effects that varied in direction and degree among the individual seals, 
illustrating the equivocal nature of behavioral effects and consequent 
difficulty in defining and predicting them.
    Due to past incidents of beaked whale strandings associated with 
sonar operations, feedback paths are provided between avoidance and 
diving and indirect tissue effects. This feedback accounts for the 
hypothesis that variations in diving behavior and/or avoidance 
responses can possibly result in nitrogen tissue supersaturation and 
nitrogen off-gassing, possibly to the point of deleterious vascular 
bubble formation (Jepson et al., 2003). Although hypothetical, the 
potential process is currently popular and controversial.
    Foraging--Disruption of feeding behavior can be difficult to 
correlate with anthropogenic sound exposure, so it is usually inferred 
by observed

[[Page 26592]]

displacement from known foraging areas, the appearance of secondary 
indicators (e.g., bubble nets or sediment plumes), or changes in dive 
behavior. Noise from seismic surveys was not found to impact the 
feeding behavior in western grey whales off the coast of Russia 
(Yazvenko et al., 2007) and sperm whales engaged in foraging dives did 
not abandon dives when exposed to distant signatures of seismic airguns 
(Madsen et al., 2006). Balaenopterid whales exposed to moderate low-
frequency signals similar to the ATOC sound source demonstrated no 
variation in foraging activity (Croll et al., 2001), whereas five out 
of six North Atlantic right whales exposed to an acoustic alarm 
interrupted their foraging dives (Nowacek et al., 2004). Although the 
received sound pressure level at the animals was similar in the latter 
two studies, the frequency, duration, and temporal pattern of signal 
presentation were different. These factors, as well as differences in 
species sensitivity, are likely contributing factors to the 
differential response. A determination of whether foraging disruptions 
incur fitness consequences will require information on or estimates of 
the energetic requirements of the individuals and the relationship 
between prey availability, foraging effort and success, and the life 
history stage of the animal.
    Breathing--Variations in respiration naturally vary with different 
behaviors and variations in respiration rate as a function of acoustic 
exposure can be expected to co-occur with other behavioral reactions, 
such as a flight response or an alteration in diving. However, 
respiration rates in and of themselves may be representative of 
annoyance or an acute stress response. Mean exhalation rates of gray 
whales at rest and while diving were found to be unaffected by seismic 
surveys conducted adjacent to the whale feeding grounds (Gailey et al., 
2007). Studies with captive harbor porpoises showed increased 
respiration rates upon introduction of acoustic alarms (Kastelein et 
al., 2001; Kastelein et al., 2006a) and emissions for underwater data 
transmission (Kastelein et al., 2005). However, exposure of the same 
acoustic alarm to a striped dolphin under the same conditions did not 
elicit a response (Kastelein et al., 2006a), again highlighting the 
importance in understanding species differences in the tolerance of 
underwater noise when determining the potential for impacts resulting 
from anthropogenic sound exposure.
    Social relationships--Social interactions between mammals can be 
affected by noise via the disruption of communication signals or by the 
displacement of individuals. Disruption of social relationships 
therefore depends on the disruption of other behaviors (e.g., caused 
avoidance, masking, etc.) and no specific overview is provided here. 
However, social disruptions must be considered in context of the 
relationships that are affected. Long-term disruptions of mother/calf 
pairs or mating displays have the potential to affect the growth and 
survival or reproductive effort/success of individuals, respectively.
    Vocalizations (also see Masking Section)--Vocal changes in response 
to anthropogenic noise can occur across the repertoire of sound 
production modes used by marine mammals, such as whistling, 
echolocation click production, calling, and singing. Changes may result 
in response to a need to compete with an increase in background noise 
or may reflect an increased vigilance or startle response. For example, 
in the presence of low-frequency active sonar, humpback whales have 
been observed to increase the length of their ``songs'' (Miller et al., 
2000; Fristrup et al., 2003), possibly due to the overlap in 
frequencies between the whale song and the low-frequency active sonar. 
A similar compensatory effect for the presence of low frequency vessel 
noise has been suggested for right whales; right whales have been 
observed to shift the frequency content of their calls upward while 
reducing the rate of calling in areas of increased anthropogenic noise 
(Parks et al., 2007). Killer whales off the northwestern coast of the 
United States have been observed to increase the duration of primary 
calls once a threshold in observing vessel density (e.g., whale 
watching) was reached, which has been suggested as a response to 
increased masking noise produced by the vessels (Foote et al., 2004). 
In contrast, both sperm and pilot whales potentially ceased sound 
production during the Heard Island feasibility test (Bowles et al., 
1994), although it cannot be absolutely determined whether the 
inability to acoustically detect the animals was due to the cessation 
of sound production or the displacement of animals from the area.
    Avoidance--Avoidance is the displacement of an individual from an 
area as a result of the presence of a sound. Richardson et al., (1995) 
noted that avoidance reactions are the most obvious manifestations of 
disturbance in marine mammals. It is qualitatively different from the 
flight response, but also differs in the magnitude of the response 
(i.e., directed movement, rate of travel, etc.). Oftentimes avoidance 
is temporary, and animals return to the area once the noise has ceased. 
Longer term displacement is possible, however, which can lead to 
changes in abundance or distribution patterns of the species in the 
affected region if they do not become acclimated to the presence of the 
sound (Blackwell et al., 2004; Bejder et al., 2006; Teilmann et al., 
2006). Acute avoidance responses have been observed in captive 
porpoises and pinnipeds exposed to a number of different sound sources 
(Kastelein et al., 2001; Finneran et al., 2003; Kastelein et al., 
2006a; Kastelein et al., 2006b). Short term avoidance of seismic 
surveys, low frequency emissions, and acoustic deterrants has also been 
noted in wild populations of odontocetes (Bowles et al., 1994; Goold, 
1996; 1998; Stone et al., 2000; Morton and Symonds, 2002) and to some 
extent in mysticetes (Gailey et al., 2007), while longer term or 
repetitive/chronic displacement for some dolphin groups and for 
manatees has been suggested to be due to the presence of chronic vessel 
noise (Haviland-Howell et al., 2007; Miksis-Olds et al., 2007).
    Orientation--A shift in an animal's resting state or an attentional 
change via an orienting response represent behaviors that would be 
considered mild disruptions if occurring alone. As previously 
mentioned, the responses may co-occur with other behaviors; for 
instance, an animal may initially orient toward a sound source, and 
then move away from it. Thus, any orienting response should be 
considered in context of other reactions that may occur.

Stress Response

    An acoustic source is considered a potential stressor if, by its 
action on the animal, via auditory or non-auditory means, it may 
produce a stress response in the animal. Here, the stress response will 
refer to an increase in energetic expenditure that results from 
exposure to the stressor and which is predominantly characterized by 
either the stimulation of the sympathetic nervous system (SNS) or the 
hypothalamic-pituitary-adrenal (HPA) axis (Reeder and Kramer, 2005). 
The SNS response to a stressor is immediate and acute and is 
characterized by the release of the catecholamine neurohormones 
norepinephrine and epinephrine (i.e., adrenaline). These hormones 
produce elevations in the heart and respiration rate, increase 
awareness, and increase the availability of glucose and lipids for 
energy. The HPA response is ultimately defined by increases in the 
secretion of the

[[Page 26593]]

glucocorticoid steroid hormones, predominantly cortisol in mammals. The 
presence and magnitude of a stress response in an animal depends on a 
number of factors. These include the animal's life history stage (e.g., 
neonate, juvenile, adult), the environmental conditions, reproductive 
or developmental state, and experience with the stressor. Not only will 
these factors be subject to individual variation, but they will also 
vary within an individual over time. The stress response may or may not 
result in a behavioral change, depending on the characteristics of the 
exposed animal. However, provided a stress response occurs, we assume 
that some contribution is made to the animal's allostatic load. Any 
immediate effect of exposure that produces an injury is assumed to also 
produce a stress response and contribute to the allostatic load. 
Allostasis is the ability of an animal to maintain stability through 
change by adjusting its physiology in response to both predictable and 
unpredictable events (McEwen and Wingfield, 2003). If the acoustic 
source does not produce tissue effects, is not perceived by the animal, 
or does not produce a stress response by any other means, we assume 
that the exposure does not contribute to the allostatic load. 
Additionally, without a stress response or auditory masking, it is 
assumed that there can be no behavioral change.

Hearing Threshold Shift

    In mammals, high-intensity sound may rupture the eardrum, damage 
the small bones in the middle ear, or over stimulate the 
electromechanical hair cells that convert the fluid motions caused by 
sound into neural impulses that are sent to the brain. Lower level 
exposures may cause a loss of hearing sensitivity, termed a threshold 
shift (TS) (Miller, 1974). Incidence of TS may be either permanent, 
referred to as permanent threshold shift (PTS), or temporary, referred 
to as temporary threshold shift (TTS). The amplitude, duration, 
frequency, and temporal pattern, and energy distribution of sound 
exposure all affect the amount of associated TS and the frequency range 
in which it occurs. As amplitude and duration of sound exposure 
increase, generally, so does the amount of TS and recovery time. Human 
non-impulsive noise exposure guidelines are based on exposures of equal 
energy (the same SEL) producing equal amounts of hearing impairment 
regardless of how the sound energy is distributed in time (NIOSH 1998). 
Until recently, previous marine mammal TTS studies have also generally 
supported this equal energy relationship (Southall et al., 2007). Three 
newer studies, two by Mooney et al. (2009a, 2009b) on a single 
bottlenose dolphin either exposed to playbacks of Navy MFAS or octave-
band noise (4-8 kHz) and one by Kastak et al. (2007) on a single 
California sea lion exposed to airborne octave-band noise (centered at 
2.5 kHz), concluded that for all noise exposure situations the equal 
energy relationship may not be the best indicator to predict TTS onset 
levels. Generally, with sound exposures of equal energy, those that 
were quieter (lower sound pressure level [SPL]) with longer duration 
were found to induce TTS onset more than those of louder (higher SPL) 
and shorter duration (more similar to noise from AS gunnery exercises). 
For intermittent sounds, less TS will occur than from a continuous 
exposure with the same energy (some recovery will occur between 
exposures) (Kryter et al., 1966; Ward, 1997). Additionally, though TTS 
is temporary, very prolonged exposure to sound strong enough to elicit 
TTS, or shorter-term exposure to sound levels well above the TTS 
threshold, can cause PTS, at least in terrestrial mammals (Kryter, 
1985). However, these studies highlight the inherent complexity of 
predicting TTS onset in marine mammals, as well as the importance of 
considering exposure duration when assessing potential impacts.
    PTS consists of non-recoverable physical damage to the sound 
receptors in the ear, which can include total or partial deafness, or 
an impaired ability to hear sounds in specific frequency ranges; PTS is 
considered Level A harassment. TTS is recoverable and is considered to 
result from temporary, non-injurious impacts to hearing-related 
tissues; TTS is considered Level B harassment.

Permanent Threshold Shift

    Auditory trauma represents direct mechanical injury to hearing-
related structures, including tympanic membrane rupture, 
disarticulation of the middle ear ossicles, and trauma to the inner ear 
structures such as the organ of Corti and the associated hair cells. 
Auditory trauma is irreversible and considered to be an injury that 
could result in PTS. PTS results from exposure to intense sounds that 
cause a permanent loss of inner or outer cochlear hair cells or exceed 
the elastic limits of certain tissues and membranes in the middle and 
inner ears and result in changes in the chemical composition of the 
inner ear fluids. In some cases, there can be total or partial deafness 
across all frequencies, whereas in other cases, the animal has an 
impaired ability to hear sounds in specific frequency ranges. There is 
no empirical data for onset of PTS in any marine mammal, and therefore, 
PTS- onset must be estimated from TTS-onset measurements and from the 
rate of TTS growth with increasing exposure levels above the level 
eliciting TTS-onset. PTS is presumed to be likely if the hearing 
threshold is reduced by >= 40 dB (i.e., 40 dB of TTS). Relationships 
between TTS and PTS thresholds have not been studied in marine mammals, 
but are assumed to be similar to those in humans and other terrestrial 
mammals.

