[Federal Register Volume 73, Number 71 (Friday, April 11, 2008)]
[Proposed Rules]
[Pages 19789-19795]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-7778]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 080220219-8445-02]
RIN 0648-AT77


Taking and Importing Marine Mammals; Taking Marine Mammals 
Incidental to a U.S. Navy Shock Trial

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

ACTION:  Proposed rule; request for comments and information.

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SUMMARY:  NMFS has received a request from the U.S. Navy (Navy) for an 
authorization for the taking of marine mammals incidental to conducting 
a Full Ship Shock Trial (FSST) of the MESA VERDE (LPD 19) in the 
offshore waters of the Atlantic Ocean off Mayport, FL. By this 
document, NMFS is proposing regulations to govern that take. In order 
to issue final regulations governing the take and Letters of 
Authorization (LOAs) thereunder, NMFS must determine that the total 
taking will have a negligible impact on the affected species or stocks 
of marine mammals. NMFS regulations must set forth the permissible 
methods of take and other means of effecting the least practicable 
adverse impact on the affected species or stocks of marine mammals and 
their habitat, as well as monitoring and reporting requirements. NMFS 
invites comment on the proposed regulations and findings.

DATES:  Comments and information must be received by May 12, 2008.

ADDRESSES:  You may submit comments on the application and proposed 
rule, using the identifier 0648-AT77, by any of the following methods:
    Electronic Submissions: Submit all electronic public comments via 
the Federal e-Rulemaking Portal: http://www.regulations.gov.
    Fax: 301-427-2521 (using the identifier: 0648-AT77).
    Mail: paper, disk, or CD-ROM comments should be addressed to: Mr. 
P. Michael Payne, Chief, Permits, Conservation and Education Division, 
Office of Protected Resources, National Marine Fisheries Service, 1315 
East-West Highway, Silver Spring, MD 20910-3225.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information.
    NMFS will accept anonymous comments. Attachments to electronic 
comments will be accepted in Microsoft Word, Excel, WordPerfect, or 
Adobe PDF file formats only.
    A copy of the application, containing a list of references used in 
this document, and other documents cited herein, may be obtained by 
writing to the above address, by telephoning one of the contacts listed 
under FOR FURTHER INFORMATION CONTACT, or at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm.
    A copy of the Navy's documents cited in this proposed rule may also 
be viewed, by appointment, during regular business hours at this 
address.

FOR FURTHER INFORMATION CONTACT: Ken Hollingshead Office of Protected 
Resources, NMFS, (301) 713-2289, ext. 128.

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce (Secretary) 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) if certain findings are made and regulations are issued or, if 
the taking is limited to harassment, notice of a proposed authorization 
is provided to the public for review.
    Authorization for incidental takings may be granted if NMFS finds 
that the taking will have no more than a negligible impact on the 
species or stock(s), and will not have an unmitigable adverse impact on 
the availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such taking 
are set forth.
    NMFS has defined ``negligible impact'' in 50 CFR 216.103 as: ``an 
impact resulting from the specified activity that cannot be reasonably 
expected to, and is not reasonably likely to, adversely affect the 
species or stock through effects on annual rates of recruitment or 
survival.''
    With respect to military readiness activities, the MMPA defines 
``harassment'' as:
    (i) any act that injures or has the significant potential to 
injure a marine mammal or

[[Page 19790]]

marine mammal stock in the wild [Level A Harassment]; or (ii) any 
act that disturbs or is likely to disturb a marine mammal or marine 
mammal stock in the wild by causing disruption of natural behavioral 
patterns, including, but not limited to, migration, surfacing, 
nursing, breeding, feeding, or sheltering, to a point where such 
behavioral patterns are abandoned or significantly altered [Level B 
Harassment].

