Taking and Importing Marine Mammals; U.S. Navy Training in the Hawaii Range Complex, 71322-71327 [2011-29764]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 76, Number 222 (Thursday, November 17, 2011)]
[Notices]
[Pages 71322-71327]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-29764]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XA769


Taking and Importing Marine Mammals; U.S. Navy Training in the 
Hawaii Range Complex

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

ACTION: Notice; proposed modification to Letters of Authorization; 
request for comments.

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SUMMARY: NMFS has received an application from the U.S. Navy (Navy) for 
a 2-year Letter of Authorization (LOA) to take marine mammals, by 
harassment, incidental to training and research within the Hawaii Range 
Complex (HRC). The Navy is proposing additional mitigation measures 
tailored to the use of timed-delay firing devices (TDFDs) during mine 
neutralization training. The current regulations and previous LOAs 
analyzed the training event rather than the detonation method. NMFS is 
requesting comments on the proposed change because it constitutes a 
substantial modification to the described work, in accordance with the 
Marine Mammal Protection Act (MMPA).

DATES: Comments and information on the application must be received no 
later than December 19, 2011.

ADDRESSES: Comments on the application should be addressed to P. 
Michael Payne, Office of Protected Resources, NMFS, 1315 East-West 
Highway, Silver Spring, MD 20910, or by telephoning one of the contacts 
listed here. The mailbox address for providing email comments is 
ITP.Magliocca@noaa.gov. 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 part of the public record 
and will generally be posted to https://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

[[Page 71323]]

the address specified above, telephoning the contact listed below (see 
FOR FURTHER INFORMATION CONTACT), or visiting the internet at: https://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: Michelle Magliocca, Office of 
Protected Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION: 

Background

    Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361 et seq.) directs 
NMFS to allow, upon request, the incidental taking of marine mammals by 
U.S. citizens who engage in a specified activity (other than commercial 
fishing), if certain findings are made by NMFS and regulations are 
issued. Under the MMPA, the term ``take'' means to harass, hunt, 
capture, or kill or to attempt to harass, hunt, capture, or kill marine 
mammals.
    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 by the Navy 
incidental to training and research activities conducted within the 
Hawaii Range Complex (HRC) became effective on January 5, 2009 (74 FR 
1456, January 12, 2009). An interim final rule (amending regulations to 
allow for greater flexibility in the types and amount of sound sources 
used by the Navy) became effective on February 7, 2011 (76 FR 6699, 
February 8, 2011), and remains in effect until January 5, 2014. For 
detailed information on this action, please refer to those documents. 
These regulations include mitigation, monitoring, and reporting 
requirements and establish a framework to authorize incidental take 
through the issuance of LOAs. Furthermore, a proposed rule to further 
amend the HRC rule (and 11 other Navy locations), allowing for multi-
year LOAs, recently published in the Federal Register.

