Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Conducting Precision Strike Weapons Testing and Training by Eglin Air Force Base in the Gulf of Mexico, 44001-44012 [E6-12556]
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Federal Register / Vol. 71, No. 149 / Thursday, August 3, 2006 / Proposed Rules
Proposed Amendments to the
Regulations
Accordingly, 26 CFR part 1 is
amended as follows:
PART 1—INCOME TAXES
Paragraph 1. The authority citation
for part 1 continues to read, in part, as
follows:
Authority: 26 U.S.C. 7805 * * *
Par. 2. Section 1.671–5 is amended
by:
1. Revising paragraphs (b)(5), (b)(8),
and (b)(21).
2. Revising paragraph (c)(2)(iv), (v)(C),
(vi), and (vii).
3. Revising paragraph (c)(3).
4. Adding paragraph (c)(5)(iv).
5. Revising paragraphs (f)(1)(i)(A) and
(viii)(A).
The revisions and addition read as
follows:
§ 1.671–5 Reporting for widely held fixed
investment trusts.
hsrobinson on PROD1PC69 with PROPOSALS
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(b) * * *
(5) [The text of proposed § 1.671–
5(b)(5) is the same as the text of § 1.671–
5T(b)(5) published elsewhere in this
issue of the Federal Register].
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(8) [The text of proposed § 1.671–
5(b)(8) is the same as the text of § 1.671–
5T(b)(8) published elsewhere in this
issue of the Federal Register].
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(21) [The text of proposed § 1.671–
5(b)(21) is the same as the text of
§ 1.671–5T(b)(21) published elsewhere
in this issue of the Federal Register].
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(c) * * *
(2) * * *
(iv) [The text of proposed § 1.671–
5(c)(2)(iv) is the same as the text of
§ 1.671–5T(c)(2)(iv) published
elsewhere in this issue of the Federal
Register].
(v) * * *
(C) [The text of proposed § 1.671–
5(c)(2)(v)(C) is the same as the text of
§ 1.671–5T(c)(2)(v)(C) published
elsewhere in this issue of the Federal
Register].
(vi) [The text of proposed § 1.671–
5(c)(2)(vi) is the same as the text of
§ 1.671–5T(c)(2)(vi) published
elsewhere in this issue of the Federal
Register].
(vii) [The text of proposed § 1.671–
5(c)(2)(vii) is the same as the text of
§ 1.671–5T(c)(2)(vii) published
elsewhere in this issue of the Federal
Register].
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(3) Requirement that trustees file an
information return and that WHMT
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trustees list WHMTs on an Internet Web
site—(i) Information return identifying a
NMWHFIT to the IRS. For each
NMWHFIT for which the trustee acts,
the trustee of a NMWHFIT must file the
form specified as the information return
to be used for identifying a NMWHFIT
to the IRS. The form must be filed by the
due date provided by that form and
must contain the information required
to be provided by the form. If, following
the publication of final regulations in
the Federal Register, the IRS issues
additional guidance that prescribes
another method to be used to identify
and provide information with respect to
a NMWHFIT to the IRS, this method
must be used.
(ii) Information return for trustees of
WHMTs and the requirement that the
trustee maintain an Internet Web site
listing the CUSIP numbers and names of
the WHMTs for which the trustee acts.
The trustee of a NMWHFIT must file the
form specified as the information return
to be used for identifying the trustee to
the IRS. The form must be filed by the
due date provided by that form and
contain the information required to be
provided by the form. In addition, the
trustee must maintain a list of the
WHMTs for which the trustee acts on
the trustee’s Internet Web site (or
another site designated by the trustee for
this purpose). If, following the
publication of final regulations in the
Federal Register, the IRS issues
additional guidance that prescribes
another method to be used to identify a
trustee as a WHMT trustee and provide
information with respect to the WHMTs
for which the trustee acts, this method
must be used.
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(5) * * *
(iv) Directory of WHMT trustees and
NMWHFITs. The IRS provides a
directory of WHMT trustees and
NMWHFITs, and WHMT trustees
provide an Internet Web site at which
the trustees list the WHMTs for which
they act, to assist requesting persons in
locating a representative of a WHFIT
that will provide the information
specified in paragraph (c) of this
section. A requesting person may report
consistent with this section for any
arrangement identified in the directory
as a NMWHFIT or on a WHMT trustee’s
Internet Web site as a WHMT provided
that the requesting person does not have
actual knowledge that the arrangement
is not a WHFIT.
(f) * * *
(1) * * *
(i) * * *
(A) [The text of proposed § 1.671–
5(f)(1)(i)(A) is the same as the text of
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§ 1.671–5T(f)(1)(i)(A) published
elsewhere in this issue of the Federal
Register].
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(viii) Reporting market discount
information under the safe harbor—(A)
In general—(1) Trustee is required to
provide market discount information. If
the trustee is required to provide
information regarding market discount
under paragraph (c)(2)(vii) of this
section, the trustee must provide—
(i) The information required to be
provided under paragraph
(f)(1)(iv)(A)(1)(iii) of this section; and
(ii) If the NMWHFIT holds debt
instruments with OID and the
NMWHFIT has a start-up date on or
after January 24, 2006, the aggregate
adjusted issue price of the debt
instruments per trust interest calculated
as of the start-up date and as of January
1 for each subsequent year of the
NMWHFIT.
(2) Trustee is not required to provide
market discount information. If the
trustee is not required to provide market
discount information under paragraph
(c)(2)(vii) of this section (because the
NMWHFIT meets the de minimis test of
paragraph (c)(2)(iv)(D)(1) of this section,
the qualified NMWHFIT exception of
paragraph (c)(2)(iv)(E) of this section, or
the NMWHFIT final year exception of
paragraph (c)(2)(iv)(F) of this section),
the trustee is not required under this
paragraph (f) to provide any information
regarding market discount.
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Mark E. Matthews,
Deputy Commissioner for Services and
Enforcement.
[FR Doc. 06–6650 Filed 7–28–06; 4:15 pm]
BILLING CODE 4830–01–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 216
[Docket No. 060629183–6183–01; I.D.
022106A]
RIN 0648–AT39
Taking and Importing Marine
Mammals; Taking Marine Mammals
Incidental to Conducting Precision
Strike Weapons Testing and Training
by Eglin Air Force Base in the Gulf of
Mexico
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
AGENCY:
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Federal Register / Vol. 71, No. 149 / Thursday, August 3, 2006 / Proposed Rules
Proposed rule; request for
comments.
ACTION:
hsrobinson on PROD1PC69 with PROPOSALS
SUMMARY: NMFS has received a request
from Eglin Air Force Base (Eglin AFB)
for an authorization to take marine
mammals incidental to conducting
Precision Strike Weapons (PSW) testing
and training in the Gulf of Mexico
(GOM). By this document, NMFS is
proposing regulations to govern that
take. In order to issue a Letter of
Authorization (LOA) and final
regulations governing the take, NMFS
must determine, among other things,
that the taking will have a negligible
impact on the affected species and
stocks of marine mammals. NMFS
regulations must set forth the
permissible methods of take and other
means of effecting the least practicable
adverse impact on the affected species
or stock of marine mammals and their
habitat. NMFS invites comment on the
application and the regulations.
DATES: Comments and information must
be postmarked no later than September
5, 2006.
ADDRESSES: You may submit comments
on the application and proposed rule,
using the identifier 022106A, by any of
the following methods:
E-mail: PR1.022106A@noaa.gov.
Federal e-Rulemaking Portal: https://
www.regulations.gov.
Hand-delivery or mailing of paper,
disk, or CD–ROM comments should be
addressed to: P. Michael Payne, Chief,
Permits, Conservation and Education
Division, Office of Protected Resources,
National Marine Fisheries Service, 1315
East-West Highway, Silver Spring, MD
20910–3225.
Documents cited in this proposed rule
may also be viewed, by appointment,
during regular business hours at the
above address or at the Department of
the Air Force, AAC/EMSN, Natural
Resources Branch, 501 DeLeon St., Suite
101, Eglin AFB, FL 32542–5133.
FOR FURTHER INFORMATION CONTACT:
Kenneth R. Hollingshead, NMFS, 301–
713–2289, ext 128.
SUPPLEMENTARY INFORMATION:
Background
Section 101(a)(5)(A) of the Marine
Mammal Protection Act (16 U.S.C. 1361
et seq.) (MMPA) directs 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.
Permission may be granted for periods
of 5 years or less if the Secretary finds
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that the taking 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, and if
regulations are prescribed setting forth
the permissible methods of taking and
the requirements pertaining to the
mitigation, monitoring and reporting of
such taking.
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
sheltering, to a point where such behavioral
patterns are abandoned or significantly
altered [Level B harassment]. 16 U.S.C.
1362(18)(B).
Summary of Request
On February 4, 2004, Eglin AFB
submitted a request for a 1–year
Incidental Harassment
Authorization(IHA) under MMPA
section 101(a)(5)(D) and for an LOA (to
take effect after the expiration of the
IHA), for the incidental, but not
intentional taking (in the form of noiserelated harassment), of marine mammals
incidental to PSW testing within the
Eglin Gulf Test and Training Range
(EGTTR) for the next five years, as
authorized by section 101(a)(5) of the
MMPA. The EGTTR is described as the
airspace over the GOM that is controlled
by Eglin AFB, and is also referred to as
the ‘‘Eglin Water Range.’’
PSW missions involve air-to-surface
impacts of two weapons, the Joint Airto-Surface Stand-off Missile (JASSM)
AGM–158 A and B and the smalldiameter bomb (SDB) (GBU–39/B), that
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.
The JASSM is a precision cruise
missile designed for launch from
outside area defenses to kill hard,
medium-hard, soft, and area-type
targets. The JASSM has a range of more
than 200 nautical miles (nm) (370
kilometers (km)) and carries a 1,000–lb
(453.6 kg) warhead. The JASSM has
approximately 300 lbs (136 kg) of TNT
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equivalent NEW. The explosive used is
AFX–757, a type of plastic bonded
explosive (PBX) formulation with higher
blast characteristics and less sensitivity
to many physical effects that could
trigger unwanted explosions. The
JASSM would be launched from an
aircraft at altitudes greater than 25,000
ft (7620 m). The JASSM would cruise at
altitudes greater than 12,000 ft (3658 m)
for the majority of the flight profile until
it makes the terminal maneuver toward
the target. The JASSM exercise involves
a maximum of two live shots (single)
and 4 inert shots (single) each year for
the next 5 years. One live shot will
detonate in water and one will detonate
in air. Detonation of the JASSM would
occur under one of three scenarios: (1)
Detonation upon impact with the target
(about 5 ft (1.5 m) above the GOM
surface); (2) detonation upon impact
with a barge target at the surface of the
GOM; or (3) detonation at 120
milliseconds after contact with the
surface of the GOM.
The SDB is a glide bomb. Because of
its capabilities, the SDB system is an
important element of the Air Force’s
Global Strike Task Force. The SDB has
a range of up to 50 nm (92.6 km) and
carries a 217.4–lb (98.6 kg) warhead.
The SDB has approximately 48 lbs (21.7
kg) of TNT equivalent NEW. The
explosive used is AFX–757. Launch
from an aircraft would occur at altitudes
greater than 15,000 ft (4572 m). The SDB
would commence a non-powered glide
to the intended target. The SDB exercise
involves a maximum of six live shots a
year, with two of the shots occurring
simultaneously, and a maximum of 12
inert shots with up to two occurring
simultaneously. Detonation of the SDBs
would occur under one of two
scenarios: (1) Detonation of one or two
bombs upon impact with the target
(about 5 ft (1.5 m)above the GOM
surface), or (2) a height of burst (HOB)
test: detonation of one or two bombs 10
to 25 ft (3 to 7.6 m) above the GOM
surface. No underwater detonations of
the SDB are planned.
The JASSM and SDBs would be
launched from B–1, B–2, B–52, F–15, F–
16, F–18, or F–117 aircraft. Chase
aircraft would 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 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. A second unmanned barge
may also be on location to hold
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Federal Register / Vol. 71, No. 149 / Thursday, August 3, 2006 / Proposed Rules
instrumentation. Targets include a
platform of five containers strapped,
braced, and welded together to form a
single structure and a hopper barge,
typical for transportation of grain.