Summary of Request

    On June 25, 2007, NMFS received an application from the Navy 
requesting authorization for the taking of marine mammals incidental to 
its FSST during a 4-week period in the spring/ summer of 2008 utilizing 
the MESA VERDE (LPD 19), a new amphibious transport dock ship. The 
shock trial of the MESA VERDE consists of up to four underwater 
detonations of a nominal 4,536 kilogram (kg) (10,000 pound (lb)) charge 
at a rate of one detonation per week. The purpose of the proposed 
action is to generate data that the Navy would use to assess the 
survivability of SAN ANTONIO Class amphibious transport dock ships. 
According to the Navy, an entire manned ship must undergo an at-sea 
shock trial to obtain survivability data that are not obtainable 
through computer modeling and component testing on machines or 
surrogates. Navy ship design, crew training, and survivability lessons 
learned during previous shock trials, and total ship survivability 
trials, have proven their value by increasing a ship's ability to 
survive battle damage. Because marine mammals may be killed, injured or 
harassed incidental to conducting the FSST, regulations and an 
authorization under section 101(a)(5)(A) of the MMPA are warranted.

Background

    According to the Navy, each new class of surface ships must undergo 
realistic survivability testing to assess the survivability of the hull 
and the ship's systems, and to evaluate the ship's capability to 
protect the crew from an underwater explosion. The Navy has developed 
the shock trial to meet its obligation to perform realistic 
survivability testing. A shock trial consists of a series of underwater 
detonations that propagate a shock wave through the ship's hull under 
deliberate and controlled conditions. The effects of the shock wave on 
the ship's hull, equipment, and personnel safety features are then 
evaluated. This information is used by the Navy to validate or improve 
the survivability of the SAN ANTONIO Class, thereby reducing the risk 
of injury to the crew, and damage to or loss of a ship. The proposed 
shock trial qualifies as a military readiness activity as defined in 
Section 315(f) of Public Law 107-314 (16 USC 703 note).
    The Navy proposes that the MESA VERDE (LPD 19), would be exposed to 
a series of underwater detonations. The MESA VERDE is the third ship in 
the new SAN ANTONIO (LPD 17) Class of nine planned amphibious transport 
dock ships being acquired by the Navy to meet Marine Air-Ground Task 
Force lift requirements. The ships of the SAN ANTONIO Class will be 
replacements for four classes of amphibious ships-two classes that have 
reached the end of their service life (LPD 4 and LSD 36) and two 
classes that have already been retired (LKA 113 and LST 1179)-replacing 
a total of 41 ships. These new LPDs are a means to support Marine 
Expeditionary Brigade (MEB) amphibious lift requirements. The mission 
of the SAN ANTONIO Class will be to operate in various scenarios, as a 
member of a three-ship, forward-deployed Amphibious Ready Group with a 
Marine Expeditionary Unit; in a variety of Expeditionary Strike Group 
scenarios; or as a member of a 12-14 ship MEB.
    The FSST is proposed to take place at a location at least 70 km (38 
nm) off-shore of Naval Station Mayport within the Navy's Jacksonville/
Charleston Operating Area over a four-week period in the summer of 
2008, based on the Navy's operational and scheduling requirements for 
the ship class. The ship and the explosive charge will be brought 
closer together with each successive detonation to increase the 
severity of the shock to the ship. This approach ensures that the 
maximum shock intensity goal is achieved in a safe manner. A nominal 
4,536 kilogram (kg) (10,000 pound (lb)) explosive charge would be used. 
This charge size is used to ensure that the entire ship is subjected to 
the desired level of shock intensity. The use of smaller charges would 
require many more detonations to excite the entire ship to the desired 
shock intensity level. The proposed 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 next detonation.
    Three detonations would be required to collect adequate data on 
survivability and vulnerability. The first detonation would be 
conducted to ensure that the ship's systems are prepared for the 
subsequent higher severity detonations. The second detonation would be 
conducted to ensure the safety of the ship's systems during the third 
detonation, and to assess the performance of system configuration 
changes implemented as a result of the first detonation. The third and 
most severe detonation would be conducted to assess system 
configuration changes from the previous detonations. In the event that 
one of the three detonations does not provide adequate data, a fourth 
detonation may be required. As a result, the Navy's proposed action 
will be described in the remainder of this document as consisting of up 
to four detonations.
    The operations vessel would tow the explosive charge in parallel 
with the MESA VERDE using the parallel tow method, as illustrated in 
Figure 1 of the Navy's LOA application. The charge would be located 
approximately 610 meters (m) (2,000 feet (ft)) behind the operations 
vessel and suspended from a pontoon at a depth of 61 m (200 ft) below 
the water surface. Co-located with the charge would be a transponder 
used to track the exact location of the charge prior to detonation. 
After each detonation, the shock trial array and rigging debris would 
be recovered.
    For each detonation, the MESA VERDE would cruise in the same 
direction as the operations vessel at a speed of up to 13 kilometers 
per hour (km/h) (up to 7 knots (kts or nm/hr)) with the charge directly 
abeam of it. After each detonation, an initial inspection for damage 
would be performed. The MESA VERDE would return to the shore facility 
for a detailed post-detonation inspection and to prepare for the next 
detonation. For each subsequent detonation, the MESA VERDE would move 
closer to the charge to experience a more intense shock level.

