[Federal Register Volume 75, Number 190 (Friday, October 1, 2010)]
[Proposed Rules]
[Pages 60694-60709]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-24689]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 100217098-0373-01]
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: Proposed rule; request for comments.

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SUMMARY: NMFS has received an application from the U.S. Department of

[[Page 60695]]

the Air Force, Headquarters 96th Air Base Wing (U.S. Air Force), Eglin 
Air Force Base (Eglin AFB) for authorization to take marine mammals, by 
Level B harassment, incidental to Naval Explosive Ordnance Disposal 
School (NEODS) training operations, military readiness activities, at 
Eglin AFB, FL from approximately December, 2010, to November, 2015. 
Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is proposing 
regulations to govern the requested take and requesting information, 
suggestions, and comments on its proposed regulations. NMFS issued 
annual Incidental Harassment Authorizations pursuant to the MMPA for 
similar specified activities in 2005, 2006, 2007, and 2008. No 
activities have occurred to date.

DATES: Information, suggestions, and comments must be received no later 
than November 1, 2010.

ADDRESSES: Comments on the application should be addressed to P. 
Michael Payne, Chief, Permits, Conservation, and Education Division, 
Office of Protected Resources, National Marine Fisheries Service, 1315 
East-West Highway, Silver Spring, MD 20910-3225. Submit all electronic 
public comments via the Federal eRulemaking Portal: http://www.regulations.gov.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.nmfs.noaa.gov/pr/permits/incidental.htm without change. All Personal Identifying Information 
(for example, name, address, etc.) voluntarily submitted by the 
commenter may be publicly accessible. Do not submit Confidential 
Business Information or otherwise sensitive or protected information.
    A copy of the application containing a list of the references used 
in this document may be obtained by writing to the address specified 
above, 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 is current preparing a Draft 
Environmental Assessment 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, 301-713-2289, ext. 172.

SUPPLEMENTARY INFORMATION:

Availability

    A copy of the application containing a list of the references used 
in this document may be obtained by writing to the address specified 
above, 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.

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 five 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 an 
Incidental Harassment Authorization (IHA) is 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 of regulations or a proposed IHA.
    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'' in 50 CFR 216.103 as:

    * * * an impact resulting from the specified activity that 
cannot be reasonably expected to, and is not reasonably likely to, 
adversely affect the species or stock through effects on annual 
rates of recruitment or survival.

    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 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 future LOAs. 
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, pre-mitigation take would average 
approximately 10 animals per year; approximately 50 animals over the 
five year period. NMFS issued annual Incidental Harassment 
Authorizations (IHA) 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). The past missions have been delayed due to safety issues related 
to bringing demolition charges under a bridge. No missions have 
occurred to date under any of the IHAs. NEODS missions would involve 
underwater detonations of small, live explosive charges adjacent to 
inert mines. The NEODS training activities are classified as military 
readiness activities. The U.S. Air Force states that underwater 
detonation of the specified explosive charges may expose bottlenose 
dolphins

[[Page 60696]]

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 Proposed Specified Activities

Background

    Potential impacts to listed species and habitat from NEODS testing 
are limited to the sites offshore of Eglin AFB shown in Figure 1-1 of 
Eglin AFB's application. The EGTTR encompasses approximately 222,739 
km\2\ (86,000 mi\2\) within the GOM and consists of the airspace over 
the GOM, which is scheduled and operated by Eglin AFB. NEODS test areas 
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 men and 
women 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 mine-clearance operations. The NEODS 
facilities are located at Eglin AFB, Florida. The proposed 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 proposes 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 through real scenarios. The 
students would be taught established techniques to implement MCM 
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.

Proposed 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 
would not impact any protected marine species because the sonar ranges 
are below any current threshold for protected marine species (see Table 
1-1 of Eglin AFB's application); therefore, potential noise impacts 
from sonars are not included in this analysis.
    Five charges packed with C-4 explosive material (either 2.3 kg [5 
lb] 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 two-day 
period. Live training events will occur eight times annually, averaging 
once every six to seven weeks. Four of the training events will involve 
five-lb charges, and four events will involve ten-lb charges. Because 
five detonations (maximum) are expected during each event, there will 
be up to twenty five-lb detonations and twenty ten-lb detonations 
annually, for a total of forty detonations. It is expected that 60 
percent of the training events will occur in summer, and 40 percent 
will occur in winter. Therefore, 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 if the teams cannot complete their evolution on 
day one.

                     Table 1--(Table 1-1 of the Application) Hand-Held Sonar Characteristics
----------------------------------------------------------------------------------------------------------------
                                              AN/PQS-2A                              Dukane
----------------------------------------------------------------------------------------------------------------
Frequency Operating Range............  115 kHz-145 kHz........  30-45 kHz.
Audible Frequency Range..............  N/A....................  250 Hz-2,500 Hz.
Operating Frequency..................  115 kHz-145 kHz........  37.5 kHz <plus-minus> 1 kHz.
Sound Pressure Level.................  1.78.5 re 1 [mu]Pa @ 1m  157-160.5 re 1 [mu]Pa @ 1m.
----------------------------------------------------------------------------------------------------------------

    Additional details regarding the proposed NEODS training operations 
can be found in Eglin AFB's LOA application and Draft Environmental 
Assessment on the Promulgation of Regulations and the Issuance of 
Letters of Authorization to Take Marine Mammals, by Harassment, 
Incidental to Naval Explosive Ordnance Disposal School Training 
Operations at Eglin Air Force Base, Florida (Draft EA). The Draft 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

[[Page 60697]]

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 Navy and the Marine 
Corps believe that the ability of Sailors and Marines to detect, 
characterize, and neutralize mines from their operating areas at sea, 
on the shore, and inland, is vital to their doctrines.
    As described in the application, the 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 Navy needs organic means to 
clear mines and obstacles rapidly in three challenging environments: 
Shallow water; the surf zone; and the beach zone. The Navy also needs a 
capability for rapid clandestine surveillance and reconnaissance of 
minefields and obstacles in these environments. The NEODS mission in 
the GOM offshore of Eglin AFB is considered a military readiness 
activity pursuant to the National Defense Authorization Act (NDAA) 
(Pub. L. 108-136).

