[Federal Register Volume 61, Number 150 (Friday, August 2, 1996)]
[Proposed Rules]
[Pages 40377-40380]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19659]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 960318084-6199-02; I.D. 071596C]
RIN 0648-AG55


Taking and Importing Marine Mammals; Taking Marine Mammals 
Incidental to Naval Activities

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

ACTION: Proposed rule; notice of public meetings and request for 
comments.

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SUMMARY: NMFS has received an application from the U.S. Navy for an 
incidental small take exemption under the Marine Mammal Protection Act 
(MMPA) to take a small number of marine mammals incidental to shock 
testing the USS SEAWOLF submarine in the offshore waters of the U.S. 
Atlantic coast in 1997. By this notice, NMFS is proposing regulations 
to govern that take. NMFS also announces the times, dates, and 
locations of public meetings in order to receive comments from the 
general public on the Navy application and the proposed regulations. In 
order to grant the exemption and issue the regulations, NMFS must 
determine that these takings will have a negligible impact on the 
affected species and stocks of marine mammals. NMFS invites comment on 
the application and the proposed regulations.

DATES: Comments must be received no later than September 17, 1996. 
Public meetings are scheduled as follows:

1. August 19, 1996, 10 a.m.-4 p.m. Silver Spring, MD.
2. August 20, 1996, 7-10 p.m. Norfolk, VA.
3. August 21, 1996, 7-10 p.m. Atlantic Beach, FL.

ADDRESSES: Comments should be addressed to Chief, Marine Mammal 
Division, Office of Protected Resources, National Marine Fisheries 
Service, 1315 East-West Highway, Silver Spring, MD 20910-3226. A copy 
of the application may be obtained by writing to the above address, 
telephoning the person below (see FOR FURTHER INFORMATION CONTACT) or 
by leaving a voice mail request at (301) 713-4070. A copy of the draft 
environmental impact statement (draft EIS) may be obtained from Will 
Sloger, U.S. Navy, at (803) 820-5797.
    The public meetings will be held at the following locations:

1. Norfolk--Lafayette Winona Middle School auditorium, 1701 Alsace 
Avenue, Norfolk, VA.
2. Atlantic Beach--Mayport Middle School cafeteria, 2600 Mayport Road, 
Atlantic Beach, FL.
3. Silver Spring--Silver Spring Metro Center Building 4, 1st floor, 
1305 East-West Highway, Silver Spring, MD.

    Comments regarding the burden-hour estimate or any other aspect of 
the collection of information requirement contained in this rule should 
be sent to the above individual and to the Office of Information and 
Regulatory Affairs, Office of Management and Budget (OMB), Attention: 
NOAA Desk Officer, Washington, D.C. 20503.

FOR FURTHER INFORMATION CONTACT: Kenneth R. Hollingshead, NMFS, (301) 
713-2055.

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, but not intentional taking 
of marine mammals by U.S. citizens who engage in a specified activity 
(other than commercial fishing) within a specified geographical region 
if certain findings are made and regulations are issued.
    Permission 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) of marine mammals, will not have an unmitigable adverse impact 
on the availability of these species for subsistence uses, and 
regulations are prescribed setting forth the permissible methods of 
taking and the requirements pertaining to the monitoring and reporting 
of such taking.

Summary of Request

    On June 7, 1996, NMFS received an application for an incidental, 
small take exemption under section 101(a)(5)(A) of the MMPA from the 
U.S. Navy to take marine mammals incidental to shock testing the USS 
SEAWOLF submarine off the U.S. Atlantic coast. The USS SEAWOLF is the 
first of a new class of submarines being acquired by the Navy. In 
accordance with 10 U.S.C. 2366, each new class of ships constructed for 
the Navy cannot proceed beyond initial production until realistic 
survivability testing of the ship and its components are completed. 
Realistic survivability testing means testing for vulnerability in 
combat by firing munitions likely to be encountered in combat. This 
testing and assessment is commonly referred to as ``Live Fire Test & 
Evaluation (LFT&E).'' Because realistic testing by detonating torpedoes 
or mines against a ship's hull could result in the loss of a multi-
billion dollar Navy asset, the Navy has established an LFT&E program 
consisting of computer modeling, component and surrogate testing, and 
shock testing the entire ship. Together, these components complete the 
survivability testing as required by 10 U.S.C. 2366.
    The shock test component of LFT&E is a series of underwater 
detonations that propagate a shock wave through a ship's hull under 
deliberate and controlled conditions. Shock tests simulate near misses 
from underwater explosions similar to those encountered in combat. 
Shock testing verifies the accuracy of design specifications for shock 
testing ships and systems, uncovers weaknesses in shock sensitive 
components that may compromise the performance of vital systems, and 
provides a basis for correcting deficiencies and upgrading ship and 
component design specifications. While computer modeling and laboratory 
testing provide useful information, they