Comments and Responses

    On October 26, 2007 (72 FR 60823), NMFS published a notice of 
receipt of the Navy's application for an incidental take authorization 
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 did not receive any 
comments.

Affected Marine Mammals

    Up to 26 marine mammal species may be present in the waters off 
Mayport, FL, including 4 mysticetes, 19 odontocetes, 2 pinnipeds, and 1 
sirenian (manatee). Mysticetes are unlikely to occur in this area 
during the spring or summer time period. Odontocetes may include the 
sperm whale, dwarf and pygmy sperm whale, 4 species of beaked whales, 
and 11 species of dolphins and porpoises. For detailed information on 
marine mammal species, abundance, density,

[[Page 19791]]

and the methods used to obtain this information, reviewers are 
requested to refer to either the Navy's LOA application or Draft 
Environmental Impact Statement/Overseas Environmental Impact Statement 
for the Shock Trial of the MESA VERDE (Draft EIS/OEIS)(see the 
discussion on NEPA compliance later in this proposed rule for 
information on the availability of the Navy's NEPA documents).

Potential Impacts to Marine Mammals

    Potential impacts on the marine mammal species known to occur in 
the area offshore of Mayport, FL from shock testing include both lethal 
and non-lethal injury, as well as harassment. The Navy believes that it 
is very unlikely that injury will occur from exposure to the chemical 
by-products released into the surface waters due to the low initial 
concentrations and rapid dispersion of such by-products. The Navy also 
believes that no permanent alteration of marine mammal habitat would 
occur as a result of the detonations. While the Navy does not 
anticipate any lethal takes would result from these detonations, 
calculations (including mitigation effectiveness) indicate that the 
Mayport site has the potential to result in up to 1 take by mortality, 
2 Level A harassment takes (injuries), and 282 takings by Level B 
(behavioral) harassment across all species. Calculations by species are 
provided in the Navy's LOA application and summarized here.

