67810 Federal Register / Vol. 71, No. 226 / Friday, November 24, 2006 / Rules and Regulations 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 216 

[Docket No. 060629183–6289–02; 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. 

ACTION: Final rule. 

SUMMARY: NMFS, upon application from 

Eglin Air Force Base (Eglin AFB), is 

issuing regulations to govern the 

unintentional takings of marine 

mammals incidental to conducting 

Precision Strike Weapons (PSW) testing 

and training in the Gulf of Mexico 

(GOM). Issuance of regulations and 

Letters of Authorization (LOAs) under 

these regulations governing the 

unintentional incidental takes of marine 

mammals in connection with particular 

activities is required by the Marine 

Mammal Protection Act (MMPA) when 

the Secretary of Commerce (Secretary), 

after notice and opportunity for 

comment, finds, as here, that such takes 

will have a negligible impact on the 

species and stocks of marine mammals 

and will not have an unmitigable 

adverse impact on the availability of 

them for subsistence uses. These 

regulations do not authorize Eglin AFB’s 

PSW activities as such authorization is 

not within the jurisdiction of the 

Secretary. Rather, NMFS’ regulations 

together with a Letter of Authorization 

(LOA) authorize the unintentional 

incidental take of marine mammals in 

connection with this activity and 

prescribe methods of taking and other 

means of effecting the least practicable 

adverse impact on marine mammal 

species and their habitat, and on the 

availability of the species for 

subsistence uses. 

DATES: Effective from December 26, 

2006 through December 27, 2011. 

ADDRESSES: A copy of the application 

containing a list of references used in 

this document may be obtained by 

writing to Mr. 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, by telephoning the contact 

listed under FOR FURTHER INFORMATION

CONTACT, or at: http:// 

www.nmfs.noaa.gov/pr/permits/ 

incidental.htm 

Documents cited in this 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. 

An authorization 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]. 

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 

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 


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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 

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. 

On November 24, 2003, the National 

Defense Authorization Act for Fiscal 

Year 2004 (NDAA; Public Law 108–136) 

became law. Included in the NDAA 

were amendments to Section 101(a)(5) 

of the MMPA that apply where a 

‘‘military readiness activity’’ is 

concerned. The term ‘‘military readiness 

activity’’ is defined in Public Law 107–

314 (16 U.S.C. 703 note) to include all 

training and operations of the Armed 

Forces that relate to combat; and the 

adequate and realistic testing of military 

equipment, vehicles, weapons and 

sensors for proper operation and 

suitability for combat use. Therefore, 

pursuant to section 315(b) of the NDAA, 

NMFS has determined that the test and 

training exercises proposed by Eglin 

AFB are considered to be a ‘‘military 

readiness activity.’’

Comments and Responses 

On August 3, 2006 (71 FR 44001), 

NMFS published a proposed rule to 

authorize the taking of marine mammals 

incidental to Eglin AFB’s PSW 

activities. During the 30–day public 

comment period, comments were 

received from the Marine Mammal 

Commission (Commission), the Humane 

Society of the United States (HSUS) and 

a member of the public. 

Comment 1: The member of the 

public is opposed ‘‘to the killing and 

murder of marine mammals for the 

testing of weapons.’’ This person 

recommends that these weapons be 

tested in other places which have 

already been reduced to rubble by U.S. 

weapons. 

Response: Section 101(a)(5)(A) of the 

MMPA authorizes the incidental, but 

not intentional, harassment, injury, or 

mortality of marine mammals provided 

the taking is having a negligible impact 

on affected species and stocks of marine 

mammals, is at the lowest level 

practicable (i.e., through mitigation), 

and monitoring and reporting of take is 

conducted. As provided in this 

document, Eglin AFB has shown that 

few or no marine mammals will be 

seriously injured or killed as a result of 

Eglin AFB’s PSW activities. As NMFS 

has made a determination that this 

activity will have a negligible impact on 

marine mammals, promulgation of these 

regulations and issuance of the LOA is 

warranted. In addition, NMFS believes 

that implementation of the monitoring 

and mitigation measures required in the 

regulations and subsequent LOAs will 

be effective in minimizing or avoiding 

serious injury or mortality. 

Comment 2: The HSUS noted that it 

would be extremely helpful if the 

Federal Register notice had contained a 

map indicating the location of the Eglin 

EGTTR. 

Response: NMFS posted Eglin AFB’s 

application on its web site (see 

ADDRESSES) and noted in the Federal 

Register how that document could be 

accessed. Figure 1–1 of Eglin’s 

application is a map indicating the 

target areas proposed for PSW activities. 

Comment 3: The HSUS does not 

understand why sperm whales are not 

included for potential taking since the 

range map for the species in the stock 

assessment report overlaps with that of 

both pygmy sperm whales and dwarf 

sperm whales. The NMFS needs to 

reconsider impacts to this endangered 

species. 

Response: Sperm whales in the GOM 

are located in waters of the continental 

slope, not in shallow continental shelf 

waters. For Eglin AFB, the PSW 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. As a result, 

sperm whales will not be affected by 

PSW activities. 

