[Federal Register Volume 76, Number 215 (Monday, November 7, 2011)]
[Notices]
[Pages 68734-68740]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-28778]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XA627


Taking and Importing Marine Mammals: Taking Marine Mammals 
Incidental to Navy Training Exercises in Three East Coast Range 
Complexes

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

ACTION: Notice; proposed modification to letters of authorization; 
request for comments.

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SUMMARY: NMFS has received an application from the U.S. Navy (Navy) for 
modification of three Letters of Authorizations (LOAs) NMFS issued to 
take marine mammals, by harassment, incidental to conducting training 
exercises within the Navy's Virginia Capes (VACAPES), Jacksonville 
(JAX), and Cherry Point (CHPT) Range Complexes off the East Coast of 
the U.S. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is 
requesting comments on its proposal to issue three modified LOAs to the 
Navy to incidentally take marine mammals by harassment during the 
specified activity. These three LOAs, if issued, would supersede those 
issued on June 1, 2011, but would maintain the same expiration date 
(May 31, 2012).

DATES: Comments and information must be received no later than December 
7, 2011.

ADDRESSES: Comments on the application should be addressed to Michael 
Payne, Chief, Permits, Conservation and Education Division, Office of 
Protected Resources, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910. The mailbox address for providing 
email comments is [email protected]. NMFS is not responsible for email 
comments sent to addresses other than the one provided here. Comments 
sent via email, including all attachments, must not exceed a 10-
megabyte file size.
    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 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 also be viewed, by appointment, during regular 
business hours, at the aforementioned address.

FOR FURTHER INFORMATION CONTACT: Shane Guan, Office of Protected 
Resources, NMFS, (301) 427-8418.

SUPPLEMENTARY INFORMATION: 

Background

    Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361 et seq.) directs 
the Secretary of Commerce to allow, upon request, the incidental, but 
not intentional taking of marine mammals by U.S. citizens who engage in 
a military readiness activity if certain findings are made and 
regulations are issued.
    Authorization may be granted for periods of 5 years or less if NMFS 
finds that the taking will have a negligible impact on the species or 
stock(s), and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for certain subsistence uses. 
In addition, NMFS must prescribe regulations that include permissible 
methods of taking and other means effecting the least practicable 
adverse impact on the species and its habitat, and on the availability 
of the species for subsistence uses, paying particular attention to 
rookeries, mating grounds, and areas of similar significance. The 
regulations also must include requirements pertaining to the monitoring 
and reporting of such taking.
    Regulations governing the taking of marine mammals incidental to 
the U.S. Navy's training activities at the Navy's VACAPES, JAX, and 
Cherry Point range complexes were published on June 15, 2009 (VACAPES: 
74 FR 28328; JAX: 74 FR 28349; CHPT: 74 FR 28370) and remain in effect 
through June 4, 2014. They are codified at 50 CFR part 218 subpart A 
(for VACAPES Range Complex), subpart B (for JAX Range Complex), and 
subpart C (for Cherry Point Range Complex). These regulations include 
mitigation, monitoring, and reporting requirements for the incidental 
taking of marine mammals by the Navy's range complex training 
exercises. For detailed information on these actions, please refer to 
the June 15, 2009 Federal Register Notices and 50 CFR part 218 subparts 
A, B, and C.
    An interim final rule was issued on May 26, 2011 (76 FR 30552) to 
allow

[[Page 68735]]

certain flexibilities concerning Navy's training activities at VACAPES 
and JAX, and LOAs were issued to the Navy on June 1st, 2011 (76 FR 
33266; June 8, 2011).

