Incidental Take of Marine Mammals
Federal RegisterFeb 3, 1994
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 228
[Docket No. 930816-4016; I.D. 071993D]
RIN 0648-AF49
Incidental Take of Marine Mammals
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. Department of the Navy
(Navy), issues regulations to govern the unintentional take of a small
number of marine mammals incidental to a wide variety of proposed Navy
projects involving the underwater detonation of conventional explosives
in the offshore waters of the Outer Sea Test Range (OSTR) of the Naval
Air Warfare Center (NAWC), Pt. Mugu, Ventura County, CA, over the next
5 years. Issuance of regulations governing unintentional incidental
takes in connection with particular activities is required by the
Marine Mammal Protection Act (MMPA) when the Secretary of Commerce
(Secretary), after notice and opportunity for comment, finds as here,
that such takes will have a negligible impact on the species and stocks
and will not have an unmitigable adverse impact on the availability of
them for subsistence uses. These regulations do not authorize the
Navy's proposed activities, such authorization is provided by the
National Defense Authorization Act and is not within the jurisdiction
of the Secretary. Rather, these regulations authorize the unintentional
incidental take of marine mammals in connection with such activities
and prescribe methods of taking and other means of effecting the least
practicable adverse impact on the species and its habitat, and on the
availability of the species for subsistence uses.
EFFECTIVE DATE: March 3, 1994 through March 3, 1999.
ADDRESSES: Copies of the Environmental Assessment and Biological
Opinion may be obtained by writing to Dr. William W. Fox, Jr.,
Director, Office of Protected Resources, National Marine Fisheries
Service, 1335 East-West Highway, Silver Spring, MD 20910, or by
telephoning the contact listed below.
FOR FURTHER INFORMATION CONTACT: Kenneth R. Hollingshead, Office of
Protected Resources, NMFS (301) 713-2055.
SUPPLEMENTARY INFORMATION:
Background
Section 101(a)(5) of the MMPA (16 U.S.C. 1361 et seq.) directs the
Secretary to allow, upon request by U.S. citizens engaged in a specific
activity (other than commercial fishing) in a specified geographical
region, the incidental, but not intentional, taking of small numbers of
marine mammals, if certain findings are made and regulations are
issued. Under the MMPA, the term ``taking'' means to harass, hunt,
capture or kill.
Permission may be granted for periods up to 5 years if the
Secretary finds, after notice and opportunity for public comment, that
the taking will have a negligible impact on the species or stock(s) of
marine mammals and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for subsistence uses. In
addition, the Secretary must prescribe regulations that include
permissible methods of taking and other means effecting the least
practicable adverse impact on the species and its habitat, and on the
availability of the species for subsistence uses, paying particular
attention to rookeries, mating grounds and areas of similar
significance. The regulations must include requirements pertaining to
the monitoring and reporting of such taking.
In 1986, the MMPA and the Endangered Species Act (ESA) (16 U.S.C.
1531-1543) were amended to allow incidental takings of depleted,
endangered, or threatened marine mammals. Before the 1986 amendments,
section 101(a)(5) applied only to non-depleted marine mammals, and the
more restrictive provisions of the MMPA prevailed, which meant that an
incidental take of endangered or depleted marine mammals could not be
allowed even if the anticipated take would result in only negligible
impacts.
Summary of Request
On May 13, 1993, NMFS received an application from the Navy for a
Letter of Authorization (LOA) under section 101(a)(5) of the MMPA and
50 CFR 228.6, that would allow the unintentional take of small numbers
of pinnipeds and cetaceans for a period of 5 years, commencing February
1994, incidental to a wide variety of military projects involving the
underwater detonation of conventional explosives in the offshore waters
of the OSTR of the NAWC, off Pt. Mugu, Ventura County, CA, seaward of
the Channel Islands. This application was made available for public
review on June 7, 1993 (58 FR 31944). NMFS requested comments,
information and suggestions concerning the request and the structure
and content of the regulations governing the take. The comment period
closed on July 7, 1993. The application was subsequently modified by
letter on September 2, 1993 to request an incidental take for two
additional species.
As the Navy describes its proposed activities under the ``Live
Fire'' testing program mandated by the National Defense Authorization
Act (10 U.S.C. 139), ships and critical components or systems
constructed for the Navy must undergo shock tests prior to service with
the fleet to determine the integrity of the structure and electronic
systems that are vital to the overall function and performance of the
vessel and its crew under wartime combat conditions. This is especially
true when a new class of ship is constructed. The new ship must be
subjected to a ``near-miss'' underwater explosion while its crew tracks
airborne and waterborne targets in the area. These tests help the Navy
identify weaknesses in the ship's design early in the construction of a
new class of ship, which, when corrected, enhance the survivability of
the ship, its systems, and most importantly, its crew. The design
corrections and improvements are then applied to all follow-on ships of
that class.
The shock trial is a complicated combat simulation that requires
the participation of several Navy aircraft and ships. Their purpose is
to challenge the shock trial ship's tracking and communications systems
after the detonation. To ensure the safety of commercial aircraft and
vessels, the Navy must conduct these trials in an area where they can
maintain control of air and sea space while the trial is being
conducted. In addition, the site must be close to the repair
facilities, should the ship become disabled. Under normal conditions,
for Navy ships homeported on the west coast, the designated site is the
OSTR, which is under the jurisdiction of the NAWC. The Navy anticipates
that on an annual basis, no more than 10 projects involving underwater
explosions will be conducted under the requested LOA (Table 1).
The Navy has requested a take of four species of pinnipeds and 17
species (or species groups) of cetaceans by harassment, injury and
death (Table 2). The proposed activities would occur in the Southern
California Bight (SCB), an area with a potentially high density of
marine mammals. Potential impacts to marine mammals include both lethal
and non-lethal injuries, as well as physical and acoustic harassment.
Injury or death may occur as a direct result of the explosive blast
(concussion) itself. Injury may include damage to internal organs, as
well as to the auditory system. Harassment of marine mammals may occur
as a result of non-injurious physiological responses to both the
explosion-generated shockwave, as well as to the acoustic signature of
the detonation.
Table 1.--Maximum Anticipated Annual Underwater Detonation Requirements
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Maximum project
Number of projects/number of charge weight lb/ Total number of
detonations per project (kg) detonations
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2/6............................... 10,000/(4,536) 12
2/1............................... 1,200/(544) 2
2/5............................... 100/(45) 10
2/5............................... 10/(4.5) 10
2/10.............................. 1/(0.45) 20
10 Projects....................... ................. .................
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Total 54
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Source: Naval Surface Warfare Center, Carderock Division, Underwater
Explosions Research Department.
Table 2.--Requested Take Under a Letter of Authorization: Estimated Maximum Annual Incidental Take of Marine
Mammals Assuming Maximum Underwater Detonation Requirements
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Incidental take Lethal Injury Harassment
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Pinnipeds:
California Sea Lion.................................................. 2 38 173
Harbor Seal.......................................................... 2 16 68
Northern Elephant Seal............................................... 9 158 724
Northern Fur Seal.................................................... 2 13 57
Odontocetes:
Common Dolphin....................................................... 1 16 67
Striped Dolphin...................................................... 0 2 5
Risso's Dolphin...................................................... 0 1 2
Pacific White-Sided Dolphin.......................................... 3 52 236
Northern Rt. Whale Dolphin........................................... 2 24 108
Dall's Porpoise...................................................... 0 6 18
Bottlenose Dolphin................................................... 0 4 15
Killer Whale......................................................... 0 0 1
Sperm Whale (e)...................................................... 0 6 20
Beaked Whales........................................................ 0 0 3
Mysticetes:
Minke Whale.......................................................... 0 0 4
Blue Whale (e)....................................................... 0 1 11
Fin Whale (e)........................................................ 0 0 6
Sei Whale (e)........................................................ 0 0 1
Humpback Whale (e)................................................... 0 0 4
Gray Whale........................................................... 0 3 40
Right Whale (e)...................................................... 0 0 1
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(e) = endangered species.
