(a) Regulations in this subpart apply only to the U.S. Air Force (USAF) for the taking of marine mammals that occurs in the area described in paragraph (b) of this section and that occurs incidental to the activities listed in paragraph (c) of this section.

(b) The taking of marine mammals by the USAF under this subpart may be authorized in a Letter of Authorization (LOA) only if it occurs within the Eglin Gulf Test and Training Range (EGTTR). The EGTTR is located adjacent to Santa Rosa, Okaloosa, and Walton Counties and includes property on Santa Rosa Island and Cape San Blas. The EGTTR is the airspace controlled by Eglin Air Force Base (AFB) over the Gulf of Mexico, beginning 3 nautical miles (nmi) from shore, and the underlying Gulf of Mexico waters. The EGTTR extends southward and westward off the coast of Florida and encompasses approximately 102,000 square nautical miles (nmi 2). It is subdivided into blocks of airspace that consist of Warning Areas W-155, W-151, W-470, W-168, and W-174 and Eglin Water Test Areas 1 through 6. The two primary components of the EGTTR Complex are Live Impact Area and East Live Impact Area.

(c) The taking of marine mammals by the USAF is only authorized if it occurs incidental to the USAF conducting training and testing activities, including air warfare and surface warfare training and testing activities.

Regulations in this subpart are effective from April 13, 2023, through April 13, 2030.

(a) Under an LOA issued pursuant to § 216.106 of this subchapter and § 218.66, the Holder of the LOA (hereinafter “USAF”) may incidentally, but not intentionally, take marine mammals within the area described in § 218.60(b) by Level A and Level B harassment (defined in section 3(18)(B) of the Marine Mammal Protection Act) associated training and testing activities described in § 218.60(c) provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the applicable LOA.

(b) The incidental take of marine mammals by the activities listed in § 218.60(c) is limited to the species and stocks listed in table 1 to this paragraph (b). Only Level B Harassment of Rice's whales is authorized. Level A Harassment and level B Harassment of the two dolphin stocks are authorized.

(a) Except for permissible incidental take described in § 218.62(a) and authorized by an LOA issued under § 216.106 of this subchapter and § 218.66, no person in connection with the activities listed in § 218.66 may do any of the following in connection with activities listed in § 218.60(c):

(1) Violate, or fail to comply with, the terms, conditions, or requirements of this subpart or an LOA issued under § 216.106 of this subchapter and § 218.66;

(2) Take any marine mammal not specified in § 218.62(b);

(3) Take any marine mammal specified in § 218.62(b) in any manner other than as specified in the LOA issued under § 216.106 of this subchapter and § 218.66;

(4) Take a marine mammal specified in § 218.62(b) after the National Marine Fisheries Service (NMFS) determines such taking results in more than a negligible impact on the species or stock of such marine mammal.

(b) [Reserved]

(a) When conducting the activities identified in § 218.60(c), the mitigation measures contained in this subpart and any LOA issued under § 216.106 of this subchapter and § 218.66 must be implemented. These mitigation measures include, but are not limited to:

(1) Operational measures. Operational mitigation is mitigation that the USAF must implement whenever and wherever an applicable training or testing activity takes place within the EGTspan for each mission-day category.

(i) Pre-mission survey. (A) All missions must occur during daylight hours with the exception of gunnery training, mission-day category K, and other missions that can have nighttime monitoring capabilities comparable to the nighttime monitoring capabilities of gunnery aircraft.

(B) USAF range-clearing vessels and marine mammal survey vessels must be onsite 90 minutes before mission to clear prescribed human safety zone and survey the mitigation zone for the given mission-day category.

(C) For all live missions except gunnery missions, USAF Protected Species Observers (PSOs) must monitor the mitigation zones as defined in table 1 to paragraph (a)(1)(i)(C)(5) of this section for the given mission-day category for a minimum of 30 minutes or until the entirety of the mitigation zone has been surveyed, whichever takes longer.

(1) The mitigation zone for live munitions must be defined by the mission-day category that most closely corresponds to the actual planned mission based on the predicted net explosive weight at impact (NEWi) to be released, as shown in table 1 to paragraph (a)(1)(i)(C)(5) of this section.

(2) The mitigation zone for inert munitions must be defined by the energy class that most closely corresponds to the actual planned mission, as shown in table 2 to paragraph (a)(1)(i)(D) of this section.

