[Federal Register Volume 77, Number 151 (Monday, August 6, 2012)]
[Notices]
[Pages 46733-46739]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-19160]


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

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; issuance of letter of authorization.

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

SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA), as 
amended, and implementing regulations, notification is hereby given 
that NMFS has issued a Letter of Authorization (LOA) to take marine 
mammals, by harassment, incidental to the U.S. Navy's training 
exercises within the Navy's Mariana Islands Range Complex (MIRC) in the 
Pacific Ocean.

DATES: Effective from August 10, 2012, through August 3, 2015.

ADDRESSES: Electronic copies of the Navy's request for an LOA, the LOA, 
the Navy's 2012 marine mammal monitoring report and 2012 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.
    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

[[Page 46734]]

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 modifications from previous LOAs issued 
under the MIRC regulations. Specifically, the Navy requested that NMFS 
modify the LOA to include taking of marine mammals incidental to mine 
neutralization training using Time Delay Firing Devices (TDFDs) 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 believed it 
was appropriate to provide the proposed modifications to the LOA to the 
public for review. NMFS published a notice proposing to modify and 
renew the LOA on June 7, 2012 (77 FR 33718).
    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 (SSTC). 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 engaged in a 
similar process for renewing the LOA for MIRC.
    The Navy requested that the revised LOA remain valid until August 
2015. A detailed description of the Navy's LOA 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

    A detailed description of the overall operational mission 
concerning the use of TDFDs was provided in the Federal Register notice 
for the proposed LOA (77 FR 33718, June 7, 2012), and 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 June 7, 2012 
(77 FR 33718). 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 require the Navy 
model the proposed monitoring schemes to determine what portion of the 
associated buffer zone is being monitored at any given time and the 
probability that any of the cetacean species in the area and entering 
the various-sized buffer zones would be detected before getting too 
close to the detonation site.
    Response: In the fall of 2011, the Navy funded the Center for Naval 
Analysis (CNA) to examine this issue. The Navy asked CNA to: (1) 
Analyze the Navy's mitigation approach (estimate the probability of 
marine mammals getting within the explosive safety zone without 
detection) under various scenarios; (2) determine what mathematical 
methods would be appropriate for estimating the probability of marine 
mammals entering the various safety zones undetected; (3) use the 
mathematical methods determined above to assess the effectiveness of 
the Navy's mitigation measures at protecting marine mammals; and (4) 
determine the effects of various factors such as the size of the 
explosive charge, the footprint of the impact zones, the travel speeds 
of various marine mammals, and the location and number of Navy 
observers.
    CNA validated that a geometric approach to the problem would help 
in assessing the study questions described above, and its final 
conclusions regarding the Navy's proposed TDFD mitigation measures were 
as follows:
     Explosive harm ranges for charge sizes under consideration 
are driven by the 13 psi-ms acoustic impulse metric, which corresponds 
to slight lung injury.
     Fuse delay and animal swim speeds strongly drive results 
regarding mitigation capability.
     Probability of detection of all animals (Pd): (1) for TDFD 
mitigation ranges out to 1,000 yards, Pd would be close to 100 percent 
for 2-boats and 5-minute delay for charge weights up to 20-lb net 
explosive weight; and (2) for TDFD mitigation ranges of 1,400 yards or 
greater, likely Pd would be greater than 95-99 percent for 3-boats and 
10-minute delay for charge weights up to 20-lb net explosive weight.
     A three-boat effort would be sufficient to cover most 
cases.
    In terms of how the CNA analysis relates to the MIRC training 
activities, please see Response to Comment 3.
    Comment 2: The Commission recommends that NMFS require the Navy to 
measure empirically the propagation characteristics of the blast (i.e., 
impulse, peak, pressure, and sound exposure level) from the 5- and 10-
lb charges used in the proposed exercises and use that information to 
establish appropriately sized exclusion and buffer zones.
    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

[[Page 46735]]

