[Federal Register Volume 65, Number 239 (Tuesday, December 12, 2000)]
[Proposed Rules]
[Pages 77546-77553]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-31624]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 0002180448-0295-02; 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: Proposed rule; request for comments.

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SUMMARY: NMFS has received a request from the U.S. Navy for a Letter of 
Authorization (LOA) to take a small number 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. In order 
to authorize the take, NMFS must determine that the taking will have no 
more than a negligible impact on the affected species and stocks of 
marine mammals and issue regulations governing the take. NMFS proposes 
regulations to govern the take and invites comment on the application 
and the proposed regulations.

DATES: Comments and information must be postmarked no later than 
January 26, 2001.Comments will not be accepted if submitted via e-mail 
or the Internet.

ADDRESSES: Address comments to Donna Wieting, Chief, Marine Mammal 
Conservation Division, Office of Protected Resources, National Marine 
Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-
3226. A copy of the application and/or a list of references used in 
this document may be obtained by writing to this address, or by 
telephoning the contact listed here (see FOR FURTHER INFORMATION 
CONTACT). A limited number of copies of the Navy's Draft Environmental 
Impact Statement (DEIS) for conducting the shock trial are also 
available through this contact. To be placed on the mailing list for 
receiving a copy of the Final Environmental Impact Statement (FEIS), 
please contact Will Sloger, U.S. Navy, at (843) 820-5797.

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 
governing the taking 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 if 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 LOA under 
section 101(a)(5)(A) of the MMPA from the U.S. Navy to take a small 
number of marine mammals incidental to shock testing the USS 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 USS 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

[[Page 77547]]

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 USS WINSTON S. CHURCHILL is the third ship in a new Flight of 
23 ARLEIGH BURKE (DDG 51)-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 USS 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 USS 
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.

Comments and Responses

    On March 3, 2000 (65 FR 11542), 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. During the 30-
day public comment period, NMFS received comments from the Marine 
Mammal Commission (MMC), the Humane Society of the United States 
(HSUS), and the Commonwealth of Virginia (Commonwealth). Because the 
MMC and the Commonwealth concerns were limited to statements made in 
the Navy's DEIS for shock testing, and not on the content of the Navy's 
LOA application, their concerns will be addressed in the Navy's FEIS 
for shock testing and not in this document.
    Comment 1: The HSUS strongly objects to the Navy's de facto 
establishment of a physiological sound pressure level (SPL) definition 
of Level B (acoustic) harassment under the MMPA. The HSUS considers 
that temporary threshold shift (TTS) in the hearing of marine mammals 
subjected to noise from the detonation should be considered Level A 
harassment (i.e., injury), not Level B. The HSUS believes that 
cetaceans suffering from TTS could for some time fail to hear 
approaching boats or predators or fail to detect prey or mates. This, 
HSUS contends is clearly more than Level B harassment, which is any act 
that merely has the potential to disturb. The HSUS claims that this 
determination is precedent-setting.
    Response: While NMFS agrees the Navy's establishment of an SPL 
definition for Level B harassment is precedent-setting, NMFS believes 
that TTS should be considered as Level B harassment. This is fully 
supported by the science as described in detail in the Navy DEIS and 
this document, and proceeds logically from the criteria used by the 
Navy in the FEIS for the USS SEAWOLF shock trial based upon scientific 
documentation provided in that latter document. In that regard, NMFS 
recommends reviewers compare the Navy's FEIS for the USS SEAWOLF shock 
trial and the DEIS for the USS WINSTON CHURCHILL shock trial.
    NMFS scientists and other scientists are in general agreement that 
TTS is not an injury (i.e., does not result in tissue damage), but is a 
temporary impairment to hearing that may last from a few minutes to a 
few days, depending upon the level and duration of exposure. The Navy, 
in its DEIS and small take application, states that TTS could 
temporarily affect an animal's ability to hear calls, echolocation 
sounds, and other ambient sounds. That these short-term effects would 
lead to increased mortality is speculative and, to our knowledge, 
unsupported scientifically. Lost feeding and mating opportunities is 
considered by NMFS to be Level B harassment takings if the response is 
significant for these biologically important activities.
    Although science supports that TTS is not an injury (i.e., Level A 
harassment), because scientists have noted that a range of only 15-20 
dB may exist between onset TTS and the onset of a permanent elevation 
in hearing sensitivity (termed permanent threshold shift (PTS)), which 
NMFS considers to be an injury (Level A harassment), TTS must be 
considered to be in the upper portion of the Level B harassment zone 
(near the lower level of the Level A harassment zone). However, even 
though TTS is not an injury placing it

