[Federal Register Volume 77, Number 9 (Friday, January 13, 2012)]
[Notices]
[Pages 2040-2047]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-610]


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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; issuance of three modified Letters of Authorization.

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SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA), as 
amended, and implementing regulations, notification is hereby given 
that NMFS has made modifications to three Letters of Authorization 
(LOAs) to take marine mammals by harassment incidental to

[[Page 2041]]

the U.S. Navy's training activities within the Navy's Virginia Capes 
(VACAPES), Jacksonville (JAX), and Cherry Point (CHPT) Range Complexes 
to the Commander, U.S. Fleet Forces Command, 1562 Mitscher Avenue Suite 
250, Norfolk, VA 23551-2487 and persons operating under his authority.

DATES: Effective from January 6, 2012, through June 4, 2012.

ADDRESSES: Copies of the Navy's request for LOA modifications, the 
LOAs, the Navy's 2010 marine mammal monitoring report and the Navy's 
2010 exercise report are available by writing to P. Michael Payne, 
Chief, Permits and Conservation Division, Office of Protected 
Resources, National Marine Fisheries Service, 1315 East-West Highway, 
Silver Spring, MD 20910, by telephoning the contact listed here (See 
FOR FURTHER INFORMATION CONTACT), or online at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. Documents 
cited in this notice may be viewed, by appointment, during regular 
business hours, at the aforementioned address.

FOR FURTHER INFORMATION CONTACT: Shane Guan, Office of Protected 
Resources, NMFS (301) 713-2289 x 137.

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 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.
    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, 
and if the permissible methods of taking and requirements pertaining to 
the mitigation, monitoring and reporting of such taking are set forth.
    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 certain flexibilities concerning Navy's training activities at 
VACAPES and JAX, and LOAs were issued to the Navy on June 1, 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 requested 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 was 
appropriate to provide these proposed modified LOAs to the public for 
review. NMFS published a notice proposing to modify the three LOAs on 
November 7, 2011 (76 FR 68734).
    On March 4, 2011, three dolphins were suspected to be killed by the 
Navy's mine neutralization training event using TDFDs in its 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. Although in the Federal Register notice for the proposed LOA 
(76 FR 68734; November 7, 2011), it stated that using TDFDs is believed 
to have likely resulted in the death of five dolphins, further 
discussion with the Navy and reviewing of reports concerning the 
incident showed that there is no concrete evidence that more than three 
dolphins were killed. 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 was in place, the 
Navy worked 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 Navy requested that the revised LOAs remain valid until June 
2012. A detailed description of the Navy's LOA modification request can 
be found on the 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

    A detailed description of the overall operational mission 
concerning the use of TDFD is provided in the Federal Register notice 
for the proposed LOA (76 FR 68734; November 7, 2011), therefore, it is 
not repeated here.

Comments and Responses

    A notice of receipt and request for public comment on the 
application and proposed authorization was published on November 7, 
2011 (76 FR 68734). During the 30-day public comment period, NMFS 
received comments from the Marine Mammal Commission (Commission) and 
one private citizen.
    Comment 1: The Commission recommends that NMFS and the Navy 
investigate the underlying cause of the high rate of non-compliance 
with the respective LOAs and determine why it was not detected earlier. 
Specifically, the Commission stated that the Navy had been using the 
TDFDs at the three east coast Range Complexes until the dolphin 
mortality incident at the Silver Strand Training Complex (SSTC),

[[Page 2042]]