(3) The energy of the actual mission must be less than the energy of the identified mission-day category in terms of total NEWi as well as the largest single munition NEWi.

(4) For any gunnery missions PSOs must at a minimum monitor out to the mitigation zone distances shown in table 3 to paragraph (a)(1)(i)(D) of this section that applies for the corresponding energy class.

(5) Missions falling under mission-day categories A, B, C, and J, and all other missions when practicable must allot time to provide PSOs to vacate the human safety zone. While exiting, PSOs must observe the monitoring zone out to corresponding mission-day category as shown in table 1 to this paragraph (a)(1)(i)(C)(5).

(D) Missions involving air-to-surface gunnery operations must conduct aerial monitoring of the mitigation zones, as described in the table 3 to this paragraph (a)(1)(i)(D).

(ii) Mission postponement, relocation, or cancellation. (A) If marine mammals other than the two authorized dolphin species for which take is authorized are observed in either the mitigation zone or monitoring zone by PSOs, then mission activities must be cancelled for the remainder of the day.

(B) The mission must be postponed, relocated, or cancelled if either of the two authorized dolphin species are visually detected in the mitigation zone during the pre-mission survey. Postponement must continue until the animals are confirmed to be outside of the mitigation zone and observed by a PSO to be heading away from the mitigation zone or until the animals are not seen again for 30 minutes.

(C) The mission must be postponed if marine mammal indicators (i.e., large schools of fish or large flocks of birds) are observed feeding at the surface within the mitigation zone. Postponement must continue until these potential indicators are confirmed to be outside the mitigation zone.

(D) If either of the two authorized dolphin species are observed in the monitoring zone by PSOs when observation vessels are exiting the human safety zone, and if PSOs determine the marine mammals are heading toward the mitigation zone, then missions must either be postponed, relocated, or cancelled based on mission-specific test and environmental parameters. Postponement must continue until the animals are confirmed by a PSO to be heading away from the mitigation zone or until the animals are not seen again for 30 minutes.

(E) Aerial-based PSOs must look for potential indicators of marine mammal species presence, such as large schools of fish and large, active groups of birds.

(F) If marine mammal or potential indicators are detected in the mitigation area during pre-mission surveys or during the mission by aerial-based or video-based PSOs, operations must be immediately halted until the mitigation zone is clear of all marine mammals, or the mission must be relocated to another target area.

(iii) Vessel avoidance measures. Vessel operators must follow vessel strike avoidance measures.

(A) When any marine mammal is sighted, vessels must attempt to maintain a distance of at least 150 ft (46 m) away from marine mammals and 300 ft (92 m) away from whales. Vessels must reduce speed and avoid abrupt changes in direction until the animal(s) has left the area.

(B) If a whale is sighted in a vessel's path or within 300 feet (92 m) from the vessel, the vessel speed must be reduced and the vessel's engine must be shifted to neutral. The engines must not be engaged until the animals are clear of the area.

(C) If a whale is sighted farther than 300 feet (92 m) from the vessel, the vessel must maintain a distance of 300 feet greater between the whale and the vessel's speed must be reduced to 10 knots or less.

(D) Vessels are required to stay 500 m away from the Rice's whale. If a baleen whale cannot be positively identified to species level then it must be assumed to be a Rice's whale and the 500 m separation distance must be maintained.

(E) Vessels must avoid transit in the core distribution area (CDA), as specified in the LOA issued under § 216.106 of this subchapter and § 218.66, and within the 100—400 m isobath zone outside the CDA. If transit in these areas is unavoidable, vessels must not exceed 10 knots and transit at night is prohibited.

(F) An exception to any vessel strike avoidance measure is for instances required for human safety, such as when members of the public need to be intercepted to secure the human safety zone, or when the safety of a vessel operations crew could be compromised.

(iv) Gunnery-specific mitigation. (A) If 105-mm rounds are used during nighttime gunnery missions they must be 105 mm training rounds. The USAF may only use 105-mm high-explosive (HE) rounds during daytime operations.

(B) Within a mission, firing must start with use of the lowest caliber munition and proceed to increasingly larger rounds.

(C) Any pause in live fire activities greater than 10 minutes must be followed by the re-initiation of pre-mission surveys.

(2) Geographic mitigation measures—(i) Setbacks for Live Impact Areas (LIAs). Use of live munitions with surface or subsurface detonations is restricted in the western part of the existing LIA and East LIA such that activities may not occur seaward of the setbacks from the 100 m-isobath shown in table 4 to this paragraph (a)(2)(i).