The Navy describes in its application efforts that will be made to
minimize project related impacts to marine mammals (see below--Measures
to Reduce Impacts). The Navy strongly believes that impacts can be held
to an acceptably low level by mandating conservative safety zones for
marine mammal exclusion and by incorporating an active aerial survey
monitoring effort in the program both prior to, and after, detonation
of explosives. The Navy states that tests will not be conducted if
marine mammals, sea turtles, fish schools, or seabirds are detected
within the safety zone, or if weather and sea conditions preclude
adequate aerial surveillance. Also, if post-test surveys determine that
an injurious or lethal take of a marine mammal has occurred, the test
procedure and the monitoring methods will be reviewed by the Navy and
NMFS and appropriate changes will be made.
Proposed Rule
On October 14, 1993, under the National Environmental Policy Act
(42 U.S.C. 4321 et seq.; NEPA), NMFS released for public comment an
Environmental Assessment (EA) and on October 15, 1993, published
proposed regulations (58 FR 53491) authorizing and governing the
unintentional taking of a small number of pinnipeds and cetaceans
incidental to the Navy's underwater explosives detonations program in
the OSTR. Public meetings were held on November 8, 1993, in Long Beach,
CA and on November 15, 1993, in Silver Spring, MD. The comment period
closed on November 29, 1993.
Comments and Responses
During the 45-day comment period, NMFS received several hundred
letters and photocopied form letters from the general public, all but 4
of which were in opposition either to the detonation of explosives in
the SCB or to the proposed regulations. Most of these comments did not
address the contents of the Navy's application, the proposed
regulations, or the EA. Instead, the commenters stated their opposition
to the Navy's proposed activities because there would be a loss of
marine life; because they believed aerial surveys were inadequate; and
because they believed there would be an adverse impact on pregnant gray
whales. In addition, NMFS received approximately 75 letters or hearing
statements within the comment period that substantially discussed the
issues and science upon which the proposed regulations were based.
Concerns Relating to the MMPA
Comment: The majority of the letters received expressed opposition
to the Navy's detonation of explosives off the Channel Islands and
urged NMFS to deny it the authorization to conduct these tests.
Response: The Navy conducts ship shock tests under the authority of
the National Defense Authorization Act. The Navy does not require NMFS
authorization to conduct these tests. However, under the MMPA, the
taking of marine mammals is prohibited unless authorized by exemption
or permit. Since there is a possibility that marine mammals may be
unintentionally taken incidental to the ship shock trials, the Navy
applied to NMFS for a small take authorization under section 101(a)(5)
of the MMPA. Thus, it is the taking of marine mammals incidental to the
Navy's ship shock tests that NMFS is authorizing.
Comment: One commenter believed that section 101(a) of the MMPA,
under which the Navy is seeking permission for an unintentional take,
is not appropriate for the Navy's purposes, as it was written to allow
for indigenous groups to fish for subsistence. Others believe the MMPA
is to protect marine mammals and that no takings under a LOA should be
authorized.
Response: NMFS does not agree. Section 101(a)(5) of the MMPA was
enacted in 1981 specifically to provide a means to authorize incidental
takes in connection with legitimate maritime activities other than
commercial or subsistence fishing. Prior to 1981, these incidental
takes were prohibited by the MMPA moratorium on taking and any such
takings were subject to prosecution under the MMPA.
Negligible Impact/Small Take
Comment: Commenters stated that NMFS cannot make a finding of
negligible impact unless the impact is small, and of little
consequence. Also, if the potential effects would be significant, NMFS
cannot make a finding of negligible impact.
Response: Under NMFS' regulatory definition (50 CFR 228.4), a
negligible impact is an impact resulting from the specified activity
that cannot reasonably be expected to, and is not reasonably likely to,
adversely affect the species or stock of marine mammal through effects
on annual rates of recruitment or survival. The 1986 amendments to the
MMPA altered the previous standard for determining negligible impact.
Prior to the 1986 amendments, the taking from the impact had to be ``so
small, unimportant, or of so little consequence as to warrant little or
no attention.'' However, after the 1986 amendment, NMFS adopted the
definition of negligible impact set out in the Senate's Section-by-
Section Analysis (132 Cong. Rec. S16305, October 15, 1986). Section
101(a)(5) of the MMPA clearly indicates that some level of adverse
effects involving the take of depleted marine mammals can be authorized
so long as the impact is negligible.
Comment: Several commenters stated that the taking of 1,917 marine
mammals annually does not represent a ``small number.'' Another
commenter considered the requested take to not have a ``negligible
impact.'' This commenter and several others also state that an
incidental take exceeding 9,600 marine mammals over the 5-year period
is not small.
Response: As noted in the EA, because not all species of marine
mammals would be expected to be found within the vicinity of a test
site during any particular test, the take estimates should not be
considered additive for the purposes of determining whether the
incidental take is small. The MMPA requires NMFS to authorize
incidental takes on a species/stock basis based upon the best
scientific information available. Therefore, even though it is
extremely unlikely that more than a few species/stocks would be present
at any one time in the offshore waters of the SCB, authorizations must
be made on a species basis.
In addition, because NMFS and the Navy cannot know in advance which
of these species would be within the SCB at the time of a test, the
Navy found it necessary to design its request as though all species/
stocks recorded as inhabiting the offshore waters of the SCB would be
within the safety zone, even though the probability of that happening
is considered extremely remote.
For that reason, as noted in the EA, NMFS considers the taking
request (i.e., 1,917 marine mammals) to reflect a ``worst-case
scenario.'' This is also true for the total taking over 5 years; the
statutory requirement is for a determination that the total taking
(over the 5-year authorization period) would have a negligible impact
(see previous response).
Comment: One commenter stated that section 101(a)(5) of the MMPA
requires [regulations regarding] the protection of rookeries. This
commenter also believes NMFS failed to consider impacts upon other
marine species. For example, the commenter stated that the EA does not
mention impacts upon the migratory routes of gray whales and other
migratory species and that it fails to ``pay particular attention'' to
these significant species.
Response: NMFS does not agree. The EA notes that the underwater
explosives detonations will have no impacts on marine mammals that are
ashore at the time of detonation; therefore, without information to the
contrary, regulations are unnecessary to protect onshore rookeries. In
addition, the best available scientific information indicates that the
requested taking will have no more than a negligible impact on the
populations of marine mammals inhabiting the waters of the SCB, their
mating grounds, migratory routes and other areas of similar
significance. The EA discusses fully the impacts on those marine
species believed to frequent the test area, including gray whales,
other marine mammals and other species. The EA indicated that no gray
whales were sighted within Area 2 and NMFS therefore concluded that no
gray whales will be killed and that only three would incur non-lethal
injuries. For the same reasons the migratory routes of gray whales will
be unaffected by the short-term impacts from the detonation itself.
Moreover, gray whales are resilient to human activities and will
reoccupy areas once the activity ceases (see 58 FR 3121, January 7,
1993), further limiting expected impacts.
Comment: One commenter stated that the MMPA requires NMFS to
prescribe regulations that restrict, among other things, ``the season
or the period of time within which animals may be taken'' and the
``manner and locations in which animals may be taken.''
Response: While the provisions of section 103 of the MMPA do not
apply for small takes under section 101(a)(5), seasonal restrictions
are viewed by NMFS as one method of reducing takes. However, there is
no scientific evidence at this time to indicate that there is any one
period of the year when marine mammals are not within the OSTR.
Although population assessment research in the SCB, currently underway,
will be reviewed to determine if seasonal restrictions would result in
lower incidental takes, because the marine environment of the SCB is
dynamic and significantly influenced by oceanographic factors such as
El Nino, this might not be practical on a long-term basis. However, the
Navy will be required to locate the areas within the OSTR that have the
lowest numbers of marine mammals and to conduct its tests within those
areas.
NMFS has specified ``the manner and locations in which animals may
be taken'' in these regulations (see regulatory text below).
Depleted Species
Comment: Several commenters noted the number of species requested
for taking that are either depleted under the MMPA or threatened or
endangered under the ESA (and should not be taken).