despite a clear prohibition of using such devices in the applicable 
LOAs from NMFS. The Commission also states that the non-compliance with 
this provision also calls into question whether the Navy is fully 
complying with the other terms and conditions of the applicable letters 
of authorization.
    Response: The Navy has not violated any provisions of their LOAs or 
rules. There were no prohibitions against using TDFDs in the earlier 
LOAs and rules issued to the Navy. The use of TDFDs was not identified 
in the Navy's LOA application and the explosives used in the mine 
neutralization training was treated as standard underwater detonation 
with positive control, therefore the use of TDFDs was not analyzed 
during the rulemaking stage and thus the LOAs issued to the Navy did 
not include the prohibition of using TDFDs for mine neutralization 
training. The issue of using TDFDs became known after the SSTC dolphin 
mortality incident mentioned above, and the Navy suspended all 
underwater detonation events that use those devices and worked with 
NMFS to come up with a more robust mitigation and monitoring plan. In 
the meantime, NMFS modified the 2010 LOAs that were issued to the Navy 
with the prohibition that no TDFDs be used for mine neutralization 
training, and the Navy complied with that prohibition.
    Comment 2: The Commission recommends that NMFS and the Navy jointly 
review the full scope of the applicable regulations and letters of 
authorization to ensure that the responsible Navy officials are aware 
of, understand, and are in compliance with all mitigation, monitoring, 
and reporting requirements.
    Response: NMFS agrees with the Commission's recommendation. NMFS 
and the Navy worked together closely in developing all mitigation, 
monitoring, and reporting measures for the Navy's MMPA authorizations 
and regulations applicable to training activities. In addition, draft 
regulations and authorizations were also sent to the Navy for review to 
ensure that the mitigation, monitoring, and reporting measures set 
forth are attainable and practicable.
    Comment 3: The Commission recommends that NMFS require the Navy to 
conduct empirical sound propagation measurements to verify the adequacy 
of the sizes of the exclusion zones for 5-, 10-, and 20-lb charges and 
to expand those zones and the buffer zones derived from those zones as 
necessary, if NMFS amends the LOA as proposed.
    Response: In 2002, the Navy conducted empirical measurements of 
underwater detonations at San Clemente Island and at the SSTC in 
California. During these tests, 2 lb and 15 lb net explosive weight 
charges were placed at 6 and 15 feet of water and peak pressures and 
energies were measured for both bottom placed detonations and 
detonations off the bottom. A finding was that, generally, single-
charge underwater detonations, empirically measured, were similar to or 
less than propagation model predictions (DoN 2006).
    On the east coast, the Navy has conducted marine mammal surveys 
during mine neutralization training events during August of 2009, 2010, 
and 2011 as part of its marine mammal monitoring program (see Navy's 
VACAPES, JAX, and CHPT annual monitoring reports for further details). 
NMFS contacted Navy regarding the feasibility of empirical sound 
propagation measurement in the east coast range complexes. The Navy 
stated that it will explore the value of adding field measurements 
during monitoring of a future mine neutralization event after 
evaluating the environmental variables affecting sound propagation in 
the area, such as shallow depths, seasonal temperature variation, 
bottom sediment composition, and other factors that would affect our 
confidence in the data collected. If such data can be collected without 
unreasonable costs and impacts to training, the Navy will move forward 
in incorporating the measurements into its monitoring program for east 
coast mine neutralization training.
    At this moment, because the modeled exclusion zones are set to be 
much larger than the measured and modeled zones of injury or TTS, NMFS 
does not believe that there is added value to conducting empirical 
measurements before the issuance of the modified LOAs, especially given 
the short time frame during which the LOA modifications will be 
effective. Nevertheless, NMFS would recommend the Navy conduct these 
measurements as funding becomes available.
    Comment 4: The Commission recommends that NMFS require the Navy to 
re-estimate the sizes of the buffer zones using the mean average swim 
speeds plus at least one standard deviation for marine mammals that 
inhabit the shallow-water areas where TDFDs would be used, prior to 
amending the LOAs. The Commission states that if an animal swims at 
just 1 knot faster than the Navy's assumption of average swim speed at 
3 knots, the Navy would have underestimated the size of the buffer 
zones in 8 of the 18 scenarios presented in Table 3 of the proposed LOA 
(76 FR 68734; November 7, 2011; Table 4 in the current document). The 
Commission further supports its argument with studies from Lockyer and 
Morris (1987) and Mate et al. (1995), which showed that the average 
swim speed for bottlenose dolphins ranged from 2.6 to 8 knots.
    Response: First, although the Commission's recommendation of using 
the mean average swim speeds plus at least one standard deviation for 
marine mammals warrants consideration, it is not currently possible to 
implement because the actual data deriving the average swim speeds and 
the number of samples are unknown, therefore, the standard deviation 
cannot be calculated. The average dolphin swim speed used in 
establishing the buffer zones were based on published peer-review 
papers (e.g., Perrin et al. (1979), W[uuml]rsig and W[uuml]rsig (1979), 
Hui (1987), and Mate et al. (1995)) instead of actual data 
measurements. If what the Commission means is to use the mean published 
average swim speeds to calculate the ``among population standard 
deviation'', other issues exist: (1) There are only a handful of 
published reports (four reviewed by NMFS and two additional papers by 
the Commission, with one reviewed by both NMFS and the Commission), so 
the mean of the average swim speeds plus their standard deviation 
reported in these five documents (among three species) would have no 
statistical meaning, and (2) Some of the papers (e.g., Lockyer and 
Morris (1987) and Perrin et al. (1979)) reported a range of the average 
speeds, which would not even allow for such calculations. In addition, 
among these reported delphinid average swim speeds (listed below in 
Table 1), all support the Navy's suggested average swim speed of 3 
knots, except for the Lockyer and Morris (1987) paper. Therefore, NMFS 
considers that using the average of 3 knots for delphinid speed is a 
reasonable approach to address the time-delay issue related to the use 
of TDFDs for mine detonation.

