[Federal Register Volume 62, Number 81 (Monday, April 28, 1997)]
[Proposed Rules]
[Pages 22902-22903]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-10800]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 960318084-6199-03; 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; request for comments.

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SUMMARY: On March 11, 1997, the U.S. Navy submitted a petition to NMFS 
amending its June 7, 1996, application and requesting a modification to 
the proposed effective date of the regulations proposed by NMFS issuing 
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, in accordance with the 
Navy's request, amends the proposed regulations to make them effective 
from April 1 through September 30, 1998 and 1999. NMFS invites comment 
on this modification.

DATES: Comments must be received no later than May 28, 1997.

ADDRESSES: Comments should be addressed to Michael Payne, Chief, Marine 
Mammal Conservation Division, Office of Protected Resources, NMFS, 1315 
East-West Highway, Silver Spring, MD 20910-3226. A copy of the March 
11, 1997 petition, the application, or the proposed rule 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.

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.
    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 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.

[[Page 22903]]

    In its original application, the Navy proposed 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, two sites, Mayport, FL and Norfolk, VA, 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 by the Navy because of a lower abundance of marine 
mammals at that site. Because of the potential impact on 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.
    On August 2, 1996 (61 FR 40377), NMFS published a proposed rule to 
issue an incidental small take exemption under the 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. A 
correction notice on the proposed regulations was published on August 
23, 1996 (61 FR 43517). The comment period for the proposed rule closed 
on September 17, 1996. During the 45-day comment period, NMFS received 
5 letters commenting on the rule. These comments, and relevant comments 
received as a result of this notice, will be addressed in the notice of 
final determination which will be published in the Federal Register.

Summary of Request

    On March 11, 1997, the U.S. Navy submitted a petition to NMFS 
amending its June 7, 1996, application and requesting a modification to 
the proposed regulations for an incidental small take exemption under 
the 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. The petition states that the U.S. Navy, for 
reasons unrelated to the environment, will not be able to conduct the 
shock trial from April 1, 1997, through September 30, 1997, and 
requests that the period of effectiveness for the regulations and the 
shock trial be extended until 1999. No modification to the proposed 
seasonal restriction (which would prohibit any marine mammal takings 
from October 1 through March 31 at the Norfolk site and from October 1 
through April 30 at the Mayport site) to protect marine mammal and sea 
turtle species is requested. Because section 101(a)(5)(A) of the MMPA 
provides for small take authorizations to be effective for periods up 
to 5 years, NMFS believes that granting this request to modify the 
effective date of the proposed rule is warranted.

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 the August 2, 1996, 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. Extending the effective 
date for the rule has no effect on the economic impact or on who would 
be impacted.
    This proposed rule does not contain a collection-of- information 
requirement subject to the provisions of the Paperwork Reduction Act.

List of Subjects in 50 CFR Part 216

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

    Dated: April 22, 1997.
Nancy Foster,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    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. unless otherwise noted.

    2. Subpart O is amended by adding Sec. 216.162 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

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Sec. 216.162  Effective dates.

    Regulations in this subpart are effective from April 1 through 
September 30, 1998, and April 1 through September 30, 1999.
[FR Doc. 97-10800 Filed 4-25-97; 8:45 am]
BILLING CODE 3510-22-F