Summary of LOA Request

    On July 6, 2011, NMFS received a request from the U.S. Navy for 
modifications to three LOAs issued by NMFS on June 1, 2011, to take 
marine mammals incidental to training activities at VACAPES, JAX, and 
CHPT Range Complexes (76 FR 33266; June 8, 2011). Specifically, the 
Navy requests that NMFS modify these LOAs to include taking of marine 
mammals incidental to mine neutralization training using time-delay 
firing devices (TDFD) within the above Range Complexes, along with 
revised mitigation measures, to ensure that effects to marine mammals 
resulting from these activities will not exceed what was originally 
analyzed in the Final Rules for these Range Complexes (VACAPES: 74 FR 
28328; JAX: 74 FR 28349; CHPT: 74 FR 28370). The potential effects of 
mine neutralization training on marine mammals were comprehensively 
analyzed in the Navy's 2009 final regulations for these three Range 
Complexes and mine neutralization training has been included in the 
specified activity in the associated 2009, 2010, and 2011 LOAs. 
However, the use of TDFD and the associated mitigation measures have 
not been previously contemplated, which is why NMFS believes it is 
appropriate to provide these proposed modified LOAs to the public for 
review.
    On March 4, 2011, a mine neutralization training event using TDFDs 
is believed to have likely resulted in the death of 5 dolphins in 
Navy's Silver Strand Training Complex. In short, a TDFD device begins a 
countdown to a detonation event that cannot be stopped, for example, 
with a 10-min TDFD, once the detonation has been initiated, 10 minutes 
pass before the detonation occurs and the event cannot be cancelled 
during that 10 minutes. Following the March 4th event, the Navy 
initiated an evaluation of mine neutralization events occurring within 
the VACAPES, JAX, and CHPT Range Complexes and realized that TDFDs were 
being used at those Range Complexes. According to the Navy, less than 
3% of all MINEX events would not use TDFD. As a result, the Navy 
subsequently suspended all underwater explosive detonations using TDFDs 
during training, and the three LOAs issued on June 1, 2011, by NMFS 
specifically do not cover marine mammals taken incidentally as a result 
of such training activities. While this suspension is in place, the 
Navy has been working with NMFS to develop a more robust monitoring and 
mitigation plan to ensure that marine mammal mortality and injury would 
not occur during mine neutralization training activities using TDFDs. 
The following sections provide detailed descriptions regarding the mine 
neutralization training activities, the current mitigation measures, 
and the Navy's proposed revisions to mitigation measures that are 
intended to prevent mortality and injury to marine mammals.
    The Navy's requests the revised LOAs remain valid until June 2012. 
A detailed description of the Navy's LOA modification request can be 
found on NMFS Web site: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.

Description of the Need for Time-Delay Firing Devices in MINEX Training

Overall Operational Mission

    Explosive Ordnance Disposal (EOD) personnel require realistic 
training before conducting high risk, real-world operations. Such real-
world operations include those similar to recent world events requiring 
movement of assets from sea to land and back to sea. These real-world 
operations involve non-permissive environments (i.e., mine fields, 
enemy ships, aircraft, etc.) that require Sailors to carry out their 
mission undetected and with reduced risk. Proficiency in EOD training 
generally, and use of TDFDs as described above, specifically, is 
critical for ensuring the mission of a real-world operation is 
accomplished safely and Sailors return unharmed. Substitutes to using 
TDFDs are contradictory to realistic training and are inadequate at 
satisfying military readiness requirements.
    EOD personnel detect, identify, evaluate, neutralize, raise, tow, 
beach, and exploit mines. Neutralizing an influence mine (e.g., a mine 
that could be triggered by a magnetic, pressure, or acoustic signature) 
is an essential part of the EOD Mine Countermeasures (MCM) mission. 
Neutralization ensures the safety of the men and women of EOD in the 
recovery and exploitation phase of an influence mine. The EOD mission 
is typically to locate, neutralize, recover, and exploit mines after 
they are initially located by another source, such as a MCM or Mine 
Hunting Class (MHC) ship or an MH-53 or MH-60 helicopter. Once the mine 
shapes are located, EOD divers are deployed to further evaluate and 
``neutralize'' the mine.
    During a mine neutralization exercise, if the mine is located on 
the water's surface, then EOD divers are deployed via helicopter. If 
the mine is located at depth, then EOD divers are deployed via small 
boat. The neutralization of mines in the water is normally executed 
with an explosive device and may involve detonation of up to 20 pounds 
net explosive weight of explosives. The charge is set with a TDFD since 
this is the method of detonating the charge in a real-world event.
    TDFDs are the safest and most operationally sound method of 
initiating a demolition charge on a floating mine or mine at depth. 
TDFDs are used because of their ease of employment, light weight, low 
magnetic signature, and because they completely eliminate the need to 
re-deploy swimmers from a helicopter to recover equipment used with 
positive control firing devices, i.e., detonating the charge without 
any time-delay. Most importantly, the TDFD also allows EOD personnel to 
make their way outside of the detonation plume radius/human safety 
buffer zone.
    By using electronic devices as an alternative to a TDFD, such as 
positive control devices that do not include a delay, additional metal 
is unnecessarily introduced into an influence ordnance operating 
environment, which means an environment that includes mines equipped 
with firing circuits (an ``influence firing circuit'') that may be 
actuated by magnetic, pressure, or acoustic influences. While positive 
control devices do allow for instantaneous detonation of the charge, 
they introduce operationally unsound tactics, thereby increasing risks 
to the dive team. It is essential that the platoons train like they 
operate by using TDFDs. In a live mine field, MCM platoons expect there 
to be additional risks, such as unknown mines with different types of 
influence firing circuits that can be in close proximity to the mine 
they are prosecuting. The use of a TDFD reduces these risks by limiting 
the possibility of unintentionally triggering the influence firing 
circuits.
    A Radio Firing Device (RFD), a type of positive control device, can 
be used to initiate the charge on a bottom mine, but it is not normally 
used as a primary firing device due to hazards of electromagnetic 
radiation to ordnance concerns of the electric detonator, Operational 
Risk Management (ORM) (i.e., safety) considerations, and established 
tactical procedures; therefore, they are not considered a practicable 
alternative.
    Adding a positive control firing device to a TDFD as a primary 
means of detonation is not practicable due to ORM considerations. It is 
not sound

