[Federal Register Volume 63, Number 230 (Tuesday, December 1, 1998)]
[Rules and Regulations]
[Pages 66069-66077]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-31993]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 960318084-8274-04; 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: Final rule.

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[[Page 66070]]

SUMMARY: NMFS, upon application from the U.S. Department of the Navy 
(U.S. Navy), issues regulations to govern the unintentional take of a 
small number of marine mammals incidental to shock testing the USS 
SEAWOLF submarine in the offshore waters of the U.S. Atlantic coast. 
Issuance of regulations governing unintentional incidental takes in 
connection with particular activities is required by the Marine Mammal 
Protection Act (MMPA) when the Secretary of Commerce (Secretary), after 
notice and opportunity for comment, finds as here, that such takes will 
have a negligible impact on the species and stocks of marine mammals 
and will not have an unmitigable adverse impact on the availability of 
them for subsistence uses. These regulations do not authorize the 
Navy's proposed activity, such authorization is provided by 10 U.S.C. 
2366, and is not within the jurisdiction of the Secretary. Rather, 
these regulations authorize the unintentional incidental take of marine 
mammals in connection with such activities and prescribe methods of 
taking and other means of effecting the least practicable adverse 
impact on the species and its habitat, and on the availability of the 
species for subsistence uses.

DATES: Effective May 1 through September 30 of any single year between 
the years 2000 and 2004, inclusive.

ADDRESSES: Copies of the application, Biological Opinion, Incidental 
Take Statement (ITS) and a list of the references used in this document 
may be obtained by writing to Michael Payne, Chief, Marine Mammal 
Division, Office of Protected Resources, National Marine Fisheries 
Service, 1315 East-West Highway, Silver Spring, MD 20910-3226 or by 
telephoning the contact listed under the section FOR FURTHER 
INFORMATION CONTACT.
    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 preceding address and to the Office of Information and 
Regulatory Affairs, Office of Management and Budget (OMB), Attention: 
NOAA Desk Officer, Washington, DC 20503.
    A copy of the final environmental impact statement (FEIS) may be 
obtained from Will Sloger, U.S. Navy, at (803) 820-5797.

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 a period 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 and will not have an unmitigable adverse 
impact on the availability of these species for subsistence uses and 
that regulations are prescribed setting forth the permissible methods 
of taking and the requirements pertaining to the monitoring and 
reporting of such a 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 in 1997. 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 are 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.
    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 May 1 and September 30, 2000, off 
Mayport, FL, although scheduling delays may postpone the detonation 
into a future year. 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.
    The Mayport site is located on the continental shelf off Georgia 
and northeast Florida. The Mayport site is the U.S. Navy's preferred 
location for the shock trial because of an observed low abundance of 
marine mammals at that site. However, because there is still a 
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 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). During the 45-day comment period, NMFS received 
5 letters (Marine Mammal Commission (MMC), Humane Society of the United 
States (HSUS), Defenders of Wildlife (DoW), People for the Ethical 
Treatment of Animals (PETA) and one private citizen) commenting on the 
proposed rule. Comments contained in these letters are addressed under 
the Comments and Responses section. Comments regarding issues other 
than the contents of the proposed rule have been addressed in the FEIS 
prepared by the U.S. Navy.

[[Page 66071]]

    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 believed that granting this request to modify the 
effective date of the proposed rule was warranted, the requested 
modification was proposed on April 22, 1997 (62 FR 19553). During the 
30-day comment period, no comments were received. Subsequent to that 
action, the U.S. Navy informed NMFS that the shock test would be 
delayed until the year 2000 or beyond.