Comment 4: The HSUS notes that the 

FR notice does not specify the stock(s) 

of bottlenose dolphins that may be 

impacted by the PSW activity. The 

HSUS notes that given the location of 

the activity in water less than 200 ft (61 

m) deep and from 15 to 24 nm (27.8 to 

44.5 km) offshore, the stocks most likely 

affected are the Northern Gulf of Mexico 

Continental Shelf Stock and the 

Northern Gulf of Mexico Coastal Stock. 

Both stocks should be considered likely 

to be impacted. 

Response: In the proposed Federal 

Register notice for Eglin’s PSW 

activities, NMFS recommended readers 

reference Waring et al. (2006) for 

information on potentially impacted 

marine mammal stocks. Waring et al 

(2006) notes that the GOM Continental 

Shelf Stock may overlap with the GOM 

coastal stocks and the GOM oceanic 

stock in some areas and may be 

genetically indistinguishable from those 

stocks. To develop an average 

abundance estimate, data were collected 

from 1998 to 2001, and survey effort 

was pooled across all years. The best 

abundance estimate of bottlenose 

dolphins for continental shelf waters 

was 25,320 (CV=0.26) (Fulling et al. 

2003). This estimate is considered the 

best estimate because these surveys 

have the most complete coverage of the 

species’ habitat (Waring et al., 2006). 

The minimum population (pmin) for the 

northern GOM Continental Shelf stock 

is 20,414 bottlenose dolphins. Based on 

assumptions made by Waring et 

al.(2006), NMFS estimates that the 

potential biological removal (PBR) for 

the northern GOM Continental Shelf 

bottlenose dolphin stock is 204. 

Although no mortality has been 

observed in commercial fishing, this 

stock may be subject to incidental take 

resulting in serious injury or mortality 

(Waring et al., 2006). 

The northern GOM coastal stock has 

been divided into 3 stocks: eastern, 

northern and western. This stock is 

located from the shore (or bays) to the 

20–m (66–ft) isobath. As the northern 

stock is distributed from 84° West to the 

Mississippi River delta, PSW activities 

would affect only the northern coastal 

stock. Portions of the coastal stocks may 

co-occur with the northern GOM 

continental shelf stock and the bay, 

sound and estuary stock, the 20–m (66–

ft) isobath generally corresponds to 

survey strata. The northern stock has an 

estimated population abundance of 

4,191 animals (CV=0.21) with a pmin of 

3,518 (from estimates made in 1993). 

The PBR is unknown. A total of 1,377 

bottlenose dolphins were found 

stranded in the northern GOM from 

1999 through 2003. Of these, 73 or 5 


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percent showed evidence of human 

interactions as the cause of death (e.g., 

gear entanglement, mutilation, gunshot 

wounds). 

Comment 5: The HSUS is concerned 

that there have been a high number of 

deaths of bottlenose dolphins along the 

Florida Panhandle (and the most 

heavily impacted stocks have not yet 

been identified). The relatively high 

number of bottlenose dolphin deaths 

that have occurred since 1990 raises a 

concern that not only are some of the 

stocks stressed, but they may even be in 

decline. Adding additional impacts 

from acoustic or physical trauma is 

something the stocks can ill afford. 

Response: Waring et al. (2006) 

describe several potential causes for 

impacts to bottlenose dolphin stocks in 

the GOM. These include the potential 

for takes in commercial fishing, disease 

and shootings. However, because Eglin 

AFB’s PSW activities will take place 

only a few times a year, with no serious 

injury or mortality expected, Eglin’s 

activities are unlikely to add to existing 

mortality levels. In addition, NMFS 

believes that impacts to bottlenose 

dolphins, and other marine mammals, 

will be minimized or avoided through 

implementation of the required 

mitigation and monitoring 

requirements. As a result, NMFS does 

not believe that authorizing the taking of 

bottlenose dolphins by Level B 

harassment will have more than a 

negligible impact on the affected 

dolphin stocks. 

Comment 6: The HSUS notes that 

NMFS has also considered a proposal by 

Eglin to conduct assault exercises that 

may also affect this bottlenose dolphin 

stock and cumulative impacts are not 

addressed. 

Response: NMFS has made 

determinations of negligible impact and 

issued IHAs to Eglin AFB for the taking 

of marine mammals incidental to air-tosurface gunnery exercises (71 FR 27695, 

May 12, 2006), naval explosive 

ordnance exercises at Santa Rosa Island 

(70 FR 51341, August 30, 2005; 71 FR 

35870, June 22, 2006) and previously for 

the PSW activity (70 FR 48675, August 

19, 2005). Cumulative impacts from 

Eglin AFB’s military activities on 

bottlenose dolphins (and other marine 

mammals) in addition to cumulative 

impacts from shipping, oil and gas 

exploration and production and 

commercial fishing on marine mammals 

have been addressed in several PEAs 

developed for Eglin AFB activities and 

adopted by NMFS for those IHAs 

mentioned above. Findings of No 

Significant Impact (FONSIs) have been 

made by Eglin AFB and NMFS as a 

result of those environmental studies. In 

contrast to the potential serious injury 

and mortality from commercial fishing 

and ship strikes, and Level B 

harassment from oil and gas seismic 

exploration, NMFS believes that the 

cumulative impact from Eglin AFB’s 

PSW exercises is expected to be 

negligible. For Eglin AFB, cumulative 

impacts on marine mammals from all 

activities indicate that no marine 

mammals would be killed during a 

single year of activities, that 6 dolphins 

may be injured and 480 dolphins may 

be harassed annually. Additionally, 

NMFS anticipates that with the required 

mitigation measures, these numbers will 

be lower. 

