[Federal Register Volume 74, Number 45 (Tuesday, March 10, 2009)]
[Notices]
[Pages 10241-10242]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-5079]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XN74


Incidental Take of Marine Mammals; Taking of Marine Mammals 
Incidental to Conducting Precision Strike Weapons Testing and Training 
by Eglin Air Force Base in the Gulf of Mexico

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

ACTION:  Notice of issuance of a letter of authorization.

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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

[[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