[[Page 77548]]

in the upper level of the Level B harassment zone is precautionary.
    NMFS recommends that commenters review Appendix E of the Navy's 
DEIS for the scientific basis supporting its determination that TTS is 
a Level B harassment taking and PTS is Level A harassment and provide 
NMFS with comments on this determination for consideration during this 
rulemaking.
    Comment 2: The HSUS contends that neither the Navy's use of a 
received level of 182 dB (re 1 uPa\2\-sec) as the SPL that will induce 
TTS, nor that it represents a de facto definition of Level B 
harassment, has been subject to public notice or public comment prior 
to this Letter of Authorization (LOA) request.
    Response: The use of an energy-based TTS-criterion of 182 dB (re 1 
Pa\2\-sec) has been subject to public review previously. The 
rulemaking for the USS SEAWOLF shock trial (63 FR 66069, December 1, 
1998), resulted in an improvement on the determinations made in regard 
to the shock trial for the USS JOHN PAUL JONES (59 FR 5111, February 3, 
1994). In the USS SEAWOLF shock trial rulemaking NMFS concurred with 
the Navy's findings that, in terms of mammal hearing, a better measure 
for determining impacts 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. NMFS determined that, 
as pulsed sound sources with differing peak pressures could deliver the 
same energy over a certain time period, the acoustic harassment 
criterion could be improved over the standard 160 dB (re 1 Pa 
@ 1 m) impulse measurement used during shock testing the USS JOHN PAUL 
JONES and other explosive detonation events. In the USS SEAWOLF 
rulemaking, NMFS determined that TTS meets the definitions of both 
Level A and Level B harassment found in the MMPA since, on a cellular 
level, TTS could be considered a very slight ``injury'' (i.e., Level A 
harassment) in the sense of damage to hair cells in the ear and since 
TTS is a temporary hearing loss, it could also lead to a temporary 
disruption of behavioral patterns (Level B harassment). Under the 182 
dB (re 1 uPa\2\-sec (energy)) criterion, separate harassment ranges 
were calculated for odontocetes and mysticetes based on their differing 
sensitivity to low frequencies.
    Following the USS SEAWOLF small take rulemaking, NMFS published a 
notice of issuance of an Incidental Harassment Authorization (IHA) to 
the U.S. Air Force for taking small numbers of dolphins incidental to 
explosives testing at Eglin Air Force Base (63 FR 67669, December 8, 
1998). That document noted that NMFS considers harassment of marine 
mammals to occur (from an explosive-generated shockwave and its 
acoustic signature) between 5 psi-msec out to a transmission distance 
where a noise level of 180 dB re 1 uPa\2\-sec. (It should be noted that 
the Air Force used a level of 180 dB (re 1 uPa\2\-sec), because that 
was the level it used in its modeling for determining distances for 
safety zones.) Therefore, the area between those two levels (i.e., 5 
psi-msec and 182 dB re 1 uPa\2\-sec) was considered as the zone of 
incidental harassment which would result in a non-injurious 
physiological response on the part of the mammals.
    What is new in the current rulemaking is the Navy's interpretation 
that TTS should be considered only as Level B harassment and not as 
both a Level A and Level B harassment. That approach is fully explained 
in the Navy's DEIS, and especially in Appendix E of that document. NMFS 
believes that the information contained in the Navy's DEIS is the best 
scientific information to date on this subject and therefore concurs 
with the Navy's determination. During this rulemaking, NMFS welcomes 
comments relating to scientific determinations made on this issue.