Temporary Threshold Shift

    TTS is the mildest form of hearing impairment that can occur during 
exposure to a loud sound (Kryter, 1985). Southall et al. (2007) 
indicate that although PTS is a tissue injury, TTS is not because the 
reduced hearing sensitivity following exposure to intense sound results 
primarily from fatigue, not loss, of cochlear hair cells and supporting 
structures and is reversible. Accordingly, NMFS classifies TTS as Level 
B Harassment, not Level A Harassment (injury); however, NMFS does not 
consider the onset of TTS to be the lowest level at which Level B 
Harassment may occur (see Behavior section below).
    Southall et al. (2007) considers a 6 dB TTS (i.e., baseline hearing 
thresholds are elevated by 6 dB) sufficient to be recognized as an 
unequivocal deviation and thus a sufficient definition of TTS onset. 
TTS in bottlenose dolphin hearing have been experimentally induced. For 
example, Finneran et al. (2002) exposed a trained captive bottlenose 
dolphin to a seismic watergun simulator with a single acoustic pulse. 
No TTS was observed in the dolphin at the highest exposure condition 
(peak: 207 kPa [30psi]; peak-to-peak: 228 dB re: 1 microPa; SEL: 188 dB 
re 1 microPa\2\-s). Schludt et al. (2000) demonstrated temporary shifts 
in masked hearing thresholds in five bottlenose dolphins occurring 
generally between 192 and 201 dB rms (192 and 201 dB SEL) after 
exposure to intense, non-pulse, 1-s tones at, 3kHz, 10kHz, and 20 kHz. 
TTS onset occurred at mean sound exposure level of 195 dB rms (195 dB 
SEL). At 0.4 kHz, no subjects exhibited threshold shifts after SPL 
exposures of 193dB re: 1 microPa (192 dB re: 1 microPa\2\-s). In the 
same study, at 75 kHz, one dolphin exhibited a TTS after exposure at 
182 dB SPL re: 1 microPa but not at higher exposure levels. Another 
dolphin experienced no threshold shift after exposure to maximum SPL 
levels of 193 dB re: 1

[[Page 26594]]

microPa at the same frequency. Frequencies of explosives used at MCAS 
Cherry Point range from 1-25 kHz; the range where dolphin TTS onset 
occurred at 195 dB rms in the Schludt et al. (2000) study.
    Preliminary research indicates that TTS and recovery after noise 
exposure are frequency dependent and that an inverse relationship 
exists between exposure time and sound pressure level associated with 
exposure (Mooney et al., 2005; Mooney, 2006). For example, Nachtigall 
et al. (2003) measured TTS in a bottlenose dolphin and found an average 
11 dB shift following a 30 minute net exposure to OBN at a 7.5 kHz 
center frequency (max SPL of 179 dB re: 1 microPa; SEL: 212-214 dB re:1 
microPa\2\-s). No TTS was observed after exposure to the same duration 
and frequency noise with maximum SPLs of 165 and 171 dB re:1 microPa. 
After 50 minutes of exposure to the same 7.5 kHz frequency OBN, 
Natchigall et al. (2004) measured a 4 -8 dB shift (max SPL: 160dB re 
1microPa; SEL: 193-195 dB re:1 microPa\2\-s). Finneran et al. (2005) 
concluded that a sound exposure level of 195 dB re 1 [mu]Pa2-s is a 
reasonable threshold for the onset of TTS in bottlenose dolphins 
exposed to mid-frequency tones.

Assessment of Marine Mammal Impacts From Explosive Ordnance

PSW Missions

    For the acoustic analysis of PSW activities, the exploding charge 
is characterized as a point source. The components of PSW activities 
pertinent to estimating impacts include the location of the explosions 
relative to the water surface and the number of explosions.
    SDBs are intended to either strike a target on the surface of the 
water or detonate in the air over a target at an altitude of up to 25 
ft (7.6 m) above the surface of the water. It is assumed that a surface 
target would be impacted at a point approximately five feet (1.5 m) 
above the surface. To calculate the range to NMFS' harassment 
thresholds, these two distances are used to bound the potential height 
of the explosion (although detonations could occur at any point in 
between). The effect of the target itself on the propagation of the 
shock wave into the water column is omitted for the purpose of 
determining the range to the harassment thresholds. This is considered 
to be a conservative measure because the target would likely reflect 
and diffuse the explosive pressure wave, but would not amplify or focus 
it. SDB ``double shots'' would involve two bombs being deployed from 
the same aircraft to strike the same target within a maximum of five 
seconds of each other. Under the ``double shot'' scenario, the NEW of 
each bomb is added in order to calculate the distance to energy 
thresholds; however, the pressure component is not additive, and 
pressure estimates are derived from a single charge weight.
    The JASSM is intended to impact a target located on the surface of 
the water. Similar to the description of the SDB above, it is assumed 
that the missile may strike the target at some distance about the 
surface. However, the JASSM is substantially heavier than the SDB 
(approximately 2,240 lbs versus 285 lbs), and would potentially travel 
at a greater velocity on impact. Therefore, the JASSM would impact the 
target with greater force, and it is anticipated that the missile could 
puncture the target and explode in the water column. Under this type of 
scenario, detonation occurs a maximum of 120 milliseconds after contact 
with the water, which corresponds to a depth of 70 to 80 ft (21 to 24 
m). As a result, impact range calculations are bounded by depth 
categories of 1 ft (0.3 m) and greater than 20 ft (6.1 m). Only one 
JASSM would be deployed per mission (i.e., no ``double shots''), and 
both energy and pressure estimates are based on the NEW of one missile.
    Table 4 provides the estimated range, or radius, from the 
detonation point to the various thresholds under summer and winter 
scenarios. The range is then used to calculate the total area of the 
zone of influence (ZOI). The Level B harassment (behavioral) threshold 
(177 dB re 1 [micro]Pa\2\-s EFD) is not included. Sub-TTS harassment is 
considered to occur when animals are exposed to repetitive disturbance, 
which for underwater impulsive noise is considered to be more than one 
detonation within a 24-hour period. No more than one explosion 
associated with PSW activities will occur within any 24-hour period. 
The SDB ``double shot'' is considered to be one detonation because the 
two explosions are intended to occur within five seconds of each other. 
In-water ranges for the 30.5 and 13 psi-msec thresholds for explosions 
occurring in the air are negligible.

                                            Table 4--Estimated Threshold Radii (in Meters) for PSW Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                             Mortality          Level A harassment              Level B harassment
                                                                         -------------------------------------------------------------------------------
             Ordinance                NEW  (lbs)     Height or depth of                     205 dB re 1                     82 dB re 1
                                                        explosion (m)      30.5 psi-msec  [micro]Pa\2\-s    13 psi-msec   [micro]Pa\2\-s    23 psi peak
                                                                                                EFD                             EFD
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                         Summer
--------------------------------------------------------------------------------------------------------------------------------------------------------
Single SDB........................              48  1.5 height..........               0              12               0              47             447
                                    ..............  7.6 height..........               0              12               0              48             447
Double SDB........................              96  1.5 height..........               0              16               0              65             550
                                    ..............  7.6 height..........               0              17               0              66             550
JASSM.............................             300  0.3 depth...........              75             170             130             520             770
                                    ..............  >6.1 depth..........             320             550           1,030           2,490             770
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                         Winter
--------------------------------------------------------------------------------------------------------------------------------------------------------
Single SDB........................              48  1.5 height..........               0              12               0              47             471
                                    ..............  7.6 height..........               0              12               0              48             471
Double SDB........................              96  1.5 height..........               0              16               0              65             594
                                    ..............  7.6 height..........               0              16               0              66             594
JASSM.............................             300  0.3 depth...........              75             170             130             580             871
                                    ..............  >6.1 depth..........             320             590           1,096           3,250             871
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 26595]]

    The ZOIs calculated by using the threshold ranges in Table 4 are 
combined with the number of live shots (Table 1) and marine mammal 
densities (Table 3) to estimate the number of animals affected. Because 
of the mission location in relatively shallow continental shelf waters 
ranging from approximately 40 to 50 m, the species considered to be 
potentially affected by PSW mission activities include the bottlenose 
dolphin, Atlantic spotted dolphin, dwarf sperm whale, and pygmy sperm 
whale. Potential exposure to energy and pressure resulting from 
detonations could theoretically occur at the surface or at any number 
of depths below the surface with differing consequences. As a 
conservative measure, a mid-depth scenario was selected by Eglin AFB to 
ensure the greatest direct path for the harassment ranges, and to give 
the greatest impact range for the injury thresholds.
    Tables 5, 6, and 7 provide the annual potential number of exposures 
associated with mortality, Level A harassment, and Level B harassment. 
In each case, a range of numbers is provided. The ranges represent the 
minimum and maximum number of potential takes, based on various 
combinations of explosion height, explosion depth, and season. In cases 
where dual criteria exist, the threshold with the greatest distance and 
corresponding ZOI is used. For example, for in-water JASSM detonations, 
the 23 psi threshold provides the largest Level B harassment zone when 
detonations occur near the surface, while the 182 dB EFD threshold 
provides the largest Level B harassment zone at depth.

                Table 5--Number of Potential Marine Mammal Exposures, Mortalities (30.5 psi-msec)
----------------------------------------------------------------------------------------------------------------
                              Number of potential  Number of potential  Number of potential
           Species             exposures, single    exposures, double    exposures, single       Total number
                                 SDB (2 shots)        SDB (2 shots)       JASSM  (2 shots)   potential exposures
----------------------------------------------------------------------------------------------------------------
Atlantic bottlenose dolphin.                    0                    0        0.0156-0.2848        0.0156-0.2848
Atlantic spotted dolphin....                    0                    0        0.0125-0.2267        0.0125-0.2267
Dwarf/Pygmy sperm whale.....                    0                    0        0.0001-0.0012        0.0001-0.0012
----------------------------------------------------------------------------------------------------------------


                    Table 6--Number of Potential Marine Mammal Exposures, Level A Harassment
----------------------------------------------------------------------------------------------------------------
                              Number of potential  Number of potential  Number of potential
           Species             exposures, single    exposures, double    exposures, single       Total number
                                 SDB (2 shots)        SDB (2 shots)       JASSM (2 shots)    potential exposures
----------------------------------------------------------------------------------------------------------------
Atlantic bottlenose dolphin.              0.00040              0.00080      0.08037-3.34052      0.08157-3.34172
Atlantic spotted dolphin....              0.00032              0.00064      0.06398-2.65923      0.06494-2.66019
Dwarf/Pygmy sperm whale.....             0.000002             0.000003      0.00035-0.01438    0.000355-0.014385
----------------------------------------------------------------------------------------------------------------


                    Table 7--Number of Potential Marine Mammal Exposures, Level B Harassment
----------------------------------------------------------------------------------------------------------------
                              Number of potential  Number of potential  Number of potential
           Species             exposures, single    exposures, double    exposures, single       Total number
                                 SDB (2 shots)        SDB (2 shots)       JASSM (2 shots)    potential exposures
----------------------------------------------------------------------------------------------------------------
Atlantic bottlenose dolphin.      0.55566-0.61693      0.84124-0.98122     0.75197-29.37372     2.14887-30.97187
Atlantic spotted dolphin....      0.44233-0.49111      0.66967-0.78110     0.59861-23.38304     1.71061-24.65525
Dwarf/Pygmy sperm whale.....      0.00239-0.00266      0.00362-0.00422      0.00324-0.12643      0.00925-0.13331
----------------------------------------------------------------------------------------------------------------

    The preceding tables illustrate that the potential impacts to 
marine mammals would primarily be the result of JASSM detonations. 
Eglin AFB does not anticipate that any marine mammals would be exposed 
to positive impulse pressure levels associated with serious injury or 
mortalities. In the absence of mitigation measures, up to approximately 
0.3 bottlenose dolphins and 0.2 Atlantic spotted dolphins per year 
could be exposed to the 30.5 psi-msec threshold; however, where less 
than 0.5 animals are affected, no take is assumed. Pygmy and dwarf 
sperm whales are not expected to be affected.
    A maximum of approximately three bottlenose dolphins and three 
Atlantic spotted dolphins could be exposed to noise and/or pressure 
levels associated with Level A harassment, depending on the season and 
depth of the JASSM detonation. Similarly, up to a maximum of 31 
bottlenose dolphins and 25 Atlantic spotted dolphins could be exposed 
to level associated with Level B harassment (TTS). Essentially, no 
pygmy or dwarf sperm whales are expected to experience either Level A 
or Level B harassment.