[[Page 68736]]

ORM or good demolition practice to combine different firing circuits to 
a demolition charge. In an open ocean environment this practice would 
greatly increase the risk of misfire by putting unnecessary stress on 
all the needed connections and devices (600-1,000 ft of firing wire, an 
improvised, bulky, floating system for the RFD receiver, 180 ft of 
detonating cord, and 10 ft TDFD). Underwater demolition needs to be 
kept as simple and streamlined as possible, especially when divers and 
influence ordnance are added to the equation. ORM must ensure the 
safety of Sailors conducting these high risk training evolutions in 
addition to protection of marine life.
    Mine neutralization training, as described in the regulations, 
involves neutralizing either a simulated mine on the surface or at 
depth. The ratio between surface detonations and bottom detonations (at 
depth) for EOD is about 50/50. This is dependent mainly on range 
availability and weather conditions. During neutralization of a surface 
mine, EOD divers are deployed and retrieved via helicopter. However, 
when helicopter assets are unavailable, a small boat is used as is done 
with neutralization of a mine at depth. During training exercises, 
regardless of whether a helicopter or small boat is used, a minimum of 
two small boats participate in the exercise.
    For a surface mine neutralization training event involving a 
helicopter or a boat, the minimum time-delay that is reasonable for EOD 
divers to make their way outside of the detonation plume radius/human 
safety buffer zone (typically 1,000 ft (334 yd)) is 10 min. For mine 
neutralization training events at depth using small boats, the time-
delay can be minimized to 5 min. However, this would require the 
instructors to handle initiation of the detonation and therefore would 
result in decreased training value for students.
    The range area and associated support equipment are required for a 
6-8 hour window. Training exercises are conducted during daylight hours 
for safety reasons.
    The Navy is proposing to conduct MINEX activities using TDFDs. The 
number and description of MINEX events would remain otherwise unchanged 
from the 2011 Request for Letter of Authorization (DoN 2011) for each 
of the three Range Complexes.

Current and Proposed Modifications to Mitigation and Monitoring 
Measures Related to Mine Neutralizing Training

Current Mitigation Measures

    Current mitigation measures for mine neutralizing training as 
required under the June 2011 LOAs issued to the Navy in the three Range 
Complexes included:
    (A) This activity shall only occur in W-50 of the VACAPES Range 
Complex, Undet North and Undet South of the JAX Range Complex, and Mine 
Neutralization Box of Area 15 of the CHPT Range Complex.
    (B) Observers shall survey the Zone of Influence (ZOI), a 700 yd 
(640 m) radius from detonation location for marine mammals from all 
participating vessels during the entire operation. A survey of the ZOI 
(minimum of 3 parallel tracklines 219 yd [200 m] apart) using support 
craft shall be conducted at the detonation location 30 minutes prior 
through 30 minutes post detonation. Aerial survey support shall be 
utilized whenever assets are available.
    (C) Detonation operations shall be conducted during daylight hours 
only.
    (D) If a marine mammal is sighted within the ZOI, the animal shall 
be allowed to leave of its own volition. The Navy shall suspend 
detonation exercises and ensure the area is clear of marine mammals for 
a full 30 minutes prior to detonation.
    (E) No detonation shall be conducted using time-delay devices.
    (F) Divers placing the charges on mines and dive support vessel 
personnel shall survey the area for marine mammals and shall report any 
sightings to the surface observers. These animals shall be allowed to 
leave of their own volition and the ZOI shall be clear of marine 
mammals for 30 minutes prior to detonation.
    (G) No detonations shall take place within 3.2 nm (6 km) of an 
estuarine inlet.
    (H) No detonations shall take place within 1.6 nm (3 km) of 
shoreline.
    (I) Personnel shall record any protected species observations 
during the exercise as well as measures taken if species are detected 
within the ZOI.