    Comment 3: HSUS is disturbed that NMFS has accepted the Navy's 182 
dB criterion for TTS and that this indicates a change in its 
implementation of the MMPA, since the only previous mention of it was 
in a response to a comment on a proposed rule for shock testing the USS 
SEAWOLF.
    Response: See the previous comment. Using 182 dB as the criterion 
for determining TTS was an integral part of the rulemaking for the USS 
SEAWOLF shock trial small take authorization. The Navy provided 
significant detail in its USS SEAWOLF DEIS and small take application 
to explain why using the 182 dB criterion was considered an improvement 
over use of a pressure-induced criterion of 160 dB, used previously for 
the shock trial of the USS JOHN PAUL JONES (59 FR 5111, February 3, 
1994). NMFS subsequently adopted this information as the best 
scientific information available for assessing harassment impacts on 
marine mammal stocks from explosions during the shock trial of the USS 
SEAWOLF.
    Comment 4: Based on the statement made in the previous two 
comments, the HSUS believes that this represents a significant change 
in implementation of the MMPA, and that prior notice and opportunity 
for public comment should have been given for this change pursuant to 
the requirements of section 553(b) of the Administrative Procedures Act 
(APA) (5 U.S.C. 553(b)). The HSUS states that NMFS' ``acceptance'' or 
``concurrence'' with the Navy definition falls squarely within the 
definition of a ``rule'' in section 552 of the APA. To permit the 
continued acceptance and subsequent use of this standard is to 
acquiesce to a continuing violation of the letter and spirit of the 
APA.
    Response: Because part of this proposed rulemaking is the criterion 
NMFS proposes to use to determine levels of harassment and injury 
incidental to takings of marine mammals by the USS WINSTON CHURCHILL 
shock trial there is no violation of section 553(b) of the APA. NMFS 
invites comment on the criterion for assessing impacts from explosives 
on marine mammals.
    Comment 5: The HSUS also notes that the Navy is using a received 
level of 182 dB (re 1 uPa\2\-sec) as the SPL that will induce TTS in 
cetaceans and therefore is the outer SPL for Level B harassment. This 
SPL is unsubstantiated empirically (i.e., the threshold of hearing in 
many cetaceans is unknown and certainly the SPL that will induce TTS 
has never been measured).
    Response: NMFS clarifies that it and the Navy are using a dual 
criterion of (1) an energy-based TTS criterion of 182 dB (re 1 uPa\2\-
sec) in any 1/3 octave band, and (2) 12 psi peak pressure, cited by 
Ketten (1995) as associated with ``a safe outer limit for the 10,000 lb 
(4,536 kg) charge for minimal, recoverable auditory trauma'' (i.e., 
TTS). The harassment range is the minimum distance at which neither 
criterion is exceeded. However, the 182 dB energy criterion is usually 
the determining factor in the calculated ranges (Navy, 1999, Appendix 
E).
    While NMFS agrees that the SPL that would cause TTS in cetaceans by 
explosives has not been tested empirically on live cetaceans, for 
reasons explained in the application and in detail in the Navy's DEIS 
on this action, the Navy has calculated TTS from explosives based upon 
empirical research on bottlenose dolphins and white whales conducted by 
Ridgway et al. (1997) and Schlundt et al. (2000). NMFS believes that 
this is the best scientific information available to date on this 
issue. Because Ridgway et al. (1997) and Schlundt et al. (2000) 
determined the SPL where TTS first begins (i.e., full recovery of 
hearing occurred within a few minutes), NMFS believes that establishing 
a level for TTS at onset of that impairment, is precautionary.