Comments and Responses

General Concerns

    Comment 1: PETA believes that accepting the proposed rule would set 
a dangerous precedent for other entities to apply for similar legal 
exceptions and would make a mockery of current measures which are 
designed to protect marine mammals from harm.
    Response: NMFS disagrees. The MMPA provides authority under section 
101(a)(5)(A) for the taking of small numbers of marine mammals while 
conducting lawful activities provided the taking is having no more than 
a negligible impact on marine mammals and provided regulations are 
prescribed setting forth permissible methods of taking and other means 
of effecting the least practicable impact on marine mammal species and 
their habitat. The U.S. Navy first applied for a small take 
authorization on May 13, 1993, under section 101(a)(5)(A) of the MMPA. 
That application resulted in a final authorization to incidentally take 
small numbers of marine mammals during the shock trial of the USS JOHN 
PAUL JONES in 1994 (59 FR 5111, February 3, 1994). Monitoring that 
shock trial indicated that no marine mammals were seriously injured or 
killed and only a few dolphins were potentially harassed. The small 
take application for the incidental take of marine mammals for the USS 
SEAWOLF follows, and improves upon, the mitigation and monitoring 
protocols established during the earlier shock trial.
    Comment 2: Three commenters (HSUS, PETA, citizen) recommended NMFS 
adopt the no action alternative and not issue a small take 
authorization to the U.S. Navy.
    Response: NMFS wishes to make clear that the Navy conducts ship 
shock tests under the authority of 10 U.S.C. 2366. The Navy does not 
require NMFS authorization to conduct these tests. However, under the 
MMPA, the taking of marine mammals is prohibited unless authorized by 
exemption or permit. Since there is a possibility that marine mammals 
may be unintentionally taken (harassed, injured or killed) incidental 
to the ship shock trial, the Navy applied to NMFS for a small take 
authorization under section 101(a)(5)(A) of the MMPA. Thus, it is the 
taking of marine mammals incidental to the Navy's ship shock tests that 
NMFS is authorizing, not the shock trial itself. Unless scientific 
evidence contradicts NMFS' preliminary determination (61 FR 40377, 
August 2, 1996) that the ship shock trial is likely to result in only 
small numbers of marine mammals being taken and that this taking would 
have no more than a negligible impact on marine mammal stocks (provided 
the recommended mitigation and monitoring are conducted), a small take 
authorization is appropriate.
    Comment 3: DoW questions the need for shock testing with the advent 
of computer modeling and sophisticated model simulations. With billions 
of dollars already spent on engineering and design for the vessel, this 
mode of testing seems dated. If testing is necessary, then DoW 
recommends the Navy moderate the size of the charge rather than the 
distance (between the charge and the submarine). DoW also recommends 
the Navy should investigate the use of ``shaped'' charges similar to 
those used for building demolition to direct more of the shockwave 
towards the vessel and less into the surrounding environment.
    Response: According to the Navy, data from previous shock tests and 
wartime experience have been incorporated into computer models which 
are used to help predict the survivability of SEAWOLF-class submarines. 
Modeling however, is only one of three components of the SEAWOLF LFT&E 
program which together provide the data necessary to assess the 
SEAWOLF's survivability. The components are computer modeling and 
analysis, component and surrogate testing, and a shock test of the 
entire ship. Computer modeling and component testing on machines or in 
surrogates do not provide adequate information to assess the 
survivability of the submarine in accordance with 10 U.S.C. 2366. In 
addition, combat experience has demonstrated that computer models and 
component testing, while helpful, cannot predict the broad range of 
complex failure mechanisms which could occur inside sophisticated 
electronic components or complex mechanical systems.
    Unfortunately, smaller charges and shaped charges do not energize 
the entire submarine at the desired level of shock intensity. According 
to the Navy, the use of smaller charges would require many more 
detonations to excite the entire submarine to the desired level.
    Comment 4: DoW believes NMFS did not provide adequate notice of 
public meetings and opportunity for hearings. In addition, they believe 
that the title published in the Federal Register was insufficiently 
detailed to elicit response. A secondary, descriptive title would have 
been very helpful.
    Response: The U.S. Navy's proposal to shock test the USS SEAWOLF 
off the U.S. East Coast has been noted in the Federal Register and the 
following newspapers on at least three occasions: Washington Post, 
Beaches Leader, Florida Times Union, Southeastern Georgian and 
Virginian Pilot. NMFS and the Navy first notified the public and held 
scoping meetings in Silver Spring, MD, Norfolk, VA and Atlantic Beach, 
FL in March, 1995. These meetings were announced in the above 
newspapers and in the Federal Register. The notice of availability of 
the draft environmental impact statement (DEIS) was published by the 
Environmental Protection Agency in the Federal Register on June 14, 
1996 (61 FR 30233); a copy of the DEIS was mailed to DoW and a number 
of other interested organizations. The publication of the proposed rule 
by NMFS on August 2, 1996 (61 FR 40377) announced the schedule for 
public meetings under the National Environmental Policy Act (NEPA) and 
the MMPA. The comment period on the DEIS was reopened (61 FR 40204, 
August 1, 1996) until September 17, 1996 to incorporate the comments 
expected from these meetings. A widely distributed press release on the 
Navy proposal was also issued on August 2, 1996, by NOAA, two weeks 
prior to public hearings in mid-August, 1996.