Proposed Modification to Mitigation and Monitoring Measures

    NMFS worked with the Navy and developed a series of modifications 
to improve monitoring and mitigation measures so that take of marine 
mammals will be minimized and that no risk of injury and/or mortality 
to marine mammal would result from the Navy's use of TDFD mine 
neutralization training exercises. The following proposed modifications 
to the mitigation and monitoring measures are specific to Mine 
Neutralization training exercises involving TDFDs conducted within the 
VACAPES, JAX, and CHPT Range Complexes.
    (A) This activity shall only occur in W-50 of the VACAPES Range 
Complex, Undet North and Undet South of the JAX Range Complex, and Mine 
Neutralization Box of Area 15 of the CHPT Range Complex.
    (B) Visual Observation and Exclusion Zone Monitoring.
    The estimated potential for marine mammals to be exposed during 
MINEX training events is not expected to change with the use of TDFDs, 
as the same amount of explosives will be used and the same area 
ensonified/pressurized regardless of whether TDFDs are involved. This 
is due to the fact that estimated exposures are based on the 
probability of the animals occurring in the area when a training event 
is occurring, and this probability does not change because of a time-
delay. However, what does change is the potential effectiveness of the 
current mitigation that is implemented to reduce the risk of exposure.
    The locations selected for MINEX are all close to shore (~3-12 nm) 
and in shallow water (~ 10-20 m) in all three Range Complexes. Based on 
marine mammal monitoring during prior MINEX training activities and 
data from recent monitoring surveys, delphinids (mainly bottlenose 
dolphins) are the most likely species to be encountered in these areas. 
However, mitigation measures apply to all species and will be 
implemented if any marine mammal species is sighted.
    The rationale used to develop new monitoring zones to reduce 
potential impacts to marine mammals when using a TDFD is as follows: 
The Navy has identified the distances at which the sound and pressure 
attenuate below NMFS injury criteria (i.e., outside of that distance 
from the explosion, marine mammals are not expected to be injured). 
Here, the Navy identifies the distance that a marine mammal is likely 
to travel during the time associated with the TDFD's time delay, and 
that distance is added to the injury distance. If this enlarged area is 
effectively monitored, animals would be monitored and detected at 
distances far enough to ensure that they could not swim to the 
injurious zone within the time of the TDFD. Using an average swim speed 
of 3 knots (102 yd/min) for a delphinid, the Navy provided the 
approximate distance that an animal would typically travel within a 
given time-delay period (Table 1). Based on acoustic propagation 
modeling conducted as part of the

[[Page 68737]]

NEPA analyses for these Range Complexes, there is potential for injury 
to a marine mammal within 106 yd of a 5 lb detonation, 163 yd of a 10 
lb detonation, and 222 yd of a 20 lb detonation. The buffer zones were 
calculated based on average swim speed of 3 knots (102 yd/min). The 
specific buffer zones based on charge size and the length of time 
delays are presented in Table 2.

                    Table 1--Potential Distance Based on Swim Speed and Length of Time-Delay
----------------------------------------------------------------------------------------------------------------
                                                                                           Potential  distance
            Species group                    Swim speed                Time-delay                traveled
----------------------------------------------------------------------------------------------------------------
Delphinid...........................  102 yd/min..............  5......................  510 yd.
                                                                6 min..................  612 yd.
                                                                7 min..................  714 yd.
                                                                8 min..................  816 yd.
                                                                9 min..................  918 yd.
                                                                10 min.................  1,020 yd.
----------------------------------------------------------------------------------------------------------------