Proposed 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 of the events will involve 5 lb charges and 
half will involve 10 lb charges.

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). Marine mammal species listed as Endangered 
under the U.S. Endangered Species Act (ESA), includes the humpback, 
sei, fin, blue, North Atlantic right, sperm whale, and Florida manatee. 
The marine mammals that generally occur in the proposed training 
operations area belong to three taxonomic groups: Mysticetes (baleen 
whales), odontocetes (toothed whales), and sirenians (the manatee). 
Table 2 below outlines the cetacean species and their habitat in the 
region of the proposed project area.
    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 Proposed Study Area in the Gulf of
                                             Mexico off of Florida.
----------------------------------------------------------------------------------------------------------------
               Species                          Habitat             ESA \1\                 MMPA \2\
----------------------------------------------------------------------------------------------------------------
                                                   Mysticetes
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale (Eubalaena  Coastal and shelf.......  EN            D.
 glacialis).
Humpback whale (Megaptera              Pelagic, neashore waters  EN            D.
 novaeangliae).                         and banks.
Bryde's whale (Balaenoptera brydei)..  Pelagic and coastal.....  NL            NC.
Minke whale (Balaenoptera              Pelagic and coastal.....  NL            NC.
 acutorostrata).
Blue whale (Balaenoptera musculus)...  Pelagic and coastal.....  EN            D.
Sei whale (Balaenoptera borealis)....  Primarily offshore,       EN            D.
                                        pelagic.
Fin whale (Balaenoptera physalus)....  Slope, mostly pelagic...  EN            D.
----------------------------------------------------------------------------------------------------------------
                                                   Odontocetes
----------------------------------------------------------------------------------------------------------------
Sperm whale (Physeter macrocephalus).  Pelagic, deep seas......  EN            D.
Cuvier's beaked whale (Ziphius         Pelagic.................  NL            NC.
 cavirostris).
Gervais' beaked whale (Mesoplodon      Pelagic.................  NL            NC.
 europaeus).
True's beaked whale (Mesoplodon        Pelagic.................  NL            NC.
 mirus).
Blainville's beaked whale (Mesoplodon  Pelagic.................  NL            NC.
 densirostris).
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            NC.
                                                                               D (Southern Resident, AT1
                                                                                Transient).
Short-finned pilot whale               Inshore and offshore....  NL            NC.
 (Globicephala macrorhynchus).
False killer whale (Pseudorca          Pelagic.................  NL            NC.
 crassidens).
Melon-headed whale (Peponocephala      Pelagic.................  NL            NC.
 electra).
Pygmy killer whale (Feresa attenuata)  Pelagic.................  NL            NC.
Risso's dolphin (Grampus griseus)....  Pelagic, shelf..........  NL            NC.
Bottlenose dolphin (Tursiops           Offshore, inshore,        NL            NC.
 truncatus).                            coastal, estuaries.                    D (Western North Atlantic
                                                                                Coastal).
Rough toothed dolphin (Steno           Pelagic.................  NL            NC.
 bredanensis).
Fraser's dolphin (Lagenodelphis        Pelagic.................  NL            NC.
 hosei).
Striped dolphin (Stenella              Pelagic.................  NL            NC.
 coeruleoalba).
Pantropical spotted dolphin (Stenella  Pelagic.................  NL            NC.
 attenuata).                                                                   D (Northeastern Offshore).

[[Page 60698]]

 
Atlantic spotted dolphin (Stenella     Coastal to pelagic......  NL            NC.
 frontalis).
Spinner dolphin (Stenella              Mostly pelagic..........  NL            NC.
 longirostris).                                                                D (Eastern).
Clymene dolphin (Stenella clymene)...  Pelagic.................  NL            NC.
----------------------------------------------------------------------------------------------------------------
                                                    Sirenians
----------------------------------------------------------------------------------------------------------------
West Indian (Florida) manatee          Coastal, rivers and       EN            D.
 (Trichechus manatus latirostris).      estuaries.
----------------------------------------------------------------------------------------------------------------
\1\ U.S. Endangered Species Act: EN = Endangered, T = Threatened, NL = Not listed.
\2\ U.S. Marine Mammal Protection Act: NC = Not Classified, D = Depleted, 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 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 proposed 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 proposed 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 potentially affected 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 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).
    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). Prior to the 2007 Garrison survey and model predictions, 
the best estimates of 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 both 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 potential for biological 
removal (PBR) for shelf and slope stocks is 45 dolphins (Waring et al., 
2001).
    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 min. Dive 
durations up to 15 min 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

[[Page 60699]]

between 27.5 to 28.5 [deg]C (81.5 to 83.3 [deg]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 [deg]C [53.6 to 59 [deg]F]) while the summer 
survey was primarily during July (water temperatures >26 [deg]C [78.8 
[deg]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 sub-area 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.
    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 [km\2\] were 
produced by combining the spatial density model, sighting probability, 
and availability model (Garrison, 2008). All environmental terms were 
retained in the species-habitat 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 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/km\2\ 
throughout the year in EGTTR sub-area 197. Seasonally there are on 
average 0.84 dolphins/km\2\ during summer and 0.78 dolphins/km\2\ 
during winter in sub-area 197.

           Table 3--(Table 3-1 of the Application) Bottlenose Dolphin Densities for EGTTR Sub-Area 197
----------------------------------------------------------------------------------------------------------------
                                                    Median
                                                   density                                   Adjusted density
                     Month                      (Individuals/       CV         Valid      (Individuals/km\2\)\a\
                                                    km\2\)
----------------------------------------------------------------------------------------------------------------
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
----------------------------------------------------------------------------------------------------------------
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
----------------------------------------------------------------------------------------------------------------
\a\ Adjusted through interpolation.