The Eglin AFB action 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 and
training exercises are a military
readiness activity.
hsrobinson on PROD1PC69 with PROPOSALS
Comments and Responses on Eglin
AFB’s Application
A notice of receipt of Eglin AFB’s
application for a 1–year IHA and 5–year
LOA was published in the Federal
Register on April 22, 2004 (69 FR
21816). That notice described, in detail,
Eglin AFB’s proposed activity, the
marine mammal species that may be
affected by the activity, and the
anticipated effects on marine mammals.
Comments received on Eglin AFB’s
application during the 30–day public
comment period were addressed in the
August 19, 2005, Federal Register
notice (70 FR 48675) announcing
issuance of a 1–year IHA to Eglin AFB
for PSW activities. Please review the
2005 notice prior to submitting
comments on this proposed rule.
Description of Marine Mammals
Affected by the Activity
There are 29 species of marine
mammals documented as occurring in
Federal waters of the GOM. Information
on those species that may be impacted
by this activity are discussed in the
Eglin AFB application and Eglin’s Final
PEA. A summary of that information is
provided in this section.
General information on these marine
mammal species can be found in Wursig
et al. (2000) and in the NMFS Stock
Assessment Report (Waring, 2006). The
NMFS Stock Assessment Report is
available at: https://www.nefsc.noaa.gov/
nefsc/publications/tm/tm194/.
Marine mammal species that
potentially occur within the EGTTR
include several species of cetaceans and
one sirenian, the West Indian manatee.
During winter months, manatee
distribution in the GOM is generally
confined to southern Florida. During
summer months, a few may migrate
north as far as Louisiana. However,
manatees primarily inhabit coastal and
inshore waters and rarely venture
offshore. PSW missions would be
conducted offshore. Therefore, effects
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on manatees are considered very
unlikely.
Cetacean abundance estimates for the
study area are derived from GulfCet II
(Davis et al., 2000) aerial surveys of the
continental shelf within the Minerals
Management Service Eastern Planning
Area, an area of 70,470 km2. Texas A&M
University and NMFS conducted these
surveys from 1996 to 1998. Abundance
and density data from the aerial survey
portion of the survey best reflect the
occurrence of cetaceans within the
EGTTR, given that the survey area
overlaps approximately one-third of the
EGTTR and nearly the entire continental
shelf region of the EGTTR where
military activity is highest. The GulfCet
II aerial surveys identified different
density estimates of marine mammals
for the shelf and slope geographic
locations. Only the shelf data is used
because PSW missions will only be
conducted on the shelf.
In order to maximize species
conservation and protection, the species
density estimate data were adjusted to
reflect more realistic encounters of these
animals in their natural environment.
Refer to ‘‘Conservative Estimates of
Marine Mammal Densities’’ in this
document and Eglin AFB’s application
for more information on density
estimates. The four marine mammal
species observed during GulfCet II aerial
surveys on the shelf that have the
potential to be present in the PSW test
area and thereby affected are: Atlantic
bottlenose dolphins (Tursiops
truncatus), Atlantic spotted dolphins
(Stenella frontalis), dwarf sperm whales
(Kogia simus), and pygmy sperm whales
(Kogia breviceps). Brief descriptions of
these species were provided in earlier
Federal Register notices (69 FR 21816,
April 22, 2004; 70 FR 48675, August 19,
2005) and are not repeated here.
Impacts to Marine Mammals
Potential impacts to marine mammals
from the detonation of the PSWs and
SDBs include both lethal and non-lethal
injury, as well as Level B harassment in
the form of a temporary shift in hearing
sensitivity (called temporary threshold
shift (TTS) and behavioral responses
due to TTS. Although unlikely due to
the extensive mitigation measures
proposed herein, marine mammals have
the potential to be killed or injured as
a result of a blast due to the response
of air cavities in the body, such as the
lungs and bubbles in the intestines. Any
effects would likely be most severe in
near-surface waters where the reflected
shock wave creates a region of negative
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44003
pressure called ‘‘cavitation.’’ This is a
region of near total physical trauma
within which no animals would be
expected to survive. A second criterion
used by NMFS for categorizing taking by
mortality is the onset of extensive lung
hemorrhage. Extensive lung hemorrhage
is considered to be debilitating and
thereby potentially fatal. Suffocation
caused by lung hemorrhage would
likely be the major cause of any marine
mammal death from underwater shock
waves.
For the acoustic analysis in this
document, the exploding charge is
characterized as a point source. The
impact thresholds used for marine
mammals relate to potential effects on
hearing from underwater noise from
detonations. For the explosives in
question, actual detonation heights
would range from 0 to 25 ft (7.6 m)
above the water surface. Detonation
depths would range from 0 to 80 ft (73.2
m) below the surface. To bracket the
range of possibilities, detonation
scenarios just above and below the
surface were used by Eglin AFB to
analyze bombs set to detonate on
contact with the target barge.
Potentially, the barge may interact with
the propagation of noise into the water.
However, barge effects on the
propagation of noise into the water
column cannot be determined without
in-water noise monitoring at the time of
detonation.
Potential exposure of a sensitive
species to detonation noise could
theoretically occur at the surface or at
any number of depths with differing
consequences. 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.
Explosive Criteria and Thresholds for
Impact of Noise on Marine Mammals
NMFS’ criteria for explosives and
thresholds for assessing impacts of
explosions on marine mammals were
discussed by NMFS in detail in its
issuance of an IHA for Eglin’s PSW
testing activity (70 FR 48675, August 19,
2005) and are not repeated here. Please
refer to that document for background
information on this criteria. Based on
the discussion in that document, Table
1 illustrates estimated zones of impact
for potential mortality (31 psi-ms), Level
A harassment (injury; 205 dB EFDL) and
Level B harassment (TTS; 182 dB EFDL/
23 psi).
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TABLE 1. ZONES OF IMPACT FOR UNDERWATER EXPLOSIONS (MID-DEPTH ANIMAL)
NEW (TNT in lb)
Depth or Height of
Explosion (m)
Ranges for 31 psi
-ms (m)
Ranges for EFDL > 205
dB (m)
Ranges for 182 dB
EFDL in 1/3-Octave
Band/ 23 psi (m)
Single SDB
48
1.5
7.6
n/a
n/a
12
12
447
447
Double SDB
96
1.5
7.6
n/a
n/a
16
17
550
550
Single JASSM
300
0.3
>6.1
75
320
170
550
770
2490
Single SDB
48
1.5
7.6
n/a
n/a
12
12
471
471
Double SDB
96
1.5
7.6
n/a
n/a
16
16
594
594
Single JASSM
300
0.3
>6.1
75
320
170
590
871
3250
Ordnance
Summer
Winter
Incidental Take Estimates
For Eglin AFB’s PSW exercises, three
key sources of information are necessary
for estimating potential take levels from
noise on marine mammals: (1) The
zones of influence (ZOIs) for noise
exposure; (2) the number of distinct
firing or test events; and (3) the density
of animals that potentially reside within
a ZOI.
Noise ZOIs were calculated for depth
detonation scenarios of 1 ft (0.3 m) and
20 ft (6.1 m) for lethality and for
harassment (both Level A and Level B).
To estimate the number of potential
‘‘takes’’ or animals affected, the adjusted
data on cetacean population information
from ship and aerial surveys were
applied to the various ZOIs.
Table 1 in this document gives the
estimated ZOI ranges for various
explosive weights for summer and
wintertime scenarios for JASSM and
SDB. For example, for JASSM, the
range, in winter, extends to 320 m (1050
ft), 590 m (1936 ft) and 3250 m (10663
ft) for potential mortality (31 psi-ms),
injury (205 dB re 1 microPa2 -s) and
TTS (182 dB re 1 microPa2–s/23 psi
zones), respectively. SDB scenarios are
for in-air detonations at heights of 1.5 m
(5 ft) and 7.6 m (25 ft) during both
seasons (whichever criterion provides
the largest zone is used for calculating
potential impacts). JASSM detonations
were modeled for near- surface (i.e., 1–
ft (0.3–m) depth) and below-surface (≤
20–ft depth (≤6.1 m)). To account for
‘‘double’’ (2 nearly simultaneous)
events, the charge weights are added
(doubled) when modeling for the
determination of energy estimates (since
energy is proportional to weight).
Pressure estimates only utilize the
single charge weights for these
estimates.
Applying the lethality (31 psi) and
harassment (205 and 182 dB EFDL)
impact ranges shown in Table 1 to the
calculated species densities (in Table 3–
1 in Eglin AFB’s application), the
number of animals potentially occurring
within the various ZOIs without
implementation of mitigation was
estimated. These results are presented
in Tables 2, 3, and 4 in this document.
In summary, without any mitigation, a
small possibility exists for one
bottlenose and one Atlantic spotted
dolphin to be exposed to blast levels
sufficient to cause mortality.
Additionally, less than 2 cetaceans
might be exposed to noise levels
sufficient to induce Level A harassment
(injury) (205 dB re 1 microPa2–s)
annually, and as few as 31 or as many
as 52 cetaceans (depending on the
season and water depth) could
potentially be exposed (annually) to
noise levels sufficient to induce Level B
harassment in the form of TTS (182 dB
re 1 microPa2–s/23 psi). While none of
these impact estimates consider the
proposed mitigation measures that will
be employed by Eglin AFB to minimize
potential impacts to protected species,
NMFS proposes to authorize Eglin AFB
to lethally take one marine mammal, 2
marine mammals by Level A
harassment, and up to 53 marine
mammals by Level B harassment (TTS)
annually. The proposed mitigation
measures described later in this
document are anticipated to reduce
potential impacts to marine mammals,
in both numbers and degree of severity.
hsrobinson on PROD1PC69 with PROPOSALS
TABLE 2. MARINE MAMMAL DENSITIES AND RISK ESTIMATES FOR LETHALITY (31 PSI) NOISE EXPOSURE FOR ALL INWATER AND IN-AIR DETONATIONS
Species
Density
Number of Animals Exposed from All
In-Air and In-Water Detonations
Adjusted Number Exposed Based on 30%
Mitigation Effectiveness
Summer
Dwarf/pygmy sperm whale
0.013
0.004
0.003
Bottlenose dolphin
0.81
0.262
0.183
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44005
TABLE 2. MARINE MAMMAL DENSITIES AND RISK ESTIMATES FOR LETHALITY (31 PSI) NOISE EXPOSURE FOR ALL INWATER AND IN-AIR DETONATIONS—Continued
Species
Density
Number of Animals Exposed from All
In-Air and In-Water Detonations
Adjusted Number Exposed Based on 30%
Mitigation Effectiveness
Atlantic spotted dolphin
0.677
0.219
0.153
T. truncatus/S. frontalis
0.053
0.017
0.012
0.502
0.351
TOTAL
Winter
Dwarf/pygmy sperm whale
0.013
0.004
0.003
Bottlenose dolphin
0.81
0.262
0.183
Atlantic spotted dolphin
0.677
0.219
0.153
T. truncatus/S. frontalis
0.053
0.017
0.012
0.502
0.351
TOTAL
TABLE 3. MARINE MAMMAL DENSITIES AND RISK ESTIMATES FOR LEVEL A HARASSMENT(205 DB EFD 1/3-OCTAVE BAND)
NOISE EXPOSURE FOR ALL IN-WATER AND IN-AIR DETONATIONS
Species
Density
Number of Animals Exposed from All
In-Air and In-Water Detonations
Adjusted Number Exposed Based on 30%
Mitigation Effectiveness
Summer
Dwarf/pygmy sperm whale
0.013
0.014
0.010
Bottlenose dolphin
0.81
0.893
0.625
Atlantic spotted dolphin
0.677
0.747
0.523
T. truncatus/S. frontalis
0.053
0.058
0.041
1.712
1.198
TOTAL
Winter
Dwarf/pygmy sperm whale
0.013
0.014
0.010
Bottlenose dolphin
0.81
0.893
0.625
Atlantic spotted dolphin
0.677
0.747
0.523
T. truncatus/S. frontalis
0.053
0.058
0.041
1.712
1.198
TOTAL
TABLE 4. MARINE MAMMAL DENSITIES AND COMBINED RISK ESTIMATES FOR THE 23 PSI PEAK PRESSURE AND THE 182
DB EFD 1/3-OCTAVE BAND LEVEL B HARASSMENT METRICS FOR ALL IN-WATER AND IN-AIR DETONATIONS
Species
Density
Number of Animals Exposed from All
In-Air and In-Water Detonations
Adjusted Number Exposed Based on 30%
Mitigation Effectiveness
Summer
hsrobinson on PROD1PC69 with PROPOSALS
Dwarf/pygmy sperm whale
0.013
0.26
0.182
Bottlenose dolphin
0.81
16.209
11.3463
Atlantic spotted dolphin
0.677
13.547
9.4829
T. truncatus/S. frontalis
0.053
1.061
0.7427
31.076
21.7532
TOTAL
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Federal Register / Vol. 71, No. 149 / Thursday, August 3, 2006 / Proposed Rules
TABLE 4. MARINE MAMMAL DENSITIES AND COMBINED RISK ESTIMATES FOR THE 23 PSI PEAK PRESSURE AND THE 182
DB EFD 1/3-OCTAVE BAND LEVEL B HARASSMENT METRICS FOR ALL IN-WATER AND IN-AIR DETONATIONS—Continued
Species
Density
Number of Animals Exposed from All
In-Air and In-Water Detonations
Adjusted Number Exposed Based on 30%
Mitigation Effectiveness
Winter
Dwarf/pygmy sperm whale
0.013
0.44
0.308
Bottlenose dolphin
0.81
27.387
19.1709
Atlantic spotted dolphin
0.677
22.89
16.023
T. truncatus/S. frontalis
0.053
1.792
1.2544
52.509
36.7563
TOTAL
hsrobinson on PROD1PC69 with PROPOSALS
Mitigation and Monitoring
Under the current IHA and as
proposed here, Eglin will establish and
survey the relevant ZOIs and buffer
zones around a planned detonation site.
