Taking and Importing Marine Mammals; U.S. Navy Training in the Hawaii Range Complex, 11067-11071 [2012-4340]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 77, Number 37 (Friday, February 24, 2012)]
[Notices]
[Pages 11067-11071]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-4340]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XA912


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 of issuance of a Letter of Authorization.

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SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA), as 
amended, and implementing regulations, notice is hereby given that NMFS 
has issued a Letter of Authorization (LOA) to the U.S. Navy (Navy) to 
take marine mammals incidental to training and research activities 
conducted within the Hawaii Range Complex (HRC) for the period of 
February 9, 2012, through January 5, 2014.

DATES: This Authorization is effective from February 9, 2012, through 
January 5, 2014.

ADDRESSES: The LOA and supporting documentation may be obtained by 
writing 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.
    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: 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, 
and if the permissible methods of taking and requirements pertaining to 
the monitoring and reporting of such taking are set forth.
    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 was finalized on February 1, 2012 (77 FR 4917) 
in a final rule modification that also amended regulations to allow for 
multi-year LOAs. NMFS issued the Navy a 1-year LOA on January 10, 2012, 
which is superseded by the 2-year LOA detailed in this notice. For more 
information, 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.

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 proposed 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 had not been previously 
contemplated, which is why NMFS provided the proposed modifications to 
the public for review. A detailed description of TDFDs, underwater 
detonation training, and how the Navy derived their new

[[Page 11068]]

mitigation measures was provided in the proposed LOA (76 FR 71322, 
November 17, 2011) and is not repeated here. The Navy has complied with 
the measures required in 50 CFR 216.174 and 216.175, as well as the 
associated 2010 LOA, and submitted the reports and other documentation 
required in the final rule and the 2010 LOA.