    NMFS anticipates that no bottlenose dolphins will be injured, 
seriously injured, or killed during the proposed 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 proposed mitigation and monitoring requirements discussed in this 
document, NMFS believes it highly unlikely that the proposed activities 
would result in injury (Level A harassment), serious injury, or 
mortality of bottlenose dolphins, however, they may temporarily avoid 
the area where the proposed explosive demolition will occur. Eglin AFB 
has requested the incidental take of 10 bottlenose dolphin each year 
and approximately 50 animals during the five year duration of the 
proposed 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/.

[[Page 60700]]

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.
    Comment 1: The Commission supports NMFS' intent to publish proposed 
small-take regulations for these activities, provided the research, 
mitigation, and monitoring activities described in the application are 
incorporated into the rule. The Commission looks forward to reviewing 
the proposed regulations.
    Response: NMFS appreciates with the Commission's comments and has 
incorporated the research, mitigation, and monitoring activities 
described in the application into the proposed rule.

Potential Effects of Specified Activities on Marine Mammals

    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. In the 
absence of monitoring and mitigation, marine mammals may be killed or 
injured as a result of an explosive detonation due to the response of 
air cavities in the body, such as 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.'' While these direct physiological effects are 
possible, they are considered unlikely in association with the 
specified activities due to the monitoring and mitigation measures 
described below.
    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. The potential numbers and 
species taken 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 Zone of Influence (ZOI) for noise exposure; and (3) the density of 
animals that potentially reside within the ZOI. The ZOI is the area 
where potential impacts from the mission could occur. 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 ESA-
listed marine mammals would be affected given the location of the 
proposed action in nearshore waters. The only ESA-listed 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 for the analysis 
of underwater pressure waves in this document.
    <bullet> Energy flux density (EFD) is the time integral of the 
squared pressure divided by the impedance. EFD levels have units of dB 
re 1 [mu]Pa\2\[middot]s.
    <bullet> \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.
    <bullet> 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. Units used here are pounds per 
square inch (psi) and dB levels.
    Non-lethal injurious impacts are defined in this document as 
eardrum rupture (i.e., tympanic-membrane (TM rupture) and the onset of 
slight lung injury. These are considered indicative of the onset of 
injury. The threshold for TM rupture corresponds to a 50 percent rate 
of rupture (i.e., 50 percent of animals exposed to the level are 
expected to suffer TM rupture); this is stated in terms of an EFD value 
of 1.17 in-lb/in\2\, which is about 205 dB re 1 [mu]Pa\2\[middot]s. 
This recognizes 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 (e.g., Ketten 
[1998] indicates a 30 percent incidence of permanent threshold shift 
[PTS] at the same threshold). 205 re 1 [mu]Pa\2\[middot]s has been 
requested by NMFS to calculate harassment distances for Level A 
harassment (NMFS, 2008).
    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.

[[Page 60701]]

    NMFS (2008) requested a dual criterion (i.e., 182 dB re 1 
[mu]Pa\2\[middot]s and 23 psi peak) be used to calculate Level B 
harassment. Since the mission (five detonations over one or two days) 
does not meet multiple explosion criteria and the potential for 
significant alteration of behavior will not be expected for the short 
duration of noise produced from single detonations from NEODS missions, 
thresholds for behavioral effects to explosive sound will not be 
analyzed. The first criterion for non-injurious harassment is TTS, 
which is defined as a temporary, recoverable loss of hearing 
sensitivity (NMFS, 2001; DON, 2001). The criterion for TTS is 182 dB re 
1 [mu]Pa\2\[middot]s. The potential for significant alteration of 
behavior described below will not be expected for the short duration of 
noise produced from single detonations from NEODS tests.
    The second criterion for estimating TTS threshold applies to all 
cetacean species and is stated in terms of peak pressure at 23 psi. The 
threshold is derived from the Churchill threshold which was 
subsequently adopted by NMFS in its Final Rule on the unintentional 
taking of marine animals incidental to the shock testing (NMFS, 2001). 
The original criteria in Churchill incorporated 12 psi. The current 
criteria and threshold for peak pressure over all exposures was updated 
from 12 psi to 23 psi for explosives less than 907 kg (2,000 lb) based 
on an IHA issued to the Air Force for a similar action (NOAA, 2006a). 
Peak pressure and energy scale at different rates with charge weight, 
so that ranges based on the 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 shots 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 marine mammal TTS for explosives offers a safety 
margin for source or animals near the ocean surface.
    The more conservative isopleths of the criterion for estimating 
Level B harassment will be used in take analysis. Table 6-1 of Elgin 
AFB's application provides a summary of threshold criteria and metrics 
for potential noise impacts to sensitive species.

 Table 4--(Table 6-1 of the Application) Threshold Criteria and Metrics
                      Utilized for Impact Analyses
------------------------------------------------------------------------
 
------------------------------------------------------------------------
       Level A harassment                   Level B harassment
------------------------------------------------------------------------
Injurious; eardrum rupture (for   Non-injurious; TTS  Non-injurious;
 50 percent of animals exposed).   (temporary          peak-pressure
                                   hearing loss).      threshold for
                                                       TTS.
205 dB re 1 [mu]Pa\2\[middot]s    182 dB re 1         23 psi.
 EFD.                              [mu]Pa\2\[middot]
                                   s.
                                  EFD* and/or 12 psi
------------------------------------------------------------------------
* Note: In greatest \1/3\-octave band above 10 Hz or 100 Hz.