[[Page 40378]]

cannot substitute for shock testing under realistic, offshore 
conditions. To minimize cost and risk to personnel, the first ship in 
each new class is shock tested and improvements are applied to later 
ships of the class.
    The Navy proposes to shock test the USS SEAWOLF by detonating a 
single 4,536-kg (10,000-lb) explosive charge near the submarine once 
per week over a 5-week period between April 1 and September 30, 1997. 
If the Mayport, FL site is selected, the shock tests would be conducted 
between May 1 and September 30, 1997 in order to minimize risk to sea 
turtles. Detonations would occur 30 m (100 ft) below the ocean surface 
in a water depth of 152 m (500 ft). The USS SEAWOLF would be underway 
at a depth of 20 m (65 ft) at the time of the test. For each test, the 
submarine would move closer to the explosive so the submarine would 
experience a more severe shock.
    As part of a separate review under the National Environmental 
Policy Act (NEPA), two sites are being considered by the Navy for the 
USS SEAWOLF shock test effort. The Mayport site is located on the 
continental shelf of Georgia and northeast Florida and the Norfolk site 
is located on the continental shelf offshore of Virginia and North 
Carolina. The Mayport site is the preferred location because of a lower 
abundance of marine mammals at that site. Because of the potential 
impact to marine mammals, the Navy has requested NMFS to grant an 
exemption under section 101(a)(5)(A) of the MMPA that would authorize 
the incidental taking and issue regulations governing the take.

Comments

    On June 14, 1996 (61 FR 30212), NMFS published a notice of receipt 
of the Navy's application for a small take exemption and requested 
comments, information and suggestions concerning the request and the 
structure and content of regulations to govern the take. The comment 
period closed on July 15, 1996, but no comments were received.

Description of Habitat and Marine Mammals Affected by Shock Testing the 
USS SEAWOLF

    A description of the U.S. Atlantic coast environment, its marine 
life and marine mammal abundance, distribution and habitat can be found 
in the draft EIS on this subject and is not repeated here. Additional 
information on Atlantic coast marine mammals can be found in Blaylock 
et al. (1995).1 These documents are available upon request.
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    \1\ Blaylock, Robert A., James W. Hain, Larry J. Hansen, Debra 
L. Palka, and Gordon T. Waring. 1995. U.S. Atlantic and Gulf of 
Mexico Marine Mammal Stock Assessments. NOAA Technical Memorandum 
NMFS-SEFC-363. 211 pp.
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Summary of Potential Impacts

    Potential impacts to the several marine mammal species known to 
occur in these areas from shock testing include both lethal and non-
lethal injury, as well as harassment. Death or injury may occur as a 
result of the explosive blast, and harassment may occur as a result of 
non-injurious physiological responses to the explosion-generated 
shockwave and its acoustic signature. The Navy believes it is very 
unlikely that injury will occur from exposure to the chemical by-
products released into the surface waters, and no permanent alteration 
of marine mammal habitat would occur. While the Navy does not 
anticipate any lethal takes would result from these detonations, 
theoretical calculations indicate that the Mayport site has the 
potential to result in 1 lethal take, 5 injurious takes, and 570 
harassment takes, while the Norfolk site has the potential to result in 
8 lethal takes, 38 injurious takes, and 4,819 harassment takes. 
Detailed descriptions on the definitions of take categories; 
calculation of ranges for potential mortality, injury, and harassment; 
incidental take calculations; and impacts on marine mammal habitat can 
be found in the Navy application, which is available upon request (see 
ADDRESSES).

Summary of Proposed Mitigation and Monitoring Measures

    The Navy's proposed action includes mitigation that would minimize 
risk to marine mammals and sea turtles. The Navy would: (1) Through 
pre-detonation aerial surveys, select a test area with potentially, the 
lowest number of marine mammals and turtles; (2) monitor the area 
visually (aerial and shipboard monitoring) and acoustically before each 
test and postpone detonation if either (a) any marine mammal or sea 
turtle is detected within a safety zone of 3.8 km (2.05 nmi) or a 
buffer zone of an additional 1.8 km (0.05 nmi), or (b) the sea state 
exceeds Beaufort 4 (i.e., wind velocity >16 kt), or the visibility is 
not 1.85 km (1 nmi) or greater and the ceiling is not 305 m (1,000 ft) 
or greater; and (3) monitor the area after each test to find and treat 
any injured animals. If post-detonation monitoring shows that marine 
mammals or sea turtles were killed or injured as a result of the test, 
testing would be halted until procedures for subsequent detonations 
could be reviewed and changed as necessary.
    A detailed description on the proposed measures for mitigation and 
monitoring the shock test can be found in the Navy application and 
draft EIS, which are available upon request (see ADDRESSES).