AS Gunnery Missions

    Table 8 provides the estimated range from the detonation point to 
the various thresholds. This range, or radius, is then used to 
calculate the total area affected by a gunnery round. For this 
analysis, it is assumed that all rounds strike the water and detonate 
at or just below the surface of the water, although this assumption is 
somewhat conservative because some rounds may strike the target and 
introduce less noise into the water. The ranges to the thresholds were 
calculated for two seasons (summer and winter) and depth strata (80 m 
and 160 m) in order to reasonably bound the environmental conditions 
under which AS gunner activities would occur. As a conservative 
measure, the greatest range within each season and depth strata is used 
in take estimate calculations. In addition, where dual criteria exist, 
the criteria resulting in the most conservative estimate (i.e., greater 
number of takes) are used.

[[Page 26596]]



                                        Table 8--Estimated Threshold Radii (in Meters) for AS Gunnery Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                Mortality               Level A Harassment                           Level B Harassment
              Ordnance type               --------------------------------------------------------------------------------------------------------------
                                              30.5 psi-msec        205 dB EFD        13 psi-msec       182 dB EFD          23 psi          177 dB EFD
--------------------------------------------------------------------------------------------------------------------------------------------------------
105 mm FU................................                3.8               22.81              6.96            158.26            216.37            281.78
105 mm TR................................                2.45               8.86              3.29             49.79             91.45             90.46
40 mm....................................                3.07              12.52              3.69             74.27            123.83            142.11
25 mm....................................                1.26               0                 2.52             23.83             52.27             41.24
--------------------------------------------------------------------------------------------------------------------------------------------------------

    As described in Section 6 of the LOA application, the number of 
events may vary for energy and pressure metrics. For energy metrics, 
the number of events equates to the number of rounds expended and 
released energy is evaluated as an additive exposure. Pressure-based 
thresholds are based on the maximum value received by the animal. The 
method for estimating the number of firing events for 40 mm and 25 mm 
rounds, as they related to pressure metrics, is based on the firing 
protocol. These rounds are typically fired in bursts, with each burst 
expended within a 2- to 10-second time frame. Given the average 
cetacean density with assumed uniform distribution, and average swim 
speed of three knots, there would not be sufficient time for new 
animals to enter the ZOI within the time frame of a single burst. 
Therefore, only the peak pressure of a single burst would be 
experienced within a given ZOI. For 40 mm rounds, a typical mission 
includes 64 rounds, with approximately 20 rounds per burst. Based on 
the tight target area and small ``miss'' distance, all rounds in a 
burst are expected to enter the water within 5 m of the target. As a 
result, take calculations for 40 mm rounds are based on the total 
number of rounds fired per year divided by 20. Similarly, for 25 mm 
rounds, missions typically include 560 rounds fired in bursts of 100 
rounds, and pressure-based take calculations are based on the total 
number of rounds divided by 100. For energy metrics, however, all 
rounds are used for estimating exposures.
    The firing protocol for 105 mm rounds does not involve bursts of 
multiple rounds at a time; these round are fired singly, with up to a 
30-second interval between rounds, which results in approximately two 
rounds per minute. Pressure-based exposure calculations are performed 
based on the total number of rounds expended.
    Annual marine mammal takes from AS gunnery activities are then 
calculated using the adjusted marine mammal density estimates, the ZOI 
of each type of round fired, and the total number of events per year. 
Table 9 provides the total number of potentially affected (exposed) 
marine mammals for all combined gunnery activities, including 105 mm 
(FU and TR), 40 mm, and 25 mm rounds. The numbers in Table 9 represent 
the maximum number of exposures considered reasonably possible. It is 
important to note that these exposure estimates are derived without 
consideration of mitigation measures (except use of the 105 mm TR, an 
operational mitigation measure). For Level A harassment calculations, 
the ZOI corresponding to the 205 dB EFD is used because the criterion 
results in the most conservative take estimate. Similarly, for Level B 
physiological harassment calculations, the ZOI corresponding to the 182 
dB EFD is used because this criterion results in the most conservative 
take estimate even though the 23 psi threshold radii are greater than 
the radii for the 182 dB EFD threshold.

                                  Table 9--Annual Number of Potentially Marine Mammals Takes from AS Gunnery Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                         Mortality       Level A harassment     Level B harassment (TTS)      Level B
                                                           Adjusted  --------------------------------------------------------------------   harassment
                        Species                            density                                                                         (behavioral)
                                                         (/   30.5 psi-msec   205 dB EFD  13 psi-msec   182 dB EFD  23 psi peak ---------------
                                                            km\2\)                                                                          177 dB EFD
--------------------------------------------------------------------------------------------------------------------------------------------------------
Bottlenose dolphin.....................................     0.442600      0.03012721     1.666395     0.078538     96.08673     70.81186       316.66708
Atlantic spotted dolphin...............................     0.352333      0.02398285     1.326539     0.062521     76.49011     56.36998       252.08374
Pantropical spotted dolphin............................     0.142900      0.00021201     0.011511     0.000688      0.63857      0.65954         2.07718
Spinner dolphin........................................     0.127000      0.00018842     0.010230     0.000611      0.56752      0.58615         1.84606
Dwarf/pygmy sperm whale................................     0.001905      0.00012967     0.007172     0.000338      0.41357      0.30478         1.36297
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Explosive criteria and thresholds for assessing impacts of 
explosions on marine mammals were originally developed for the shock 
trials of the USS Seawolf and USS Winston S. Churchill. NMFS provided a 
detailed discussion in its promulgation of regulations for issuing LOAs 
to Eglin AFB for Precision Strike Weapon testing activity (71 FR 44001, 
August 3, 2006), which is not repeated here. Please refer to that 
document for this background information. However, one part of the 
analysis has changed. That information is provided here.

Table 10--Current NMFS Acoustic Criteria When Addressing Harassment From
                               Explosives
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Level B Behavior..........................  176 dB \1/3\ Octave SEL
                                             (sound energy level).
Level B TTS Dual Criterion................  182 dB \1/3\ Octave SEL.
                                            23 psi (peak pressure).
Level A PTS (permanent threshold shift)...  205 dB SEL.
Level A Injury............................  13 psi-msec.
Mortality.................................  30.5 psi-msec.
------------------------------------------------------------------------

    Subsequent to the issuance of the USAF 2002 PEA, NMFS updated one 
of the dual criteria related to the onset level for temporary threshold 
shift (TTS; Level B harassment). The USAF 2002 PEA describes the onset 
of TTS by a single explosion (impulse) based on the criterion in use at 
that time. Newly available information based on lab controlled 
experiments that used a seismic watergun to induce TTS in one beluga 
whale and one bottlenose dolphin (Finneran et al., 2002) showed 
measured TTS2 (TTS level 2 min after exposure) was 7 and 6 
dB in the beluga

[[Page 26597]]

at 0.4 and 30 kHz, respectively, after exposure to intense single 
pulses at 226 dB re: 1 [mu]Pa p-p (peak to peak). This sound pressure 
level (SPL) is equivalent to 23 pounds per square inch (psi). Hearing 
threshold returned to within 2 dB of the pre-exposure value within 4 
min of exposure. No TTS was observed in the bottlenose dolphin at the 
highest exposure condition (228 dB re 1 [mu]Pa p-p). Therefore, NMFS 
updated the SPL from impulse sound that could induce TTS to 23 psi, 
from the previous 12 psi. Table 10 in this document outlines the 
acoustic criteria used by NMFS when addressing noise impacts from 
explosives. These criteria remain consistent with criteria established 
for other activities in the EGTTR and other acoustic activities 
authorized under sections 101(a)(5)(A) and (D) of the MMPA. The 23 psi 
criterion is used in this document and NMFS' 2008 EA for evaluating the 
potential for the onset of TTS (Level B harassment) in marine mammals. 
Additional information on the derivation of the 23 psi criterion can be 
found in the Final Environmental Impact Statement/Overseas 
Environmental Impact Statement for the Shock Trial of the Mesa Verde 
(LPD 19) (Department of the Navy, 2008).

Anticipated Effects on Habitat

    The primary source of marine mammal habitat impact is noise 
resulting from live PSW and AS gunnery missions. However, the noise 
does not constitute a long-term physical alteration of the water column 
or bottom topography, is not expected to affect prey availability, is 
of limited duration, and is intermittent in time. Surface vessels 
associated with the missions are present in limited duration and are 
intermittent as well. Therefore, it is not anticipated that marine 
mammal utilization of the waters in the study area will be affected, 
either temporarily or permanently, as a result of mission activities.
    Other factors related to PSW and AS gunnery mission activities that 
could potentially impact marine mammal habitat include the introduction 
of fuel, debris, ordnance, and chemical materials into the water 
column. The potential effects of each were analyzed in the PSW 
Environmental Assessment and EGTTR Programmatic Environmental 
Assessment and determined to be insignificant. For a complete 
discussion of potential effects on habitat, please refer to pages 4-1 
to 4-7 in the 2005 EA and section 4 of the 2002 PEA.

Proposed 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'' shall include consideration of personal 
safety, practicality of implementation, and the impact on the 
effectiveness of the ``military readiness activity.'' Training 
activities involving PSWs and AS gunnery are considered military 
readiness activities.
    Eglin AFB would require mission proponents to employ mitigation 
measures, which are discussed below, in an effort to decrease the 
number of marine mammals potentially affected. Mitigation measures 
primarily consist of visual observation of applicable areas of the 
ocean surface to detect the presence of marine mammals. Eglin AFB has 
also assessed missions to identify opportunities for operational 
mitigations (e.g., modifications to the mission that potentially result 
in decreased impacts to protected species) while potentially 
sacrificing some mission flexibility.