    Noise ZOIs were calculated for bottom detonation scenarios at 60 ft 
both lethality and harassment (Level A and B harassment). 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.
    Given the variability in mission schedules (any time during the 
year), an overall average of bottlenose dolphin density of 0.81 
individuals/km\2\ is used for take analysis.
    Table 6-2 of Eglin AFB's application gives the estimated impact 
ranges for the two explosive weights. The proposed test locations are 
one to three nmi south of SRI. NEODS detonations were modeled for 
bottom detonations at 60 ft.
    No behavioral impacts (176 dB re 1 [mu]Pa\2\[middot]s) are 
anticipated with the NEODS test activities and are not considered in 
this analysis. Repetitive exposure (below TTS) to the same resident 
animals is highly 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 northern GOM.

                      Table 5--(Table 6-2 of the Application) ZOI for Underwater Explosions
----------------------------------------------------------------------------------------------------------------
                                                                                 Ranges for EFDL
           Ordnance                NEW (lbs)       Depth of     Ranges for EFDL      in \1/3\       23 psi (m)
                                                explosion  (m)    >205 dB (m)    octave band (m)
----------------------------------------------------------------------------------------------------------------
                                                     Summer
----------------------------------------------------------------------------------------------------------------
NEODS MCM 2.3 kg (5 lb) charge               5              18             52.1            227.5             222
NEODS MCM 4.5 kg (10 lb)                    10              18             77              385               280
 charge.......................
----------------------------------------------------------------------------------------------------------------
                                                     Winter
----------------------------------------------------------------------------------------------------------------
NEODS MCM 5 lb charge.........               5              18             52.2            229.8             222
NEODS MCM 10 lb charge........              10              18             77              389               280
----------------------------------------------------------------------------------------------------------------
EFDL = Energy Flux Density Level.


[[Page 60702]]

    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 and 6-4 of the application. For 
Level B harassment calculations (Table 6-4 of the application), the ZOI 
corresponding to the 182 dB re 1 [mu]Pa\2\[middot]s metric is used 
because this radius is in all cases greater than the radius 
corresponding to 23 psi. The total number of animals potentially 
exposed annually is in bold. 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 calculation 
totals result in fractions of an animals. 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 one-half are of 10 lb charges, and (3) 60 percent of detonations 
occur in summer, and 40 percent occur in winter.

 Table 6--(Table 6-3 of the Application) Marine Mammal Densities and Risk Estimates for Level A Harassment (205 dB EFD \1/3\ Octave Band) Noise Exposure
                                                                  for Summer and Winter
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   ZOI  (km)                     Number of animals exposed to Level A harassment
               Species                Density (animals/-------------------------------------------------------------------------------------------------
                                           km\2\)         5 lb charge    10 lb charge             5 lb charge                      10 lb charge
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                         Summer
--------------------------------------------------------------------------------------------------------------------------------------------------------
Bottlenose Dolphin..................              0.78          0.0521          0.0770  0.08...........................  0.17.
                                                                                        (12 detonations)...............  (12 detonations).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                         Winter
--------------------------------------------------------------------------------------------------------------------------------------------------------
Bottlenose Dolphin..................              0.84          0.0522          0.0770  0.06...........................  0.13.
                                                                                        (8 detonations)................  (8 detonations).
                                     -------------------------------------------------------------------------------------------------------------------
    Total Number Animals Potentially  ................  ..............  ..............   0.44
    Exposed To Level A Harassment...
    Annually........................
--------------------------------------------------------------------------------------------------------------------------------------------------------


 Table 7--(Table 6-4 of the Application) Marine Mammal Densities and Risk Estimates for Level B Harassment (182 dB EFT \1/3\ Octave Band) Noise Exposure
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   ZOI  (km)                     Number of animals exposed to Level B harassment
               Species                Density (animals/-------------------------------------------------------------------------------------------------
                                           km\2\)         5 lb charge    10 lb charge             5 lb charge                      10 lb charge
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                         Summer
--------------------------------------------------------------------------------------------------------------------------------------------------------
Bottlenose Dolphin..................              0.78          0.2275           0.385  1.52...........................  4.36.
                                                                                        (12 detonations)...............  (12 detonations).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                         Winter
--------------------------------------------------------------------------------------------------------------------------------------------------------
Bottlenose Dolphin..................              0.84          0.2298           0.389  1.11...........................  3.19.
                                                                                        (8 detonations)................  (8 detonations).
                                     -------------------------------------------------------------------------------------------------------------------
    Total Number Animals Potentially  ................  ..............  ..............   10.18
    Exposed To Level B Harassment...
    Annually........................
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The tables above indicate that the potential for non-injurious 
(Level B) harassment, as well as the onset of injury (Level A 
harassment) to cetaceans is possible but unlikely even without any 
mitigation measures. Wintertime ZOIs are generally slightly larger but 
do not significantly affect the numbers of animals potentially exposed 
to noise.
    Less than 0.5 cetaceans are estimated to be exposed to Level A 
harassment (205 dB re 1 [mu]Pa\2\[middot]s) ZOI. Therefore, as 
discussed above, no potential Level A exposures are anticipated. Level 
B harassment (182 dB re 1 [mu]Pa\2\[middot]s) noise would potentially 
affect approximately 10 cetaceans. None of the above impact estimates 
consider mitigation measures that will be employed by the proponent to 
minimize potential impacts to protected species. These mitigation 
measures are described in Section 11 and are anticipated to greatly 
reduce potential impacts to marine mammals.
    Based on the analyses and results provided here and in Section 6 of 
Eglin AFB's application, no strategic marine mammal stocks would be 
affected, and none of the marine mammal species that could potentially 
be taken is listed as threatened or endangered. The PBR for bottlenose 
dolphin is 45. No strategic marine mammal stocks would be affected.

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

[[Page 60703]]

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.

