16718 Federal Register / Vol. 77, No. 56 / Thursday, March 22, 2012 / Rules and Regulations 

Dated: March 12, 2012. 

Rachel Jacobson, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks. 

[FR Doc. 2012–6779 Filed 3–21–12; 8:45 am] 

BILLING CODE 4310–55–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 217 

[Docket No. 100217098–2125–02] 

RIN 0648–AY64 

Taking and Importing Marine 

Mammals; Naval Explosive Ordnance 

Disposal School Training Operations 

at Eglin Air Force Base, Florida 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS, upon application from 

the U.S. Department of the Air Force, 

Headquarters 96th Air Base Wing (U.S. 

Air Force), Eglin Air Force Base (Eglin 

AFB) is issuing regulations to govern the 

taking of Atlantic bottlenose dolphins, 

by Level B harassment, incidental to 

Naval Explosive Ordnance Disposal 

School (NEODS) training operations at 

Eglin AFB, Florida, for a 5-year period. 

The U.S. Air Force activities are 

considered military readiness activities 

pursuant to the Marine Mammal 

Protection Act (MMPA), as amended by 

the National Defense Authorization Act 

of 2004 (NDAA). These regulations, 

which allow for the issuance of Letters 

of Authorization (LOAs) for the 

incidental take of marine mammals 

during the described activities and 

specified time frames, prescribe the 

permissible methods of taking and other 

means of effecting the least practicable 

adverse impact on marine mammal 

species and their habitat, as well as 

requirements pertaining to the 

monitoring and reporting of such taking. 

NMFS issued annual Incidental 

Harassment Authorizations (IHAs) 

pursuant to section 101(a)(5)(D) of the 

MMPA for similar specified activities in 

2005, 2006, 2007, and 2008. No 

activities have occurred to date under 

those IHAs. 

DATES: Effective April 23, 2012, through 

April 24, 2017. 

ADDRESSES: A copy of the application 

containing a list of the references used 

in this document may be obtained by 

writing to Tammy Adams, Acting Chief, 

Permits and Conservation Division, 

Office of Protected Resources, National 

Marine Fisheries Service, 1315 EastWest Highway, Silver Spring, MD 

20910–3225, and telephoning the 

contact listed below (see FOR FURTHER

INFORMATION CONTACT), or visiting the 

internet at: http://www.nmfs.noaa.gov/ 

pr/permits/incidental.htm. Documents 

cited in this notice may be viewed, by 

appointment, during regular business 

hours, at the aforementioned address. 

NMFS has prepared an Environmental 

Assessment (EA) and Finding of No 

Significant Impact (FONSI) in 

accordance with the National 

Environmental Policy Act (NEPA) as 

implemented by the regulations 

published by the Council on 

Environmental Quality (CEQ). 

FOR FURTHER INFORMATION CONTACT: 

Howard Goldstein or Jolie Harrison, 

Office of Protected Resources, NMFS, 

301–427–8401. 

SUPPLEMENTARY INFORMATION: 

Background 

Paragraphs 101(a)(5)(A) and (D) of the 

MMPA (16 U.S.C. 1361 et seq.) direct 

the Secretary of Commerce (Secretary), 

upon request, to allow for a period of 

not more than 5 years, the incidental, 

but not intentional, taking of marine 

mammals by U.S. citizens who engage 

in a specified activity (other than 

commercial fishing) within a specified 

geographical region if certain findings 

are made and regulations are issued. 

Alternatively, if the taking is limited to 

harassment, certain determinations are 

made and the authorization does not 

exceed one year, an IHA may be issued. 

Upon making a finding that an 

application for incidental take is 

adequate and complete, NMFS 

commences the incidental take 

authorization process by publishing in 

the Federal Register a notice of a receipt 

of an application for the implementation 


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Federal Register / Vol. 77, No. 56 / Thursday, March 22, 2012 / Rules and Regulations 16719 

of regulations or a proposed IHA 

initiating a period for public review and 

comment. 

An authorization for the incidental 

takings may be granted if NMFS finds 

that the taking during the period of the 

authorization will have a negligible 

impact on the species or stock(s), will 

not have an unmitigable adverse impact 

on the availability of the species or 

stock(s) for subsistence uses (where 

relevant), and if the permissible 

methods of taking and requirements 

pertaining to the mitigation, monitoring 

and reporting of such takings are set 

forth to achieve the least practicable 

adverse impact. 

NMFS has defined ‘‘negligible 

impact’’ as: ‘‘* * * an impact resulting 

from the specified activity that cannot 

be reasonably expected to, and is not 

reasonably likely to, adversely affect the 

species or stock through effects on 

annual rates of recruitment or survival.’’ 

The National Defense Authorization 

Act of 2004 (NDAA) (Pub. L. 108–36) 

modified the MMPA by removing the 

‘‘small numbers’’ and ‘‘specified 

geographic region’’ limitations and 

amended the definition of ‘‘harassment’’ 

as it applies to a ‘‘military readiness 

activity’’ to read as follows (section 

3(18)(B) of the MMPA): 

‘‘(i) any act that injures or has the 

significant potential to injure a marine 

mammal or marine mammal stock in the wild 

(Level A harassment); or (ii) any act that 

disturbs or is likely to disturb a marine 

mammal or marine mammal stock in the wild 

by causing disruption of natural behavioral 

patterns, including, but not limited to, 

migration, surfacing, nursing, breeding, 

feeding, or behavioral patterns are abandoned 

or significantly altered (Level B 

harassment).’’ 

Summary of Request 

On November 6, 2009, NMFS received 

a letter from the U.S. Air Force 

requesting an authorization for the take 

of marine mammals incidental to 

NEODS training operations. These 

training operations are properly 

considered ‘‘military readiness activity’’ 

under the provisions of the NDAA. On 

January 15, 2010, NMFS published a 

notice of receipt (75 FR 2490) in the 

Federal Register for the U.S. Air Force’s 

NEODS training operations and 

determined that its application was 

adequate and complete. The Federal 

Register notice solicited comments from 

the public. After the close of the public 

comment period and review of 

comments, NMFS, on October 1, 2010, 

NMFS published a proposed rule (75 FR 

60694) in the Federal Register to 

authorize the take of marine mammals 

pursuant to the U.S. Air Force’s NEODS 

training operations and solicited public 

comments. On November 30, 2010, 

NMFS received a revised application 

from the U.S. Air Force which 

addressed public comments received 

during the comment period for the 

proposed rule. This application reestimated the Zones of Influence (ZOI) 

and associated takes on revised 

thresholds for Level A and Level B 

harassment. On December 5, 2011, 

NMFS received a revised application 

from Eglin AFB with revised monitoring 

and mitigation measures to reduce the 

potential for lethal take of bottlenose 

dolphins, in response to an event 

involving the mortality of common 

dolphins associated with similar 

explosive training operations at the U.S. 

Navy’s Silver Strand Training Complex 

near San Diego, California. 

The U.S. Air Force states and NMFS 

concurs that underwater explosive 

detonations could result in the take by 

harassment of marine mammals by 

exposing them to sound. The requested 

regulations would establish a framework 

for authorizing incidental take with one 

or more future LOAs over a period not 

to exceed five years. These LOAs, if 

approved, would authorize the take, by 

Level B (behavioral) harassment, of 

Atlantic bottlenose dolphins (Tursiops 

truncatus) incidental to conducting 

NEODS training operations and testing 

at Eglin Gulf Test and Training Range 

(EGTTR) at property off Santa Rosa 

Island (SRI), Florida, in the northern 

Gulf of Mexico (GOM). Based on the 

application, estimated take, without 

considering mitigation effectiveness, 

would average approximately 10 

animals per year; approximately 50 

animals over the five year period. NMFS 

issued annual IHAs pursuant to section 

101(a)(5)(D) of the MMPA for almost 

identical activities in 2005 (70 FR 

51341; August 30, 2005), 2006 (71 FR 

60639; October 16, 2006), 2007 (72 FR 

58290; October 15, 2007), and 2008 (73 

FR 56800; September 30, 2008). No 

missions have occurred under previous 

IHAs because of a separate concern 

about the safety of demolition charges 

being transported under a bridge. 

NEODS missions would involve 

underwater detonations of small, live 

explosive charges adjacent to inert 

mines. The U.S. Air Force states that 

underwater detonation of the specified 

explosive charges may expose 

bottlenose dolphins in the area to noise 

and pressure resulting in non-injurious 

temporary threshold shift (TTS) 

(temporary hearing loss). 

Additional information on the NEODS 

training operations is contained in the 

application, which is available upon 

request (see ADDRESSES). 

Description of the Specified Activities 

Background 

The EGTTR encompasses 

approximately 222,739 km2 (86,000 mi2) 

within the GOM and consists of the 

airspace over the GOM, which is 

scheduled and operated by Eglin AFB. 

Potential impacts to marine mammals 

from NEODS testing are expected to 

occur at the NEODS test areas of Eglin 

AFB shown in Figure 1–1 of Eglin AFB’s 

application, which are located 

approximately three nautical miles 

(nmi) from shore, in approximately 18.3 

m (60 ft) of water and in area W–151 of 

the EGTTR. 

The mission of NEODS is to detect, 

recover, identify, evaluate, render safe, 

and dispose of unexploded ordnance 

(UXO) that constitutes a threat to 

people, material, installations, ships, 

aircraft, and operations. The U.S. Navy 

EOD force of approximately 1,000 

personnel has the equipment, mobility, 

and flexibility to tackle the global 

spectrum of threats in all world 

environments. Mine Countermeasures 

(MCM) detonations is one function of 

the U.S. Navy EOD force, which 

involves mine-hunting and mineclearance operations. The NEODS 

facilities are located at Eglin AFB, 

Florida. The training at Eglin AFB 

involves focused training on basic EOD 

skills. Examples of these fundamental 

skills are recognizing ordnance, 

reconnaissance, measurement, basic 

understanding of demolition charges, 

and neutralization of conventional and 

chemical ordnance. 

The NEODS at Eglin AFB plan to use 

the GOM waters off of SRI for a portion 

of the NEODS class. The NEODS would 

utilize areas approximately one to three 

nmi offshore of Test Site A–15, A–10 or 

A–3 for MCM training (see Figure 1–1 

of Eglin AFB’s application). A ‘‘test site’’ 

is a specific location on EGTTR where 

the mission activities actually occur. 

The goal of the training is to give 

NEODS students the tools and 

techniques to implement MCM and for 

neutralizing mines by diving and handplacing charges adjacent to the mines 

through real scenarios. The students 

would be taught established techniques 

for neutralizing mines by diving and 

hand-placing charges adjacent to the 

mines. The detonation of small, live 

explosive charges adjacent to the mine 

disables the mine function. Inert mines 

are utilized for training purposes. This 

training would occur offshore of SRI up 

to eight times annually, at varying times 

within the year. 

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16720 Federal Register / Vol. 77, No. 56 / Thursday, March 22, 2012 / Rules and Regulations 

NEODS Operations 

MCM training classes are 51 days in 

duration, with four days of on-site 

training in the GOM. Two of these four 

days will be utilized to lay the inert 

mines prior to the training. The other 

two days will require the use of live 

detonations in the GOM. One large 

safety vessel and five MK V inflatable 

3.1 m (10 ft) rubber boats with 50 

horsepower (HP) engines would be used 

to access the GOM waters during 

training activities. The training 

procedures during the two ‘‘live 

demolition’’ days are described as 

follows. 

First Live Demolition Day: Five inert 

mines will be placed in a compact area 

on the GOM floor in approximately 60 

ft of water. These five mines will be 

utilized for the one or two live 

demolition days. Divers will locate the 

mines by hand-held sonars (AN/PQS– 

2A acoustic locator and the Dukane 

Underwater Acoustic Locator System), 

which detect the mine casings (mine 

shape reacquisition). The hand-held 

sonar has been evaluated by the U.S. 

Navy and the sound source levels and 

sonar frequency ranges are below the 

threshold considered Level B 

harassment for marine mammals for 

sonar use (see Table 1–1 of Eglin AFB’s 

application). Approximately 50,000 hrs 

of use would be required to affect one 

dolphin. It is expected that maximum 

sonar use associated with NEODS 

operations will be approximately 300 

hrs annually. Therefore, potential noise 

impacts from sonar use are not included 

in this analysis. 

Five charges packed with C–4 

explosive material (either 2.3 kg or 5 

pound [lb] net explosive weight [NEW] 

or 4.6 kg [10 lb] NEW) will be set up 

adjacent to the mines. A charge includes 

detonation cord, non-electric caps, time 

fuses and fuse igniters. No more than 

five charges will be utilized over the 

2-day period. Live training events will 

occur eight times annually, averaging 

once every six to seven weeks. Four of 

the training events will involve 5-lb 

charges, and four events will involve 

10-lb charges. Because five detonations 

(maximum) are expected during each 

event, there will be up to twenty 5-lb 

detonations and twenty ten-lb 

detonations annually, for a total of 40 

detonations. 

NMFS and the U.S. Air Force expect 

that 60 percent of the training events 

will occur in summer, and 40 percent 

will occur in winter, and analyses of 

potential marine mammal impacts in 

Section 6 of Eglin AFB’s application 

reflect this seasonal distribution. 

Overpressure from the detonation is 

intended to disrupt the electrical charge 

on the mine, rendering it safe. The five 

charges will be detonated individually 

with a maximum separation time of 20 

minutes between each detonation. The 

time of detonation will be limited to an 

hour after sunrise and an hour before 

sunset. Mine shapes and debris will be 

recovered and removed from the GOM 

waters when training is completed. 

Second Live Demolition Day: Each 

team has two days to complete their 

entire evolution (detonation of five 

charges). The second day will be 

utilized only for teams not completing 

their evolution on day one. 

TABLE 1—(TABLE 1–1 OF THE APPLICATION) HAND-HELD SONAR CHARACTERISTICS

AN/PQS–2A Dukane 

Operating Frequency ................................. 115 kHz to 145 kHz ............................................. 37.5 kHz +/¥ 1 kHz. 

Sound Pressure Level ............................... 178.5 dB re 1 μPa @ 1m ..................................... 157 to 160.5 dB re 1 μPa @ 1m. 

The AN/PQS–2A sonar system 

produces a non-continuous audible tone 

in the diver’s headset when a target is 

located. The AN/PQS–2A sonar’s 

frequency range is within the hearing 

range of Atlantic bottlenose dolphins. 

The U.S. Navy evaluated the use of AN/ 

PQS–2A sonar (in addition to many 

other types of sonar systems) in a 2009 

Environmental Impact Statement for 

activities in the Panama City, Florida 

area. Using a bottlenose dolphin density 

of 0.81 animals/km2, it would require 

approximately 50,000 hrs of use to reach 

a take level of 0.5 animals. As a point 

of comparison, if the AN/PQS–2A sonar 

was in use for 12 hrs per day on every 

day of training in the GOM, the total 

number of hrs of use would be 384 

annually. Eglin AFB considers that there 

would be no impacts to bottlenose 

dolphins from AN/PQS–2A sonar use. 

Additional details regarding the 

NEODS training operations can be 

found in Eglin AFB’s LOA application 

and NMFS’ Environmental Assessment 

on the Promulgation of Regulations and 

the Issuance of Letters of Authorization 

to Take Marine Mammals, by Level B 

Harassment, Incidental to Naval 

Explosive Ordnance Disposal School 

Training Operations at Eglin Air Force 

Base, Florida (EA). The EA can also be 

found online at: http:// 

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

incidental.htm#applications. 

Military Readiness Activity 

NEODS supports the Naval Fleet by 

providing training to personnel from all 

four armed services, civil officials, and 

military students from over 70 

countries. The NEODS facility supports 

the Department of Defense Joint Service 

Explosive Ordnance Disposal training 

mission. According to the application, 

the U.S. Navy and the U.S. Marine 

Corps believe that the ability of 

personnel to detect, characterize, and 

neutralize mines from their operating 

areas at sea, on the shore, and inland, 

is vital to their doctrines. 

As the U.S. Air Force notes in its 

application, the U.S. Navy believes that 

an array of trans-national, rogue, and 

sub-national adversaries now pose the 

most immediate threat to American 

interests. Because of their relative low 

cost and ease of use, mines will be 

among the adversaries’ weapons of 

choice in shallow-water situations, and 

they will be deployed in an 

asymmetrical and asynchronous 

manner. The U.S. Navy needs organic 

means to clear mines and obstacles 

rapidly in three challenging 

environments: Shallow water; the surf 

zone; and the beach zone. The U.S. 

Navy also needs a capability for rapid 

clandestine surveillance and 

reconnaissance of minefields and 

obstacles in these environments. The 

U.S. Air Force has determined and 

NMFS concurs that the NEODS mission 

in the GOM offshore of Eglin AFB is a 

military readiness activity for purposes 

of the MMPA as amended by the 

National Defense Authorization Act for 

Fiscal Year 2004 (NDAA, Pub. L. 108– 

236 referencing the definition in section 

315 (f) of Pub. L. 107–314). 

Dates, Duration, and Location of 

Specified Activity 

NEODS missions will occur over the 

next five years utilizing resources 

within the Eglin Military Complex, 

including three sites in the EGTTR 

(Figure 1–1 of Eglin AFB’s application). 

There will be eight training events 

annually, with an average of one event 

occurring every six to seven weeks. Half 

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of the events will involve 5-lb charges 

and half will involve 10-lb charges. 

Area W–151: The inshore and offshore 

boundaries of W–151 are roughly 

parallel to the shoreline contour. The 

shoreward boundary is 3 nmi from 

shore, while the seaward boundary 

extends approximately 85 to 100 nmi 

offshore, depending on the specific 

location. W–151 covers a surface area of 

approximately 35,145 km2 (10,247 

nmi2), and includes water depths 

ranging from approximately 35 to 700 m 

(114.8 to 2,296.6 ft). This range of depth 

includes continental shelf and slope 

waters. Approximately half of W–151 

lies over the shelf. Latitude/Longitude 

of corners of W–151: 

• 30.24006° North, ¥86.808838° 

West. 

