[Federal Register Volume 73, Number 143 (Thursday, July 24, 2008)]
[Rules and Regulations]
[Pages 43130-43138]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 08-1461]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 080220219-8829-02]
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: Final rule.

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SUMMARY: NMFS, upon application from the U.S. Navy (Navy), issues 
regulations to govern the unintentional taking of marine mammals 
incidental to conducting a Full Ship Shock Trial (FSST) of the USS MESA 
VERDE (LPD 19) in the waters of the Atlantic Ocean offshore of Mayport, 
FL. Authorization of incidental take is required by the Marine Mammal 
Protection Act (MMPA) when the Secretary of Commerce (Secretary), after 
notice and opportunity for comment, finds, as here, that such takes 
will have a negligible impact on the affected species or stocks of 
marine mammals and will not have an unmitigable adverse impact on their 
availability for taking for subsistence uses. These regulations 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.

DATES: July 18, 2008 through July 18, 2013.

ADDRESSES: A copy of the Navy's MMPA application, containing a list of 
references used in this document, NMFS' Record of Decision (ROD), and 
other documents cited herein, may be obtained by writing to the Office 
of Protected Resources, National Marine Fisheries Service, 1315 East-
West Highway, Silver Spring, MD 20910-3225, by telephoning the contact 
listed under FOR FURTHER INFORMATION CONTACT, or at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm.
    A copy of the Navy's Final Environmental Impact Statement/Overseas 
Environmental Impact Statement (Final EIS/OEIS) can be downloaded at: 
http://www.mesaverdeeis.com. A copy of the Navy's documents cited in 
this final rule may also be viewed, by

[[Page 43131]]

appointment, during regular business hours at the NMFS address provided 
here.

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 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 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). NMFS must promulgate regulations setting forth the 
permissible methods of taking and requirements pertaining to the 
mitigation, monitoring and reporting of such taking.
    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 (MRAs), such as the 
FSST, the MMPA defines ``harassment'' as:

    (i) Any act that injures or has the significant potential to 
injure a marine mammal or 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 USS MESA VERDE (LPD 19), a new amphibious transport dock ship. The 
shock trial of the USS 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 
behaviorally harassed incidental to conducting the FSST, regulations 
and an authorization under section 101(a)(5)(A) of the MMPA are 
required.

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 U.S.C. 703 note).
    The USS 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 USS MESA VERDE, would be exposed to a series of underwater 
detonations. 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 kg (10,000 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 was 
analyzed as consisting of up to four detonations.
    An operations vessel would tow the explosive charge in parallel 
with the USS MESA VERDE using the parallel tow method, as illustrated 
in Figure 1 of the Navy's Letter of Authorization (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

[[Page 43132]]

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 USS 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 USS 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 USS MESA VERDE 
would move closer to the charge to experience a more intense shock 
level.