Mortality and Injury

    Marine mammals can be killed or injured by underwater explosions 
due to the response of air cavities, such as the lungs and bubbles in 
the intestines, to the shock wave (Office of the Surgeon General, 
1991). The criterion for mortality used by the Navy in its analysis for 
the proposed MESA VERDE shock trial is the onset of extensive lung 
hemorrhage. In this analysis, the acoustic exposure associated with 
onset of severe lung injury (extensive lung hemorrhage) is used to 
define the outer limit of the zone within which species are considered 
to experience mortality. Extensive lung hemorrhage is considered 
debilitating and potentially fatal as a result of air embolism or 
suffocation. For the predicted impact ranges, representative marine 
mammal body sizes (mean body mass values) and average lung volumes were 
established, relative densities identified, and species were 
subsequently grouped by size (i.e., mysticetes and sperm whales, large 
odontocetes, small odontocetes). Thresholds and associated ranges for 
the onset of severe lung injury are variable for each of these groups 
depending upon their mean body mass and lung volume. Tables 4 and 5 in 
the Navy's LOA application provide a list of the criterion with 
thresholds and ranges for each grouping by mean body mass.
    In the Navy's analysis, all marine mammals within the calculated 
radius for onset of extensive lung injury (i.e., onset of mortality) 
are counted as lethal takes. The range at which onset of extensive lung 
hemorrhage is expected to occur is greater than the ranges at which 50 
percent to 100 percent lethality would occur from closest proximity to 
the charge or from presence within the bulk cavitation region (see 
Tables 4 and 5 of the Navy's LOA application). The region of bulk 
cavitation is an area near the water surface above the detonation point 
in which the reflected shock wave creates a region of cavitation within 
which smaller animals would not be expected to survive. Because the 
range for onset of extensive lung hemorrhage for smaller animals 
exceeds the range for bulk cavitation and all more serious injuries, 
all smaller animals within the region of cavitation and all animals 
(regardless of body mass) with more serious injuries than onset of 
extensive lung hemorrhage are accounted for in the lethal take 
estimate. The calculated maximum ranges for onset of extensive lung 
hemorrhage depend upon animal body mass, with smaller animals having 
the greatest potential for impact, as well as water column temperature 
and density. Appendix D of the MESA VERDE Draft EIS/OEIS presents 
calculations that estimate the range for the onset of extensive lung 
hemorrhage.
    For injury (Level A harassment), the criterion applied is permanent 
threshold shift (PTS), a non-recoverable injury that must result from 
the destruction of tissues within the auditory system (e.g., tympanic 
membrane rupture, disarticulation of the middle ear ossicles, and hair-
cell damage). Onset-PTS is indicative of the minimum level of injury 
that can occur due to sound exposure. All other forms of trauma would 
occur closer to the sound source than the range at which the onset of 
PTS occurs. In this analysis, the smallest amount of PTS (onset-PTS) is 
taken to be the indicator for the smallest degree of injury that can be 
measured. The acoustic exposure associated with onset-PTS is an energy 
flux density (EL) of 198 decibel (dB) re 1 microPa\2\-sec or greater 
for all mean body mass sizes. Appendix D of the MESA VERDE Draft EIS/
OEIS presents calculations that estimate the range for the onset of PTS 
in blast-exposed marine mammals.

Incidental Level B Harassment

    In the Navy's LOA request and the accompanying MESA VERDE Draft 
EIS/OEIS, temporary threshold shift (TTS) is used as the criterion for 
Level B (behavioral) harassment for marine mammals. As the Navy 
explains in the Draft OEIS/EIS:
    Some physiological effects can occur that are non-injurious but 
which can potentially disrupt the behavior of a marine mammal. These 
include temporary distortions in sensory tissue that alter 
physiological function but which are fully recoverable without the 
requirement for tissue replacement or regeneration. For example, an 
animal that experiences a temporary reduction in hearing sensitivity 
suffers no injury to its auditory system, but may not perceive some 
sounds due to the reduction in sensitivity. As a result, the animal 
may not respond to sounds that would normally produce a behavioral 
reaction. This lack of response qualifies as a disruption of normal 
behavioral patterns-the animal is impeded from responding in a 
normal manner to an acoustic stimulus (DoN, 2007b).
As explained in previous incidental take authorizations for explosions, 
the smallest measurable amount of TTS (onset-TTS) is taken as the best 
indicator for Level B (behavioral) harassment. Because it is considered 
non-injurious, the acoustic exposure associated with onset-TTS is used 
to define the outer limit of the range within which marine mammal 
species are predicted to experience harassment attributable to 
physiological effects. This follows from the concept that hearing loss 
potentially affects an animal's ability to react normally to the sounds 
around it; it potentially disrupts normal behavior by preventing it 
from occurring. Therefore, the potential for TTS qualifies as a Level B 
harassment that is mediated by physiological effects upon the auditory 
system.
    In this analysis, a dual criterion for onset-TTS has been developed 
by the Navy: (1) an energy-based TTS criterion of 183 dB re 1 
microPa\2\-sec EL, and (2) 224 dB re 1 microPa (23 psi) received peak 
pressure. If either threshold is met or exceeded, TTS is assumed to 
have occurred. The thresholds are primarily based on cetacean TTS data 
from Finneran et al. (2002). Since these impulsive sound exposures are 
similar to the sounds of interest for this analysis, they provide the 
data that are most directly relevant to this action. The predicted 
impact ranges applied the more stringent criterion, 183 dB re 1 
microPa\2\-sec weighted energy flux density level.
    Corresponding TTS ranges are listed in Table 5 in the Navy's LOA 
application. For onset-TTS, the more conservative of the two criteria 
was