Response: In 1986, both the MMPA and the ESA were amended to allow
incidental takings of depleted, endangered, or threatened marine
mammals. Before the 1986 amendments, section 101(a)(5) applied only to
non-depleted marine mammals, which meant that an incidental take of
endangered or depleted marine mammals could not be authorized even if
the anticipated take would result in only negligible impacts. However,
both the MMPA and ESA now specifically provide for authorization of
such takes, so long as the requisite findings can be made. As required
by the ESA, NMFS has consulted with the Navy under section 7 (refer to
response under ``Endangered Species Act Concerns'' below for additional
information on section 7 consultation). A copy of the Biological
Opinion resulting from that consultation is available upon request (see
ADDRESSES).
Incidental Take
Comment: One commenter opposed the project because, among other
things, estimated takes presented by the Navy are calculated from
models that may be based on invalid assumptions. The commenter
continues that even though NMFS believes the takes will have a
proportionally minor impact on the large local populations of marine
mammals, hundreds, if not thousands, of animals will be harassed by the
detonations, while a sizable number will potentially be injured and
killed.
Response: The two assumptions that may not be valid were discussed
fully in the application and the EA. These are (1) that species are
distributed uniformly in space and time, and (2) that pinniped species
are in the water all year. The first assumption is discussed in the
following response and under ``Population Assessment Methodology,''
below. The latter assumption is misleading because many of these
animals will be on the beach for 1-3 months during breeding and/or
molting cycles; use of this assumption (i.e., that all pinnipeds are in
the water all the time) leads to a higher incidental take estimate, not
a lower one. The negligible impact determination under section
101(a)(5) of the MMPA was discussed above.
Comment: Two commenters were concerned that the distribution of
marine mammals was difficult to predict because marine mammals exhibit
associative, or clumped distributions. This, one of the commenters
believes, could cause the incidental take number to be lower or higher
than requested.
Response: NMFS agrees. Those marine mammal species that tend
towards group association could be subjected to a higher incidental
take on a single detonation, provided their behavior also includes all
individuals in the school diving at the same time, thereby making the
entire pod or school invisible to observers. It is also just as likely
that, because of grouping or clumping behavior, during the 4-week
period for a ship shock trial, random distribution of the school(s)
would mean that this species would not be within the safety zone at the
time of testing, and therefore not subject to take. However, should the
annual taking authorization for any species be reached, then any future
takings would be considered to be in violation of the LOA, the
implementing regulations and the MMPA.
Comment: On a related issue, one commenter questioned whether it
was a ``conservative approach'' to estimate mysticete (baleen whales)
abundance (from which incidental take estimates are calculated), by
using ``California-wide estimates and `scaling' them to the focal
area.'' This commenter also questioned the incidental take calculations
for California sea lions, since the females and young apparently remain
in the area year-round.
Response: NMFS believes the calculations for mysticete abundance is
a conservative approach. As noted in the EA, during aerial surveys in
the winter/spring period, blue whales were the only mysticete species
observed within Area 2 (i.e., the OSTR). Based upon this observation,
an incidental take authorization for mysticetes should include only
blue whales. However, because of the migratory nature of mysticetes, a
conservative approach was taken, which was to request additional
mysticete species based upon the method mentioned by the commenter.
While California sea lions are the most abundant pinniped species
in the SCB, because they are more likely to remain closer to islands
and the coastline, fewer are expected to be in the area of the test.
Therefore, fewer animals are anticipated to be incidentally taken.
Comment: One commenter questioned the calculations for incidental
take of northern fur seals because the EA stated that the species
shared similar attributes with northern elephant seals.
Response: The similar attributes northern fur seals share with
northern elephant seals for the purposes of calculating the
effectiveness of mitigation only, were the extended diving capability
and the likelihood for northern fur seals to remain in the area most of
the year.
Comment: One commenter was concerned that takes by physical
harassment is not defined, that harassment parameters are based upon
tests on humans in an air environment, and the relationship between
avoidance behavior caused by aircraft and that of the detonation. This
commenter (and others) was also concerned that marine mammals would not
be detectable from the air, making the incidental take tables suspect.
Response: The commenter is correct that a definition for physical
harassment has not been provided and that human volunteers have been
used for testing the effects of explosives in the water (not in the air
as the commenter stated)1 in order to determine the parameters for
physical harassment. Physical harassment of cetaceans due to tactile
``stings'' from the shockwave accompanying detonations has been
inferred from studies with humans. This inference seems plausible given
studies on dolphin skin sensitivity where the authors2,3
concluded that ``the most sensitive areas of the dolphin skin (mouth,
eyes, snout, melon and blowhole) are about as sensitive as the skin of
human lips and fingers.'' Skin sensitivity on pinnipeds and large
whales has not been tested. Therefore, until tests can be conducted to
determine the overall sensitivity of the skin of marine mammals, NMFS
and the Navy have made the assumption that both humans and marine
mammals have similar tactile sensitivity in the water.
\1\ The reference for human testing in the EA was in error. The
correct citation is as follows: Christian, E.A. and J.B. Gaspin.
1973. Swimmer safe standoffs from underwater explosions. Navy
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Science Assistance Program Project No. PHP-11-73.
\2\ Ridgway, S.H. and D.A. Carter. 1993. Features of dolphin
skin with potential hydrodynamic importance. IEEE Engineering in
Medicine and Biology: 83-88.
3 Ridgway, S.H. and D.A. Carder. 1990. Tactile sensitivity,
somatosensory responses, skin vibrations, and the skin surface
ridges of the bottlenose dolphin, Tursiops truncatus pp 163-179 IN:
Sensory Abilities of Cetaceans. J. Thomas and R. Kastelein (eds)
Plenum Press, N.Y. 710 pp.
In another rulemaking, NMFS has proposed a new definition of
``harass'' (58 FR 53320, October 14, 1993) at 50 CFR 216.3. Harass is
proposed to mean, under the definition of ``take'' in the MMPA, ``an
intentional or negligent act or omission that results in, an injury to
a marine mammal, a disruption in the behavior that a marine mammal was
exhibiting prior to the act or omission, or a significant effect on the
normal behavioral patterns of a marine mammal, including, but not
limited to, breeding, feeding, sheltering, or migration patterns.''
This definition, if implemented in that rulemaking, will apply also to
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these small take regulations.
As stated in the application, for reasons of safety, aircraft
cannot be airborne at the time of detonation and will need to leave the
area approximately 3 minutes prior to detonation. Therefore,
``avoidance behavior'' by marine mammals, unfortunately, will not be
directly observable from the air. Harassment takes will be calculated
indirectly as those animals detected within the 3-nm post-test search
zone, but outside the area wherein the test is considered to have
resulted in death or injury.
NMFS and the Navy recognize that some marine mammal species will be
difficult to detect from the air and that some injurious and/or lethal
takes may occur even with the mitigative measures being implemented to
reduce takes. The ability of aerial observers to detect these species
has been taken into account when calculating incidental take levels
(refer to Table 14 and accompanying text in the EA; also see
``Mitigation'' responses below).
Comment: One commenter believed that it was unclear whether all
marine mammals will be regarded as ``may have been harassed'' if they
are found within the safety zone subsequent to a test. This commenter
also wanted NMFS to clarify the relationship between danger, shock, and
safety zones and to specify the size of the safety zone in the final
rule.
Response: Marine mammal scientists will categorize marine mammals
detected within a search area of approximately 3-nm radius of a 10,000-
lb charge detonation according to whether they are: (1) deceased, or
severely injured and likely to die; (2) ``injured'' but not likely to
die; and (3) harassed. If the marine mammal is believed to have been
within approximately 1 nm of the test site at the time of detonation,
it will be listed as either dead or seriously injured; ``injured, but
not seriously, if outside 1 nm but within approximately 1\3/4\ nm, and
``harassed'' if outside 1\3/4\ nm but within the 3-nm search area. NMFS
notes that counting all marine mammals observed within 3 nm of a test
site should account for all incidental takes, since outside the
monitoring area, the 160 dB level for the onset of harassment takes
will be found only at a significant depth. The LOA will specify the
conditions for categorizing marine mammals, and, among other things,
the size of the safety zone for each detonation weight. The final rule
has been written to clarify terms.