The ZOI for the JASSM will be a radius
of 2.0 nm (3.7 km) around the
detonation site and the buffer zone will
be established at a 1.0–nm (1.85–km)
radius outside the safety zone. The ZOI
for the SDB will be a radius of 5–10 nm
(9.3–18.5 km) depending upon weight of
the explosive and the buffer zone will
be established at a 2.5 - 5 nm (4.6 -18.5
km) radius outside the SDB ZOI. Prior
to the planned detonation, trained
observers aboard aircraft will survey
(visually monitor) the ZOI and buffer
area, a very effective method for
detecting cetaceans. The aircraft/
helicopters will fly approximately 500 ft
(152 m) above the sea surface to allow
observers to scan a large distance. In
addition, trained observers aboard
surface support vessels will conduct
ship-based monitoring for nonparticipating vessels as well as
protected species. Using 25X power
‘‘Big-eye’’ binoculars, surface
observation would be effective out to
several kilometers.
Weather that supports the ability to
sight marine life is required to
effectively mitigate impacts on marine
life (DON, 1998). Wind, visibility, and
surface conditions in the GOM are the
most critical factors affecting mitigation
operations. Higher winds typically
increase wave height and create ‘‘white
cap’’ conditions, both of which limit an
observer’s ability to locate surfacing
marine mammals. Therefore, PSW
missions would be delayed if the
Beaufort scale sea state are greater than
3.5.
Visibility is also a critical factor for
flight safety issues. A minimum ceiling
of 305 m (1000 ft) and visibility of 5.6
km (3 nm) is required to support
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mitigation and safety-of-flight concerns
(DON, 2001).
Aerial Survey/Monitoring Team
Eglin will complete an aerial survey
before each mission and train personnel
to conduct aerial surveys for protected
species. The aerial survey/monitoring
team would consist of two observers.
Aircraft provide a preferable viewing
platform for detection of protected
marine species. Each aerial observer
will be experienced in marine mammal
surveying and familiar with species that
may occur in the area. Each aircraft
would have a data recorder who would
be responsible for relaying the location,
the species if possible, the direction of
movement, and the number of animals
sighted. Standard line transect aerial
surveying methods, as developed by
NMFS (Blaylock and Hoggard, 1994;
Buckland et al., 1993) would be used.
Aerial observers are expected to have
above average to excellent sighting
conditions at sunrise to 1.85 km (1 nm)
on either side of the aircraft within the
weather limitation noted previously.
Observed marine mammals would be
identified to the species or the lowest
possible taxonomic level and the
relative position recorded. In order to
ensure adequate daylight for pre- and
post-mission monitoring, the mission
activity would occur no earlier than 2
hours after sunrise and no later than 2
hours prior to sunset.
Shipboard Monitoring Team
Eglin AFB will conduct shipboard
monitoring to reduce impacts to
protected species. The monitoring
would be staged from the highest point
possible on a mission ship. Observers
would be familiar with the marine life
of the area. The observer on the vessel
must be equipped with optical
equipment with sufficient magnification
(e.g., 25X power ‘‘Big-Eye’’ binoculars,
as these have been successfully used in
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monitoring activities from ships), which
should allow the observer to sight
surfacing mammals from as far as 11.6
km (6.3 nm) and provide overlapping
coverage from the aerial team. A team
leader would be responsible for
reporting sighting locations, which
would be based on bearing and distance.
The aerial and shipboard monitoring
teams will have 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. The lead
scientist will be a qualified marine
biologist familiar with marine surveys.
The lead scientist reviews the range
conditions and recommends a Go/NoGo decision to the test director. The test
director makes the final Go/No-Go
decision.
Mitigation Procedures Plan
All zones (injury, ZOI and buffer
zones) are monitored. Although
unexpected, any mission may be
delayed or aborted due to technical
reasons. Actual delay times depend on
the aircraft supporting the test, test
assets, and range time. Should a
technical delay occur, all mitigation
procedures would continue and remain
in place until either the test takes place
or is canceled. The ZOI and buffer zone
around JASSM missions will be
monitored by shipboard observers from
the highest point of the vessel. Vessels
will be positioned as close to the safety
zone as allowed without infringing on
the missile flight corridor. The SDB has
many mission profiles and does not
have a flight termination system;
therefore, the safety buffer zone may be
quite large (5–10 nm radius (9.3–18.5
km)).
PSW mitigation must be regulated by
Air Force safety parameters (pers.
comm. Monteith and Nowers, 2004) to
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ensure personnel safety. Therefore,
marine mammal mitigation effectiveness
may be reduced for some missions due
to mandatory safety buffers which limit
the time and type of marine mammal
mitigation. Even though mitigation may
be limited for PSW and SDB missions,
all SDB detonations are above the water
surface (5–25 ft (1.5–7.6 m) above the
surface) and of much smaller net
44007
explosive weight than JASSM. Table 5
describes safety zones and clearance
times for JASSM and SDB missions
(time in minutes).
TABLE 5. SAFETY ZONE MONITORING TIME FRAMES AND EFFECTIVENESS
Flight Time
Total Time of
Vessel Safety
Clearance before Detonation
Total Time of Aircraft Safety Clearance before Detonation
Human Safety Area
:30
:15
1:30
1:15
2 NM
:20
SDB
Safety Clearance Time for
Aircraft before
Launch
:30-1 hr
JASSM
Safety Clearance Time for
Vessels before
Launch
:60
:30
1:20
:50
5-10 NM
Stepwise mitigation and monitoring
procedures for PSW missions are
outlined here.
Pre-mission Monitoring
The purposes of pre-mission
monitoring are to (1) evaluate the test
site for environmental suitability of the
mission (e.g., relatively low numbers of
marine mammals) and (2) verify that the
ZOI is free of visually detectable marine
mammals. On the morning of the test,
the lead scientist would confirm that the
test sites can still support the mission
and that the weather is adequate to
support mitigation.
Five Hours Prior to Mission Launch
Approximately 5 hours prior to
mission launch, 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 overall environmental conditions
(visibility, sea state, etc.). This
information will be relayed to the lead
scientist.
hsrobinson on PROD1PC69 with PROPOSALS
Three Hours Prior to Mission Launch
Approximately three hours prior to
mission launch, aerial monitoring
would 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. Shipboard observers would
monitor the ‘‘ZOI’’ and buffer zone, and
the lead scientist would enter all marine
mammals sightings, including the time
of sighting and the direction of travel,
into a marine animal tracking and
sighting database. The aerial monitoring
team would begin monitoring the ZOI
and buffer zone around the target area.
The shipboard monitoring team would
combine with the aerial team to monitor
the area immediately around the
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mission area including both the ZOI and
buffer zone.
One to 1.5 Hours Prior to Mission
Launch
As noted in Table 6 and depending
upon the mission, aerial and shipboard
viewers would be instructed to leave the
area and remain outside the human
personnel safety area (over 2 nm (3.7
km) from impact for JASSM and 5–10
nm (9.3–18.5 km) for SDB). The aerial
team would report all marine animals
spotted and their directions of travel to
the lead scientist onboard the vessel.
The shipboard monitoring team would
continue searching the buffer zone for
protected species as it leaves. The
aircraft will leave the area and land on
base. The surface vessels will stay on
the outside of the human personnel
safety area (5–10 nm for SDB and 2 nm
for JASSM) until after detonation.
Fifteen Minutes Prior to Launch and Go/
No-Go Decision Process
Visual monitoring from surface
vessels outside the human personnel
safety zone would continue to
document any animals that may have
gone undetected during the past two
hours and track animals moving in the
direction of the detonation area.
The lead scientist would plot and
record sightings and bearing for all
marine animals detected. This would
depict animal sightings relative to the
mission area. The lead scientist would
have the authority to declare the range
fouled and recommend a hold until
monitoring indicates that the ZOI is and
will remain clear of detectable animals.
The mission would be postponed if:
(1) Any marine mammal is visually
detected within the relevant ZOI (see
Table 1) prior to mission launch. The
delay would continue until the marine
mammal that caused the postponement
is confirmed to be outside of the ZOI
due to the animal moving out of the
range, and
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(2) Any marine mammal is detected in
the buffer zone and cannot be
subsequently re-sighted. The mission
would not continue until the last
verified location is outside of the ZOI
and the animal is moving away from the
mission area.
In the event of a postponement, premission monitoring would continue as
long as weather and daylight hours
allow. Aerial monitoring is limited by
fuel and the on-station time of the
monitoring aircraft. If a live warhead
failed to explode operations would
attempt to recognize and solve the
problem while continuing with all
mitigation measures in place. The
probability of this occurring is very
remote but does exist. Should a weapon
fail to explode, the activity sponsor
would attempt to identify the problem
and detonate the charge with all marine
mammal mitigation measures in place
as described. If a live warhead fails to
explode the weapon is rendered safe
after 15 minutes. The feasibility and
practicality of recovering the warhead
will be evaluated on a case-by-case
basis. If at all feasible, the warhead will
be recovered.
Launch to Impact
Visual monitoring from vessels would
continue to survey the ZOI and
surrounding buffer zone and track
animals moving in the direction of the
impact area. The lead scientist would
continue to plot and record sightings
and bearing for all marine animals
detected. This will depict animal
sightings relative to the impact area.
Due to economic (costs of testing $2
million per test) and practical (in-air
destruction of the missile) reasons,
NMFS is not proposing to require Eglin
AFB to terminate an in-flight missile or
bomb due to sighting of a protected
species.
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Post-mission monitoring
Post-mission monitoring is designed
to gauge the effectiveness of pre-mission
mitigation by reporting any sightings of
dead or injured marine mammals. Postdetonation monitoring via shipboard
surveyors would commence
immediately following each detonation;
no aerial surveys would be conducted
during this monitoring stage. The
vessels will move into the ZOI from
outside the safety zone and continue
monitoring for at least two hours,
concentrating on the area down current
of the test site.
Although it is highly unlikely that
marine mammals will be killed or
seriously injured by this activity, any
marine mammals killed by an explosion
would likely suffer lung rupture, which
would cause them to float to the surface
immediately due to air in the blood
stream. Any animals that are not killed
instantly but are mortally wounded
would likely resurface within a few
days, though this would depend on the
size and type of animal, fat stores,
depth, and water temperature (DON,
2001). The monitoring team would
attempt to document any marine
mammals that are killed or injured as a
result of the test and, if practicable,
recover and examine any dead animals.
The species, number, location, and
behavior of any animals observed by the
observation teams would be
documented and reported to the lead
scientist.