Comments and Responses

    NMFS published a notice of receipt and request for public comments 
on November 17, 2011 (76 FR 71322). During the 30-day public comment 
period, NMFS received comments from the Marine Mammal Commission 
(Commission), Cascadia Research Collective, and one individual 
generally opposed to Navy activities. Specific comments are addressed 
below.
    Comment 1: The Commission recommends that NMFS ensure the 
regulations that govern the taking of marine mammals in the HRC are 
amended to allow for multi-year LOAs prior to renewing the LOA in 
question for a two-year period.
    Response: The regulations that govern the taking of marine mammals 
in the HRC were amended on February 1, 2012 to allow for multi-year 
LOAs.
    Comment 2: The Commission recommends that NMFS and the Navy 
investigate the underlying cause of the high rate of non-compliance 
with TDFDs being used and determine why it was not detected earlier.
    Response: The Navy has not violated any provisions of their LOAs or 
rules. There were no prohibitions against using TDFDs in the earlier 
LOAs and rules issued to the Navy. The use of TDFDs was not identified 
in the Navy's initial LOA application and the explosives used in the 
mine neutralization training were treated as standard underwater 
detonations. Therefore, the use of TDFDs was not analyzed in the 
rulemaking and subsequent LOAs did not explicitly prohibit the use of 
TDFDs. After the Silver Strand Training Complex incident, the Navy's 
internal review of mine neutralization training events concluded that 
the original mitigation measures could not be effectively implemented 
when using TDFDs. As a result, the Navy suspended training with TDFDs 
on April 8, 2011 and required the use of ``positive control'' firing 
devices (with instant detonations) to ensure compliance with the 
mitigation measures prescribed in the 2011 LOA.
    Comment 3: The Commission recommends that NMFS and the Navy jointly 
review the full scope of the applicable regulations and LOAs to ensure 
that the responsible Navy officials are aware of, understand, and are 
in compliance with all mitigation, monitoring, and reporting 
requirements.
    Response: NMFS and the Navy worked together closely to develop all 
mitigation, monitoring, and reporting measures for the Navy's MMPA 
authorizations and regulations applicable to military readiness 
activities. The mitigation, monitoring, and reporting measures set 
forth are still considered to provide the best practicable protection 
to marine mammals.
    Comment 4: The Commission recommends that NMFS require the Navy to 
conduct empirical sound propagation measurements to verify the adequacy 
of the sizes of the exclusion zones for 5-, 10-, and 20-lb charges and 
to expand those zones and the buffer zones derived from those zones as 
necessary.
    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. The Navy found that, generally, empirically 
measured single-charge underwater detonations were similar to or less 
than propagation model predictions (DoN 2006).
    In 2009, 2010, and 2011, the Navy embarked marine mammal observers 
and conducted visual surveys in the HRC during several mine 
neutralization training events as part of its marine mammal monitoring 
program (see Navy's HRC annual monitoring reports for further details: 
https://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications). The 
Navy 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 (e.g., 
shallow depths, seasonal temperature variation, bottom sediment 
composition). If such data can be collected without unreasonable costs 
and impacts to training, the Navy will begin incorporating the 
measurements into the monitoring program for mine neutralization 
training in the HRC.
    Comment 5: The Commission recommends that NMFS require the Navy to 
re-estimate the buffer zone sizes using the mean average swim speeds, 
plus at least one standard deviation for marine mammals that inhabit 
the shallow-water areas where TDFDs would be used.
    Response: NMFS disagrees that the buffer zone sizes need to be re-
estimated. The buffer zones already account for swim speeds above 3 
knots by including at least an additional 200 yards when practicable. 
NMFS believes that there is a very low likelihood of an animal entering 
the buffer zone during the brief amount of time that exposure may occur 
without being detected. Given the Navy's available resources, and 
considering the small size of boats typically used for monitoring, the 
proposed buffer zones are the maximum distances that can be effectively 
monitored. Due to the type of training required during the use of 
TDFDs, the Navy has limited survey vessels and manpower available for 
monitoring. Scheduling additional vessels and crews would degrade the 
overall training readiness of the other unit(s) involved. If the Navy 
adopted a more precautionary swim speed and implemented larger buffer 
zones, surveillance resources could not be increased and the same 
number of boats would be spread out over a larger area, diluting the 
Navy's ability to effectively monitor the buffer zone.
    It is worth noting that even in the absence of mitigation, the 
Navy's modeling suggests that zero animals are likely to randomly enter 
the safety radius in the small amount of times that the detonations 
actually occur. It is unlikely that an animal will swim into the zone 
during the brief amount of time that it might be exposed to a 
detonation without being detected by the multiple boats circling the 
detonation area and observing the buffer zone.
    Comment 6: The Commission recommends that NMFS consider whether 
modifications to the LOAs alone are sufficient to satisfy the 
requirements of the MMPA and provide a thorough explanation of its 
rationale in the Federal Register notice taking final action on the 
proposed modifications, if it believes that regulatory modifications 
are not needed.
    Response: The amount of incidental harassment authorized in the 
regulations governing mine neutralization in the HRC was based on 
thorough analyses and assessment of the Navy's activities and marine 
mammal distribution and occurrence in the vicinity of the action area. 
The estimated exposures are based on the probability of animals being 
present in the area when a training event is occurring, and this 
probability does not change based on the use of TDFDs or implementation 
of mitigation measures (i.e., the exposure model does not

[[Page 11069]]