Summary of Request

    On August 15, 2011, NMFS received a request from the Navy for a 2-
year renewal of an LOA issued on February 7, 2011, for the taking of 
marine mammals incidental to training and research activities conducted 
within the HRC under regulations issued on January 5, 2009 (74 FR 1456, 
January 12, 2009). The request also proposes additional mitigation 
measures tailored to the use of timed-delay firing devices (TDFDs) 
during mine neutralization training to ensure that effects to marine 
mammals resulting from these activities would not exceed what was 
originally analyzed in the final rule (74 FR 1456, January 12, 2009). 
The potential effects of mine neutralization training on marine mammals 
were comprehensively analyzed in the Navy's 2009 final rule and mine 
neutralization training has been included in the specified activity in 
the associated 2009, 2010, and 2011 LOAs. However, the use of TDFDs and 
the associated mitigation measures have not been previously 
contemplated which is why NMFS is providing the proposed modifications 
to the public for review.
    On March 4, 2011, a mine neutralization training event using TDFDs 
is believed to have likely resulted in the death of three long-beaked 
common dolphins in the Navy's Silver Strand Training Complex off the 
Southern California coast. In short, a TDFD begins a countdown to a 
detonation event that cannot be stopped. For example, once a detonation 
is initiated, a 10-minute (min) TDFD allows 10 min to pass before the 
detonation occurs and the event cannot be cancelled during this time. 
Following the March 4th event, the Navy initiated an evaluation of mine 
neutralization events occurring within other training complexes 
(including HRC) and realized that TDFDs were being used. The Navy has 
been working with NMFS to develop a more robust monitoring and 
mitigation plan to ensure that marine mammal mortality and injury would 
not occur during mine neutralization training activities that involve 
TDFDs (an estimated 97% of all mine neutralization training events). 
The following sections provide a detailed description regarding the 
mine neutralization training activities and the Navy's proposed 
revisions to mitigation that will prevent mortality and injury to 
marine mammals.
    The Navy is requesting a 2-year LOA in correspondence with a 
proposed rule to modify the HRC rule (and other Navy rules), which 
would allow for multi-year LOAs. As explained in the recently published 
proposed rule, a 2-year LOA would not eliminate NMFS' requirement for 
annual monitoring and exercise reports. The purpose of the extended LOA 
is simply to eliminate the need for an annual LOA application. In the 
past, NMFS has struggled to issue annual LOA renewals on time due to 
workload constraints, causing the Navy to expend vast amounts of 
resources in implementing a contingency plan. A 2-year LOA would 
provide more flexibility for the NMFS and the Navy, while still 
maintaining the annual reporting requirements to ensure that the Navy 
does not exceed their authorized takes.

Summary of Activity

    The Navy's current regulations for the HRC (74 FR 1456, January 12, 
2009) allow for the taking of marine mammals incidental to a maximum of 
340 mine neutralization exercises over the course of 5 years (an 
average of 68 per year). To date, the Navy has not exceeded their 
authorized amount. The Navy is not proposing to increase any amount of 
exercises or authorized take within the HRC. Rather, the Navy is 
proposing to revise their current mitigation measures to reduce the 
risk to marine mammals when TDFDs are being used.

Operational Mission and Types of Detonation Initiating Devices

    TDFDs--devices used to begin a demolition charge after a certain 
amount of time--are necessary for the realistic training of Explosive 
Ordnance Disposal (EOD) and Mobile Dive and Salvage Unit personnel in 
the Navy. The EOD mission is typically to locate, neutralize, recover, 
and exploit mines after they are initially located by another source. 
Once the mine is located, EOD divers are deployed to further evaluate 
and ``neutralize'' the mine, or render it safe. The Navy uses both 
time-delayed and ``positive control'' methods to initiate a particular 
underwater detonation depending on the training event objectives in 
question and applicable to that particular underwater detonation. 
Positive control firing typically uses a Remote Firing Device (RFD) to 
instantly initiate a detonation (as opposed to a TDFD).
    TDFDs are the simplest, safest, most operationally sound method of 
initiating a demolition charge on a floating mine or mine at depth. 
Substitutes for this type of device are contradictory to realistic 
training and considered inadequate at satisfying military readiness 
requirements. TDFDs are used because of their light weight, ease of

[[Page 71324]]

employment, and low magnetic signature (in cases of mines sensitive to 
magnetic fields). Furthermore, TDFDs have a lower risk of accidental 
detonations from nearby radios or other electromagnetic radiation-
producing devices, compared to some positive control devices. The use 
of TDFDs eliminates the need to redeploy swimmers from a helicopter or 
boat to recover equipment used with positive control firing devices. 
TDFDs also allow sufficient time for EOD personnel to swim outside of 
the detonation plume radius and human safety buffer zone after the 
timer is set. RFDs can be used as an alternative to TDFDs, but are not 
typically preferred due to risk of accidental detonation, safety 
considerations, and established Navy tactical procedures. In an open 
ocean environment, universal use of RFDs would greatly increase the 
risk of misfire due to component failure and put unnecessary stress on 
all needed connections and devices. More specifically, universal use of 
RFDs would: Add 600-1,000 feet (ft) of firing wire; require building/
deploying an improvised, bulky, floating system for the receiver; and 
add another 180 ft of detonating cord and 10 ft of additional material. 
Therefore, RFDs are not considered a practicable alternative for all 
underwater detonations.