Comment: One commenter noted that provision is made in the proposed
regulations for altering the test procedure if marine mammal fatalities
or injuries are detected. The commenter feels that if the consensus
among marine biologists is that harassment occurs beyond the bounds of
the safety zone * * *, this should also be justification for altering
the test procedure.
Response: Theoretically, physical and acoustic harassment may occur
outside the 2-nm safety zone (refer to the Navy application for
information). However, because of shot geometries, the amount of ``safe
water'' at the water surface is closer to the detonation point than the
perimeter of the safety zone. For this reason, NMFS believes that the
3-nm post-test survey zone will include all marine mammals ``harassed''
by the shot. NMFS will continue to monitor ship shock tests to
determine whether modifications to the procedure, the regulations or
the monitoring program will result in a decrease in marine mammal take,
including takes by harassment.
Comment: One commenter noted that the application presents test
data versus model predictions for lung injury (Table 7) and because
marine mammals vary greatly in size and volume of air spaces, fat
content, and other things, fixed models are problematic in describing
lethal or injurious effects to marine mammals.
Response: Absent data from experimental testing on live marine
mammals (or other proxy animals) for the larger explosive charges, the
model predictions are the best scientific data available and have been
used by NMFS and the Navy for their calculations of incidental take.
However, it should be noted that figures 11 through 15 in the
application show the calculated range for the onset of slight lung
injury as a function of both the marine mammal weight and the explosive
charge weight. Figure 11 shows that the larger the mammal, the closer
to the detonation site the animal needed to be in order to incur
injury. The Navy used a marine mammal weighing 110 lb (50 kilograms
(kg)) to calculate the safety range necessary to preclude injury to
marine mammals.
Comment: The low frequency (below 300 Hz) of the detonation
acoustic signal has been determined as being too low to harass any
odontocetes (i.e., toothed whales). The commenter stated that only
limited data are available on the effect of low frequency sound on
odontocetes, and because the data available are for one or two species
(to the commenter's knowledge), can NMFS therefore make such a sweeping
assumption?
Response: The best scientific information available indicates that
odontocete cetaceans cannot hear well in the frequencies emitted by the
explosive detonation. Additional evidence indicates that they also may
not be able to hear the pulse generated from underwater detonations of
even the largest charges because it is very brief (ca. 0.05 sec).
However, because odontocetes and pinnipeds are considered to be
``taken'' by physical harassment already, whether they also hear (and
are thereby acoustically harassed) the explosion would not add
significantly to the take estimates.
Comment: One commenter wanted to know how many Navy ships and
planes would be in the area at the time of detonation and afterwards
and whether this activity might affect marine mammals, seabirds,
turtles, fish, and other marine life.
Response: The number of Navy vessels and aircraft that would be
involved in the exercise will depend upon their specific requirements
for the ship shock trial. The effect of these vessels on marine life,
including marine mammals, would be expected to be negligible and likely
no more intrusive than that caused by commercial and other vessels
using the nearby Route 2 ship traffic lane into Los Angeles/Long Beach
(approximately 4.6 percent of the approximately 19,800 round trips
annually by non-commercial fishing marine vessels into Los Angeles/Long
Beach use Route 2).
There may be some inadvertent harassment of marine mammals by
marine mammal surveillance aircraft during the various surveys for
mammal-free areas for the detonation site. However, because these
search efforts are under the direction and control of NMFS Southwest
Fisheries Science Center (SWFSC) and are for the purpose of avoiding
injury or death to marine mammals, this activity is being covered under
their scientific research permit (Permit Number 873; P77#50). In
addition, there might be some harassment takes during the post-survey
monitoring and recovery efforts. This latter program is authorized by
the regulations (50 CFR 228.55(d)(2)) and does not require a separate
permit under the MMPA.
Comment: One commenter wanted the Navy to recalculate its
incidental take request by using the upper 95th percentile of the
population abundance estimates instead of the mean of those estimates.
This, the commenter believes, would avoid the possibility of the Navy
exceeding its authorized take limits and needing to cease operations in
order to request the additional takes.
Response: Such an amendment to the Navy's application would
inordinately delay the scheduled ship shock trial. In addition, because
of the very conservative approach to estimating the number of
incidental takes, it is considered extremely unlikely that explosives
detonations in the OSTR will result in incidental take levels
approaching the requested level.
Scientific Evidence
Comment: Commenters stated that NMFS did not use the best available
scientific evidence available and that the data used were dated because
they were over a decade old. Two commenters referred to ``recent
scientific evidence'' showing that sound pressure waves seriously
impact marine life.
Response: NMFS uses both the MMPA and the ESA standard of ``the
best available scientific and commercial data'' to determine the
impacts of activities on marine mammals. Although NMFS would like to
have more baseline data on marine mammals within the SCB and more
information on the effects of large-charge detonations on marine life,
in particular on marine mammals, NMFS based its decision on the best
information available, including NMFS marine mammal assessment surveys
conducted in 1991 and 1992 and Defense Department research on the
effects of explosions on marine life. NMFS is not aware of any more
recent scientific evidence that would be contrary to its findings and
two commenters did not provide citations or references to any new
information. Also, without knowledge of scientific evidence contrary to
research used in its determination, NMFS is confident that it used the
best scientific and commercial data available in making its
determination. However, monitoring is a requirement of the regulations
and for a continuation of the LOA. The results from the monitoring will
be used to verify (or refute) the findings made by NMFS, and if new
evidence or data indicate that the impact on marine mammals is more
than negligible, NMFS will reassess its findings and take appropriate
action as mandated by section 101(a)(5)(B)(ii) of the MMPA.
Comment: The EA, upon which the proposed regulations rely, fails to
meet the standards mandated by the MMPA because NMFS failed not only in
obtaining the best scientific evidence available, but failed in using
even the limited evidence available as a basis for a reasoned
conclusion. For instance, the Navy has indicated to NMFS that tests
will not be conducted if marine mammals are detected within the testing
zone * * * and NMFS concluded * * * that such efforts will minimize
impacts to marine mammals, despite knowing that many marine mammals
will not be visible by aerial survey. The commenter continues that the
Navy, given its years of experience under the seas, should be able to
detect marine mammals.
Response: NMFS used the best scientific information available in
making its assessments and determinations (see previous response). As
stated in the EA, the evidence indicates that some marine mammal
species may not be observed by aerial surveillance during pre-test
overflights (because they are submerged at the time). Since detonation
of the explosive charge will not take place if even a single marine
mammal (or sea turtle, fish school or seabird flock) is observed within
the safety zone, it is the possibility that some marine mammals would
be missed during pre-test surveys which makes a small take
authorization necessary. The scientific basis for assessing the
likelihood of marine mammals being taken was fully discussed and
documented in both the EA and the Navy application.
For a response on the Navy's ability to detect marine mammals,
refer to the responses related to ``Monitoring'' below.
Comment: One commenter was concerned because the information used
by NMFS in making its finding of negligible impact was based on
theoretical calculations and not on actual tests.
Response: NMFS shares the concern of the commenter, but obviously,
conducting tests on the effects of explosives on live marine mammals
would be controversial and an authorization may be difficult for a
scientific research applicant to obtain under the MMPA. For that
reason, the Navy bases its impact assessments on theoretical
calculations, supported by test data using small charges on alternative
test animals. NMFS will closely monitor ship shock tests and review the
reports required under these regulations and the LOA to determine
whether the basis for the finding of negligible impact continues to
exist. If a negligible finding can no longer be made, NMFS is required
under sections 101(a)(5) (B) and (C) of the MMPA to withdraw or suspend
the authorization to take marine mammals.
Surveys
Comment: Several commenters criticized the survey effort claiming
that some experts consider 800 ft (266 m) to be too high for aerial
surveys to observe marine mammals and that vessel surveys are
potentially an unnecessary use of funds. One commenter wants to see the
survey effort placed in context with the surrounding area.
