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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - RIN 0648-XN74

# AGENCY:

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

# ACTION:

 Notice of issuance of a letter of authorization.

# SUMMARY:

 In accordance with provisions of the Marine Mammal Protection Act (MMPA), as amended, notification is hereby given that a letter of authorization (LOA) to take four species of marine mammals, by harassment, incidental to testing and training during Precision Strike Weapons (PSW) tests in the Gulf of Mexico (GOM), a military readiness activity, has been issued to Eglin Air Force Base (AFB).

# DATES:

 This authorization is effective from March 19, 2009, through March 18, 2010.

# ADDRESSES:

 The application and LOA are available for review in the Permits, Conservation, and Education Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910 or by contacting the individual mentioned below.

# FOR FURTHER INFORMATION CONTACT:

Candace Nachman, NMFS, (301) 713-2289.

# SUPPLEMENTARY INFORMATION:

## Background

                    Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361*et seq.*) directs NMFS to allow, upon request, the incidental, but not intentional, taking of small numbers 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 by NMFS and regulations are issued. Under the MMPA, the term “taking” means to harass, hunt, capture, or kill or to attempt to harass, hunt, capture or kill marine mammals. The National Defense Authorization Act of 2004 (Public Law 108-136) removed the “small numbers” and “specified geographical 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 sheltering, to a point where such behavioral patterns are abandoned or significantly altered [Level B Harassment].

                    Authorization, in the form of annual LOAs, may be granted for periods up to five years if NMFS finds, after notification and opportunity for public comment, that the taking will have a negligible impact on the species or stock(s) of marine mammals and will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses. In addition, NMFS must prescribe regulations that include permissible methods of taking and other means effecting the least practicable adverse impact on the species and its habitat, and on the availability of the species for subsistence uses, paying particular attention to rookeries, mating grounds, and areas of similar significance. The regulations must include requirements pertaining to the monitoring and reporting of such taking. Regulations governing the taking of marine mammals incidental to PSW testing and training within the Eglin Gulf Test and Training Range (EGTTR) in the GOM, were published on November 24, 2006 (71 FR 67810), and remain in effect from December 26, 2006, through December 27, 2011. The species that Eglin AFB may take during PSW testing and training are Atlantic bottlenose (                    *Tursiops truncatus*) and Atlantic spotted dolphins (                    *Stenella frontalis*) and dwarf (                    *Kogia simus*) and pygmy sperm whales (                    *Kogia breviceps*).                

Issuance of the annual LOA to Eglin AFB is based on findings made in the preamble to the final rule that the total takings by this project would result in no more than a negligible impact on the affected marine mammal stocks or habitats and would not have an unmitigable adverse impact on subsistence uses of marine mammals. NMFS also finds that the applicant will meet the requirements contained in the implementing regulations and LOA, including monitoring and reporting requirements. Without any mitigation measures, a small possibility exists for one bottlenose dolphin and one spotted dolphin to be exposed to blast levels from the PSW testing sufficient to cause mortality. Additionally, less than two cetaceans might be exposed to noise levels sufficient to induce Level A harassment (injury) annually, and as few as 31 or as many as 52 cetaceans (depending on the season and water depth) could potentially be exposed (annually) to noise levels sufficient to induce Level B harassment in the form of temporary (auditory) threshold shift (TTS).

While none of these impact estimates consider the proposed mitigation measures that will be employed by Eglin AFB to minimize potential impacts to protected species, NMFS has authorized Eglin AFB a total of one mortality, two takes by Level A harassment, and 53 takes by Level B harassment (TTS) annually. However, the proposed mitigation measures described in the final rule (71 FR 67810, November 24, 2006) and the LOA are anticipated to reduce potential impacts to marine mammals in both numbers and degree of severity. These measures include a conservative safety range for marine mammal exclusion; incorporation of aerial and shipboard survey monitoring efforts in the program both prior to and after detonation of explosives; and a prohibition on detonations whenever marine mammals are detected within the safety zone, may enter the safety zone at the time of detonation, or if weather and sea conditions preclude adequate aerial surveillance. This LOA may be renewed annually based on a review of the activity, completion of monitoring requirements, and receipt of reports required by the LOA.

## Summary of Request

On December 12, 2008, NMFS received a request for an LOA renewal pursuant to the aforementioned regulations that would authorize, for a period not to exceed 1 year, take of marine mammals, by harassment, incidental to PSW testing and training in the GOM.

## Summary of Activity and Monitoring Conducted During 2008

                    In 2008, two Joint Air-to-Surface Stand-Off Missile Jettison Test Vehicles (JTVs) were released into the GOM on April 3, 2008, and May 30, 2008. The JTVs were inert with no control surface deployment or engine start. Seek Eagle uses these items to test release aerodynamic performance of the weapon, launcher, and aircraft before permitting the release of the other two test vehicle configurations. The JTVs                           ( print page 10242)                        were released approximately 20 mi off the coast of Cape Sand Blas. No marine mammals were seen during the boat sweep or at release. No evidence of injury or death to marine mammals was noted.                

The Small Diameter Bomb (SDB) releases over the GOM for 2008 were as follows: two Guided Test Vehicle (GTV) releases on February 2, 2008, and March 21, 2008 and three Separation Test Vehicle (STV) releases on November 20, 2008, November 25, 2008, and December 8, 2008. The GTVs have an inert fuse. The warhead is filled with telemetry hardware and has no explosives. The STVs were also completely inert. For all SDB releases, no marine mammals were seen during the boat sweep or at release. No evidence of injury or death to marine mammals was noted.

## Authorization

The U.S. Air Force complied with the requirements of the 2008 LOA, and NMFS has determined that there was no take of marine mammals by the U.S. Air Force in 2008. Accordingly, NMFS has issued an LOA to Eglin AFB authorizing the take by harassment of marine mammals incidental to PSW testing and training in the EGTTR in the GOM. Issuance of this LOA is based on findings described in the preamble to the final rule (71 FR 67810, November 24, 2006) and supported by information contained in Eglin's December, 2008 request for a new LOA that the activities described under this LOA will not result in more than the incidental harassment of certain marine mammal species and will have a negligible impact on the affected species or stocks. 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 for this action.

Dated: March 4, 2009.

Helen M. Golde,

Deputy Director, Office of Protected Resources, National Marine Fisheries Service.

[FR Doc. E9-5079 Filed 3-9-09; 8:45 am]

BILLING CODE 3510-22-S