Description of Training

    Basic underwater detonation training involves neutralizing a 
simulated mine either at the water's surface or at depth. The ratio of 
surface to bottom detonations is dependent mainly on range availability 
and weather conditions, but is typically 50/50. During surface mine 
neutralization, EOD divers are deployed and retrieved via helicopter. A 
small boat is used for bottom detonations or if a helicopter is 
unavailable. During training exercises, a minimum of two boats also 
participate, regardless of detonation type. Underwater detonations only 
occur during daylight hours and in sea states equal to or less than 
Beaufort 3.
    Once on site, the applicable mitigation zone is established and 30 
min of visual monitoring begins. Divers then enter the water to conduct 
the training objective, which could include searching for a training 
object, such as a simulated mine or mine-like shape. For the detonation 
part of the training, the explosive charge and associated charge 
initiating device are taken to the detonation point. Military forms of 
C-4 are used as the explosives. For a surface mine neutralization 
training event involving a helicopter or a boat, the minimum time-delay 
for EOD divers to make their way safely outside of the typical 1,000-ft 
(334-yard [yd]) detonation plume radius/human safety buffer zone is 10 
min. For mine neutralization training events at depth, the time-delay 
can be minimized to 5 min. However, this would require the instructors 
to handle initiation of the detonation, thereby decreasing the training 
value for students. Following underwater detonation, additional 
personnel in support boats (and helicopter, if applicable) monitor the 
mitigation zone for 30 min. Concurrent with the post-detonation 
monitoring, divers return to the detonation site to confirm the 
explosives detonated correctly and to retrieve any residual material.

Derivation of Timed-Delay Monitoring Zones

    The rationale used to develop new monitoring zones to reduce 
potential impacts to marine mammals when using TDFDs is as follows: 
First, the Navy identified the distances at which the sound and 
pressure of an explosion attenuate below NMFS' injury criteria (that 
is, the distance outside of which marine mammals are not expected to be 
injured). Then, the Navy identified the distance that a marine mammal 
would be likely to travel during the time associated with the TDFD and 
added that distance to the injury distance. If this enlarged area is 
effectively monitored, animals would be detected at a sufficient 
distance to ensure that they could not swim into the injurious zone 
before detonation. The Navy used an average swim speed of 3 knots (102 
yd/min) for a dolphin to calculate the approximate distance that an 
animal would typically travel within a given time-delay period. 
However, NMFS suggested that an additional buffer zone be included to 
account for the possibility of a marine mammal exceeding the 3-knot 
swim speed. Therefore, an additional 200-yd buffer was used to 
calculate a marine mammal's potential distance traveled for each timed-
delay length (Table 1).

  Table 1--Potential Distance Traveled Based on Swim Speed, Length of Time-Delay, and an Additional Buffer Zone
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                                                                                                    Potential
                                                                                  Potential         distance
                Type                       Swim speed       Time-delay (min)      distance        traveled with
                                                                                traveled (yd)    additional 200-
                                                                                                 yd buffer (yd)
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Dolphin/Pinniped *.................  102 yd/min...........                 5               510               710
                                                                           6               612               812
                                                                           7               714               914
                                                                           8               816             1,016
                                                                           9               918             1,118
                                                                          10             1,020             1,220
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* Hawaiian monk seal (the only pinniped in the area) swim speeds are unknown; however, they are assumed to swim
  slower than dolphins. Therefore, the dolphin swimming speed estimate is conservatively used for pinnipeds as
  well.

    Based on acoustic propagation modeling conducted as part of the 
Silver Strand Training Complex (and applied here), the potential for 
injury to a marine mammal exists within 80 yd of a 5-pound (lb) 
detonation, 160 yd of a 10-lb detonation, and 360 yd of a 15- to 29-lb 
detonation. The Navy then used the distances in Table 1 to calculate 
revised buffer zones for 5-, 10-, and 15- to 29-lb charges by adding 
the distance traveled for a specific time-delay to the distance of the 
injury zone for each size charge (Table 2). 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 reach the injury zone within 
the time-delay window. The current buffer zone for use of positive 
control devices is 700 yd and will continue to be used for non-TDFD 
events.