Reporting

    Within 120 days of the completion of shock testing, the Navy would 
be required to submit a final report to NMFS. This report must include 
the following information: (1) Date and time of each of the 
detonations; (2) a detailed description of the pre-test and post-test 
activities related to mitigating and monitoring the effects of 
explosives detonation on marine mammals and their populations; (3) the 
results of the monitoring program, including numbers by species/stock 
of any marine mammals noted injured or killed as a result of the 
detonations and numbers that may have been harassed due to undetected 
presence within the safety zone; and (4) results of coordination with 
coastal marine mammal/sea turtle stranding networks.

Preliminary Conclusions

    While NMFS believes that detonation of five 4,536-kg (10,000-lb) 
charges may affect some marine mammals, the latest abundance and 
seasonal distribution estimates indicate that such taking will have a 
negligible impact on the populations of marine mammals inhabiting the 
waters of the U.S. Atlantic Coast. NMFS concurs with the U.S. Navy that 
impacts can be mitigated by mandating a conservative safety range for 
marine mammal exclusion, incorporating aerial and acoustic survey 
monitoring efforts in the program both prior to, and after detonation 
of explosives, and provided detonations are not conducted whenever 
marine mammals are detected within the safety zone, or if weather and 
sea conditions preclude adequate aerial surveillance.

NEPA

    On June 14, 1996 (61 FR 30232), the Environmental Protection Agency 
noted the availability for public review and comment a draft EIS 
prepared by the U.S. Navy under NEPA on this action. NMFS is a 
cooperating agency as defined by the Council on Environmental Quality 
regulations (40 CFR 1501.6).

[[Page 40379]]

Endangered Species Act (ESA)

    NMFS will be consulting with the U.S. Navy under section 7 of the 
ESA for this action. In that regard, the Navy submitted to NMFS a 
Biological Assessment under the ESA. This consultation will be 
concluded prior to a determination on issuance of a final rule and 
exemption.

Classification

    This action has been determined to be not significant for purposes 
of E.O. 12866.
    The Assistant General Counsel for Legislation and Regulation of the 
Department of Commerce certified to the Small Business Administration 
that this proposed rule, if adopted, would not have a significant 
economic impact on a substantial number of small entities since it 
would apply only to the U.S. Navy and would have no effect, directly or 
indirectly, on small businesses.
    This proposed rule contains collection-of-information requirements 
subject to the provisions of the Paperwork Reduction Act (PRA). This 
collection has been approved previously by OMB under section 3504(b) of 
the PRA issued under OMB Control No. 0648-0151. Notwithstanding any 
other provision of law, no person is required to respond to nor shall a 
person be subject to a penalty for failure to comply with a collection 
of information subject to the requirements of the PRA unless that 
collection of information displays a currently valid OMB control 
number.
    The reporting burden for this collection is estimated to be 
approximately 80 hours, including the time for gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information. It does not include time for monitoring the 
activity by observers. Send comments regarding these reporting burden 
estimates or any other aspect of the collections of information, 
including suggestions for reducing the burdens, to NMFS and OMB (see 
ADDRESSES).

List of Subjects in 50 CFR Part 216

    Administrative practice and procedure, Imports, Indians, Marine 
mammals, Penalties, Reporting and recordkeeping requirements, 
Transportation.

    Dated: July 30, 1996.
Charles Karnella,
Acting Director, Office of Operations Management Information.
    For reasons set forth in the preamble, 50 CFR part 216 is proposed 
to be amended as follows:

PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE 
MAMMALS

    1. The authority citation for part 216 continues to read as 
follows:

    Authority: 16 U.S.C. 1361 et seq.