[[Page 2043]]



                                    Table 1--Reported Dolphin Swimming Speeds
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                 Species                  Swim speed (knots)                       Source
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Stenella sp.............................           0.78-3.70  Perrin et al. (1979)............................
Tursiops truncatus......................                3.08  W[uuml]rsig and W[uuml]rsig (1979)..............
Delphinus delphis.......................                3.11  Hui (1987)......................................
Tursiops truncatus......................                2.65  Mate et al. (1995)..............................
Tursiops truncatus......................             5.4-8.1  Lockyer and Morris (1987).......................
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    In addition, the Navy proposed (and NMFS concurred) that an 
additional 200-yard buffer be added to the safety zone to provide 
additional protection for dolphins that may swim faster than the 
average of 3 knots.
    Furthermore, in order to enhance the monitoring efficiency due to 
the enlarged buffer zones, buffer zones with a radius greater than 
1,000 yards will have 2 boats, and buffer zones with a radius greater 
than 1,400 yards will have 3 boats or 2 boats and 1 helicopter for 
monitoring. While larger buffer zones may sometimes add benefits, there 
must also be an ability to adequately survey the buffer zone to ensure 
animals are spotted. Due to the type of small unit training being 
conducted, there are limited surveillance assets available to monitor 
the buffer zone during a mine neutralization event. Scheduling 
additional observation boats and crews involves coordination and 
availability of other units and degrades overall training readiness of 
the other unit(s) involved, which would not be practical for small 
training events like these. In summary, based on the above analyses and 
additional mitigation measures being implemented, NMFS believes the use 
of published average dolphin swim speed with an additional 200-yard 
buffer is the best current approach to establishing the buffer zones.
    Finally, it is worth noting that even in the absence of mitigation, 
the Navy modeling suggests that zero animals will likely randomly come 
within the safety radius during the small amount of time that the 
detonations actually occur. It is unlikely that an animal will swim 
into the buffer zone during the brief amount of time that it might be 
exposed to a detonation without first being detected by the multiple 
boats circling the detonation area and observing the buffer zone.
    Comment 5: The Commission recommends that NMFS consider whether 
modifications to the LOAs alone are sufficient to satisfy the 
requirements of the MMPA and provide a thorough explanation of its 
rationale in the Federal Register notice taking final action on the 
proposed modifications, if it believes that regulatory modifications 
are not needed.
    Response: The amount of incidental harassment authorized in the 
regulations governing mine neutralization on the three east coast range 
complexes was based on thorough analyses and assessment of the Navy's 
activities and marine mammal distribution and occurrence in the 
vicinity of the range complexes. As explained in the Navy's initial LOA 
application submitted to NMFS and subsequent TDFD LOA modification 
application, the Navy's Environmental Impact Statement for these range 
activities, and NMFS' Federal Register notices (VACAPES: 74 FR 28328; 
June 15, 2009; JAX: 74 FR 28349; June 15, 2009; CHPT: 74 FR 28370; June 
15, 2009), the estimated exposures are based on the probability of the 
animals being present 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). The amount of harassment currently authorized 
and NMFS' determination of negligible impact on the stock already 
assume a conservative estimate of predicted harassment for these 
events. The enhanced mitigation measures to be implemented in the LOA 
modification are to balance the potential additional risks that may 
arise from the Navy using TDFD during the mine neutralization training. 
In summary, the take limits are not expected to be exceeded with the 
use of TDFDs, but the additional mitigation and monitoring measures are 
to offset the potential risks of using TDFDs. Therefore, NMFS does not 
believe that further revisions to the regulation are warranted.
    Comment 6: One private citizen expressed general opposition to Navy 
activities and NMFS' issuance of an LOA modification because of the 
danger of killing marine life.
    Response: NMFS appreciates the commenter's concern for the marine 
mammals that live in the area of the proposed activities. However, the 
MMPA allows individuals to take marine mammals incidental to specified 
activities if NMFS can make the necessary findings required by law 
(i.e., negligible impact, unmitigable adverse impact on subsistence 
users, etc.), as explained in the rulemakings (VACAPES: 74 FR 28328; 
June 15, 2009; JAX: 74 FR 28349; June 15, 2009; CHPT: 74 FR 28370; June 
15, 2009) and the proposed LOAs (76 FR 68734; November 7, 2011). The 
detailed analyses in these documents show that no marine mammal 
mortality would likely occur as a result of the Navy activities, 
including the use of TDFDs during mine neutralization trainings. 
Finally, take of marine mammals by mortality and serious injury are not 
authorized under these rules and regulations. Therefore, NMFS has made 
the necessary findings under 16 U.S.C. 1371(a)(5)(A) to support our 
modification of these LOAs.
Modifications to Mitigation and Monitoring Measures Related to Mine 
Neutralizing Training
    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 mammals would result from the Navy's use of TDFD mine 
neutralization training exercises. The following 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

[[Page 2044]]

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 based on Perrin et al. (1979), 
W[uuml]rsig and W[uuml]rsig (1979), Hui (1987), and Mate et al. (1995), 
the Navy provided the approximate distance that an animal would 
typically travel within a given time-delay period (Table 2). Based on 
acoustic propagation modeling conducted as part of the 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 3.