[[Page 71325]]



                                  Table 2--Revised Radii for TDFDs Based on Charge Weight, Navy-Modeled ZOI, Length of Timed-Delay, and Distances From Table 1
                                                                         [Shown to illustrate calculations for Table 3]
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                                                                                                          ZOI by time and buffer distance
      Charge weight (lb)*              ZOI        ----------------------------------------------------------------------------------------------------------------------------------------------
                                                            5 min                   6 min                   7 min                   8 min                   9 min                  10 min
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
5.............................  80 yd............  80 + 710 = 790 yd.....  80 + 812 = 892 yd.....  80 + 914 = 994 yd.....  80 + 1,016 = 1,096 yd.  80 + 1,118 = 1,198 yd.  80 + 1,220 = 1,300
                                                                                                                                                                            yd.
10............................  160 yd...........  160 + 710 = 870 yd....  160 + 812 = 972 yd....  160 + 914 = 1,074 yd..  160 + 1,016 = 1,176 yd  160 + 1,118 = 1,278 yd  160 + 1,220 = 1,380
                                                                                                                                                                            yd.
15-29.........................  360 yd...........  360 + 710 = 1,070 yd..  360 + 812 = 1,172 yd..  360 + 914 = 1,274 yd..  360 + 1,016 = 1,376 yd  360 + 1,118 = 1,478 yd  360 + 1,220 = 1,580
                                                                                                                                                                            yd.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
* For charge weights lower than those shown here, the next highest charge weight would be used.

    All buffer zones used for mitigation are based on Navy-modeled 
``underwater zones of influence'' (ZOIs), which refer to the sound/
pressure propagation based on NMFS' threshold criteria for acoustic 
harassment. Buffer zones would be established around each detonation 
point based on a net explosive weight to reduce the risk of injury/
mortality to marine mammals. For TDFD events, based on acoustic 
propagation modeling and anticipated ZOI by training event type and 
charge weight, potential dolphin travel distances by time can be added 
to event-specific ZOIs to produce a matrix of charge weight, selected 
delay time, and applicable mitigation zone as shown in Table 2. While 
the ZOIs vary between the different types of underwater detonation 
training, the Navy is proposing to establish an expanded 700-yd 
mitigation zone for all positive control (RFD) underwater detonations 
conducted within the HRC.
    Finally, the Navy's mitigation zones would be divided into three 
distances to further minimize risk of marine mammal injury or mortality 
and to achieve a more practical execution of mitigation measures. The 
Navy proposes to divide the span of training events into those 
requiring a 1,000-yd buffer zone (2 boats) and those requiring a 1,400-
yd or greater buffer zone (2 boats and 1 helicopter). This was 
determined by rounding the calculated ranges from Table 2 to the 
appropriate range category (1,000, 1,400, and 1,500) (Table 3). 
Although the 5 lb/6 min and 10 lb/7 min distances in Table 2 are 
slightly greater than 1,000 yd, these charge weight/timed-delay 
configurations represent less than one percent of all TDFD events. 
Training events requiring a 1,000-yd buffer zone would utilize a 
minimum of two boats for monitoring purposes. Training events requiring 
a 1,400 or 1,500-yd buffer zone would use a minimum of three boats or 
two boats and one helicopter for monitoring purposes.
[GRAPHIC] [TIFF OMITTED] TN17NO11.003

Proposed Mitigation Measures

    The Navy's current mitigation measures in the HRC regulations and 
subsequent LOAs do not authorize the use of TDFDs when conducting mine 
neutralization training events and are, therefore, not practicable from 
a military readiness perspective. The estimated potential for marine 
mammals to be exposed during mine neutralization training events does 
not change with the use of TDFDs. This is due to the fact that 
estimated exposures are based on the probability of an animal's 
occurrence during a training event, and this probability does not 
change because of a time-delay. However, what does change is the 
potential effectiveness of the current mitigation measures. NMFS worked 
with the Navy to develop the following proposed revisions to the Navy's 
mitigation measures to minimize the risk of injury and mortality to 
marine mammals during the use of TDFDs. The following modifications are 
specific to mine neutralization training events conducted within HRC:

Mitigation Measures for Underwater Detonations Using Positive Control 
(RFDs)

    1. Underwater detonations using positive control devices would only 
be conducted during daylight hours.
    2. A mitigation zone of 700 yd would be established around each 
underwater detonation point.
    3. A minimum of two boats would be deployed. One boat would act as 
an observer platform, while the other boat would typically provide 
diver support.
    4. Two observers with binoculars on one small vessel would survey 
the detonation area and the mitigation zone for marine mammals 
beginning at least 30 min prior to the scheduled explosive event and 
lasting until at least 30 min following detonation.
    5. In addition to the dedicated observers, all divers and boat 
operators engaged in detonation events can potentially monitor the area 
immediately surrounding the point of detonation for marine mammals.
    6. If a marine mammal is sighted within the 700-yd mitigation zone 
or moving towards it, underwater detonation events would be suspended 
until the marine mammal has voluntarily left the area and the area is

[[Page 71326]]

clear of marine mammals for at least 30 min.
    7. Immediately following the detonation, visual monitoring for 
marine mammals within the mitigation zone would continue for 30 min. 
Any marine mammal observed after the underwater detonation either 
injured or exhibiting signs of distress would be reported via Navy 
operational chain of command to Navy environmental representatives from 
U.S. Pacific Fleet, Environmental Office. Using Marine Mammal Stranding 
communication trees and contact procedures established for the HRC, the 
Navy would report these events to the Stranding Coordinator of NMFS' 
Pacific Islands Regional Office. These reports would contain the date 
and time of the sighting, location, species description, and indication 
of the animal's status.

Mitigation Measures for Underwater Detonations Using TDFDs

    1. Underwater detonations using TDFDs would only be conducted 
during daylight hours.
    2. Time-delays longer than 10 min would not be used. The initiation 
of the device would not start until the appropriate mitigation area is 
clear for a full 30 min prior to initiation of the timer.
    3. A monitoring/mitigation zone would be established around each 
underwater detonation location, as indicated in Table 3, based on 
charge weight and length of time-delay used. When conducting surveys, 
boats would position themselves near the mid-point of the mitigation 
zone radius (but always outside the detonation plume/human safety zone) 
and travel in a circular pattern around the detonation location, 
surveying both the inner and outer areas. To the best extent practical, 
boats would try to maintain a 10-knot search speed to ensure adequate 
coverage of the mitigation zone. However, weather conditions and sea 
states may require slower speeds in some instances.
    4. TDFD detonations with a mitigation zone of 1,000 yd:
     A minimum of two boats would be used to survey for marine 
mammals at a distance of 1,000 yd.
     Each boat would be positioned on opposite sides of the 
detonation location, separated by 180 degrees.
    5. TDFD detonations with a mitigation zone of >=1,400 yd:
     A minimum of three boats or two boats and one helicopter 
would be used to survey at distances >=1,400 yd.
     When using at least three boats, each boat would be 
positioned equidistant from one another (120 degrees separation for 
three boats, 90 degrees separation for four boats, etc.)
     A helicopter, if available, can be used in lieu of one of 
the required boats. A helicopter search pattern is dictated by standard 
Navy protocols and accounts for multiple variables, such as the size 
and shape of the search area, size of the object being searched for, 
and local environmental conditions.
    6. Two dedicated observers in each boat would conduct continuous 
visual surveys of the monitoring zone for the duration of the training 
event.
    7. Monitoring zones would be surveyed beginning 30 min prior to 
detonation and for 30 min after detonation.
    8. Other personnel besides boat observers may also maintain 
situational awareness of marine mammal presence within the monitoring 
zones to the best extent practical, given dive safety considerations. 
Divers placing the charges on mines would observe the immediate 
underwater area around a detonation site for marine mammals and report 
sightings to surface observers.
    9. If a marine mammal is sighted within an established mitigation 
zone or moving towards it, underwater detonation events would be 
suspended until the marine mammal voluntarily leaves the area and the 
area is clear of marine mammals for at least 30 min.
    10. Immediately following the detonation, visual monitoring for 
affected marine mammals within the monitoring zone would continue for 
30 min.
    11. Any marine mammal observed after an underwater detonation 
either injured or exhibiting signs of distress would be reported via 
Navy operational chain of command to Navy environmental representatives 
from U.S. Pacific Fleet, Environmental Readiness Office. Using Marine 
Mammal Stranding communication trees and contact procedures established 
for the HRC, the Navy would report these events to the Stranding 
Coordinator of NMFS' Pacific Islands Regional Office. These reports 
would contain the date and time of the sighting, location, species 
description, and indication of the animal's status.
    The locations within the HRC in which training with TDFDs would 
most often take place are close to shore (about 3-6 nm) and in shallow 
water (about 10-20 m depth). As part of the annual LOA requirements, 
the Navy has conducted monitoring in these areas during training events 
from 2009 to 2011 and spinner dolphins are the only marine mammal that 
has been sighted. Based on the training location, description of the 
area, and data from recent monitoring surveys, large whales and other 
species that prefer deep or offshore waters are not expected to occur 
in these areas with any regularity. Although not observed by EOD or 
monitoring surveys, it is possible that Hawaiian monk seals and other 
dolphin species may be found in the area. However, mitigation measures 
apply to all species and would be implemented if any marine mammal is 
sighted.