[[Page 77549]]

    Comment 6: The HSUS requests NMFS deny the Navy's LOA request until 
such time as the Navy completes a revised DEIS and in fact completes a 
FEIS.
    Response: NMFS does not believe that delaying the small take 
authorization process until completion of NEPA documentation, as 
suggested by the HSUS, would be appropriate. Both the Council on 
Environmental Quality regulations (40 CFR 1502.5(d)) and NOAA's NEPA 
guidelines provide for proposed regulations to accompany a draft NEPA 
document. As a cooperating agency in the preparation of the DEIS, which 
NMFS may adopt as its own NEPA document, the Navy's DEIS is the key 
NEPA document for the NMFS action. Not beginning the small take 
authorization/regulatory process until completion of NEPA requirements 
would lead to unnecessary and potentially extensive delays in 
processing applications, a key problem previously recognized by 
Congress in 1994, when it amended the MMPA to expedite small take 
authorizations. However, under NEPA, NMFS may not make final 
regulations governing the taking of marine mammals, incidental to the 
shock testing the USS WINSTON CHURCHILL, effective for at least 30 days 
after the U.S. Navy releases a FEIS for the shock trial.

Description of Habitat and Marine Mammals Affected by Shock Testing

    A description of the U.S. Atlantic and Gulf of Mexico coast 
environment, its marine life and marine mammal abundance, distribution 
and habitat can be found in the DEIS on this subject and is not 
repeated here. Additional information on Atlantic and Gulf coast marine 
mammals can be found in Waring et al. (1999).

Affected Marine Mammals

    A summary of the marine mammal species found in each of the three 
areas which may be selected by the Navy for shock testing is presented 
here. A complete list of potentially affected marine mammal species can 
be found later in this document. For more detail on marine mammal 
abundance, density and the methods used to obtain this information, 
reviewers are requested to refer to either the Navy application or the 
Navy's DEIS.

Mayport, FL

    Up to 29 marine mammal species may be present in the waters off 
Mayport, FL, including seven 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, four 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, 
six 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 seven mysticetes, 21 odontocetes, and one 
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, four species of beaked 
whales, and 14 species of dolphins and porpoises.

Potential Impacts to Marine Mammals

Mortality and Injury

    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. Marine mammals may be killed or injured 
as a result of the explosive blast due to the response of air cavities 
in the body, such as the lungs and bubbles in the intestines. Effects 
are more likely to be most severe in near surface waters above the 
detonation point where the reflected shock wave creates a region of 
negative pressure called ``cavitation.'' This is a region of near total 
physical trauma within which no animals would be expected to survive. 
Based on calculations in Appendix D of the Navy's DEIS, the maximum 
horizontal extent of the cavitation region is estimated to be 683 
meters (m) (2,240 ft). This region would extend from the surface to a 
maximum depth of about 23 m (77 ft). A second criterion for mortality 
is the onset of extensive lung hemorrhage. Extensive lung hemorrhage is 
considered debilitating and potentially fatal. Suffocation caused by 
lung hemorrhage is likely to be the major cause of marine mammal death 
from underwater shock waves. The estimated range for the onset of 
extensive lung hemorrhage to marine mammals varies depending upon the 
animal's weight, with the smallest mammals having the greatest 
potential hazard range. The range predicted for a small marine mammal 
(e.g., a dolphin calf) is 1.35 kilometers (km) (0.73 nautical miles 
(nm)) from the detonation point. For estimating the impact from the 
detonation(s), NMFS and the Navy presume that 100 percent of the marine 
mammals within this radius would be killed, even though larger mammals 
may survive their injury from the shock wave.
    NMFS and the Navy have established a dual criteria for determining 
non-lethal injury: (1) The onset of slight lung hemorrhage, and (2) a 
50-percent probability level for eardrum rupture. These are injuries 
from which animals would be expected to recover on their own. The range 
predicted for the onset of slight lung hemorrhage is 2.25 km (1.22 nm). 
The range predicted for 50-percent probability of eardrum rupture 
varies with the mammal's depth in the water column; the highest value 
being 2.16 km (1.17 nm) for a mammal at a depth of 335 m (1,100 ft). 
The criterion with the greater range (onset of slight lung hemorrhage) 
was used to estimate the number of potential non-lethal injuries. It is 
presumed that 100 percent of the marine mammals within this radius 
would be injured.
    Some percentage of the animals with eardrum rupture or slight lung 
hemorrhage could eventually die from their injuries. However, as noted 
previously, the mortality calculation based on extensive lung 
hemorrhage presumes that 100 percent of the animals within a radius of 
1.35 km (0.73 nm) would be killed. At that range, the probability of 
eardrum rupture would be less than 50 percent and the threshold for 
onset of slight lung hemorrhage would be exceeded only in the upper 61 
m (200 ft) of the water column (Navy, 2000). While all animals within 
this radius are assumed to be killed, in reality some are unlikely to 
be even injured.
    Finally, 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.