(ii) Gunnery missions. All gunnery missions must be conducted at least 500 meters landward of the 100-m isobath.

(iii) Live munition prohibitions. Use of live munitions with surface or subsurface detonations must be restricted to the LIA and East LIA and is prohibited from the area between the 100-m and 400-m isobaths.

(iv) Inert munition restrictions. Use of inert munitions is prohibited between the 100-m and 400-m isobaths throughout the EGTspan.

(v) Mission category K restrictions. (A) Munitions under mission-day category K must be fired into the EGTspan inside of the LIAs and outside of the area between 100-m to 400-m isobaths

(B) Mission-day category K munitions must have a setback of 1.338 km from the 100-m isobath.

(C) Mission-day category K munitions may be fired into portions of the EGTspan outside the LIAs but must be outside the area between the 100-m and 400-m isobaths.

(3) Environmental mitigation—(i) Sea state conditions. Missions must be postponed or rescheduled if conditions exceed Beaufort sea state 4, which is defined as moderate breeze, breaking crests, numerous white caps, wind speed of 11 to 16 knots, and wave height of 3.3 to 6 feet.

(ii) Daylight restrictions. All live missions except for nighttime gunnery and mission-day category K will occur no earlier than 2 hours after sunrise and no later than 2 hours before sunset.

(b) [Reserved]

(a) PSO training. All personnel who conduct protected species monitoring must complete Eglin Air Force Base's (AFB) Marine Species Observer Training Course.

(1) Any person who will serve as a PSO for a particular mission must have completed the training within a year prior to the mission.

(2) For missions that require multiple survey platforms to cover a large area, a Lead Biologist must be designated to lead the monitoring and coordinate sighting information with the Test Director or Safety Officer.

(b) Vessel-based monitoring. (1) Survey vessels must run predetermined line transects, or survey routes that will provide sufficient coverage of the survey area.

(2) Monitoring must be conducted from the highest point feasible on the vessels.

(3) There must be at least two PSOs on each survey vessel.

(4) For missions that require multiple vessels to cover a large survey area, a Lead Biologist must be designated.

(i) The Lead Biologist must coordinate all survey efforts.

(ii) The Lead Biologist must compile sightings information from other vessels.

(iii) The Lead Biologist must inform Tower Control if the mitigation and monitoring zones are clear or not clear of marine mammal species.

(iv) If the area is not clear, the Lead Biologist must provide recommendations on whether the mission should be postponed or canceled.

(v) Tower Control must relay the Lead Biologist's recommendation to the Safety Officer. The Safety Officer and Test Director must collaborate regarding range conditions based on the information provided.

(vi) The Safety Officer must have the final authority on decisions regarding postponements and cancellations of missions.

(c) Aerial-based monitoring. (1) All mission-day categories require aerial-based monitoring, assuming assets are available and when such monitoring does not interfere with testing and training parameters required by mission proponents.

(2) Gunnery mission aircraft must also serve as aerial-based monitoring platforms.

(3) Aerial survey teams must consist of Eglin Natural Resources Office personnel or their designees aboard a non-mission aircraft or the mission aircrew.

(4) All aircraft personnel on non-mission and mission aircraft who are acting in the role of a PSO must have completed Eglin AFB's Marine Species Observer Training Course.

(5) One trained PSO in the aircraft must record data and relay information on species sightings, including the species (if possible), location, direction of movement, and number of animals, to the Lead Biologist.

(6) For gunnery missions, after arriving at the mission site and before initiating gun firing, the aircraft must fly at least two complete orbits around the target area out to the applicable monitoring zone at a minimum safe airspeed and appropriate monitoring altitude as shown in table 3 to § 218.64(a)(1)(i)(D).

(7) Aerial monitoring by aircraft must maintain a minimum ceiling of 305 m (1,000 feet) and visibility of 5.6 km (3 nmi) for effective monitoring efforts and flight safety as shown in table 3 to § 218.64(a)(1)(i)(D).

(8) Pre-mission aerial surveys conducted by gunnery aircrews in AC-130s must extend out 5 nmi (9,260 m) from the target location while aerial surveys in CV-22 aircraft must extend out from the target location to a range of 3 nmi (5,556 m) as shown in table 3 to § 218.64(a)(1)(i)(D).