[[Page 19792]]

chosen by the Navy for determining the range that defined the impact 
zone, regardless of water depth. Expected numbers of marine mammals 
within these radii were calculated using mean densities from Appendix B 
of the MESA VERDE Draft EIS/OEIS. Mean density values were previously 
adjusted to account for submerged (undetectable) individuals. Because 
the range defining the zone in which onset-TTS is predicted is much 
larger than the range corresponding to mortality or injury, more 
individuals and more species could be affected. Marine mammal species 
historically present at or near the proposed Mayport location, but not 
seen during aerial surveys used to develop density estimates (i.e., 
fin, humpback, minke, sperm, and North Atlantic right whales, and 
several dolphin species), were not taken into account in these 
calculations. The results for individual species were rounded to the 
nearest whole number and then summed. For summations which were less 
than 0.5, calculations were rounded down to zero (see MESA VERDE Draft 
EIS/OEIS, Appendix C).
    Table 1 (table 7 in the Navy's LOA application) summarizes the 
mortality, injury, and harassment exposure estimates in summer, for the 
proposed Mayport location. The Navy estimates that for offshore 
Mayport, FL in summer 1 marine mammal (a bottlenose dolphin) will be 
killed and 2 injured. Estimated numbers of marine mammals predicted to 
experience Level B harassment are 282 individual marine mammals at 
Mayport, FL in the summer. Results for individual species were rounded 
up to the nearest whole number.

                     Table 1: Exposure Estimates at the Proposed Mayport Location in Summer
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                   Summer - Number of Individuals (Four detonations, with protective measures)
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                                           Mortality                   Injury                  Harassment
                                 -------------------------------------------------------------------------------
                                      Calc.         Round        Calc.        Round        Calc.        Round
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MARINE MAMMALS
Minke whale                       0.000         0             0.000        0            0.000        0
North Atlantic right whale        0.000         0             0.000        0            0.000        0
Atlantic spotted dolphin          0.133         0             0.321        0            71.706       72
Beaked whales                     0.016         0             0.212        0            7.039        7
Bottlenose dolphin                0.508         1             1.227        1            110.124      110
Common dolphin                    0.000         0             0.000        0            0.000        0
Dwarf/pygmy sperm whale           0.087         0             0.209        0            9.147        9
False killer whale                0.000         0             0.003        0            0.159        0
Pilot whale                       0.006         0             0.078        0            5.568        6
Risso's dolphin                   0.370         0             0.894        1            62.241       62
Rough-toothed dolphin             0.000         0             0.001        0            0.000        0
Spinner dolphin                   0.096         0             0.233        0            16.266       16
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Total - Marine Mammals            ............  1             ...........  2            ...........  282
----------------------------------------------------------------------------------------------------------------

Potential Impact on Marine Mammal Habitat

    As described in the Draft EIS/OEIS, detonations would have only 
short-term, localized impacts on water column physical, chemical, and 
biological characteristics. No lasting or significant impact on marine 
mammal habitat is anticipated, and no restoration would be necessary. 
Therefore, marine mammal habitat would not be affected.