                               Table 2--Buffer Zone Radius (yd) for TDFDs Based on Size of Charge and Length of Time-Delay
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                                                                                        Time-delay
          Charge size           ------------------------------------------------------------------------------------------------------------------------
                                        5 min                6 min               7 min               8 min               9 min              10 min
--------------------------------------------------------------------------------------------------------------------------------------------------------
5 lb...........................  616 yd.............  718 yd............  820 yd............  922 yd............  1,024 yd..........  1,126 yd.
10 lb..........................  673 yd.............  775 yd............  877 yd............  979 yd............  1,081 yd..........  1,183 yd.
20 lb..........................  732 yd.............  834 yd............  936 yd............  1,038 yd..........  1,140 yd..........  1,242 yd.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    However, it is possible that some animals may travel faster than 
the average swim speed noted above, thus there may be a possibility 
that these faster swimming animals would enter the buffer zone during 
time-delayed to detonation. In order to compensate for the swim 
distance potentially covered by faster swimming marine mammals, an 
additional correction factor was applied to increase the size of the 
buffer zones radii. Specifically, three sizes of buffer zones are 
proposed for the ease of monitoring operations based on size of charge 
and length of time-delay, with an additional buffer added to account 
for faster swim speed. These revised buffer zones are shown in Table 3. 
As long as animals are not observed within the buffer zones before the 
time-delay detonation is set, then the animals would be unlikely to 
swim into the injury zone from outside the area within the time-delay 
window.

 Table 3--Updated Buffer Zone Radius (yd) for TDFDs Based on Size of Charge and Length of Time-Delay, With Additional Buffer Added To Account for Faster
                                                                       Swim Speeds
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                        Time-delay
          Charge size           ------------------------------------------------------------------------------------------------------------------------
                                        5 min                6 min               7 min               8 min               9 min              10 min
--------------------------------------------------------------------------------------------------------------------------------------------------------
5 lb...........................  1,000 yd...........  1,000 yd..........  1,000 yd..........  1,000 yd..........  1,400 yd..........  1,400 yd.
10 lb..........................  1,000 yd...........  1,000 yd..........  1,000 yd..........  1,400 yd..........  1,400 yd..........  1,400 yd.
20 lb..........................  1,000 yd...........  1,000 yd..........  1,400 yd..........  1,400 yd..........  1,400 yd..........  1,450 yd.
--------------------------------------------------------------------------------------------------------------------------------------------------------
1,000 yds: minimum of 2 observation boats.
1,400/1,450 yds: minimum of 3 observation boats or 2 boats and 1 helicopter.

    The current mitigation measure specifies that parallel tracklines 
will be surveyed at equal distances apart to cover the buffer zone. 
Considering that the buffer zone for protection of a delphinid may be 
larger than specified in the current mitigation, a more effective and 
practicable method for surveying the buffer zone is for the survey 
boats to position themselves near the mid-point of the buffer zone 
radius (but always outside the detonation plume radius/human safety 
zone) and travel in a circular pattern around the detonation location 
surveying both the inner (toward detonation site) and outer (away from 
detonation site) areas of the buffer zone, with one observer looking 
inward toward the detonation site and the other observer looking 
outward. When using 2 boats, each boat will be positioned on opposite 
sides of the detonation location, separated by 180 degrees. When using 
more than 2 boats, each boat will be positioned equidistant from one 
another (120 degrees separation for 3 boats, 90 degrees separation for 
4 boats, etc.). Helicopters will travel in a circular pattern around 
the detonation location when used.
    During mine neutralization exercises involving surface detonations, 
a helicopter deploys personnel into the water to neutralize the 
simulated mine. The helicopter will be used to search for any marine 
mammals within the buffer zone. Use of additional Navy aircraft beyond 
those participating in the exercise was evaluated. Due to the limited 
availability of Navy aircraft and logistical constraints, the use of 
additional Navy aircraft beyond those participating directly in the 
exercise was deemed impracticable. A primary logistical constraint 
includes coordinating the timing of the detonation with the 
availability of the aircraft at the exercise location. Exercises 
typically last most of the day and would require an aircraft to be 
dedicated to the event for the entire day to ensure proper survey of 
the buffer zone 30 minutes prior to and after the detonation. The 
timing of the detonation may often shift throughout the day due to 
training tempo and other factors,

[[Page 68738]]