Take Estimates

    The additional mitigation and monitoring measures mentioned above 
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. Furthermore, 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). 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 rule governing the incidental 
takes for these activities. Consequently, NMFS believes that the take 
estimates analyzed in the existing final rule do not change as a result 
of the proposed LOA to include mine neutralization training activities 
using TDFDs.

Analysis and Negligible Impact Determination

    Pursuant to NMFS' regulations implementing the MMPA, an applicant 
is required to estimate the number of animals that would be ``taken'' 
by the specified activities (for example, takes by harassment or 
injury). This estimate informs the analysis that NMFS must perform to 
determine whether the activity would 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 
(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

[[Page 71327]]

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 other variables 
(if known), as well as the number and nature of estimated Level A 
takes, the number of estimated mortalities, and effects on habitat.
    Based on the analyses of the potential impacts from the proposed 
mine neutralization training exercises conducted within the HRC, 
especially on the proposed improvement to marine mammal monitoring and 
mitigation measures, NMFS has preliminarily determined that the 
modification of the Navy's LOA to include taking of marine mammals 
incidental to mine neutralization training using TDFDs would have a 
negligible impact on the marine mammal species and stocks present in 
the action area, provided that the additional mitigation and monitoring 
measures described above are implemented.

Endangered Species Act (ESA)

    There are five marine mammal species listed as threatened or 
endangered under the ESA with confirmed or possible occurrence in the 
HRC: humpback whale (Megaptera novaeangliae), sei whale (Balaenoptera 
borealis), fin whale (Balaenoptera physalus), sperm whale (Physeter 
macrocephalus), and Hawaiian monk seal (Monachus schauinslandi). 
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 final determination on the issuance of the 
modified LOA.

National Environmental Policy Act (NEPA)

    NMFS participated as a cooperating agency on the Navy's Final 
Environmental Impact Statement (FEIS) for the HRC. NMFS subsequently 
adopted the Navy's FEIS for the purpose of complying with the MMPA. For 
the proposed modification, which includes TDFDs, but also 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 proposed mine neutralization training events using 
TDFDs. Therefore, no additional NEPA analysis is required and the 
information in the existing FEIS 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 proposed mitigation measures, NMFS 
preliminarily finds that the total taking from Navy mine neutralization 
training events using TDFDs in the HRC would have a negligible impact 
on the affected marine mammal species or stocks. NMFS has proposed 
issuance of an LOA to allow takes of marine mammals incidental to the 
Navy's mine neutralization training events using TDFDs, provided that 
the proposed mitigation measures are implemented.

    Dated: November 9, 2011.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2011-29764 Filed 11-16-11; 8:45 am]
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