Comments and Responses

    On April 11, 2008 (73 FR 19789), NMFS published a proposed rule on 
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 received comments from the U.S. 
Marine Mammal Commission and from one member of the public. The 
comments of the individual did not address issues specific to NMFS' 
proposed action, so it is not addressed further in this final rule. The 
Commission concurs with NMFS' finding that the planned shock trial is 
unlikely to have more than a negligible, short-term impact on the 
potentially affected marine mammal species and stocks, provided that 
the planned mitigation measures are imposed. Specific recommendations 
of the Commission follow.
    Comment 1: The Commission recommends that NMFS issue the requested 
authorization, subject to a requirement that operations be suspended 
immediately if more than the anticipated number of marine mammals are 
killed or injured incidental to the operations or if a dead or 
seriously injured North Atlantic right whale is found in the vicinity 
of the operations and the death or injury could have occurred 
incidental to the proposed activities. Suspension of operations should 
remain in place until NMFS (1) has determined that the death is not 
related to the shock testing activities, (2) has reviewed the situation 
and determined that further deaths or serious injuries are unlikely to 
occur, or (3) has revised the regulations to authorize additional takes 
under section 101(a)(5)(A) of the MMPA.
    Response: Taking marine mammal species not authorized (e.g., North 
Atlantic right whales), by means not authorized (e.g., ship strike), 
and/or in numbers greater than authorized in the regulations, will 
result in at least a temporary suspension of the LOA while NMFS 
scientists investigate the mitigation and monitoring measures and 
recommend improvements to that program. While NMFS believes that the 1-
week period between detonations will provide sufficient time to 
investigate any unauthorized takings and recommend a solution, future 
detonations may need to be delayed pending resolution.
    Comment 2: The Commission agrees that the data used to estimate 
marine mammal density, seasonality of habitat use, and other relevant 
biological factors appear to be the latest and best data from NMFS and 
other sources. One exception involves the use of data collected jointly 
by NMFS and the Minerals Management Service (MMS) between 1996 and 
2001, which is used instead of more recent data from the MMS' (sperm 
whale seismic study (Palka and Johnson, 2007). The final report for 
that program was published in 2007, and several related, peer-reviewed 
publications of sighting and tagging data also are available.
    Response: The Navy's MMPA application for taking marine mammals 
incidental to conducting the FSST is for takings in the offshore waters 
of northern Florida and southern Georgia during the spring/summer of 
2008. Sperm whales will not be found in these waters at this time of 
the year. As a result, the new analysis by Palka and Johnson (2007), 
which was conducted in waters north of Cape Hatteras, is not relevant 
to the current action. However, NMFS plans to merge the line transect 
data from Palka and Johnson (2007) with data collected during its 
previous surveys to investigate habitat preferences of sperm whales in 
the Atlantic Ocean. This new information will be used by NMFS and the 
Navy in future MMPA applications.
    Comment 3: The Commission is concerned about the possible 
consequences of staging the shock tests in the DeSoto Canyon area 
because the canyon appears to support relatively high concentrations of 
sperm whales, beaked whales, and other deep-diving cetaceans.
    Response: While the Navy's Draft EIS/OEIS identified offshore 
Norfolk, VA, Mayport, FL, and Pensacola, FL, as locations for 
conducting the shock trial, the Navy's application under section 
101(a)(5)(A) of the MMPA requested an authorization for taking marine 
mammals in the offshore waters of Mayport, FL (the Navy's preferred 
alternative under its Final EIS/OEIS). As a result, the FSST will not 
take place in DeSoto Canyon, which is off the west coast of Florida.
    Comment 4: The Commission recommends if the proposed shock trial 
cannot be completed before the end of summer 2008, that it be postponed 
until the spring or summer of 2009 to avoid the seasons when North 
Atlantic right whales are most likely to be present.
    Response: During the 5-year effectiveness period of these final 
regulations, NMFS, through an LOA, will authorize take incidental to 
the Navy's proposed ship shock trial only during a period from May 1 
through September 20, except in the case of 2008, where an LOA will 
authorize take only upon the effective date of the regulations, and in 
the case of 2013, where an LOA would authorize take only up until the 
regulations expire.
    Comment 5: The Commission questions NMFS's view that temporary 
threshold shift (TTS) constitutes Level B harassment under the MMPA. 
The Commission continues to believe that an across-the-board definition 
of ``TTS'' as constituting no more than Level B harassment 
inappropriately dismisses the possibility that an affected animal may 
experience injury or biologically significant behavioral changes if its 
hearing is compromised, even temporarily. The Commission believes this 
constitutes Level A harassment under both the generally applicable 
definition of this term and applicability to military readiness 
activities. NMFS should revisit this issue and revise its 
interpretation of TTS to recognize the potential for Level A harassment 
due to secondary effects of temporary hearing loss.
    Response: NMFS has addressed to this issue in several previous 
Federal Register notices in regards to potential impacts on marine 
mammals from explosives and sonar. Please see 70 FR 48675, 48677 
(August 19, 2005) and 66 FR 22450 (May 4, 2001) for a detailed 
response.