further complicating coordination with the aircraft.
    Based on the above reasoning, the modified monitoring and 
mitigation for visual observation is proposed as the following:
    A buffer zone around the detonation site will be established to 
survey for marine mammals. Events using positive detonation control 
will use a 700 yd radius buffer zone. Events using time-delay firing 
devices will use the table below to determine the radius of the buffer 
zone. Time-delays longer than 10 minutes will not be used. Buffer zones 
of 1,000 yds or less shall use a minimum of 2 boats to survey for 
marine mammals. Buffer zones greater than 1,000 yds radius shall use 3 
boats or 1 helicopter and 2 boats to conduct surveys for marine 
mammals. Two dedicated observers in each of the boats will conduct 
continuous visual survey of the buffer zone for marine mammals for the 
entire duration of the training event. The buffer zone will be surveyed 
from 30 minutes prior to the detonation and for 30 minutes after the 
detonation. Other personnel besides the observers can also maintain 
situational awareness on the presence of marine mammals and sea turtles 
within the buffer zone to the best extent practical given dive safety 
considerations. If available, aerial visual survey support from Navy 
helicopters can be utilized, so long as to not jeopardize safety of 
flight.
    When conducting the survey, boats will position themselves at the 
mid-point of the buffer zone radius (but always outside the detonation 
plume radius/human safety zone) and travel in a circular pattern around 
the detonation location surveying both the inner (toward detonation 
site) and outer (away from detonation site) areas of the buffer zone. 
To the extent practicable, boats will travel at 10 knots to ensure 
adequate coverage of the buffer zone. When using 2 boats in a 1,000 yds 
buffer zone, each boat will be positioned on opposite sides of the 
detonation location at 500 yds from the detonation point, separated by 
180 degrees. When using 3 boats in a 1,400 or 1,450 yds buffer zone, 
each boat will be positioned equidistant from one another (120 degrees 
separation) at 700 or 725 yds respectively from the detonation point. 
Helicopter pilots will use established Navy protocols to determine the 
appropriate pattern (e.g., altitude, speed, flight path, etc.) to 
search and clear the buffer zone of turtles and marine mammals.
    (C) Mine neutralization training shall be conducted during daylight 
hours only.
    (D) Maintaining Buffer Zone for 30 Minutes Prior to Detonation and 
Suspension of Detonation.
    Visually observing the mitigation buffer zone for 30 min prior to 
the detonation allows for any animals that may have been submerged in 
the area to surface and therefore be observed so that mitigation can be 
implemented. Based on average dive times for the species groups that 
are most likely expected to occur in the areas where mine 
neutralization training events take place, (i.e. delphinids), 30 
minutes is an adequate time period to allow for submerged animals to 
surface. Allowing a marine mammal to leave of their own volition if 
sighted in the mitigation buffer zone is necessary to avoid harassment 
of the animal.
    Suspending the detonation after a TDFD is initiated is not possible 
due to safety risks to personnel. Therefore the portion of the measure 
that requires suspension of the detonation cannot be implemented when 
using a TDFD and should be removed, noting that revised mitigation 
measures will make it unnecessary to have to suspend detonation within 
the maximum of ten minutes between setting the TDFD and detonation.
    Based on the above reasoning, the modified monitoring and 
mitigation for pre-detonation observation is proposed as the following:
    If a marine mammal is sighted within the buffer zone, the animal 
will be allowed to leave of its own volition. The Navy will suspend 
detonation exercises and ensure the area is clear for a full 30 minutes 
prior to detonation.
    When required to meet training criteria, time-delay firing devices 
with up to a 10 minute delay may be used. The initiation of the device 
will not start until the area is clear for a full 30 minutes prior to 
initiation of the timer.
    (E) The requirement in the current LOA that ``no detonation shall 
be conducted using time-delayed devices'' is proposed to be deleted as 
the improved monitoring and mitigation measures will minimize the 
potential impacts to marine mammals and greatly reduce the likelihood 
of injury and/or mortality to marine mammals using TDFDs.
    The availability of additional technological solutions that would 
enable suspension of the detonation when using a TDFD was evaluated. 
Currently there are no devices that would stop the timer if a marine 
mammal was sighted within the buffer zone after initiation of the 
timer.
    The Navy states that procurement of new technology can take many 
years to be fielded. Joint service procurement can take approximately 3 
years, with an additional 6 months when an item needs to go through the 
WSESRB (Weapon System Explosive Safety Review Board). For example, the 
Acoustic Firing System (AFS) has been in development for 10 years. It 
is supposed to be fielded ``as is'' to the Fleet in 2011, with the 
understanding that it has not met the minimum standards put forth. Once 
fielded, it will remain in the Product Improvement Process (PIP), which 
can take up to five years to have a finished product. This AFS will not 
be considered a true positive control firing device because current 
technology prevents a shorter time-delay than one minute in the firing 
cycle.
    In 2012 another Radio Firing Device (RFD) will be fielded to the 
Fleet through a new program called the Special Mission Support Program. 
This RFD has a disposable receiver that can function in an Electronic 
Counter Measure (ECM) environment. Navy will evaluate and consider the 
use of the AFS and the new RFD for potential use as mitigation once 
they are fielded, but currently they are not options that can be 
implemented. Without further evaluation, it is not clear whether the 
new RFD could be used to replace TDFD at this moment.
    (F) Diver and Support Vessel Surveys.
    The Navy recommends, and NMFS concurs, revising this measure to 
clarify that it applies to divers only. The intent of the measure is 
for divers to observe the immediate, underwater area around the 
detonation site for marine mammals while placing the charge.
    The modified mitigation measures is provided below:
    Divers placing the charges on mines will observe the immediate, 
underwater area around the detonation site for marine mammals and will 
report any sightings to the surface observers.
    (G) No detonations shall take place within 3.2 nm (6 km) of an 
estuaries inlet.
    (H) No detonations shall take place within 1.6 nm (3 km) of 
shoreline.
    (I) Personnel shall record any protected species observations 
during the exercise as well as measures taken if species are detected 
within the zone of influence (ZOI).