    2. Subpart O is added to read as follows:

Subpart O--Taking of Marine Mammals Incidental to Shock Testing the USS 
SEAWOLF by Detonation of Conventional Explosives in the Offshore Waters 
of the U.S. Atlantic Coast

Sec.
216.161  Specified activity, geographical region and incidental take 
levels.
216.162  Effective dates.
216.163  Permissible methods of taking; mitigation.
216.164  Prohibitions.
216.165  Requirements for monitoring and reporting.
216.166  Modifications to the Letter of Authorization.
216.167-216.169  [Reserved]

Subpart O--Taking of Marine Mammals Incidental to Shock Testing the 
USS SEAWOLF by Detonation of Conventional Explosives in the 
Offshore Waters of the U.S. Atlantic Coast


Sec. 216.161  Specified activity, geographical region, and incidental 
take levels.

    (a) Regulations in this subpart apply only to the incidental taking 
of marine mammals specified in paragraph (b) of this section by U.S. 
citizens engaged in the detonation of conventional military explosives 
within the waters of the U.S. Atlantic Coast offshore Mayport, FL or 
Norfolk, VA for the purpose of shock testing the USS SEAWOLF.
    (b) The incidental take of marine mammals under the activity 
identified in paragraph (a) of this section is limited to the following 
species: Blue whale (Balaenoptera musculus); fin whale (B. physalus); 
sei whale (B. borealis); Bryde's whale (B. edeni); minke whale (B. 
acutorostrata); humpback whale (Megaptera novaeangliae); northern right 
whale (Eubalaena glacialis); sperm whale (Physeter macrocephalus); 
dwarf sperm whale (Kogia simus); pygmy sperm whale (K. breviceps); 
pilot whales (Globicephala melas, G. macrorhynchus); Atlantic spotted 
dolphin (Stenella frontalis); Pantropical spotted dolphin (S. 
attenuata); striped dolphin (Stenella coeruleoalba); spinner dolphin 
(S. longirostris); Clymene dolphin (S. clymene); bottlenose dolphin 
(Tursiops truncatus); Risso's dolphin (Grampus griseus); rough-toothed 
dolphin (Steno bredanensis); killer whale (Orcinus orca); false killer 
whale (Pseudorca crassidens); pygmy killer whale (Feresa attenuata); 
Fraser's dolphin (Lagenodelphis hosei); harbor porpoise (Phocoena 
phocoena); melon-headed whale (Peponocephala electra); northern 
bottlenose whale (Hyperoodon ampullatus); Cuvier's beaked whale 
(Ziphius cavirostris), Blainville's beaked whale (Mesoplodon 
densirostris); Gervais' beaked whale (M. europaeus); Sowerby's beaked 
whale (M. bidens); True's beaked whale (M. mirus); common dolphin 
(Delphinus delphis); Atlantic white-sided dolphin (Lagenorhynchus 
acutus); and harbor seals (Phoca vitulina).
    (c) The incidental take of marine mammals identified in paragraph 
(b) of this section is limited to a total of 8 mortalities, 38 injuries 
and 4,819 harassment takes for detonations in the Norfolk, VA area, or 
1 mortality, 5 injuries and 570 harassment takes for detonations in the 
Jacksonville, FL area, except that the taking by serious injury or 
mortality for species listed in paragraph (b) of this section that are 
also listed as threatened or endangered under Sec. 17.11 of this title, 
is prohibited.


Sec. 216.162  Effective dates.

    Regulations in this subpart are effective from April 1, 1997, 
through September 30, 1997.


Sec. 216.163  Permissible methods of taking; mitigation.

    (a) Under a Letter of Authorization issued pursuant to 
Sec. 216.106, the U.S. Navy may incidentally, but not intentionally, 
take marine mammals by harassment, injury or mortality in the course 
detonating five 4,536 kg (10,000 lb) conventional explosive charges 
within the area described in Sec. 216.161(a) provided all terms, 
conditions, and requirements of the regulations in this subpart and 
such Letter of Authorization are complied with.
    (b) The activity identified in paragraph (a) of this section must 
be conducted in a manner that minimizes, to the greatest extent 
possible, adverse impacts on marine mammals and their habitat. When 
detonating explosives, the following mitigation measures must be 
utilized:
    (1) If marine mammals are observed within the designated safety 
zone prescribed in the Letter of Authorization, or within the buffer 
zone prescribed in the Letter of Authorization and on a course that 
will put them within the safety zone prior to detonation, detonation 
must be delayed until the marine mammals are no longer within the 
safety zone or on a course

[[Page 40380]]

within the buffer zone that is taking them away from the safety zone.
    (2) If weather and/or sea conditions as described in the Letter of 
Authorization preclude adequate aerial surveillance, detonation must be 
delayed until conditions improve sufficiently for aerial surveillance 
to be undertaken.
    (3) If post-test surveys determine that an injurious or lethal take 
of a marine mammal has occurred, the test procedure and the monitoring 
methods must be reviewed and appropriate changes must be made prior to 
conducting the next detonation.