[[Page 66072]]

NOAA press releases are also available to the public through the NOAA 
Homepage. As a result, NMFS believes the general public has had ample 
opportunity to review and prepare comments prior to the MMPA/NEPA 
public meetings and an additional period of time afterwards to submit 
written comments.
    The title of the proposed action published in the Federal Register 
is limited to the title of the codified part (Taking and Importing of 
Marine Mammals) and the subpart (Taking Marine Mammals Incidental to 
Naval Activities). Secondary descriptive titles are not authorized by 
the Office of the Federal Register.
    Comment 5: DoW finds the site selection for the shock trial to be 
problematic. They note that the coastal areas in Florida, particularly 
those within the euphotic zone are some of the most productive 
biologically. Any detonations of the magnitude described in the notice 
would therefore not only affect marine mammals, but could have 
devastating effects on local ecosystems and food chains. This could 
have profound implications on the eastern recreational and commercial 
fisheries.
    Response: The environmental impacts of the shock trial on the 
Florida east coast ecosystems have been described in the DEIS prepared 
as part of this action. Readers are encouraged to refer to that 
document or the recently released FEIS for an analysis of environmental 
and economic impacts (see ADDRESSES).
    Comment 6: The MMC recommends that NMFS carefully examine the data, 
assumptions, and methods used to estimate the numbers of animals that 
might be killed, injured or harassed to ensure that the estimates 
appropriately reflect any possible sources of error or bias. 
Recognizing that if the take is greater than authorized the Navy would 
be required to stop testing before completion, even though the effects 
on marine mammal distribution, abundance and productivity would still 
be negligible, the MMC further recommends that the number of animals 
authorized to be taken be increased if, after further examination, it 
is determined that (1) the present estimates do not adequately reflect 
possible sources of error and bias and (2) the possible effects on the 
distribution, size, and productivity of the potentially affected 
species and population stocks would remain negligible.
    Response: NMFS believes that the U.S. Navy used the best scientific 
information available in making its assessment of the potential impact 
on marine mammals from the detonation of 5 explosive charges. In 
addition to using documented sources (e.g., CETAP, stranding records), 
the Navy conducted monthly aerial marine mammal surveys of the two 
preferred geographic areas for a period of 6 months. This survey was 
repeated at Mayport in 1997. The resulting estimate of the number of 
marine mammals that might potentially be harassed, injured or killed is 
provided in Tables 4-5 and 4-6 of the FEIS. It should be noted that the 
U.S. Navy reviewed this concern as part of its NEPA review, and, for 
reasons stated in response to Comment 7, these take levels have been 
modified from the proposed rule and DEIS. A more detailed response to 
this concern can be found in the FEIS (please refer to comment H4 in 
Appendix H). Also, a complete description of the methodology used by 
the Navy, and adopted by NMFS for this exercise, can be found in the 
FEIS.
    For discussion on the comment that the Navy would be required to 
stop testing before completion if the take is greater than authorized, 
please refer to comment 12.
    Comment 7: The MMC notes that the Navy has introduced a new 
criterion--acoustic discomfort--for determining how and how many 
animals may be harassed by anthropogenic sounds in the marine 
environment. The MMC therefore recommends that NMFS take such steps as 
necessary to ensure that (1) the estimates of the numbers of marine 
mammals that potentially could be taken by harassment are in fact, 
overestimates, rather than underestimates; and (2) the planned 
monitoring program is adequate to verify that any disruption of vital 
behavior is momentary and that no more than the authorized number of 
animals are harassed.
    Response: As explained in detail in the FEIS, previous 
determinations for explosives were based on peak pressure. However, 
several sources recognize that peak pressure may not be the best basis 
for predicting the effects of impulsive noise, such as underwater 
explosives, on marine mammals (e.g., Richardson et al. 1995). In terms 
of mammal hearing, a better measure may be total energy received in 1/
3-octave frequency bands (i.e., the approximate filter bandwidth of the 
hearing system) within the integration time of the ear. As pulsed sound 
sources with differing peak pressures could deliver the same energy 
over a certain time period, the acoustic harassment criterion can be 
improved over the standard 160 dB (re 1 Pa @ 1 m) used 
previously during shock testing the USS JOHN PAUL JONES and other 
explosive detonation events.
    The 160-dB criterion is based on a behavioral response which may be 
of questionable biological significance in the context of a single 
acoustic pulse. In the case of a continuous source (e.g., industrial 
noise) or repeated transient sources (e.g., seismic pulses), avoidance 
by a marine mammal could result in changes to migration, feeding, or 
reproduction patterns that could affect the energetics of both 
individuals and populations. However, in the context of a single, brief 
pulse from a detonation, a momentary startle response causing an animal 
to dive or momentarily change course or speed is not likely to affect 
either the individual or the population. Such a minor response is well 
within the range of normal behaviors that an animal might exhibit at 
any time in response to other animals or other environmental stimuli. 
As a result, NMFS does not normally consider these simple, singular, 
reflex actions (e.g., alert, startle, dive response to a stimulus) by 
marine mammals to be sufficient on their own to warrant an incidental 
harassment authorization. On the other hand, NMFS does not concur with 
statements made by the Navy in response to a different rulemaking that 
the term ``harassment'' in the MMPA should be limited to changes in 
behavioral patterns of a magnitude that reflect an adverse reaction on 
the part of the animals such as intense fear or pain or behavior that 
is likely to harm the animal or its offspring. By statutory definition, 
the de minimus level (for Level B harassment) should be less intrusive 
on the animal than suggested by the Navy.
    Therefore, the information provided in the FEIS supports the Navy's 
selection of temporary threshold shift (TTS) as a harrasment criterion 
for shock testing the USS SEAWOLF. NMFS concurs. TTS is being used as a 
measure of quantifiable harassment, as TTS may also result in behavior 
reflecting an adverse reaction, and TTS meets the definition of both 
Level A and Level B harassment definitions found in the MMPA. On a 
cellular level, TTS could be considered a very slight ``injury'' in the 
sense of damage to hair cells in the ear and because TTS is temporary 
hearing loss, it could lead to a temporary disruption of behavioral 
patterns as specified in the statutory definition of Level B 
harassment. For additional information please refer to the FEIS, in 
particular, Appendix E. Based upon information provided in Appendix E, 
a dual criterion for acoustic harassment has been developed: (1) an 
energy-based TTS criterion of 182 dB re 1 uPa2-sec derived