(9) If the mission is relocated, the pre-mission survey procedures must be repeated in the new area.

(10) If multiple gunnery missions are conducted during the same flight, marine species monitoring must be conducted separately for each mission.

(11) During nighttime missions, night-vision goggles must be used.

(12) During nighttime missions, low-light electro-optical and infrared sensor systems on board the aircraft must be used for marine mammal species monitoring.

(13) Mission-day category K tests and any other missions that are conducted at nighttime must be supported by AC-130 aircraft with night-vision instrumentation or other platforms with comparable nighttime monitoring capabilities.

(14) For Mission-day category K missions, the pre-mission survey area must extend out to, at a minimum, double the Level A harassment (PTS) threshold distance for delphinids (0.89 km). Mission-day category K is estimated to have a PTS threshold distance of 0.445 km as shown in table 1 to this paragraph (c)(14).

(d) Video-based monitoring. (1) All mission-day categories require video-based monitoring when practicable except for gunnery missions.

(2) A trained PSO (the video camera PSO) must monitor the live video feeds from the Gulf Range Armament Test Vessel (GRATV) transmitted to the Central Control Facility (CCF).

(3) The video camera PSO must report any marine mammal species sightings to the Safety Officer, who will also be at the CCF.

(4) The video camera PSO must have open lines of communication with the PSOs on vessels to facilitate real-time reporting of marine species sightings.

(5) Direct radio communication must be maintained between vessels, GRATV personnel, and Tower Control throughout the mission.

(6) If a marine mammal species is detected on the live video by a PSO prior to weapon release, the mission must be stopped immediately by the Safety Officer.

(7) Supplemental video monitoring by additional aerial assets must be used when practicable (e.g. balloons, unmanned aerial vehicles).

(e) Post-mission monitoring. (1) All marine mammal sightings must be documented on report forms that are submitted to the Eglin Natural Resources Office after the mission.

(2) For gunnery missions, following each mission, aircrews must conduct a post-mission survey beginning at the operational altitude and continuing through an orbiting descent to the designated monitoring altitude. The post-mission survey area will be the area covered in 30 minutes of observation in a direction down-current from the impact site or the actual pre-mission survey area, whichever is reached first.

(3) During post-mission monitoring, PSOs must survey the mission site for any dead or injured marine mammals. The post-mission survey area will be the area covered in 30 minutes of observation in a direction down-current from the impact site or the actual pre-mission survey area, whichever is reached first.

(f) Acoustic monitoring. (1) The USAF must conduct a single passive acoustic monitoring (PAM) study to investigate marine mammal vocalizations before, during, and after live missions that include underwater detonations in the EGTspan.

(2) The USAF must further investigate ways to supplement its mitigation measures with the use of real-time PAM devices (i.e., sonobuoys or hydrophones).

(3) These studies are contingent upon the availability of funding.

(4) Both studies must be approved by NMFS.

(g) Annual monitoring report. The USAF must submit an annual draft monitoring report to NMFS within 90 working days of the completion of each year's activities authorized by the LOA as well as a comprehensive summary report at the end of the project. The annual reports and final comprehensive report must be prepared and submitted within 30 days following resolution of any NMFS comments on the draft report. If no comments are received from NMFS within 30 days of receipt of the draft report, the report will be considered final. If comments are received, a final report addressing NMFS comments must be submitted within 30 days after receipt of comments. The annual reports must contain the informational elements described in paragraphs (g)(1) through (5) of this section, at a minimum. The comprehensive 7-year report must include a summary of the monitoring information collected over the 7-year period (including summary tables), along with a discussion of the practicability and effectiveness of the mitigation and monitoring and any other important observations or discoveries.

(1) Dates and times (begin and end) of each EGTspan mission;

(2) Complete description of mission activities;

(3) Complete description of pre-and post-monitoring activities occurring during each mission;

(4) Environmental conditions during monitoring periods including Beaufort sea state and any other relevant weather conditions such as cloud cover, fog, sun glare, and overall visibility to the horizon, and estimated observable distance; and

(5) Upon observation of a marine mammal, the following information should be collected:

(i) Observer who sighted the animal and observer location and activity at time of sighting;

(ii) Time of sighting;

(iii) Identification of the animal (e.g., genus/species, lowest possible taxonomic level, or unidentified), observer confidence in identification, and the composition of the group if there is a mix of species;