Comment 7: The Commission 

recommends NMFS grant the requested 

authorizations provided that Eglin AFB 

conduct all practicable monitoring and 

mitigation measures to afford the 

potentially affected marine mammal 

species adequate protection from 

serious and lethal injury. 

Response: The monitoring effort for 

PSW is similar to that used in previous 

ship-shock actions wherein detonations 

of 10,000 lbs (4536 kg) were used 

without any serious injury or mortality 

being detected during extensive followup monitoring. Eglin AFB has 

calculated the potential for a marine 

mammal to be seriously injured or 

killed as a result of PSW activities (see 

Tables 2,3 and 4 later in this document). 

As noted, while it is unlikely that a 

marine mammal will be seriously 

injured or killed, a small potential exists 

that a marine mammal may be missed 

during the aerial and vessel monitoring 

program. 

Comment 8: The HSUS notes that 

post-mission monitoring will be 

conducted by vessels only, which will 

roam the area for 2 hours. In order to 

determine impact from exercises, this 

post-exercise monitoring relies on 

animals floating immediately or 

resurfacing within a few days, if 

mortally wounded; and then being 

found by cooperating stranding 

networks. The HSUS notes that 

stranding networks do not regularly 

survey the coastline for carcasses and, 

when discovered, they are often in a 

state of decomposition such that the 

cause of death is not readily ascertained. 

Response: While Eglin AFB does not 

routinely monitor Eglin AFB shoreline 

for strandings, they have a marine 

animal stranding program that responds 

to strandings when alerted by 

personnel. In addition, frequent offshore 

activity by Eglin AFB personnel will 

alert the network to any injured or dead 

marine mammals observed. However, 

NMFS believes that, if a marine 

mammal was seriously injured or killed 

as a result of PSW activities, a mortality 

would occur very close to the 

detonation (see Table 1) and would be 

observed during the subsequent postevent monitoring. The HSUS is correct 

that often these animals are decomposed 

and the cause of death cannot be 

determined. 

Currents and counter-currents both 

factor into where a marine mammal 

might eventually resurface if mortally 

wounded as a result of PSW activities 

and the animal sinks prior to detection. 

When decomposition advances, an 

animal that initially sank would 

resurface. Depending upon the amount 

of time between sinking and subsequent 

surfacing, the animal may be moved by 

surface and/or subsurface currents in a 

direction different from where one 

would surmise it would surface based 

solely on surface currents. Once the 

animal surfaces, wind and surface 

currents (which might not be the same 

direction) would affect where a marine 

mammal might eventually be located 

when a follow-up survey was initiated. 

As this could mean a very large area for 

accurate post-detonation surveying, this 

survey effort would require an aircraft. 

Also, a dolphin that surfaced a 

significant distance from the detonation 

site would be indistinguishable from a 

dolphin that died from other causes. To 

recover the animal for necropsy would 

require a support vessel. Considering 

the low probability of a marine mammal 

being seriously injured or killed as a 

result of Eglin AFB’s PSW activities, the 

high cost of large scale aerial and vessel 

surveys, and the low likelihood that a 

link between the cause of the dolphin’s 

death and PSW activities could be made 

after several days underwater, NMFS 

does not believe lengthy post-event 

monitoring is warranted. 

Comment 9: The HSUS states that 

because this area has recently been 

subject to mortality events, carcasses 

seen along the beaches may not 

necessarily be linked to the Air Force 

activity unless necropsies are done. This 

is something that will not be possible 

for most carcasses. Thus, even if the 

cause of death is related to Air Force 

activities, it may remain undetected. 

However, the FR notice states that death 

is unlikely because of the precautionary 

nature of the mitigation measures. The 

HSUS does not agree that the mitigation 

measures are precautionary. 

Response: While the stranding 

network monitoring the beaches of the 

Florida Panhandle or Eglin personnel 

monitoring Eglin AFB beaches may 

recover a deceased marine mammal, it 

is true that cause-and-effect may be 

difficult after an animal spends a 

significant time at sea. However, 


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animals sighted during the 2–hour postevent monitoring would be available for 

possible rescue and rehabilitation or 

euthanasia and/or necropsy by a 

qualified individual. 

NMFS believes that the mitigation 

measures, which are designed to detect 

marine mammals prior to detonation 

and preventing subsequent potential 

injury or mortality are the best that can 

be successfully implemented in view of 

the need to also ensure the safety of the 

monitoring teams (see text for details). 

However, post-event activities, such as 

determining a cause of mortality are 

considered monitoring measures and do 

not affect the actual taking of marine 

mammals. 