Post-mission monitoring activities
include coordination with marine
animal stranding networks. NMFS
maintains stranding networks along
coasts to collect and circulate
information about marine mammal
standings. Local coordinators report
stranding data to state and regional
coordinators. Any observed dead or
injured marine mammals would be
reported to the appropriate coordinator.
hsrobinson on PROD1PC69 with PROPOSALS
Summary of Mitigation Plan
The PSW test will be postponed if any
human safety concerns arise, protected
species are sighted within the ZOI, any
protected species is detected in the
buffer zone and subsequently cannot be
reacquired, or a marine mammal is
moving into the ZOI from the buffer
zone. The delay would continue until
the marine mammal that caused the
postponement is confirmed to be
outside of the ZOI due to the animal
swimming out of the range.
Avoidance of impacts to pods of
cetaceans will most likely be realized
through these measures since groups of
dolphins are relatively easy to spot with
the survey distances and methods that
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will be employed. Typically solitary
marine mammals such as dwarf/pygmy
sperm whales, while more challenging
to detect, will also be afforded
substantial protection through pre-test
monitoring.
The safety vessels would conduct
post-mission monitoring for two hours
after each mission. The monitoring team
would document any marine mammals
observed dead or injured and, if
practicable, recover and examine any
dead animals.
Conservative Estimates of Marine
Mammal Densities
Using conservative mathematical
calculations and conservative density
estimates can serve as a technique for
making conservative ‘‘take’’ estimates.
Marine mammal densities used to
calculate takes were based on the most
current and comprehensive GOM
surveys available (GulfCet II). The
densities are adjusted for the time the
animals are submerged, and further
adjusted by applying standard
deviations to provide an approximately
99 percent confidence level. As an
example, the density estimates for
bottlenose dolphins range from 0.06 to
0.15 animals/km2 in GulfCet II aerial
surveys of the shelf and slope. However,
the final adjusted density used in take
calculations is 0.81 animals/km2.
Reporting
As in the current IHA, NMFS
proposes to continue to require Eglin
AFB to submit an annual report on the
results of the monitoring requirements.
This annual report will be due within
30 days prior to the expiration of the
current LOA. This report will then be
used by NMFS to determine whether
incidental takings by Eglin AFB from
this activity continue to have a
negligible impact on affected species
and stocks of marine mammals. This
report will include a discussion on the
effectiveness of the mitigation in
addition to the following information:
(1) Date and time of each of the
detonations; (2) a detailed description of
the pre-test and post-test activities
related to mitigating and monitoring the
effects of explosives detonation on
marine mammals and marine mammal
populations; (3) the results of the
monitoring program, including numbers
by species/stock of any marine
mammals noted injured or dead,
presumably as a result of the detonation
and numbers that may have been
harassed due to undetected presence
within the ZOI (NMFS and Eglin
presume that if an area is determined to
be clear of marine mammals and later,
during post-event monitoring, marine
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mammals are found in the area, those
marine mammals will be considered
‘‘taken’’); and (4) results of coordination
with coastal marine mammal stranding
networks.
Research
Although Eglin AFB does not
currently conduct independent Air
Force monitoring efforts, Eglin AFB’s
Natural Resources Branch does
participate in marine animal tagging and
monitoring programs led by other
agencies. The Natural Resources Branch
also supports participation in annual
surveys of marine mammals in the GOM
with NOAA Fisheries. From 1999 to
2002, Eglin AFB’s Natural Resources
Branch participated in summer cetacean
monitoring and research opportunities
through a contract representative. The
contractor participated in visual surveys
in 1999 for cetaceans in GOM,
photographic identification of sperm
whales in the northeastern Gulf in 2001,
and served as a visual observer during
the 2000 Sperm Whale Pilot Study and
the 2002 sperm whale Satellite-tag (Stag) cruise. Support for these research
efforts is anticipated to continue.
Eglin AFB utilizes marine mammal
stranding information to ascertain the
effectiveness of its mitigation measures
for offshore activities. Stranding data is
collected and maintained for the Florida
panhandle and Gulf-wide areas. This is
undertaken through the establishment
and maintenance of contacts with local,
state, and regional stranding networks.
Eglin AFB assists with stranding data
collection by maintaining its own team
of stranding personnel. In addition to
simply collecting stranding data,
various analyses are performed.
Stranding events are tracked by year,
season, and NMFS statistical zone, both
Gulf-wide and on the coastline in
proximity to Eglin AFB. Stranding data
is combined with records of EGTTR
mission activity in each water range and
analyzed for any possible correlation. In
addition to being used as a measure of
the effectiveness of mission mitigation,
stranding data can yield insight into the
species composition of cetaceans in the
region.
Endangered Species Act (ESA)
NMFS issued a biological opinion
regarding the effects of Eglin’s PSW
activity on ESA-listed species and
critical habitat under the jurisdiction of
NMFS. That biological opinion
concluded that Eglin’s PSW activity is
not likely to jeopardize the continued
existence of listed species or result in
the destruction or adverse modification
of critical habitat. On August 11, 2005,
NMFS determined that issuance of an
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hsrobinson on PROD1PC69 with PROPOSALS
annual authorization under section
101(a)(5) of the MMPA to Eglin AFB for
this activity will not have effects beyond
what was analyzed in 2004 in the
Biological Opinion. NMFS has
preliminarily determined that the
issuance of up to 5 LOAs to Eglin under
these regulations (if implemented)
would not have effects beyond what was
analyzed in the 2004 Biological
Opinion. A copy of the Biological
Opinion is available upon request (see
ADDRESSES).
National Environmental Policy Act
(NEPA)
In December, 2003, Eglin AFB
released a Draft PEA on the PSW
activity. 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.
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 Eglin AFB’s Final PEA and
determined that the Eglin AFB’s PEA
accurately and completely describes the
proposed action alternative, reasonable
additional alternatives, 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. Based on this review and
analysis, NMFS adopted Eglin’s PEA
under 40 CFR 1506.3 and made its own
FONSI statement on July 25, 2005.
Therefore, it was not necessary to issue
a new EA, supplemental EA or an
environmental impact statement for the
issuance of an IHA to Eglin AFB to take
marine mammals incidental to this
activity. NMFS will review its
determination as part of this
rulemaking. A decision will be made
prior to making a final determination on
issuing a final rule for this activity. A
copy of NMFS’ FONSI for this activity
is available upon request (see
ADDRESSES). A paper copy of the Eglin
AFB Programmatic EA for this activity
is available by contacting either Eglin
AFB or NMFS (see ADDRESSES).
Preliminary Determinations
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 activities will
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44009
have a negligible impact on the affected
species or stocks over the 5–year period
of take authorizations. While no take by
serious injury or death is anticipated
during this period, limited mortality is
proposed to be authorized in the event
that the extensive mitigation measures
are not totally successful. However,
even if serious injury or mortality were
to occur, the total taking still would
have no more than a negligible impact
on the affected marine mammal species
or stocks.
In addition, the potential for
temporary or permanent hearing
impairment is low and will have the
least practicable adverse impact on the
affected species or stocks through the
incorporation of the mitigation
measures mentioned in this document.
The information contained in Eglin’s EA
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 will 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.
scientific information or reasoning
supporting the comment.
Comments sent via e-mail, including
all attachments, must not exceed a 10–
megabyte file size. To submit comments
through the Federal e-Rulemaking
Portal, go to https://www.regulations.gov
and follow the instructions for
submitting comments. To help us
process and review comments more
efficiently, please use only one method.
A copy of the application containing
a list of references used in this
document may be obtained by writing to
NMFS (see ADDRESSES), by telephoning
the contact listed under FOR FURTHER
INFORMATION CONTACT, or at: https://
www.nmfs.noaa.gov/pr/permits/
incidental.htm. A paper copy of Eglin
AFB’s Final Programmatic
Environmental Assessment (Final PEA)
is available by writing to the
Department of the Air Force (see
ADDRESSES).
Request for Information
Exports, Fish, Imports, Indians,
Labeling, Marine mammals, Penalties,
Reporting and recordkeeping
requirements, Seafood, Transportation.
NMFS requests interested persons to
submit comments, information, and
suggestions concerning Eglin’s
application and this proposed rule.
Prior to submitting comments, NMFS
recommends reviewers of this document
read the responses to comments made
previously (70 FR 48675, August 19,
2005) for this action as NMFS does not
plan to address these issues further
without the submission of additional
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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 since it would
apply only to the U.S. Air Force, a
federal agency. It may 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
them would be beneficial. Because of
this certification, a regulatory flexibility
analysis is not required and none has
been prepared.
List of Subjects in 50 CFR Part 216
Dated: July 27, 2006.
John Oliver,
Deputy Assistant Administrator for
Operations, National Marine Fisheries
Service.
For reasons set forth in the preamble,
50 CFR part 216 is proposed to be
amended as follows:
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PART 216—REGULATIONS
GOVERNING THE TAKING AND
IMPORTING OF MARINE MAMMALS
(Kogia simus) and pygmy sperm whale
(Kogia breviceps).
1. The authority citation for part 216
continues to read as follows:
Regulations in this subpart are
effective from 30 days after the date of
publication of the final rule in the
Federal Register until 5 years and 30
days after the date of publication of the
final rule in the Federal Register.
§ 216.251
Authority: 16 U.S.C. 1361 et seq.
2. Subpart V is added and reserved.
3. Subpart W is added to part 216 to
read as follows:
Subpart W—Taking Marine Mammals
Incidental to Conducting Precision
Strike Weapon Missions in the Gulf of
Mexico
Sec.
216.250 Specified activity and specified
geographical region.
216.251 Effective dates.
216.252 Permissible methods of taking.
216.253 Prohibitions.
216.254 Mitigation.
216.255 Requirements for monitoring and
reporting.
216.256 Applications for Letters of
Authorization.
216.257 Letter of Authorization.
216.258 Renewal of Letters of
Authorization.
216.259 Modifications to Letters of
Authorization.
Subpart W—Taking Marine Mammals
Incidental to Conducting Precision
Strike Weapon Missions in the Gulf of
Mexico
hsrobinson on PROD1PC69 with PROPOSALS
§ 216.250 Specified activity and specified
geographical region.
(a) Regulations in this subpart apply
only to the incidental taking of those
marine mammal species specified in
paragraph (b) of this section by U.S.
citizens engaged in U.S. Air Force
Precision Strike Weapon missions
within the Eglin Air Force Base Gulf
Test and Training Range within the
northern Gulf of Mexico. The authorized
activities as specified in a Letter of
Authorization issued under §§ 216.106
and 216.257 include, but are not limited
to, activities associated with
(1) The Joint Air-to-Surface Stand-off
Missile (JASSM) exercise for a
maximum of two live shots (single) and
4 inert shots (single) annually and
(2) The small-diameter bomb (SDB)
exercise for a maximum of six live shots
a year, with two of the shots occurring
simultaneously and a maximum of 12
inert shots, with up to two occurring
simultaneously.
(b) The incidental take by Level A
harassment, Level B harassment, or
mortality of marine mammals under the
activity identified in this section is
limited to the following species:
Atlantic bottlenose dolphins (Tursiops
truncatus), Atlantic spotted dolphins
(Stenella frontalis), dwarf sperm whales
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§ 216.252
Effective dates.
Permissible methods of taking.
(a) Under Letters of Authorization
issued pursuant to §§ 216.106 and
216.257, the Holder of the Letter of
Authorization may incidentally, but not
intentionally, take marine mammals by
Level A and Level B harassment, and
mortality within the area described in
§ 216.250(a), provided the activity is in
compliance with all terms, conditions,
and requirements of these regulations
and the appropriate Letter of
Authorization.
(b) The taking of marine mammals
under a Letter of Authorization is
limited to the species listed in
§ 216.252(b) and is limited to a total of
1 mortality, 2 takes by Level A
harassment, and 53 takes by Level B
harassment annually.
§ 216.253
Prohibitions.
Notwithstanding takings
contemplated in § 216.250 and
authorized by a Letter of Authorization
issued under §§ 216.106 and 216.257,
no person in connection with the
activities described in § 216.250 shall:
(a) Take any marine mammal not
specified in
§ 216.250(b);
(b) Take any marine mammal
specified in § 216.250(b) other than by
incidental, unintentional Level A or
Level B harassment or mortality;
(c) Take a marine mammal specified
in § 216.250(b) if such taking results in
more than a negligible impact on the
species or stocks of such marine
mammal; or
(d) Violate, or fail to comply with, the
terms, conditions, and requirements of
these regulations or a Letter of
Authorization issued under §§ 216.106
and 216.257.
§ 216.254
Mitigation.
