2011-29764. 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.

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 [e-mail]. 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 http://www.nmfs.noaa.gov/​pr/​permits/​incidental.htm without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information.

A copy of the application used in this document may be obtained by writing to the address specified above, telephoning the contact listed below (see FOR FURTHER INFORMATION CONTACT), or visiting the internet at: http://www.nmfs.noaa.gov/​pr/​permits/​incidental.htm. Documents cited in this notice may also be viewed, by appointment, during regular business hours, at the aforementioned address.

FOR FURTHER INFORMATION CONTACT:

Michelle Magliocca, Office of Protected Resources, NMFS, [phone].

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 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

Type	Swim speed	Time-delay (min)	Potential distance traveled (yd)	Potential distance traveled with additional 200-yd buffer (yd)
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
* 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.

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]

Charge weight (lb)*	ZOI	ZOI by time and buffer distance
		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.

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 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 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.