[Federal Register Volume 77, Number 110 (Thursday, June 7, 2012)]
[Notices]
[Pages 33718-33724]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-13852]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XA567


Taking and Importing Marine Mammals: Taking Marine Mammals 
Incidental to Navy Training Exercises in the Mariana Islands Range 
Complex

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

ACTION: Notice; proposed renewal of letter of authorization; request 
for comments.

-----------------------------------------------------------------------

SUMMARY: NMFS has received an application from the U.S. Navy (Navy) for 
a Letter of Authorization (LOA) to take marine mammals, by harassment, 
incidental to conducting training exercises within the Navy's Mariana 
Islands Range Complex (MIRC) in the Pacific Ocean between August 12, 
2012 and August 3, 2015. Pursuant to the Marine Mammal Protection Act 
(MMPA), NMFS requests comments on its proposal to issue an LOA to the 
Navy that includes the use of time delayed firing devices (TDFDs), 
which have not been explicitly addressed previously, to

[[Page 33719]]

incidentally take marine mammals by harassment during the specified 
activity.

DATES: Comments and information must be received no later than July 9, 
2012.

ADDRESSES: Comments on the application should be addressed to Jolie 
Harrison, Incidental Take Program Supervisor, Permits and Conservation 
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: Brian D. Hopper, Office of Protected 
Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION: 

Background

    Section 101(a)(5) 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 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. 
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 in the MIRC were published on 
August 3, 2010 (75 FR 45527) and remain in effect through August 3, 
2015. They are codified at 50 CFR 218.100. 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 August 3, 2010 Federal Register notice and 50 CFR 218.100.
    A final rule was issued on February 1, 2012 (77 FR 4917) to allow 
certain flexibilities concerning Navy training activities and allow for 
multi-year LOAs in 12 range complexes, including MIRC.

Summary of LOA Request

    On March 15, 2012, NMFS received a LOA renewal application to take 
marine mammals incidental to training activities in the MIRC between 
August 12, 2012 and August 3, 2015. The LOA application included a 
request from the U.S. Navy for LOA modifications. Specifically, the 
Navy requests that NMFS modify the LOA to include taking of marine 
mammals incidental to mine neutralization training using TDFD within 
the MIRC, 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 Rule for this Range 
Complex (75 FR 45527). The potential effects of mine neutralization 
training on marine mammals were comprehensively analyzed in the final 
regulations for this Range Complex and mine neutralization training has 
been included in the specified activity in the associated 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 the proposed modifications to the LOA to the 
public for review.
    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 a previous Federal Register notice (76 FR 68734; 
November 7, 2011) 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 throughout Navy Range Complexes and 
realized that TDFDs were being used at the VACAPES, JAX, and CHPT 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. 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.After the Navy and NMFS developed a 
monitoring and mitigation plan for mine neutralization activities using 
TDFDs, the LOAs for VACAPES, JAX, and CHPT Range Complexes were 
modified and issued to the Navy after public notice and comment (77 FR 
2040, January 13, 2012). Because testing and training activities in the 
MIRC also include mine neutralization using TDFDs, NMFS now engages in 
a similar process for renewing the LOA for MIRC. The following sections 
provide detailed descriptions regarding the mine neutralization 
training activities, the mitigation measures contained in the current 
LOA, and the Navy's proposed revisions to mitigation measures that are 
intended to prevent mortality and injury to marine mammals.
    The Navy requests the revised LOA remain valid until August 2015. 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

[[Page 33720]]

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 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 proposes 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 MIRC.

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

Current Mitigation Measures

    Current mitigation measures for Demolition and Mine Countermeasure 
(MCM) training (up to 10 lbs) as required under the August 2011 LOA 
issued to the Navy in the MIRC included:
    (A) Exclusion Zones: Explosive charges shall not be detonated if a 
marine mammal is detected within 700 yards (640 m) of the detonation 
site.
    (B) Pre-Exercise Surveys: For MCM training activities, the Navy 
shall conduct a pre-exercise survey within 30 minutes prior to the 
commencement of the scheduled explosive event. The survey may be 
conducted from the surface, by divers, and/or from the air. If a marine 
mammal is detected within the survey area, the exercise shall be 
suspended until the animal voluntarily leaves the area.
    (C) Post-Exercise Surveys: Surveys within the same radius shall 
also be conducted within 30 minutes after the completion of the 
explosive event.
    (D) Reporting: Any evidence of marine mammals injured or killed by 
the Navy's action shall be reported to NMFS.
    (E) Mine Laying Training: Though mine laying training operations 
involve aerial drops of inert training shapes on floating targets, 
measures A, B, and C for

[[Page 33721]]

Demolitions and Mine Countermeasures (above) will apply to mine laying 
training. To the maximum extent feasible, the Navy shall retrieve inert 
mine shapes dropped during Mine Laying Training.