The activity identified in § 216.250(a)
must be conducted in a manner that
minimizes, to the greatest extent
practicable, adverse impacts on marine
mammals and their habitats. When
conducting operations identified in
§ 216.250(a) under a Letter of
Authorization, the following mitigation
measures must be implemented:
(a)(1) For the JASSM, the holder of the
Letter of Authorization must establish
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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.
(2) For the SDB, the holder of the
Letter of Authorization must establish
and monitor a safety 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.
(b) When detonating explosives:
(1) If any marine mammals are
observed within the designated safety
zone prescribed in condition (a)(1) of
this section, or within the buffer zone
prescribed in condition (a)(2) of this
section 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.
(2) 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.
(3) If weather and/or sea conditions
preclude adequate aerial surveillance
for detecting marine mammals,
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.
(4) 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
§ 216.255.
(5) 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 must be made prior
to conducting the next mission
detonation.
(6) Mission launches must be delayed
if aerial or vessel monitoring programs
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described under § 216.255 cannot be
fully carried out.
hsrobinson on PROD1PC69 with PROPOSALS
§ 216.255 Requirements for monitoring
and reporting.
(a) The Holder of the Letter of
Authorization issued pursuant to
§§ 216.106 and 216.257 for activities
described in § 216.250(a) is required to
conduct the monitoring and reporting
measures specified in this section 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–
713–2289), at least 2 weeks prior to any
modification to the activity identified in
§ 216.250(a) that has the potential to
result in the mortality or Level A or
Level B harassment of marine mammals
that was not identified and addressed
previously.
(c) The Holder of this Authorization
must:
(1) Designate qualified on-site
individual(s) to record the effects of
mission launches on marine mammals
that inhabit the northern Gulf of
Mexico;
(2) 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 § 216.106 and
§ 216.257.
(3) 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
movement, and the number of animals
sighted.
(4) 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.
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(d) 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.
(e) 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 overall environmental conditions
(visibility, sea state, etc.). This
information will be relayed to the lead
scientist.
(f) Three Hours Prior to Mission:
(1) 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.
(2) Shipboard observers will monitor
the safety and buffer zone, and the lead
scientist will enter all marine mammal
sightings, including the time of sighting
and the direction of travel, into a marine
animal tracking and sighting database.
(g) One to 1.5 Hours Prior to Mission
Launch:
(1) 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.
(2) 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.
(h) Post-mission monitoring:
(1) 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.
(2) The Holder of the Letter of
Authorization will closely coordinate
mission launches with marine animal
stranding networks.
(3) The monitoring team will
document any dead or injured marine
mammals and, if practicable, recover
and examine any dead animals.
(i) Activities related to the monitoring
described in this section may include
retention of marine mammals without
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44011
the need for a separate scientific
research permit.
(j) In accordance with provisions in
§ 216.258(b)(2), the Holder of the Letter
of Authorization must conduct the
research required under the Letter of
Authorization.
(k) Reporting
(1) Unless specified otherwise in the
Letter of Authorization, the Holder of
the Letter of Authorization must submit
an annual report to the Director, Office
of Protected Resources, National Marine
Fisheries Service, no later than 60 days
prior to the date of expiration of the
Letter of Authorization. This report
must contain all information required
by these regulations and the Letter of
Authorization.
(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.
§ 216.256 Applications for Letters of
Authorization.
To incidentally take marine mammals
pursuant to these regulations, the U.S.
citizen (as defined at § 216.103 )
conducting the activity identified in
§ 216.250(a) must apply for and obtain
either an initial Letter of Authorization
in accordance with §§ 216.106 and
216.257 or a renewal under § 216.258.
§ 216.257
Letter 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, but must be
renewed annually subject to annual
renewal conditions in § 216.258.
(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.
(d) Except for the initial Letter of
Authorization, notice of issuance or
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denial of a Letter of Authorization will
be published in the Federal Register
within 30 days of a determination.
§ 216.258 Renewal of Letters of
Authorization.
hsrobinson on PROD1PC69 with PROPOSALS
(a) A Letter of Authorization issued
under § 216.106 and § 216.257 for the
activity identified in § 216.250(a) will be
renewed annually upon:
(1) Notification to the National Marine
Fisheries Service that the activity
described in the application submitted
under § 216.256 will be undertaken and
that there will not be a substantial
modification to the described work,
mitigation or monitoring undertaken
during the upcoming 12 months;
(2) Timely receipt of the monitoring
report required under
§ 216.255(b), and the Letter of
Authorization, which has been reviewed
and accepted by the National Marine
Fisheries Service; and
(3) A determination by the National
Marine Fisheries Service that the
mitigation, monitoring and reporting
measures required under § 216.254 and
the Letter of Authorization issued under
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15:15 Aug 02, 2006
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§§ 216.106 and 216.257, were
undertaken and will be undertaken
during the upcoming annual period of
validity of a renewed Letter of
Authorization.
(b) If a request for a renewal of a
Letter of Authorization issued under
§§ 216.106 and 216.258 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.
modification (including withdrawal or
suspension) to a Letter of Authorization
issued pursuant to §§ 216.106 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 § 216.258, without
modification (except for the period of
validity), is not considered a substantive
modification.
(b) If the Assistant Administrator
determines that an emergency exists
that poses a significant risk to the wellbeing of the species or stocks of marine
mammals specified in § 216.250(b), a
Letter of Authorization issued pursuant
to §§ 216.106 and 216.257 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.
§ 216.259 Modifications to Letters of
Authorization.
[FR Doc. E6–12556 Filed 8–2–06; 8:45 am]
(a) Except as provided in paragraph
(b) of this section, no substantive
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BILLING CODE 3510–22–S
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]]>Agencies
[Federal Register Volume 71, Number 149 (Thursday, August 3, 2006)]
[Proposed Rules]
[Pages 44001-44012]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-12556]
=======================================================================
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 216
[Docket No. 060629183-6183-01; I.D. 022106A]
RIN 0648-AT39
Taking and Importing Marine Mammals; Taking Marine Mammals
Incidental to Conducting Precision Strike Weapons Testing and Training
by Eglin Air Force Base in the Gulf of Mexico
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
[[Page 44002]]
ACTION: Proposed rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: NMFS has received a request from Eglin Air Force Base (Eglin
AFB) for an authorization to take marine mammals incidental to
conducting Precision Strike Weapons (PSW) testing and training in the
Gulf of Mexico (GOM). By this document, NMFS is proposing regulations
to govern that take. In order to issue a Letter of Authorization (LOA)
and final regulations governing the take, NMFS must determine, among
other things, that the taking will have a negligible impact on the
affected species and stocks of marine mammals. NMFS regulations must
set forth the permissible methods of take and other means of effecting
the least practicable adverse impact on the affected species or stock
of marine mammals and their habitat. NMFS invites comment on the
application and the regulations.
DATES: Comments and information must be postmarked no later than
September 5, 2006.
ADDRESSES: You may submit comments on the application and proposed
rule, using the identifier 022106A, by any of the following methods:
E-mail: PR1.022106A@noaa.gov.
Federal e-Rulemaking Portal: https://www.regulations.gov.
Hand-delivery or mailing of paper, disk, or CD-ROM comments should
be addressed to: P. Michael Payne, Chief, Permits, Conservation and
Education Division, Office of Protected Resources, National Marine
Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-
3225.
Documents cited in this proposed rule may also be viewed, by
appointment, during regular business hours at the above address or at
the Department of the Air Force, AAC/EMSN, Natural Resources Branch,
501 DeLeon St., Suite 101, Eglin AFB, FL 32542-5133.
FOR FURTHER INFORMATION CONTACT: Kenneth R. Hollingshead, NMFS, 301-
713-2289, ext 128.
SUPPLEMENTARY INFORMATION:
Background
Section 101(a)(5)(A) of the Marine Mammal Protection Act (16 U.S.C.
1361 et seq.) (MMPA) directs 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.
Permission may be granted for periods of 5 years or less if the
Secretary finds that the taking 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, and
if regulations are prescribed setting forth the permissible methods of
taking and the requirements pertaining to the mitigation, monitoring
and reporting of such taking.
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
sheltering, to a point where such behavioral patterns are abandoned
or significantly altered [Level B harassment]. 16 U.S.C.
1362(18)(B).
Summary of Request
On February 4, 2004, Eglin AFB submitted a request for a 1-year
Incidental Harassment Authorization(IHA) under MMPA section
101(a)(5)(D) and for an LOA (to take effect after the expiration of the
IHA), for the incidental, but not intentional taking (in the form of
noise-related harassment), of marine mammals incidental to PSW testing
within the Eglin Gulf Test and Training Range (EGTTR) for the next five
years, as authorized by section 101(a)(5) of the MMPA. The EGTTR is
described as the airspace over the GOM that is controlled by Eglin AFB,
and is also referred to as the ``Eglin Water Range.''
PSW missions involve air-to-surface impacts of two weapons, the
Joint Air-to-Surface Stand-off Missile (JASSM) AGM-158 A and B and the
small-diameter bomb (SDB) (GBU-39/B), that 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.
The JASSM is a precision cruise missile designed for launch from
outside area defenses to kill hard, medium-hard, soft, and area-type
targets. The JASSM has a range of more than 200 nautical miles (nm)
(370 kilometers (km)) and carries a 1,000-lb (453.6 kg) warhead. The
JASSM has approximately 300 lbs (136 kg) of TNT equivalent NEW. The
explosive used is AFX-757, a type of plastic bonded explosive (PBX)
formulation with higher blast characteristics and less sensitivity to
many physical effects that could trigger unwanted explosions. The JASSM
would be launched from an aircraft at altitudes greater than 25,000 ft
(7620 m). The JASSM would cruise at altitudes greater than 12,000 ft
(3658 m) for the majority of the flight profile until it makes the
terminal maneuver toward the target. The JASSM exercise involves a
maximum of two live shots (single) and 4 inert shots (single) each year
for the next 5 years. One live shot will detonate in water and one will
detonate in air. Detonation of the JASSM would occur under one of three
scenarios: (1) Detonation upon impact with the target (about 5 ft (1.5
m) above the GOM surface); (2) detonation upon impact with a barge
target at the surface of the GOM; or (3) detonation at 120 milliseconds
after contact with the surface of the GOM.
The SDB is a glide bomb. Because of its capabilities, the SDB
system is an important element of the Air Force's Global Strike Task
Force. The SDB has a range of up to 50 nm (92.6 km) and carries a
217.4-lb (98.6 kg) warhead. The SDB has approximately 48 lbs (21.7 kg)
of TNT equivalent NEW. The explosive used is AFX-757. Launch from an
aircraft would occur at altitudes greater than 15,000 ft (4572 m). The
SDB would commence a non-powered glide to the intended target. The SDB
exercise involves a maximum of six live shots a year, with two of the
shots occurring simultaneously, and a maximum of 12 inert shots with up
to two occurring simultaneously. Detonation of the SDBs would occur
under one of two scenarios: (1) Detonation of one or two bombs upon
impact with the target (about 5 ft (1.5 m)above the GOM surface), or
(2) a height of burst (HOB) test: detonation of one or two bombs 10 to
25 ft (3 to 7.6 m) above the GOM surface. No underwater detonations of
the SDB are planned.
The JASSM and SDBs would be launched from B-1, B-2, B-52, F-15, F-
16, F-18, or F-117 aircraft. Chase aircraft would 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 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. A second unmanned barge may also be on
location to hold
[[Page 44003]]
instrumentation. Targets include a platform of five containers
strapped, braced, and welded together to form a single structure and a
hopper barge, typical for transportation of grain.
The Eglin AFB action 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 and training exercises are a
military readiness activity.
Comments and Responses on Eglin AFB's Application
A notice of receipt of Eglin AFB's application for a 1-year IHA and
5-year LOA was published in the Federal Register on April 22, 2004 (69
FR 21816). That notice described, in detail, Eglin AFB's proposed
activity, the marine mammal species that may be affected by the
activity, and the anticipated effects on marine mammals. Comments
received on Eglin AFB's application during the 30-day public comment
period were addressed in the August 19, 2005, Federal Register notice
(70 FR 48675) announcing issuance of a 1-year IHA to Eglin AFB for PSW
activities. Please review the 2005 notice prior to submitting comments
on this proposed rule.
Description of Marine Mammals Affected by the Activity
There are 29 species of marine mammals documented as occurring in
Federal waters of the GOM. Information on those species that may be
impacted by this activity are discussed in the Eglin AFB application
and Eglin's Final PEA. A summary of that information is provided in
this section.