• 29.539011° North, ¥84.995536° 

West. 

• 28.03949° North, ¥85.000147° 

West. 

• 28.027598° North, ¥85.199395° 

West. 

• 28.505304° North, ¥86.799043° 

West. 

Area W–151A: W–151–A extends 

approximately 60 nmi offshore and has 

a surface area of 8,797 km2 (2,565 nmi2). 

Water depths range from approximately 

35 to 350 m (114.8 to 1,148.3 ft) and 

include continental shelf and slope 

zones. However, most of W–151A 

occurs over the continental shelf, in 

water depths less than 250 m (820.2 ft). 

Latitude/Longitude of four corners of 

W–151A: 

• 30.24006° North, ¥86.808838° 

West. 

• 30.07499° North, ¥85.999327° 

West. 

• 29.179968° North, ¥85.996341° 

West. 

• 29.384439° North, ¥86.802579° 

West. 

Description of Marine Mammals and 

Habitat Affected in the Activity Area of 

the Specified Activities 

Marine mammal species that 

potentially occur within the EGTTR 

include several species of cetaceans and 

one sirenian, the West Indian manatee 

(see Table 1 below). The marine 

mammals that generally occur in the 

training operations area belong to three 

taxonomic groups: Mysticetes (baleen 

whales), odontocetes (toothed whales 

and dolphins), and sirenians (the 

manatee). Marine mammal species 

listed as Endangered under the U.S. 

Endangered Species Act (ESA), include 

the humpback, sei, fin, blue, North 

Atlantic right, sperm whale, and Florida 

manatee. Table 2 below outlines the 

marine mammal species, their habitat in 

the region of the project area, and their 

ESA and MMPA conservation status. 

During winter months, manatee 

distribution in the GOM is generally 

confined to southern Florida. During 

summer months, a few may migrate 

north as far as Louisiana. However, 

manatees primarily inhabit coastal and 

inshore waters and rarely venture 

offshore. NEODS missions would be 

conducted one to three nmi from shore. 

Therefore, effects on manatees are 

considered very unlikely, and the 

discussion of marine mammal species is 

confined to cetaceans. The primarily 

cetacean occurring in the NEODS area of 

interest, EGTTR sub-area 197 (Figure 3– 

1 of Eglin AFB’s application), is the 

Atlantic bottlenose dolphin and this 

analysis will focus on that species. 

TABLE 2—THE HABITAT AND CONSERVATION STATUS OF MARINE MAMMALS INHABITING THE ACTION AREA IN THE GULF

OF MEXICO OFF OF FLORIDA

Species Habitat ESA1 MMPA2

Mysticetes: 

North Atlantic right whale (Eubalaena 

glacialis).

Coastal and shelf ............................................ EN .............................. D. 

Humpback whale (Megaptera 

novaeangliae).

Pelagic, nearshore waters, and banks ........... EN .............................. D. 

Bryde’s whale (Balaenoptera edeni) ......... Pelagic and coastal ......................................... NL ............................... NC. 

Minke whale (Balaenoptera acutorostrata) Pelagic and coastal ......................................... NL ............................... NC. 

Blue whale (Balaenoptera musculus) ....... Pelagic and coastal ......................................... EN .............................. D. 

Sei whale (Balaenoptera borealis) ............ Primarily offshore, pelagic .............................. EN .............................. D. 

Fin whale (Balaenoptera physalus) .......... Slope, mostly pelagic ...................................... EN .............................. D. 

Odontocetes: 

Sperm whale (Physeter macrocephalus) .. Pelagic, deep seas ......................................... EN .............................. D. 

Cuvier’s beaked whale (Ziphius 

cavirostris).

Pelagic ............................................................ NL ............................... NC. 

Gervais’ beaked whale (Mesoplodon 

europaeus).

Pelagic ............................................................ NL ............................... NC. 

True’s beaked whale (Mesoplodon mirus) Pelagic ............................................................ NL ............................... NC. 

Blainville’s beaked whale (Mesoplodon 

densirostris).

Pelagic ............................................................ NL ............................... NC. 

Sowerby’s beaked whale (Mesoplodon 

bidens).

Pelagic ............................................................ NL ............................... NC. 

Dwarf sperm whale (Kogia sima) .............. Offshore, pelagic ............................................. NL ............................... NC. 

Pygmy sperm whale (Kogia breviceps) .... Offshore, pelagic ............................................. NL ............................... NC. 

Killer whale (Orcinus orca) ........................ Widely distributed ............................................ NL ...............................

EN—Southern Resident.

NC 

D—Southern Resident, AT1 Transient. 

Short-finned pilot whale (Globicephala 

macrorhynchus).

Inshore and offshore ....................................... NL ............................... NC. 

False killer whale (Pseudorca crassidens) Pelagic ............................................................ NL ............................... NC. 

Melon-headed whale (Peponocephala 

electra).

Pelagic ............................................................ NL ............................... NC. 

Pygmy killer whale (Feresa attenuata) ..... Pelagic ............................................................ NL ............................... NC. 

Risso’s dolphin (Grampus griseus) ........... Pelagic, shelf ................................................... NL ............................... NC. 

Bottlenose dolphin (Tursiops truncatus) ... Offshore, inshore, coastal, estuaries .............. NL ............................... NC. 

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TABLE 2—THE HABITAT AND CONSERVATION STATUS OF MARINE MAMMALS INHABITING THE ACTION AREA IN THE GULF

OF MEXICO OFF OF FLORIDA—Continued 

Species Habitat ESA1 MMPA2

S—33 stocks inhabiting the bays, 

sounds, and estuaries along GOM 

coast. 

D—Western North Atlantic Coastal. 

Rough-toothed dolphin (Steno 

bredanensis).

Pelagic ............................................................ NL ............................... NC. 

Fraser’s dolphin (Lagenodelphis hosei) .... Pelagic ............................................................ NL ............................... NC. 

Striped dolphin (Stenella coeruleolba) ...... Pelagic ............................................................ NL ............................... NC. 

Pantropical spotted dolphin (Stenella 

attenuata).

Pelagic ............................................................ NL. .............................. NC 

D—Northeastern 

Offshore. 

Atlantic spotted dolphin (Stenella frontalis) Coastal to pelagic ........................................... NL ............................... NC. 

Spinner dolphin (Stenella longirostris) ...... Mostly pelagic ................................................. NL ............................... NC. 

D—Eastern. 

Clymene dolphin (Stenella clymene) ........ Pelagic ............................................................ NL ............................... NC. 

Sirenians: 

West Indian (Florida) manatee 

(Trichechus manatus latirostris).

Coastal, rivers, and estuaries ......................... En ............................... D. 

1 U.S. Endangered Species Act: EN = Endangered, T = Threatened, and NL = Not listed. 

2 U.S. Marine Mammal Protection Act: NC = Not classified, D = Depleted, and S = Strategic. 

The three species of marine mammals 

that are known to commonly occur in 

close proximity to the NEODS training 

area of the GOM are the West Indian 

(Florida) manatee, Atlantic spotted 

dolphin, and Atlantic bottlenose 

dolphin. 

Florida Manatee 

The West Indian manatee in Florida 

and U.S. waters is listed as Endangered 

under the Endangered Species Act 

(ESA). They primarily inhabit coastal 

and inshore waters. Because the Florida 

manatee is managed under the 

jurisdiction of the U.S. Fish and 

Wildlife Service (USFWS) it is not 

considered further in this analysis. 

Atlantic Spotted Dolphins 

The Atlantic spotted dolphin is 

endemic to the Atlantic Ocean in 

temperate to tropical waters (Perrin et 

al., 1987, 1994). In the GOM, Atlantic 

spotted dolphins occur primarily from 

continental shelf waters 10 to 200 m (33 

to 656 ft) deep to slope waters greater 

than 500 m (1,640 ft) deep (Fulling et 

al., 2003; Mullin and Fulling, 2004). 

Atlantic spotted dolphins were seen in 

all seasons during GulfCet aerial surveys 

of the northern GOM from 1992 to 1998 

(Hansen et al., 1996; Mullin and 

Hoggard, 2000). It has been suggested 

that this species may move inshore 

seasonally during spring, but data 

supporting this hypothesis are limited 

(Caldwell and Caldwell, 1966; Fritts et 

al., 1983). 

Eglin AFB has included Atlantic 

spotted dolphins in previous requests 

for IHAs to be conservative, although 

their occurrence is considered unlikely. 

The stock assessment reports for the 

northern GOM describes the shoreward 

range of Atlantic spotted dolphins as 10 

m (33 ft) depth. NEODS activities can 

occur from one to three miles offshore. 

Maximum water depth of the activities 

is 18.3 m (60 ft), but they often train in 

approximately 9.1 m (30 ft) of water, so 

this species range occurs at the very 

edge of the activities. Therefore, the 

chance of impacting Atlantic spotted 

dolphins is remote, especially given the 

monitoring and mitigation measures 

described below. 

Atlantic Bottlenose Dolphins 

The marine mammal species most 

likely to be affected by the NEODS 

training operations is the Atlantic 

bottlenose dolphin. Atlantic bottlenose 

dolphins are distributed worldwide in 

tropical and temperate waters. Atlantic 

bottlenose dolphins occur in slope, 

shelf, and inshore waters of the entire 

GOM, and their diet consists mainly of 

fish, crabs, squid, and shrimp (Caldwell 

and Caldwell, 1983). In addition, a 

coastal and an offshore form of the 

bottlenose dolphin have been suggested. 

Baumgartner et al. (2001) suggest a 

bimodal distribution in the northern 

GOM, with a shelf population occurring 

out to the 150 m (492 ft) isobath and a 

shelf break population out to the 750 m 

(2,460.6 ft) isobath. Occurrence in water 

with depth greater than 1,000 m (3,280.8 

ft) is not considered likely and is not 

applicable to this assessment. Migratory 

patterns from inshore to offshore are 

likely associated with the movements of 

prey rather than a preference for a 

particular habitat characteristic (such as 

surface water temperature) (Ridgeway, 

1972; Irving, 1973; Jefferson et al., 

1992). 

Based on a combination of geography, 

ecological, and genetic research, 

Atlantic bottlenose dolphins have been 

divided into many separate stocks 

within the GOM. Within the EGTTR, 

there are four defined stocks of 

bottlenose dolphins: The Northern GOM 

Oceanic Stock, the Northern GOM 

Continental Shelf Stock, the Eastern 

GOM Coastal Stock, and the Northern 

GOM Coastal Stock. In addition, there 

are 33 stocks of bottlenose dolphins 

inhabiting the bays, sounds, and 

estuaries along the GOM coast (Waring 

et al., 2007). NEODS training operations 

occur offshore of Eglin AFB’s SRI 

property in water depths of 

approximately 60 ft. This location most 

closely coincides with the defined 

boundary of the Northern GOM Coastal 

Stock, which is considered to occur 

from the GOM shoreline to the 20 m 

(65.6 ft) isobath. However, individuals 

from the Northern GOM Bay, Sound, 

and Estuarine Stocks may also 

potentially enter the training areas, as 

movement between various 

communities has been documented (see 

Waring et al., 2009). 

NEODS training operations occur 

geographically between the Pensacola/ 

East Bay and Choctawhatchee Bay 

stocks, although individuals from other 

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locations could potentially travel 

through the training areas as well. The 

Northern GOM coastal stocks and all 

bay, sound, and estuarine stocks are 

designated as strategic under the 

MMPA. Strategic stocks are defined by 

the MMPA as a marine mammal stock 

for which the level of direct humancaused mortality exceeds the potential 

biological removal level; which, based 

on the best available scientific 

information, is declining and is likely to 

be listed as a threatened species under 

the ESA within the foreseeable future; 

or which is listed as a threatened or 

endangered species under the ESA, or is 

designated as depleted under the 

MMPA. For the coastal stocks, total 

human-caused mortality and serious 

injury for each stock is not known and 

there is insufficient information 

available to determine whether the total 

fishery-related mortality and serious 

injury for each stock is insignificant and 

approaching zero mortality and serious 

injury rate. Because for each stock the 

stock size is currently unknown and 

potential biological removal (PBR) 

undetermined, and because there are 

documented cases of human-related 

mortality from a number of sources, 

each stock is a strategic stock. For the 

bay, sound, and estuarine stocks, 

human-caused mortality and serious 

injury for each of these stocks is not 

known, but considering the evidence 

from stranding data, the total fisheryrelated mortality and serious injury 

exceeds 10 percent of the total known 

PBR or previous PBR, and, therefore, it 

is probably not insignificant and 

approaching the zero mortality and 

serious injury rate. Because most of the 

stock sizes are currently unknown, but 

likely relatively few mortalities and 

serious injuries would exceed PBR, 

NMFS considers that each of these 

stocks is a strategic stock (NMFS, 2009). 

Prior to the 2007 Garrison survey and 

model predictions, the best estimates of 

Northern GOM Atlantic bottlenose 

dolphin abundance were 7 to 15 years 

old, occurred during different seasons, 

and each of the surveys suffered from 

differing degrees of negative bias in 

abundance estimates because all surveys 

assumed that all animals on the 

trackline were seen. Therefore, 

estimates based on those surveys would 

be highly uncertain. Based on data from 

the Protected Species Habitat Modeling 

in the EGTTR, the total estimate of 

abundance of bottlenose dolphins from 

the winter 2007 survey was 65,861 (95 

percent CI 36,699 to 118,200) and for 

the summer 2007 survey was 11,433 

animals (95 percent CI 7,346 to 17,793) 

(Garrison, 2008). For the summer and 

winter surveys, the highest density of 

bottlenose dolphins occurred in the 

northern inshore stratum. The summer 

survey overall abundance estimate for 

bottlenose dolphins was approximately 

50 percent lower than the winter survey 

(Garrison, 2008). Bottlenose dolphin 

stocks for the shelf edge and slope are 

not considered strategic. The PBR for 

shelf and slope stocks is 45 dolphins 

(Waring et al., 2001). The exact 

structure of these stocks is complex and 

continues to be revised as research is 

completed. 

The presence of fish in the stomachs 

of some individual offshore bottlenose 

dolphins suggest that they dive to 

depths of more than 500 m (1,640 ft). A 

tagged individual near Bermuda had 

maximum recorded dives of 600 to 700 

m (1,969 to 2,297 ft) and durations of 11 

to 12 minutes. Dive durations up to 15 

minutes have been recorded for trained 

individuals. Typical dives, however, are 

more shallow and of a much shorter 

duration. Data from a tagged individual 

off Bermuda indicated a possible diel 

dive cycle (i.e., a regular daily dive 

cycle) in search of mesopelagic (living at 

depths between 180 and 900 m [591 and 

2,953 ft]) prey in the deep scattering 

layer. 

In the EGTTR as a whole, there were 

a total of 281 groups of bottlenose 

dolphins during the winter survey and 

162 groups during the summer survey. 

According to the species-habitat model 

for bottlenose dolphins, densities were 

predicted to be highest in relatively 

shallow water, with an offshore peak in 

density between 40 to 60 m (131 to 

196.9 ft) depth and in waters ranging 

between 27.5 to 28.5 °C (81.5 to 83.3 °F) 

(Garrison, 2008). 

Bottlenose dolphin density estimates 

for the study area are derived from 

Protected Species Habitat Modeling in 

the EGTTR (Garrison, 2008). NMFS 

developed habitat models using new 

aerial survey line transect data collected 

during the winter and summer of 2007. 

The winter survey was conducted 

primarily during the month of February 

(water temperatures of 12 to 15 °C [53.6 

to 59 °F]) while the summer survey was 

primarily during July (water 

temperatures >26 °C [78.8 °F]). In 

combination with remotely sensed 

habitat parameters (sea surface 

temperature and chlorophyll), these 

data were used to develop spatial 

density models for bottlenose dolphins 

within the continental shelf and coastal 

waters of the eastern GOM. Encounter 

rates during the aerial surveys were 

corrected for sighting probabilities and 

the probability that animals were 

available to be seen on the surface. The 

models predict the absolute density of 

bottlenose dolphins within the EGTTR. 

Given that the survey area (EGTTR subarea 197, Figure 3–1 of Eglin AFB’s 

application) completely overlaps the 

NEODS mission area and that this data 

is currently the best available survey 

data, these models best reflect the 

occurrence of bottlenose dolphins 

within the EGTTR. Most, but not all, of 

the NEODS mission area is contained 

within EGTTR subarea 197 (see Figure 

3–1 of Eglin AFB’s application). The 

two westernmost test areas lie within 

subarea 197, but the easternmost one 

does not. Dolphin density is not 

available for the area directly east of 

subarea 197. However, the physical and 

biological parameters used to develop 

density estimates in this subarea likely 

do not differ significantly between the 

training areas. The density estimate for 

subarea 197 is therefore considered the 

best currently available and is applied 

to all locations of NEODS training 

operations. 

Table 3–1 of Eglin AFB’s application 

provides median and adjusted 

bottlenose dolphin densities in EGTTR 

sub-area 197. These absolute estimates 

of density (animals per square kilometer 

[km2] were produced by combining the 

spatial density model, sighting 

probability, and availability model 

(Garrison, 2008). All environmental 

terms were retained in the specieshabitat model for the winter survey and 

the summer survey with the exception 

of glare for the summer survey. The 

model fits for the winter and summer 

were highly significant, explained a 

significant portion of the variability in 

the data, and resulted in effective 

predictions of spatial distribution of 

bottlenose dolphins. 

NEODS missions may be executed at 

any time during the year. It is 

anticipated that approximately 60 

percent of missions will be executed 

during summer months, and 40 percent 

will be executed during winter months. 

Separate summer and winter density 

estimates are provided in Table 3–1 of 

Eglin AFB’s application. Months with 

high CV values (greater than 1) have 

high degrees of uncertainty in the model 

predictions. These months include May, 

June, September, October, and 

November where density was unknown. 