[[Page 66073]]

from experiments with bottlenose dolphins (Ridgway et al. (1997), and 
(2) 12 lbs/in2 (psi) peak pressure cited by Ketten (1995) as 
associated with a ``safe outer limit for the 10,000 lb charge for 
minimal, recoverable auditory trauma'' (i.e., TTS). The harassment 
range therefore is the minimum distance at which neither criterion is 
exceeded. Using the 182 dB (energy) criterion separate harassment 
ranges were calculated for odontocetes and mysticetes based on their 
differing sensitivity to low frequencies. For the Mayport area, the 
harassment range is predicted to be 15.7 km (8.5 nautical miles (nm)) 
for odontocetes and 23.5 km (12.7 nm) for mysticetes. Estimated take 
levels based upon the above criterion for Mayport can be found in 
Tables 4-5 and 4-6 of the FEIS. For a single detonation at Mayport 
about 358 marine mammals could be harassed; for five detonations, 1,788 
animals could be harassed. Because the U.S. Navy will seek a site for 
detonation that has the lowest real-time abundance of marine mammals, 
these numbers should be regarded as upper limits. The species most 
likely affected at Mayport are the bottlenose dolphin, Risso's dolphin, 
Atlantic spotted dolphin, and the Stenella spp.
    NMFS has concerns that focusing monitoring efforts on the 
possibility that there may be more than a momentary disturbance of one 
or more marine mammals located either inside or outside the acoustic 
harassment zone would result in diminished monitoring within the safety 
zone where, with lowered detection effort, marine mammals might be 
seriously injured or killed. Because aircraft safety precludes more 
than one survey aircraft being within the area at any one time (a 
second aircraft will be held in reserve ashore), and because the survey 
aircraft will operate (after completion of aerial monitoring) in a 
circular holding pattern 4.6 km (2.5 nm) from the site to ensure no 
marine mammals enter the safety zone, there will be limited opportunity 
to observe marine mammal behavior at the instant of detonation. 
Furthermore, it is unclear whether stationing an aircraft in the area 
beyond the acoustic harassment zone would provide meaningful scientific 
results. Based on current scientific information, the low frequency of 
the explosive would potentially affect only marine mammals with the 
ability to detect low frequency sounds, mainly mysticete and sperm 
whales. Other than sperm whales, these species are not expected off 
Mayport, FL during the summer. To accommodate MMC concerns however, the 
Navy plans to locate and monitor any marine mammals, including 
behavioral changes, found inside the acoustic harassment zone for a 
period of 48 hours post-detonation, as detailed in the FEIS.
    Comment 8: The MMC recommends NMFS (1) consider whether monitoring 
and comparing marine mammal vocalizations before and after detonation 
of charges would provide a reasonable means for validating the apparent 
assumption that any disruption of behavior beyond the ``acoustic 
discomfort'' range will be momentary; and (2) if judged reasonable, 
require that the monitoring program be reviewed accordingly.
    Response: The Marine Mammal Acoustic Tracking System will be 
employed during the ship shock trial to acoustically detect marine 
mammals that are within the safety zone to avoid injury or death of 
these animals as a result of the detonation. Acoustic monitoring will 
therefore focus primarily on marine mammals vocalizing within the 
safety and buffer zone and secondarily on animals outside those zones 
prior to detonation. Unfortunately, for security reasons, recordings of 
vocalizing marine mammals after detonation cannot be made, either 
inside or outside the acoustic harassment zone. Therefore, the 