Mitigation Proposed for PSW Activities

    Visual monitoring would be required during PSW missions from 
surface vessels and aircraft. Based on the particular ordnance involved 
in a given training event, Eglin AFB would survey the largest 
applicable ZOI for the presence of marine mammals on each day of 
testing. For example, the largest possible ZOI associated with the 
JASSM is 2,490 m (summer) or 3,250 m (winter), based on the 182 dB EFD 
Level B harassment threshold range for a detonation at depths greater 
than 20 m. For SDB detonations, the largest ZOI would be between 447 m 
and 594 m, depending on season and whether the detonation is a single 
or double SDB, based on the 23 psi range.
    Prior to the mission, trained Air Force personnel aboard an 
aircraft would visually survey the ZOI for the presence of marine 
mammals. Trained observers aboard surface support vessels would provide 
additional monitoring for marine mammals and indicators of the presence 
of marine mammals (e.g., large schools of fish). Because of safety 
issues, observers would be required to leave the test area prior to the 
commencement of detonations; therefore, the ZOI would not be surveyed 
for approximately one hour before detonation. To account for this, an 
additional buffer zone equal to the radius of the largest threshold 
range would be monitored for marine mammals.
    Fair weather that supports the ability to observe marine mammals is 
necessary to effectively implement monitoring. Wind, visibility, and 
surface conditions of the GOM are the most critical factors affecting 
mitigation implementation. Higher winds typically increase wave height 
and create ``white cap'' conditions, both of which limit an observer's 
ability to locate marine mammals at or near the surface. PSW missions 
would be delayed if the sea state is greater than a force 3 on the 
Beaufort scale (see Table 11-1 of the application) at the time of the 
activity. Such a delay would maximize detection of marine mammals. 
Visibility is also an important factor for flight safety issues. A 
minimum ceiling of 305 m and visibility of 5.6 km would be required to 
support mitigation and flight safety concerns.

Survey Team

    A survey team would consist of a combination of Air Force, and 
civil service/civilian personnel. Aerial and surface vessel monitoring 
would be conducted during all PSW missions. A survey team leader would 
be designated for surface vessel observations and video monitoring. The 
team leader would be an Eglin AFB Natural Resources Section 
representative or designee. Marine mammal sightings and other 
applicable information would be communicated from surface vessel 
observers and the video controller to the team leader, who would then 
relay this information to the test director. Aircraft-to-surface vessel 
communications are not likely to be available; therefore, marine mammal 
sightings from the aerial team would be communicated directly to the 
test director. The test director would be responsible for the overall 
mission and for all final decisions, including possible delays or 
relocations due to marine mammal sightings. The test director would, 
however, consult with the survey team leader regarding all issues 
related to marine mammals before making final decisions.
    The survey teams would have open lines of communication to 
facilitate real-time reporting of marine mammals and other relevant 
information, such as

[[Page 26598]]

safety concerns. Direct communication between all personnel would be 
possible with the exception of aircraft-to-surface vessel 
communication, which would not be available. Survey results from the 
aircraft would be relayed to the test director, and results from the 
video feed and vessel surveys would be relayed to the team leader, who 
would coordinate with the test director. The team leader would also 
communicate recommendations to the test director.

Video Controller

    Video monitoring may be conducted for some PSW missions. After 
consulting with the survey team leader, the test director will 
determine if video monitoring would be used to supplement monitoring 
from aircraft and vessels. If the decision is made to conduct video 
monitoring, PSW missions would be monitored from a land-based control 
center via live video feed. Under this scenario, video equipment would 
be placed on a barge or other appropriate platform located near the 
periphery of the test area. Video monitoring would, in addition to 
facilitating assessment of the mission, make remote viewing of the area 
for marine mammals possible. Although not part of the surface vessel 
survey team, the video controller would report any marine mammal 
sightings to the survey team leader. The entire ZOI may or may not be 
visible through the video feed, depending on the type of ordnance and 
specific location of the video equipment; therefore, video observation 
is considered supplemental to observation from aircraft and surface 
vessels.

Aerial Survey Team

    Aircraft typically provide an excellent viewing platform for 
detection of marine mammals at or near the surface. The aerial survey 
team would consist of the aircrew (Air Force personnel) who would 
subsequently conduct the PSW mission. The pilot would be instructed on 
protected marine species survey techniques and would be familiar with 
marine species expected to occur in the area. One person in the 
aircraft would act as a data recorder and would be responsible for 
relaying the location, species (if possible), direction of movement, 
and number of animals sighted to the test director. The aerial team 
would also identify large schools of fish (which could indicate the 
potential for marine mammals to be in the area), and large, active 
groups of birds (which could indicate the presence of a large school of 
fish). The pilot would fly the aircraft in such a manner that the 
entire ZOI and buffer zone would be observed. Aerial observers would be 
expected to have adequate sighting conditions within the weather 
limitations noted above. The PSW mission would occur no earlier than 
two hours after sunrise and no later than two hours prior to sunset to 
ensure adequate daylight for pre- and post-mission monitoring.

Surface Vessel Survey Team

    Marine mammal monitoring would be conducted from one or more 
surface vessels concurrent with aerial surveys in order to increase 
mitigation effectiveness. Monitoring activities would be conducted from 
the highest point feasible on the vessel. Vessel-based observers would 
be familiar with the area's marine life and would be equipped with 
optical equipment with sufficient magnification to allow observation of 
surfaced marine mammals. If the entire ZOI cannot be adequately 
observed from a stationary point, the surface vessel(s) would conduct 
transects to provide sufficient coverage.

Proposed Mitigation Plan

    The applicable ZOI and buffer zone would be monitored for the 
presence of marine mammals and marine mammal indicators. Implementation 
of PSW mitigation measures would be regulated by Air Force safety 
parameters. Although unexpected, any mission may be delayed or aborted 
due to technical issues. In the event of a technical delay, all 
mitigation procedures would continue until either the mission takes 
place or is canceled. To ensure the safety of vessel-based survey 
personnel, the team would depart from the test area approximately one 
hour before the live mission commences.

Pre-Mission Monitoring

    The purposes of pre-mission monitoring are to: (1) Evaluate the 
test site for environmental conditions suitable for conducting the 
mission; and (2) verify that the ZOI and buffer zone are free of 
visually detectable marine mammals, as well as potential indicators of 
the presence of these animals including large schools of fish and 
flocks of birds. On the morning of the test mission, the test director 
and survey team leader would confirm that there are no issues that 
would preclude proceeding with the mission and that the weather is 
adequate to support monitoring and mitigation measures.

Approximately Five Hours Pre-Mission to Daybreak

    The surface vessel survey team would be on site near the test 
target approximately five hours prior to launch (no later than 
daybreak). Observers on board at least one vessel, including the team 
leader, would assess the overall suitability of the test site based on 
environmental conditions (e.g., wind, visibility, and sea surface 
conditions) and visual observations of marine mammals or indicators 
(e.g., large schools of fish or large flocks of active birds on or near 
the water). This information would be relayed to the test director.

Two Hours Prior to Mission

    Aerial and vessel-based surveys would begin two hours prior to 
launch. Aerial-based observers would evaluate the test site for 
environmental suitability in addition to surveying for protected marine 
species. The aerial team would monitor the test site, including but not 
limited to the ZOI and buffer zone, and would record and relay species 
sighting information to the test director. Surface vessel-based 
observers would also monitor the ZOI and buffer zone, and the team 
leader would record all marine mammal sightings, including the time of 
sighting and direction of travel, if known. In addition to the primary 
survey vessel, additional vessels may be used for conducting surveys. 
Surveys would continue for approximately one hour.

One Hour Prior to Mission

    Approximately one hour prior to launch, surface vessel-based 
observers would be instructed to leave the test site and remain outside 
of the safety area (10 nm) for the duration of the mission. The survey 
team would continue to monitor for marine mammals from outside the 
safety zone. The team leader would continue to record sightings and 
bearings for all marine mammals detected. The monitoring activities 
conducted outside of the safety area would be supplemental to marine 
mammal monitoring for mitigation purposes due to the distance from the 
target. During this time, the aircraft crew would begin cold sweeps, 
which consist of clearing the range and confirming technical 
parameters, among other things. During cold sweeps, the aerial crew 
would continue to be able to monitor for marine mammals, although this 
will not be their primary task. Any marine mammal sightings during this 
time would be reported to the test director.

During the PSW Mission

    Immediately prior to commencement of the live portion of the PSW 
mission, the survey team leader and test director would communicate to 
confirm the

[[Page 26599]]

results of the marine mammal surveys and the appropriateness of 
proceeding with the mission. Although the test director, with input 
from the survey team leader, decides whether to postpone, move, or 
cancel the mission, the mission would be postponed if:
    (1) Any marine mammal is visually detected within the ZOI. The 
delay would continue until the marine mammal(s) that triggered the 
postponement is/are confirmed to be outside of the ZOI due to the 
animal(s) swimming out of range.
    (2) Any marine mammal is visually detected in the buffer zone and 
subsequently cannot be reacquired. Under this scenario, the mission 
would not continue until (a) the last verified location is outside of 
the ZOI and the animal is moving away from the mission area, or (b) the 
animal is not re-sighted for at least 15 minutes.
    (3) Large schools of fish are observed in the water within the ZOI, 
or large flocks of active birds (potential indicator of fish presence) 
are observed on or near the surface of the water. The delay would 
continue until these potential indicators are confirmed to be outside 
the ZOI.
    In the event of a postponement, pre-mission monitoring would 
continue as long as weather and daylight hours allow. The aircraft crew 
would not be responsible for marine mammal monitoring once the live 
portion of the mission begins.

Post PSW Mission Monitoring

    Post-mission monitoring is designed to determine the effectiveness 
of pre-mission monitoring by reporting sightings of any dead or injured 
marine mammals. Post-detonation monitoring via surface vessel-based 
observers would commence immediately following each detonation. The 
vessel(s) would move into the ZOI from outside the safety zone and 
continue monitoring for at least 30 minutes, concentrating on the area 
down-current from the test site. The monitoring team would document any 
marine mammals that were killed or injured as a result of the test and, 
if practicable, coordinate with the regional marine mammal stranding 
response network to recover any dead animals for examination. The 
species, number, location, and behavior of any animals observed by the 
monitoring teams would be documented and reported to the team leader.

Mitigation Proposed for AS Gunnery Activities

Visual Monitoring

    Areas to be used in AS gunnery missions would be visually monitored 
for marine mammal presence from the AC-130 aircraft prior to 
commencement of the mission. If the presence of one or more marine 
mammals is detected, the target area would be avoided. In addition, 
monitoring would continue during the mission. If marine mammals are 
detected at any time, the mission would halt immediately and relocate 
as necessary or be suspended until the marine mammal has left the area. 
Visual monitoring would be supplemented with infra-red (IR) and TV 
monitoring. As nighttime visual monitoring is generally considered to 
be ineffective at any height, the EGTTR missions will incorporate the 
TR.

Pre-Mission and Mission Monitoring

    The AC-130 gunships travel to potential mission locations outside 
U.S. territorial waters (typically about 15 nm from shore) at an 
altitude of approximately 6,000 ft (1,829 m). The location of AS 
gunnery missions places these activities over shallower continental 
shelf waters where marine mammal densities are typically lower, and 
thus avoids the slope waters where more sensitive species (e.g., ESA-
listed sperm whales) generally occur. After arriving at the target 
site, and prior to each firing event, the aircraft crew will conduct a 
visual survey of the 5-nm (9.3-km) wide prospective target area to 
attempt to sight any marine mammals that may be present (the crew will 
do the same for sea turtles and Sargassum rafts). The AC-130 gunship 
would conduct at least two complete orbits at a minimum safe airspeed 
around a prospective target area at a maximum altitude of 6,000 ft 
(1,829 m). Provided marine mammals (and other protected species) are 
not detected, the AC-130 would then continue orbiting the selected 
target point as it climbs to the mission testing altitude. The initial 
orbits occur over a time frame of approximately 15 minutes. Monitoring 
for marine mammals, vessels, and other objects would continue 
throughout the mission. If a towed target is used, Air Force Special 
Operations Command would ensure that the target is moved in such a way 
that the largest impact threshold does not extend beyond the 5 nm 
cleared area. In other words, the tow pattern would be conducted so 
that the maximum harassment range of 282 m (Table 8) is always within 
the 5 nm cleared area.
    During the low altitude orbits and the climb to testing altitude, 
the aircraft crew would visually scan the sea surface within the 
aircraft's orbit circle for the presence of marine mammals. Primary 
emphasis for the surface scan would be upon the flight crew in the 
cockpit and personnel stationed in the tail observer bubble and 
starboard viewing window. During nighttime missions, crews would use 
night vision goggles during monitoring. The AC-130's optical and 
electronic sensors would also be employed for target clearance.
    If any marine mammals are detected during pre-mission surveys or 
during the mission, activities would be immediately halted until the 
area is clear of all marine mammals for 60 minutes, or the mission 
would be relocated to another target area. If the mission is relocated, 
the survey procedures would be repeated at the new location. In 
addition, if multiple firing events occur within the same flight, these 
clearance procedures would precede each event.