In order to compensate for the months 

without good estimates, interpolation 

was used between the available months 

by providing a means of estimating the 

function at intermediate points through 

presuming that there were linear 

seasonal trends. Interpolation assumes 

that the poorly estimated periods lie 

somewhere in the middle of the well 

estimated periods. Adjusted densities 

for each month were reached after 

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interpolation calculations (see Table 3– 

1 of Eglin AFB’s application). Based on 

the adjusted densities, January, March, 

and July have the highest bottlenose 

dolphin densities while the months 

from August through December months 

have the lowest densities. On average, 

there are 0.81 bottlenose dolphins/km2

throughout the year in EGTTR sub-area 

197. Seasonally there are on average 

0.84 dolphins/km2 during summer and 

0.78 dolphins/km2 during winter in subarea 197. NMFS has independently 

evaluated the foregoing approach for 

calculating the likely occurrence and 

density of bottlenose dolphins in the 

specified geographic area and 

determined that it yields the best 

scientific data available for purposes of 

determining the extent of impacts to 

affected stocks, the likely amount of 

incidental harassment, and informing 

the negligible impact determination. 

TABLE 3—(TABLE 3–1 OF THE APPLICATION) BOTTLENOSE DOLPHIN DENSITIES FOR EGTTR SUB-AREA 197 

Month 

Median 

density 

(individuals/ 

km2) 

CV Valid 

Adjusted 

density 

(individuals/ 

km2) a

November ................................................................................................ 0.00 31.62 0 0.51 

December ................................................................................................ 0.52 0.25 1 0.52 

January .................................................................................................... 1.24 0.22 1 1.24 

February ................................................................................................... 0.73 0.20 1 0.73 

March ....................................................................................................... 1.22 0.28 1 1.22 

April .......................................................................................................... 0.84 0.46 1 0.84

Average Winter Density .................................................................... .......................... .......................... .......................... 0.84 

May .......................................................................................................... 0.00 22.41 0 0.95 

June ......................................................................................................... 0.00 4.47 0 1.06 

July ........................................................................................................... 1.17 0.24 1 1.17

August ...................................................................................................... 0.48 0.22 1 0.48 

September ............................................................................................... 0.01 3.02 0 0.49 

October .................................................................................................... 0.00 20.43 0 0.50 

Average Summer Density ................................................................ .......................... .......................... .......................... 0.78 

Overall Average Density ........................................................... .......................... .......................... .......................... 0.81 

aAdjusted through interpolation. 

NMFS anticipates that no bottlenose 

dolphins will be injured, seriously 

injured, or killed during the NEODS 

training operations. The specific 

objective of the U.S. Air Force’s 

mitigation and monitoring plan is to 

ensure that no dolphins (or manatees) or 

other protected species are in the action 

area where they might be impacted by 

the explosive detonations. Because of 

the circumstances and the mitigation 

and monitoring requirements discussed 

in this document, NMFS believes it 

highly unlikely that the activities would 

result in injury (Level A harassment), 

serious injury, or mortality of bottlenose 

dolphins; however, they may 

temporarily avoid the area where the 

explosive demolitions will occur (after 

there has been at least one detonation). 

Eglin AFB has requested the incidental 

take of 10 bottlenose dolphin each year 

and approximately 50 animals during 

the five year duration of the action. 

Further information on the biology, 

habitat, and local distribution of these 

species and others in the region can be 

found in Eglin AFB’s application, which 

is available upon request (see 

ADDRESSES), and the NMFS Marine 

Mammal Stock Assessment Reports, 

which are available online at: http:// 

www.nmfs.noaa.gov/pr/species/. 

Comments and Responses 

On January 15, 2010, NMFS 

published a notice of receipt of 

application for a LOA in the Federal 

Register (75 FR 2490) and requested 

comments, information, and suggestions 

from the public for 30 days. NMFS 

received comments from the Marine 

Mammal Commission (Commission) 

and a private citizen. The private 

citizen’s comments opposed the 

issuance of an authorization without 

providing any specific rationale for that 

position. NMFS, therefore, cannot 

respond to this comment. NMFS’ 

responses to the Commission’s 

comments are addressed in the 

proposed rule (75 FR 60694, October 1, 

2010). On October 1, 2010, NMFS 

published a Notice of Proposed Rule (75 

FR 60694) on the U.S. Air Force’s 

request to take marine mammals 

incidental to NEODS training operations 

at Eglin AFB and requested, comments, 

information, and suggestions concerning 

the request. During the 30-day public 

comment period for the proposed rule, 

NMFS received comments from two 

private citizens and the Commission. 

The following are the comments and 

NMFS’ responses. 

Comment 1: A comment from a 

private citizen does not support giving 

this permit to Eglin AFB because marine 

mammals ‘‘deserve to live, not be 

bombed to death or have sonar cause 

brain hemorrhages so that they can’t 

navigate and die from blood 

hemorrhages.’’ 

Response: Eglin AFB and NMFS have 

evaluated the potential harm to marine 

mammals resulting from NEODS 

activities using the best currently 

available science. It is possible that 

bottlenose dolphins may be affected by 

underwater detonations. However, as 

discussed in the proposed rule, these 

effects will most likely be in the form of 

temporary behavioral disturbance, not 

injury or death. NMFS is requiring 

monitoring and mitigation measures to 

be implemented during all missions, 

and expects that these measures will 

significantly decrease the potential for 

impacts and reduce likely incidental 

harassment to a level that does not 

exceed negligible impact as defined by 

50 CFR 216.103. The hand-held sonar 

used during NEODS activities are not 

likely to affect marine mammals. Due to 

the location of the NEODS training 

operations and required pre-mission 

monitoring, it is highly unlikely that 

manatees will be affected. In addition, 

section 101(a)(5)(A) of the MMPA 

requires that the Secretary to issue the 

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requested authorization to the U.S. Air 

Force only if the Secretary determines 

that the NEODS training operations will 

result in a negligible impact on the 

affected species or stocks, and the 

authorization prescribes the permissible 

methods of taking, mitigation measures 

for effecting the least practicable 

adverse impact to species or stocks, and 

requirements for monitoring and 

reporting. 

Comment 2: A comment from a 

private citizen states that the proposed 

rule is an immediate threat to bottlenose 

dolphins and even manatees in the 

coastal waters surrounding Florida. The 

suggestion that Level B harassment to 

marine species is acceptable in order for 

Naval students to arm/disarm 

underwater mines is negligent and 

extreme, especially when our oceans are 

facing rapid change in temperature, 

over-fishing, and toxic waste. 

Moreover, the Sarasota Dolphin 

Research Agency states ‘‘evaluating the 

effects of * * * noise on marine 

mammals [in order to] expand 

understanding of * * * threats to 

bottlenose dolphins * * * observations 

made during * * * detonation * * * 

indicated that dolphins do exhibit 

behavioral responses’’ (Buckstaff and 

Ganon, 2010; http:// 

www.sarasotadolphin.org/Human/ 

ResponseConstruction.asp). Essentially, 

not enough research has been conducted 

on long term outcome of sound and 

noise on bottlenose dolphins (or other 

marine life), and blatant disregard for 

marine environments is an abuse of the 

Naval authority. 

The commenter challenges the rule in 

its entirety, and requests the U.S. Navy 

find other manners in which to test the 

student aptitude of arming/disarming 

underwater mines. Ordnance training 

can occur in simulated marine 

environments without posing needless 

harm to the animals and ecosystems of 

coastal waters. 

Response: The NEODS training 

operations are necessary to train U.S. 

Navy personnel to detect, recover, 

identify, evaluate, render safe, and 

dispose of unexploded ordnance that 

constitutes a threat to people, material, 

installations, ships, aircraft, and 

operations. Although most NEODS 

components of the training operations 

are conducted on land and in controlled 

environments, the training described in 

this application is carried out in realworld conditions in order to make the 

training as effective as reasonably 

possible. Simulated environments (e.g., 

pools) generally do not effectively 

represent open-ocean conditions. 

While better understanding the effects 

of underwater noise on marine species 

is an important goal, Eglin AFB and 

NMFS has evaluated the potential harm 

to marine mammals resulting from 

NEODS activities using the best 

currently available science. While 

bottlenose dolphins may be affected by 

underwater detonations, because of the 

infrequency and short duration of the 

detonations these impacts are expected 

to be minimal. Additionally, the U.S. 

Air Force and NMFS will require 

monitoring and mitigation measures to 

be implemented during all NEODS 

missions, and expects that these 

measures will result in the lowest 

practicable adverse impact on marine 

mammal species and stocks and reduce 

likely incidental harassment to a level 

that does not exceed a negligible impact 

as defined by 50 CFR 216.103. Due to 

the location of NEODS training 

operations and required pre-mission 

monitoring, it is highly unlikely that 

manatees will be affected. 

Comment 3: The Commission 

recommends that the NMFS require the 

U.S. Air Force to describe in detail the 

environmental parameters and 

procedures used to determine the safety 

zones and subsequent takes and 

incorporate these in the final rule. 

Response: Before issuing the final 

rule, NMFS required the U.S. Air Force 

to describe in detail the environmental 

parameters and procedures used to 

determine safety zones (i.e. ZOIs) and 

subsequent takes. Underwater noise 

propagation, and therefore the distance 

to which noise thresholds are estimated 

to extend, depends upon a number of 

environmental parameters. For 

estimating threshold distances in the 

U.S. Air Force’s MMPA application for 

NEODS training operations, Eglin AFB 

used a proprietary application 

developed by a contractor, Science 

Applications International Corporation. 

The application permits users to input 

data related to underwater explosions 

into an Excel spreadsheet, including net 

explosive weight, number of 

detonations, and the desired noise 

threshold metrics. The possible metrics 

include energy expressed as decibel 

levels (total energy and/or greatest 1/3 

octave band), peak pressure (psi), and 

positive impulse (psi-msec). The 

program output then displays the 

distance from source to which a 

particular threshold extends. Various 

threshold distances are provided 

according to depth of detonation, season 

(summer or winter), and province 

number. 

The Warning Areas most frequently 

used for military testing and training 

exercises in the Gulf of Mexico (W–155, 

W–151, and W–470) have been divided 

into 16 acoustic provinces derived from 

U.S. Navy oceanographic and 

environmental databases. Within a 

given province, water depth, sound 

speed, and sediment properties are 

similar, and therefore acoustic 

properties are expected to be similar. 

NEODS training operations will occur in 

W–151. The relevant oceanographic and 

environmental data was entered into the 

spreadsheet, and noise threshold 

distances corresponding to the 

appropriate depth, season, and province 

number were provided and used to 

populate Table 6–2 in Eglin AFB’s 

application. NMFS has included these 

environmental parameters and 

procedures used to determine the safety 

zones (i.e., ZOIs) and subsequent takes 

and incorporated these in the final rule. 

Comment 4: The Commission 

recommends that before issuing the 

final rule, NMFS require the U.S. Air 

Force to re-estimate the safety zones and 

associated takes based on the Level A 

harassment (injury) threshold of 13 psimsec and the Level B harassment (nonTTS) threshold of 177 dB re 1 mPa2-sec. 

Response: Before issuing the final 

rule, NMFS has required and Eglin AFB 

Natural Resources Section has reestimated the safety zones and 

associated incidental takes so that they 

include 13psi-msec (Level A 

harassment) and 177 dB re 1 mPa2-sec 

(Level B harassment) thresholds. 

Revisions were made in the application 

accordingly and are also reflected in 

NMFS’ take estimates and final rule, 

and will be in subsequent 

authorizations. The application is 

available online on the NMFS Incidental 

Take Authorization Web site at: http:// 

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

incidental.htm#iha. NMFS has relied on 

those revisions in establishing safety 

zones in the final rule. 

Comment 5: The Commission 

recommends that before issuing the 

final rule, NMFS provide additional 

justification for its preliminary 

determination that the mitigation and 

monitoring measures would be 

sufficient to detect, with a high level of 

confidence, all marine mammals within 

or entering the identified safety zones; 

this would include describing changes 

in detection probability under various 

sea state and weather conditions. If such 

information is not available, then NMFS 

and the U.S. Air Force should undertake 

the studies needed to verify that the 

proposed mitigation and monitoring 

measures are likely to detect all or 

nearly all marine mammals in or near 

the safety zones and, if necessary, 

develop alternative means of detecting 

marine mammals in or near those zones. 

As it has noted in past correspondence, 

the Commission would be pleased to 

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16726 Federal Register / Vol. 77, No. 56 / Thursday, March 22, 2012 / Rules and Regulations 

discuss with NMFS and the U.S. Air 

Force the collection and analysis of 

such data and the design of such 

experiments to promote a better 

understanding of the utility and 

shortcomings of visual monitoring as an 

effective mitigation measure. 

Response: The probability of sighting 

bottlenose dolphins within the 

monitoring zone is affected by animal 

behavior, observer effectiveness, and 

weather/Beaufort sea state and wind 

force. Species that occur in groups, 

exhibit conspicuous surface activity 

(e.g., leaping, splashing, and visible 

blows), and surface often are more likely 

to be observed than species for which 

one or more of these attributes is not 

applicable. Bottlenose dolphin behavior 

is considered conducive to effective 

observation. The typical group size of 2 

to 15 individuals (DON, 2007a; Wursig 

et al., 2000) is expected to occur in the 

area of NEODS training operations. 

Although dives of 10 to 15 minutes have 

been recorded for trained individuals, 

the typical dive time is 3 to 4 minutes 

(Wynne and Schwartz, 1999). 

Observation for dolphins will occur at 

least 30 minutes before detonations 

occur. Therefore, it is likely that at least 

one individual will be at the surface 

during the observation time frame. In 

addition, bottlenose dolphins are 

generally surface-active and, due to dive 

times, surface relatively frequently. 

Caretta et al. (2000) considered the 

likelihood of bottlenose dolphins being 

observed during surveys in the Pacific 

great enough that the possibility of 

missed individuals on the transect line 

was discounted. 

Eglin AFB will require the use of 

trained observers during NEODS 

training operations involving 

detonations. Due in part to the dolphin 

behavioral characteristics and mission 

requirements described above, it is 

expected that observers will have a high 

detection rate in acceptable weather 

conditions. A Beaufort sea state of less 

than 3 is considered optimal for 

cetacean observation (Davis et al., 2000), 

and mitigation measures stipulate that 

missions will be delayed if sea state is 

greater than 3. Detection probability 

generally decreases with distance from 

the observer. However NMFS expects 

that observation effectiveness will be 

acceptable within the specified range 

(880 m maximum or 2,887 ft). 

Specific information on the 

probability of observing bottlenose 

dolphins from a stationary platform in 

the nearshore GOM is not available. 

Various authors have generally 

addressed the issue of observation 

effectiveness during cetacean surveys. 

Two types of bias are often discussed in 

this context, including perception and 

availability bias. Perception bias refers 

to the failure of observers to detect 

animals, although they are present in 

the survey area and available to be seen. 

Availability bias refers to animals that 

are in the survey area, but are not able 

to be seen because they are submerged 

when observers are present. The 

probability of detecting bottlenose 

dolphins on a transect line during 

shipboard surveys has been estimated 

by various authors as between 62 and 

100 percent (DON, 2007b). These 

probabilities take into account 

perception and availability bias. 

However, these estimates are not 

necessarily applicable to NEODS 

operations because they represent 

results from survey efforts on moving 

vessels (NEODS observers will be 

stationary) and occur in different 

geographic locations. 

Comment 6: The Commission 

recommends that NMFS condition the 

final rule and any LOA issued under 

that rule to require suspension of the 

proposed activities if a marine mammal 

is seriously injured or killed and the 

injury or death could be associated with 

the proposed activities and, if 

supplementary measures are unlikely to 

reduce the risk of serious injury or death 

to a very low level, require the U.S. Air 

Force to suspend its activities until an 

authorization for such taking has been 

obtained. 

Response: Although Eglin AFB 

Natural Resources Section believes the 

required monitoring and mitigation 

measures will substantially reduce the 

potential for impacts to bottlenose 

dolphins, the U.S. Air Force is willing 

to require that NEODS activities be 

suspended if a marine mammal is 

seriously injured or killed and the 

injury or death can be associated by the 

U.S. Air Force with the NEODS 

operations. In addition, Eglin AFB 

agrees that, if supplementary measures 

are unlikely to reduce the risk of serious 

injury or death to a very low level, 

activities should be suspended until an 

authorization for such take has been 

obtained. This requirement has been 

added to the application under the 

Mitigation Procedures Plan and NMFS 

has included it as a requirement in the 

final rule. 

Comment 7: In exchanged emails, the 

Commission and NMFS noted 

discrepancies within both the 

application and NMFS’ proposed rule. 

In response, the U.S. Air Force made 

several clarifications and agreed to work 

with NMFS to correct the other 

discrepancies, including determining 

safety zones and estimated takes 

associated with Level B harassment 

(non-TTS) for multiple detonations. The 

Commission recommends that NMFS 

ensure that numerous discrepancies in 

the application and proposed rule are 

corrected in the final rule. 

Response: Eglin AFB has addressed 

all issues noted in the Commission’s 

comments submitted via email as well 

as those officially submitted during the 

public comment period for the proposed 

rule. NMFS has ensured that these 

discrepancies in the application and 

proposed rule are corrected in the final 

rule. 

Potential Effects of Specified Activities 

on Marine Mammals and Estimates of 

Take by Harassment 

In general, potential impacts to 

marine mammals from explosive 

detonations could include non-lethal 

injury (Level A harassment), serious 

injury, and mortality, as well as Level B 

harassment, which can consist of 

behavioral disturbance or temporary 

loss of hearing sensitivity. In the 

absence of monitoring and mitigation, 

marine mammals may be killed or 

injured as a result of an explosive 

detonation due to direct physiological 

effects such as the response of air 

cavities in the body, including the lungs 

and bubbles in the intestines. Effects are 

likely to be most severe in near surface 

waters where the reflected shock wave 

creates a region of negative pressure 

called ‘‘cavitation.’’ 