(iv) Distances and bearings of each marine mammal observed in relation to the target site;

(v) Estimated number of animals including the minimum number, maximum number, and best estimate);

(vi) Estimated number of animals by cohort (e.g., adults, juveniles, neonates, group composition etc.);

(vii) Estimated time that the animal(s) spent within each of the mitigation and monitoring zones;

(viii) Description of any marine mammal observed marine mammal behaviors (such as feeding or traveling) or changes in behavioral patterns (e.g., changes in travel direction or speed, breaking off feeding, breaching), noting when they relate to know changes in activities;

(ix) Detailed information about implementation of any mitigation (e.g., postponements, relocations and cancellations); and

(x) All PSO datasheets and/or raw sightings data.

(6) The final comprehensive report must include a summary of data collected as part of the annual reports.

(h) Reporting dead or injured marine mammal. (1) In the event that personnel involved in the monitoring activities discover an injured or dead marine mammal, the USAF must report the incident to NMFS Office of Protected Resources (OPR), and to the NMFS Southeast Region Marine Mammal Stranding Network Coordinator, as soon as feasible. If the death or injury was likely caused by the USAF's activity, the USAF must immediately cease the specified activities until NMFS OPR is able to review the circumstances of the incident and determine what, if any, additional measures are appropriate to ensure compliance with the terms of this subpart and the LOA issued under § 216.106 of this subchapter and § 218.66.

(2) The USAF will not resume their activities until notified by NMFS. The report must include the following information:

(i) Time, date, and location (latitude/longitude) of the first discovery (and updated location information if known and applicable);

(ii) Species identification (if known) or description of the animal(s) involved;

(iii) Condition of the animal(s) (including carcass condition if the animal is dead);

(iv) Observed behaviors of the animal(s), if alive;

(v) If available, photographs or video footage of the animal(s); and

(vi) General circumstances under which the animal was discovered.

(a) To incidentally take marine mammals pursuant to the regulations in this subpart, the USAF must apply for and obtain an LOA in accordance with § 216.106 of this subchapter.

(b) An LOA, unless suspended or revoked, may be effective seven years from the date of issuance.

(c) Except for changes made pursuant to the adaptive management provision of § 218.67(b)(1), in the event of projected changes to the activity or to mitigation, monitoring, or reporting required by an LOA issued under this subpart, the USAF must apply for and obtain a modification of the LOA as described in § 218.67.

(d) Each LOA will set forth:

(1) Permissible methods of incidental taking;

(2) Geographic areas for incidental taking;

(3) Means of effecting the least practicable adverse impact (i.e., mitigation) on the species or stocks of marine mammals and their habitat; and

(4) Requirements for monitoring and reporting.

(e) Issuance of the LOA(s) must be based on a determination that the level of taking is consistent with the findings made for the total taking allowable under the regulations in this subpart.

(f) Notice of issuance or denial of the LOA(s) will be published in the Federal Register within 30 days of a determination.

(a) An LOA issued under § 216.106 of this subchapter and § 218.66 for the activity identified in § 218.60(c) may be modified upon request by the applicant, consistent with paragraph (b) of this section, provided that any requested changes to the activity or to the mitigation, monitoring, or reporting measures (excluding changes made pursuant to the adaptive management provision in paragraph (b)(1) of this section) do not change the underlying findings made for the regulations in this subpart and do not result in more than a minor change in the total estimated number of takes (or distribution by species or years).

(b) An LOA issued under § 216.106 of this subchapter and § 218.66 may be modified by NMFS under the following circumstances:

(1) Adaptive management. After consulting with the USAF regarding the practicability of the modifications, NMFS may modify (including adding or removing measures) the existing mitigation, monitoring, or reporting measures if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring.

(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA include:

(A) Results from USAF's annual monitoring report and annual exercise report from the previous year(s);

(B) Results from other marine mammal and/or sound research or studies;

(C) Results from specific stranding investigations; or

(D) Any information that reveals marine mammals may have been taken in a manner, extent, or number not authorized by the regulations in this subpart or subsequent LOAs.

(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a notice of a new proposed LOA in the Federal Register and solicit public comment.

(2) Emergencies. If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species of marine mammals specified in LOAs issued pursuant to § 216.106 of this subchapter and § 218.66, an LOA may be modified without prior public notice or opportunity for public comment. Notice will be published in the Federal Register within thirty days of the action.