Post-Mission Monitoring

    Aircraft crews would conduct a post-mission survey beginning at the 
operational altitude of approximately 15,000 to 20,000 ft elevation and 
proceeding through a spiraling descent to approximately 6,000 ft. It is 
anticipated that the descent would occur over a 3- to 5-minute time 
period. During this time, aircrews would use the Infrared Detection 
Sets and low-light TV systems to scan the water surface for animals 
that may have been impacted during the gunnery exercise. During daytime 
missions, visual scans would be used as well.

Sea State Limitations

    If daytime weather and/or sea conditions preclude adequate aerial 
surveillance for detecting marine mammals and other marine life, AS 
gunnery exercises would be delayed until adequate sea conditions exist. 
Daytime live fire missions would be conducted only when sea surface 
conditions are sea state 4 or less on the Beufort scale (see Table 11-1 
in the LOA application).

Operational Mitigation Measures

    Eglin AFB has identified three operation mitigation measures for 
implementation during AS gunnery missions, including development of a 
training round, use of ramp-up procedures, and limitations on the 
number of missions conducted over the waters beyond the continental 
shelf. The largest type of ammunition used during typical gunnery 
missions is the 105-mm round containing 4.7 lbs of high explosive (HE). 
This is several times more HE then that found in the next largest round 
(40 mm). As a mitigation technique, the USAF developed a 105-mm TR that 
contains

[[Page 26600]]

only 0.35 lb (0.16 kg) of HE. The TR was developed to dramatically 
reduce the risk of harassment at night and Eglin AFB anticipates a 96 
percent reduction in impact by using the 105-mm TR (Table 11).

                                     Table 11--Examples of Mitigation Effectiveness Using the 105 mm Training Round
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              105 mm TR (~0.3 lbs HE)         105 mm FU (~4.7 lbs HE)     Mitigation (percent reduction)
                                                         -----------------------------------------------------------------------------------------------
                     Threshold (dB)                                          Affected                        Affected
                                                            ZOI (km\2\)       animals       ZOI (km\2\)       animals          ZOI %         Affected
                                                                            ()                     ()                    animals  (%)
--------------------------------------------------------------------------------------------------------------------------------------------------------
160.....................................................             6.8            40.9           179.2         1,078.8              96              96
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The ramp-up procedure refers to the process of beginning an 
activity with the least impactive action and proceeding to subsequently 
more impactive actions. The rationale for requiring ramp-up procedures 
is that this process may allow animals to perceive steadily increasing 
noise levels and to react, if necessary, before the noise reaches a 
threshold of significance. In the case of AS gunnery activities, ramp-
up procedures involve beginning a mission with the lowest caliber 
munition and proceeding to the highest, which means the munitions would 
be fired in the order of 25 mm, 40 mm, and 105 mm.
    The AC-130 gunship's weapons are used in two activity phases. 
First, the guns are checked for functionality and calibrated. This step 
requires an abbreviated period of live fire. After the guns are 
determined to be ready for use, the mission proceeds under various test 
and training scenarios. This second phase involves a more extended 
period of live fire and can incorporate use of one or any combination 
of the munitions available (25-, 40-, and 105-mm rounds).
    The ramp-up procedure shall be required for the initial gun 
calibration, and, after this phase, the guns may be fired in any order. 
Eglin AFB and NMFS believe this process will allow marine species the 
opportunity to respond to increasing noise levels. If an animal leaves 
the area during ramp-up, it is unlikely to return while the live-fire 
mission is proceeding. This protocol allows a more realistic training 
experience. In combat situations, gunship crews would not likely fire 
the complete ammunition load of a given caliber gun before proceeding 
to another gun. Rather, a combination of guns would likely be used as 
required by an evolving situation. An additional benefit of this 
protocol is that mechanical or ammunition problems on an individual gun 
can be resolved while live fire continues with functioning weapons. 
This also diminishes the possibility of a lengthy pause in live fire, 
which, if greater than 10 min, would necessitate Eglin's re-initiation 
of protected species surveys.
    Many marine mammal species found in the GOM, including the ESA-
listed sperm whale, occur with greater regularity in waters over and 
beyond the continental shelf break. As a conservation measure to avoid 
impacts to sperm whales, Eglin AFB would conduct only one mission per 
year beyond the 200 m isobaths, which is considered to be the shelf 
break. This measure is expected to provide greater protection to 
several other marine mammal species as well. Eglin AFB has established 
a line delineating the shelf break, with coordinates of N 29[deg]42.73' 
W 86[deg]48.27' and N 29[deg]12.73' W 85[deg]59.88' (see Figure 1-12 in 
Eglin's LOA application). A maximum of only one mission per year would 
occur south of this line. The exposure analysis assumed that the single 
mission beyond the shelf break would occur during the day, so that 105 
mm FU rounds would be used.

Proposed Monitoring and Reporting

    In order to issue an ITA for an activity, Section 101(a)(5)(D) of 
the MMPA states that NMFS must, where applicable, 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 in the proposed action area.
    For PSW and AS gunnery missions, prospective mission sites would be 
monitored for the presence of marine mammals prior to the commencement 
of activities. Monitoring would continue throughout gunnery missions 
and up to one hour prior to the launch of ordnance for PSW missions, 
and post-mission surveys would be conducted after all missions. 
Monitoring would be conducted using visual surveys from aircraft and, 
for PSW mission, surface vessels and aircraft using monitoring 
enhancement instruments (including the IDS and low-light TV systems). 
If marine mammals are detected during pre-mission monitoring (up to one 
hour prior to ordnance launch for PSW missions) or during the mission 
for AS, activities would be immediately halted until the area is clear 
of all marine mammals, or for AS gunnery the mission would be relocated 
to another area.
    In addition to monitoring for marine mammals before, during, and 
after missions, the following monitoring and reported measures would be 
required:
    (1) Aircrews would participate in the marine mammal species 
observation training. Each crew members would be required to complete 
the training prior to participating in a mission. Observers would 
receive training in protected species survey and identification 
techniques.
    (2) Eglin AFB Natural Resources Section would track use of the 
EGTTR and protected species observations through the use of mission 
reporting forms.
    (3) For AS gunnery missions, coordinate with next-day flight 
activities to provide supplemental post-mission observations for marine 
mammals in the operations area of the previous day.
    (4) A summary annual report of marine mammal observations and 
mission activities would be submitted to the NMFS Southeast Regional 
Office (SERO) and the NMFS Office of Protected Resources either at the 
time of a request for renewal of an LOA or 90 days after expiration of 
the current authorization if a new permit is not requested. This annual 
report would include the following information: (i) Date and time of 
each exercise; (ii) a complete description of the pre-exercise and 
post-exercise activities related to mitigating and monitoring the 
effects of mission activities on marine mammal populations; (iii) 
results of the monitoring program, including numbers by species/stock 
of any marine mammals noted injured or killed as a result of missions 
and number of marine

[[Page 26601]]

mammals (by species if possible) that may have been harassed due to 
presence within the activity zone; and (iv) for AS gunnery missions, a 
detailed assessment of the effectiveness of sensor-based monitoring in 
detecting marine mammals in the area of A-S gunnery operations.
    (5) If any dead or injured marine mammals are observed or detected 
prior to testing, or injured or killed during mission activities, a 
report would be made to NMFS by the following business day.
    (6) Any unauthorized takes of marine mammals (i.e., mortality) 
would be immediately reported to NMFS and to the respective stranding 
network representative.

Research

    Although Eglin AFB does not currently conduct independent studies, 
Eglin's Natural Resources Section participates in marine mammal tagging 
and monitoring programs lead by other agencies. In addition, the 
Natural Resources Section supports participation in annual surveys of 
marine mammals in the GOM with NMFS. From 1999 to 2002, Eglin AFB, 
through a contract representative, participated in summer cetacean 
monitoring and research efforts. The contractor participated in visual 
surveys in 1999 for cetaceans in the GOM, photo-identification of sperm 
whales in the northeastern Gulf in 2001, and as a visual observer 
during the 2000 Sperm Whale Pilot Study and the 2002 sperm whale 
Satellite-tag (S-tag) cruise. Eglin AFB's Natural Resources Section has 
also obtained funding from the Department of Defense for two marine 
mammal habitat modeling projects. One such project (Garrison, 2008) 
included funding for and extensive involvement of NMFS personnel to 
apply the most recent aerial survey data to habitat modeling and 
protected species density estimates in the northeastern GOM.
    Based on this information, NMFS has preliminarily determined that 
the proposed PSW and AS gunnery mission activities will not have any 
impact on the food or feeding success of marine mammals in the northern 
GOM. Additionally, no loss or modification of the habitat used by 
cetaceans in the GOM is expected. Marine mammals are anticipated to 
temporarily vacate the area of live fire events. However, these events 
usually do not last more than 90 to 120 min at a time, and animals are 
anticipated to return to the activity area during periods of non-
activity. Thus, the proposed activity is not expected to have any 
habitat-related effects that could cause significant or long-term 
consequences for individual marine mammals or on the food sources that 
they utilize.

Impact on Availability of Affected Species or Stock for Taking for 
Subsistence Uses

    There are no relevant subsistence uses of marine mammals implicated 
by this action. Therefore, NMFS has preliminarily determined that the 
total taking of affected species or stocks would not have an 
unmitigable adverse impact on the availability of such species or 
stocks for taking for subsistence purposes.

Negligible Impact Analysis and Preliminary Determinations

    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as: any act of pursuit, torment, or 
annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild [Level A harassment]; or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering [Level B harassment].
    The NDAA's definition of harassment as it applies to a military 
readiness activity is: (i) Any act that injures or has the significant 
potential to injure a marine mammal or marine mammal stock in the wild 
[Level A Harassment]; or (ii) any act that disturbs or is likely to 
disturb a marine mammal or marine mammal stock in the wild by causing 
disruption of natural behavioral patterns, including, but not limited 
to, migration, surfacing, nursing, breeding, feeding, or sheltering, to 
a point where such behavioral patterns are abandoned or significantly 
altered [Level B Harassment].
    We propose to authorize take by Level A and Level B harassment for 
the proposed activities. There is no evidence that planned activities 
could result in serious injury or mortality within the specified 
geographic area for the requested authorization. The required 
mitigation and monitoring measures would minimize any potential risk 
for serious injury or mortality.
    Pursuant to our regulations implementing the MMPA, an applicant is 
required to estimate the number of animals that will be ``taken'' by 
the specified activities (i.e., takes by harassment only, or takes by 
harassment, injury, and/or death). This estimate informs the analysis 
that we must perform to determine whether the activity will have a 
``negligible impact'' on the species or stock. NMFS has defined 
``negligible impact'' in 50 CFR 216.103 as ``an impact resulting from 
the specified activity that cannot be reasonably expected to, and is 
not reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival.'' In making a 
negligible impact determination, NMFS considers a variety of factors, 
including but not limited to: (1) The number of anticipated serious 
injuries and mortalities; (2) the number and nature of anticipated 
injuries (Level A harassment); (3) the number, nature, intensity, and 
duration of Level B harassment; and (4) the context in which the takes 
occur.
    As mentioned previously, NMFS estimates that six species of marine 
mammals could be potentially affected by Level A or Level B harassment 
over the course of the five-year period. No take by serious injury or 
death is anticipated or would be authorized. By incorporating the 
proposed mitigation measures, including monitoring and shut-down 
procedures described previously, impacts to individual marine mammals 
from the proposed activities are expected to be limited to Level A 
(injury) or Level B (TTS and behavioral) harassment.
    The USAF has described its specified activities based on best 
estimates of the number of hours that the USAF will conduct PSW and AS 
gunnery missions. The exact number of missions may vary from year to 
year, but will not exceed the annual totals indicated in Tables 1 and 
2.
    Taking the above into account, considering the sections discussed 
further, and dependent upon the implementation of the proposed 
mitigation measures, NMFS has preliminarily determined that the total 
level of incidental take authorized for PSW and AG gunner missions over 
the five-year effective period of the regulations will have a 
negligible impact on the six marine mammal species and stocks affected 
in operational areas in the Gulf of Mexico.
    The U.S. Air Force complied with the requirements of the previous 
LOAs and IHAs issued for PSW and AS gunnery activities, and reported 
zero observed takes of marine mammals incidental to these training 
exercises. For this proposed rulemaking, NMFS has preliminarily 
determined that, based on the information provided in Eglin's 
application, the Final PEA and this document, the total taking of 
marine mammals by PSW and AS gunnery activities will have a negligible 
impact on the affected species or stocks over