A second potential possible cause of 

mortality is the onset of extensive lung 

hemorrhage. Extensive lung hemorrhage 

is considered debilitating and 

potentially fatal. Suffocation caused by 

lung hemorrhage is likely to be the 

major cause of marine mammal death 

from underwater shock waves. The 

estimated range for the onset of 

extensive lung hemorrhage to marine 

mammals varies depending upon the 

animal’s weight, with the smallest 

mammals having the greatest potential 

hazard range. 

Marine mammals may potentially be 

harassed due to noise from NEODS 

mission involving underwater 

detonations. For example, exposing 

bottlenose dolphins to underwater noise 

from explosive detonations could result 

in disturbing important behavioral 

patterns. The potential numbers and 

species harassed by noise are assessed 

in this section. Three key sources of 

information are necessary for estimating 

potential noise effects on marine 

resources: (1) The number of distinct 

firing or test events; (2) the ZOI for noise 

exposure; and (3) the population density 

of animals that potentially occur within 

the ZOI. The ZOI reflects the geographic 

extent of the effects anticipated from the 

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Federal Register / Vol. 77, No. 56 / Thursday, March 22, 2012 / Rules and Regulations 16727 

action. The ‘‘test site’’ and ‘‘mission 

area’’ are both found within the ZOI. 

For the acoustic analysis, the 

exploding charge is characterized as a 

point source. The impact thresholds 

used for marine mammals relate to 

potential effects on hearing from 

underwater detonation noise. No ESAlisted marine mammals would be 

affected given the location of the action 

in nearshore waters. The only ESAlisted marine mammal likely to be 

found in the northeastern GOM, the 

Federal and state-listed endangered 

sperm whale (Physeter macrocephalus), 

occurs farther out on the continental 

slope in water generally deeper than 600 

m (1,968.5 ft). Manatees are not 

considered likely to occur in the 

mission areas (see Figure 1–1 of Eglin 

AFB’s application) and are therefore not 

considered in this analysis. 

For the explosives in question, actual 

detonation depths would occur at 60 ft 

near the sand bottom. The inert mines 

and sea floor may potentially interact 

with the propagation of noise into the 

water. However, effects on the 

propagation of noise into the water 

column cannot be determined without 

in-water noise monitoring at the time of 

detonation. Potential exposure of a 

sensitive species to detonation noise 

could theoretically occur at the surface 

or at any number of depths with 

differing consequences. A conservative 

acoustic analysis was selected to ensure 

the greatest direct path for the 

harassment ranges and to give the 

greatest impact range for the injury 

thresholds. 

Criteria and thresholds that are the 

basis of the analysis of NEODS noise 

impacts to cetaceans were initially used 

in U.S. Navy Environmental Impact 

Statements for ship shock trials of the 

Seawolf submarine and the Winston S. 

Churchill (Churchill) vessel (DON, 1998; 

DON, 2001) and adopted by NMFS 

(NMFS, 2001). Supplemental criteria 

and thresholds have been introduced in 

the EGTTR Programmatic 

Environmental Assessment (U.S. Air 

Force, 2002), subsequent EGTTR LOA 

(U.S. Air Force, 2003) permit request, 

Precision Strike Weapons (PSW) LOA 

(U.S. Air Force, 2004), and Naval 

Surface Warfare Center Panama City 

Division LOA (U.S. Navy, 2008). 

Standard impulsive and acoustic 

metrics were used to analyze 

underwater pressure waves in this 

document. 

• Energy flux density (EFD) is the 

time integral of the squared pressure 

divided by the impedance. EFD levels 

have units of dB re 1 mPa2·s. 

• 1/3-Octave EFD is the energy flux 

density in a 1/3-octave frequency band; 

the 1/3 octave selected is the hearing 

range at which the subject animals’ 

hearing is believed to be most sensitive. 

• Peak pressure is the maximum 

positive pressure for an arrival of a 

sound pressure wave that a marine 

mammal would receive at some distance 

away from a detonation. 

• Positive impulse represents a timeaveraged pressure disturbance from an 

explosive source with units in psimilliseconds (psi-msec). 

• Units used here are psi and dB 

levels. 

Level A harassment is non-lethal 

injury, the onset of which is estimated 

based on levels associated with eardrum 

rupture (i.e., tympanic-membrane [TM] 

rupture) and the onset of slight lung 

injury. The threshold for TM rupture 

corresponds to a 50 percent rate of 

rupture (i.e., 50 percent of animals 

exposed to the level are expected to 

suffer TM rupture); this threshold is 

stated in terms of an EFD value of 1.17 

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

mPa2·s EFD. Use of this value 

acknowledges that TM rupture is not 

necessarily a life-threatening injury, but 

is a useful index of possible injury that 

is well-correlated with measures of 

permanent hearing impairment. Ketten 

(1998) indicates a 30 percent incidence 

of permanent threshold shift (PTS) at 

the same threshold. The onset of slight 

lung injury is the second threshold 

considered indicative of non-lethal 

injury. A dolphin would be expected to 

recover from this type of injury. Slight 

lung injury is considered to occur at a 

positive impulse level of 13 psi-msec. 

At distances closer to the detonation, 

the pressure wave could cause extensive 

lung injury, leading to mortality. It is 

assumed that the range of extensive lung 

injury is less than that of slight injury; 

therefore, using the range of slight lung 

injury provides a more conservative take 

estimate. 

Public Law 108–136 (2004) amended 

the definition of Level B harassment 

under the MMPA for military readiness 

activities, such as this action (and also 

for scientific research on marine 

mammals conducted by or on the behalf 

of the Federal Government). For military 

readiness activities, Level B harassment 

is now defined as ‘‘any act that disturbs 

or is likely to disturb a marine mammal 

or marine mammal stock in the wild by 

causing disruption of natural behavioral 

patterns including, but not limited to, 

migration, surfacing, nursing, breeding, 

feeding, or sheltering to a point where 

such behavioral patterns are abandoned 

or significantly altered.’’ Unlike Level A 

harassment, which is solely associated 

with physiological effects, both 

physiological and behavioral effects 

may cause Level B harassment. 

The physiological effect associated 

with non-injurious Level B harassment 

is known as temporary threshold shift 

(TTS), which is defined as a temporary, 

recoverable loss of hearing sensitivity 

(NMFS, 2001; DON, 2001). Two criteria 

are considered indicative of the onset of 

peak pressure at 23 psi (peak). This 

threshold is derived from the 

Environmental Impact Statement for the 

(Churchill) shock testing and was 

subsequently adopted by NMFS in its 

final rule on the unintentional taking of 

marine mammals incidental to the 

shock testing (NMFS, 2001). The 

original criteria in Churchill 

incorporated 12 psi (peak). The current 

criteria and threshold for peak pressure 

over all exposures was updated from 12 

psi (peak) to 23 psi (peak) for explosives 

less than 907 kg (2,000 lb) based on an 

IHA issued to the U.S. Air Force for a 

similar action (NMFS, 2006a). See Table 

4 (below) for NMFS’ current criteria and 

thresholds for explosives. Peak pressure 

threshold are much greater than those 

for the energy metric when charge 

weights are small, even when source 

and animal are away from the surface. 

In order to more accurately estimate 

TTS for smaller detonations while 

preserving the safety feature provided 

by the peak pressure threshold, the peak 

pressure threshold is appropriately 

scaled for small shot detonations. This 

scaling is based on the similitude 

formulas (e.g., Urick, 1983) used in 

virtually all compliance documents for 

short ranges. Further, the peak-pressure 

threshold for TTS due to explosives 

offers a safety margin for source or 

animal near the ocean surface. The more 

conservative isopleth of the criteria for 

estimating TTS is used in take analysis. 

Behavioral reactions may occur at 

noise levels below those considered to 

cause TTS in marine mammals, 

particularly in cases where multiple 

detonations occur. Behavioral effects 

may include decreased ability to feed, 

communicate, migrate, or reproduce, 

among others. Such effects are known as 

sub-TTS Level B harassment. Although 

repetitive exposures (below TTS) to the 

same animals are considered unlikely 

due to the infrequent test events (no 

more than 5 detonations over a one or 

two day period), the potential variability 

in target locations, and the continuous 

movement of marine mammals in the 

northeastern GOM, the potential exists 

for a marine mammal to be impacted 

during multiple detonations. In this 

document, behavioral effects associated 

with such a scenario are considered to 

occur at an EFD level of 177 dB re 1 

mPa2·s EFD. The tables below provide a 

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16728 Federal Register / Vol. 77, No. 56 / Thursday, March 22, 2012 / Rules and Regulations 

summary of threshold criteria and metrics for potential noise impacts to 

sensitive species. 

TABLE 4—(TABLE 6–1 OF THE APPLICATION) NMFS’ THRESHOLD CRITERIA AND METRICS UTILIZED FOR IMPACT

ANALYSES FROM THE USE OF EXPLOSIVES

Mortality Level A harassment (non-lethal injury) Level B harassment (noninjurious; TTS and 

associated behavioral 

disruption [dual criteria]) 

Level B harassment 

(non-injurious behavioral, 

sub-TTS) 

31 psi-msec (onset of severe lung injury [mass of 

dolphin calf]).

205 dB re 1 μPa2·s EFD 

(50 percent of animals 

would experience TM 

rupture).

13 psi-msec positive pressure (onset of slight 

lung injury).

182 dB re 1 μPa2·s EFD*; 

23 psi peak pressure (< 

2,000 lb) 12 psi peak 

pressure (> 2,000 lb).

177 dB re 1 μPa2·sEFD* 

(for multiple detonations 

only). 

* Note: In greatest 1/3-octave band above 10 Hz or 100 Hz. 

Noise ZOIs were calculated for bottom 

detonation scenarios at 60 ft for both 

Level A harassment (i.e., injury) and 

Level B harassment (significant 

behavioral disturbance). To determine 

the number of potential ‘‘takes’’ or 

animals affected, cetacean population 

information from surveys was applied to 

the various ZOIs. The impact 

calculations for this section utilize 

marine mammal density estimates that 

have been derived from a Legacy-funded 

NMFS/Air Force project (Garrison, 

2008). The species density estimate data 

were adjusted to reflect the best 

available data and more realistic 

encounters of these animals in their 

natural environment (Garrison, 2008). 

These calculations and estimates are 

explained in detail in Section 3, and 

adjusted density estimates are provided 

in Table 3–1 of Eglin AFB’s application. 

Although mission schedules are variable 

and may occur during any time of year, 

60 percent (24 detonations) are expected 

to occur during summer and 40 percent 

(16 detonations) are expected to occur 

in winter. Therefore, seasonal bottlenose 

dolphin density estimates (0.78 

dolphins/km2) in summer and 0.84 

dolphins/km2 in winter) are used for 

take analysis. 

Table 6–2 of Eglin AFB’s application 

gives the estimated impact ranges for 

the two explosive weights. The test 

locations are one to three nmi south of 

SRI. NEODS detonations were modeled 

for bottom detonations at 60 ft. 

TABLE 5—(TABLE 6–2 OF THE APPLICATION) ZOI FOR UNDERWATER EXPLOSIONS

Ordnance NEW (lbs) Depth of 

explosion (m) 

Ranges for 

205 dB re 1 

μPa2·s EFDL 

(m) 

Ranges for 13 

psi-msec (m) 

Ranges for 

182 dB re 1 

μPa2·s EFDL 

(m) 

Ranges for 23 

psi (m) 

Ranges for 

177 dB re 1 

μPa2·s EFDL 

(m) 

Summer: 

NEODS MCM 2.3 

kg (5 lb) charge 5 18 52.1 156 227.5 222 520 

NEODS MCM 4.5 

kg (10 lb) charge 10 18 77 225 385 280 845 

Winter: 

NEODS MCM 5 lb 

charge ............... 5 18 52.2 156 229.8 222 529 

NEODS MCM 10 

lb charge ........... 10 18 77 226 389 280 880 

EFDL = Energy Flux Density Level. 

Applying the harassment ranges in 

Table 6–2 of the application to the 

species densities of Table 3–1 of the 

application, the number of animals 

potentially occurring within the ZOI 

was estimated. These results are 

presented in Tables 6–3, 6–4, and 6–5 

of the application. For Level A 

harassment calculations (Table 6–3 of 

the application), the ZOI corresponding 

to 13 psi-msec is used because this 

radius is in all cases greater than the 

radius corresponding to 205 dB re 1 

mPa2· s EFD. For Level B harassment 

calculations (Table 6–4 of the 

application), the ZOI corresponding to 

the 182 dB re 1 mPa2· s EFD metric is 

used because this radius is in all cases 

greater than the radius corresponding to 

23 psi (peak). A whole animal (and 

potential take) is defined as 0.5 or 

greater, where calculation totals result 

in fractions of an animal. Where less 

than 0.5 animals are affected, no take is 

assumed. The calculations in Tables 6– 

3 and 6–4 of the application are based 

on the expected tempo of: (1) 40 total 

detonations per year; (2) one-half of 

detonations are of 5 lb charges, and onehalf are of 10 lb charges; and (3) 60 

percent of detonations occur in summer, 

and 40 percent occur in winter. 

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Federal Register / Vol. 77, No. 56 / Thursday, March 22, 2012 / Rules and Regulations 16729 

TABLE 6—(TABLE 6–3 OF THE APPLICATION) MARINE MAMMAL DENSITIES AND RISK ESTIMATES FOR LEVEL A 

HARASSMENT (13 PSI-MSEC POSITIVE PRESSURE) 

Species Density 

(animals/km2) 

ZOI (km) Number of animals exposed to level A 

harassment 

5 lb charge 10 lb charge 5 lb charge 10 lb charge 

Summer: 

Bottlenose Dolphin .......................... 0.78 0.156 0.225 0.72 

(12 detonations) ..............

1.49 

(12 detonations). 

Winter: 

Bottlenose Dolphin ................................. 0.84 0.156 0.226 0.51 

(8 detonations) 

1.08 

(8 detonations). 

Total Number Animals Potentially Exposed To Level A Harassment Annually 3.80 

TABLE 7—(TABLE 6–4 OF THE APPLICATION) MARINE MAMMAL DENSITIES AND RISK ESTIMATES FOR LEVEL B 

HARASSMENT (182 DB RE 1 μPA2·S EFD 1/3 OCTAVE BAND) NOISE EXPOSURE

Species Density 

(animals/km2) 

ZOI (km) Number of animals exposed to Level B 

harassment (TTS) 

5 lb charge 10 lb charge 5 lb charge 10 lb charge 

Summer: 

Bottlenose Dolphin ............................ 0.78 0.2275 0.385 1.52 ...................................

(12 detonations) ................

4.36 

(12 detonations). 

Winter: 

Bottlenose Dolphin ............................ 0.84 0.2298 0.389 1.11 ...................................

(8 detonations) ..................

3.19 

(8 detonations). 

Total number animals potentially exposed to Level B harassment (TTS and 

behavioral) annually 

10.18 

TABLE 8—(TABLE 6–4 OF THE APPLICATION) MARINE MAMMAL DENSITIES AND RISK ESTIMATES FOR LEVEL B 

HARASSMENT (177 DB RE 1 μPA2·S EFD 1/3 OCTAVE BAND) NOISE EXPOSURE

Species Density 

(animals/km2) 

ZOI (km) Number of animals exposed to level B 

harassment (behavioral) 

5 lb charge 10 lb charge 5 lb charge 10 lb charge 

Summer: 

Bottlenose Dolphin .......................... 0.78 0.520 0.845 7.95 ..................................

(12 detonations) ..............

20.99 

(12 detonations). 

Winter: 

Bottlenose Dolphin .......................... 0.84 0.529 0.880 5.91 .................................. 16.35 

Total number animals potentially exposed to Level B harassment (sub-TTS and behavioral) annually 51.20 

The tables above indicate that the 

potential takes of marine mammals for 

non-injurious (Level B) harassment, as 

well as the onset of injury (Level A 

harassment) to cetaceans is possible but 

low, even without implementing any 

monitoring and mitigation measures. 

Slightly fewer than four bottlenose 

dolphins are estimated to be exposed 

annually to a positive pressure level 

corresponding to Level A harassment 

(13 psi-msec). Noise levels 

corresponding to Level B harassment 

(182 dB re 1 mPa2 · s EFD) would 

potentially affect approximately 10 

dolphins. Finally, approximately 50 

dolphins could be exposed to noise 

levels associated with sub-TTS 

behavioral harassment. None of the 

above impact estimates take into 

account the monitoring and mitigation 

measures that will be employed by the 

proponent to minimize potential 

impacts to protected species. These 

monitoring and mitigation measures are 

described in Eglin AFB’s application 

(see below) and are anticipated to 

substantially reduce the potential 

impacts to marine mammals. 

Based on the analyses and results 

provided here and in Section 6 of Eglin 

AFB’s application, approximately four 

Atlantic bottlenose dolphins could be 

exposed to pressure levels (13 psi-msec) 

corresponding to Level A harassment 

annually in the absence of monitoring 

and mitigation measures. 

Approximately 10 dolphins could be 

exposed to noise levels corresponding to 

Level B harassment (TTS and associated 

behavioral), while 50 individuals could 

be exposed to noise levels 

corresponding to Level B harassment. 

NMFS expects that monitoring and 

mitigation measures set forth in the final 

rule would substantially reduce the 

number of animals impacted. The 

individuals potentially affected could be 

part of the Northern GOM Coastal Stock 

and/or part of one or more of the 

Northern GOM bay, sound, and 

estuarine stocks. The Northern GOM 

coastal stock and all bay, sound, and 

estuarine stocks are considered 

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strategic. Although the NEODS training 

area lies outside the defined range of the 

bay, sound, and estuarine stocks, 

movement between such stocks has 

been documented in GOM coastal 

waters, as described in Waring et al. 