General information on these marine mammal species can be found in
Wursig et al. (2000) and in the NMFS Stock Assessment Report (Waring,
2006). The NMFS Stock Assessment Report is available at: https://
www.nefsc.noaa.gov/nefsc/publications/tm/tm194/.
Marine mammal species that potentially occur within the EGTTR
include several species of cetaceans and one sirenian, the West Indian
manatee. During winter months, manatee distribution in the GOM is
generally confined to southern Florida. During summer months, a few may
migrate north as far as Louisiana. However, manatees primarily inhabit
coastal and inshore waters and rarely venture offshore. PSW missions
would be conducted offshore. Therefore, effects on manatees are
considered very unlikely.
Cetacean abundance estimates for the study area are derived from
GulfCet II (Davis et al., 2000) aerial surveys of the continental shelf
within the Minerals Management Service Eastern Planning Area, an area
of 70,470 km\2\. Texas A&M University and NMFS conducted these surveys
from 1996 to 1998. Abundance and density data from the aerial survey
portion of the survey best reflect the occurrence of cetaceans within
the EGTTR, given that the survey area overlaps approximately one-third
of the EGTTR and nearly the entire continental shelf region of the
EGTTR where military activity is highest. The GulfCet II aerial surveys
identified different density estimates of marine mammals for the shelf
and slope geographic locations. Only the shelf data is used because PSW
missions will only be conducted on the shelf.
In order to maximize species conservation and protection, the
species density estimate data were adjusted to reflect more realistic
encounters of these animals in their natural environment. Refer to
``Conservative Estimates of Marine Mammal Densities'' in this document
and Eglin AFB's application for more information on density estimates.
The four marine mammal species observed during GulfCet II aerial
surveys on the shelf that have the potential to be present in the PSW
test area and thereby affected are: Atlantic bottlenose dolphins
(Tursiops truncatus), Atlantic spotted dolphins (Stenella frontalis),
dwarf sperm whales (Kogia simus), and pygmy sperm whales (Kogia
breviceps). Brief descriptions of these species were provided in
earlier Federal Register notices (69 FR 21816, April 22, 2004; 70 FR
48675, August 19, 2005) and are not repeated here.
Impacts to Marine Mammals
Potential impacts to marine mammals from the detonation of the PSWs
and SDBs include both lethal and non-lethal injury, as well as Level B
harassment in the form of a temporary shift in hearing sensitivity
(called temporary threshold shift (TTS) and behavioral responses due to
TTS. Although unlikely due to the extensive mitigation measures
proposed herein, marine mammals have the potential to be killed or
injured as a result of a blast due to the response of air cavities in
the body, such as the lungs and bubbles in the intestines. Any effects
would likely be most severe in near-surface waters where the reflected
shock wave creates a region of negative pressure called ``cavitation.''
This is a region of near total physical trauma within which no animals
would be expected to survive. A second criterion used by NMFS for
categorizing taking by mortality is the onset of extensive lung
hemorrhage. Extensive lung hemorrhage is considered to be debilitating
and thereby potentially fatal. Suffocation caused by lung hemorrhage
would likely be the major cause of any marine mammal death from
underwater shock waves.
For the acoustic analysis in this document, the exploding charge is
characterized as a point source. The impact thresholds used for marine
mammals relate to potential effects on hearing from underwater noise
from detonations. For the explosives in question, actual detonation
heights would range from 0 to 25 ft (7.6 m) above the water surface.
Detonation depths would range from 0 to 80 ft (73.2 m) below the
surface. To bracket the range of possibilities, detonation scenarios
just above and below the surface were used by Eglin AFB to analyze
bombs set to detonate on contact with the target barge. Potentially,
the barge may interact with the propagation of noise into the water.
However, barge effects on the propagation of noise into the water
column cannot be determined without in-water noise monitoring at the
time of detonation.
Potential exposure of a sensitive species to detonation noise could
theoretically occur at the surface or at any number of depths with
differing consequences. 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.
Explosive Criteria and Thresholds for Impact of Noise on Marine Mammals
NMFS' criteria for explosives and thresholds for assessing impacts
of explosions on marine mammals were discussed by NMFS in detail in its
issuance of an IHA for Eglin's PSW testing activity (70 FR 48675,
August 19, 2005) and are not repeated here. Please refer to that
document for background information on this criteria. Based on the
discussion in that document, Table 1 illustrates estimated zones of
impact for potential mortality (31 psi-ms), Level A harassment (injury;
205 dB EFDL) and Level B harassment (TTS; 182 dB EFDL/23 psi).
[[Page 44004]]
Table 1. Zones of Impact for Underwater Explosions (Mid-depth Animal)
----------------------------------------------------------------------------------------------------------------
Depth or Ranges
NEW Height of for 31 Ranges for EFDL > 205 dB Ranges for 182 dB EFDL
Ordnance (TNT in Explosion psi -ms (m) in 1/3-Octave Band/ 23
lb) (m) (m) psi (m)
----------------------------------------------------------------------------------------------------------------
Summer
------------------------------- ------------ ---------------------------------------------------
Single SDB 48 1.5 n/a 12 447
7.6 n/a 12 447
----------------------------------------------------------------------------------------------------------------
Double SDB 96 1.5 n/a 16 550
7.6 n/a 17 550
----------------------------------------------------------------------------------------------------------------
Single JASSM 300 0.3 75 170 770
>6.1 320 550 2490
----------------------------------------------------------------------------------------------------------------
Winter
------------------------------- ------------ ---------------------------------------------------
Single SDB 48 1.5 n/a 12 471
7.6 n/a 12 471
----------------------------------------------------------------------------------------------------------------
Double SDB 96 1.5 n/a 16 594
7.6 n/a 16 594
----------------------------------------------------------------------------------------------------------------
Single JASSM 300 0.3 75 170 871
>6.1 320 590 3250
----------------------------------------------------------------------------------------------------------------
Incidental Take Estimates
For Eglin AFB's PSW exercises, three key sources of information are
necessary for estimating potential take levels from noise on marine
mammals: (1) The zones of influence (ZOIs) for noise exposure; (2) the
number of distinct firing or test events; and (3) the density of
animals that potentially reside within a ZOI.
Noise ZOIs were calculated for depth detonation scenarios of 1 ft
(0.3 m) and 20 ft (6.1 m) for lethality and for harassment (both Level
A and Level B). To estimate the number of potential ``takes'' or
animals affected, the adjusted data on cetacean population information
from ship and aerial surveys were applied to the various ZOIs.
Table 1 in this document gives the estimated ZOI ranges for various
explosive weights for summer and wintertime scenarios for JASSM and
SDB. For example, for JASSM, the range, in winter, extends to 320 m
(1050 ft), 590 m (1936 ft) and 3250 m (10663 ft) for potential
mortality (31 psi-ms), injury (205 dB re 1 microPa\2\ -s) and TTS (182
dB re 1 microPa\2\-s/23 psi zones), respectively. SDB scenarios are for
in-air detonations at heights of 1.5 m (5 ft) and 7.6 m (25 ft) during
both seasons (whichever criterion provides the largest zone is used for
calculating potential impacts). JASSM detonations were modeled for
near- surface (i.e., 1-ft (0.3-m) depth) and below-surface (>20-ft
depth (>6.1 m)). To account for ``double'' (2 nearly simultaneous)
events, the charge weights are added (doubled) when modeling for the
determination of energy estimates (since energy is proportional to
weight). Pressure estimates only utilize the single charge weights for
these estimates.
Applying the lethality (31 psi) and harassment (205 and 182 dB
EFDL) impact ranges shown in Table 1 to the calculated species
densities (in Table 3-1 in Eglin AFB's application), the number of
animals potentially occurring within the various ZOIs without
implementation of mitigation was estimated. These results are presented
in Tables 2, 3, and 4 in this document. In summary, without any
mitigation, a small possibility exists for one bottlenose and one
Atlantic spotted dolphin to be exposed to blast levels sufficient to
cause mortality. Additionally, less than 2 cetaceans might be exposed
to noise levels sufficient to induce Level A harassment (injury) (205
dB re 1 microPa2-s) annually, and as few as 31 or as many as 52
cetaceans (depending on the season and water depth) could potentially
be exposed (annually) to noise levels sufficient to induce Level B
harassment in the form of TTS (182 dB re 1 microPa2-s/23 psi). While
none of these impact estimates consider the proposed mitigation
measures that will be employed by Eglin AFB to minimize potential
impacts to protected species, NMFS proposes to authorize Eglin AFB to
lethally take one marine mammal, 2 marine mammals by Level A
harassment, and up to 53 marine mammals by Level B harassment (TTS)
annually. The proposed mitigation measures described later in this
document are anticipated to reduce potential impacts to marine mammals,
in both numbers and degree of severity.
Table 2. Marine Mammal Densities and Risk Estimates for Lethality (31 psi) Noise Exposure for All In-Water and
In-Air Detonations
----------------------------------------------------------------------------------------------------------------
Number of Animals
Exposed from All Adjusted Number Exposed Based on 30%
Species Density In-Air and In- Mitigation Effectiveness
Water Detonations
----------------------------------------------------------------------------------------------------------------
Summer
----------------------------------- --------------------------------------------------------------
Dwarf/pygmy sperm whale 0.013 0.004 0.003
----------------------------------------------------------------------------------------------------------------
Bottlenose dolphin 0.81 0.262 0.183
----------------------------------------------------------------------------------------------------------------
[[Page 44005]]
Atlantic spotted dolphin 0.677 0.219 0.153
----------------------------------------------------------------------------------------------------------------
T. truncatus/S. frontalis 0.053 0.017 0.012
----------------------------------------------------------------------------------------------------------------
TOTAL ............. 0.502 0.351
----------------------------------------------------------------------------------------------------------------
Winter
----------------------------------- --------------------------------------------------------------
Dwarf/pygmy sperm whale 0.013 0.004 0.003
----------------------------------------------------------------------------------------------------------------
Bottlenose dolphin 0.81 0.262 0.183
----------------------------------------------------------------------------------------------------------------
Atlantic spotted dolphin 0.677 0.219 0.153
----------------------------------------------------------------------------------------------------------------
T. truncatus/S. frontalis 0.053 0.017 0.012
----------------------------------------------------------------------------------------------------------------
TOTAL ............. 0.502 0.351
----------------------------------------------------------------------------------------------------------------
Table 3. Marine Mammal Densities and Risk Estimates for Level A Harassment (205 dB EFD 1/3-Octave Band) Noise
Exposure for All In-Water and In-Air Detonations
----------------------------------------------------------------------------------------------------------------
Number of Animals
Exposed from All Adjusted Number Exposed Based on 30%
Species Density In-Air and In- Mitigation Effectiveness
Water Detonations
----------------------------------------------------------------------------------------------------------------
Summer
----------------------------------- --------------------------------------------------------------
Dwarf/pygmy sperm whale 0.013 0.014 0.010
----------------------------------------------------------------------------------------------------------------
Bottlenose dolphin 0.81 0.893 0.625
----------------------------------------------------------------------------------------------------------------
Atlantic spotted dolphin 0.677 0.747 0.523
----------------------------------------------------------------------------------------------------------------
T. truncatus/S. frontalis 0.053 0.058 0.041
----------------------------------------------------------------------------------------------------------------
TOTAL ............. 1.712 1.198
----------------------------------------------------------------------------------------------------------------
Winter
----------------------------------- --------------------------------------------------------------
Dwarf/pygmy sperm whale 0.013 0.014 0.010
----------------------------------------------------------------------------------------------------------------
Bottlenose dolphin 0.81 0.893 0.625
----------------------------------------------------------------------------------------------------------------
Atlantic spotted dolphin 0.677 0.747 0.523
----------------------------------------------------------------------------------------------------------------
T. truncatus/S. frontalis 0.053 0.058 0.041
----------------------------------------------------------------------------------------------------------------
TOTAL ............. 1.712 1.198
----------------------------------------------------------------------------------------------------------------
Table 4. Marine Mammal Densities and Combined Risk Estimates for the 23 psi Peak Pressure and the 182 dB EFD 1/3-
Octave Band Level B Harassment Metrics for All In-Water and In-Air Detonations
----------------------------------------------------------------------------------------------------------------
Number of Animals
Exposed from All Adjusted Number Exposed Based on 30%
Species Density In-Air and In- Mitigation Effectiveness
Water Detonations
----------------------------------------------------------------------------------------------------------------
Summer
----------------------------------- --------------------------------------------------------------
Dwarf/pygmy sperm whale 0.013 0.26 0.182
----------------------------------------------------------------------------------------------------------------
Bottlenose dolphin 0.81 16.209 11.3463
----------------------------------------------------------------------------------------------------------------
Atlantic spotted dolphin 0.677 13.547 9.4829
----------------------------------------------------------------------------------------------------------------
T. truncatus/S. frontalis 0.053 1.061 0.7427
----------------------------------------------------------------------------------------------------------------
TOTAL ............. 31.076 21.7532
----------------------------------------------------------------------------------------------------------------
[[Page 44006]]
Winter
----------------------------------- --------------------------------------------------------------
Dwarf/pygmy sperm whale 0.013 0.44 0.308
----------------------------------------------------------------------------------------------------------------
Bottlenose dolphin 0.81 27.387 19.1709
----------------------------------------------------------------------------------------------------------------
Atlantic spotted dolphin 0.677 22.89 16.023
----------------------------------------------------------------------------------------------------------------
T. truncatus/S. frontalis 0.053 1.792 1.2544
----------------------------------------------------------------------------------------------------------------
TOTAL ............. 52.509 36.7563
----------------------------------------------------------------------------------------------------------------
Mitigation and Monitoring
Under the current IHA and as proposed here, Eglin will establish
and survey the relevant ZOIs and buffer zones around a planned
detonation site. The ZOI for the JASSM will be a radius of 2.0 nm (3.7
km) around the detonation site and the buffer zone will be established
at a 1.0-nm (1.85-km) radius outside the safety zone. The ZOI for the
SDB will be a radius of 5-10 nm (9.3-18.5 km) depending upon weight of
the explosive and the buffer zone will be established at a 2.5 - 5 nm
(4.6 -18.5 km) radius outside the SDB ZOI. Prior to the planned
detonation, trained observers aboard aircraft will survey (visually
monitor) the ZOI and buffer area, a very effective method for detecting
cetaceans. The aircraft/helicopters will fly approximately 500 ft (152
m) above the sea surface to allow observers to scan a large distance.