Take Estimates

    There is no change for marine mammal take estimates from what were 
analyzed in the final rules (VACAPES: 74 FR 28328; JAX: 74 FR 28349; 
CHPT: 74 FR 28370; June 15, 2009) for mine neutralization training 
activities in all these three Range Complexes. Take estimates were 
based on marine

[[Page 68739]]

mammal densities and distribution data in the action areas, computed 
with modeled explosive sources and the sizes of the buffer zones.
    The Comprehensive Acoustic System Simulation/Gaussian Ray Bundle 
(OAML, 2002) model, modified to account for impulse response, shock-
wave waveform, and nonlinear shock-wave effects, was run for acoustic-
environmental conditions derived from the Oceanographic and Atmospheric 
Master Library (OAML) standard databases. The explosive source was 
modeled with standard similitude formulas, as in the Churchill FEIS. 
Because all the sites are shallow (less than 50 m), propagation model 
runs were made for bathymetry in the range from 10 m to 40 m.
    Estimated zones of influence (ZOIs; defined as within which the 
animals would experience Level B harassment) varied with the explosive 
weights, however, little seasonal dependence was found among all Range 
Complexes. Generally, in the case of ranges determined from energy 
metrics, as the depth of water increases, the range shortens. The 
single explosion TTS-energy criterion (182 dB re 1 microPa\2\-sec) was 
dominant over the pressure criteria and therefore used to determine the 
ZOIs for the Level B exposure analysis.
    The total ZOI, when multiplied by the animal densities and total 
number of events, provides the exposure estimates for that animal 
species for each specified charge in the VACAPES, JAX, and CHPT Range 
Complexes (Table 4). Since take numbers were estimated without 
considering marine mammal monitoring and mitigation measures, 
therefore, the additional monitoring and mitigation measures and the 
use of TDFD for mine neutralization training would not change the 
estimated takes from the original final rules for JAX (74 FR 28349; 
June 15, 2009) and CHPT (74 FR 28370; June 15, 2009) Range Complexes 
and from the interim final rule for VACAPES Range Complex (76 FR 33266; 
June 8, 2011).

 Table 4--Estimated Takes of Marine Mammals That Could Result From MINEX
------------------------------------------------------------------------
                                    Potential    Potential
                                    exposures    exposures    Potential
    Species/Training Operation      @182 dB re   @205 dB re   exposures
                                   1 [mu]Pa\2\- 1 [mu]Pa\2\-  @30.5 psi
                                   s or 23 psi  s or 13 psi
------------------------------------------------------------------------
VACAPES Range Complex:
    Pantropical spotted dolphin..            4            1            0
    Bottlenose dolphin...........            2            0            0
    Clymene dolphin..............            2            0            0
JAX Range Complex:
    Atlantic spotted dolphin.....            2            0            0
    Bottlenose dolphin...........            2            0            0
CHPT Range Complex:
    Atlantic spotted dolphin.....            1            0            0
------------------------------------------------------------------------