Affected Marine Mammals

    Up to 26 marine mammal species may be present in the waters off 
Mayport, FL: 4 species of mysticetes, 19 species of odontocetes, 2 
species of pinnipeds, and 1 sirenian species (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

[[Page 43133]]

species, abundance, density estimates, and the methods used to obtain 
this information, reviewers are requested to refer to the Navy's LOA 
application, and Final EIS/OEIS for the Shock Trial of the USS MESA 
VERDE (see ADDRESSES for information on the availability of the Navy's 
LOA application and Final EIS/OEIS).

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 Level B harassment. NMFS concurs with 
the Navy 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. 
NMFS concurs with the Navy also believe that no permanent alteration of 
marine mammal habitat would occur as a result of the detonations. The 
Navy's calculations (which include mitigation effectiveness) indicate 
that the FSST at the Mayport site, during summer, 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 of odontocetes. 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. The criterion for mortality used by 
the Navy in its analysis for the proposed USS 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 tends 
beyond the range of bulk cavitation and because all injuries more 
serious than onset of extensive lung hemorrhage are considered lethal 
takes, 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 USS MESA VERDE Final 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 would 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 [mu]Pa2-sec or 
greater for all mean body mass sizes. Appendix D of the USS MESA VERDE 
Final EIS/OEIS presents calculations that estimate the range for the 
onset of PTS in marine mammals exposed to detonations associated with 
the FSST.

Incidental Level B Harassment

    In the Navy's LOA request and the accompanying USS MESA VERDE Final 
EIS/OEIS, TTS is used as the criterion for Level B (behavioral) 
harassment for marine mammals. As the Navy explains in the Final EIS/
OEIS:

    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.

    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 Level B 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 
[mu]Pa2-sec EL, and (2) a pressure-based TTS criterion of 
224 dB re 1 [mu]Pa (23 psi) received peak pressure. For additional 
information on the establishment of these criteria by the Navy and 
NMFS, please see Appendix D in the Final EIS/OEIS. 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). 
Because the impulsive sound exposures analyzed in this cetacean TTS 
data 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

[[Page 43134]]

applied the more stringent criterion, in this case, the 183-dB re 1 
[mu]Pa2-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 chosen 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 
USS MESA VERDE Final 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 
known to occur 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) and not expected to be present during the time of the 
year when the FSST will occur (summer), 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 USS MESA 
VERDE Final EIS/OEIS, App. C).
    Table 1 below (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 (a bottlenose dolphin and a Risso's dolphin). 
Estimated numbers of marine mammals predicted to experience Level B 
harassment are 282 individual marine mammals at Mayport, FL in the 
summer.
BILLING CODE 3510-22-P
[GRAPHIC] [TIFF OMITTED] TR24JY08.000

BILLING CODE 3510-22-C

Potential Impact on Marine Mammal Habitat

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

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 (onset PTS) 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, which NMFS included in its 
proposed rule. (Mitigation measures for sea turtles have been analyzed 
in the Navy's Final EIS/OEIS and addressed through consultation under 
section 7 of the Endangered Species Act (ESA) and issuance of a 
Biological Opinion on this action). The mitigation and monitoring 
measures that will be implemented 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 day 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

[[Page 43135]]

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 observers (MMOs) will visually 
monitor the Safety Range by air (2 MMOs), onboard the USS MESA VERDE (a 
minimum of 6 MMOs) and onboard the Marine Animal Recovery Team (MART) 
support vessel (a minimum of 2 MMOs) before each test and coordinate 
with the Lead Scientist and Shock Trial Officer to 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 or other ESA-listed marine mammal 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 or 
other listed marine mammals 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 equal to or less 
than 5.6 km (3 nm), and/or the aircraft ceiling (i.e., vertical 
visibility) is equal to or less than 305 m (1,000 ft);
    (6) Detonation will 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 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 will search for a minimum of 
3 hrs/day; the MART observers will monitor during all daylight hours. 
If post-detonation monitoring shows that marine mammals were killed or 
injured as a result of the shock trial, 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 the shock trial's 
mitigation and monitoring can be found in Section 5 of the Navy's Final 
EIS/OEIS.