suggested experiment cannot be conducted.
    Comment 9: HSUS recommends that post-detonation monitoring continue 
for a period of time no less than 4 weeks after the final detonation in 
order to account for animals who may not experience an immediately 
observable negative impact.
    Response: NMFS believes that 4-week post-detonation surveys would 
be an unnecessary imposition on the U.S. Navy that would not provide 
the public with meaningful information on the impact of explosions on 
marine mammal populations. First, NMFS believes that any marine mammals 
that might be killed by a detonation and sink would resurface within 1 
week of their demise. Second, marine mammals that are injured might not 
remain in the same area of the detonations after the shock trial is 
completed. This would require the U.S. Navy to conduct extensive aerial 
and ship surveys over a large area of the East Coast to locate injured 
and deceased marine mammals. Finally, a cause-and-effect relationship 
between dead marine mammals and the ship shock trial is not likely to 
be evident by external examination (but see comment 10).
    NMFS will require the U.S. Navy to conduct post-detonation surveys 
for marine mammals a minimum of 48 hours and a maximum of 1 week 
following each detonation. In addition, the U.S. Navy will be 
coordinating follow-up investigations with local stranding networks.
    Comment 10: HSUS recommends that the U.S. Navy fund necropsy 
efforts of stranding networks for a period of one year in an attempt to 
account for long-term impacts that result in mortality. HSUS recommends 
this measure be a required element in the monitoring scheme in 50 CFR 
216.165.
    Response: In the Navy's FEIS, the Navy states that the stranding 
networks will be requested to forward tissue samples from stranded 
marine mammals and sea turtles to the Armed Forces Institute of 
Pathology (AFIP) for analysis. The U.S. Navy will fund necropsy sample 
analyses by the AFIP for one year following the last detonation. This 
recommendation has been incorporated as a monitoring requirement under 
50 CFR 216.165.
    Comment 11: The MMC recommends that the Letter of Authorization 
(LOA) make clear that the authorization is automatically revoked if 
marine mammals are taken in ways or numbers not authorized. The HSUS 
recommends that Sec. 216.166(b) be amended to require the LOA be 
suspended or revoked (without prior notice or opportunity for public 
comment).
    Response: Prior to revocation of an LOA, NMFS must satisfy the 
statutory notice and comment requirement of section 101(a)(5)(B). 
However, under section 101(a)(5)(C) of the MMPA, the notice and comment 
requirements do not apply prior to suspending an LOA due to emergency 
conditions that pose a significant risk to the well-being of the marine 
mammal stock. While, section 101(a)(5)(B), allows NMFS to withdraw 
(revoke) or ``suspend for a time certain'' an LOA, subsequent to notice 
and comment, section 101(a)(5)(C) does not waive the notice and comment 
requirement where NMFS seeks to withdraw the authorization. Conditions 
for suspension or withdrawal of an LOA are described in 50 CFR 216.106 
of this part.
    Comment 12: The HSUS recommends that if the incidental take limits 
in 50 CFR 216.161(c) are exceeded, or if more than 1 mortality or 
serious injury of a threatened or endangered species occurs (and this 
should include all affected sea turtle species as well), then the LOA 
should be immediately suspended or revoked. The Navy would then have to 
make its findings governing the SEAWOLF based on the results of the 
tests conducted at that time.
    Response: Please see the response to comment 11. The serious injury 
or death