In addition, trained observers aboard surface support vessels will
conduct ship-based monitoring for non-participating vessels as well as
protected species. Using 25X power ``Big-eye'' binoculars, surface
observation would be effective out to several kilometers.
Weather that supports the ability to sight marine life is required
to effectively mitigate impacts on marine life (DON, 1998). Wind,
visibility, and surface conditions in the GOM are the most critical
factors affecting mitigation operations. Higher winds typically
increase wave height and create ``white cap'' conditions, both of which
limit an observer's ability to locate surfacing marine mammals.
Therefore, PSW missions would be delayed if the Beaufort scale sea
state are greater than 3.5.
Visibility is also a critical factor for flight safety issues. A
minimum ceiling of 305 m (1000 ft) and visibility of 5.6 km (3 nm) is
required to support mitigation and safety-of-flight concerns (DON,
2001).
Aerial Survey/Monitoring Team
Eglin will complete an aerial survey before each mission and train
personnel to conduct aerial surveys for protected species. The aerial
survey/monitoring team would consist of two observers. Aircraft provide
a preferable viewing platform for detection of protected marine
species. Each aerial observer will be experienced in marine mammal
surveying and familiar with species that may occur in the area. Each
aircraft would have a data recorder who would be responsible for
relaying the location, the species if possible, the direction of
movement, and the number of animals sighted. Standard line transect
aerial surveying methods, as developed by NMFS (Blaylock and Hoggard,
1994; Buckland et al., 1993) would be used. Aerial observers are
expected to have above average to excellent sighting conditions at
sunrise to 1.85 km (1 nm) on either side of the aircraft within the
weather limitation noted previously. Observed marine mammals would be
identified to the species or the lowest possible taxonomic level and
the relative position recorded. In order to ensure adequate daylight
for pre- and post-mission monitoring, the mission activity would occur
no earlier than 2 hours after sunrise and no later than 2 hours prior
to sunset.
Shipboard Monitoring Team
Eglin AFB will conduct shipboard monitoring to reduce impacts to
protected species. The monitoring would be staged from the highest
point possible on a mission ship. Observers would be familiar with the
marine life of the area. The observer on the vessel must be equipped
with optical equipment with sufficient magnification (e.g., 25X power
``Big-Eye'' binoculars, as these have been successfully used in
monitoring activities from ships), which should allow the observer to
sight surfacing mammals from as far as 11.6 km (6.3 nm) and provide
overlapping coverage from the aerial team. A team leader would be
responsible for reporting sighting locations, which would be based on
bearing and distance.
The aerial and shipboard monitoring teams will have 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. The lead
scientist will be a qualified marine biologist familiar with marine
surveys. The lead scientist reviews the range conditions and recommends
a Go/No-Go decision to the test director. The test director makes the
final Go/No-Go decision.
Mitigation Procedures Plan
All zones (injury, ZOI and buffer zones) are monitored. Although
unexpected, any mission may be delayed or aborted due to technical
reasons. Actual delay times depend on the aircraft supporting the test,
test assets, and range time. Should a technical delay occur, all
mitigation procedures would continue and remain in place until either
the test takes place or is canceled. The ZOI and buffer zone around
JASSM missions will be monitored by shipboard observers from the
highest point of the vessel. Vessels will be positioned as close to the
safety zone as allowed without infringing on the missile flight
corridor. The SDB has many mission profiles and does not have a flight
termination system; therefore, the safety buffer zone may be quite
large (5-10 nm radius (9.3-18.5 km)).
PSW mitigation must be regulated by Air Force safety parameters
(pers. comm. Monteith and Nowers, 2004) to
[[Page 44007]]
ensure personnel safety. Therefore, marine mammal mitigation
effectiveness may be reduced for some missions due to mandatory safety
buffers which limit the time and type of marine mammal mitigation. Even
though mitigation may be limited for PSW and SDB missions, all SDB
detonations are above the water surface (5-25 ft (1.5-7.6 m) above the
surface) and of much smaller net explosive weight than JASSM. Table 5
describes safety zones and clearance times for JASSM and SDB missions
(time in minutes).
Table 5. Safety Zone Monitoring Time Frames and Effectiveness
----------------------------------------------------------------------------------------------------------------
Safety Safety Total Time
Clearance Clearance of Vessel Total Time of
Flight Time for Time for Safety Aircraft Safety
Time Vessels Aircraft Clearance Clearance before Human Safety Area
before before before Detonation
Launch Launch Detonation
----------------------------------------------------------------------------------------------------------------
JASSM :30-1 :30 :15 1:30 1:15 2 NM
hr
----------------------------------------------------------------------------------------------------------------
SDB :20 :60 :30 1:20 :50 5-10 NM
----------------------------------------------------------------------------------------------------------------
Stepwise mitigation and monitoring procedures for PSW missions are
outlined here.
Pre-mission Monitoring
The purposes of pre-mission monitoring are to (1) evaluate the test
site for environmental suitability of the mission (e.g., relatively low
numbers of marine mammals) and (2) verify that the ZOI is free of
visually detectable marine mammals. On the morning of the test, the
lead scientist would confirm that the test sites can still support the
mission and that the weather is adequate to support mitigation.
Five Hours Prior to Mission Launch
Approximately 5 hours prior to mission launch, 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 overall environmental
conditions (visibility, sea state, etc.). This information will be
relayed to the lead scientist.
Three Hours Prior to Mission Launch
Approximately three hours prior to mission launch, aerial
monitoring would 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. Shipboard observers would
monitor the ``ZOI'' and buffer zone, and the lead scientist would enter
all marine mammals sightings, including the time of sighting and the
direction of travel, into a marine animal tracking and sighting
database. The aerial monitoring team would begin monitoring the ZOI and
buffer zone around the target area. The shipboard monitoring team would
combine with the aerial team to monitor the area immediately around the
mission area including both the ZOI and buffer zone.
One to 1.5 Hours Prior to Mission Launch
As noted in Table 6 and depending upon the mission, aerial and
shipboard viewers would be instructed to leave the area and remain
outside the human personnel safety area (over 2 nm (3.7 km) from impact
for JASSM and 5-10 nm (9.3-18.5 km) for SDB). The aerial team would
report all marine animals spotted and their directions of travel to the
lead scientist onboard the vessel. The shipboard monitoring team would
continue searching the buffer zone for protected species as it leaves.
The aircraft will leave the area and land on base. The surface vessels
will stay on the outside of the human personnel safety area (5-10 nm
for SDB and 2 nm for JASSM) until after detonation.
Fifteen Minutes Prior to Launch and Go/No-Go Decision Process
Visual monitoring from surface vessels outside the human personnel
safety zone would continue to document any animals that may have gone
undetected during the past two hours and track animals moving in the
direction of the detonation area.
The lead scientist would plot and record sightings and bearing for
all marine animals detected. This would depict animal sightings
relative to the mission area. The lead scientist would have the
authority to declare the range fouled and recommend a hold until
monitoring indicates that the ZOI is and will remain clear of
detectable animals.
The mission would be postponed if:
(1) Any marine mammal is visually detected within the relevant ZOI
(see Table 1) prior to mission launch. The delay would continue until
the marine mammal that caused the postponement is confirmed to be
outside of the ZOI due to the animal moving out of the range, and
(2) Any marine mammal is detected in the buffer zone and cannot be
subsequently re-sighted. The mission would not continue until the last
verified location is outside of the ZOI and the animal is moving away
from the mission area.
In the event of a postponement, pre-mission monitoring would
continue as long as weather and daylight hours allow. Aerial monitoring
is limited by fuel and the on-station time of the monitoring aircraft.
If a live warhead failed to explode operations would attempt to
recognize and solve the problem while continuing with all mitigation
measures in place. The probability of this occurring is very remote but
does exist. Should a weapon fail to explode, the activity sponsor would
attempt to identify the problem and detonate the charge with all marine
mammal mitigation measures in place as described. If a live warhead
fails to explode the weapon is rendered safe after 15 minutes. The
feasibility and practicality of recovering the warhead will be
evaluated on a case-by-case basis. If at all feasible, the warhead will
be recovered.
Launch to Impact
Visual monitoring from vessels would continue to survey the ZOI and
surrounding buffer zone and track animals moving in the direction of
the impact area. The lead scientist would continue to plot and record
sightings and bearing for all marine animals detected. This will depict
animal sightings relative to the impact area. Due to economic (costs of
testing $2 million per test) and practical (in-air destruction of the
missile) reasons, NMFS is not proposing to require Eglin AFB to
terminate an in-flight missile or bomb due to sighting of a protected
species.
[[Page 44008]]
Post-mission monitoring
Post-mission monitoring is designed to gauge the effectiveness of
pre-mission mitigation by reporting any sightings of dead or injured
marine mammals. Post-detonation monitoring via shipboard surveyors
would commence immediately following each detonation; no aerial surveys
would be conducted during this monitoring stage. The vessels will move
into the ZOI from outside the safety zone and continue monitoring for
at least two hours, concentrating on the area down current of the test
site.
Although it is highly unlikely that marine mammals will be killed
or seriously injured by this activity, any marine mammals killed by an
explosion would likely suffer lung rupture, which would cause them to
float to the surface immediately due to air in the blood stream. Any
animals that are not killed instantly but are mortally wounded would
likely resurface within a few days, though this would depend on the
size and type of animal, fat stores, depth, and water temperature (DON,
2001). The monitoring team would attempt to document any marine mammals
that are killed or injured as a result of the test and, if practicable,
recover and examine any dead animals. The species, number, location,
and behavior of any animals observed by the observation teams would be
documented and reported to the lead scientist.
Post-mission monitoring activities include coordination with marine
animal stranding networks. NMFS maintains stranding networks along
coasts to collect and circulate information about marine mammal
standings. Local coordinators report stranding data to state and
regional coordinators. Any observed dead or injured marine mammals
would be reported to the appropriate coordinator.
Summary of Mitigation Plan
The PSW test will be postponed if any human safety concerns arise,
protected species are sighted within the ZOI, any protected species is
detected in the buffer zone and subsequently cannot be reacquired, or a
marine mammal is moving into the ZOI from the buffer zone. The delay
would continue until the marine mammal that caused the postponement is
confirmed to be outside of the ZOI due to the animal swimming out of
the range.