Proposed 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'' shall include consideration of personnel, 
safety, practicality of implementation, and the impact on the 
effectiveness of the ``military readiness activity.'' NEODS training 
involves military readiness activities.
    The 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.
    Prior to the mission, a trained observer aboard the largest surface 
support vessel will survey (visually monitor) the test area for the 
presence of sea turtles and cetaceans. The area to be surveyed will 
span 230 m (754.6 ft) in every direction from the target, which is 
approximately the size of the largest harassment ZOI. The trained 
observer will conduct ship-based monitoring for non-participating 
vessels as well as for protected species. Dependent on visibility, 
surface observation would be effective out to several kilometers.
    Weather that supports the ability to sight small 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 delayed if the sea state were greater than the 
Scale Number 3 described on Table 8 (below) and in Eglin AFB's 
application. Such a delay would maximize detection of marine mammals.

   Table 8--(Table 11-1 of the Application) Sea State Scale for Marine
                    Mammal and Sea Turtle 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.
------------------------------------------------------------------------

Shipboard Monitoring Team

    Shipboard monitoring would be staged from the highest point 
possible on a support ship. The trained observer will be experienced in 
shipboard surveys and be familiar with the marine life of the area. The 
observer on the vessel must be equipped with optical equipment with 
sufficient magnification (e.g., binoculars, as these have been 
successfully used in monitoring from ships), which should allow the 
observer to sight surfacing mammals from a significant distance past 
the safety zone of 230 m (754.6 ft). The trained observer would be 
responsible for reporting sighting locations, which would be based on 
bearing and distance.
    The trained observer will have proper lines of communication to 
avoid communication deficiencies to make Go/No-Go recommendations for 
the detonations. The observer recommends the Go/No-Go decision to the 
Officer in Tactical Command, who makes the final Go/No-Go decision. As 
long as no protected species are sighted by the observer, then the 
mission is a Go, meaning it can proceed. However, if the area is 
fouled, meaning a protected species has entered the area, then the 
mission is a No-Go and cannot proceed until those individuals have left 
the mission area.

Mitigation Procedures Plan

    Stepwise mitigation procedures for NEODS missions are outlined 
below. All zones (TTS, injury, and safety zones) are monitored, plus a 
buffer area that is twice the size of the largest ZOI (460 m or 1,509.2 
ft).
    Pre-mission Monitoring: The purposes of pre-mission monitoring are 
to (1) evaluate the test site for environmental suitability of the 
mission (e.g., relatively low numbers of marine mammals, few or no 
patches of Sargassum, etc.) and (2) verify that the ZOI is free of 
visually detectable marine mammals, large schools of fish, large flocks 
of birds, large Sargassum mats, and large concentrations of jellyfish. 
On the morning of the test, the Officer in Tactical Command would 
confirm that the test sites can still support the mission and that the 
weather is adequate to support mitigation.
(a) Two Hours Prior to Mission
    Approximately two hours prior to the mission, or at daybreak, 
(whichever is closest to time of the mission) the appropriate vessel(s) 
would be on-site near the location of the earliest planned detonation 
point. Observers onboard the vessels and the trained observer would 
assess the suitability of the test site, based on visual observation of 
marine mammals, the presence of large Sargassum mats, and overall 
environmental conditions (visibility, sea state, etc.). This 
information would be relayed to the Officer in Tactical Command.

[[Page 60704]]

(b) One Hour Prior to Mission
    One hour prior to the mission, monitoring would commence within the 
test site to evaluate the test site for environmental suitability. The 
observer would monitor the area around the detonation site, out to 0.47 
km (0.25 nmi) from the site, and record in a database all marine 
mammals sightings, include the time of each sighting.
(c) Five Minutes Prior to Mission
    Visual monitoring would continue to document any protected animals 
seen inside the ZOI and farther out to 0.47 km (0.25 nmi). If a marine 
mammal is traveling toward the test area, the time and distance can be 
calculated to determine if it will enter the test area during 
detonation.
(d) Go/No-Go Decision Process
    The observer would plot and record sightings and bearings for all 
marine animals detected. This would depict animal sightings relative to 
the mission area. The observer would have the authority to declare the 
range fouled and recommend a hold until monitoring indicates that the 
test area (or ZOI) is and will remain clear of detectable marine 
mammals.
(e) Throughout the Mission
    Monitoring of the test area will continue until the last detonation 
is complete. If any change in the status of the test area is observed 
or a protected marine mammal is sighted, the mission will be postponed 
until the area can be certified clear of protected marine mammals.
    The mission would be postponed if:
    1. Any marine mammal is visually detected within the ZOI. The delay 
would continue until the marine mammal that caused the postponement is 
confirmed to be outside of the ZOI due to the animal swimming out of 
the range.
    2. Any marine mammal is detected within or about to enter the ZOI 
(230 m [754.6 ft]) and subsequently cannot be reacquired. The mission 
would not continue until the last verified location is outside of the 
ZOI and the animal is moving away from the mission area.
    3. Large Sargassum rafts or large concentrations of jellyfish are 
observed within the ZOI. The delay would continue until the Sargassum 
rafts or jellyfish that caused the postponement are confirmed to be 
outside of the ZOI either due to the current and/or wind moving them 
out of the mission area.
    4. Large schools of fish are observed in the water within 230 m 
(754.6 ft) of the mission area. The delay would continue until the 
large fish schools are confirmed to be outside the ZOI.
    In the event of a postponement, pre-mission monitoring would 
continue as long as weather and daylight hours allow. If a charge 
failed to explode, operations would attempt to recognize and solve the 
problem while continuing with all mitigation measures in place. The 
probability of this occurring is very remote but the possibility still 
exists. Should a charge fail to explode, the Proponent would attempt to 
identify the problem and detonate the charge with all marine mammal 
mitigation measures in place as described.
    Post-mission monitoring: Post-mission monitoring is designed to 
determine the effectiveness of pre-mission mitigation by reporting any 
sightings of dead or injured marine mammals. Post-detonation monitoring 
would commence immediately following each detonation and would be 
concentrated on the area down current of the test site.
    Marine mammals killed by an explosion would likely suffer lung 
rupture, which would cause them to float to the surface immediately due 
to air in the blood stream. Animals that were not killed instantly but 
were mortally wounded would likely resurface within a few days, though 
this would depend on the size and type of animal, fat stores, depth, 
and water temperature (DON, 2001). The monitoring team would attempt to 
document any marine mammals that were killed or injured as a result of 
the test and, if practicable, recover and examine any dead animals. The 
species, number, location, and behavior of any animals observed by the 
observation teams would be documented and reported to the Officer in 
Tactical Command.
    The NMFS maintains stranding networks along coasts to collect and 
circulate information about marine mammal strandings. Local 
coordinators report stranding data to state and regional coordinators. 
Any observed dead or injured marine mammal would be reported to the 
appropriate coordinator.