Comment 10: The HSUS notes that 

the Federal Register notice states there 

will be a buffer zone of 1.0 nm (1.8 km) 

established outside the zone of 

influence, which is stated to be 2.0 nm 

(3.7 km) for the JASSM or 5–10 nm (9.3–

18.5 km) for the SDB with a buffer zone 

of 2.5 - 5 nm (4.6–9.3 km). However, the 

Federal Register notice acknowledges 

that 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. This is not 

acceptable. Why bother having a 

mitigation plan if part of the plan is to 

obviate it if it seems impractical? 

Response: Because visual observation 

is the primary mitigation technique for 

PSW tests, mitigation effectiveness is 

affected by the distance of observers 

from the target. Protected species 

observers will survey from inside the 

Zone of Influence (ZOI) until 1 to 1.5 

hours before weapon launch, depending 

on the specific type of test. At this time, 

observers will be required to move 

outside the ZOI/safety zone. This is a 

mandatory requirement directed by Air 

Force safety policy, and applies to Air 

Force personnel as well as civilian 

contracted observers. Both the JASSM 

and SDB are precision-guided 

munitions. However, due in part to the 

long distance from which these 

weapons are potentially launched (40 to 

200 nautical miles), slight errors in 

flight trajectory, though not expected, 

could jeopardize the life of anyone 

within the safety zone. In addition to 

Air Force safety policy, the MMPA as 

amended by the NDAA requires the 

Secretary of Commerce to consider 

personnel safety when making 

incidental take determinations for 

military readiness activities. 

Aerial observers will leave the area 1 

to 1.5 hours before weapon launch. 

However, ship-based observers will 

continue to monitor for protected 

species from the edge of the safety zone, 

up to the time of impact. The safety 

zone is larger for the SDB due to 

differences in flight characteristics. 

Therefore, observers may be farther from 

the target during SDB tests than during 

JASSM tests. 

Comment 11: The HSUS notes that 

there are two types of monitoring: aerial 

and shipboard. Aerial monitoring will 

occur using observers experienced in 

marine mammal surveying and familiar 

with the species that may occur in the 

area. It is not stated whether these 

personnel will be NMFS staff or how 

they might be ‘‘experienced’’ in survey 

methodology and marine mammal 

species identification, especially in light 

of the fact that identifying pygmy from 

dwarf sperm whales is difficult even for 

NMFS science center personnel. 

Response: NMFS does not provide 

marine mammal scientists to Eglin AFB 

for this, or any other project. Eglin AFB 

uses biologically-trained marine 

mammal observers, who are either 

employees or contract personnel, that 

have been approved in advance by 

NMFS. This is standard practice for all 

authorizations under section 101(a)(5) of 

the MMPA. It should be recognized that 

using NMFS scientists would reduce 

our agency’s ability to conduct 

important marine mammal research. As 

a result, private companies have been 

established to train and provide trained 

biologists for activities such as this one. 

Next, it is widely recognized that it is 

difficult to identify some marine 

mammal species, generally referred to as 

being cryptic species. Usually, 

unidentified species are listed as such 

and then, later, tallied based on known 

stock proportions for the geographic 

area. However, when marine mammal 

observers are monitoring a safety or 

buffer zone, it is less critical that they 

be able to identify an animal by species; 

rather it is more important at the time 

that they are able to actually see the 

marine mammal. 

Comment 12: The HSUS notes that 

the Federal Register notice does not 

provide information on the type of 

aircraft used although the notice 

discusses turboprop craft, tanker aircraft 

and helicopters being involved in the 

exercise, none of which is well suited 

for this purpose. 

Response: The application notes that 

Eglin AFB plans to use helicopters for 

monitoring marine mammal safety 

zones for this activity. Helicopters are 

an effective means to monitor the 

relatively small safety zones for PSW 

activities. Alternatively, Eglin AFB will 

be authorized to use types of aircraft 

that are often used by marine mammal 

observers. While other aircraft 

(turboprop and tankers) may be used 

during the PSW exercise, they will not 

be used to monitor safety zones. 

Comment 13: The HSUS notes that 

with regard to shipboard monitoring, 

the Federal Register notice states that it 

will be from the highest point possible 

on the mission ship. The notice 

discusses barges that will be on-site. 

The highest point possible, may or may 

not be effective depending upon the size 

of the vessel involved but that is not 

specified and should be. 

Response: As barges are the target for 

PSW detonations, the target barge and 

nearby instrumentation barge (if one is 

used) are not an appropriate vessel for 

marine mammal observations. As a 

result of this comment, NMFS has 

clarified in the regulations that the 

marine mammal observation platform 

must provide observers a platform to see 

a major portion of the safety zone. It 

must also be mobile in order to observe 

the largest area possible. However, as 

this rule will be effective for a 5–year 

period, specifying the exact type of 

vessel Eglin AFB will use for the vessel 

monitoring program is not practical 

since it could preclude use of larger, 

more effective platforms. 

Comment 14: The HSUS notes the 

Federal Register notice states that the 

onboard observers will be familiar with 

the marine life of the area. This is not 

sufficiently specific to be reassuring. 