propagation model predictions (DoN 2006).
    To date, mine neutralization training exercises have not been 
conducted in the MIRC. However, 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 3: The Commission recommends that NMFS require the Navy to 
re-estimate the sizes of the buffer zones using the average swim speed 
of the fastest-swimming marine mammal that occurs in the areas within 
the Complex where time-delay firing devices would be used and for which 
taking authorization has been granted.
    Response: NMFS does not agree with the Commission's assessment that 
the sizes of the buffer zones be established based on average swim 
speed of the fastest swimming marine mammals. Just because an animal 
can go faster does not mean that it will, and the behavioral context of 
the fast swim speeds should be considered. Maximum speeds are 
energetically expensive for any organism and usually not maintained for 
long. Unpublished observations of marine mammals within the MIRC during 
the Navy 2011 surveys have documented mostly groups of slow moving, 
milling spinner dolphins, bottlenose dolphins, and short-finned pilot 
whales. The occurrence of more pelagic species (Risso's dolphins and 
short-beaked common dolphins) is predicted to be less likely and 
limited in duration. These species are included in the MIRC LOA as a 
conservative measure.
    Further expansion of the buffer zones is not warranted because: (1) 
the current buffer zones already incorporate an additional 
precautionary factor to account for swim speeds above 3 knots; and (2) 
buffer zones greater than 1,000 yards for events using 2 boats, and 
1,400 yards or greater for events using 3 boats or 2 boats and 1 
helicopter, cannot be monitored or supported by the Navy's exercising 
units.
    In terms of sizes of the mitigation zones, a 1,400 yard radius or 
greater for larger charge or longer time TDFD training events are 
required, which is the maximum distance the Navy can confidently clear 
with 3 boats (or 2 boats and 1 helicopter). NMFS is satisfied that the 
mitigation zones proposed in the Federal Register notice for the 
proposed IHA (77 FR 33718, June 7, 2012) are justified, adequate, and 
protective of marine mammals. In addition to the buffer zone 
determination issue, there are also additional operational and training 
resources to consider. While larger mitigation zones increase distance 
from the detonation site, there must also be an ability to adequately 
survey a mitigation zone to ensure animals are spotted. Due to the type 
of small unit training being conducted at the MIRC, there are limited 
surveillance assets available to monitor a given buffer zone during 
underwater detonations training. Scheduling additional observation 
boats and crews beyond what the Navy has proposed in the MIRC LOA 
application involves coordination and availability of other unit(s) and 
will degrade overall training readiness. For instance, limited 
availability of boats and personnel do not allow for operation of 4 or 
more boats. If 4 boats were required, negative impacts to military 
readiness would result because Navy would be precluded from conducting 
events due to unavailable assets. Therefore, both NMFS and the Navy do 
not consider additional observation boats other than those designated a 
valid option during TDFD training events in the MIRC.
    Comment 4: One private citizen expressed general opposition to Navy 
activities and NMFS' issuance of a modified LOA 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 activity. 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 (75 FR 45527, August 3, 
2010) and the proposed LOA (77 FR 33718, June 7, 2012). 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 issuance of this LOA.

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 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 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

[[Page 46736]]

regularity. 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
                                                 Time-delay    distance
        Species Group             Swim Speed       (min)       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
           Charge size            ----------------------------------------------------------------------------------------------------------------------
                                          5 min               6 min               7min                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
--------------------------------------------------------------------------------------------------------------------------------------------------------

    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 
established 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.

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               7min                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
--------------------------------------------------------------------------------------------------------------------------------------------------------
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.

[[Page 46737]]

    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 are as follows:
    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 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 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 current 
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 are as follows:
    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.
    (D) The requirement in the current LOA that ``no detonation shall 
be conducted using time-delayed devices'' is deleted because 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 measure is provided below:
    Divers placing the charges on mines will observe the immediate, 
underwater area around the detonation site for

[[Page 46738]]

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 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--an 
analysis of a Navy ship-shock trial that initially developed the 
criteria for mortality, Level A harassment, and Level B harassment from 
explosive detonations. 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 area 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 
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 mine neutralization 
training activities are the same as those analyzed in the final rule 
governing the incidental takes for this activity. Consequently, NMFS 
believes that the existing analysis in the final rule does not change 
as a result of issuing an LOA that includes mine neutralization 
training activities using TDFDs.
    Further, there will be no increase of marine mammal takes as 
analyzed in the previous rule governing NMFS-issued incidental takes 
that could result from the Navy's training activities within this Range 
Complex by using TDFDs.
    Based on the analyses of the potential impacts from the mine 
countermeasure training exercises conducted within the MIRC, especially 
the improved marine mammal monitoring and mitigation measures, NMFS has 
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.

[[Page 46739]]

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 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 
MIRC Study Area are likely to adversely affect, but are not likely to 
jeopardize the continued existence of these ESA-listed marine mammal 
species under NMFS jurisdiction.

National Environmental Policy Act (NEPA)

    NMFS participated as a cooperating agency on the Navy's Final 
Environmental Impact Statements (FEISs) for the MIRC. NMFS subsequently 
adopted the Navy's EISs for the purpose of complying with the MMPA. For 
issuance of the LOA, which includes TDFDs, but also specifically adds 
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 was required, and the 
information in the existing EISs remains sufficient.

Determination

    Based on the preceding analysis 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 MIRC will have a negligible impact on the 
affected marine mammal species or stocks. NMFS has issued the modified 
LOA 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: July 31, 2012.
Helen M. Golde,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2012-19160 Filed 8-3-12; 8:45 am]
BILLING CODE 3510-22-P