Incidental Harassment

    TTS has been defined by NMFS as one form of harassment (60 FR 
28379, May 31, 1995). TTS is a change in the threshold of hearing (the 
quietest sound an animal can hear), which could temporarily affect an 
animal's ability to hear calls, echolocation sounds, and other ambient 
sounds. As such, it could result in a temporary disruption of 
behavioral patterns, as specified in the statutory definition of Level 
B harassment.

[[Page 77550]]

    Since the small take authorization and Navy's FEIS for the USS 
SEAWOLF shock trial (63 FR 66069, December 1, 1998), the Navy has 
conducted an extensive analysis of the scientific literature, producing 
a good perspective on the physiological effects of TTS as well as its 
use in human damage risk criteria (DRC) by the Occupational Health and 
Safety Administration and in the National Institute for Occupational 
Safety and Health's (NIOSH) Criteria for Recommended Noise Standard 
(NIOSH, 1998). The best research to date indicates that the distortion 
and dysfunction of sensory tissue observed during TTS are only 
temporary and fully reversed upon recovery (i.e., occasional TTS 
produces no permanent tissue damage to the ear, only the temporary 
nondestructive impairment of tissue that fully recovers). This type of 
temporary nondestructive impairment as well as the use of TTS in human 
DRC are the scientific basis for no longer considering TTS as Level A 
harassment. Therefore, NMFS and the Navy concur that an impairment of 
hearing-related behavior during periods of TTS is the most reliable and 
meaningful estimate of Level B harassment for explosive detonation 
events.
    Based upon information provided in the Navy's application for a 
small take authorization and in greater detail in Appendix E of the 
Navy's DEIS, a dual criterion for Level B acoustic harassment has been 
developed: (1) an energy-based TTS criterion of 182 dB re 1 uPa\2\-sec 
derived from experiments with bottlenose dolphins (Ridgway et al., 
1997; Schlundt et al., 2000); and (2) 12 lbs/in\2\ (psi) peak pressure 
cited by Ketten (1995) as associated with a ``safe outer limit for the 
10,000 lb (4,536 kg) 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 (re 1 uPa\2\-sec) criterion, the Navy calculated 
separate ranges for odontocetes and mysticetes based on their differing 
sensitivity to low frequency sounds. For those odontocetes which are 
``high-frequency specialists,'' all frequencies greater than or equal 
to 100 Hz were included. For mysticetes, which are ``low-frequency 
specialists,'' the frequency range was extended down to 10 Hz. Water 
depth is also an important factor in calculating harassment ranges. 
However, regardless of water depth, the Navy chose the highest values 
for TTS harassment ranges. Expected numbers of marine mammals within 
these radii (and thereby potentially receiving a TTS harassment impact) 
were calculated using the mean densities for the species expected in 
each area, and adjusting those estimates to account for submerged 
(undetectable) individuals. These ranges are as follows:

 
                                       Odontocetes         Mysticetes
 
Mayport                                13.3 - 25.2 km     24.7 - 27.8 km
                                      (7.2 - 13.6 nm)   (13.0 - 15.0 nm)
Norfolk                                16.7 - 32.8 km     25.9 - 42.6 km
                                      (9.0 - 17.7 nm)   (14.0 - 23.0 nm)
Pascagoula                             15.9 - 24.6 km     22.8 - 29.6 km
                                      (8.6 - 13.3 nm)   (12.3 - 16.0 nm)
 

Estimated Level of Marine Mammal Takings

    While the Navy does not expect that any lethal takes will result 
from these detonations (because of mitigation measures taken), 
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.