Response: The aerial and vessel surveys were conducted by NMFS as
part of its marine mammal assessment program under section 114 of the
MMPA. Since these surveys were for the entire California coast and not
restricted to the SCB, they were ``in context.'' The data from these
surveys were used by the Navy in its application. The survey design
methodology uses an aircraft height of 700 to 800 ft (233 to 266 m)
which is the height commonly used for marine mammal surveys.4
Without evidence to the contrary, NMFS continues to believe that a
height of 700 to 800 ft (233 to 266 m) is appropriate, as lower
altitudes may result in missed animals due to the reduced time for
observation from being closer to the water (higher ground speed).
Surveys to determine areas of low marine mammal abundance and pre-
and post-detonation surveys do not need to extend beyond the OSTR. To
survey greater distances than necessary would reduce the amount of time
available to survey the impact area.
Population Assessment Methodology
Comment: One commenter considered NMFS' determination of impacts
upon affected species to be ``arbitrary and capricious'' because NMFS
``admitted'' that the density of many species is unknown. Another
believed the impact of the action is unknown because the density of the
species in the area is unknown. The first commenter also stated that
density studies are necessary before NMFS may proceed.
Response: It is unclear how these commenters arrived at this
conclusion, as Table 14 in the EA gives the calculated density for each
species in the SCB. Population estimates for the SCB were made from
aerial and vessel surveys of the California coast in 1991 and 1992.
Additional surveys were conducted in 1993 in the SCB and are currently
being analyzed. However, marine mammal density is not static, it can
vary due to school size, environmental conditions, migratory patterns
and food source distribution, making it difficult to predict where in
space or time an individual or a group of animals will occur. For those
reasons, when calculating the number of animals expected in the test
range, an assumption is made that distribution is uniform, which it is
not. This has been discussed previously in a related comment under
``Incidental Take'' above. (Also, refer to similar comment under
``National Environmental Policy Act Concerns'' below). The assumptions
specific to each marine mammal group is given in the EA.
Comment: One commenter was concerned that 1992/93 was an anomalous
year due to El Nino and its effects upon the distribution and abundance
of marine mammal species.
Response: Aerial and ship marine mammal surveys, upon which
incidental take estimates are based, were conducted in 1991 and 1992.
Additional survey work to determine areas of low marine mammal
abundance for the ship shock tests were conducted during 1993.
Distribution and abundance estimates from these studies, in general,
agree with previous studies, with some exceptions, which were noted and
fully discussed in the EA.
Mitigation and Monitoring
Comment: Many commenters stated that the proposed mitigation
measures were inadequate. Many were concerned that aerial surveys would
be unsuccessful in detecting marine mammals because they spend 90
percent of the time submerged.
Response: NMFS believes the mitigation measures required by the
rule are adequate to protect marine mammals and reduce incidental take
to the lowest level practicable. While aerial surveys will have
difficulty detecting those marine mammal species that spend a
significant portion of the time submerged, the regulations prohibit
detonations if even a single marine mammal (or sea turtle, sea bird
flock or fish school) is sighted within the safety zone by aerial
survey. The small take authorization is for the unintentional take of
marine mammals not sighted by aerial survey. Refer to the EA for a
detailed discussion on how the small take estimates were made.
Comment: Some commenters suggested additional (or alternative)
methods for detecting marine mammals during surveys, especially for
deep-diving species, such as sonobuoys and hydrophone arrays. One
commenter also suggested, if possible, using sound to cause some
species to surface so they can be seen or to leave or avoid the test
area.
Response: Although the Navy proposes to employ hydrophone arrays at
several locations to record the impulse pressure wave resulting from
the ship shock trial, these hydrophones will not be capable of
recording marine mammal vocalizations. Also, because the shock trial is
a mobile exercise, and because it would be necessary to triangulate on
vocalizing marine mammals in order to determine whether or not they are
within the vicinity of the shock trial, this suggestion is not viewed
as being practicable at this time.
The practicality of using ``scare charges'' (smaller explosive
charges) or high decibel noise devices in order to scare marine mammals
from the area of testing is equivocal at best. There is insufficient
evidence to give assurance that marine mammals would leave the area and
not be attracted to the site.
Comment: One commenter considered the 2-nm safety zone to be
inadequate, believing that injury or harassment could occur at
distances greater than 2 nm. The commenter also considered ``Area 1''
and ``Area 2'' to be artificial and anthropocentric. Other commenters
were concerned that the effects could extend to great distances, for
example physical harassment could occur 22,000 ft (6,706 m) from the
detonation and acoustic harassment up to 121,000 ft (37,039 m) for a
10,000-lb (4,536 kg) charge. One commenter was concerned that these
distances would cause an impact very close to the nearest islands.
Response: NMFS considers the 2-nm safety zone to be adequate to
protect marine mammals from injury and death. As indicated in the EA
(Table 12) for the 10,000-lb (4,536 kg) charge, the 2-nm (i.e., 12,150-
ft (3,704 m)) safety zone is greater than the calculated limit for
minimum eardrum injury (9,400 ft (2,865 m)).
As noted in Table 12, while physical harassment could occur up to
22,000 ft (4.2 nm) from the detonation, as indicated in the
application, the safety zone exceeds the maximum horizontal ranges for
physical harassment for mammals at the shallow depths; however, for
mammals at depths greater than 200 ft (67 m), there is a possibility
for physical harassment beyond the safety zones, since the surface
reflected relief wave arrives later at these depths for these ranges.
Refer to the application for a detailed description of sound source
levels in the marine environment.
For acoustic harassment, based upon the best available information,
pinnipeds and odontocetes are unlikely to be subjected to acoustic
harassment due to the very low frequency and extreme brevity of the
sound associated with detonations. For mysticetes, the range for the
160 dB re 1 uPa (the level above which avoidance behavior is believed
to occur) increases from 86,000 ft (14.2 nm) at a water depth of 50 ft
(15 m) to 121,520 ft (20 nm) at a depth of 1,000 ft (305 m). Therefore,
while some mysticete cetaceans may be acoustically harassed if at these
depths, it is unlikely that any impacts will accrue to the coastal zone
of the SCB because of the distance from the detonation site, the
shallow depths of the coastal zone and the masking effect of ambient
noise (e.g., surf, wind, rain and/or distant shipping and other
industrial activity noises).
Area 1 and Area 2, while artificial, were used only for estimating
the abundance of marine mammals within the test area. Refer to the EA
and/or the Navy application for additional description of the
methodology used in determining abundance.
Comment: One commenter was concerned because there was no method
indicated that would assess the extent and/or severity of acoustic (and
other) injury incurred by marine mammals in the test area. The
commenter states that these types of injury would be very difficult to
assess from aerial or shipboard reconnaissance. For many of the mammals
that would be affected, acoustic injury could have a profound impact on
their ability to navigate and on their ability to interact with other
animals.
Because of the possibility that acoustic injury could have
significant impact, the commenter believes that there should be a more
comprehensive plan for assessing the extent of acoustic injury and its
impact on marine life as a result of this project.
Response: While generally agreeing with the comment, NMFS disagrees
that a more comprehensive plan is necessary. Three types of injuries
have been identified for marine mammals from ship shock trials. These
are: (1) Lung injuries; (2) gastro intestinal injuries; and (3) eardrum
(rupture) injuries. As determining the type and extent of these
injuries would require capturing and either sacrificing the animal or
subjecting the animal to long-term captive observation, and as both of
these are unacceptable to NMFS unless the animal requires euthanization
or immediate veterinary care, the Navy and NMFS will utilize less
intrusive methods for determining incidental takes, including, but not
necessarily limited to, photo-identifying ``injured'' marine mammals,
and necropsies on stranded and other dead marine mammals to determine
the probable cause of death and its relationship if any, to the trial.
However, because even minimal eardrum injury is not expected to occur
beyond 9,400 ft (1.5 nm), few marine mammals are expected to be
impacted.
Comment: Commenters were concerned that the post-test surveys would
not be able to detect all marine mammals (and fish) that are killed or
seriously injured during ship shock trials, because animals might sink
and not rise immediately to the surface. One commenter suggested post-
detonation surveys continue for up to 1 week after the trial to search
for these animals and to assess oceanographic current patterns to
determine search effort. One commenter recommended that monitoring
should be conducted over the long-term to document whether there is a
chronic effect from the ship shock trials.