Summary of Mitigation Plan

    In the event either any human safety concerns arise or marine 
mammals are sighted within the ZOI, the test will be postponed. The 
area to be surveyed will be 0.3 km (0.15 nmi) in every direction from 
the target (approximately the size of the largest harassment ZOI). 
Additionally, a buffer area (0.5 km or 0.25 nmi) will be surveyed for 
protected marine animals moving toward the ZOI. The total area to be 
monitored is 0.7 km\2\ (0.2 nmi\2\). The survey vessel will leave the 
safety footprint immediately prior to detonation; however, given the 
relatively small impact area, visual observation of the ZOI will be 
ongoing.
    Avoidance of impacts to schools of cetaceans will most likely be 
realized through visual monitoring since groups of dolphins are 
relatively easy to spot with the survey distances and methods that will 
be employed.
    Post-mission monitoring would be conducted after each mission and 
would attempt to document any marine mammals that were killed or 
injured as a result of the test and, if practicable, recover and 
examine any dead animals. Post-mission monitoring activities may 
include coordination with marine animals stranding networks if any dead 
or injured marine mammal or sea turtles are observed.
    Hard-bottom habitats and artificial reefs would be avoided to 
alleviate any potential impacts to protected habitat. NEODS testing 
would be delayed if large Sargassum mats or large schools of fish or 
jellyfish were found in the ZOI. Testing would resume only when the 
mats or schools move outside of the largest ZOI. The NEODS personnel 
will recover all debris from the targets and charges following test 
activities.

Proposed 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.
    Mitigations may include any supplemental activities that are 
designed, proposed, and exercised to help reduce or eliminate the 
potential impacts to the marine resources. The Air Force recognizes the 
importance of such ``in-place'' mitigations and is aware that NMFS 
recommends an approved mitigation plan that outlines the scope and 
effectiveness of the Proposed 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.

[[Page 60705]]

    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 may be feasible during the 
mission activities using the operational aircraft.
    <bullet> Conduct survey clearance procedures using best operational 
methods possible.
    <bullet> Clear ZOI and avoid all dolphins and Sargassum rafts to 
the maximum extent possible.
    <bullet> Re-conduct clearance procedures if dolphins or Sargassum 
rafts are encountered.
    <bullet> Conduct post-mission observation and report operations 
data as required by Eglin's Natural Resources Section, 96 CEG/CEVSN.
    <bullet> 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.
    Proposed monitoring requirements in relation to Eglin AFB's NEODS 
training activities would include observations made by the applicant 
and their associates. Information recorded would 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 
initiation of each explosive demolition session. If at any time injury 
or death of any marine mammal occurs that may be a result of the 
proposed 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 would 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.

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 led by other agencies. 
Additionally, the Natural Resources Section also 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 (S-
tag) cruise. Support for these research efforts is anticipated to 
continue. In addition, Eglin's Natural Resources Section has obtained 
Department of Defense funding for two marine mammal habitat modeling 
projects. The latest such project (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

    NMFS implementing regulations codified at 50 CFR 216.103 states 
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.''
    Based on the analysis contained herein, of the likely effects of 
the specified activity on marine mammals and their habitat, and taking 
into consideration the implementation of the mitigation and monitoring 
measures, NMFS, on behalf of the Secretary, preliminarily finds that 
Eglin AFB's proposed activities would result in the incidental take of 
marine mammals, by Level B harassment only, and that the total taking 
from the NEODS training operations would have a negligible impact on 
the affected species or stocks of marine mammals.
    Tables 2, 3, 6 and 7 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 proposed action area.
    For reasons stated previously in this document, the specified 
activities associated with the proposed NEODS operations are not likely 
to cause TTS, PTS, or other non-auditory 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 avoided through the incorporation of the proposed monitoring 
and mitigation measures.
    In making a negligible impact determination NMFS evaluated factors 
such as: No anticipated injury, serious injury, or mortality; the 
number, nature,

[[Page 60706]]

intensity, and duration of harassment (all relatively limited); the low 
probability that take will likely result in effects to annual rates of 
recruitment of survival; the context in which it occurs (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); the status of stock or species of marine 
mammals (i.e., depleted, not depleted, decreasing, increasing, stable, 
impact relative to the size of the population); impacts on habitat 
affecting rates of recruitment/survival; and the effectiveness of 
monitoring and mitigation measures.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

    There is no subsistence hunting for marine mammals in the waters 
off of the coast of Florida that implicates MMPA Section 101(a)(5)(D).

Endangered Species Act (ESA)

    For the reasons already described in this Federal Register notice, 
NMFS has determined that the described proposed NEODS training 
operations and the accompanying IHA may have the potential to adversely 
affect species under NMFS jurisdiction and protected by the ESA. Eglin 
AFB requested a Section 7 consultation pursuant to the ESA with NMFS' 
Southeast Regional Office (SERO) for the revised proposed NEODS 
training operations. NMFS SERO issued a Biological Opinion on October 
25, 2004 for a five year plan of NEODS training operations in the EGTTR 
(Consultation No. F/SER/2004/00361). The U.S. Air Force requested 
informal Section 7 consultation with SERO on May 9, 2010 and SERO 
concurred that the proposed 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 begun conducting NEPA analysis and preparing a Draft 
Environmental Assessment on the Promulgation of Regulations and the 
Issuance of Letters 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 proposed action. NMFS will complete the 
necessary NEPA analysis and the public comments received prior to 
making a determination on the issuance of the final rule and LOA.