(2009). Movements have ranged from 

travel through adjacent communities to 

movement over several hundred kms off 

Texas, and may include seasonal 

movements into GOM waters. NEODS 

training operations will occur between 

the ranges of the Pensacola/East Bay and 

Choctawhatchee Bay Stocks, although 

individuals from other locations could 

potentially travel through the training 

areas as well. These stocks and their 

movements are not fully understood; 

therefore, it is possible that individuals 

from these stocks could be affected. PBR 

has not been determined for the coastal 

stock due to insufficient information. 

Similarly, PBR has not been determined 

for many of the bay, sound, and 

estuarine stocks, including the 

Pensacola/East Bay and Choctawhatchee 

Bay stocks. 

Based on the calculation methods 

discussed above, NMFS estimated take 

numbers per year of 10 individuals and 

50 individuals during the five-year rule 

for Atlantic bottlenose dolphins. The 

actual number of individual animals 

being exposed or taken may be less due 

to the U.S. Air Force’s implementation 

of monitoring and mitigation measures. 

Possible Effects of Activities on Marine 

Mammal Habitat 

The primary source of marine 

mammal habitat impact is noise 

resulting from live NEODS missions. 

However, the noise does not constitute 

a long-term physical alteration of the 

water column or bottom topography, as 

the occurrences are of limited duration 

and are intermittent in time. Surface 

vessels associated with the missions are 

present in limited duration and are 

intermittent as well. 

Other sources that may affect marine 

mammal habitat were considered and 

potentially include the introduction of 

fuel, debris, ordnance, and chemical 

residues in the water column. The 

effects of each of these components 

were considered in the NEODS BA and 

were determined to be unlikely to 

adversely affect protected marine 

species. Marine mammal habitat would 

not be affected, lost or modified. 

NMFS anticipates that the action will 

result in no impacts to marine mammal 

habitat beyond rendering the areas 

immediately around the NEODS 

training operations in the EGTTR less 

desirable shortly after each demolition 

event. The impacts will be localized and 

instantaneous. Impacts to marine 

mammal, invertebrate, and fish species 

are not expected to be detrimental. 

Mitigation 

In order to issue an Incidental Take 

Authorization under section 

101(a)(5)(A) and (D) of the MMPA, 

NMFS must set forth the permissible 

methods of taking pursuant to such 

activity, and other means of effecting 

the least practicable adverse impact on 

such species or stock and its habitat, 

paying particular attention to rookeries, 

mating grounds, and areas of similar 

significance, and on the availability of 

such species or stock for taking for 

certain subsistence uses. The NDAA of 

2004 amended the MMPA as it relates 

to military readiness activities and the 

incidental take authorization process 

such that ‘‘the least practicable adverse 

impact’’ includes consideration of 

personnel, safety, practicality of 

implementation, and the impact on the 

effectiveness of the ‘‘military readiness 

activity.’’ NEODS training involves 

military readiness activities. 

NEODS has employed a number of 

mitigation measures in an effort to 

substantially decrease the number of 

animals potentially affected. Eglin AFB 

is committed to assessing the mission 

activity for opportunities to provide 

operational mitigations while 

potentially sacrificing some mission 

flexibility. 

Mitigation consists of visual 

monitoring of the mission site that is 

required in order to decrease the 

likelihood of potential impacts to 

marine mammals and other protected 

species. Pre- and post-mission surveys 

using trained observers are required for 

each NEODS mission. Surveys will be 

conducted from surface vessels and 

possibly helicopters. Missions will only 

be conducted during daylight hours 

(i.e., an hour after sunrise and an hour 

before sunset). Depending on visibility, 

surface observation would be effective 

out to several kms. 

Trained observers onboard support 

boats would be staged from the highest 

point possible. The observer on the 

vessel will be familiar with marine life 

in the mission area and must be 

equipped with optical equipment with 

sufficient magnification (e.g., 

binoculars), which should allow the 

observer to sight and report surfacing 

marine mammals from a significant 

distance. The trained observer will have 

proper lines of communication to make 

recommendations to the Officer in 

Tactical Command so that he/she can 

then decide on whether or not the 

mission can proceed. 

Weather that supports the ability to 

sight marine life is required in order to 

mitigate the test site effectively (DON, 

1998). Wind, visibility, and surface 

conditions of the GOM are the most 

critical factors affecting mitigation 

operations. Higher winds typically 

increase wave height and create ‘‘white 

cap’’ conditions, limiting an observer’s 

ability to locate surfacing marine 

mammals. NEODS missions would be 

canceled or delayed if the sea state were 

greater than the Scale Number 3 

described on Table 9 (below) and in 

Eglin AFB’s application. 

TABLE 9—(TABLE 11–1 OF THE APPLICATION) BEAUFORT SEA STATE SCALE FOR MARINE MAMMAL OBSERVATION

Scale No. Sea conditions 

0 ................................................................. Flat calm, no waves or ripples. 

1 ................................................................. Small wavelets, few if any whitecaps. 

2 ................................................................. Whitecaps on 0 to 33 percent of surface; 0.3 to 0.6 m (1 to 2 ft) waves. 

3 ................................................................. Whitecaps on 33 to 50 percent of surface; 0.6 to 0.9 m (2 to 3 ft) waves. 

4 ................................................................. Whitecaps on greater than 50 percent of surface; greater than 0.9 m (3 ft) waves. 

During a typical mission in the GOM, 

visual surveys are conducted out to a 

distance from the detonation point 

corresponding to the largest impact ZOI, 

which would be the Level B sub-TTS 

behavioral harassment range. However, 

due to recent dolphin mortalities 

associated with EOD activities at the 

Silver Strand Training Complex (SSTC) 

off of San Diego, California, new survey 

protocols will be implemented. These 

protocols represent an agreement 

between the U.S. Navy and NMFS 

regarding the size of the visual survey 

areas for training activities using timedelay fuses. Such fuses are used so that 

U.S. Navy personnel can safely vacate 

the area before detonation occurs. The 

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U.S. Air Force will ensure that the U.S. 

Navy complies with the mitigation and 

monitoring protocols set forth herein 

this document, and future reference will 

be to the U.S. Navy, as the U.S. Navy 

carries out the NEODS training 

operations. 

Under the new protocol, the survey 

radius (distance from the detonation 

point) is increased so that marine 

mammals would not likely have time to 

swim into the affected area after the 

charge has been set and U.S. Navy 

divers have left the area. Once the 

system is armed and divers exit the 

water, they are typically not allowed 

back into the water to disarm the charge. 

Therefore, the distance that a dolphin 

could typically swim during the time 

delay is added to the survey distance. 

The typical swim speed for dolphin 

species is considered to be 5.6 km per 

hour (three knots), or approximately 

93.3 m (102 yards [yd]) per minute. 

Table 10 (Table 11–2 of the application) 

lists the distance a dolphin might travel 

at this swim speed during various time 

delays. In addition, NMFS requested 

that an additional 182.9 m (200 yd) 

buffer be added to this distance to 

account for dolphins possibly 

swimming faster than the average speed 

of three knots. This additional buffer is 

shown in the table below. 

TABLE 10—(TABLE 11–2 OF THE APPLICATION) POTENTIAL SWIM DISTANCE OF A DOLPHIN WITH AN ADDITIONAL 200 YD

BUFFER

Typical dolphin swim speed Time delay Distance traveled during 

time delay 

Distance traveled with 

additional 200 yd buffer 

3 knots (102 yd/minute) ................................................... 5 minutes ........................... 510 yd ................................ 710 yd. 

6 minutes ........................... 612 yd ................................ 812 yd. 

7 minutes ........................... 714 yd ................................ 914 yd. 

8 minutes ........................... 816 yd ................................ 1,016 yd. 

9 minutes ........................... 918 yd ................................ 1,118 yd. 

10 minutes ......................... 1,020 yd ............................. 1,220 yd. 

The total distance potentially traveled 

during the time delay, as listed in Table 

10, is then added to the range of the 

applicable NMFS injury criteria to 

determine the final survey radius. The 

more conservative (larger) of the ranges 

between the injury dual criteria is used, 

which for the document is the 13 psimsec threshold (see Table 5 above or 

Table 6–2 of the application). If marine 

mammals are not observed within the 

mitigation-monitoring zone before the 

charge is set, they would be unlikely to 

swim into the injury zone during the 

time-delay window. The adjusted 

survey radius for various time delays is 

Table 11 below (see Table 11–3 of the 

application). The injury criterion range 

and final survey distance are shown in 

meters in order to be consistent with 

U.S. Navy standards established for the 

SSTC. 

TABLE 11—(TABLE 11–3 OF THE APPLICATION) SURVEY RADIUS FOR TIME-DELAYED FIRING DEVICES

Charge 

weight (new) 

13 psi-msec 

range 

Survey radius for time delay, adjusted for swim distance and buffer 

5 minutes 6 minutes 7 minutes 8 minutes 9 minutes 10 minutes 

5 lb .................... 171 * yd ............ 881 yd .............. 983 yd .............. 1,085 yd ........... 1,187 yd ........... 1,289 yd ........... 1,391 yd. 

10 lb .................. 247 * yd ............ 957 yd .............. 1,059 yd ........... 1,161 yd ........... 1,263 yd ........... 1,365 yd ........... 1,467 yd. 

* Ranges from Table 5 are converted to yd. 

In order to provide a more practical 

implementation of mitigation measures, 

the U.S. Navy and NMFS agreed to 

round survey ranges to distances more 

easily delineated in the field. Therefore, 

to be consistent with the method used 

for missions at the U.S. Navy’s SSTC, 

the survey distances shown in Table 11 

are rounded to either 914.4 or 1,280.2 m 

(1,000 or 1,400 yd). A different number 

of survey vessels are required for each 

distance. The final rounded distances 

are shown in Table 12 (Table 11–4 of 

the application). 

TABLE 12—(TABLE 11–4 OF THE APPLICATION) FINAL ROUNDED SURVEY RADIUS FOR TIME-DELAYED FIRING DEVICES

Charge weight 

(new) 

Final rounded survey radius by time delay 

5 minutes 6 minutes 7 minutes 8 minutes 9 minutes 10 minutes 

5 lb .......................... 1,000 yd ................ 1,000 yd ................ 1,000 yd ................ 1,000 yd ................ 1,400 yd ................ 1,400 yd. 

10 lb ........................ 1,000 yd ................ 1,000 yd ................ 1,000 yd ................ 1,400 yd ................ 1,400 yd ................ 1,400 yd. 

The following visual monitoring 

requirements will be implemented for 

each NEODS mission. These 

requirements are based on the 

agreement between NMFS and the U.S. 

Navy for EOD activities conducted in 

water depths of 7.3 m (24 ft) or greater. 

• Underwater detonations using 

timed delay devices will only be 

conducted during daylight hours (i.e., 

an hour after sunrise and an hour before 

sunset). 

• Time delays longer than 10 minutes 

will not be used. Initiation of the timer 

device will not start until the 

mitigation-monitoring zone is clear of 

marine mammals for 30 minutes. 

• A mitigation-monitoring zone will 

be established around each underwater 

detonation location as indicated in 

Table 12 based on charge weight and 

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length of time-delay used. When 

conducting surveys within the 

mitigation-monitoring zone radius (but 

always outside the detonation plume 

radius/human safety zone) boats will 

travel in a circular pattern around the 

detonation point, surveying the inner 

(toward the detonation site) and outer 

(away from the detonation site) areas. 

For a survey radius of 1,000 yd, the boat 

will be positioned at 457.2 m (500 yd) 

from the detonation point. Similarly, for 

a survey radius of 1,400 yd, boats will 

be positioned at a distance of 640.1 m 

(700 yd). 

• For a survey radius of 1,000 yd, two 

boats are required. For a radius of 1,400 

yd, either three boats or two boats/one 

helicopter are required. 

• When using two boats, each boat 

will be positioned on opposite sides of 

the detonation location, separated by 

180 degrees. When using three boats, 

each boat will be separated by 120 

degrees (equidistant from each other). 

• Two observers in each boat will 

conduct continuous visual surveys of 

the mitigation-monitoring zone for the 

entire duration of the training event, 

including at least 30 minutes prior to 

detonation. Observers will search the 

mitigation-monitoring zone for the 

presence of marine mammals, and other 

marine species such as sea turtles, 

diving birds, large concentrations of fish 

or jellyfish, and large Sargassum mats. 

The presence of diving birds, fish, 

jellyfish, and Sargassum may indicate 

an increased likelihood of dolphin 

presence. 

• The mission would be postponed if 

large concentrations of fish, jellyfish, 

and/or large Sargassum rafts are 

observed within the mitigationmonitoring zone. The delay would 

continue until the fish, jellyfish, and/or 

large Sargassum rafts that caused the 

postponement are confirmed to be 

outside the mitigation-monitoring zone. 

• To the extent practicable, boats will 

maintain a 18.5 km per hour (10 knot or 

11.5 miles per hour) search speed. This 

search speed is expected to ensure 

adequate coverage of the buffer zone. 

While weather conditions and sea state 

may require slower speeds in some 

instances, 10 knots is considered a 

prudent, safe, and executable speed that 

will allow adequate surveillance. For a 

1,000-yd survey zone, a boat travelling 

at 10 knots and 500 yd from the 

detonation point would circle the point 

approximately 3.2 times during a 30- 

minute survey period. By using two 

boats, approximately 6.4 circles would 

be completed in total. Similarly, for a 

1,400 yd radius, each boat would circle 

the detonation point approximately 2.3 

times within 30 minutes, and use of 

three boats would result in 6.9 total 

circles. 

• If available, a U.S. Navy helicopter 

can be used in lieu of one of the survey 

boats, so long as safety of flight is not 

jeopardized. U.S. Navy helicopter pilots 

are trained to conduct searches for 

relatively small objects in the water, 

such as a missing persons. A helicopter 

search pattern is dictated by standard 

U.S. Navy protocols and accounts for 

multiple variables, such as size and 

shape of the search area, size of the 

object, and environmental conditions, 

among others. 

• The mitigation-monitoring zone 

will be surveyed for 30 minutes prior to 

detonation and continue for 30 minutes 

after detonation (concentrated on the 

area down current of the test site), in 

order to monitor for marine mammals 

and other protected species. It is the 

U.S. Navy’s intent to conduct five 

successive detonations with a maximum 

time of 20-minutes between 

detonations, although a variety of 

factors can cause a delay of longer than 

20 minutes, including a delay until the 

following day. Monitoring would 

continue during the 20 minute interval 

between detonations, and would serve 

as both post-detonation monitoring as 

well as pre-mission monitoring for the 

next detonation. If the time between 

detonations is delayed beyond 20 

minutes, post-mission monitoring will 

be conducted for 30 minutes. At the 

conclusion of the final detonation, postmonitoring will be conducted for 30 

minutes. 

• Other personnel besides designated 

observers shall also maintain situational 

awareness of the presence of marine 

mammals within the mitigationmonitoring zone to the extent 

practicable given dive safety 

considerations. 

• Divers placing the charges on mines 

will observe the immediate underwater 

area around the detonation site for 

marine mammals and other marine 

species such as diving birds, sea turtles, 

and Gulf sturgeon, and report sightings 

to surface observers. 

• If a marine mammal is sighted 

within an established mitigationmonitoring zone or moving towards it, 

underwater detonation events will be 

postponed or suspended until the 

marine mammal that caused the 

postponement/suspension of training 

operations has voluntarily left the area 

and the area is clear of marine mammals 

for at least 30 minutes. 

• If a marine mammal is detected 

within or about to enter an established 

mitigation-monitoring zone and 

subsequently cannot be reacquired, the 

mission will be postponed or suspended 

until the last verified location is outside 

the mitigation-monitoring zone, the 

animal is moving away from the area, 

and the area is clear of marine mammals 

for at least 30 minutes. 

• Any marine mammal observed after 

an underwater detonation either injured 

or exhibiting signs of distress will be 

reported to the Eglin AFB. Eglin AFB 

will coordinate with other members of 

marine mammal stranding networks, as 

appropriate, and report these events to 

NMFS or USFWS. The report will 

contain date and time of sighting, 

location, species description, and 

indications of the animal’s status (see 

section below for more information on 

reporting). 

NEODS training operations will be 

suspended and the U.S. Air Force will 

re-initiate consultation under the 

MMPA with NMFS’ Office of Protected 

Resources if (1) a marine mammal is 

killed or seriously injured and the 

injury or death could be associated with 

the NEODS training operations; and (2) 

implementing supplemental mitigation 

and monitoring measures is not likely to 

reduce the risk of serious injury or death 

to a very low level. The U.S. Air Force 

will suspend operations until the proper 

authorization for incidental take is 

obtained from NMFS. 

Monitoring and Reporting 

In order to issue an ITA for an 

activity, section 101(a)(5)(A) of the 

MMPA states that NMFS must set forth 

‘‘requirements pertaining to the 

monitoring and reporting of such 

taking.’’ The MMPA implementing 

regulations at 50 CFR 216.104(a)(13) 

indicate that requests for ITAs must 

include the suggested means of 

accomplishing the necessary monitoring 

and reporting that will result in 

increased knowledge of the species and 

of the level of taking or impacts on 

populations of marine mammals that are 

expected to be present. Any 

authorization issued pursuant to this 

final rule will require the U.S. Air Force 

to conduct mitigation monitoring before, 

during, and after completion of training 

exercises in accordance with the 

procedures discussed above. Methods 

for monitoring will include trained 

observers positioned on vessels. 

Monitors will be required to record and 

report specific data to NMFS in an 

annual monitoring report. 

Mitigation may include any 

supplemental activities that are 

designed and exercised to help reduce 

or eliminate the potential adverse 

impacts to the marine resources. The 

U.S. Air Force recognizes the 

importance of such ‘‘in-place’’ 

mitigations and is aware that NMFS 

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Federal Register / Vol. 77, No. 56 / Thursday, March 22, 2012 / Rules and Regulations 16733 

recommends an approved mitigation 

plan that outlines the scope and 

effectiveness of the action’s mitigations. 