Response: NMFS agrees with these concerns, noting that a ship shock
trial is a series of one to six (usually four) charges set off
approximately one week apart. Therefore, a project and its monitoring
program are likely to continue for up to six weeks between the first
and last detonations. As explained in detail in the application (refer
particularly to Figure 31), post-detonation surveys will begin
approximately 30 minutes after each detonation. The survey effort will
be repeated for each scheduled test until the shock trial is completed.
The 48-hour advance pre-detonation marine mammal search survey will
also serve as a final post-test follow-up survey for the previous test.
A post-trial follow-up survey will be conducted approximately 1 week
after the last test of the shock trial. In addition, the Marine Animal
Recovery Team (MART) will be required to make every effort to document
and examine those injured or dead marine mammals (if any) that are
moved outside the test area by currents subsequent to a detonation.
Finally, NMFS will monitor the stranding records for evidence that the
ship shock trials are having more than a negligible impact on the
marine mammal species and stocks in the SCB. The monitoring
requirements for marine mammals will be specified in the LOA.
Although deceased marine mammals that sink will return to the
surface within a few days of the detonation, it is unlikely that
subsurface fish species would be detectable during post-test monitoring
and would likely be consumed by predators before surfacing. Sea turtles
will also be difficult to detect once they sink.
Comment: Several commenters noted that the course of action was
unclear, should a marine mammal be lethally taken.
Response: As the NMFS and the Navy expect few marine mammals to be
killed during ship shock trials, each lethal take will be reviewed by
NMFS scientists, MART personnel and the U.S. Navy to determine whether
similar takes can be prevented in future tests. However, until ship
shock tests take place and incidental lethal takes are documented, the
actions NMFS and the Navy will take to reduce potential future lethal
takes cannot be determined.
Comment: One commenter, while approving of NMFS' participation in
post-test monitoring, recommended the final rule prohibit Naval
reconnaissance of the test area, by sea or air, until after the
reconnaissance by NMFS and retrieval by MART are completed.
Response: NMFS believes that this recommendation is neither
practical nor warranted. The ship shock test is a complicated combat
simulation that requires the participation of several Navy aircraft and
ships. Therefore, the Navy cannot be prohibited from the test area,
although it will likely have moved away from the detonation site by the
time the post-test monitoring begins. Moreover, it is not entirely
clear from the comment the purpose behind the requested prohibition,
since the Navy will have an authorization for incidentally taking
marine mammals during the exercise.
Endangered Species Act Concerns
Comment: The Navy violated the ESA by its failure to request a
``biological opinion'' detailing how the proposed detonation will
affect endangered and threatened species. Several commenters believe
that the proposed action should be denied because of this
noncompliance. One commenter wanted to review and comment on the
biological opinion.
Response: The preamble to the proposed rule noted that NMFS will be
consulting with the Navy under section 7 of the ESA. The Navy is
required to consult under section 7, and it generally is NMFS policy
that formal consultation should be initiated at the earliest
opportunity, in this case, since NMFS would be conducting formal
consultation with both the Navy and itself (because the proposed
issuance of a small take authorization is a Federal action),
consultation was not initiated until after the proposed rule was issued
on October 15, 1993. That consultation has been completed. A copy of
NMFS' Biological Opinion and Incidental Take Statement is available
upon request (see ADDRESSES). As noted previously, the requirements for
mitigation, as well as monitoring, in conjunction with other existing
regulations, are expected to provide adequate protection for listed
species.
Although biological opinions issued under section 7 are available
to the general public, they are not subject to review and comment.
National Environmental Policy Act (NEPA) Concerns
Comment: Several commenters at both the public meetings and in
written comments believed that NMFS should prepare a draft
environmental impact statement (DEIS) rather than an EA before it
issues final regulations.
Response: Since NMFS must analyze a request for a small take
authorization to determine whether the proposed marine mammal taking
has only a negligible impact on species or stocks of marine mammals and
does not have an unmitigable adverse impact on the availability for
subsistence uses, NMFS assessed many of the potential environmental
impacts that are also assessed under NEPA. Through this process, and
during preparation of an EA, NMFS determined that the proposed activity
(i.e., issuance of regulations and an LOA) will not significantly
affect the quality of the human environment and made a ``finding of no
significant impact.'' If an EA results in this finding, no additional
documents are required by NEPA. The detonation of the explosives by
itself does not necessarily invoke a ``significant'' impact finding.
However, the Navy must also satisfy NEPA prior to undertaking any
action that might impact the human environment.
The following 8 comments relate specifically to NEPA concerns
raised by one or two commenters (but may also have been mentioned by
others). One of these commenters submitted detailed comments to support
its position that the proposed action will have a ``significant''
impact under NEPA and therefore requires a DEIS. However, NMFS does not
concur with the commenter's interpretation that CEQ regulations state
that certain factors (which follow and are evaluated below) are
``critical'' for making a determination relating to the ``intensity''
of the action. CEQ regulations (40 CFR 1508.27) require these factors
``to be considered'' in evaluating the intensity of the proposed
action. As discussed below, these factors were given consideration by
NMFS.
Comment: Adverse impacts far outweigh any beneficial impacts (40
CFR 1508.27(b)(1)).
Response: According to the Navy, ship shock testing, while possibly
having a short-term impact on the marine environment, also has a
beneficial impact in ensuring the health and safety of seamen onboard
the Nation's naval vessels. In its EA, NMFS found that the proposed
activity (i.e., issuance of regulations and a LOA) will not
significantly affect the quality of the human environment and thus made
a ``finding of no significant impact.''
Comment: The EA fails to address the degree to which the proposed
action affects the public health and welfare. The commenter was
concerned that, because a variety of potentially harmful compounds from
the explosive could persist in surface pools for 30-60 minutes after
detonation, this could result in subtle and long-term effects on marine
mammals and birds (40 CFR 1508.27(b)(2)).
Response: NMFS disagrees. First, as stated in the EA (page 47), and
as provided for under CEQ regulations (40 CFR 1502.21), NMFS has
incorporated by reference the Navy EA written in 19905. While
identifying that document more clearly on that page may have improved
the EA, the Navy EA was cited in the references. That document
described in some detail the potential impacts on the human environment
from explosives detonation. NMFS incorporated this information by
reference but did not include discussion in its EA, that part of the
Navy EA that discussed impacts on humans, because NMFS was of the
opinion that the proposed small take authorization would not have an
impact on public health or safety, and was therefore not relevant.
However, because NMFS' proposed action may affect the environment that
marine mammals inhabit, NMFS' EA does note that while 100 percent of
the solid material and approximately 10 percent of the gases would be
contained in the water pool created by the explosion (an area 10.8 X
10\7\ ft\3\ (3.06 X 10\6\ m\3\) for the 10,000 lb (4,536 kg) charge),
the concentrations shown are below the levels considered harmful for
fish and would not be expected to pose a threat to marine mammals after
the stabilization times (53 minutes for 10,000 lb (4,536 kg) charge).
The commenter's concern however, is apparently on the impact to marine
mammals and other marine life entering the surface pool before
stabilization (i.e., less than 53 minutes after detonation). Assuming
these marine mammals were not within the 2-nm safety zone at the time
of detonation, NMFS believes that the likelihood of this occurring is
remote and if it happens there will be little or no effect, either
singly or cumulatively, from the chemical components of the surface
pool. As noted in the Navy EA, the chemical components (primarily
composed of gases) would be thoroughly dispersed, with no possible
buildup or cumulative effect, and become indistinguishable from other
trace level constituents of the ocean shortly after detonation. The
only solid particles are carbon and aluminum oxide. Carbon particles
will tend to float on the surface and move with the pool while aluminum
oxide particles, a naturally occurring component of seawater due to the
weathering of rock, will probably settle to the bottom over a large
area.
---------------------------------------------------------------------------
\5\Naval Air Station, Pt. Mugu. 1990. Environmental Assessment
for the Ship Hardening Program Tests to be Conducted on the Sea Test
Range of the Pacific Missile Test Center, Ventura County,
California.