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. These mitigation 
and monitoring measures are as follows:
    (1) Through pre-detonation aerial surveys, the Navy would select a 
primary and two secondary test sites within the test area where 
potentially, marine mammals and sea turtle populations are the lowest, 
based on the results of aerial surveys conducted one to two days prior 
to the first detonation;
    (2) Pre-detonation aerial monitoring would be conducted on the day 
of each detonation to evaluate the primary test site and verify that 
the safety range and buffer zone are free of visually detectable marine 
mammals and other critical marine life (If marine mammals are detected 
in the primary test area, the Navy proposes to survey the secondary 
areas for marine mammals, and may move the shock test to one of the 
other two sites);
    (3) Independent marine mammal biologists and acousticians would 
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 
4.16 km (2.25 nm), or (c) any large fish school, or flock of seabirds 
is detected within a safety zone of 1.85 km (1 nm);
    (4) The area would be monitored visually (aerial and shipboard 
monitoring) and acoustically before each test and detonation would not 
occur 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 detonation would not 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, 
detonation would 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;
    (5) Detonation would not occur 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;
    (6) Detonation would not 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
    (7) The area would be monitored for 48 hours after each detonation, 
and for 7 days following the last detonation, to

[[Page 77551]]

find, document and track 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 test can be found in Section 5 of the Navy's DEIS.

Reporting

    Within 120 days of the completion of shock testing, the Navy would 
submit a final report to NMFS. This report would 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.

Costs and Benefits

    In addition to allowing the Navy to take a small number of marine 
mammals incidental to conducting the shock trial, this rule would 
require the Navy to provide NMFS and the public with information on the 
shock trial's effect on the marine environment, especially on marine 
mammals. Besides the improved survivability of U.S. armed forces at sea 
and the Navy's multi-billion dollar ship assets, this rule would result 
in NMFS and the public being provided this information. NMFS believes 
that obtaining this information is extremely important because shock 
trials are not the only explosive noise source in the world's oceans, 
and the scientific findings resulting from monitoring is likely to be 
directly applicable to future activities. Also, the mitigation measures 
for protecting marine mammals, sea turtles and other marine life that 
would be required by the rule will result in a substantial reduction in 
impacts on these animals. Without these regulations, these mitigation 
measures could not be required to be undertaken by the U.S. Navy. Also, 
the cost to the Navy to comply with the mitigation and monitoring 
measures that would be required by this rule cannot be fully determined 
at this time. NMFS believes that the cost would be approximately $1 
million.
    NEPA
    On December 10, 1999 (64 FR 69267), a notice of availability of the 
Navy DEIS was published. The public comment for that document was 
extended until March 31, 2000, by notification in the Federal Register 
(65 FR 4236). NMFS is a cooperating agency, as defined by the CEQ (40 
CFR 1501.6), in the preparation of this DEIS.

Endangered Species Act (ESA)

    The U.S. Navy requested consultation with NMFS under section 7 of 
the ESA on this action. In that regard, NMFS concluded consultation 
with the Navy on this activity on October 10, 2000. If an authorization 
to incidentally take listed marine mammals is issued under the MMPA for 
this action, NMFS will complete consultation under the ESA on the 
regulations and the LOA and issue an Incidental Take Statement under 
section 7 of the ESA.

Preliminary Conclusions

    Based on the scientific analyses detailed in the ONR DEIS and the 
Scripp' application, NMFS has preliminarily concluded that the 
incidental taking of marine mammals resulting from the shock trial of 
the USS WINSTON 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 would result in only small numbers 
(as the term is defined in Sec. 216.103) of marine mammals being taken, 
have no more than a negligible impact on the affected marine mammal 
stocks or habitats and not have an unmitigable adverse impact on Arctic 
subsistence uses of marine mammals.