The risk of harassment (Levels A and 

B) to marine mammals has been 

determined to be relatively small. Eglin 

AFB has determined that with the 

implementation and commitment to 

utilizing the ‘‘visual monitoring’’ 

mitigations, potential takes are greatly 

reduced. 

For NEODS testing, areas to be used 

in missions are visually monitored for 

marine mammal presence from a surface 

vessel prior to detonation of mine 

neutralization charges. Monitoring 

would be conducted before missions to 

clear marine mammals within the ZOI. 

If protected animals are inside the ZOI, 

firing would be postponed until they 

left the area. The following procedures 

will be conducted during the mission 

activities: 

• Conduct survey clearance 

procedures using best operational 

methods possible. 

• Clear ZOI and avoid all dolphins 

and protected species indicators (e.g., 

Sargassum rafts) to the maximum extent 

possible. 

• Re-conduct clearance procedures if 

dolphins or protected species indicators 

(e.g., Sargassum rafts) are encountered. 

• All observers must complete the 

Marine Observer Certification course 

annually. 

• Conduct post-mission observation 

and report operations data as required 

by Eglin’s Natural Resources Section, 96 

CEG/CEVSN. 

• Submit an annual summary 

(coordinated through 96 CEG/CEVSN) of 

mission observations to: 

National Marine Fisheries Service, 

Southeast Regional Office, Protected 

Resources Division, 9721 Executive 

Center Drive North, St. Petersburg, FL 

33702 

and 

National Marine Fisheries Service, 

Office of Protected Resources, 1315 

East West Highway, Silver Spring, MD 

20910. 

Information recorded will include 

species counts, numbers of observed 

disturbances, and descriptions of the 

disturbance behaviors before, during, 

and after explosive activities. 

Observations of unusual behaviors, 

numbers, or distributions of marine 

mammals in the activity area will be 

reported to NMFS and USFWS so that 

any potential follow-up observations 

can be conducted by the appropriate 

personnel. In addition, observations of 

tag-bearing marine mammals, sea 

turtles, and fish carcasses as well as any 

rare or unusual species of marine 

mammals and fish would be reported to 

NMFS and USFWS. 

Eglin AFB would notify NMFS and 

the Regional Office prior to initiating of 

each explosive demolition session. If at 

any time injury or death of any marine 

mammal occurs that may be a result of 

the NEODS activities, Eglin AFB would 

suspend activities and contact NMFS 

immediately to determine how best to 

proceed to ensure that another injury, 

serious injury, or death does not occur, 

and to ensure that the applicant remains 

in compliance with the MMPA. Any 

takes of marine mammals other than 

those authorized by the LOA, as well as 

any injuries or deaths of marine 

mammals, will be reported to the 

Southeast Regional Administrator, 

within 24 hours. An annual draft final 

report must be submitted to NMFS 

within 90 days after the conclusion of 

the NEODS activities. An annual report 

must be submitted at the time of 

renewal of the LOA as well. Also, a 

report must be submitted at least 180 

days prior to the expiration of these 

regulations. The report will include a 

summary of the activities undertaken 

and information gathered pursuant to 

the monitoring requirements set forth in 

the regulations and LOA, including 

dates and times of detonations as well 

as pre- and post-blasting monitoring 

observations. A final report must be 

submitted to the Regional Administrator 

within 30 days after receiving comments 

from NMFS on the draft final report. If 

no comments are received from NMFS, 

the draft final report would be 

considered to be the final report. 

In the unanticipated event that the 

specified activity clearly causes the take 

of a marine mammal in a manner 

prohibited by this rule, such as an 

injury, serious injury or mortality, Eglin 

AFB will immediately cease the 

specified activities and report the 

incident to the Chief of the Permits and 

Conservation Division, Office of 

Protected Resources, NMFS at (301) 

427–8401 and/or by email to 

Jolie.Harrison@noaa.gov and 

Howard.Goldstein@noaa.gov, and the 

NMFS Southeast Region Marine 

Mammal Stranding Network at (877) 

433–8299 (Blair.Mase@noaa.gov and 

Erin.Fougeres@noaa.gov) (Florida 

Marine Mammal Stranding Hotline at 

(888) 404–3922). The report must 

include the following information: 

• Time, date, and location (latitude/ 

longitude) of the incident; 

• Description of the incident; 

• Status of all noise-generating 

sources use in the 24 hours preceding 

the incident; 

• Water depth; 

• Environmental conditions (e.g., 

wind speed and direction, Beaufort sea 

state, cloud cover, and visibility); 

• Description of all marine mammal 

observations in the 24 hours preceding 

the incident; 

• Species identification or 

description of the animal(s) involved; 

• Fate of the animal(s); and 

• Photographs or video footage of the 

animal(s) (if equipment is available). 

Activities shall not resume until 

NMFS is able to review the 

circumstances of the prohibited take. 

NMFS shall work with Eglin AFB to 

determine what is necessary to 

minimize the likelihood of further 

prohibited take and ensure MMPA 

compliance. Eglin AFB may not resume 

their activities until notified by NMFS 

via letter or email, or telephone. 

In the event that Eglin AFB discovers 

an injured or dead marine mammal, and 

the lead observer determines that the 

cause of injury or death is unknown and 

the death is relatively recent (i.e., in less 

than a moderate state of decomposition 

as described in the next paragraph), 

Eglin AFB will immediately report the 

incident to the Chief of the Permits and 

Conservation Division, Office of 

Protected Resources, NMFS, at (301) 

427–8401, and/or by email to 

Jolie.Harrison@noaa.gov and 

Howard.Goldstein@noaa.gov, and the 

NMFS Southeast Region Marine 

Mammal Stranding Network ((877) 433– 

8299) and/or by email to the Southeast 

Regional Stranding Coordinator 

(Blair.Mase@noaa.gov) and Southeast 

Regional Stranding Program 

Administrator 

(Erin.Fougeres@noaa.gov). The report 

must include the same information 

identified in the paragraph above. 

Activities may continue while NMFS 

reviews the circumstances of the 

incident. NMFS will work with Eglin 

AFB to determine whether 

modifications in the activities are 

appropriate. 

In the event that Eglin AFB discovers 

an injured or dead marine mammal, and 

the lead observer determines that the 

injury or death is not associated with or 

related to the activities authorized in the 

final rule (e.g., previously wounded 

animal, carcass with moderate to 

advanced decomposition, or scavenger 

damage), Eglin AFB will report the 

incident to the Chief of the Permits and 

Conservation Division, Office of 

Protected Resources, NMFS, at (301) 

427–8401, and/or by email to 

Jolie.Harrison@noaa.gov and 

Howard.Goldstein@noaa.gov, and the 

NMFS Southeast Regional Marine 

Mammal Stranding Network ((877) 433– 

8299), and/or by email to the Southeast 

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16734 Federal Register / Vol. 77, No. 56 / Thursday, March 22, 2012 / Rules and Regulations 

Regional Stranding Coordinator 

(Blair.Mase@noaa.gov) and Southeast 

Regional Stranding Program 

Administrator 

(Erin.Fougeres@noaa.gov), within 24 

hours of discovery. Eglin AFB will 

provide photographs or video footage (if 

available) or other documentation of the 

stranded animals sighting to NMFS and 

the Marine Mammal Stranding Network. 

Encouraging and Coordinating 

Research 

Although Eglin AFB does not 

currently conduct independent Air 

Force monitoring efforts, Eglin’s Natural 

Resources Section does participate in 

marine animal tagging and monitoring 

programs lead by other agencies. 

Additionally, the Natural Resources 

Section supports participation in annual 

surveys of marine mammals in the GOM 

with NMFS. From 1999 to 2002, Eglin 

AFB’s Natural Resources Section, 

through a contract representative, 

participated in summer cetacean 

monitoring and research opportunities. 

The contractor participated in visual 

surveys in 1999 for cetaceans in the 

GOM, photographic identification of 

sperm whales in the northeastern GOM 

in 2001, and as a visual observer during 

the 2000 Sperm Whale Pilot Study and 

the 2002 sperm whale Satellite-tag (Stag) cruise. In addition, Eglin’s Natural 

Resources Section has obtained 

Department of Defense funding for two 

marine mammal habitat modeling 

projects. The latest such project 

(Garrison, 2008) included funding and 

extensive involvement of NMFS 

personnel so that the most recent aerial 

survey data could be utilized for habitat 

modeling and animal density estimates 

in the northeastern GOM. 

Eglin AFB conducts other research 

efforts that utilize marine mammal 

stranding information as a means of 

ascertaining the effectiveness of 

mitigation techniques. Stranding data is 

collected and maintained for the Florida 

panhandle and GOM-wide areas. This is 

undertaken through the establishment 

and maintenance of contacts with local, 

state, and regional stranding networks. 

Eglin AFB assists with stranding data 

collection by maintaining its own team 

of stranding personnel. In addition to 

simply collecting stranding data, 

various analyses are performed. 

Stranding events are tracked by year, 

season, and NMFS’ statistical zone, both 

GOM-wide and on the coastline in 

proximity to Eglin AFB. Stranding data 

is combined with records of EGTTR 

mission activity in each water range and 

analyzed for any possible correlation. In 

addition to being used as a measure of 

the effectiveness of mission mitigations, 

stranding data can yield insight into the 

species composition of cetaceans in the 

region. 

Negligible Impact Determination 

As explained, NMFS will only issue 

an authorization to incidentally take 

marine mammals pursuant to section 

101(a)(5)(A) of the MMPA if, based on 

review of the best scientific information 

available and consideration of 

applicable mitigation and their likely 

effectiveness, it determines that the total 

taking authorized over the five-year 

period will have a negligible impact on 

affected species or stocks of marine 

mammals. NMFS implementing 

regulations codified at 50 CFR 216.103 

state that ‘‘negligible impact is an 

impact resulting from the specified 

activity that cannot be reasonably 

expected to, and is not reasonably likely 

to, adversely affect the species or stock 

through effects on annual rates of 

recruitment or survival.’’ 

In making a negligible impact 

determination NMFS evaluated factors 

such as: 

(1) The number of anticipated 

injuries, serious injuries, or mortalities; 

(2) The number, nature, intensity, and 

duration of Level B harassment (all 

relatively limited); 

(3) The context in which the takes 

occur (i.e., impacts to areas of 

significance, impacts to local 

populations, and cumulative impacts 

when taking into account successive 

contemporaneous actions when added 

to baseline data); 

(4) The status of stock or species of 

marine mammal (i.e., depleted, not 

depleted, decreasing, increasing, stable, 

and impact relative to the size of the 

population); 

(5) Impacts on habitat affecting rates 

of recruitment or survival; and 

(6) The effectiveness of monitoring 

and mitigation measures (i.e., the 

manner and degree in which the 

measure is likely to reduce adverse 

impacts to marine mammals, the likely 

effectiveness of the measures, and the 

practicability of implementation). 

Tables 2, 3, 6, 7, and 8 in this 

document disclose the habitat, regional 

abundance, conservation status, density, 

and the number of individuals exposed 

to sound levels considered the threshold 

for Level A and B harassment. Also, 

there are no known important 

reproductive or feeding areas in the 

action area. 

For reasons stated previously in this 

document, and in the proposed rule (76 

FR 60694, October 1, 2010), the 

specified activities associated with the 

NEODS training operations are not 

likely to cause PTS or other nonauditory injury, serious injury, or death 

to affected marine mammals. As a 

result, no take by injury, serious injury, 

or death is anticipated or authorized, 

and the potential for temporary or 

permanent hearing impairment is very 

low and will be minimized through the 

incorporation of the monitoring and 

mitigation measures. 

Approximately 50 Atlantic bottlenose 

dolphins are anticipated to incur 

hearing impairment (TTS). While some 

other species of marine mammals (none 

of which are ESA-listed) occur in the 

project area year-round, only Atlantic 

bottlenose dolphins are anticipated to 

be potentially impacted by the NEODS 

operations. Due to the nature, degree, 

and context of the Level B harassment 

anticipated, the activity is not expected 

to impact rates of recruitment or 

survival. 

Many animals perform vital functions, 

such as feeding, resting, traveling, and 

socializing, on a diel cycle (24-hr cycle). 

Behavioral reactions to noise exposure 

(such as disruption of critical life 

functions, displacement, or avoidance of 

important habitat) are more likely to be 

significant if they last more than one 

diel cycle or recur on subsequent days 

(Southall et al., 2007). Consequently, a 

behavioral response lasting less than 

one day and not recurring on 

subsequent days is not considered 

particularly severe unless it could 

directly affect reproduction or survival 

(Southall et al., 2007). NEODS 

operations would occur up to eight 

times annually, at varying times within 

the year, and include two ‘‘live 

demolition’’ days. Therefore, the U.S. 

Air Force’s NEODS operations will not 

be creating increased sound levels in the 

marine environment for prolonged 

periods of time. 

The population estimates for the 

species that may be taken by harassment 

from the most recent U.S. Gulf of 

Mexico Stock Assessment Reports and 

Protected Species Habitat Modeling in 

the EGTTR were provided earlier in this 

document. From the most conservative 

estimates of both marine mammal 

densities in the action area and the size 

of the harassment thresholds, the 

maximum calculated number of 

individual Atlantic bottlenose dolphins 

that could potentially be harassed 

annually and over the five-year rule is 

6 (summer) and 4 (winter) (10 total 

annually), which numbers amount to 

0.05 percent (summer) and less than 

0.01 percent (winter) of the total 

estimated population size. 

Based on the analysis contained 

herein, of the likely effects of the 

specified activity on marine mammals 

and their habitat, and taking into 

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Federal Register / Vol. 77, No. 56 / Thursday, March 22, 2012 / Rules and Regulations 16735 

consideration the implementation of the 

mitigation and monitoring measures, 

NMFS has determined that NEODS 

operations by the U.S. Air Force will 

result in the incidental take of marine 

mammals, by Level B harassment only, 

and that the total taking from the 

NEODS training operations over the 

five-year period covered by the 

regulations would have a negligible 

impact on the affected species or stocks 

of marine mammals. 

Impact on Availability of Affected 

Species for Taking for Subsistence Uses 

Section 101(a)(5)(A) of the MMPA 

also requires NMFS to determine that 

the total of such taking authorized will 

not have an unmitigable adverse effect 

on the availability of marine mammal 

species or stocks for taking for 

subsistence uses. There is no 

subsistence hunting for marine 

mammals in the waters off of the coast 

of Florida that implicates section 

101(a)(5)(A) of the MMPA. 

Endangered Species Act (ESA) 

For the reasons already described in 

this preamble, NMFS has determined 

that the described NEODS training 

operations and the accompanying LOA 

are not likely to affect marine mammal 

species managed under NMFS 

jurisdiction and protected by the ESA. 

The U.S. Air Force requested an 

informal section 7 consultation with 

NMFS SERO on May 9, 2010 and NMFS 

SERO concurred that the action may 

affect, but is not likely to adversely 

affect, ESA-listed species or designated 

critical habitat in a letter to the U.S. Air 

Force dated July 28, 2010. 

National Environmental Policy Act 

(NEPA) 

NMFS has conducted the necessary 

NEPA analysis and has prepared an 

‘‘Environmental Assessment on the 

Promulgation of Regulations and the 

Issuance of a Letter of Authorization to 

Take Marine Mammals, by Harassment, 

Incidental to Naval Explosive Ordnance 

Disposal School Training Operations at 

Eglin Air Force Base, Florida,’’ which 

analyzes the project’s purpose and need, 

alternatives, affected environment, and 

environmental effects for the action 

prior to making a determination on the 

final rule. Based on the analysis in the 

EA and the underlying information in 

the record, including the application, 

proposed rule, public comments and 

informal section 7 consultation, NMFS 

has prepared and issued a Finding of No 

Significant Impact determining that 

preparation of an Environmental Impact 

Statement is not required. 

Determinations 

Based on Eglin AFB’s application, as 

well as the analysis contained herein, 

NMFS has determined that the impact 

of the described NEODS training 

operations will result, at most, in a 

temporary modification in behavior 

(Level B harassment) of Atlantic 

bottlenose dolphins, which are expected 

to temporarily vacate the action area to 

avoid NEODS training activities. The 

activities may also result in minor 

visual and acoustic disturbances from 

detonations. The effect of the NEODS 

training operations is expected to be 

limited to non-TTS behavioral 

disturbance and short-term and 

localized TTS-related behavioral 

changes. 

Due to the infrequency, short timeframe, and localized nature of these 

activities, NMFS only expects and has 

thus authorized the incidental take of 

up to 50 Atlantic bottlenose dolphins. In 

addition, no take by injury, serious 

injury, or death is anticipated, and take 

by Level B harassment will be at the 

lowest level practicable due to 

incorporation of the monitoring and 

mitigation measures mentioned 

previously in this document. No injury 

(Level A harassment), serious injury, or 

mortality is expected or authorized for 

marine mammals, and take by 

harassment will be at the lowest level 

practicable due to incorporation of the 

monitoring and mitigation measures 

mentioned previously in this document. 

Further, NMFS has determined that the 

anticipated takes incidental to this 

activity are expected to result in a 

negligible impact on the affected species 

or stocks of marine mammals. The 

provision requiring that the activity not 

have an unmitigable adverse impact on 

the availability of the affected species or 

stock for subsistence uses does not 

apply to this action as there are no 

subsistence users within the specified 

geographic area of the project. 

Classification 

For purposes of Executive Order 

12866, the Office of Management and 

Budget has determined that this rule 

stage is not significant. 

Pursuant to section 605(b) of the 

Regulatory Flexibility Act, the Chief 

Counsel for Regulation of the 

Department of Commerce has certified 

to the Chief of Counsel for Advocacy of 

the Small Business Administration that 

this final rule would not have a 

significant economic impact on a 

substantial number of small entities. 