[[Page 26602]]

the 5-year period of take authorizations. No take by serious injury or 
mortality is anticipated during this period, and no take by serious 
injury or mortality is proposed to be authorized.
    In addition, the potential for temporary or permanent hearing 
impairment and injury is low and through the incorporation of the 
proposed mitigation measures specified in this document would have the 
least practicable adverse impact on the affected species or stocks. The 
information contained in Eglin's EA, PEA, and incidental take 
application support NMFS' finding that impacts will be mitigated by 
implementation of a conservative safety range for marine mammal 
exclusion, incorporation of aerial and shipboard survey monitoring 
efforts in the program both prior to and after detonation of 
explosives, and delay/postponement/cancellation of detonations whenever 
marine mammals or other specified protected resources are either 
detected within the safety zone or may enter the safety zone at the 
time of detonation or if weather and sea conditions preclude adequate 
aerial surveillance. Since the taking would not result in more than the 
incidental harassment of certain species of marine mammals, will have 
only a negligible impact on these stocks, will not have an unmitigable 
adverse impact on the availability of these stocks for subsistence uses 
(as there are no known subsistence uses of marine mammal stocks in the 
GOM), and, through implementation of required mitigation and monitoring 
measures, will result in the least practicable adverse impact on the 
affected marine mammal stocks, NMFS has preliminarily determined that 
the requirements of section 101(a)(5)(A) of the MMPA have been met and 
this proposed rule can be issued.
    The proposed number of animals taken for each species can be 
considered small relative to the population size. Based on the best 
available information, NMFS proposes to authorize take, by Level B 
harassment only, of 2,200 bottlenose dolphin (444 annually), 1,765 
Atlantic spotted dolphin (353 annually), 15 pantropical spotted dolphin 
(3 annually), 15 spinner dolphin (3 annually), 10 dwarf/pygmy sperm 
whale (2 annually), representing 4.9, 5.7, 0.02, 0.12, and 1.3 percent 
of the populations, respectively. However, this represents an 
overestimate of the number of individuals harassed over the duration of 
the proposed rule and LOAs because these totals represent much smaller 
numbers of individuals that may harassed multiple times. In addition, 
NMFS proposes to authorize take, by Level A harassment, of 25 
bottlenose dolphin (5 annually) and 20 Atlantic spotted dolphin (4 
annually). No stocks known from the action area are listed as 
threatened or endangered under the ESA or otherwise considered 
depleted. Five bottlenose dolphin stocks designated as strategic under 
the MMPA may be affected by AS gunnery activities. In this case, under 
the MMPA, strategic stock means a marine mammal stock for which the 
level of direct human-caused mortality exceeds the potential biological 
removal level. These include Pensacola/East Bay, Choctawhatchee Bay, 
St. Andrew Bay, St. Joseph Bay, and St. Vincent Sound/Apalachicola Bay/
St. George Sound stocks; however, large numbers of dolphins would not 
be affected because the missions generally occur more than 15 miles (24 
km) from shore. No serious injury or mortality is anticipated, nor is 
the proposed action likely to result in long-term impacts such as 
permanent abandonment or reduction in presence with the EGTTR. No 
impacts are expected at the population or stock level.

Endangered Species Act (ESA)

    No ESA-listed marine mammals are known to occur within the action 
area. Therefore, there is no requirement for NMFS to consult under 
Section 7 of the ESA on the promulgation of regulations and issuance of 
LOAs under section 101(a)(5)(A) of the MMPA. However, ESA-listed sea 
turtles may be present within the action area. On October 20, 2004 and 
March 14, 2005, NMFS issued Biological Opinions (BiOps) on AS gunnery 
and PSW exercises in the EGTTR, respectively. The BiOps, which are 
still in effect, concluded that AS gunnery and PSW exercises are 
unlikely to jeopardize the continued existence of the endangered green 
turtle (Chelonia mydas), leatherback turtle (Dermochelys coriacea), 
Kemp's ridley turtle (Lepidochelys kempii), or threatened loggerhead 
turtle (Caretta caretta). No critical habitat has been designated for 
these species in the action area; therefore, none will be affected.

National Environmental Policy Act (NEPA)

AS Gunnery Missions

    The USAF prepared a Final PEA in November 2002 for the AS gunnery 
activities within the EGTTR. NMFS made the USAF's 2002 Final PEA 
available upon request on January 23, 2006 (71 FR 3474). In accordance 
with NOAA Administrative Order 216-6 (Environmental Review Procedures 
for Implementing the National Environmental Policy Act, May 20, 1999), 
NMFS reviewed the information contained in the USAF's 2002 Final PEA, 
and determined that the document accurately and completely described 
the proposed action, the alternatives to the proposed action, and the 
potential impacts on marine mammals, endangered species, and other 
marine life that could be impacted by the preferred alternative and the 
other alternatives. Accordingly, NMFS adopted the USAF's 2002 Final PEA 
and made its own FONSI on May 16, 2006. In the course of adopting the 
USAF's 2002 Final PEA and reach a FONSI NMFS took into consideration 
updated data and information contained in NMFS' Federal Register 
document noting issuance of an IHA to Eglin AFB for this activity (71 
FR 27695, May 12, 2006), and previous notices (71 FR 3474, January 23, 
2006; 70 FR 48675, August 19, 2005) and determined that the proposed 
action had not changed substantially or presented new circumstances or 
environmental concerns such that supplemental NEPA analysis was 
necessary.
    The issuance of the 2008 IHA to Eglin AFB amended three of the 
mitigation measures for reasons of practicality and safety, therefore, 
NMFS reviewed the USAF's 2002 Final PEA and determined that a new EA 
was warranted to address: (1) The proposed modifications to the 
mitigation and monitoring measures; (2) the use of 23 psi as a change 
in the criterion for estimating potential impacts on marine mammals 
from explosives; and (3) a cumulative effects analysis of potential 
environmental impacts from all GOM activities (including Eglin mission 
activities), which was not addressed in the USAF's 2002 Final PEA. 
Therefore, NMFS prepared a new EA in December 2008 and issued a FONSI 
for its action on December 9, 2008. NMFS has reviewed the environmental 
impacts on the human environment presented by this rulemaking and 
annual LOAs to Eglin AFB and found that they are not substantially 
different from the action analyzed in Eglin's EA. No new incremental 
change would occur under this new authority. NMFS has preliminarily 
determined that the proposed action has not changed substantially and 
that no significant new circumstances or environmental concerns bearing 
on the proposed action or its impacts exist. As the environmental 
impacts for this proposed action fall within the scope of the NMFS 2008 
EA. NMFS presently does not intend to issue a new EA, a supplemental 
EA, or an environmental

[[Page 26603]]

impact statement for the issuance of a LOA to Eglin AFB to take marine 
mammals incidental to this activity. NMFS, however, will review all 
comments submitted by the public in response to this notice before 
making a final determination on the need to supplement the 2008 EA and 
whether to reaffirm the FONSI.

PSW Missions

    In December 2003, Eglin AFB released a Draft PEA on PSW activities 
within the EGTTR. On April 22, 2004 (69 FR 21816), NMFS noted that 
Eglin AFB had prepared a Draft PEA for PSW activities and made this PEA 
available upon request. Eglin AFB updated the information in that PEA 
and issued a Final PEA and a Finding of No Significant Impact (FONSI) 
on the PSW activities. NMFS reviewed the information contained in Eglin 
AFB's Final PEA and determined that the PEA accurately and completely 
describes the preferred action alternative, a reasonable range of 
alternatives, and the potential impacts on marine mammals, endangered 
species, and other marine life that could be impacted by the preferred 
and non-preferred alternatives. Based on this review and analysis, NMFS 
has preliminarily determined that this proposed rule is within the 
scope of the Eglin AFB PEA and intends to adopt the PEA for this 
proposed action. The impacts on the human environment by issuance of 
this rulemaking and annual LOAs to Eglin AFB are not substantially 
different from the action analyzed in Eglin's PEA and as no new 
incremental change would occur under this new authority. NMFS has 
therefore preliminarily determined that the proposed action has not 
changed substantially and that no significant new circumstances or 
environmental concerns bearing on the proposed action or its impacts 
exist. As the environmental impacts for this proposed action fall 
within the scope of the Eglin AFB PEA. NMFS has preliminarily 
determined that it is not necessary to issue a new EA or supplemental 
EA, for promulgation of this rule and issuance of a LOA to Eglin AFB to 
take marine mammals incidental to this activity. NMFS, however, will 
review all comments submitted by the public in response to this notice 
before making a final determination on the need to prepare a separate 
EA or supplement the Eglin AFB PEA and make an independent FONSI.
    Having reviewed the information in the past Federal Register 
notices issuing IHAs and regulations for the proposed activities, 
public comments submitted in response to them, as well as the serious 
of EAs discussed above, NMFS does not anticipate that a comprehensive 
authorization for the incidental take of marine mammals for both PWS 
and AS gunnery exercises is likely to result in new or significant 
cumulative impacts. We will consider comments submitted by the public 
on this issue.

Request for Information

    NMFS requests interested persons to submit comments, information, 
and suggestions concerning Eglin's application and this proposed rule 
(see ADDRESSES). All comments will be reviewed and evaluated as NMFS 
prepares a final rule and makes final determinations on whether to 
issue the requested authorization. In addition, this notice and 
referenced documents provide all environmental information relevant to 
our proposed action for the public's review and we solicit comments 
which we will also consider as we make final NEPA determinations.

Classification

    This action has been determined to be not significant for purposes 
of Executive Order 12866.
    The Chief Counsel for Regulation of the Department of Commerce has 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
This proposed rule would apply only to the U.S. Air Force, a Federal 
agency, which is not considered to be a small governmental 
jurisdiction, small organization or small business, as defined by the 
Regulatory Flexibility Act. This rulemaking authorizes Eglin Air Force 
Base to take of marine mammals incidental to a specified activity. The 
specified activity defined in the proposed rule includes the use of 
explosive detonations, which are only used by the U.S. military, during 
training activities that are only conducted by the U.S. Air Force. 
Additionally, any requirements imposed by a Letter of Authorization 
issued pursuant to these regulations, and any monitoring or reporting 
requirements imposed by these regulations, will be applicable only to 
Eglin Air Force Base.
    This action may indirectly affect a small number of contractors 
providing services related to reporting the impact of the activity on 
marine mammals, some of whom may be small businesses, but the number 
involved would not be substantial. Further, since the monitoring and 
reporting requirements are what would lead to the need for their 
services, the economic impact on any contractors providing services 
relating to reporting impacts would be beneficial. Because the Chief 
Counsel for Regulation certified that this proposed rule would not have 
significant economic impact on a substantial number of small entities, 
a regulatory flexibility analysis is not required and none has been 
prepared.