Analysis and Negligible Impact Determination

    Pursuant to NMFS' regulations implementing the MMPA, an applicant 
is required to estimate the number of animals that will be ``taken'' by 
the specified activities (i.e., takes by harassment only, or takes by 
harassment, injury, and/or death). This estimate informs the analysis 
that NMFS must perform to determine whether the activity will have a 
``negligible impact'' on the species or stock. Level B (behavioral) 
harassment occurs at the level of the individual(s) and does not assume 
any resulting population-level consequences, though there are known 
avenues through which behavioral disturbance of individuals can result 
in population-level effects. A negligible impact finding is based on 
the lack of likely adverse effects on annual rates of recruitment or 
survival (i.e., population-level effects). An estimate of the number of 
Level B harassment takes, alone, is not enough information on which to 
base an impact determination. In addition to considering estimates of 
the number of marine mammals that might be ``taken'' through behavioral 
harassment, NMFS must consider other factors, such as the likely nature 
of any responses (their intensity, duration, etc.), the context of any 
responses (critical reproductive time or location, migration, etc.), or 
any of the other variables mentioned in the first paragraph (if known), 
as well as the number and nature of estimated Level A takes, the number 
of estimated mortalities, and effects on habitat.
    The aforementioned additional mitigation and monitoring measures 
will increase the buffer zone to account for marine mammal movement and 
increase marine mammal visual monitoring efforts to ensure that no 
marine mammal would be in a zone where injury and/or mortality could 
occur as a result of time-delayed detonation.
    In addition, the estimated exposures are based on the probability 
of the animals occurring in the area when a training event is 
occurring, and this probability does not change based on the use of 
TDFDs or implementation of mitigation measures (i.e., the exposure 
model does not account for how the charge is initiated and assumes no 
mitigation is being implemented). Therefore, the potential effects to 
marine mammal species and stocks as a result of the proposed mine 
neutralization training activities are the same as those analyzed in 
the final rules governing the incidental takes for these activities. 
Consequently, NMFS believes that the existing analyses in the final 
rules do not change as a result of the proposed LOAs to include mine 
neutralization training activities using TDFDs.
    Further, there will be no increase of marine mammal takes as 
analyzed in previous rules governing NMFS issued incidental takes that 
could result from the Navy's training activities within these Range 
Complexes by using TDFDs.
    Based on the analyses of the potential impacts from the proposed 
mine neutralization training exercises conducted within the Navy's 
VACAPES, JAX, and Cherry Point Range Complexes, especially on the 
proposed improvement on marine mammal monitoring and mitigation 
measures, NMFS has preliminarily determined that the modification of 
the Navy's current LOAs to include taking of marine mammals incidental 
to mine neutralization training using TDFD within the above Range 
Complexes will

[[Page 68740]]

have a negligible impact on the marine mammal species and stocks 
present in these action areas, provided that additional mitigation and 
monitoring measures are implemented.
ESA
    There are six ESA-listed marine mammal species, three sea turtle 
species, and a fish species that are listed as endangered under the ESA 
with confirmed or possible occurrence in the VACAPES, JAX, and CHPT 
Range Complexes: Humpback whale, North Atlantic right whale, blue 
whale, fin whale, sei whale, sperm whale, loggerhead sea turtle, 
leatherback sea turtle, the Kemp's ridley sea turtle, and the shortnose 
sturgeon.
    Pursuant to Section 7 of the ESA, NMFS has begun consultation 
internally on the issuance of the modified LOAs under section 
101(a)(5)(A) of the MMPA for these activities. Consultation will be 
concluded prior to a determination on the issuance of the modified 
LOAs.
NEPA
    NMFS participated as a cooperating agency on the Navy's Final 
Environmental Impact Statements (FEIS's) for the VACAPES, JAX, and CHPT 
Range Complexes. NMFS subsequently adopted the Navy's EIS's for the 
purpose of complying with the MMPA. For the modification of the LOAs, 
which include TDFDs, but also specifically add monitoring and 
mitigation measures to minimize the likelihood of any additional 
impacts from TDFDs, NMFS has determined that there are no changes in 
the potential effects to marine mammal species and stocks as a result 
of the proposed mine neutralization training activities using TDFDs. 
Therefore, no additional NEPA analysis will be required, and the 
information in the existing EIS's remains sufficient.

Preliminary Determination

    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat and dependent 
upon the implementation of the mitigation measures, NMFS preliminarily 
finds that the total taking from Navy mine neutralization training 
exercises utilizing TDFDs in the VACAPES, JAX, and CHPT Range Complexes 
will have a negligible impact on the affected marine mammal species or 
stocks. NMFS has proposed issuance of three modifications to the LOAs 
to allow takes of marine mammals incidental to the Navy's mine 
neutralization training exercises using TDFDs, provided that the 
proposed improvements to the monitoring and mitigation measures are 
implemented.

    Dated: November 2, 2011.
Helen Golde,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2011-28778 Filed 11-4-11; 8:45 am]
BILLING CODE 3510-22-P