[Federal Register Volume 65, Number 43 (Friday, March 3, 2000)]
[Proposed Rules]
[Pages 11542-11544]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-5219]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 000218048-0048-01; I.D. 013100A]
RIN 0648-AN59


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: Advance notice of proposed rulemaking; receipt of an 
application for a small take exemption; notice of public meetings and 
request for comment and information.

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SUMMARY: NMFS has received a request from the U.S. Navy for a small 
take of marine mammals incidental to shock testing the USS WINSTON S. 
CHURCHILL (DDG-81) in the offshore waters of the Atlantic Ocean off 
either Mayport, FL, or Norfolk, VA or the offshore waters of the Gulf 
of Mexico off Pascagoula, MS. As a result of that request, NMFS is 
considering whether to propose regulations that would authorize the 
incidental taking of a small number of marine mammals. In order to 
issue regulations for this taking, NMFS must determine that this taking 
will have no more than a negligible impact on the affected species and 
stocks of marine mammals. NMFS invites comment on the application and 
suggestions on the content of the regulations.

DATES: comments and information must be postmarked no later than April 
3, 2000. Public meetings are scheduled as follows:
    1. March 13, 2000, 7 PM, Norfolk, VA;
    2. March 14, 2000, 7 PM, Pensacola, FL;
    3. March 15, 2000, 7 PM, Neptune Beach, FL.

ADDRESSES: Comments should be addressed to Donna Wieting, Chief, Marine 
Mammal Conservation Division, Office of Protected Resources, National 
Marine Fisheries Service, 1315 East-

[[Page 11543]]

West Highway, Silver Spring, MD 20910-3226. A copy of the application 
may be obtained by writing to this address, or by telephoning the 
contact listed here (see FOR FURTHER INFORMATION CONTACT). A copy of 
the draft environmental impact statement (DEIS) may be obtained from 
Will Sloger, U.S. Navy, at (843) 820-5797.
    The public meetings will be held at the following locations:
    1. Norfolk--Granby High School Auditorium, 7101 Granby Street, 
Norfolk, VA;
    2. Pensacola--Pensacola Junior College, Hagler Auditorium, 1000 
College Blvd., Pensacola, FL;
    3. Neptune Beach--Fletcher High School Auditorium, 700 Seagate 
Avenue, Neptune Beach, FL.

FOR FURTHER INFORMATION CONTACT: Kenneth R. Hollingshead, (301) 713-
2055, ext. 128.

SUPPLEMENTARY INFORMATION:

Background

    Section 101(a)(5)(A) of the Marine Mammal Protection Act (16 U.S.C. 
1361 et seq.). (MMPA) directs the Secretary of Commerce (Secretary) to 
allow, upon request, the incidental, but not intentional taking of 
small numbers 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 the 
Secretary finds that the taking will have no more than a negligible 
impact on the species or stock(s), will not have an unmitigable adverse 
impact on the availability of the species or stock(s) 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 January 12, 2000, NMFS received an application for an 
incidental, small take authorization under section 101(a)(5)(A) of the 
MMPA from the U.S. Navy to take marine mammals incidental to shock 
testing the WINSTON S. CHURCHILL in the offshore waters of the Atlantic 
Ocean off either Mayport, FL, or Norfolk, VA or the offshore waters of 
the Gulf of Mexico off Pascagoula, MS. A final decision on the location 
for the shock trial will be made by the Navy, based, in part, on 
findings and determinations made under the National Environmental 
Policy Act (NEPA).
    Section 2366, Title 10, United States Code (10 U.S.C. 2366) 
requires realistic survivability testing of a covered weapon system to 
ensure the vulnerability of that system under combat conditions is 
known. (In this case, the covered weapon system is the WINSTON S. 
CHURCHILL.) Realistic survivability testing means testing for the 
vulnerability of the ship in combat by firing munitions likely to be 
encountered in combat with the ship configured for combat. This testing 
is commonly referred to as ``Live Fire Test & Evaluation'' (LFT&E). 
Realistic testing by firing live ammunition at the ship or detonating a 
real mine against the ship's hull, however, could result in the loss of 
a multi-million dollar Navy asset. Therefore, the Navy has established 
an approved LFT&E program to complete the vulnerability assessment of 
ships as required by 10 U.S.C. 2366. The LFT&E program includes three 
major areas that together provide for a complete and comprehensive 
evaluation of the survivability of ships in a near miss, underwater 
explosion environment. These areas are computer modeling and analysis, 
component testing, and an at-sea ship shock trial. While computer 
modeling and laboratory testing provide useful information, they cannot 
substitute for shock testing under realistic, offshore conditions as 
only the at-sea shock trial can provide the real-time data necessary to 
fully assess ship survivability.
    A shock test 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. 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 WINSTON S. CHURCHILL is the third ship in a new Flight of 23 
ARLEIGH BURKE (DDG51) class guided missile destroyers being acquired by 
the Navy. (A Flight is a subset of a class of ships to which 
significant modifications/upgrades have been made.) These ships are 
referred to as the Flight IIA ships and they represent the largest 
single upgrade to the original DDG 51-class destroyer.
    The USS JOHN PAUL JONES (DDG 53) was shock tested off the coast of 
California in June 1994 to assess the survivability of the original DDG 
51 class destroyer. Flight IIA ships are significantly different from 
the original DDG 51-class destroyers in their design. Major structural 
changes include the addition of a helicopter hangar, Vertical Launch 
System foundation changes, and raising the aft radar arrays. Major 
equipment changes include the addition of a ship-wide Fiber Optic Data 
Multiplexing System, a Zonal Electrical Power Distribution System 
involving the addition of switchboards and load centers throughout the 
ship, and the widespread use of commercial equipment in various mission 
critical systems to reduce the cost of the ships. Typically the lead 
ship of a new class or major upgrade is shock tested. The WINSTON S. 
CHURCHILL was selected as the shock trial ship because it has 
additional design changes that will not be included in the first two 
Flight IIA ships, and therefore, it is more representative of the 
Flight.
    The Navy's proposed action is to conduct a shock trial of the 
WINSTON S. CHURCHILL at an offshore, deep-water location. The ship 
would be subjected to a series of three-four 4,536 kg (10,000 lb) 
explosive charge detonations sometime between 1 May and 30 September, 
2001. Three detonations are needed to collect adequate data on 
survivability. A fourth detonation would be conducted by the Navy only 
if one of the planned three detonations fails to provide technically 
acceptable data (e.g., due to equipment failure or some other technical 
problem).
    The ship and the explosive charge would be brought closer together 
with each successive detonation to increase the severity of the shock. 
This gradation in severity would ensure that the survivability of the 
ship and its systems is fully assessed and the point at which failure 
modes begin is accurately determined. It would also reduce the chance 
of significant damage at the highest severity detonation. The shock 
trial would be conducted at a rate of one detonation per week to allow 
time to perform detailed inspections of the ship's systems prior to the 
ship experiencing the next level of shock intensity.