Information Solicited

    NMFS requests interested persons to submit comments on the proposed 
regulations and on the Navy's application for taking marine mammals 
incidental to conducting the shock trial. NMFS requests that commenters 
review the Navy's application and not just submit comments based solely 
on this document.

Classification

    This action has been determined to be not significant for purposes 
of Executive Order 12866.
    The Assistant General Counsel for Legislation and Regulation of the 
Department of Commerce has certified to the Chief Counsel for Advocacy 
of 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. It 
will also affect a small number of contractors providing services 
related to reporting the impact of the shock trial on marine mammals. 
Some of the affected contractors may be small businesses, but the 
number involved would not be substantial. Further, since the monitoring 
and reporting requirements are what would lead to the need for their 
services, the economic impact on them would be beneficial. Accordingly, 
the analytical requirements of the Regulatory Flexibility Act (RFA) do 
not apply and a a regulatory flexibility analysis has not been 
prepared.

List of Subjects in 50 CFR Part 216

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

    Dated: December 6, 2000.
William T. Hogarth,
Deputy Assistant Administrator for Fisheries, Natioal 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.

    2. Subpart N is revised to read as follows:

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

Sec.
Subpart N--Taking of Marine Mammals Incidental to Shock Testing the USS 
WINSTON S. CHURCHILL by Detonation of Conventional Explosives in the 
Offshore Waters of the U.S. Atlantic Coast
216.151  Specified activity, geographical region, and incidental 
take levels.
216.152  Effective dates.
216.153  Permissible methods of taking; mitigation.
216.154  Prohibitions.
216.155  Requirements for monitoring and reporting.
216.156  Modifications to the Letter of Authorization.

[[Page 77552]]

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


Sec. 216.151  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 or Gulf of Mexico offshore 
Mayport, FL, Norfolk, VA, or Pascagoula, MS, 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 no more than 7 
mortalities, 12 injuries, and 14,640 takings by harassment for 
detonations in the Norfolk, VA area; 4 mortalities, 6 injuries, and 
2,885 takings by harassment in the Mayport area; or 3 mortalities, 4 
injuries, and 3,132 takings by harassment at the Pascagoula site, 
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. 216.152  Effective dates.

    Regulations in this subpart are effective from April 1, 2001, 
through September 30, 2001.


Sec.  216.153  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 up to 4 4,536 kg (10,000 lb) conventional explosive charges 
within the area described in Sec.  216.151(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 the marine mammals are no longer within the 
safety zone or on a course within the buffer zone that is taking them 
away from the safety zone.
    (2) If a marine mammal listed under the Endangered Species Act is 
detected within the buffer zone, and subsequently cannot be detected, 
detonation must not occur until sighting and acoustic teams have 
searched the area for 2.5 hours.
    (3) If a northern right whale is seen, 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;
    (4) If weather and/or sea conditions as described in the Letter of 
Authorization preclude adequate aerial surveillance, detonation must 
not occur until conditions improve sufficiently for aerial surveillance 
to be undertaken.
    (5) 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.  216.154  Prohibitions.

    Notwithstanding takings authorized by Sec.  216.151(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.  216.155  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 test area must be surveyed by marine mammal biologists and 
other trained individuals, and the marine mammal populations monitored, 
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

[[Page 77553]]

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 WINSTON S. CHURCHILL. 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.  216.156  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.  216.151(b), or that 
significantly and detrimentally alters the scheduling of explosives 
detonation within the area specified in Sec.  216.151(a), the Letter of 
Authorization issued pursuant to Sec.  216.106 may be substantively 
modified without prior notice and an opportunity for public comment. 
Notification will be published in the Federal Register subsequent to 
the action.
[FR Doc. 00-31624 Filed 12-11-00; 8:45 am]
BILLING CODE: 3510-22-S