---------------------------------------------------------------------------
Post-test monitoring will observe and record any incidents of
marine life entering the surface water pool, which will be dye-marked
and visible from the air.
Comment: The testing site is located near an ecologically critical
area (with unique characteristics)(40 CFR 1508.27(b)(3)).
Response: While the SCB can be considered an ecologically important
area that contains ``unique characteristics'' including the Channel
Islands Marine Sanctuary, because the area surrounding the detonation
site will be in an area of low marine mammal abundance (and presumably
other marine life); off the continental shelf (on or near the Patton
Escarpment); approximately 50 nm from the nearest boundary of the
sanctuary; and, although in productive waters, not in a major upwelling
(nutrient-rich) or commercial fishing area, NMFS believes that the
small take authorization will not have an impact on the SCB and its
resources (including the Channel Islands National Marine Sanctuary)
significant enough to require a DEIS.
Comment: The effects of the proposed detonations are ``highly
controversial'' and involve uncertain, unique and unknown risks to the
environment (40 CFR 1508.27(b) (4) and (5)).
Response: As required by CEQ regulations, NMFS considered ``the
degree to which the effects (of the proposed action) on the quality of
the human environment are likely to be highly controversial'' as a
factor in determining whether the intensity of the proposed action
would make it ``significant.'' Because NMFS' review of the best
available scientific information led to the conclusion in the EA that
the proposed detonations will have a negligible impact on marine
mammals and other marine resources, the fact that the commenters did
not provide any new or contradictory scientific information regarding
such impacts reaffirms NMFS' conclusion that there is no real
scientifically-based controversy about the effects of the proposed
action sufficient to change NMFS' conclusion that the proposed action
would not have a significant impact on the human environment such that
preparation of a DEIS would be warranted.
While the Navy's ship shock testing may be opposed by many members
of the public, much of that objection is due to philosophical
differences of opinion rather than objective scientifically- or
factually-based controversy over what will be the effects of such
testing on the environment. NMFS believes that the rulemaking shows
that the issuance of a small take authorization to the Navy would not
have effects (intensity) that are ``highly uncertain or involve unique
or unknown risks'' significant enough to require a DEIS. In the EA and
in the Navy's small take application, the level of scientific
uncertainty has been substantially lessened by incorporating
scientifically acceptable environmental prediction methods as
necessary. In addition, mitigation and monitoring measures incorporated
into the LOA and regulations substantially moderate potential impacts
from ship shock testing.
The commenter states that ``among those who are criticizing the
proposed detonations are knowledgeable scientists with years of
experience studying affected species.'' However, other than those
scientists submitting comments that have been addressed in this
section, because independent scientists neither submitted significant
comments addressing the science upon which the small take authorization
is based when information was requested during the June 1993 comment
period, nor as a result of the EA and proposed rule, NMFS is unaware of
either the reasons for their purported criticism or contrary scientific
evidence to support their position.
Comment: The same commenter, noted that by granting the Navy's
permit application, NMFS will establish a (dangerous) precedent for
future action with significant effects. The commenter was concerned
that future applications would require no more than was done for this
application even though mitigation efforts are highly questionable as
to effectiveness and that there would be no incentive for the Navy to
develop more accurate detection methods (40 CFR 1508.27(b)(6)).
Response: NMFS disagrees with this assessment. The mitigation
measures (survey for low animal abundance areas, aerial surveys, go/no-
go determination, post-detonation surveys etc.) required under these
regulations are considered adequate to detect marine mammals and other
marine life and limit incidental takings to the lowest possible number.
In addition, the ship shock test small take authorization will be
reviewed at least annually to make a determination that the taking
continues to comply with section 101(a)(5) of the MMPA. While the
mitigation measures in these regulations may seem ``questionable'' to
some commenters, practical alternative methods for detecting marine
mammals have not been recommended (see response under ``Mitigation'').
Moreover, future Navy applications for a small take authorization under
the MMPA will be judged on the adequacy of the documentation submitted,
not on previous actions, such as this one.
Comment: Certain impacts, while insignificant individually, are
significant when considered cumulatively (40 CFR 1508.27(b)(7)).
Another commenter suggested that cumulative impacts include chronic
stress, changes in migration and/or foraging patterns, impact on
particular age/size classes among others.
Response: NMFS did not review the proposed action as a 1-year
authorization; it reviewed it as a 5-year authorization period, and
therefore evaluated the cumulative impacts of the proposed activity
over 5 years. As stated in the EA, the cumulative impact on marine
mammals from ship shock tests over the 5-year authorization period of
the regulations will be negligible.
Also, ship shock testing (in combination with other military
explosives detonation projects) would not have a significant impact,
either singly or cumulatively, on the marine environment of the SCB
over the 5-year authorization period. The infrequency of the large-
charge tests and the minimal impact of the small charges are two
additional reasons for this determination.
Comment: The EA fails to adequately address the degree to which the
Navy's action will adversely affect ten endangered/threatened species
and their respective habitats (40 CFR 1508.27(b)(9)).
Response: NMFS does not concur. While ship shock testing may result
in the non-lethal injury or harassment of endangered marine mammals,
this level of incidental take will not result in the mortality of
listed marine mammals or result in jeopardizing the continued existence
of these species. (Refer to the Biological Opinion for additional
information). The estimated numbers of incidental takes are given and
assessed in the EA. Although sperm whales, because of their abundance
and deep-diving behavior, may be subject to a ``high incidental take,''
(i.e., six non-lethal injuries and 20 harassment takes if they are in
the area on each and every test) there will not be a ``high incidental
killing'' of sperm whales as the commenter states. With a California
population size of 857 and a North Pacific population size of 930,000,
these takes are considered ``small'' and will not be a significant
impact on the stock. Moreover, the OSTR has not been designated
``critical habitat'' for any listed species. Individual injured animals
would be expected to recover.
There is less information available on sea turtles in the SCB than
marine mammals, as discussed in the EA. Due to the less effective
ability of aerial overflights to detect some species of sea turtles,
the Navy admits that some sea turtles may be injured or possibly killed
during explosives detonation. However, based upon mortalities observed
in other tests in an area of presumably higher sea turtle abundance
than the SCB, and because recent research (cited in the EA) indicates
that sea turtles are less susceptible to injury from explosives than
marine mammals, few sea turtles are likely to be killed or seriously
injured. Although post-test monitoring efforts may not be totally
effective in determining impacts to sea turtles, the monitoring program
will try to determine whether sea turtles are in fact incidentally
killed and, if so, whether practical modifications are available to
improve detection and/or to reduce impacts. Also, because of the great
depth of the water at the test location, several species, such as
coastal inhabiting, bottom-feeding and coral-feeding species, would be
expected to be uncommon or rarely seen in the area. (Contrary to one
commenter's observation, even though sea turtle species are listed as
endangered or threatened, some species are sufficiently abundant in
certain areas and times to be considered more than ``rare,'' (e.g.,
offshore nesting beaches along the west coasts of Mexico and Costa
Rica)). For additional information, refer to the Biological Opinion
mentioned previously.
Comment: The proposed regulations violate the ESA and the MMPA (40
CFR 1508.27(b)(10)). The commenter states that the Navy violated the
ESA by its failure to request a ``biological opinion'' detailing how
the proposed detonation will affect endangered and threatened species
and NMFS violated the MMPA by not using ``the best scientific evidence
available.''
Response: These issues were addressed previously under ``Endangered
Species Act Concerns'' and ``Scientific Evidence.''
Comment: Several commenters stated that NMFS did not give the
proposal and the EA adequate circulation, or opportunity for public
participation. Several commenters wanted additional hearings along the
coast of California. One commenter believed that the West Coast hearing
made a mockery of public involvement because it was ``80 miles from the
affected area.'' This same commenter and another commenter stated that
``NEPA and the MMPA require public participation and hearings.'' One
commenter also noted that ``the marine scientific community should have
provided a greater role in assessing the impacts of the proposed
action.'' Another listed the names of several scientists, who were
unaware of the public hearings or that the Navy proposed to begin ship
shock trials in February 1994.