account for how the charge is initiated and assumes no mitigation is 
being implemented). The amount of harassment currently authorized and 
NMFS' determination of negligible impact on the stock already assume a 
conservative estimate of potential harassment for these events. The 
enhanced mitigation measures for the use of TDFDs are expected to 
balance the potential additional risks that may rise from the Navy 
using TDFDs during mine neutralization training. 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. In 
summary, the take limits are not expected to be exceeded with the use 
of TDFDs, but the additional mitigation and monitoring measures should 
offset the potential risks of using TDFDs. Consequently, NMFS believes 
that the take estimates analyzed in the existing final rule do not 
change as a result of the Navy using TDFDs and further revisions to the 
final rule are not warranted.
    Comment 7: Regarding the proposed listing of the insular stock of 
false killer whales, the Commission recommends that the Navy enter into 
a conference pursuant to 50 CFR 402.10 and consider requesting that the 
conference follow formal consultation procedures.
    Response: A ``conference'' is designed to assist the NMFS 
Endangered Species Act Interagency Cooperation Division and any 
applicant in identifying and resolving potential conflicts at an early 
stage in the planning process. The Navy has requested initiation of 
formal conference with NMFS for the effect of Navy training activities 
in the HRC on Hawaii insular false killer whales.
    Comment 8: The Cascadia Research Collective points out that since 
the HRC rulemaking was issued, multiple stocks within the HRC have been 
designated for three species. Separate island-associated populations 
are now recognized for common bottlenose and spinner dolphins and two 
stocks are designated for false killer whales. The Cascadia Research 
Collective recommends that potential impacts of takes be reanalyzed on 
a stock-by-stock basis, taking into account the spatial bias of Navy 
activities within the HRC.
    Response: Since 2009, multiple stocks of bottlenose dolphin (Hawaii 
Pelagic; Kauai and Niihau; Oahu; 4-Island Region; and Hawaii Island), 
spinner dolphin (Hawaii Pelagic; Hawaii Island; Oahu and 4-Island 
Region; Kauai and Niihau; Kure and Midway; Pearl and Hermes Reef), and 
false killer whale (Pelagic and Insular) have been designated. The Navy 
has been working with NMFS' science centers to evaluate potential 
methods for estimating impacts on a stock-by-stock basis. Current 
abundance data for common bottlenose dolphins does not allow for stock-
by-stock analysis because of limited surveys and small sample sizes. 
There are currently no abundance estimates available for the six 
individual spinner dolphin stocks, so the status of all stocks has been 
combined when evaluating this species for management purposes. The Navy 
has, however, developed an approach to evaluate potential impacts on 
each of the two stocks of false killer whales.
    NMFS currently recognizes two stocks of false killer whale in 
Hawaiian waters: The Hawaii pelagic and the Hawaii insular stocks 
(Fornet et al. 2010; Oleson et al. 2010; Caretta et al. 2011). NMFS 
considers all false killer whales within 40 km (22 nm) of the Hawaiian 
Islands as belonging to the insular stock, all false killer whales 
beyond 140 km (76 nm) as belonging to the pelagic stock, and notes that 
the two stocks overlap between the 40 km and 140 km boundaries. This 
100-km (54 nm) overlap area is approximately where the majority of Navy 
training and testing has historically occurred. Since the Navy 
anticipates that both populations of false killer whales may be equally 
encountered during Navy training in the HRC, NMFS and the Navy agreed 
that it is reasonable to treat both populations equally when estimating 
take. The Navy derived take numbers for each stock based on the best 
estimates of population size in the 2011 Pacific Stock Assessment 
Report. Population estimates were used in the analysis because the 
Navy's activities potentially overlap with each stock's entire range.
    The Navy's current 2-year LOA authorizes 102 Level B harassments of 
false killer whales between January 15, 2012 and January 5, 2014 (an 
annual average of 51 animals). The Navy's new analysis resulted in an 
annual estimated 13 Level B harassments of false killer whales from the 
insular stock (the insular stock population is 26 percent of the total 
false killer whale population; 26 percent of 51 authorized takes = 13) 
and 38 Level B harassments of false killer whales from the pelagic 
stock (the pelagic stock population is 74 percent of the total false 
killer whale population; 74 percent of 51 authorized takes = 38). NMFS 
will issue a new LOA specifying the amount of authorized take for each 
stock.

Summary of Activity Under the 2010 LOA

    As described in the Navy's exercise reports (both classified and 
unclassified), in 2010, the training activities conducted by the Navy 
were within the scope and amounts authorized by the 2010 LOA and the 
levels of take remain within the scope and amounts contemplated by the 
final rule. The Navy conducted the monitoring required by the 2011 LOA 
and described in the Monitoring Plan, which included aerial and vessel 
surveys of sonar and explosive exercises by dedicated MMOs, as well as 
deploying acoustic recording devices and tagging marine mammals. The 
Navy submitted their 2011 Monitoring Report, which is posted on NMFS' 
Web site (https://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications), within the required timeframe. The Navy 
included a summary of the 2011 monitoring effort and results and the 
specific reports for each individual effort are presented in the 
appendices. Because data is gathered through August 1 and the report is 
due in October, some of the data analysis will occur in the subsequent 
year's report.