The factual basis for the certification 

was published in the proposed rule and 

is not repeated here. No comments were 

received regarding this certification. 

Accordingly, no regulatory flexibility 

analysis is required, and none has been 

prepared. 

Authorization 

As a result of these determinations, 

NMFS is issuing five-year regulations 

establishing a framework for the 

issuance of LOAs to Eglin AFB for the 

take of Atlantic bottlenose dolphins by 

Level B harassment incidental to 

NEODS training operations, provided 

the previously mentioned mitigation, 

monitoring, and reporting requirements 

are incorporated. 

Changes From the Proposed Rule 

In addition to minor edits to the rule 

for clarification, NMFS has made the 

following changes to the rule: 

• Revised dates; 

• Revised safety zones based on the 

weight of the charge; 

• Revised analysis of takes based on 

the Level A harassment (injury) 

threshold of 13 psi-msec and the Level 

B harassment (non-TTS) threshold of 

177 dB re 1 mPa2-sec; 

• Revised monitoring and mitigation 

measures to increase the probability of 

detecting all marine mammals within or 

entering the identified safety zones 

under various Beaufort sea state and 

weather conditions; 

• Revised monitoring and mitigation 

measures to reduce the potential for 

lethal take of bottlenose dolphins, as 

occurred in similar explosive training 

operations at the U.S. Navy’s Silver 

Strand Training Complex near San 

Diego, California; and 

• Require suspension of the NEODS 

training operations if a marine mammal 

is seriously injured or killed and the 

injury or death could be associated with 

the Eglin AFB activities and, if 

supplementary measures are unlikely to 

reduce the risk of serious injury or death 

to a very low level, require the U.S. Air 

Force to suspend its activities until an 

authorization for such taking has been 

obtained. 

List of Subjects in 50 CFR Part 217 

Exports, Fish, Imports, Indians, 

Labeling, Marine mammals, Penalties, 

Reporting and recordkeeping 

requirements, Seafood, Transportation. 

Dated: March 14, 2012. 

Alan D. Risenhoover, 

Acting Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

For reasons set forth in the preamble, 

50 CFR part 217 is amended as follows: 

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16736 Federal Register / Vol. 77, No. 56 / Thursday, March 22, 2012 / Rules and Regulations 

PART 217—REGULATIONS 

GOVERNING THE TAKE OF MARINE 

MAMMALS INCIDENTAL TO 

SPECIFIED ACTIVITIES 

■ 1. The authority citation for part 217 

continues to read as follows: 

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

■ 2. Subpart I is added to part 217 to 

read as follows: 

Subpart I—Taking of Marine Mammals 

Incidental to Naval Explosive Ordnance 

Disposal School Training Operations 

Sec. 

217.80 Specified activity and specified 

geographical region. 

217.81 Effective dates. 

217.82 Permissible methods of taking. 

217.83 Prohibitions. 

217.84 Mitigation. 

217.85 Requirements for monitoring and 

reporting. 

217.86 Applications for Letters of 

Authorization. 

217.87 Letters of Authorization. 

217.88 Renewal and review of Letters of 

Authorization and adaptive 

management. 

217.89 Modifications of Letters of 

Authorization. 

Subpart I—Taking of Marine Mammals 

Incidental to Naval Explosive 

Ordnance Disposal School (NEODS) 

Training Operations 

§ 217.80 Specified activity and specified 

geographical region. 

(a) Regulations in this subpart apply 

only to the incidental taking of those 

marine mammals specified in paragraph 

(b) of this section by the United States 

Air Force, Headquarters 96th Air Base 

Wing, Eglin Air Force Base, and those 

persons who engage in activities 

described in paragraphs (a)(1) through 

(7) of this section and the area set forth 

in paragraph (b) of this section. 

(1) NEODS missions involving 

underwater detonations of small, live 

explosive charges adjacent to inert 

mines in order to disable the mine 

function, 

(2) Live training events occurring 

eight times annually, averaging one 

event occurring every 6 to 7 weeks, 

(3) Four of the training events 

involving 5-lb charges, and four events 

involving 10-lb charges, 

(4) Up to 20 5-lb detonations and 

twenty 10-lb detonations annually, for a 

total of 40 detonations, 

(5) The five charges occurring for each 

training event shall be detonated 

individually with a maximum 

separation time of 20 minutes between 

each detonation, 

(6) Mine shapes and debris shall be 

recovered and removed from the Gulf of 

Mexico waters when training is 

completed, and 

(7) Each training team has two days to 

complete their entire evolution (i.e., 

detonation of five charges). If operations 

cannot be completed on the first live 

demolition day, the second live 

demolition day shall be utilized to 

complete the evolution. 

(b) The incidental take of marine 

mammals at Eglin Air Force Base, 

within the Eglin Military Complex, 

including three sites in the Eglin Gulf 

Test and Training Range at property off 

Santa Rosa Island, Florida, in the 

northern Gulf of Mexico, under the 

activity identified in paragraph (a) of 

this section, is limited to the following 

species: Atlantic bottlenose dolphins 

(Tursiops truncatus). 

(1) The latitude/longitude of corners 

of W–151 in the Eglin Gulf Test and 

Training Range are: 

(i) 30.24006° North, ¥86.808838° 

West 

(ii) 29.539011° North, ¥84.995536° 

West 

(iii) 28.03949° North, ¥85.000147° 

West 

(iv) 28.027598° North, ¥85.199395° 

West 

(v) 28.505304° North, ¥86.799043° 

West 

(2) The latitude/longitude of corners 

of W–151A in the Eglin Gulf Test and 

Training Range are: 

(i) 30.24006° North, ¥86.808838° 

West 

(ii) 30.07499° North, ¥85.999327° 

West 

(iii) 29.179968° North, ¥85.996341° 

West 

(iv) 29.384439° North, ¥86.802579° 

West 

§ 217.81 Effective dates. 

Regulations in this subpart are 

effective from April 23, 2012, through 

April 24, 2017. 

§ 217.82 Permissible methods of taking. 

(a) Under Letters of Authorization 

issued pursuant to § 216.106 of this 

chapter and § 217.87, the U.S. 

Department of the Air Force, 

Headquarters 96th Air Base Wing, Eglin 

Air Force Base (U.S. Air Force), its 

contractors, and clients, may 

incidentally, but not intentionally, take 

marine mammals by Level B 

harassment, within the area described in 

§ 217.80, provided the activity is in 

compliance with all terms, conditions, 

and requirements of these regulations 

and the appropriate Letter of 

Authorization. 

(b) The incidental taking of marine 

mammals is authorized for the species 

listed in § 217.80(b) and is limited to 

Level B harassment. 

(c) The incidental taking of an average 

of 10 individuals annually and 50 

individuals during the 5-year rule, for 

Atlantic bottlenose dolphins. 

(d) The U.S. Air Force shall suspend 

NEODS training operations until it 

obtains additional authorization for the 

take of marine mammals if: 

(1) A marine mammal is injured, 

seriously injured, or killed during 

training operations; 

(2) The injury, serious injury, or death 

could be associated with the activities; 

and 

(3) After coordination and 

concurrence with NMFS, the U.S. Air 

Force determines that supplementary 

measures are unlikely to reduce the risk 

of injury, serious injury or death to a 

very low level, require the U.S. Air 

Force to suspend its activities until an 

authorization for such taking has been 

obtained. 

§ 217.83 Prohibitions. 

Notwithstanding takings 

contemplated in § 217.80 and 

authorized by a Letter of Authorization 

issued under §§ 216.106 of this chapter 

and 217.87, no person in connection 

with the activities described in § 217.80 

may: 

(a) Take any marine mammal not 

specified in § 217.80(b); 

(b) Take any marine mammal 

specified in § 217.80(b) other than by 

incidental take as specified in 

§ 217.82(a) through (d); 

(c) Take a marine mammal specified 

in § 217.80(b) if such taking results in 

more than a negligible impact on the 

species or stocks of such marine 

mammal; or 

(d) Violate, or fail to comply with, the 

terms, conditions, and requirements of 

this subpart or a Letter of Authorization 

issued under §§ 216.106 of this chapter 

and 217.87. 

§ 217.84 Mitigation. 

(a) The activity identified in 

§ 217.80(a) must be conducted in a 

manner that minimizes, to the greatest 

extent practicable, adverse impacts on 

marine mammals and their habitats. 

When conducting operations identified 

in § 217.80(a), the mitigation measures 

contained in the Letter of Authorization 

issued under §§ 216.106 of this chapter 

and 217.87 must be implemented. These 

mitigation measures include (but are not 

limited to): 

(1) Underwater detonations using 

timed delay devices will only be 

conducted during daylight hours. The 

time of detonation shall be limited to an 

hour after sunrise and an hour before 

sunset. 

(2) NEODS missions shall be 

postponed if: 

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(i) The Beaufort sea state is greater 

than scale number three. Such a delay 

would maximize detection of marine 

mammals. 

(ii) Large concentrations of fish, 

jellyfish, and/or large Sargassum rafts 

are observed within the mitigationmonitoring zone. The delay would 

continue until the fish, jellyfish, and/or 

Sargassum rafts that cause the 

postponement are confirmed to be 

outside the mitigation-monitoring zone. 

(3) Time delays longer than 10 

minutes will not be used. Initiation of 

the timer device will not start until the 

mitigation-monitoring zone is clear of 

marine mammals for 30 minutes. 

(4) A calculated mitigationmonitoring zone will be established 

around each underwater detonation 

location based on charge weight and 

length of time-delay used. When 

conducting surveys within the 

mitigation-monitoring zone radius (but 

always outside the detonation plume 

radius/human safety zone) and travel in 

a circular pattern around the detonation 

point, surveying the inner (toward the 

detonation site) and outer (away from 

the detonation site) areas. For a survey 

radius of 914.4 meters, the boat will be 

positioned at 457.2 meters from the 

detonation point. Similarly, for a survey 

radius of 1,280.2 meters, boats will be 

positioned at 640.1 meter distance. 

(5) For a survey radius of 914.4 

meters, two boats are required. For a 

radius of 1,280.2 meters, either three 

boats or two boats/one helicopter are 

required. 

(6) When using two boats, each boat 

will be positioned on opposite sides of 

the detonation location, separated by 

180 degrees. When using three boats, 

each boat will be separated by 120 

degrees (equidistant from each other). 

(7) Two observers in each boat will 

conduct continuous visual surveys of 

the mitigation-monitoring zone for the 

entire duration of the training event, 

including at least 30 minutes prior to 

detonation. Observers will search the 

mitigation-monitoring zone for the 

presence of marine mammals, and other 

marine species such as sea turtles, 

diving birds, large concentrations of fish 

or jellyfish, and large Sargassum mats. 

The presence of diving birds, fish, 

jellyfish, and Sargassum may indicate 

an increased likelihood of dolphin 

presence. 

(8) To the extent practicable, boats 

will maintain 18.5 kilometer per hour 

search speed. This search speed is 

expected to ensure adequate coverage of 

the buffer zone. While weather 

conditions and sea state may require 

slower speeds in some instances, 18.5 

kilometers per hour is considered a 

prudent, safe, and executable speed that 

will allow adequate surveillance. For a 

914.4 meter survey zone, a boat 

traveling at 18.5 kilometers per hour 

and 457.2 meters from the detonation 

point would circle the point 

approximately 3.2 times during a 30 

minute survey period. By using two 

boats, approximately 6.4 circles would 

be completed in total. Similarly, for a 

1,280.2 meter radius, each boat would 

circle the detonation point 

approximately 2.3 times within 30 

minutes, and use of three boats would 

result in 6.9 total circles. 

(9) If available, a U.S. Navy helicopter 

can be used in lieu of one of the survey 

boats, so long as safety of flight is not 

jeopardized. U.S. Navy helicopter pilots 

are trained to conduct searches for 

relatively small objects in the water, 

such as a missing person. A helicopter 

search pattern is dictated by standard 

U.S. Navy protocols and accounts for 

multiple variables, such as size and 

shape of the search area, size of the 

object, and environmental conditions, 

among others. 

(10) The mitigation-monitoring zone 

will be surveyed for 30 minutes prior to 

detonation and continue for 30 minutes 

after detonation (concentrated on the 

area down current of the test site), in 

order to monitor for marine mammals 

and other protected species. It is the 

U.S. Air Force’s (on behalf of the U.S. 

Navy) intent to conduct five successive 

detonations with a maximum time of 20 

minutes between detonations, although 

a variety of factors can cause a delay of 

longer than 20 minutes between 

detonations, although a variety of 

factors can cause a delay of longer than 

20 minutes, including a delay until the 

following day. Monitoring would 

continue during the 20 minutes time 

between detonations, and would serve 

as both post-detonation monitoring as 

well as pre-mission monitoring for the 

next detonation. If the time between 

detonations is delayed beyond 20 

minutes, post-mission monitoring will 

be conducted for 30 minutes. At the 

conclusion of the final detonation, postmonitoring will be conducted for 30 

minutes. 

(11) Other personnel besides 

designated observers shall also maintain 

situational awareness of the presence of 

marine mammals within the mitigationmonitoring zone to the extent 

practicable given dive safety 

considerations. 

(12) Divers placing the charges on 

mines will observe the immediate 

underwater area around the detonation 

site for marine mammals and other 

marine species such as diving birds, sea 

turtles, and Gulf sturgeon, and report 

sightings to surface observers. 

(13) If a marine mammal is sighted 

within an established mitigationmonitoring zone or moving towards it, 

underwater detonation events will be 

postponed or suspended until the 

marine mammal that caused the 

postponement/suspension of training 

operations has voluntarily left the area 

and the area is clear of marine mammals 

for at least 30 minutes. 

(14) If a marine mammal is detected 

within or about to enter an established 

mitigation-monitoring zone and 

subsequently cannot be reacquired, the 

mission will be postponed or suspended 

until the last verified location is outside 

the mitigation-monitoring zone, the 

animals is moving away from the area, 

and the area is clear of marine mammals 

for at least 30 minutes. 

(15) Any marine mammal observed 

after an underwater detonation either 

injured or exhibiting signs of distress 

will be reported to Eglin Air Force Base. 

Eglin Air Force Base will coordinate 

with other members of marine mammal 

stranding networks, as appropriate, and 

report these events to NMFS or U.S. 

Fish and Wildlife Service. The report 

will contain date and time of sighting, 

location, species description, and 

indications of the animal’s status. 

(16) Training operations shall be 

suspended if the conditions of 

§ 217.83(a)–(d) regarding the injury, 

serious injury, or death of a marine 

mammal during NEODS training 

operations are met. 

(17) Additional mitigation measures 

as contained in a Letter of 

Authorization. 

(b) [Reserved] 

§ 217.85 Requirements for monitoring and 

reporting. 

(a) Holders of Letters of Authorization 

pursuant to § 216.106 of this chapter 

and § 217.87 for activities described in 

§ 216.80(a) are required to cooperate 

with NMFS, and any other Federal, 

state, or local agency with authority to 

monitor the impacts of the activity on 

marine mammals. Unless specified 

otherwise in the Letter of Authorization, 

the Holder of the Letter of Authorization 

must notify the Administrator, 

Southeast Region, NMFS, by letter or 

telephone, prior to activities possibly 

involving the taking of marine 

mammals. If the authorized activity 

identified in § 217.80(a) is thought to 

have resulted in the mortality or injury 

of any marine mammals or in any take 

of marine mammals not identified in 

§ 217.80(b), then the Holder of the Letter 

of Authorization must, in addition to 

complying with the requirements of 

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16738 Federal Register / Vol. 77, No. 56 / Thursday, March 22, 2012 / Rules and Regulations 

§ 217.82(a)–(d), notify the Director, 

Office of Protected Resources, NMFS, or 

designee, by telephone (301–427–8400), 

within 24 hours of the discovery of the 

injured or dead animal. 

(b) Holders of Letters of Authorization 

must designate trained, qualified, onsite individuals approved in advance by 

NMFS, as specified in the Letter of 

Authorization, to perform the following 

monitoring requirements: 

(1) For NEODS testing, areas to be 

used in missions shall be visually 

monitored for marine mammal presence 

from a surface support vessel prior to 

detonation of mine neutralization 

charges. Monitoring shall be conducted 

30 minutes before missions to clear the 

mitigation-monitoring zone. Postmission monitoring shall also be 

conducted for 30 minutes after the final 

detonation (concentrated on the area 

down current of the test site). If marine 

mammals are inside the mitigationmonitoring zone, detonations shall be 

postponed until they have left the area. 

The observer on the vessel must be 

equipped with the proper optical 

equipment and lines of communication 

in order to recommend the decision to 

move forward with the mission. 

(2) Monitoring shall occur premission (for 30 minutes), throughout the 

mission, and post-mission (for 30 

minutes). Post-mission monitoring shall 

concentrate on the area down current of 

the test site. 

(3) Survey clearance procedures shall 

be conducted using best operational 

methods possible. After the mitigationmonitoring zone is cleared, all dolphins 

and protected species indicators (e.g., 

Sargassum rafts) shall be avoided to the 

maximum extent possible. 

(4) Clearance procedures shall be reconducted if dolphins or protected 

species indicators (e.g., Sargassum rafts) 

are encountered. 

(5) After conducting post-mission 

monitoring, NEODS training operations 

data as required by Eglin Air Force 

Base’s Natural Resources Section, 96 

CEG/CEVSN shall be reported. Postmission monitoring shall commence 

immediately following each detonation 

and shall be concentrated on the area 

down current of the test site. If any 

injured or dead marine mammals are 

observed, that information will be 

reported and coordinated with marine 

animals stranding networks. 

(6) An annual summary (coordinated 

through 96 CEG/CEVSN) of mission 

observations shall be submitted to: 

NMFS, Southeast Regional Office, 

Protected Resources Division, 9721 

Executive Center Drive North, St. 

Petersburg, Florida 33702; and NMFS, 

Office of Protected Resources, 1315 East 

West Highway, Silver Spring, Maryland 

20910. 