Reporting Requirements

    Within 120 days of the completion of the USS MESA VERDE shock 
trial, 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 in the Safety Range at the 
time of the detonation based on post-test aerial monitoring and current 
density estimates; and (4) results of coordination with coastal marine 
mammal/sea turtle stranding networks.

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 Final EIS/OEIS for the USS MESA VERDE shock trial and 
summarized in the preamble to this final rule, NMFS has determined that 
the incidental taking of marine mammals resulting from conducting an 
FSST on the USS MESA VERDE in the waters offshore of Mayport, FL during 
the summer months would have a negligible impact on the affected marine 
mammal species or stocks. While detonation of up to four 4,536-kg 
(10,000-lb) charges may adversely 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 behavioral harassment of 282 small whales and dolphins of 7 different 
genera will have a negligible impact on the affected species or stocks 
of marine mammals inhabiting the waters of the U.S. Atlantic Coast. 
Impacts will be mitigated by mandating a conservative safety range for 
pre-detonation marine mammal exclusion, incorporating aerial and 
shipboard monitoring efforts in the program both prior to, and after, 
detonation of explosives, and prohibiting detonations 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. 
Implementation of required mitigation and monitoring measures will 
result in the least practicable adverse impact on marine mammal stocks. 
NMFS has also determined that 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 U.S.C. 
1371(a)(5)(A)(i)). Therefore, NMFS has determined that the requirements 
of section 101(a)(5)(A) of the MMPA have been met.

National Environmental Policy Act (NEPA)

    The Navy released its Draft EIS/OEIS for the USS MESA VERDE shock 
trial for public review on October 26, 2007 (72 FR 60846; 72 FR 61329, 
October 30, 2007) with the public review period ending on December 10, 
2007. On May 30, 2008 (73 FR 3115), the Environmental Protection Agency 
(EPA) announced receipt of the Navy's Final EIS/OEIS on this action. 
NMFS is a cooperating agency, as defined by the Council on 
Environmental Quality (40 CFR 1501.6), in the preparation of both the 
Draft and Final EIS/OEIS. The Navy's Draft and Final EIS/OEISs are 
available for viewing or downloading at: http://www.mesaverdeeis.com.
    In accordance with NOAA Administrative Order 216-6 (Environmental 
Review Procedures for Implementing the National Environmental Policy 
Act, May 20, 1999), NMFS has reviewed the information contained in the 
Navy's Final EIS/OEIS and determined that the Navy's Final EIS/OEIS 
accurately and completely describes the Navy proposed action 
alternative, reasonable additional alternatives, and the potential 
impacts on marine mammals, endangered species, and other marine life 
that could be impacted by the preferred alternative and the other 
alternatives. NMFS has also concluded that the impacts on the human 
environment (particularly on marine mammals) evaluated by the Navy are 
substantially the same as the impacts of NMFS/NOAA's proposed action to 
issue these regulations and an authorization under section 101(a)(5)(A) 
of the MMPA to the Navy to take marine mammals, by harassment, 
incidental to conducting an FSST on the USS MESA VERDE in the waters 
off Mayport, FL. In addition, the NMFS/NOAA has evaluated the U.S. 
Navy's Final EIS/OEIS and found that it includes all required 
components for adoption by NOAA, including: (1) A discussion of the 
purpose and need for the action; (2) a summary of the EIS, including 
the issues to be resolved, and in the Final EIS/OEIS, the major 
conclusions and

[[Page 43136]]

areas of controversy including those raised by the public; (3) a 
listing of the alternatives to the proposed action; (4) a description 
of the affected environment; (5) a succinct description of the 
environmental impacts of the proposed action and alternatives, 
including cumulative impacts; and (6) a listing of agencies and persons 
consulted, and to whom copies of the EIS have been sent.
    Based on this review and analysis, NMFS/NOAA has adopted the Navy's 
Final EIS/OEIS under the Council on Environmental Quality's Regulations 
for Implementing the National Environmental Policy Act (40 CFR 1506.3). 
As a result, NMFS has determined it is not necessary to issue an 
Environmental Assessment (EA), supplemental EA or a new EIS for the 
issuance of regulations and an LOA to the Navy for the taking of marine 
mammals incidental to this activity. NMFS (ROD is available on NMFS' 
Web site (see ADDRESSES).