The small size of the marine mammals 

and the long dive time of sperm whales 

and dwarf and pygmy sperm whales 

makes them particularly difficult to 

observe, as is referenced throughout 

stock assessments and published 

literature. 

Response: As mentioned previously, 

sperm whales are unlikely to be 

encountered in the shallow, shelf waters 

off Eglin AFB. In this document, NMFS 

clarifies that Eglin AFB must use 

biologists trained in the at-sea detection 

of marine mammals. 

Comment 15: The HSUS believes that 

the mitigation measures should also 

include acoustic monitoring techniques. 

Response: NMFS does not believe that 

additional mitigation is warranted for 

this activity. Passive acoustic 

monitoring (PAM), which is designed to 

detect vocalizing marine mammals, can 

be effective when safety zones are 

significantly large so that visual 

monitoring effectiveness might be 

compromised. In this case, Eglin AFB 

has implemented an aerial monitoring 

program that is believed to be more 

effective than using PAM because of 

increased visibility of marine mammals 

in the shallow water areas Additionally, 

when using PAM in shallow water areas 

with relatively small safety zones it is 

difficult to determine whether the 


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marine mammal is actually within the 

safety zone due to reflection and 

refraction of the acoustic signal. 

Comment 16: The HSUS believes that 

extended monitoring (of the exercise) by 

skilled observers is critical in highly 

mobile species which often have long 

dive times. 

Response: NMFS agrees that skilled 

marine mammal observers are critical 

for detecting marine mammals within a 

safety zone and delaying detonations (in 

this case the launch) until the marine 

mammal(s) depart from the safety zone. 

The length of time for marine mammal 

observations depends on the type and 

weight of the explosive which 

influences the size of the safety zone, as 

described later in this document. These 

observation times are sufficient to 

ensure that a marine mammal is 

detected prior to detonation. 

Comment 17: The Commission 

recommends that NMFS cooperate with 

Eglin AFB to develop a long-term 

strategy to monitor the abundance and 

distribution of marine mammals in the 

subject activity area to ensure that the 

proposed activity is not having any 

population-level effects on marine 

mammals over the 5 years that the 

regulations are in effect. The 

Commission would be pleased to assist 

with the development of such a strategy. 

Response: While NMFS and Eglin 

would be pleased to discuss such a 

monitoring strategy with the 

Commission, it is unclear whether a 

monitoring program could be designed 

that would be able to make a 

determination that the injury of 

approximately 6 dolphins and an 

additional 480 that may be harassed by 

all Eglin AFB activities was having 

population level impacts. As NMFS has 

been unable to identify mortality levels 

in the GOM from commercial fishing, 

shipping, and pollution (Waring et al., 

2006), it is unlikely that Level B 

harassment by Eglin’s military-readiness 

activities can be empirically determined 

to be more than negligible, either 

individually or cumulatively. Finally, 

while monitoring the impacts that an 

activity might have on marine mammal 

stocks is the responsibility of an LOA 

applicant, undertaking studies on the 

distribution and abundance of these 

stocks is the responsibility of NMFS and 

other agencies. To the extent that these 

studies are underfunded does not mean 

that that responsibility should be 

transferred to LOA holders. 

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 AFB’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: http://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 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 mortality and serious 

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. 


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Explosive Criteria and Thresholds for 

Impact of Noise on Marine Mammals 

Criteria and thresholds that are the 

basis of the analysis of PSW noise 

impacts to cetaceans were initially used 

in U.S. Navy’s environmental impact 

statements (EISs) for ship shock trials of 

the SEAWOLF submarine and the USS 

WINSTON S. CHURCHILL vessel (DON, 

1998; DON, 2001) and accepted by 

NMFS as representing the best science 

available (see 66 FR 22450, May 4, 

2001). With a single exception 

mentioned in this document, NMFS 

believes that the criteria developed for 

the shock trials represent the best 

science available. The following 

sections summarize the information 

contained in those actions. 

Criteria and Thresholds: Lethality 

The criterion for mortality for marine 

mammals used in the CHURCHILL Final 

EIS is ’onset of severe lung injury.’ This 

is conservative in that it corresponds to 

a 1 percent chance of mortal injury, and 

yet any animal experiencing onset 

severe lung injury is counted as a lethal 

take. The threshold is stated in terms of 

the Goertner (1982) modified positive 

impulse with value ‘‘indexed to 31 psims.’’ Since the Goertner approach 

depends on propagation, source/animal 

depths, and animal mass in a complex 

way, the actual impulse value 

corresponding to the 31–psi-ms index is 

a complicated calculation. The acoustic 

threshold is derived from: 

I1% = 42.9 (M/34)1/3 psi-ms, 

where M is animal mass in kg. Again, 

to be conservative, CHURCHILL used 

the mass of a calf dolphin (at 12.2 kg), 

so that the threshold index is 30.5 psims. 