[[Page 66074]]

of even 1 marine mammal listed under the ESA is prohibited by the 
regulations governing the incidental take of marine mammals during the 
SEAWOLF shock trial (50 CFR 216.161(c)). However, the serious injury or 
death of these listed species, or the taking of any marine mammal 
species after the harassment, injury or mortality quota(s) is (are) 
reached will not necessarily result in the suspension of the LOA. 
Suspension of an LOA will occur (1) if NMFS determines that additional 
takings are having, or may have, a more than negligible impact on the 
marine mammal stock(s); or (2) all quotas (harassment, injury and 
death) have been reached. Nevertheless, any taking that is in excess of 
the respective quota is prohibited and therefore a violation of the 
MMPA.
    The incidental taking of sea turtles is authorized under an ITS as 
part of a Biological Opinion issued to the U.S. Navy under section 7 of 
the Endangered Species Act, not under the MMPA. Under that authority, 
the taking of listed species in excess of the take limits provided in 
the ITS (including the taking of endangered marine mammals) requires a 
reinitiation of consultation under section 7. Information on sea turtle 
incidental take levels can be found in Appendix G of the FEIS.
    Comment 13: HSUS recommends that 50 CFR 216.163(c) only apply if 
the take is within the limits specified in 50 CFR 216.161(c).
    Response: While 50 CFR 216.163 of the proposed rule did not contain 
a paragraph (c), the incidental take authority provided in 
Sec. 216.163(a) applies until all the quotas contained in 
Sec. 216.161(c) are reached provided all other terms, conditions, and 
requirements of the regulations and LOA are complied with. However, 
should these quotas be reached, NMFS presumes that should the U.S. Navy 
decide to continue their shock trial without a marine mammal 
authorization, the mitigation described in Sec. 216.163(b) would be 
continued by the U.S. Navy to ensure additional takings did not occur.
    Comment 14: The MMC recommends that the reporting requirement be 
revised to require that the results of the monitoring program be 
provided to NMFS following each of the five tests, rather than 120 days 
after the last test.
    Response: NMFS disagrees. Submission of a written report after each 
test is not warranted because of the potential delay in notifying NMFS 
of takings, which in turn may result in a delay in the next shock test 
while NMFS evaluates the data and discusses its findings with the Navy. 
NMFS intends to require instead that the U.S. Navy notify NMFS, 
immediately upon discovery, that a marine mammal has been sighted by 
the post-detonation monitoring team, that either may have been 
seriously injured or killed as a result of the detonation, or is 
determined to have been within the safety zone at the time of 
detonation. If post-test surveys determine that an injurious or lethal 
take of a marine mammal has occurred, the test procedure and the 
monitoring methods will be reviewed with NMFS and appropriate changes 
must be made, if at all possible, prior to conducting the next 
detonation.

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 and FEIS on this subject and is not repeated here. 
Additional information on Atlantic coast marine mammals can be found in 
Blaylock et al. (1995). These documents are available upon request (see 
ADDRESSES).

Summary of Potential Impacts

    Potential impacts to the 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 up to 1 
lethal take, 5 injurious takes, and 1,788 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 and the FEIS, which are available upon request (see 
ADDRESSES).