ESA

    On June 12, 2007, the Navy submitted a Biological Assessment to 
NMFS to initiate consultation under section 7 of the ESA for the USS 
MESA VERDE shock trial. NMFS concluded consultation with the Navy on 
this action on July 17, 2008. The conclusion of that consultation is 
NMFS' Biological Opinion that conducting an FSST of the USS MESA VERDE 
in the waters offshore of Mayport, FL during the summer of 2008 and the 
issuance by NMFS of an incidental take authorization under section 
101(a)(5)(A) for this activity are not likely to jeopardize the 
continued existence of any endangered or threatened species under the 
jurisdiction of NMFS or result in the destruction or adverse 
modification of critical habitat.

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 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration at the proposed rule stage, 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 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.
    The Assistant Administrator for Fisheries, NOAA, finds good cause 
to waive the 30-day delay in effective date for this final rule under 5 
U.S.C. 553(d)(3) as impracticable and contrary to the public interest. 
This rule governs NMFS' issuance of an LOA and sets forth the 
mitigation, monitoring and reporting requirements with which the U.S. 
Navy must comply in conducting the shock test of the USS MESA VERDE. 
The Navy has provided NMFS with information that a 30-day delay in 
effective date would eliminate any opportunity to conduct the FSST for 
two full years because of the short window available in 2008 to conduct 
the test and because the Navy can conduct LPD 17 class FSSTs on the 
East Coast only every other year. The Navy is required by 10 U.S.C. 
Section 2366 to conduct realistic life fire testing of new classes of 
ships and the FSST is a critical piece of this testing. Additionally 
the Navy conducts the FSST on a class of ships prior to overseas 
deployment, to ensure that the ship can survive damage sustained in a 
combat situation. As a result, the delay would negatively affect 
national security and military readiness by requiring the Navy to 
either alter the scheduled deployment of several ships, or send ships 
overseas without their normal validation of combat survivability. For 
these reasons, NMFS finds good cause to waive the 30-day delay in 
effective date. This rule is effective upon filing.

Changes From the Proposed Rule

    Other than minor edits to the rule for clarification and 
consistency NMFS has made one change to the rule:
    1. The common dolphin has been added to the marine mammal species 
authorized for incidental taking in 50 CFR 216.161(b).

List of Subjects in 50 CFR Part 216

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

    Dated: July 18, 2008.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.

0
For reasons set forth in the preamble, 50 CFR part 216 is amended as 
follows:

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

0
1. The authority citation for part 216 continues to read as follows:

    Authority: 16 U.S.C. 1361 et seq.

0
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.

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 persons 
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 time 
period between July 23 and September 20, 2008, and May 1 and September 
20, 2009 through 2013.
    (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); common dolphin (Delphinus delphis), 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 takings by Level A

[[Page 43137]]

harassment (injuries), and 282 takings by Level B behavioral harassment 
(through temporary threshold shift). The incidental taking of any 
species listed as threatened or endangered under the Endangered Species 
Act is prohibited.


Sec.  216.162  Effective dates.

    Regulations in this subpart are effective July 18, 2008 through 
July 18, 2013.