Modifications to Mitigation and Monitoring Measures Related to Mine 
Neutralization Training

    NMFS worked with the Navy to develop a series of modifications 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 will only 
be conducted during daylight hours.
    2. A mitigation zone of 700 yd will be established around each 
underwater detonation point.
    3. A minimum of two boats will be deployed. One boat will act as an 
observer platform, while the other boat will typically provide diver 
support.
    4. Two observers with binoculars on one small vessel will 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

[[Page 11070]]

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 will be suspended 
until the marine mammal has voluntarily left the area and the area is 
clear of marine mammals for at least 30 min.
    7. Immediately following the detonation, visual monitoring for 
marine mammals within the mitigation zone will continue for 30 min. Any 
marine mammal observed after the underwater detonation either injured 
or exhibiting signs of distress will 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 will report these events to the Stranding Coordinator of NMFS' 
Pacific Islands Regional Office. These reports will 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

    The Navy's mitigation zones will 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 
will 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 
Navy-modeled ``underwater zones of influence'' to the appropriate range 
category (1,000, 1,400, and 1,500) (Table 1). 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. See the proposed LOA (76 FR 71322, 
November 17, 2011) for a more detailed description of how the Navy 
developed the new buffer zones. The mitigation measures for underwater 
detonations using TDFDs are summarized below.

                               Table 1--Mitigation Zone Radii for TDFDs Based on Size of Charge and Length of Timed-Delay.
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                                                                                                    Timed-delay
                   Charge weight (lb)                    -----------------------------------------------------------------------------------------------
                                                               5 min           6 min           7 min           8 min           9 min          10 min
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5.......................................................        1,000 yd        1,000 yd        1,000 yd        1,000 yd        1,400 yd        1,400 yd
10......................................................        1,000 yd        1,000 yd        1,000 yd        1,400 yd        1,400 yd        1,400 yd
15-29...................................................        1,000 yd        1,000 yd        1,400 yd        1,400 yd        1,500 yd        1,500 yd
--------------------------------------------------------------------------------------------------------------------------------------------------------
1,400 and 1,500 yd = minimum of three observation boats or two boats and one helicopter.

    1. Underwater detonations using TDFDs will only be conducted during 
daylight hours.
    2. Time-delays longer than 10 min will not be used. The initiation 
of the device will 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 will be established around each 
underwater detonation location, as indicated in Table 1, based on 
charge weight and length of time-delay used. When conducting surveys, 
boats will 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 will 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 will be used to survey for marine 
mammals at a distance of 1,000 yd.
     Each boat will 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 
will be used to survey at distances >=1,400 yd.
     When using at least three boats, each boat will 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 will conduct continuous 
visual surveys of the monitoring zone for the duration of the training 
event.
    7. Monitoring zones will 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 will 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 will 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 will continue for 30 
min.
    11. Any marine mammal observed after an underwater detonation 
either injured or exhibiting signs of distress will 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 will report these events to the Stranding 
Coordinator of NMFS' Pacific Islands Regional Office. These reports 
will contain the date and time of the sighting, location, species 
description, and indication of the animal's status.

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

[[Page 11071]]

marine mammal will 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 modified LOA which includes 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 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 analysis of the potential impacts from the proposed 
mine neutralization training exercises conducted within the HRC, which 
includes the modification of marine mammal monitoring and mitigation 
measures intended to minimize the risk of exposure to explosive 
detonations during the use of TDFDs, NMFS has determined that the 
modification of the Navy's LOA to include taking of marine mammals 
incidental to mine neutralization training using TDFDs will 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 seven marine mammal species listed as threatened or 
endangered under the ESA with confirmed or possible occurrence in the 
HRC: blue whale (Balaenoptera musculus), north Pacific right whale 
(Eubalaena japonica), 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 consulted 
internally on the issuance of the modified LOA under section 
101(a)(5)(A) of the MMPA for these activities. Consultation was 
concluded on January 10, 2012.

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. 
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 events using TDFDs. Therefore, no additional 
NEPA analysis is required and the information in the existing FEIS 
remains sufficient.

Authorization

    NMFS has determined that the marine mammal takes resulting from the 
2011 military readiness training and research activities falls within 
the levels previously anticipated, analyzed, and authorized. Further, 
the level of taking authorized in 2012 and 2013 for the Navy's HRC 
training and research activities is consistent with our previous 
findings made for the total taking allowed under the HRC regulations. 
Finally, the record supports NMFS' conclusion that the total number of 
marine mammals taken by the 2012 and 2013 HRC activities will have no 
more than a negligible impact on the affected species or stock of 
marine mammals and will not have an unmitigable adverse impact on the 
availability of these species or stocks for taking for subsistence 
uses. Accordingly, NMFS has issued a 2-year LOA for Navy training and 
research activities conducted in the HRC from January 15, 2012, through 
January 5, 2014.

    Dated: February 17, 2012.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2012-4340 Filed 2-23-12; 8:45 am]
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