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 MCM training 
exercises involving TDFDs conducted within the MIRC.
(A) Visual Observation and Exclusion Zone Monitoring
    The estimated potential for marine mammals to be exposed during 
demolitions and mine countermeasure 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 mine neutralization training within the 
MIRC are all close to shore (~3-12 nm) and in shallow water (~10-20 m). 
Based on the training location, description of the area, and data from 
recent monitoring surveys, large whales and species that prefer deep or 
offshore waters are not expected to occur in this area with any 
regularity. With the potential for protected species to be in the 
vicinity, the buffer zones need to be revised to further reduce 
potential impacts to these species when using a TDFD. 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 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 NEPA analyses for this Range Complex, there is potential for injury 
to a marine mammal within 106 yd of a 5-lb detonation and within 163 yd 
of a 10-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
               Species group                           Swim speed           Time-delay  (min)  distance traveled
                                                                                                      (yd)
----------------------------------------------------------------------------------------------------------------
Delphinid..................................  102 yd/min...................                  5                510
                                                                                            6                612
                                                                                            7                714
                                                                                            8                816
                                                                                            9                918
                                                                                           10              1,020
----------------------------------------------------------------------------------------------------------------


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

    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, two sizes of buffer zones are 
proposed for the ease of monitoring operations based on size of charge 
(e.g., 5-lb and 10-lb) 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.

[[Page 33722]]



 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
                                                                    lb     -----------------------------------------------------------------------------
                                                                              5 min/yd     6 min/yd     7 min/yd     8 min/yd     9 min/yd    10 min/yd
--------------------------------------------------------------------------------------------------------------------------------------------------------
Charge Size..................................................            5        1,000        1,000        1,000        1,000        1,400        1,400
                                                                        10        1,000        1,000        1,000        1,400        1,400       1,400
--------------------------------------------------------------------------------------------------------------------------------------------------------
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, 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 
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. 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 less than 
1,400 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 yds or greater 
buffer zone, each boat will be positioned equidistant from one another 
(120 degrees separation) at 700 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.
(B) Mine neutralization training shall be conducted during daylight 
hours only.
(C) 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.
    It is not possible to suspend the detonation after a TDFD is 
initiated 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

[[Page 33723]]

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.
    (D) 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 
was 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.
(E) 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.
    (F) 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 rule (75 FR 45527, August 3, 2010) for mine 
neutralization training activities in all this Range Complex. Take 
estimates were based on marine mammal densities and distribution data 
in the action area, 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 in MIRC. 
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 MIRC (Table 4). 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 
rule for MIRC (75 FR 45527, August 3, 2010).

                 Table 4--Estimated Takes of Marine Mammals That Could Result From MCM Training
----------------------------------------------------------------------------------------------------------------
                                     Potential exposures  @    Potential exposures  @
              Species               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
----------------------------------------------------------------------------------------------------------------
Cuvier's beaked whale.............                        2                         0                         0
Dwarf/Pygmy sperm whale...........                        2                         0                         0
Fraser's dolphin..................                        2                         0                         0
Melon-headed whale................                        2                         0                         0
Pantropical spotted dolphin.......                        2                         0                         0
Risso's dolphin...................                        4                         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

[[Page 33724]]

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 LOA 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 countermeasure training exercises conducted within the MIRC, 
especially on the proposed improvement on marine mammal monitoring and 
mitigation measures, NMFS has preliminarily determined that the 
modification of the Navy's current LOA to include taking of marine 
mammals incidental to mine neutralization training using TDFD within 
the MIRC will 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 five marine mammal species that are listed as endangered 
under the ESA with confirmed or possible occurrence in the MIRC: 
Humpback whale, blue whale, fin whale, sei whale, and sperm whale.
    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.

National Environmental Policy Act (NEPA)

    NMFS participated as a cooperating agency on the Navy's Final 
Environmental Impact Statements (FEIS's) for the MIRC. NMFS 
subsequently adopted the Navy's EIS's for the purpose of complying with 
the MMPA. For the modification of the LOA, 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 MIRC will have a negligible impact on 
the affected marine mammal species or stocks. NMFS has proposed issuing 
the modified LOA 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: June 1, 2012.
Helen M. Golde,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2012-13852 Filed 6-6-12; 8:45 am]
BILLING CODE 3510-22-P