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 requirements of these regulations and such 
Letter of Authorization are met.
    (b) The activity identified in paragraph Sec.  216.161(a) of this 
section must be conducted in a manner that minimizes, to the greatest 
extent practicable, adverse impacts on marine mammals and their 
habitat. When detonating explosives, the following mitigation measures 
must be implemented:
    (1) Except as provided under the following paragraph (2), if any 
marine mammals are visually detected within the designated 3.5 nm (6.5 
km) Safety Range surrounding the USS MESA VERDE, detonation must be 
delayed until the marine mammals are positively resighted 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 (ESA) is seen within the Safety Range, 
detonation must not occur until the animal is positively resighted 
outside the Safety Range and at least one additional aerial monitoring 
of the Safety Range shows that no other right whales or other ESA-
listed marine mammals are present;
    (3) If 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), the visibility is equal to or less than 3 nm (5.6 km), or the 
aircraft ceiling (i.e., vertical visibility) is equal to or less than 
1,000 ft (305 m), detonation must not occur until conditions improve 
sufficiently for aerial surveillance to be undertaken.
    (4) A detonation must not be conducted earlier than 3 hours after 
sunrise or later than 3 hours prior to sunset to ensure adequate 
daylight for conducting the pre-detonation and post-detonation 
monitoring requirements in Sec.  216.165;
    (5) If post-detonation surveys determine that an injury or lethal 
take of a marine mammal has occurred,
    (i) the Director, Office of Protected Resources, National Marine 
Fisheries Service must be notified within 24 hours of the taking 
determination,
    (ii) the FSST procedures and monitoring methods must be reviewed in 
coordination with the National Marine Fisheries Service, and
    (iii) appropriate changes to avoid future injury or mortality must 
be made prior to conducting the next detonation.


Sec.  216.164  Prohibitions.

    No person in connection with the activities described in Sec.  
216.161(a) shall:
    (a) Take any marine mammal not specified in Sec.  216.161(b);
    (b) Take any marine mammal specified in Sec.  216.161(b) other than 
by incidental, unintentional Level A or Level B harassment or 
mortality;
    (c) Take a marine mammal specified in Sec.  216.161(b) if such 
taking results in more than a negligible impact on the species or 
stocks or marine mammals;
    (d) Violate, or failure to comply with, the requirements of 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, or 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 at 
least 6 experienced on-site marine mammal observers (MMOs) onboard the 
USS MESA VERDE, 2 experienced MMOs onboard the survey aircraft and 2 
experienced MMOs onboard the Navy support vessel each of whom has been 
approved in advance by NMFS, 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)(1) Prior to each detonation for the FSST, an area will be 
located which has been determined by an aerial survey to contain the 
lowest marine mammal abundance relative to other areas within the area 
off Mayport, FL.
    (2) The test area must be monitored by aerial and shipboard 
monitoring for the following periods of time:
    (i) 48-72 hours prior to a scheduled detonation (aircraft only),
    (ii) on the day of detonation,
    (iii) immediately after each detonation and continuing for at least 
3 hours subsequent to each detonation (or until sighting conditions 
become unsuitable for visual observations),
    (iv) for at least 2 days after each detonation, unless weather and/
or sea conditions preclude surveillance, in which case post-test survey 
dates must be extended, and
    (v) for a period of 7 days after the last detonation for a minimum 
of 3 hours per day at the detonation site and down-current from the 
site.
    (3) Monitoring shall include, but is not 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 an attending U.S.-licensed veterinarian 
(an attending U.S. licensed veterinarian is one who has graduated from 
a veterinary school accredited by the American Veterinary Medical 
Association Council on Education, has a certificate by the American 
Veterinary Graduates Association's Education Commission for Foreign 
Veterinary Graduates, or has received equivalent formal education, as 
determined by the NMFS Assistant Administrator), an 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.
    (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 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) Subject to relevant Navy regulations, the National Marine 
Fisheries Service at its discretion 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

[[Page 43138]]

Resources, no later than 120 days after completion of the USS MESA 
VERDE (LPD 19) shock trial. This report must contain the following 
information:
    (1) Date and time of all detonations conducted under the Letter of 
Authorization.
    (2) A detailed description of all pre-detonation and post-
detonation activities related to mitigating and monitoring the effects 
of explosives detonation on marine mammals.
    (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 an estimate of the number, by species, of marine 
mammals in the Safety Range at the time of detonation based on post-
test aerial monitoring and current density estimates.
    (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 a 
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), 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. 08-1461 Filed 7-18-08; 3:06 pm]
BILLING CODE 3510-22-P