Proposed Mitigation and Monitoring Measures

    The operational site for the proposed shock trial off Mayport, FL 
would be a 3.5-nm (6.5-km) radius Safety Range centered on the 
explosive charge. The concept of Safety Range is an integral part of 
the Navy's protective measures plan, the purpose of which is to prevent 
death and injury to marine mammals (and sea turtles). The Safety Range 
for the Mayport location would be greater than the predicted maximum 
ranges for mortality and injury associated with detonation of a 4,536 
kg (10,000 lb) explosive (see Table 5 of the Navy's LOA application).
    The Navy's proposed action includes mitigation and monitoring that 
would minimize risk to marine mammals. (Mitigation measures for sea 
turtles have been addressed in the Navy's Draft EIS/OEIS and will be 
addressed through consultation under the Endangered Species Act (ESA)). 
The mitigation and monitoring measures to minimize risk to marine 
mammals are as follows:
    (1) Through pre-detonation aerial surveys, the Navy will select a 
primary and two secondary test sites within the test area where, based 
on the results of aerial surveys conducted one to two days prior to the 
first detonation, observations indicate that marine mammal populations 
are the lowest;
    (2) Pre-detonation aerial monitoring will be conducted on the day 
of each detonation to evaluate the primary test site and verify that 
the 3.5 nm (6.5 km) Safety Range is free of visually detectable marine 
mammals (and other critical marine life). If marine mammals are 
detected in the primary test area, the Navy will 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 will visually monitor the 
Safety Range by air (3 observers), onboard the MESA VERDE (6 observers) 
and onboard the MART support vessel before each test and postpone 
detonation if any marine mammal is detected within the Safety Range of 
3.5 nm (6.5 km);
    (4) A detonation will not occur if an ESA-listed marine mammal is 
detected within the Safety Range, and subsequently cannot be detected. 
If a North Atlantic right whale is seen, detonation will not occur 
until the animal is positively relocated outside the Safety Range and 
at least one additional aerial monitoring of the Safety Range shows 
that no other right whales are present;
    (5) Detonation will not occur if the sea state exceeds 3 on the 
Beaufort scale (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/or the aircraft ceiling (i.e., vertical visibility) is 
not 305 m (1,000 ft) or greater;
    (6) Detonation will not occur earlier than 3 hours after sunrise or 
later than

[[Page 19793]]

3 hours prior to sunset to ensure adequate daylight for pre- and post-
detonation monitoring; and
    (7) The area will be monitored by observers onboard the MART vessel 
and by aircraft observers for 48 hours after each detonation, and for 7 
days following the last detonation, to find, document and track any 
injured or dead animals. The aerial survey would search for a minimum 
of 3 hrs/day; the MART observers would monitor during all daylight 
hours. If post-detonation monitoring shows that marine mammals were 
killed or injured as a result of the test, or if any marine mammals are 
observed in the Safety Range immediately after a detonation, NMFS will 
be notified immediately and detonations will be halted until procedures 
for subsequent detonations can be reviewed by NMFS and the Navy and 
changed as necessary.
    More detailed descriptions of the protocols for mitigation and 
monitoring the shock test can be found in Section 5 of the Navy's Draft 
EIS/OEIS.

Proposed Reporting Requirements

    Within 120 days of the completion of shock testing the MESA VERDE, 
the Navy will submit a final report to NMFS. This report will 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; (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 an 
estimate of the number of marine mammals that may have been harassed 
due to undetected presence within the Safety Range (based on density 
estimates); and (4) results of coordination with coastal marine mammal/
sea turtle stranding networks.

Preliminary Determinations

    Based on the scientific analyses detailed in the Navy's LOA 
application and further supported by information and data contained in 
the Navy's Draft EIS/OEIS for the MESA VERDE shock trial and summarized 
in this proposed rule, NMFS has preliminarily determined that the 
incidental taking of marine mammals resulting from conducting this FSST 
would have a negligible impact on the affected marine mammal species or 
stocks. While NMFS believes that detonation of three to four 4,536-kg 
(10,000-lb) charges may affect some marine mammals, the latest 
abundance and seasonal distribution estimates support the finding that 
the lethal taking of a single bottlenose dolphin, the injury of one 
bottlenose dolphin and one Risso's dolphin and the Level B harassment 
of 282 small whales and dolphins will have a negligible impact on the 
affected populations of marine mammals inhabiting the waters of the 
U.S. Atlantic Coast. Preliminarily, NMFS concurs with the U.S. Navy, as 
provided in its LOA application and Draft EIS/OEIS, that impacts can be 
mitigated by mandating a conservative safety range for marine mammal 
exclusion, incorporating aerial and shipboard 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 3.5-nm (6.5-km) Safety Range (or may enter 
the Safety Range at the time of detonation), or if weather and sea 
conditions preclude adequate aerial surveillance. Since the potential 
taking will not result in more than a single mortality and the 
incidental harassment of 284 marine mammals (including 2 injuries), the 
potential taking will have only a negligible impact on these stocks. 
Implementation of required mitigation and monitoring measures will 
result in the least practicable adverse impact on marine mammal stocks. 
Therefore, NMFS has preliminarily determined that the requirements of 
section 101(a)(5)(A) of the MMPA have been met. Finally, the FSST 
operation will not have an unmitigable adverse impact on the 
availability of marine mammals for subsistence uses identified in MMPA 
section 101(a)(5)(A)(i) (16 USC 1371(a)(5)(A)(i)).