List of Subjects in 50 CFR Part 217

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

    Dated: April 30, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.

    For reasons set forth in the preamble, 50 CFR part 217 is proposed 
to be amended as follows:

PART 217--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE 
MAMMALS

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


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

0
2. Subpart L is added to part 217 to read as follows:
Subpart L--Taking Marine Mammals Incidental to Conducting Precision 
Strike Weapon and Air-to-Surface Gunnery Missions at Eglin Gulf Test 
and Training Range (EGTTR) in the Gulf of Mexico
Sec.
217.110 Specified activity and specified geographical region.
217.111 Effective dates.
217.112 Permissible methods of taking.
217.113 Prohibitions.
217.114 Mitigation.
217.115 Requirements for monitoring and reporting.
217.116 Applications for Letters of Authorization.
217.117 Letters of Authorization.
217.118 Renewal of Letters of Authorization.
217.119 Modifications to Letters of Authorization.

Subpart L--Taking Marine Mammals Incidental to Conducting Precision 
Strike Weapon and Air-to-Surface Gunnery Missions at Eglin Gulf 
Test and Training Range (EGTTR) in the Gulf of Mexico


Sec.  217.110  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the U.S. Air Force 
for the incidental taking of marine mammals

[[Page 26604]]

that occurs in the area outlined in paragraph (b) of this section and 
that occur incidental to the activities described in paragraph (c) of 
this section.
    (b) The taking of marine mammals by the Air Force is only 
authorized if it occurs within the Eglin Air Force Base Gulf Test and 
Training Range (as depicted in Figure 1-9 of the Air Force's Request 
for a Letter of Authorization). The EGTTR is the airspace over the Gulf 
of Mexico beyond 3 nm from shore that is controlled by Eglin Air Force 
Base. The specified activities will take place within the boundaries of 
Warning Area W-151. The inshore and offshore boundaries of W-151 are 
roughly parallel to the shoreline contour. The shoreward boundary is 3 
nm from shore, while the seaward boundary extends approximately 85 to 
100 nm offshore, depending on the specific location. W-151 has a 
surface area of approximately 10,247 nm\2\ (35,145 km\2\), and includes 
water depths ranging from approximately 20 to 700 m.
    (c) The taking of marine mammals by the Air Force is only 
authorized of it occurs incidental to the following activities within 
the designated amounts of use:
    (1) The use of the following Precision Strike Weapons (PSWs) for 
PSW training activities, in the amounts indicated below:

    (i) Joint Air-to-Surface Stand-Off Missile (JASSM) AGM-158 A and 
B--two live shots (single) and 4 inert shots (single) per year;
    (ii) Small-diameter bomb (SDB) GBU-39/B--six live shots per year, 
with two of the shots occurring simultaneously, and 12 inert shots per 
year, with up to two occurring simultaneously.
    (2) The use of the following ordnance for daytime Air-to-Surface 
(AS) Gunnery training activities, in the amounts indicated below:
    (i) 105 mm HE Full Up (FU)--25 missions per year with 30 rounds per 
mission
    (ii) 40 mm HE--25 missions per year with 64 rounds per mission
    (iii) 25 mm HE--25 mission per year with 560 rounds per mission
    (3) The use of the following ordnance for nighttime Air-to-Surface 
(AS) Gunnery training activities, in the amounts indicated below:
    (i) 105 mm HE Training Round (TR)--45 missions per year with 30 
rounds per mission
    (ii) 40 mm HE--45 missions per year with 64 rounds per mission
    (iii) 25 mm HE--45 mission per year with 560 rounds per mission


Sec.  217.111  Effective dates.

    Regulations in this subpart are effective from [Insert date of 
publication of the final rule in the Federal Register] until [Insert 
date 5 years after date of publication of the final rule in the Federal 
Register].


Sec.  217.112  Permissible methods of taking.

    (a) Under a Letter of Authorization issued pursuant to Sec. Sec.  
216.106 and 217.117 of this chapter, the Holder of the Letter of 
Authorization may incidentally, but not intentionally, take marine 
mammals by Level A and Level B harassment within the area described in 
Sec.  217.110(b), provided the activity is in compliance with all 
terms, conditions, and requirements of these regulations and the 
appropriate Letter of Authorization.
    (b) The activities identified in Sec.  217.110(c) must be conducted 
in a manner that minimizes, to the greatest extent practicable, any 
adverse impact on marine mammals and their habitat.
    (c) The incidental take of marine mammals under the activities 
identified in Sec.  217.110(c) is limited to the following species, by 
the indicated method of take and the indicated number:
    (1) Level B harassment.
    (i) Atlantic bottlenose dolphin (Tursiops truncatus)--2,200 (an 
average of 444 annually).
    (ii) Atlantic spotted dolphin (Stenella frontalis)--1,765 (an 
average of 353 annually).
    (iii) Pantropical spotted dolphin (S. attenuate)--15 (an average of 
3 annually).
    (iv) Spinner dolphin (S. longirostris)--15 (an average of 3 
annually).
    (v) Dwarf or pygmy sperm whale (Kogia simus or Kogia breviceps)--10 
(an average of 2 annually).
    (2) Level A harassment.
    (i) Atlantic bottlenose dolphin (Tursiops truncatus)--25 (an 
average of 5 annually).
    (ii) Atlantic spotted dolphin (Stenella frontalis)--20 (an average 
of 4 annually).


Sec.  217.113  Prohibitions.

    No person in connection with the activities described in Sec.  
217.110 shall:
    (a) Take any marine mammal not specified in Sec.  217.112(c);
    (b) Take any marine mammal specified in Sec.  217.112(c) other than 
by incidental take as specified in Sec.  217.112(c)(1) and (c)(2);
    (c) Take a marine mammal specified in Sec.  217.112(c) if such 
taking results in more than a negligible impact on the species or 
stocks of such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of these regulations or a Letter of Authorization issued 
under Sec. Sec.  216.106 and 217.117 of this chapter.


Sec.  217.114  Mitigation.

    (a) The activities identified in Sec.  217.110(c) 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.  217.110(c), the mitigation measures 
contained in the Letter of Authorization issued under Sec. Sec.  
216.106 and 217.117 of this chapter must be implemented.
    (b) Precision strike weapon missions--(1) Safety zones.
    (i) For the JASSM, the Air Force must establish and monitor a 
safety zone for marine mammals with a radius of 2.0 nm (3.7 km) from 
the center of the detonation and a buffer zone with a radius of 1.0 nm 
(1.85 km) radius from the outer edge of the safety zone.
    (ii) For the SDB, the holder of the Letter of Authorization must 
establish and monitor a safety zone for marine mammals with a radius of 
no less than 5 nm (9.3 km) for single bombs and 10 nm (18.5 km) for 
double bombs and a buffer zone from the outer edge of the safety zone 
with a radius of at least 2.5 nm (4.6 km) for single bombs and 5 nm 
(18.5 km) for double bombs.
    (2) For PSW missions, the holder of the Letter of Authorization 
must comply with the monitoring requirements, including pre-mission 
monitoring, set forth in Sec.  217.115(c).
    (3) When detonating explosives:
    (i) If any marine mammals or sea turtles are observed within the 
designated safety zone or the buffer zone prescribed in paragraph 
(b)(1) of this section or that are on a course that will put them 
within the safety zone prior to JASSM or SDB launch, the launching must 
be delayed until all marine mammals are no longer within the designated 
safety zone.
    (ii) If any marine mammals are detected in the buffer zone and 
subsequently cannot be reacquired, the mission launch will not continue 
until the next verified location is outside of the safety zone and the 
animal is moving away from the mission area.
    (iii) If large Sargassum rafts or large concentrations of jellyfish 
are observed within the safety zone, the mission launch will not 
continue until the Sargassum rafts or jellyfish that caused the 
postponement are confirmed to be outside of the safety zone due to the 
current and/or wind moving them out of the mission area.

[[Page 26605]]

    (iv) If weather and/or sea conditions preclude adequate aerial 
surveillance for detecting marine mammals or sea turtles, detonation 
must be delayed until adequate sea conditions exist for aerial 
surveillance to be undertaken. Adequate sea conditions means the sea 
state does not exceed Beaufort sea state 3.5 (i.e., whitecaps on 33 to 
50 percent of surface; 0.6 m (2 ft) to 0.9 m (3 ft) waves), the 
visibility is 5.6 km (3 nm) or greater, and the ceiling is 305 m (1,000 
ft) or greater.
    (v) To ensure adequate daylight for pre- and post-detonation 
monitoring, mission launches may not take place earlier than 2 hours 
after sunrise, and detonations may not take place later than 2 hours 
prior to sunset, or whenever darkness or weather conditions will 
preclude completion of the post-test survey effort described in Sec.  
217.115.
    (vi) If post-detonation surveys determine that a serious injury or 
lethal take of a marine mammal has occurred, the test procedure and the 
monitoring methods must be reviewed with the National Marine Fisheries 
Service and appropriate changes to avoid unauthorized take must be made 
prior to conducting the next mission detonation.
    (vii) Mission launches must be delayed if aerial or vessel 
monitoring programs described under Sec.  217.115 cannot be fully 
carried out.
    (c) Air-to-surface gunnery missions--(1) Sea state restrictions.
    (i) If daytime weather and/or sea conditions preclude adequate 
aerial surveillance for detecting marine mammals and other marine life, 
air-to-surface gunnery exercises must be delayed until adequate sea 
conditions exist for aerial surveillance to be undertaken. Daytime air-
to-surface gunnery exercises will be conducted only when sea surface 
conditions do not exceed Beaufort sea state 4 (i.e., wind speed 13-18 
mph (11-16 knots); wave height 1 m (3.3 ft)), the visibility is 5.6 km 
(3 nm) or greater, and the ceiling is 305 m (1,000 ft) or greater.
    (ii) [Reserved]
    (2) Pre-mission and mission monitoring.
    (i) The aircrews of the air-to-surface gunnery missions will 
initiate location and surveillance of a suitable firing site 
immediately after exiting U.S. territorial waters (>12 nm).
    (ii) Prior to each firing event, the aircraft crew will conduct a 
visual and/or instrument survey of the 5-nm (9.3-km) wide prospective 
target area to locate any marine mammals that may be present.
    (A) The AC-130 gunship will conduct at least two complete orbits at 
a minimum safe airspeed around a prospective target area at an altitude 
of approximately 6,000 ft (1,829 m).
    (B) If marine mammals are not detected, the AC-130 can then 
continue orbiting the selected target point as it climbs to the mission 
testing altitude.
    (C) During the low altitude orbits and the climb to testing 
altitude, aircraft crew will scan the sea surface within the aircraft's 
orbit circle for the presence of marine mammals.
    (D) The AC-130's optical and electronic sensors must be employed 
for target detection, especially at night when visibility will be poor.
    (E) If any marine mammals are detected within the AC-130's orbit 
circle, either during initial clearance or after commencement of live 
firing, the mission will be immediately halted and relocated as 
necessary or suspended until the marine mammal has left the area. If 
relocated to another target area, the clearance procedures described in 
paragraph (c)(2)(ii) of this section must be repeated.
    (F) If multiple firing events occur within the same flight, these 
clearance procedures must precede each event.
    (iii) If no marine mammals are detected, gunnery exercises may 
begin with the deployment of MK-25 flares into the center of the 
designated 5-nm target area.
    (3) Operational mitigation measures.
    (i) Ramp-up air-to-surface gunnery firing activities by beginning 
with the lowest caliber monition and proceeding to the highest, which 
means the munitions would be fired in the following order: 25 mm; 40 
mm; and 105 mm.
    (ii) Air-to-surface gunnery exercises conducted after sunset must 
use the 105-mm training round instead of the 105-mm full up round.
    (iii) One mission per year may be conducted beyond the 200 m 
isobaths, which is south of a line delinated the shelf break with 
coordinates of 29[deg]42.73' N, 86[deg]48.27' W and 29[deg]12.73' N, 
85[deg]59.88' W (Figure 1-12 in Eglin AFB's LOA application). The 
single mission beyond the shelf break will occur during daylight hours 
only.
    (4) Post-mission monitoring.
    (i) Aircrews will initiate the post-mission clearance procedures 
beginning at the operational altitude of approximately 15,000 to 20,000 
ft (4572 to 6096 m) elevation, and then initiate a spiraling descent 
down to an observation altitude of approximately 6,000 ft (1,829 m) 
elevation. Rates of descent will occur over a 3- to 5-minute time 
frame.
    (ii) If post-detonation surveys determine that an injury or lethal 
take of a marine mammal has occurred, the test procedure and the 
monitoring methods must be reviewed with the National Marine Fisheries 
Service and appropriate changes to avoid unauthorized take must be 
made, prior to conducting the next air-to-surface gunnery exercise.