Criteria and Thresholds: Injury (Level A 

Harassment) 

Non-lethal injurious impacts are 

defined in this document as eardrum 

rupture (i.e., tympanic-membrane (TM) 

rupture) and the onset of slight lung 

injury. These are considered indicative 

of the onset of injury. The threshold for 

TM rupture corresponds to a 50 percent 

rate of rupture (i.e., 50 percent of 

animals exposed to the level are 

expected to suffer TM rupture); this is 

stated in terms of an EFD value of 1.17 

in-lb/in2, which is about 205 dB re 1 

microPa2–s. (Note: EFD is the time 

integral of the squared pressure divided 

by the impedance in values of dB re 1 

microPa2–s.) This recognizes that TM 

rupture is not necessarily a lifethreatening injury, but is a useful index 

of possible injury that is well-correlated 

with measures of permanent hearing 

impairment (e.g., Ketten (1998) 

indicates a 30 percent incidence of 

permanent threshold shift (PTS) at the 

same threshold). 

Criteria and Thresholds: Non-injurious 

Impacts (Level B Harassment) 

Marine mammals may also be 

harassed due to noise from PSW 

missions involving high explosive 

detonations in the EGTTR. The 

CHURCHILL criterion for non-injurious 

harassment from detonations, as 

established through NMFS’ incidental 

take rulemaking (see 66 FR 22450, May 

4, 2001), is temporary (auditory) 

threshold shift (TTS), which is a slight, 

recoverable loss of hearing sensitivity 

(DoN, 2001). The criterion for TTS used 

in this document is 182 dB re 1 

microPa2–s maximum EFD level in any 

1/3–octave band at frequencies above 

100 Hz for all toothed whales (e.g., 

sperm whales, beaked whales, 

dolphins). (Note: 1/3–octave band is the 

EFD in a 1/3–octave frequency band; the 

1/3 octave selected is the hearing range 

at which the affected species’ hearing is 

believed to be most sensitive.) A 1/3–

octave band above 10 Hz is used for 

impact assessments on all baleen 

whales, but those species do not inhabit 

the affected environment of this project. 

The CHURCHILL rulemaking also 

established a second criterion for 

estimating TTS threshold: 12 psi. The 

appropriate application of this second 

TTS criterion is currently under debate, 

as this 12–psi criterion was originally 

established for estimating the impact of 

a 10,000–lb (4536–kg) explosive to be 

employed for the Navy’s shock trial. It 

was introduced to provide a more 

conservative safety zone for TTS when 

the explosive or the animal approaches 

the sea surface (for which cases the 

explosive energy is reduced but the 

peak pressure is not). 

For large explosives (2000 to 10,000 

lbs (907–4536 kg)) and the explosives 

and/or the mammals not too close to the 

surface, the TTS impact zones for these 

two TTS criteria are approximately the 

same. However, for small detonations, 

some acousticians contend the ranges 

for the two TTS thresholds may be quite 

different, with ranges for the peak 

pressure threshold several times greater 

than those for energy. In its application, 

Eglin AFB endorsed an approach, 

currently being developed by the Navy, 

for appropriately ‘‘scaling’’ the peak 

pressure threshold, in order to more 

accurately estimate TTS for small shots 

while preserving the safety feature 

provided by the peak pressure 

threshold. As such, in its application, 

Eglin AFB requested the energy-based 

criterion for TTS, 182 dB re 1 microPa2–

s (maximum EFD level in any 1/3–

octave band), be used alone to 

conservatively estimate the zone in 

which non-injurious (Level B) 

harassment of marine mammals may 

occur. NMFS acousticians have 

reviewed the scientific basis for this 

proposal and agree, in part, with the 

statements made by Eglin AFB that the 

pressure criterion of 12 psi is not fully 

supportable for small charges or when 

either the charge or the recipient are at 

the surface. The model used in 

CHURCHILL assumed the detonation 

occurred in deep water with the charge 

placed below 318 ft (100 m) in depth, 

and that the bottom depth is at least 20 

times the detonation depth. In contrast, 

in PSW missions, both the detonation 

and the recipient will be near the 

surface in relatively shallow water. 

Therefore, although this issue remains 

under review by NMFS and the Navy for 

future Navy actions involving small net 

weight explosives, as an interim 

criterion for this rule and LOAs, NMFS 

is adopting the experimental findings of 

Finneran et al. (2002) that TTS can be 

induced at a pressure level of 23 psi (at 

least in belugas). As explained here, this 

is considered conservative since a 23–

psi pressure level was below the level 

that induced TTS in bottlenose 

dolphins. 

Finneran et al. (2000; as described in 

Finneran et al. (2002)) conducted a 

study designed to measure masked TTS 

(MTTS) in bottlenose dolphins and 

belugas exposed to single underwater 

impulses. This study used an 

‘‘explosion simulator’’ (ES) to generate 

impulsive sounds with pressure 

waveforms resembling those produced 

by distant underwater explosions. No 

substantial (i.e., 6 dB or larger) 

threshold shifts were observed in any of 

the subjects (two bottlenose dolphins 

and 1 beluga) at the highest received 

level produced by the ES: 

approximately 70 kPa (10 psi) peak 

pressure, 221 dB re re 1 micro Pa peakto-peak (pk-pk) pressure, and 179 dB re 

1 microPa2–s total EFD. In Finneran et 

al. (2002), a watergun was substituted 

for the ES because it is capable of 

producing impulses with higher peak 

pressures and total energy fluxes than 

the pressure waveforms produced using 

the ES. It was also preferable to other 

seismic sources because its impulses 

contain more energy at higher 

frequencies, where odontocete hearing 

thresholds are relatively low (i.e., more 

sensitive). Hearing thresholds were 

measured at 0.4, 4 and 30 kHz. MTTSs 

of 7 and 6 dB were observed in the 

beluga at 0.4 and 30 kHz, respectively, 

approximately 2 minutes following 

exposure to single impulses with peak 


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pressures of 160 kPa (23 psi), pk-pk 

pressures of 226 dB re 1 microPa, and 

total EFD of 186 dB re 1 microPa2–s. 