Preliminary Determinations

    Based on Eglin AFB's application, as well as the analysis contained 
herein, NMFS has preliminarily 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, in the form of temporarily vacating the action 
area to avoid NEODS training activities and potential for minor visual 
and acoustic disturbance from detonations. The effect of the NEODS 
training operations is expected to be limited to short-term and 
localized TTS-related behavioral changes.
    Due to the infrequency, short time-frame, and localized nature of 
these activities, the number of marine mammals, relative to the stock 
population size, potentially taken by harassment is small. 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 proposed 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 preliminarily 
determined that the anticipated takes incidental to this activity is 
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 proposed 
action as there are no subsistence users within the geographic area of 
the proposed project.

Classification

    For purposes of Executive Order 12866, the Office of Management and 
Budget has determined that this proposed rule 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 proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
The U.S. Air Force is the entity that will be affected by this 
rulemaking, not a small governmental jurisdiction, small organization 
or small business, as defined by the Regulatory Flexibility Act. The 
requested authorization is specific to an will only govern the behavior 
of the U.S. Air Force as it carries out the specified training 
activities on water ranges at Eglin AFB. The primary effect of the 
authorization will be to impose mitigation and monitoring requirements 
on the U.S. Air Force for a specified, limited number of annual 
training events. Thus, the regulated activity involves only military 
activities on a Federal military installation. The requested 
authorization will not affect the activities of the private sector or 
result in any costs to local government jurisdictions. As a result, 
NMFS concludes the action would not result in a significant economic 
impact on a substantial number of small entities.

Proposed Authorization

    As a result of these preliminary determinations, NMFS proposes to 
issue five-year regulations establishing a framework for the issuance 
of LOAs to Eglin AFB for the harassment of Atlantic bottlenose dolphins 
incidental to NEODS training operations, provided the previously 
mentioned mitigation, monitoring, and reporting requirements are 
incorporated.

List of Subjects in 50 CFR Part 217

    Exports, Fish, Imports, Indians, Labeling, Marine mammals, 
Penalties, Reporting and recordkeeping requirements, Seafood, 
Transportation.

    Dated: September 24, 2010.
Eric C. Schwaab,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For reasons set forth in the preamble, 50 CFR part 217 is proposed 
to be amended as follows:

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.

[[Page 60707]]

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 of Letters of Authorization.
217.89 Modifications of Letters of Authorization.

Subpart I-Taking of Marine Mammals Incidental to Naval Explosive 
Ordnance Disposal School (NEODS) Training Operations


Sec.  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 six to seven weeks.
    (3) Four of the training events involving 5-lb charges, and four 
events involving 10-lb charges.
    (4) Up to twenty 5-lb detonations and twenty 10-lb detonations 
annually, for a total of forty detonations.
    (5) The five charges will be detonated individually with a maximum 
separation time of 20 minutes between each detonation.
    (6) Mine shapes and debris will be recovered and removed from the 
Gulf of Mexico waters when training is completed.
    (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 will 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).


Sec.  217.81  Effective dates.

    Regulations in this subpart are effective from December 1, 2010, 
through November 30, 2015.


Sec.  217.82  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec. Sec.  
216.106 and 217.87, the U.S. Department of the Air Force, Headquarters 
96th Air Base Wing, Eglin Air Force Base, its contractors, and clients, 
may incidentally, but not intentionally, take marine mammals by Level B 
harassment, within the area described in Sec.  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 taking of marine mammals is authorized for the species 
listed in Sec.  217.80(b) and is limited to Level B harassment.


Sec.  217.83  Prohibitions.

    Notwithstanding takings contemplated in Sec.  217.80 and authorized 
by a Letter of Authorization issued under Sec.  216.106 and Sec.  
217.87, no person in connection with the activities described in Sec.  
217.80 may:
    (a) Take any marine mammal not specified in Sec.  217.80(b);
    (b) Take any marine mammal specified in Sec.  217.80(b) other than 
by incidental, unintentional harassment;
    (c) Take a marine mammal specified in Sec.  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 
Sec. Sec.  216.106 and 217.87.


Sec.  217.84  Mitigation.

    (a) The activity identified in Sec.  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 Sec.  217.80(a), the mitigation measures 
contained in the Letter of Authorization issued under Sec. Sec.  
216.106 and 217.87 must be implemented. These mitigation measures 
include (but are not limited to):
    (1) The time of detonation will be limited to an hour after sunrise 
and an hour before sunset.
    (2) NEODS missions would be postponed if:
    (i) The Beaufort sea state is greater than scale number three. Such 
a delay would maximize detection of marine mammals.
    (ii) Any marine mammal is visually detected within the Zone of 
Influence. The delay would continue until the marine mammal that caused 
the postponement is confirmed to be outside of the Zone of Influence 
due to the animal swimming out of the range.
    (iii) Any marine mammal is detected within or about to enter the 
Zone of Influence (i.e., the exclusion radius of 230 m or 754.6 ft) and 
subsequently cannot be reacquired. The mission would not continue until 
the last verified location is outside of the Zone of Influence and the 
animal is moving away from the mission area.
    (iv) Large Sargassum rafts of large concentrations of jellyfish are 
observed within the Zone of Influence. The delay would continue until 
the Sargassum rafts or jellyfish that caused the postponement are 
confirmed to be outside of the Zone of Influence either due to the 
current and/or wind moving them out of the mission area.
    (v) Large schools of fish are observed in the water within 230 m 
(754.6 ft) of the mission area. The delay would continue until the 
large fish schools are confirmed to be outside the Zone of Influence.
    (3) A Go/No-Go decision process if the range is fouled and if 
monitoring indicates that the test area is and will remain clear of 
detectable marine mammals. As long as no protected species are sighted 
by the observer, then the mission is a Go, meaning it can proceed. 
However, if the area is fouled, meaning a protected species has entered 
the area, then the mission is a No-Go and cannot proceed until those 
individuals have left the mission area.
    (4) In the event of a postponement, pre-mission monitoring would 
continue as long as weather and daylight hours allow. If a charge 
failed to explode, operations would attempt to recognize and solve the 
problem while continuing with all mitigation measures in place. Should 
a charge fail to explode, the proponent would attempt to identify the 
problem and detonate the charge with all marine mammal mitigation 
measures in place as described.
    (5) Additional mitigation measures as contained in a Letter of 
Authorization.
    (b) [Reserved]