National Environmental Policy Act (NEPA)

    The Navy has released a Draft EIS under NEPA for the MESA VERDE 
Shock Trial that was available for public review and comment until 
December 10, 2007. NMFS is a cooperating agency, as defined by the 
Council on Environmental Quality (40 CFR 1501.6), in the preparation of 
this Draft EIS/OEIS. NMFS is currently reviewing the Navy's NEPA 
documents and will either adopt the Navy's Final EIS/OEIS for this 
shock trial or prepare its own NEPA document prior to making a 
determination on the issuance of a final rule and an LOA thereunder. 
The Navy's Draft EIS/OEIS is available for viewing or downloading at: 
http://www.mesaverdeeis.com.

ESA

    On June 12, 2007, the Navy submitted a Biological Assessment to 
NMFS to initiate consultation under section 7 of the ESA for the MESA 
VERDE shock trial. The consultation, which will also include this 
proposed rule, will be concluded prior to issuance of a final rule.

Classification

    This action has been determined to be not significant for purposes 
of Executive Order 12866.
    The Chief Counsel for Regulation of the Department of Commerce has 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this action would not have a significant economic 
impact on a substantial number of small entities within the meaning of 
the Regulatory Flexibility Act. If implemented, this proposed rule 
would affect only the U.S. Navy which, by definition, is not a small 
business. Because of this certification, a regulatory flexibility 
analysis is not required and none has 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: April 7, 2008.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For reasons set forth in the preamble, 50 CFR part 216 is proposed 
to be amended as follows:

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

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

    Authority: 16 U.S.C. 1361 et seq.
    2. Subpart O is added to read as follows:

Subpart O--Taking of Marine Mammals Incidental to Shock Testing the 
USS MESA VERDE (LPD-19) by Detonation of Conventional Explosives in 
the Offshore Waters of the U.S. Atlantic Coast

Sec.
216.161 Specified activity and incidental take levels by species.
216.162 Effective dates.
216.163 Mitigation.
216.164 Prohibitions.
216.165 Requirements for monitoring and reporting.
216.166 Modifications to the Letter of Authorization.

[[Page 19794]]

Subpart O--Taking of Marine Mammals Incidental to Shock Testing the 
USS MESA VERDE (LPD-19) by Detonation of Conventional Explosives in 
the Offshore Waters of the U.S. Atlantic Coast


Sec.  216.161  Specified activity and incidental take levels by 
species.

    (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 up to four 4,536 kg (10,000 lb) 
conventional explosive charges within the waters of the U.S. Atlantic 
Coast offshore Mayport, FL, for the purpose of conducting one full 
ship-shock trial (FSST) of the USS MESA VERDE (LPD 19) during the 
period of May 1 through September 30 only.
    (b) The incidental take of marine mammals under the activity 
identified in paragraph (a) of this section is limited to the following 
species: Minke whale (Balaenoptera acutorostrata), dwarf sperm whale 
(Kogia simus); pygmy sperm whale (K. breviceps); pilot whale 
(Globicephala macrorhynchus); Atlantic spotted dolphin (Stenella 
frontalis); spinner dolphin (S. longirostris); bottlenose dolphin 
(Tursiops truncatus); Risso's dolphin (Grampus griseus); rough-toothed 
dolphin (Steno bredanensis); false killer whale (Pseudorca crassidens); 
Cuvier's beaked whale (Ziphius cavirostris), Blainville's beaked whale 
(Mesoplodon densirostris); Gervais' beaked whale (M. europaeus); and 
True's beaked whale (M. mirus).
    (c) The incidental take of marine mammals identified in paragraph 
(b) of this section is limited to a total, across all species, of no 
more than 1 mortality or serious injury, 2 Level A harassments 
(injuries), and 282 takings by Level B behavioral harassment (through 
temporary threshold shift), except that the incidental taking by 
serious injury or mortality of species listed in paragraph (b) of this 
section that are also listed as threatened or endangered under the 
Endangered Species Act, is prohibited.