                    Table 2--Potential Distance Based on Swim Speed and Length of Time-Delay
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                                                                                           Potential distance
           Species group                  Swim speed               Time-delay                   traveled
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Delphinid.........................  102 yd/min...........  5 min.....................  510 yd.
                                                           6 min.....................  612 yd.
                                                           7 min.....................  714 yd.
                                                           8 min.....................  816 yd.
                                                           9 min.....................  918 yd.
                                                           10 min....................  1,020 yd.
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                                                   Table 3--Buffer Zone Radius (yd) for TDFDs Based on Size of Charge and Length of Time-Delay
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                                                                                                                        Time-delay
                                                         ---------------------------------------------------------------------------------------------------------------------------------------
                                                                  5 min                  6 min                   7min                  8 min                  9 min                10 min
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Charge Size......................  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.
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    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 
designed 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 4. 
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 4--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
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                                                                                                                        Time-delay
                                                         ---------------------------------------------------------------------------------------------------------------------------------------
                                                                  5 min                  6 min                  7 min                  8 min                  9 min                10 min
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Charge Size......................  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 previous mitigation measure specified that parallel tracklines 
would 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

[[Page 2045]]

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 surveying 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, further complicating coordination 
with the aircraft.
    Based on the above reasoning, the modified monitoring and 
mitigation protocols for visual observation is developed 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 above to determine the radius of the buffer 
zone. Time-delays longer than 10 minutes will not be used.
    Regarding the sizes of the buffer zones, there were two 
typographical errors in the Federal Register notice for the proposed 
LOA (76 FR 68734; November 7, 2011). On page 68738 of that Federal 
Register notice, it stated that ``[b]uffer 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.'' The notice should 
have stated, ``[b]uffer zones less than 1,400 yds shall use a minimum 
of 2 boats to survey for marine mammals. Buffer zones greater than 
1,400 yds radius shall use 3 boats or 1 helicopter and 2 boats to 
conduct surveys for marine mammals.'' As indicated in Table 3, there is 
no buffer zone under 1,000 yds when TDFDs are used.
    Two dedicated observers in each of the boats will conduct 
continuous visual surveys 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 regarding the presence of marine mammals 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 it does 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 will 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 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 previous LOA that ``no detonation shall 
be conducted using time-delayed devices'' was 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.
    (F) Diver and Support Vessel Surveys.
    The Navy recommends, and NMFS concurs with, 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 measure 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.

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    (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 three Range Complexes. Take estimates were based on 
marine 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, 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 exposures @    Potential exposures @
      Species/Training Operation       182 dB re 1 [mu]Pa\2\-s  205 dB re 1 [mu]Pa\2\-s   Potential exposures @
                                              or 23 psi                or 13 psi                 30.5 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.), 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 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

[[Page 2047]]

existing analyses in the final rules do not change as a result of 
revising the 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 take 
authorizations 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 mine 
neutralization training exercises conducted within the Navy's VACAPES, 
JAX, and Cherry Point Range Complexes, especially on the improvement on 
marine mammal monitoring and mitigation measures, NMFS has 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 have a negligible impact on the 
marine mammal species and stocks present in these action areas, 
provided that the 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 completed consultation 
internally on the issuance of the modified LOAs under section 
101(a)(5)(A) of the MMPA for these activities. The Biological Opinion 
concludes that the Navy's training activities using TDFDs within the 
VACAPES, JAX, and CHPT Range Complexes are likely to adversely affect 
but are not likely to jeopardize the continued existence of these 
threatened and endangered species under NMFS jurisdiction.

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 mine neutralization training activities using TDFDs. Therefore, 
no additional NEPA analysis is required, and the information in the 
existing EIS's remains sufficient.

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 determined 
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 issued three LOAs with modifications to allow takes of marine 
mammals incidental to the Navy's mine neutralization training exercises 
using TDFDs, provided that the improvements to the monitoring and 
mitigation measures are implemented.

    Dated: January 6, 2012.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2012-610 Filed 1-12-12; 8:45 am]
BILLING CODE 3510-22-P