Sec. 216.164  Prohibitions.

    Notwithstanding takings authorized by Sec. 216.161(b) and by a 
Letter of Authorization issued under Sec. 216.106, the following 
activities are prohibited:
    (a) The taking of a marine mammal that is other than unintentional.
    (b) The violation of, or failure to comply with, the terms, 
conditions, and requirements of this part or a Letter of Authorization 
issued under Sec. 216.106.
    (c) The incidental taking of any marine mammal of a species not 
specified in this subpart.


Sec. 216.165  Requirements for monitoring and reporting.

    (a) The holder of the Letter of Authorization is required to 
cooperate with the National Marine Fisheries Service and any other 
Federal, state or local agency monitoring the impacts of the activity 
on marine mammals. The holder must notify the appropriate Regional 
Director at least 2 weeks prior to activities involving the detonation 
of explosives in order to satisfy paragraph (f) of this section.
    (b) The holder of the Letter of Authorization must designate 
qualified on-site individuals, as specified in the Letter of 
Authorization, to record the effects of explosives detonation on marine 
mammals that inhabit the Atlantic Ocean test area.
    (c) The Atlantic Ocean test area must be surveyed by marine mammal 
biologists and other trained individuals, and the marine mammal 
populations monitored, approximately 3 weeks prior to detonation, 48-72 
hours prior to a scheduled detonation, on the day of detonation, and 
for a period of time specified in the Letter of Authorization after 
each detonation. Monitoring shall include, but not necessarily be 
limited to, aerial and acoustic surveillance sufficient to ensure that 
no marine mammals are within the designated safety zone nor are likely 
to enter the designated safety zone prior to or at the time of 
detonation.
    (d) Under the direction of a certified marine mammal veterinarian, 
examination and recovery of any dead or injured marine mammals will be 
conducted. Necropsies will be performed and tissue samples taken from 
any dead animals. After completion of the necropsy, animals not 
retained for shoreside examination will be tagged and returned to the 
sea. The occurrence of live marine mammals will also be documented.
    (e) Activities related to the monitoring described in paragraphs 
(c) and (d) of this section, or in the Letter of Authorization issued 
under Sec. 216.106, including the retention of marine mammals, may be 
conducted without the need for a separate scientific research permit. 
The use of retained marine mammals for scientific research other than 
shoreside examination must be authorized pursuant to subpart D of this 
part.
    (f) In coordination and compliance with appropriate Navy 
regulations, at its discretion, the National Marine Fisheries Service 
may place an observer on any ship or aircraft involved in marine mammal 
reconnaissance, or monitoring either prior to, during, or after 
explosives detonation in order to monitor the impact on marine mammals.
    (g) A final report must be submitted to the Director, Office of 
Protected Resources, no later than 120 days after completion of shock 
testing the USS SEAWOLF. This report must contain the following 
information:
    (1) Date and time of all detonations conducted under the Letter of 
Authorization.
    (2) A description of all pre-detonation and post-detonation 
activities related to mitigating and monitoring the effects of 
explosives detonation on marine mammal populations.
    (3) Results of the monitoring program, including numbers by 
species/stock of any marine mammals noted injured or killed as a result 
of the detonation and numbers that may have been harassed due to 
presence within the designated safety zone.
    (4) Results of coordination with coastal marine mammal/sea turtle 
stranding networks.


Sec. 216.166  Modifications to the Letter of Authorization.

    (a) In addition to complying with the provisions of Sec. 216.106, 
except as provided in paragraph (b) of this section, no substantive 
modification, including withdrawal or suspension, to the Letter of 
Authorization issued pursuant to Sec. 216.106 and subject to the 
provisions of this subpart shall be made until after notice and an 
opportunity for public comment.
    (b) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species 
or stocks of marine mammals specified in Sec. 216.161(b), or that 
significantly and detrimentally alters the scheduling of explosives 
detonation within the area specified in Sec. 216.161(a), the Letter of 
Authorization issued pursuant to Sec. 216.106 may be substantively 
modified without prior notice and an opportunity for public comment. A 
notice will be published in the Federal Register subsequent to the 
action.


Secs. 216.167-216.169  [Reserved]

[FR Doc. 96-19659 Filed 8-1-96; 8:45 am]
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