Marine Mammals

    A summary of the marine mammal species found in each of the 3 areas 
which may be selected by the Navy for shock testing is presented here. 
For more detail on marine mammal abundance, density and the methods 
used to obtain this information, reviewers are requested to refer to 
either

[[Page 11544]]

the Navy application or the Navy DEIS (see ADDRESSES).

Mayport, FL

    Up to 29 marine mammal species may be present in the waters off 
Mayport, FL, including 7 mysticetes and 22 odontocetes. Mysticetes are 
unlikely to occur at Mayport during the May through September time 
period. Odontocetes may include the sperm whale, dwarf and pygmy sperm 
whale, 4 species of beaked whales, and 15 species of dolphins and 
porpoises.

Norfolk, VA

    Up to 35 marine mammal species may be present in the waters off 
Norfolk, VA, including 7 mysticetes, 27 odontocetes, and 1 pinniped. 
The fin whale is the mysticete most likely to occur in the test area. 
Odontocetes may include the sperm whale, dwarf and pygmy sperm whale, 6 
species of beaked whales, and 18 species of dolphins and porpoises.

Pascagoula, MS

    Up to 29 marine mammal species may occur in the waters off 
Pascagoula, MS, including 7 mysticetes, 21 odontocetes, and 1 exotic 
pinniped. With the exception of Bryde's whale, mysticetes are 
considered unlikely to occur at Pascagoula. Odontocetes may include the 
sperm whale, dwarf and pygmy sperm whale, 4 species of beaked whales, 
and 14 species of dolphins and porpoises.

Potential Impacts

    Potential impacts on 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 injury 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, calculations indicate that the Mayport 
site has the potential to result in up to 4 mortalities, 6 non-serious 
injuries, and 2,885 takings by harassment. The Norfolk site has the 
potential to result in 7 mortalities, 12 non-serious injuries, and 
14,640 takings by harassment. The Pascagoula site has the potential to 
result in up to 3 mortalities, 4 injuries, and 3,132 takings by 
harassment. Because of the potential impact to marine mammals, the Navy 
has requested a letter of authorization under section 101(a)(5)(A) of 
the MMPA that would authorize the incidental taking.

Mitigation

    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 within the chosen site 
location with the lowest possible number of marine mammals and sea 
turtles; (2) monitor the area visually (aerial and shipboard 
monitoring) and acoustically before each test and postpone detonation 
if any marine mammal or sea turtle is detected within a safety range of 
3.7 kilometers (2 nautical miles); 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.

NEPA

    The Navy has released a DEIS under NEPA that is presently available 
for public review and comment (see ADDRESSES). NMFS is a cooperating 
agency, as defined by the Council on Environmental Quality (40 CFR 
1501.6), in the preparation of this DEIS.

Endangered Species Act (ESA)

    NMFS will be consulting with the U.S. Navy under section 7 of the 
ESA on this action. In that regard, the Navy has 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.

Information Solicited

    NMFS requests interested persons to submit comments, information, 
and suggestions concerning the request and the structure and content of 
the regulations to allow the taking. NMFS requests that commenters 
review the DEIS and/or the Navy application and not submit comments 
based solely on this document. NMFS will consider information submitted 
in developing proposed regulations to authorize the taking. If NMFS 
proposes regulations to allow this take, interested parties will be 
given ample time and opportunity to comment on the proposed rule.

    Dated: February 28, 2000.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 00-5219 Filed 3-2-00; 8:45 am]
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