Sec.  217.85  Requirements for monitoring and reporting.

    (a) Holders of Letters of Authorization pursuant to Sec. Sec.  
216.106 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

[[Page 60708]]

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 Sec.  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 Sec.  217.80(b), then the 
Holder of the Letter of Authorization must notify the Director, Office 
of Protected Resources, NMFS, or designee, by telephone (301-713-2289), 
within 24 hours of the discovery of the injured or dead animal.
    (b) Holders of Letters of Authorization must designate trained, 
qualified, on-site 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 are visually 
monitored for marine mammal presence from a surface support vessel 
prior to detonation of mine neutralization charges. The observer on the 
vessel must be equipped with the proper optical equipment and lines of 
communication in order to recommend the Go/No-Go decision.
    (2) Monitoring (pre-mission, two hours prior to mission, one hour 
prior to mission, five minutes prior to mission, throughout the 
mission, post-mission) will be conducted before missions to evaluate 
the test site for environmental suitability of the mission and to 
verify the area is clear of marine mammals within the Zone of 
Influence. If marine mammals are inside the Zone of Influence, firing 
would be postponed until they have left the area.
    (3) Conduct survey clearance procedures using best operational 
methods possible.
    (4) Re-conduct clearance procedures if dolphins or Sargassum rafts 
are encountered.
    (5) Conduct post-mission observation and report operations data as 
required by Eglin Air Force Base's Natural Resources Section, 96 CEG/
CEVSN. Post-mission monitoring would commence immediately following 
each detonation and would 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) Submit an annual summary (coordinated through 96 CEG/CEVSN) of 
mission observations to: NMFS, Southeast Regional Office, Protected 
Resources Division, 9721 Executive Center Drive North, St. Petersburg, 
Florida 33702.
    (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, NMFS, within 
90 days after the conclusion of the NEODS activities. 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 will 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 would be reported to NMFS and U.S. Fish and Wildlife Service.
    (e) An annual report must be submitted at the time of renewal of 
the Letter of Authorization.
    (f) A final report must be submitted at least 180 days prior to 
expiration of these regulations. This report will summarize the 
activities undertaken and the results reported in all previous reports.


Sec.  217.86  Applications for Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, the U.S. citizen (as defined by Sec.  216.103) conducting 
the activity identified in Sec.  217.80(a) must apply for and obtain 
either an initial Letter of Authorization in accordance with Sec.  
217.87 or a renewal under Sec.  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 to the Letter of Authorization must be in the possession 
of the persons conducting activities that may involve incidental 
takings of marine mammals.


Sec.  217.87  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the period of validity of this 
subpart, but must be renewed annually subject to annual renewal 
conditions in Sec.  217.88.
    (b) Each Letter of Authorization will set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact on the 
species, its habitat, and on the availability of the species for 
subsistence uses (i.e., mitigation); and
    (3) Requirements for mitigation, monitoring, and reporting.
    (c) Issuance and renewal of the Letter of Authorization will be 
based on a determination that the total number of marine mammals taken 
by the activity as a whole will have no more than a negligible impact 
on the affected species or stock of marine mammal(s).


Sec.  217.88  Renewal of Letters of Authorization.

    (a) A Letter of Authorization issued under Sec. Sec.  216.106 and 
217.87 for the activity identified in Sec.  217.80(a) will be renewed 
annually upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec.  217.86 will be undertaken and there 
will not be a substantial modification to the described work, 
mitigation or monitoring undertaken during the upcoming 12 months;
    (2) Timely receipt of the monitoring reports required under Sec.  
217.85(d) and (e), and the Letter of Authorization issued under Sec.  
217.87, which has been reviewed and accepted by NMFS; and
    (3) A determination by NMFS that the mitigation, monitoring, and 
reporting measures required under Sec. Sec.  217.84 and 217.85 and the 
Letter of Authorization issued under Sec. Sec.  216.106 and 217.87, 
were undertaken and will be undertaken during the upcoming annual 
period of validity of a renewed Letter of Authorization.
    (b) If a request for a renewal of a Letter of Authorization issued 
under Sec. Sec.  216.106 and 217.88 indicates that a

[[Page 60709]]

substantial modification to the described work, mitigation or 
monitoring undertaken during the upcoming season will occur, NMFS will 
provide the public a period of 30 days for review and comment on the 
request. Review and comment on renewals 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 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 will be published in the Federal Register.


Sec.  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 Sec. Sec.  216.106 
and 217.87 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 Sec.  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 well-being of the species 
or stocks of marine mammals specified in Sec.  217.80(b), a Letter of 
Authorization issued pursuant to Sec. Sec.  216.106 and 217.87 may be 
substantively modified without prior notification and an opportunity 
for public comment. Notification will be published in the Federal 
Register within 30 days subsequent to the action.

[FR Doc. 2010-24689 Filed 9-30-10; 8:45 am]
BILLING CODE 3510-22-P