Sec.  216.162  Effective dates.

    Regulations in this subpart are effective [date 30 days after date 
of publication of the final rule in the FEDERAL REGISTER] through [date 
5 years from date 30 days from date of publication of the final rule in 
the FEDERAL REGISTER].


Sec.  216.163  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 in the course of the activity described in Sec.  
216.161(a) provided all terms, conditions, and requirements of these 
regulations and such Letter of Authorization are met.
    (b) The activity identified in Sec.  216.161(a) of this part 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 
implemented:
    (1) If any marine mammals are visually detected within the 
designated 3.5 nm (6.5 km) Safety Range, detonation must be delayed 
until the marine mammals are positively reacquired outside the Safety 
Range either due to the animal(s) swimming out of the Safety Range or 
due to the Safety Range moving beyond the mammal's last verified 
location.
    (2) If a North Atlantic right whale or other marine mammal listed 
under the Endangered Species Act is seen, detonation must not occur 
until the animal is positively reacquired outside the Safety Range and 
at least one additional aerial monitoring of the Safety Range shows 
that no other right whales or other listed marine mammals are present;
    (3) If
    (i) the sea state exceeds 3 on the Beaufort scale (i.e., whitecaps 
on 33 to 50 percent of surface; 2 ft (0.6 m) to 3 ft (0.9 m) waves),
    (ii) the visibility is not 3 nm (5.6 km) or greater, and/or
    (iii) the aircraft ceiling (i.e., vertical visibility) is not 1,000 
ft (305 m) or greater, detonation must not occur until conditions 
improve sufficiently for aerial surveillance to be undertaken.
    (4) If post-test surveys determine that a serious injury or lethal 
take of a marine mammal has occurred, (A) the Director, Office of 
Protected Resources, National Marine Fisheries Service must be notified 
within 24 hours of the taking determination, (B) the FSST procedures 
and monitoring methods must be reviewed in coordination with the 
National Marine Fisheries Service, and (C) appropriate changes to avoid 
future injury or mortality takings must be made prior to conducting the 
next detonation.


Sec.  216.164  Prohibitions.

    The following activities are prohibited:
    (a) The intentional taking of a marine mammal.
    (b) The violation of, or failure to comply with, the terms, 
conditions, and requirements of this subpart or a Letter of 
Authorization issued under Sec.  216.106.


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 with regulatory authority for monitoring 
the impacts of the activity on marine mammals. The holder must notify 
the Director, Office of Protected Resources, National Marine Fisheries 
Service 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 marine mammal observers (MMOs) to monitor the Safety 
Range for presence of marine mammals and to record the effects of 
explosives detonation on marine mammals that inhabit the Navy's 
Jacksonville/Charleston Operating Area offshore of Mayport, Florida.
    (c) The test area must be monitored by trained MMOs and other 
trained individuals, 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 vessel surveillance 
sufficient to ensure that no marine mammals are within the designated 
Safety Range 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 in accordance with protocols and best practices of the NOAA 
Health and Stranding Response Program. 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 presence of uninjured marine mammals in 
the vicinity of the Safety Range will also be documented and reported.
    (e) Activities related to the monitoring described in paragraphs 
(c) and (d) of this section, 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

[[Page 19795]]

discretion, the National Marine Fisheries Service may place an observer 
on any ship or aircraft involved in marine mammal monitoring either 
prior to, during, or after explosives detonation.
    (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 MESA VERDE (LPD-19). 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 due to presence within the designated Safety Range.
    (4) Results of coordination with coastal marine mammal/sea turtle 
stranding networks.


Sec.  216.166  Modifications to the Letter of Authorization.

    (a) 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 inSec.  216.151(b), the Letter of 
Authorization may be substantively modified without prior notification 
and an opportunity for public comment. Notification will be published 
in the Federal Register subsequent to the action.
[FR Doc. E8-7778 Filed 4-10-08; 8:45 am]
BILLING CODE 3510-22-S