Thresholds returned to within 2 dB of 

the pre-exposure value approximately 4 

minutes post exposure. No MTTS was 

observed in the single bottlenose 

dolphin tested at the highest exposure 

conditions: peak pressure of 207 kPa (30 

psi), 228 dB re 1 microPa pk-pk 

pressure, and 188 dB re 1 microPa2–s 

total energy flux. Therefore, until more 

scientific information is obtained, 

NMFS has determined that the pressure 

criterion for small explosions can be 

amended from 12 psi to 23 psi. At this 

time, NMFS believes that setting the 

pressure metric of the dual explosive 

criteria at 23 psi is conservative, while 

setting the pressure metric at a higher 

level has not been scientifically 

validated at this time. 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). 

TABLE 1. ZONES OF IMPACT FOR UNDERWATER EXPLOSIONS (MID-DEPTH ANIMAL). 

Ordnance 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) 

Summer 

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 

Winter 

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 

Criteria and Thresholds: Behavioral 

Modification (Sub-TTS) 

No strictly sub-TTS behavioral 

responses (i.e., Level B harassment) are 

anticipated with the JASSM and SBD 

test activities because there are no 

successive detonations (the 2 SBD 

explosions occur almost 

simultaneously) which could provide 

causation for a behavioral disruption 

rising to the level of a significant 

alteration or abandonment of behavioral 

patterns without also causing TTS. Also, 

repetitive exposures (below TTS) to the 

same resident animals are highly 

unlikely due to the infrequent JASSM 

and SBD test events, the potential 

variability in target locations, and the 

continuous movement of marine 

mammals in the northern GOM. 

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 and 3 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 


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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 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 

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

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 

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 


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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 

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 

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 

Eglin AFB is required to establish and 

survey 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 

marine mammal observers (MMOs) 

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 

MMOs 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 

MMO’s ability to locate surfacing 

marine mammals. Therefore, PSW 

missions would be delayed if the 

Beaufort scale sea state is 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 AFB 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 

MMOs. Aircraft provide a preferable 

viewing platform for detection of 

protected marine species. Each aerial 

MMO 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 MMOs 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 postmission 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. MMOs 

would be familiar with the protected 

resources (marine mammals/sea turtles) 

of the area. The MMOs 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 

MMOs from the aerial team and 

operations vessel will have direct 

communication with the lead scientist 

aboard the operations vessel. The lead 


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scientist will be a qualified marine 

biologist familiar with marine mammal 

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 by trained MMOs. 

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 

ensure personnel safety. Therefore, in 

compliance with AF safety parameters 

and the constraints on mitigation under 

the MMPA, as amended by the NDAA, 

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

Flight Time 

Safety Clearance 

Time for Vessels 

before Launch 

Safety Clearance 

Time for Aircraft 

before Launch 

Total Time of Vessel Safety Clearance before Detonation Total Time of Aircraft Safety Clearance before Detonation 

Human Safety 

Area 

JASSM :30 - 1 hr :30 :15 1:30 1:15 2 NM 

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 turtles, few or no 

patches of Sargassum, etc.) 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. 

MMOs 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 MMOs 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 5 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, premission monitoring would continue as 

long as weather and daylight hours 

allow. Aerial monitoring is limited by 


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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 the practical 

considerations (in-air destruction of the 

missile), NMFS is not proposing to 

require Eglin AFB to terminate an inflight missile or bomb due to sighting of 

a protected species. 

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 or turtles 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 

or turtles observed dead or injured and, 

if practicable, recover and examine any 

dead animals. 

Conservative Estimates of Marine 

Mammal Densities 

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 

NMFS is requiring 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 AFB 

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 NMFS. 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 


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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 AFB’s PSW 

activity on ESA-listed species and 

critical habitat under the jurisdiction of 

NMFS. That biological opinion 

concluded that Eglin AFB’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 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 also determined that the issuance of 

up to 5 LOAs to Eglin AFB 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 has reviewed the 

information contained in Eglin AFB’s 

Final PEA and determined that the Eglin 

AFB’s PEA accurately and completely 

describes the preferred action 

alternative, a reasonable range of 

alternatives, and the potential impacts 

on marine mammals, endangered 

species, and other marine life that could 

be impacted by the preferred and nonpreferred alternatives. Based on this 

review and analysis, NMFS adopted 

Eglin AFB’s PEA under 40 CFR 1506.3 

and, on July 25, 2005, made its own 

FONSI statement on issuance of an 

annual authorization under section 

101(a)(5) of the MMPA. As the impacts 

on the human environment by issuance 

of this rulemaking and annual LOAs to 

Eglin AFB are not substantially different 

from the action analyzed in Eglin’s PEA 

and NMFS’ July 25, 2005 FONSI and as 

no incremental change would occur 

under this new authority, NMFS has 

determined that it is not necessary to 

issue a new EA, a supplemental EA or 

an environmental impact statement for 

the issuance of an LOA to Eglin AFB to 

take marine mammals incidental to this 

activity. A copy of NMFS’ July 25, 2006, 

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). 