Sec.  217.115  Requirements for monitoring and reporting.

    (a) The Holder of the Letter of Authorization issued pursuant to 
Sec. Sec.  216.106 and 217.117 of this chapter for activities described 
in Sec.  217.110(c) is required to conduct the monitoring and reporting 
measures specified in this section and Sec.  217.114 and any additional 
monitoring measures contained in the Letter of Authorization.
    (b) The Holder of the Letter of Authorization is required to 
cooperate with the National Marine Fisheries Service, and any other 
Federal, state or local agency monitoring the impacts of the activity 
on marine mammals. Unless specified otherwise in the Letter of 
Authorization, the Holder of the Letter of Authorization must notify 
the Director, Office of Protected Resources, National Marine Fisheries 
Service, or designee, by letter or telephone (301-427-8401), at least 2 
weeks prior to any modification to the activity identified in Sec.  
217.110(c) that has the potential to result in the serious injury, 
mortality or Level A or Level B harassment of a marine mammal that was 
not identified and addressed previously.
    (c) Monitoring procedures for PSW missions.
    (1) The Holder of this Authorization must:
    (i) Designate qualified on-site individual(s) to record the effects 
of mission launches on marine mammals that inhabit the northern Gulf of 
Mexico;
    (ii) Have on-site individuals, approved in advance by the National 
Marine Fisheries Service, to conduct the mitigation, monitoring and 
reporting activities specified in these regulations and in the Letter 
of Authorization issued pursuant to Sec. Sec.  216.106 and 217.117 of 
this chapter.
    (iii) Conduct aerial surveys to reduce impacts on protected 
species. The aerial survey/monitoring team will consist of two 
experienced marine mammal observers, approved in advance by the 
Southeast Region, National Marine Fisheries Service. The aircraft will 
also have a data recorder who would be responsible for relaying the 
location, the species if possible, the direction of

[[Page 26606]]

movement, and the number of animals sighted.
    (iv) Conduct shipboard monitoring to reduce impacts to protected 
species. Trained observers will conduct monitoring from the highest 
point possible on each mission or support vessel(s). The observer on 
the vessel must be equipped with optical equipment with sufficient 
magnification (e.g., 25X power ``Big-Eye'' binoculars).
    (2) The aerial and shipboard monitoring teams will maintain proper 
lines of communication to avoid communication deficiencies. The 
observers from the aerial team and operations vessel will have direct 
communication with the lead scientist aboard the operations vessel.
    (3) Pre-mission monitoring: Approximately 5 hours prior to the 
mission, or at daybreak, the appropriate vessel(s) would be on-site in 
the primary test site near the location of the earliest planned mission 
point. Observers onboard the vessel will assess the suitability of the 
test site, based on visual observation of marine mammals and sea 
turtles, the presence of large Sargassum mats, seabirds and jellyfish 
aggregations and overall environmental conditions (visibility, sea 
state, etc.). This information will be relayed to the lead scientist.
    (4) Three hours prior to mission:
    (i) Approximately three hours prior to the mission launch, aerial 
monitoring will commence within the test site to evaluate the test site 
for environmental suitability. Evaluation of the entire test site would 
take approximately 1 to 1.5 hours. The aerial monitoring team will 
begin monitoring the safety zone and buffer zone around the target 
area.
    (ii) Shipboard observers will monitor the safety and buffer zone, 
and the lead scientist will enter all marine mammals and sea turtle 
sightings, including the time of sighting and the direction of travel, 
into a marine animal tracking and sighting database.
    (5) One to 1.5 hours prior to mission launch:
    (i) Depending upon the mission, aerial and shipboard viewers will 
be instructed to leave the area and remain outside the safety area. The 
aerial team will report all marine animals spotted and their directions 
of travel to the lead scientist onboard the vessel.
    (ii) The shipboard monitoring team will continue searching the 
buffer zone for protected species as it leaves the safety zone. The 
surface vessels will continue to monitor from outside of the safety 
area until after impact.
    (6) Post-mission monitoring:
    (i) The vessels will move into the safety zone from outside the 
safety zone and continue monitoring for at least two hours, 
concentrating on the area down current of the test site.
    (ii) The holder of the Letter of Authorization will closely 
coordinate mission launches with marine animal stranding networks.
    (iii) The monitoring team will document any dead or injured marine 
mammals or turtles and, if practicable, recover and examine any dead 
animals.
    (d) Monitoring procedures for A-S gunnery missions. In addition to 
the monitoring requirements in Sec.  217.114(c), the holder of the 
Letter of Authorization must:
    (1) Cooperate with the National Marine Fisheries Service and any 
other Federal, state or local agency monitoring the impacts of the 
activity on marine mammals.
    (2) Require aircrews to initiate the post-mission clearance 
procedures beginning at the operational altitude of approximately 
15,000 to 20,000 ft (4572 to 6096 m) elevation, and then initiate a 
spiraling descent down to an observation altitude of approximately 
6,000 ft (1,829 m) elevation. Rates of descent will occur over a 3- to 
5-minute time frame.
    (3) Track their use of the EGTTR for test firing missions and 
marine mammal observations, through the use of mission reporting forms.
    (4) Coordinate air-to-surface gunnery exercises with future flight 
activities to provide supplemental post-mission observations of marine 
mammals in the operations area of the exercise.
    (e) In accordance with provisions in Sec.  217.118(b)(2), the 
Holder of the Letter of Authorization must conduct the research 
required under the Letter of Authorization.
    (f) Reporting.
    (1) Unless specified otherwise in the Letter of Authorization, the 
Holder of the Letter of Authorization must conduct all of the 
monitoring and reporting required under the LOA and submit an annual 
report to the Director, Office of Protected Resources, National Marine 
Fisheries Service by a date certain specified in the LOA. This report 
must include the following information:
    (i) Date and time of each PSW/air-to-surface gunnery exercise;
    (ii) A complete description of the pre-exercise and post-exercise 
activities related to mitigating and monitoring the effects of PSW/air-
to-surface gunnery exercises on marine mammal populations;
    (iii) Results of the monitoring program, including numbers by 
species/stock of any marine mammals noted injured or killed as a result 
of the training exercises and number of marine mammals (by species if 
possible) that may have been harassed due to presence within the 
applicable safety zone;
    (iv) A detailed assessment of the effectiveness of sensor-based 
monitoring in detecting marine mammals in the area of air-to-surface 
gunnery operations; and
    (v) Results of coordination with coastal marine mammal stranding 
networks.
    (2) The final comprehensive report on all marine mammal monitoring 
and research conducted during the period of these regulations must be 
submitted to the Director, Office of Protected Resources, National 
Marine Fisheries Service at least 240 days prior to expiration of these 
regulations or 240 days after the expiration of these regulations if 
new regulations will not be requested.


Sec.  217.116  Applications for Letters of Authorization.

    To incidentally take marine mammals pursuant to these regulations, 
the U.S. citizen (as defined at Sec.  216.103 of this chapter) 
conducting the activities identified in Sec.  217.110(c) must apply for 
and obtain either an initial Letter of Authorization in accordance with 
Sec. Sec.  216.106 and 217.117 of this chapter or a renewal under Sec.  
217.118 of this chapter.


Sec.  217.117  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the period of validity of this 
subpart.
    (b) Each Letter of Authorization will 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; and
    (3) Requirements for monitoring and reporting.
    (c) Issuance and renewal of the Letter of Authorization will be 
based on a determination that the total number of marine mammals taken 
by the activity as a whole will have no more than a negligible impact 
on the species or stock of affected marine mammals.


Sec.  217.118  Renewal of Letters of Authorization.

    (a) A Letter of Authorization issued under Sec.  216.106 and Sec.  
217.117 of this chapter for the activities identified in Sec.  
217.110(c) will be renewed based upon:
    (1) Notification to the National Marine Fisheries Service that the 
activity

[[Page 26607]]

described in the application submitted under Sec.  217.116 will be 
undertaken and that there will not be a substantial modification to the 
described work, mitigation or monitoring undertaken during the upcoming 
period of validity;
    (2) Timely receipt (by the dates indicated in the Letter of 
Authorization issued under this subpart) of the monitoring report 
required under Sec.  217.115(f); and
    (3) A determination by the National Marine Fisheries Service that 
the mitigation, monitoring and reporting measures required under Sec.  
217.114 and the Letter of Authorization issued under Sec. Sec.  216.106 
and 217.117 of this chapter, were undertaken and will be undertaken 
during the upcoming period of validity of a renewed Letter of 
Authorization.
    (b) If a request for a renewal of a Letter of Authorization issued 
under Sec. Sec.  216.106 and 217.118 of this chapter indicates that a 
substantial modification to the described work, mitigation, monitoring 
or research undertaken during the upcoming season will occur, the 
National Marine Fisheries Service will provide the public a period of 
30 days for review and seek comment on:
    (1) New cited information and data that indicates that the 
determinations made for promulgating these regulations are in need of 
reconsideration, and
    (2) Proposed changes to the mitigation, monitoring and research 
requirements contained in these regulations or in the current Letter of 
Authorization.


Sec.  217.119  Modifications to Letters of Authorization.

    (a) Except as provided in paragraphs (b) and (c) of this section, 
no substantive modification (including withdrawal or suspension) to a 
Letter of Authorization issued pursuant to Sec. Sec.  216.106 and 217. 
117 of this chapter 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.  217.118, 
without modification (except for the period of validity), is not 
considered a substantive modification.
    (b) NMFS in response to new information and in consultation with 
Eglin AFB, may modify the mitigation or monitoring measures in LOAs if 
doing so creates a reasonable likelihood of more effectively 
accomplishing the goals of mitigation and monitoring. 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 Eglin AFB's monitoring from the previous year 
(either from the EGTTR or other locations).
    (2) Results from specific stranding investigations.
    (3) Results from general marine mammals and sound research.
    (4) Any information that reveals marine mammals may have been taken 
in a manner, extent, or number not anticipated by these regulations or 
Letters of Authorization.
    (c) 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.  217.112(c), a Letter of 
Authorization issued pursuant to Sec. Sec.  216.106 and 217.117 of this 
chapter may be substantively modified without prior notification and an 
opportunity for public comment. Notification will be published in the 
Federal Register within 30 days subsequent to the action.

[FR Doc. 2013-10700 Filed 5-6-13; 8:45 am]
BILLING CODE 3510-22-P