Summary of Proposed Mitigation and Monitoring Measures

    The Navy's proposed action includes mitigation and monitoring that 
would minimize risk to marine mammals and sea turtles. As recently 
revised, 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 (a) any marine 
mammal, sea turtle, large sargassum raft or large concentration of 
jellyfish is visually detected within a safety zone of 3.7 km (2.0 nm), 
(b) any marine mammal is acoustically detected within a safety zone of 
4.3 km (2.35 nm), or (c) any large fish school, or flock of seabirds is 
detected within a safety zone of 1.85 km (1 nm);
    (3) monitor the area visually (aerial and shipboard monitoring) and 
acoustically before each test and postpone detonation if any marine 
mammal or sea turtle is within a buffer zone of an additional 1.85 km 
(1.0 nm) buffer zone, unless the marine mammals are on a course within 
the buffer zone that is taking them away from the 3.7 km (2.0 nm) 
safety zone, except that no detonation will occur if a listed marine 
mammal is detected within the buffer zone, and subsequently cannot be 
detected, until sighting and acoustic teams have searched the area for 
2.5 hours (approximately 3 times the typical large whale dive 
duration). If a northern right whale is seen, the shot will not occur 
until the animal is positively reacquired outside the buffer zone and 
at least one additional aerial monitoring of the safety range and 
buffer zone shows that no other right whales are present;
    (4) delay detonation if the sea state exceeds 3 (i.e., whitecaps on 
33 to 50 percent of surface; 0.6 m (2 ft) to 0.9 m (3 ft) waves), or 
the visibility is not 5.6 km (3 nm) or greater, and the ceiling is not 
305 m (1,000 ft) or greater;
    (5) no detonations would occur earlier than 3 hours after sunrise 
or later than 3 hours prior to sunset to ensure adequate daylight for 
pre- and post-detonation monitoring; and
    (6) monitor the area for 48 hours after each detonation, and for 7 
days following the last detonation, 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, or if any 
marine mammals or sea turtles were observed in the safety range 
immediately after a detonation, testing would be halted until 
procedures for subsequent detonations could be reviewed and changed as 
necessary.
    Detailed descriptions of the measures for mitigation and monitoring 
the shock

[[Page 66075]]

test can be found in the FEIS (chapter 5), which is available upon 
request (see ADDRESSES).

Reporting

    Within 120 days of the completion of shock testing, the Navy is 
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.

Changes From the Proposed Rule

    NMFS has modified the final rule as follows:
    1. The regulations specify that the incidental taking is authorized 
for the waters off Mayport, FL (i.e., a negligible impact determination 
has not been made for the Norfolk, VA site).
    2. Amended the incidental harassment levels to reflect the change 
from an acoustic discomfort criterion to one based upon TTS.
    3. Harbor seals (Phoca vitulina) have been removed from the list of 
authorized species for taking since it is remote that one would be off 
the Florida coast in mid-summer.
    4. Modified detonation postponement criteria in Sec. 216.163 for 
certain marine mammals present in the buffer zone based on swimming 
speeds and dive durations.
    5. Modified post-detonation criteria in
    50 CFR 216.163(b)(3) to require that if post-test surveys determine 
that any marine mammals are in the safety range immediately after a 
detonation, the test procedure and the monitoring methods must be 
reviewed and appropriate changes must be made prior to conducting the 
next detonation.
    6. Requires the U.S. Navy to conduct during the first detonation, 
and provide a report on, prior to the second detonation, the 
attenuation of the sound pressure levels of the HBX1 explosive charge. 
Based upon the results of this test, the monitoring and safety zones 
described in the LOA, may be modified accordingly.
    7. Reporting requirements have been modified to indicate that 
reports must be submitted to the Regional Administrator, NMFS and a new 
definition for ``Administrator, Southeast Region'' has been added.
    8. A final report on results of necropsies of stranded marine 
mammals funded by the U.S. Navy is now required to be submitted to NMFS 
no later than 18 months after completion of shock testing the USS 
SEAWOLF.
    9. Minor, nontechnical, changes have been made to the regulations 
for clarification and ease of understanding.

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, shipboard, 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 either detected within the safety zone, or 
may enter the safety zone at the time of detonation, 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 DEIS 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) and in this regard submitted comments on the DEIS to the U.S. 
Navy on October 9, 1996. The U.S. Navy responded to NMFS' concerns on 
December 11, 1996. NMFS has reviewed the Navy's response and the FEIS 
and concludes that its comments and suggestions have been 
satisfactorily addressed. As a result, NMFS hereby adopts the Navy FEIS 
as its own as provided by 40 CFR 1506.3. Because NMFS' comments have 
been addressed satisfactorily, NMFS finds that it is unnecessary to 
either prepare its own NEPA documentation nor to recirculate the Navy 
FEIS for additional comments.