Determinations 

NMFS has determined that, based on 

the information provided in Eglin AFB’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 

AFB’s EA and incidental take 

application support NMFS’ finding that 

impacts will be mitigated by: 

(1)implementation of a conservative 

safety range for marine mammal 

exclusion; (2) incorporation of aerial 

and shipboard survey monitoring efforts 

in the program both prior to and after 

detonation of explosives; and (3) 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 determined that the 

requirements of section 101(a)(5)(A) of 

the MMPA have been met and this final 

rule can be issued. 

Changes from the Proposed Rule 

Based on a public comment, these 

regulations require the marine mammal 

observation platform to provide 

observers a platform to see a major 

portion of the safety zone. 

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 certified 

to the Chief Counsel for Advocacy of the 

Small Business Administration during 

the proposed rule stage that this action 

would not have a significant economic 

impact on a substantial number of small 

entities. The factual basis for the 

certification was published in the 

proposed rule and is not repeated here. 

No comments were received regarding 

this certification. As a result, a 

regulatory flexibility analysis was not 

required and none was prepared. 

List of Subjects in 50 CFR Part 216 

Exports, Fish, Imports, Indians, 

Labeling, Marine mammals, Penalties, 

Reporting and recordkeeping 

requirements, Seafood, Transportation. 

Dated: November 15, 2006. 

John Oliver, 

Deputy Assistant Administrator for 

Operations, National Marine Fisheries 

Service. 

■ For reasons set forth in the preamble, 

50 CFR part 216 is amended as follows: 


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67822 Federal Register / Vol. 71, No. 226 / Friday, November 24, 2006 / Rules and Regulations 

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 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 Letters 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 

§ 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 smalldiameter 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). 

§ 216.251 Effective dates. 

Regulations in this subpart are 

effective from December 26, 2006 until 

December 27, 2011. 

§ 216.252 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, 

including lethal take 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 

§ 216.250(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 

mammal species and stocks 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 

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) Prior to a JASSM or SDB launch: 

(1) If any marine mammals are 

observed within the designated safety 

zone prescribed in condition (a)(1) 

above, or within the buffer zone 

prescribed in condition (a)(2) above and 

it/they are on a course that will put 

them within the safety zone prior to an 

JASSM or SDB launch, the launch 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 

described under § 216.255 cannot be 

carried out fully. 


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Federal Register / Vol. 71, No. 226 / Friday, November 24, 2006 / Rules and Regulations 67823 

§ 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 authorized to monitor the 

impacts of the activity on marine 

mammals. Unless specified otherwise in 

the Letter of Authorization, the Holder 

of the Letter of Authorization must 

notify the 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 marine 

mammal observers to record the effects 

of mission launches on marine 

mammals that inhabit the northern Gulf 

of Mexico; 

(2) Have on-site marine mammal 

observers 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 marine mammal 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. 

The marine mammal observation 

platform must be of sufficient height to 

provide observers a platform to see a 

major portion of the safety zone. 

(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. Coordination shall 

include: 

(i) Pre-activity notification of a PSW 

exercise; and 

(ii) Post-event surveying of the Eglin 

AFB shore-line in the vicinity of the 

PSW exercise. 

(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 

the need for a separate scientific 

research permit. 

(j) The Holder of the Letter of 

Authorization must conduct any marine 

mammal 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 30 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 specified in the Letter 

of Authorization, but may not to exceed 

the period of validity of this subpart, 

and must be renewed annually subject 

to annual renewal conditions in 

§ 216.258. 

(b) A Letter of Authorization with a 

period of validity less than the period of 

this subpart may be renewed subject to 

renewal conditions in § 216.258. 

(c) Each Letter of Authorization will 

set forth: 

(1) Permissible methods of incidental 

taking; 


cprice-sewell on PROD1PC66 with RULES
67824 Federal Register / Vol. 71, No. 226 / Friday, November 24, 2006 / Rules and Regulations 

(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 incidental takes. 

(d) 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. 

(e) Except for the initial Letter of 

Authorization, notice of issuance or 

denial of subsequent Letters of 

Authorization will be published in the 

Federal Register within 30 days of a 

determination. 

§ 216.258 Renewal of Letters of 

Authorization. 

(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(k), 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, 

§ 216.255, and the Letter of 

Authorization issued under §§ 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. 

§ 216.259 Modifications to Letters of 

Authorization. 

(a) Except as provided in paragraph 

(b) of this section, no substantive 

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. 

[FR Doc. 06–9380 Filed 11–22–06; 8:45 am] 

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