Avoidance of impacts to pods of cetaceans will most likely be
realized through these measures since groups of dolphins are relatively
easy to spot with the survey distances and methods that will be
employed. Typically solitary marine mammals such as dwarf/pygmy sperm
whales, while more challenging to detect, will also be afforded
substantial protection through pre-test monitoring.
The safety vessels would conduct post-mission monitoring for two
hours after each mission. The monitoring team would document any marine
mammals observed dead or injured and, if practicable, recover and
examine any dead animals.
Conservative Estimates of Marine Mammal Densities
Using conservative mathematical calculations and conservative
density estimates can serve as a technique for making conservative
``take'' estimates. Marine mammal densities used to calculate takes
were based on the most current and comprehensive GOM surveys available
(GulfCet II). The densities are adjusted for the time the animals are
submerged, and further adjusted by applying standard deviations to
provide an approximately 99 percent confidence level. As an example,
the density estimates for bottlenose dolphins range from 0.06 to 0.15
animals/km2 in GulfCet II aerial surveys of the shelf and slope.
However, the final adjusted density used in take calculations is 0.81
animals/km\2\.
Reporting
As in the current IHA, NMFS proposes to continue to require Eglin
AFB to submit an annual report on the results of the monitoring
requirements. This annual report will be due within 30 days prior to
the expiration of the current LOA. This report will then be used by
NMFS to determine whether incidental takings by Eglin AFB from this
activity continue to have a negligible impact on affected species and
stocks of marine mammals. This report will include a discussion on the
effectiveness of the mitigation in addition to the following
information: (1) Date and time of each of the detonations; (2) a
detailed description of the pre-test and post-test activities related
to mitigating and monitoring the effects of explosives detonation on
marine mammals and marine mammal populations; (3) the results of the
monitoring program, including numbers by species/stock of any marine
mammals noted injured or dead, presumably as a result of the detonation
and numbers that may have been harassed due to undetected presence
within the ZOI (NMFS and Eglin presume that if an area is determined to
be clear of marine mammals and later, during post-event monitoring,
marine mammals are found in the area, those marine mammals will be
considered ``taken''); and (4) results of coordination with coastal
marine mammal stranding networks.
Research
Although Eglin AFB does not currently conduct independent Air Force
monitoring efforts, Eglin AFB's Natural Resources Branch does
participate in marine animal tagging and monitoring programs led by
other agencies. The Natural Resources Branch also supports
participation in annual surveys of marine mammals in the GOM with NOAA
Fisheries. From 1999 to 2002, Eglin AFB's Natural Resources Branch
participated in summer cetacean monitoring and research opportunities
through a contract representative. The contractor participated in
visual surveys in 1999 for cetaceans in GOM, photographic
identification of sperm whales in the northeastern Gulf in 2001, and
served as a visual observer during the 2000 Sperm Whale Pilot Study and
the 2002 sperm whale Satellite-tag (S-tag) cruise. Support for these
research efforts is anticipated to continue.
Eglin AFB utilizes marine mammal stranding information to ascertain
the effectiveness of its mitigation measures for offshore activities.
Stranding data is collected and maintained for the Florida panhandle
and Gulf-wide areas. This is undertaken through the establishment and
maintenance of contacts with local, state, and regional stranding
networks. Eglin AFB assists with stranding data collection by
maintaining its own team of stranding personnel. In addition to simply
collecting stranding data, various analyses are performed. Stranding
events are tracked by year, season, and NMFS statistical zone, both
Gulf-wide and on the coastline in proximity to Eglin AFB. Stranding
data is combined with records of EGTTR mission activity in each water
range and analyzed for any possible correlation. In addition to being
used as a measure of the effectiveness of mission mitigation, stranding
data can yield insight into the species composition of cetaceans in the
region.
Endangered Species Act (ESA)
NMFS issued a biological opinion regarding the effects of Eglin's
PSW activity on ESA-listed species and critical habitat under the
jurisdiction of NMFS. That biological opinion concluded that Eglin's
PSW activity is not likely to jeopardize the continued existence of
listed species or result in the destruction or adverse modification of
critical habitat. On August 11, 2005, NMFS determined that issuance of
an
[[Page 44009]]
annual authorization under section 101(a)(5) of the MMPA to Eglin AFB
for this activity will not have effects beyond what was analyzed in
2004 in the Biological Opinion. NMFS has preliminarily determined that
the issuance of up to 5 LOAs to Eglin under these regulations (if
implemented) would not have effects beyond what was analyzed in the
2004 Biological Opinion. A copy of the Biological Opinion is available
upon request (see ADDRESSES).
National Environmental Policy Act (NEPA)
In December, 2003, Eglin AFB released a Draft PEA on the PSW
activity. 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.
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 Eglin
AFB's Final PEA and determined that the Eglin AFB's PEA accurately and
completely describes the proposed action alternative, reasonable
additional alternatives, 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. Based on this review
and analysis, NMFS adopted Eglin's PEA under 40 CFR 1506.3 and made its
own FONSI statement on July 25, 2005. Therefore, it was not necessary
to issue a new EA, supplemental EA or an environmental impact statement
for the issuance of an IHA to Eglin AFB to take marine mammals
incidental to this activity. NMFS will review its determination as part
of this rulemaking. A decision will be made prior to making a final
determination on issuing a final rule for this activity. A copy of
NMFS' FONSI for this activity is available upon request (see
ADDRESSES). A paper copy of the Eglin AFB Programmatic EA for this
activity is available by contacting either Eglin AFB or NMFS (see
ADDRESSES).
Preliminary Determinations
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 activities will have a negligible
impact on the affected species or stocks over the 5-year period of take
authorizations. While no take by serious injury or death is anticipated
during this period, limited mortality is proposed to be authorized in
the event that the extensive mitigation measures are not totally
successful. However, even if serious injury or mortality were to occur,
the total taking still would have no more than a negligible impact on
the affected marine mammal species or stocks.
In addition, the potential for temporary or permanent hearing
impairment is low and will have the least practicable adverse impact on
the affected species or stocks through the incorporation of the
mitigation measures mentioned in this document. The information
contained in Eglin's EA 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 will
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.
Request for Information
NMFS requests interested persons to submit comments, information,
and suggestions concerning Eglin's application and this proposed rule.
Prior to submitting comments, NMFS recommends reviewers of this
document read the responses to comments made previously (70 FR 48675,
August 19, 2005) for this action as NMFS does not plan to address these
issues further without the submission of additional scientific
information or reasoning supporting the comment.
Comments sent via e-mail, including all attachments, must not
exceed a 10-megabyte file size. To submit comments through the Federal
e-Rulemaking Portal, go to https://www.regulations.gov and follow the
instructions for submitting comments. To help us process and review
comments more efficiently, please use only one method.
A copy of the application containing a list of references used in
this document may be obtained by writing to NMFS (see ADDRESSES), by
telephoning the contact listed under FOR FURTHER INFORMATION CONTACT,
or at: https://www.nmfs.noaa.gov/pr/permits/incidental.htm. A paper copy
of Eglin AFB's Final Programmatic Environmental Assessment (Final PEA)
is available by writing to the Department of the Air Force (see
ADDRESSES).
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
since it would apply only to the U.S. Air Force, a federal agency. It
may 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 them would be beneficial. Because of this certification, a
regulatory flexibility analysis is not required and none has been
prepared.
List of Subjects in 50 CFR Part 216
Exports, Fish, Imports, Indians, Labeling, Marine mammals,
Penalties, Reporting and recordkeeping requirements, Seafood,
Transportation.
Dated: July 27, 2006.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine
Fisheries Service.
For reasons set forth in the preamble, 50 CFR part 216 is proposed
to be amended as follows:
[[Page 44010]]
PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS
1. The authority citation for part 216 continues to read as
follows:
Authority: 16 U.S.C. 1361 et seq.
2. Subpart V is added and reserved.
3. Subpart W is added to part 216 to read as follows:
Subpart W--Taking Marine Mammals Incidental to Conducting Precision
Strike Weapon Missions in the Gulf of Mexico
Sec.
216.250 Specified activity and specified geographical region.
216.251 Effective dates.
216.252 Permissible methods of taking.
216.253 Prohibitions.
216.254 Mitigation.
216.255 Requirements for monitoring and reporting.
216.256 Applications for Letters of Authorization.
216.257 Letter of Authorization.
216.258 Renewal of Letters of Authorization.
216.259 Modifications to Letters of Authorization.
Subpart W--Taking Marine Mammals Incidental to Conducting Precision
Strike Weapon Missions in the Gulf of Mexico
Sec. 216.250 Specified activity and specified geographical region.
(a) Regulations in this subpart apply only to the incidental taking
of those marine mammal species specified in paragraph (b) of this
section by U.S. citizens engaged in U.S. Air Force Precision Strike
Weapon missions within the Eglin Air Force Base Gulf Test and Training
Range within the northern Gulf of Mexico. The authorized activities as
specified in a Letter of Authorization issued under Sec. Sec. 216.106
and 216.257 include, but are not limited to, activities associated with
(1) The Joint Air-to-Surface Stand-off Missile (JASSM) exercise for
a maximum of two live shots (single) and 4 inert shots (single)
annually and
(2) The small-diameter bomb (SDB) exercise for a maximum of six
live shots a year, with two of the shots occurring simultaneously and a
maximum of 12 inert shots, with up to two occurring simultaneously.
(b) The incidental take by Level A harassment, Level B harassment,
or mortality of marine mammals under the activity identified in this
section is limited to the following species: Atlantic bottlenose
dolphins (Tursiops truncatus), Atlantic spotted dolphins (Stenella
frontalis), dwarf sperm whales (Kogia simus) and pygmy sperm whale
(Kogia breviceps).
Sec. 216.251 Effective dates.
Regulations in this subpart are effective from 30 days after the
date of publication of the final rule in the Federal Register until 5
years and 30 days after the date of publication of the final rule in
the Federal Register.
Sec. 216.252 Permissible methods of taking.
(a) Under Letters of Authorization issued pursuant to Sec. Sec.
216.106 and 216.257, the Holder of the Letter of Authorization may
incidentally, but not intentionally, take marine mammals by Level A and
Level B harassment, and mortality within the area described in Sec.
216.250(a), provided the activity is in compliance with all terms,
conditions, and requirements of these regulations and the appropriate
Letter of Authorization.
(b) The taking of marine mammals under a Letter of Authorization is
limited to the species listed in Sec. 216.252(b) and is limited to a
total of 1 mortality, 2 takes by Level A harassment, and 53 takes by
Level B harassment annually.
Sec. 216.253 Prohibitions.
Notwithstanding takings contemplated in Sec. 216.250 and
authorized by a Letter of Authorization issued under Sec. Sec. 216.106
and 216.257, no person in connection with the activities described in
Sec. 216.250 shall:
(a) Take any marine mammal not specified in
Sec. 216.250(b);
(b) Take any marine mammal specified in Sec. 216.250(b) other than
by incidental, unintentional Level A or Level B harassment or
mortality;
(c) Take a marine mammal specified in Sec. 216.250(b) if such
taking results in more than a negligible impact on the species or
stocks of such marine mammal; or
(d) Violate, or fail to comply with, the terms, conditions, and
requirements of these regulations or a Letter of Authorization issued
under Sec. Sec. 216.106 and 216.257.
Sec. 216.254 Mitigation.
The activity identified in Sec. 216.250(a) must be conducted in a
manner that minimizes, to the greatest extent practicable, adverse
impacts on marine mammals and their habitats. When conducting
operations identified in Sec. 216.250(a) under a Letter of
Authorization, the following mitigation measures must be implemented:
(a)(1) For the JASSM, the holder of the Letter of Authorization
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.
(2) For the SDB, the holder of the Letter of Authorization must
establish and monitor a safety 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.
(b) When detonating explosives:
(1) If any marine mammals are observed within the designated safety
zone prescribed in condition (a)(1) of this section, or within the
buffer zone prescribed in condition (a)(2) of this section 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.
(2) 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.
(3) If weather and/or sea conditions preclude adequate aerial
surveillance for detecting marine mammals, 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.
(4) 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.
216.255.
(5) 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 must be made prior to conducting the
next mission detonation.
(6) Mission launches must be delayed if aerial or vessel monitoring
programs
[[Page 44011]]
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