Endangered Species Act (ESA)

    NMFS has consulted with the Navy under section 7 of the ESA for 
this shock trial. As the required mitigation measures, as well as 
monitoring, will be conducted as described, the shock trial is expected 
to provide adequate protection for listed species. As a result, NMFS 
has determined that the activity, while not likely to jeopardize the 
continued existence of those endangered or threatened species under the 
jurisdiction of NMFS, may adversely affect certain sea turtle species. 
A copy of the Biological Opinion and Incidental Take Statement 
resulting from this consultation is available upon request (see 
ADDRESSES).

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, 
when this rule was proposed, that, if adopted, this rule would not have 
a significant economic impact on a substantial number of small entities 
as described in the Regulatory Flexibility Act. If implemented, this 
rule will affect only the U.S. Navy, and an undetermined number of 
contractors providing services related to the shock trial, including 
the monitoring of impacts on marine mammals. Although the U.S. Navy, by 
definition, is not a small business, some of the affected contractors 
may be small businesses. The economic impact on these small businesses 
is dependent upon the award of contracts for such services. The 
economic impact cannot be determined with certainty, but will either be 
beneficial or have no effect, directly or indirectly, on small 
businesses. As such, a regulatory flexibility analysis is not required.
    This 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. 
The control number used by OMB is 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

[[Page 66076]]

burden estimates or any other aspect of the collections of information, 
including suggestions for reducing the burdens, to NMFS and OMB (see 
ADDRESSES)
    A list of the references used in this document may be obtained from 
NMFS (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: November 23, 1998.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For reasons set forth in the preamble, 50 CFR part 216 is 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. In Sec. 216.3, a new definition for ``Administrator, Southeast 
Region'' is added in alphabetical order to read as follows:


Sec. 216.3  Definitions.

* * * * *
     Administrator, Southeast Region means Administrator, Southeast 
Region, National Marine Fisheries Service, 9721 Executive Center Drive, 
St. Petersburg, FL 33702-2432.
* * * * *
    3. 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 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); and Atlantic white-sided dolphin (Lagenorhynchus 
acutus).
    (c) The incidental take of marine mammals identified in paragraph 
(b) of this section is limited to a total of 1 mortality, 5 injuries 
and 1,788 harassment takes for detonations in the area described in 
paragraph (a) of this section, 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 May 1 through September 
30 of any single year between the years 2000 and 2004, inclusive.


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 these regulations 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 marine mammals are either no longer within the 
safety zone or are on a course within the buffer zone that is taking 
them away from the safety zone, except that no detonation will occur if 
a marine mammal listed as threatened or endangered under Sec. 17.11 of 
this title is detected within the buffer zone and subsequently cannot 
be detected until such time as sighting and acoustic teams have 
searched the area for 2.5 hours (approximately 3 times the typical 
large whale dive duration). If a northern right whale is seen within 
the safety or buffer zone, detonation must not occur until the animal 
is positively reacquired outside the buffer zone and at least one 
additional aerial monitoring of the safety range and buffer zone shows 
that no other right whales are present.
    (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, or if any marine mammals are observed 
in the safety range immediately after a detonation, the test procedure 
and the monitoring methods must be reviewed by NMFS in

[[Page 66077]]

consultation with the Navy and appropriate changes 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 Administrator, Southeast 
Region at least 2 weeks prior to activities involving the detonation of 
explosives in order to satisfy paragraph (g) 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, shipboard, 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 immediately 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) The holder of the Letter of Authorization is required to 
measure during the first detonation, and provide a report on, prior to 
the second detonation, the attenuation of the sound pressure levels of 
the HBX1 explosive charge. Measurements must be made at a number of 
distances from the detonation sufficient to verify the model 
predictions for the 3.7 km (2 nm) safety zone. Based upon the results 
of this test, the monitoring and safety zones described in the Letter 
of Authorization, may be modified accordingly.
    (f) 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.
    (g) In coordination and compliance with appropriate Navy 
regulations, at its discretion, the National Marine Fisheries Service 
may place observer(s) 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.
    (h) A final report must be submitted to the Administrator, 
Southeast Region, 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.
    (i) A final report on results of necropsies of stranded marine 
mammals funded by the U.S. Navy must be submitted to the Director, 
Office of Protected Resources, no later than 18 months after completion 
of shock testing the USS SEAWOLF.


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.
[FR Doc. 98-31993 Filed 11-30-98; 8:45 am]
BILLING CODE 3510-22-F