(c) Holders of Letters of Authorization 

must conduct additional monitoring as 

required under an annual Letter of 

Authorization. 

(d) Holders of Letters of Authorization 

must submit an annual report 

summarizing the specified activity as 

well as monitoring and mitigation data 

to the Southeast Regional Administrator 

and Director of the Office of Protected 

Resources, NMFS, within 90 days after 

the conclusion of the NEODS training 

operations. This report must contain the 

following information: 

(1) Date(s), time(s), and location(s) of 

explosive activities, 

(2) Design of the monitoring program, 

(3) Results of the monitoring program 

including, but not necessarily limited 

to: 

(i) Species counts, 

(ii) Numbers of observed 

disturbances, 

(iii) Descriptions of the disturbance 

behaviors before, during, and after 

explosive activities, 

(iv) Bearing and distances, 

(v) Observations of unusual behaviors, 

numbers, or distributions of marine 

mammals in the activity area shall be 

reported to NMFS and the U.S. Fish and 

Wildlife Service so that any potential 

follow-up observations can be 

conducted by the appropriate personnel. 

In addition, observations of tag-bearing 

marine mammals, sea turtles, and fish 

carcasses as well as any rare or unusual 

species of marine mammals and fish 

shall be reported to NMFS and U.S. Fish 

and Wildlife Service. 

(e) An annual report (referred to in 

§ 217.85(d)) must be submitted at the 

time of notification of the renewal of the 

Letter of Authorization. 

(f) A draft comprehensive final report 

must be submitted at least 180 days 

prior to expiration of these regulations. 

This comprehensive technical report 

shall provide full documentation of 

methods, results, and interpretation of 

all monitoring during the first four and 

a half years of the Letter of 

Authorization. A revised final 

comprehensive technical report, 

including all monitoring results during 

the entire period of the Letters of 

Authorization, must be submitted 90 

days after the end of the period of 

effectiveness of the regulations. This 

report shall summarize the activities 

undertaken and the results reported in 

all previous reports. 

(g)(1) In the unanticipated event that 

the specified activity clearly causes the 

take of a marine mammal in a manner 

prohibited by a Letter of Authorization, 

such as an injury, serious injury, or 

mortality, Eglin Air Force Base will 

immediately cease the specified 

activities and immediately report the 

incident to the Chief of the Permits and 

Conservation Division, Office of 

Protected Resources, NMFS at 301–427– 

8401 and/or by email to 

Jolie.Harrison@noaa.gov and 

Howard.Goldstein@noaa.gov, and the 

NMFS Southeast Regional Marine 

Mammal Stranding Network at 877– 

433–8299 (Blair.Mase@noaa.gov and 

Erin.Fougeres@noaa.gov) (Florida 

Marine Mammal Stranding Hotline at 

888–404–3922). The report must 

include the following information: 

(i) Time, date, and location (latitude/ 

longitude) of the incident; 

(ii) Description of the incident; 

(iii) Status of all noise-generating 

source use in the 24 hours preceding the 

incident; 

(iv) Water depth; 

(v) Environmental conditions (e.g., 

wind speed and direction, Beaufort sea 

state, cloud cover, and visibility); 

(vi) Description of all marine mammal 

observations in the 24 hours preceding 

the incident; 

(vii) Species identification or 

description of the animal(s) involved; 

(viii) Fate of the animal(s); and 

(ix) Photographs or video footage of 

the animal(s) (if equipment is available). 

Activities shall not resume until 

NMFS is able to review the 

circumstances of the prohibited take. 

NMFS shall work with Eglin Air Force 

Base to determine what is necessary to 

minimize the likelihood of further 

prohibited take and ensure MMPA 

compliance. Eglin Air Force Base may 

not resume their activities until notified 

by NMFS via letter or email, or 

telephone. 

(2) In the event that Eglin Air Force 

Base discovers an injured or dead 

marine mammal, and the lead observer 

determines that the cause of injury or 

death is unknown and the death is 

relatively recent (i.e., less than a 

moderate state of decomposition as 

described in the next paragraph), Eglin 

Air Force Base will immediately report 

the incident to the Chief of the Permits 

and Conservation Division, Office of 

Protected Resources, NMFS, at 301– 

427–8401, and/or by email to 

Jolie.Harrison@noaa.gov and 

Howard.Goldstein@noaa.gov and the 

NMFS Southeast Region Marine 

Mammal Stranding Network (877–433– 

8299) and/or by email to the Southeast 

Regional Stranding Coordinator 

(Blair.Mase@noaa.gov) and Southeast 

Regional Stranding Program 

Administrator 

(Erin.Fougeres@noaa.gov). The report 

must include the same information 

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identified in the paragraph above. 

Activities may continue while NMFS 

reviews the circumstances of the 

incident, NMFS will work with Eglin 

Air Force Base to determine whether 

modifications in the activities are 

appropriate. 

(3) In the event that Eglin Air Force 

Base discovers an injured or dead 

marine mammal, and the lead observer 

determines that the injury or death is 

not associated with or related to the 

activities authorized in the Letter of 

Authorization (e.g., previously wounded 

animal, carcass with moderate to 

advanced decomposition, or scavenger 

damage), Eglin Air Force Base will 

report the incident to the Chief of the 

Permits and Conservation Division, 

Office of Protected Resources, NMFS, at 

301–427–8401, and/or by email to 

Jolie.Harrison@noaa.gov and 

Howard.Goldstein@noaa.gov, and the 

NMFS Southeast Regional Marine 

Mammal Stranding Network (877–433– 

8299), and/or by email to the Southeast 

Regional Stranding Coordinator 

(Blair.Mase@noaa.gov) and Southeast 

Regional Stranding Program 

Administrator 

(Erin.Fougeres@noaa.gov), within 24 

hours of discovery. Eglin Air Force Base 

will provide photographs or video 

footage (if available) or other 

documentation of the stranded animals 

sighting to NMFS and the Marine 

Mammal Stranding Network. 

§ 217.86 Applications for Letters of 

Authorization. 

(a) To incidentally take marine 

mammals pursuant to these regulations, 

the U.S. citizen (as defined by 

§ 216.103) conducting the activity 

identified in § 217.80(a) must apply for 

and obtain either an initial Letter of 

Authorization in accordance with 

§ 217.87 or a renewal under § 217.88. 

(b) The application must be submitted 

to NMFS at least 30 days before the 

activity is scheduled to begin. 

(c) Application for a Letter of 

Authorization and for renewals of 

Letters of Authorization must include 

the following: 

(1) Name of the U.S. citizen 

requesting the authorization; 

(2) A description of the activity, the 

dates of the activity, and the specific 

location of the activity; and 

(3) Plans to monitor the behavior and 

effects of the activity on marine 

mammals. 

(d) A copy of the Letter of 

Authorization must be in the possession 

of the persons conducting activities that 

may involve incidental takings of 

marine mammals. 

(e) [Reserved] 

§ 217.87 Letters of Authorization. 

(a) A Letter of Authorization, unless 

suspended or revoked, shall be valid for 

a period of time not to exceed the period 

of validity of this subpart. 

(b) The Letter of Authorization shall 

set forth: 

(1) Permissible methods of incidental 

taking; 

(2) Means of effecting the least 

practicable adverse impact on the 

species, its habitat, and on the 

availability of the species for 

subsistence uses (i.e., mitigation); and 

(3) Requirements for mitigation, 

monitoring, and reporting. 

(c) Issuance and renewal of the Letter 

of Authorization shall be based on a 

determination that the total number of 

marine mammals taken by the activity 

as a whole shall have no more than a 

negligible impact on the affected species 

or stock of marine mammal(s). 

§ 217.88 Renewal of Letters of 

Authorization and adaptive management. 

(a) A Letter of Authorization issued 

under § 216.106 of this chapter and 

§ 217.87 for the activity identified in 

§ 217.80(a) shall be renewed upon a 

request by the applicant or 

determination by NMFS and the 

applicant that modifications are 

appropriate pursuant to the adaptive 

management component of these 

regulations, provided that: 

(1) NMFS is notified that the activity 

described in the application submitted 

under § 217.86 shall be undertaken and 

there shall not be a substantial 

modification to the described work, 

mitigation or monitoring undertaken 

during the upcoming 12 months; 

(2) NMFS has received, reviewed, and 

accepted the monitoring reports 

required under § 217.85(d) and (e) and 

the Letter of Authorization issued under 

§ 217.87; 

(3) NMFS determines that the 

mitigation, monitoring, and reporting 

measures required under §§ 217.84 and 

217.85 and the Letter of Authorization 

issued under §§ 216.106 and 217.87 of 

this chapter, were undertaken and shall 

be undertaken during the upcoming 

annual period of validity of a renewed 

Letter of Authorization; and 

(4) NMFS makes the determination 

required by § 217.87(c). 

(b) If either a request for a renewal of 

a Letter of Authorization issued under 

§ 216.106 of this chapter and § 217.88, 

or a determination by NMFS and the 

applicant that modifications are 

appropriate pursuant to the adaptive 

management component of these 

regulations indicates that a substantial 

modification, as determined by NMFS, 

to the described work, mitigation or 

monitoring undertaken during the 

upcoming season shall occur, NMFS 

shall publish a proposed modification to 

the Letter of Authorization in the 

Federal Register and provide the public 

a period of 30 days for review and 

comment. Review and comment on 

renewals or modifications of Letters of 

Authorization are restricted to: 

(1) New cited information and data 

indicating that the determinations made 

in this document are in need of 

reconsideration, and 

(2) Proposed substantive changes to 

the mitigation and monitoring 

requirements contained in these 

regulations or in the current Letter of 

Authorization. 

(c) A notice of issuance or denial of 

a renewal of a Letter of Authorization 

shall be published in the Federal 

Register. 

(d) Adaptive Management—NMFS 

may modify or augment the existing 

mitigation or monitoring measures (after 

consulting with the U.S. Air Force 

regarding the practicability of the 

modifications) if doing so creates a 

reasonable likelihood of more 

effectively accomplishing the goals of 

mitigation and monitoring set forth in 

the preamble of these regulations. Below 

are some of the possible sources of new 

data that could contribute to the 

decision to modify the mitigation or 

monitoring measures: 

(1) Results from the U.S. Air Force’s 

monitoring from the previous year; 

(2) Results from marine mammal and 

sound research; or 

(3) Any information which reveals 

that marine mammals may have been 

taken in a manner, extent or number not 

authorized by these regulations or 

subsequent Letters of Authorization. 

§ 217.89 Modifications of Letters of 

Authorization. 

(a) Except as provided in paragraph 

(b) of this section, no substantive 

modification (including withdrawal or 

suspension) to the Letter of 

Authorization by NMFS issued pursuant 

to § 216.106 of this chapter and § 217.87 

of this chapter and subject to the 

provisions of this subpart shall be made 

until after notification and an 

opportunity for public comment has 

been provided. For purposes of this 

paragraph, a renewal of a Letter of 

Authorization under § 217.88, without 

modification (except for the period of 

validity), is not considered a substantive 

modification. 

(b) If the Assistant Administrator 

determines that an emergency exists 

that poses a significant risk to the wellbeing of the species or stocks of marine 

mammals specified in § 217.80(b), a 

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16740 Federal Register / Vol. 77, No. 56 / Thursday, March 22, 2012 / Rules and Regulations 

Letter of Authorization issued pursuant 

to § 216.106 of this chapter and § 217.87 

of this chapter may be substantively 

modified without prior notification and 

an opportunity for public comment. 

Notification shall be published in the 

Federal Register within 30 days 

subsequent to the action. 

[FR Doc. 2012–6824 Filed 3–21–12; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 300 

[Docket No. 120106033–2163–02] 

RIN 0648–BB68 

Pacific Halibut Fisheries; Catch 

Sharing Plan 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: The Assistant Administrator 

(AA) for Fisheries, National Oceanic 

and Atmospheric Administration 

(NOAA), on behalf of the International 

Pacific Halibut Commission (IPHC), 

publishes annual management measures 

promulgated as regulations by the IPHC 

and approved by the Secretary of State 

governing the Pacific halibut fishery. 

The AA also announces modifications 

to the Catch Sharing Plan (CSP) for Area 

2A (waters off the U.S. West Coast) and 

implementing regulations for 2012, 

announces approval of the Area 2A CSP, 

and provides notice of the guideline 

harvest levels (GHLs) for Areas 2C and 

3A. These actions are intended to 

enhance the conservation of Pacific 

halibut and further the goals and 

objectives of the Pacific Fishery 

Management Council (PFMC) and the 

North Pacific Fishery Management 

Council (NPFMC) (Councils). 

DATES: This rule is effective April 23, 

2012. The IPHC’s 2012 annual 

management measures are effective 

March 22, 2012, except for the measures 

in section 26, which are effective April 

23, 2012. The 2012 management 

measures are effective until superseded. 

ADDRESSES: Additional requests for 

information regarding this action may 

be obtained by contacting: the 

International Pacific Halibut 

Commission, 2320 W. Commodore Way 

Suite 300, Seattle, WA 98199–1287; or 

Sustainable Fisheries Division, NMFS 

Alaska Region, P.O. Box 21668, Juneau, 

AK 99802, Attn: Ellen Sebastian, 

Records Officer; or Sustainable Fisheries 

Division, NMFS Northwest Region, 7600 

Sand Point Way, NE., Seattle, WA 

98115. This final rule also is accessible 

via the Internet at the Federal 

eRulemaking portal at http:// 

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: For 

waters off Alaska, Glenn Merrill, 907– 

586–7228, email at 

glenn.merrill@noaa.gov; or Rachel 

Baker, 907–586–7228, email at 

rachel.baker@noaa.gov; or, for waters 

off the U.S. West Coast, Sarah Williams, 

206–526–4646, email at 

sarah.williams@noaa.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

The IPHC has promulgated 

regulations governing the Pacific halibut 

fishery in 2012 under the Convention 

between Canada and the United States 

for the Preservation of the Halibut 

Fishery of the North Pacific Ocean and 

Bering Sea (Convention), signed at 

Ottawa, Ontario, on March 2, 1953, as 

amended by a Protocol Amending the 

Convention (signed at Washington, DC, 

on March 29, 1979). 

As provided by the Northern Pacific 

Halibut Act of 1982 (Halibut Act) at 16 

U.S.C. 773b, the Secretary of State, with 

the concurrence of the Secretary of 

Commerce (Secretary), may accept or 

reject, on behalf of the United States, 

recommendations made by the IPHC in 

accordance with the Convention 

(Halibut Act, Sections 773–773k.). On 

March 5, 2012, the Secretary of State of 

the United States, with the concurrence 

of the Secretary, accepted the 2012 IPHC 

regulations as provided by the Northern 

Pacific Halibut Act of 1982 (Halibut Act) 

at 16 U.S.C. 773–773k. 

The Halibut Act provides the 

Secretary with the authority and general 

responsibility to carry out the 

requirements of the Convention and the 

Halibut Act. The Regional Fishery 

Management Councils may develop and 

the Secretary may implement 

regulations governing harvesting 

privileges among U.S. fishermen in U.S. 

waters that are in addition to, and not 

in conflict with approved IPHC 

regulations. The NPFMC has exercised 

this authority most notably in 

developing a suite of halibut 

management programs that correspond 

to the three fisheries that harvest halibut 

in Alaska: the subsistence, sport, and 

commercial fisheries. 

Subsistence and sport halibut fishery 

regulations are codified at 50 CFR part 

300. Commercial halibut fisheries in 

Alaska operate within the Individual 

Fishing Quota (IFQ) Program and 

Community Development Quota (CDQ) 

Program (50 CFR part 679), and through 

area-specific catch sharing plans. 

Regulations for a commercial and sport 

fishery Halibut CSP in Areas 2C and 3A 

are being developed pursuant to the 

NPFMC authority under the Halibut 

Act. NMFS published a proposed rule 

for the Area 2C and Area 3A CSP on 

July 16, 2011, and accepted comments 

on the proposed rule and on the 

Environmental Assessment (EA), 

Regulatory Impact Review, and Initial 

Regulatory Flexibility Analysis (IRFA) 

prepared for the CSP through September 

21, 2011. In October 2011, NMFS 

informed the NPFMC that public 

comments received on the proposed 

CSP raised issues that may require 

additional input from the NPFMC before 

NMFS can proceed to a final rule. 

NMFS is continuing to work with the 

NPFMC to address these issues of 

concern and is seeking NPFMC advice 

on how to proceed with agency review 

of the Area 2C and Area 3A CSP. 

The PFMC also exercises authority in 

a CSP allocating halibut among groups 

of fishermen in Area 2A, off the coasts 

of Washington, Oregon, and California. 

The CSP allocates the Area 2A catch 

limit among treaty Indian and nonIndian harvesters, and non-Indian 

commercial and sport harvesters. The 

treaty Indian group includes tribal 

commercial, and tribal ceremonial and 

subsistence fisheries. The Secretary 

implemented the Area 2A CSP 

recommended by the PFMC in 1995. 

Each year between 1995 and the 

present, the PFMC has adopted minor 

revisions to the plan to account for 

needs of the fisheries. These revisions 

are implemented in regulations for Area 

2A through annual rule making and 

annual IPHC review and 

recommendation of management 

measures for Secretarial review. The 

Area 2A regulations are part of the IPHC 

annual management measures and are 

superseded each year by new 

implementing regulations. 

The NPFMC implemented a CSP 

among commercial IFQ and CDQ 

halibut fisheries in IPHC Areas 4C, 4D 

and 4E (Area 4) through rulemaking, 

and the Secretary approved the plan on 

March 20, 1996 (61 FR 11337). The Area 

4 CSP regulations were codified (50 CFR 

300.65) and amended through rule 

making on March 17, 1998 (63 FR 

13000). New annual regulations 

pertaining to the Area 4 CSP also may 

be implemented through IPHC review 

and recommendation for Secretarial 

review. 

Publication of this final rule 

announces that the U.S. Secretary of 

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