SUPPLEMENTARY INFORMATION:

Availability

Electronic copies of the Navy's application and separate monitoring plan may be obtained online at: https://www.fisheries.noaa.gov/​national/​marine-mammal-protection/​incidental-take-authorizations-military-readiness-activities.

In case of problems accessing these documents, please call the contact listed above.

Background

Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce (as delegated to NMFS) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review.

An authorization for incidental takings shall be granted if NMFS finds that the taking 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.

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 MMPA states that the term “take” means to harass, hunt, capture, kill or attempt to harass, hunt, capture, or kill any marine mammal.

Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).

The National Defense Authorization Act (NDAA) for Fiscal Year 2004 (Pub. L. 108-136) removed the “small numbers” and “specified geographical region” limitations indicated above and amended the definition of “harassment” as it applies to a “military readiness activity” to read as follows (Section 3(18)(B) of the MMPA): (i) Any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild (Level A Harassment); or (ii) Any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering, to a point where such behavioral patterns are abandoned or significantly altered (Level B Harassment). On August 13, 2018, the 2019 NDAA (Pub. L. 115-232) amended the MMPA to allow incidental take regulations for military readiness activities to be issued for up to seven years. The proposed action may incidentally expose marine mammals occurring in the vicinity of testing and training operations to elevated levels of underwater sounds in the form of airborne, surface and subsurface detonations of various military munitions, thereby resulting in incidental take, by Level A and Level B harassment. Therefore, the DAF requests authorization to incidentally take marine mammals.

Summary of Request

On June 17, 2022 NMFS received an adequate and complete application from the Eglin AFB requesting authorization for the take of marine mammals, by Level A and B harassment, incidental to testing and training operations (all categorized as military readiness activities). Proposed missions would include be air-to-surface operations that involve firing live or inert munitions, including missiles, bombs, and gun ammunition, from aircraft at targets on the water surface. The types of targets used vary by mission and primarily include stationary, remotely controlled, and towed boats, inflatable targets, and marker flares. Live munitions used in the EGTTR are set to detonate either in the air a few feet above the water surface (airburst detonation), instantaneously upon contact with the water or target (surface detonation), or approximately 5 to 10 feet (1.5 to 3 meters) below the water surface (subsurface detonation). Therefore, Eglin AFB requests authorization to take three species of marine mammals that may occur in this ( printed page 42712) area, Rice's whale ( Balaenoptera ricei) Atlantic bottlenose dolphins ( Tursiops truncatus) and Atlantic spotted dolphins ( Stenella frontalis).

Eglin AFB is also proposing to create and use a new, separate area within the EGTTR that would be used for live missions in addition to the existing live impact area (LIA). Referred to as the East LIA, it is located approximately 40 nautical miles southeast of the existing LIA. The requested regulations will be valid for seven years, from 2023 through 2030.

NMFS issued incidental take regulations and a subsequent Letter of Authorization (LOA) to Eglin AFB for similar specified activities on February 8, 2018 (83 FR 5545). Prior to issuing the 5-year LOA in 2018, NMFS had issued multiple LOAs and 1 year incidental harassment authorizations (IHA) to Eglin AFB for take of marine mammals incidental to similar specified activities. Monitoring reports submitted to NMFS as a condition of the previously-issued LOAs and incidental take authorizations are available online at: https://www.fisheries.noaa.gov/​national/​marine-mammal-protection/​incidental-take-authorizations-military-readiness-activities.

Specified Activities

Eglin AFB proposes the following actions in the EGTTR which would be conducted in the existing LIA and potentially in the proposed East LIA, depending on the mission type and objectives: (1) 52rd Weapons Evaluation Group missions that involves air-to-ground Weapons System Evaluation Program (WSEP) known as Combat Hammer which tests various types of munitions against small target boats and air-to-air missile testing known as Combat Archer; (2) The Air Force Special Operations Command (AFSOC) proposes to continue training missions in the EGTTR primarily involving air-to-surface gunnery, bomb, and missile exercises including AC-130 gunnery training, CV-22 training, and bomb and missile training; (3) 96th Operations Group missions including AC-130 gunnery testing against floating marker targets on the water surface and MQ-9 air-to-surface testing; (3) 780th Test Squadron Precision Strike Weapons testing including air-launched cruise missile tests, Air-to-air missile tests, Longbow and Joint Air-to-Ground Missile (JAGM) testing; Spike Non-Line-of-Sight (NLOS) air-to-surface missile testing, Patriot missile testing, Hypersonic Weapon Testing, sink at-sea live-fire training exercises (SINKEX), and testing using live and inert munitions against targets on the water surface; and (4) Naval School Explosive Ordnance Disposal (NAVSCOLEOD) training missions that involve students diving and placing small explosive charges adjacent to inert mines.

During these activities, ordnances may be delivered by multiple types of aircraft, including bombers and fighter aircraft. Net explosive weights (NEW) of the live munitions range from 0.1 to 945 pounds (lb). A summary of munitions proposed for missions in the EGTTR is shown in Table 1.

Information Solicited

Interested persons may submit information, suggestions, and comments concerning the USAF's request (see ADDRESSES ). NMFS will consider all information, suggestions, and comments related to the request during the development of proposed regulations governing the incidental taking of marine mammals by the USAF, if appropriate.

87 FR 42711