Response: NMFS disagrees with statements that the proposal was not
given adequate circulation. The application of the Navy for a small
incidental take was made available on June 7, 1993 (58 FR 31944), with
a 30-day public comment period. In addition, NOAA issued a press
release at that time, which generated several newspaper articles and
hundreds of responses. The proposed rule was published in the Federal
Register and both the rule and the EA were distributed to government,
environmental and commercial fishing organizations and to those
submitting significant comments during the June 1993 comment period. In
addition, as required by section 101(a)(5) of the MMPA, public notice
of the proposed activity and corresponding public meetings were placed
in several southern California newspapers. A press release noting the
proposed rule and the meeting times and locations was also issued. NMFS
believes that it has complied with both the spirit and the letter of
NEPA, NOAA Directives implementing NEPA, and the MMPA in regard to
public participation.
The location for the Long Beach public meeting was chosen because
it was considered central to the affected area (i.e., the SCB). Those
unable to attend the meeting were invited to submit written comments.
It is not possible for NMFS to have advance knowledge of all
individuals interested in its activities, although it is noted that
none of the individuals listed in one commenter's November 8, 1993,
testimony contacted NMFS to obtain the documentation for review or
submitted comments after being informed by the commenter of the
proposed action. In addition, at least one of these individuals
received a copy of the Navy application in June. The marine scientific
community has had sufficient opportunity to become involved in this
process.
Comment: Many commenters believe that NMFS should have made more of
an effort to locate alternative sites as required by NEPA. One
commenter believed that NMFS must evaluate the proposed site in concert
with other possible sites. One commenter asserts that NMFS has not
considered previously used sites. Another commenter believed that the
MMPA required NMFS to evaluate alternate sites to ensure the least
practicable adverse impact upon affected species.
Response: The purpose of the EA was to evaluate the impact of the
proposed issuance of a small take authorization to the Navy to
incidentally take marine mammals within the OSTR. Under that Federal
action, NMFS identified two alternatives, in addition to the proposal.
The alternatives to the proposal were to issue the LOA without
mitigation requirements and to not issue a small take authorization,
the no action alternative. Alternatives such as alternative sites or
methods were identified as being beyond the scope of the proposed
action. Because NMFS is not authorizing the detonation of explosives,
only the proposed taking of marine mammals incidental to such
detonations, NMFS is of the opinion that the site determination and
method of operation is the responsibility of the Navy (provided NMFS is
assured that there was not a practicable alternative to ship shock
testing that would result in not taking marine mammals). As stated in
the EA, if a Small Take LOA is not given to the Navy (no action
alternative), because the take was either not small or would result in
more than a negligible impact to the species, then the Navy could elect
to relocate the test site or take some other action. Refer to the
response under the ``Outer Sea Test Range'' below for additional
discussion on this topic.
Comment: One commenter claims that NMFS has not considered (as an
alternative in the EA) a reduction in the size of the proposed site.
Another wanted the Navy to not conduct tests north of 33 deg.27' N.
latitude within the OSTR.
Response: The Navy will be utilizing survey data collected in 1993
to limit the test site within the OSTR to an area with few or no marine
mammals. Current aerial survey data will be used to ``reduce'' the test
area to a site that will minimize potential impacts to marine mammals.
Arbitrarily limiting the test area to a particular corner or area of
the OSTR at this stage would be premature, and may not result in
reduced impacts to marine mammals and other marine life.
Comment: NMFS should consider such alternatives such as a reduction
in the number of detonations; the sizes of detonations; and, the period
in which detonations are allowed. Additionally, NMFS must give due
consideration to alternative forms of testing.
Response: As stated in the Navy's application, the estimated number
of large detonations is extremely conservative, and based on an extreme
worst case scenario. To ensure conservatism, the Navy multiplied its
worst case scenario by 5 (years) to determine the absolute maximum take
during the 5-year term of the LOA. It is highly unlikely that the Navy
will detonate 60 large charges during the 5-year period. However, there
is justification, although remote, for requiring up to 12 detonations
on an annual basis.
Four shots of gradually increasing severity maximizes safety,
technical benefits, and economics. Small increases in severity between
shots raises confidence in predicting the potential for unforeseen
hazards from one shot to the next. Experience, careful planning, and
examination of objectives and constraints resolved that 4 shots is the
optimum procedure for conducting a shock trial.
For a ship the size of an AEGIS-class destroyer, a 10,000 lb.
(4,536 kg) charge is necessary to produce a nearly planar shock wave. A
plane wave generates nearly uniform loading on each shot, which is
required when measuring responses from thousands of reaction points
around the ship.
At this time there is no scientific evidence to indicate that there
is any one period of the year when marine mammals are not within the
OSTR. Population assessment research in the SCB will be reviewed to
determine if seasonal restrictions would result in lower incidental
takes. If so, then NMFS would likely take actions necessary to ensure
the greatest protection to these marine mammals.
Where feasible, the Navy conducts underwater explosives tests using
computer modeling and land-based test facilities. Two contractor-
operated quarries in Virginia are used for some of the test work. In
addition, a test pond has been constructed at the Army Combat Systems
Test Activity in Aberdeen, MD. These facilities are limited to testing
small and medium size components on floating platforms. Ponds, like
those at Aberdeen and in Virginia reduce the need for testing in the
ocean. It is impossible, however, to eliminate the need for open-water
testing for programs such as full-scale ship shock trials.
Comment: One commenter believed that it would be ``better and wiser
to wait, if at all possible, until the [computer-model] technology is
perfected than to gamble so much on the current imperfections of the
[ship shock trial] technology.''
Response: As stated in the EA, the ``no action'' alternative is
unacceptable to the Navy as the ``Live Fire'' testing program is
required by the National Defense Authorization Act (10 U.S.C. 139). By
law, ships and critical components or systems constructed for the Navy
must undergo shock tests prior to service with the fleet to determine
the integrity of the structure and electronic systems that are vital to
the overall function and performance of the vessel and crew under
wartime combat conditions. While full-scale testing is minimized by the
use of laboratory tests and calculations, the Navy believes that it is
essential to have large-scale tests at sea to determine total system
response. The alternative of not testing at all would expose the ship
and its crew to its first real test under hostile fire. It is the
Navy's judgement that this is not the appropriate time nor place to
determine that a component or system fails a test. While alternatives
are theoretically possible, they have not been developed to the point
of practical application.
Other Environmental Concerns
Comment: Commenters were concerned that the area of ship shock
testing could be a feeding area for whales and/or have an impact on
marine mammal food sources or migratory routes.
Response: There is no evidence that the offshore SCB area is an
especially important area for feeding, although it is known that some
of the larger whales tend to prefer the Patton Escarpment area and may
migrate along it. NMFS review of the best available scientific
information indicates that impacts on food sources and migratory routes
however, would be minimal and would not result in a long-term impact.
Sea Otters
Comment: Several commenters were concerned about the potential for
taking California sea otters and that the Navy has not applied to the
U.S. Fish and Wildlife Service (USFWS) for an incidental take
authorization.
Response: As noted in the EA accompanying the proposed rule, an
incidental take of sea otters has not been requested because sea otters
are coastal animals found north of San Luis Obispo, CA, that prefer to
remain within a few kilometers of the coast. Those sea otters
inhabiting San Nicolas Island as a result of the USFWS' translocation
efforts are unlikely to be within the OSTR. The Navy will be consulting
with USFWS on their activity under section 7 of the ESA.
Gray Whales
Comment: Many commenters expressed concern that the detonation of
explosives may impact gray whales, especially pregnant females and
those females with calves and that the EA is in error on statements
regarding times of gray whale migration through the SCB. Many
commenters were concerned about pregnant gray whales being in the area
in February.
Response: As noted in the EA, gray whales were sighted by Forney
and Barlow (1993)6 off the SCB in the winter/spring surveys, but
not in the OSTR (i.e., Area 2); 39 percent were located in Area 1
(inshore SCB) and 61 percent were found north of Pt. Conception. In
addition, the EA notes that Jones and Swartz (1990)7 documented
gray whale occurrence around the Channel Islands National Marine
Sanctuary during January 1986 and 1987 via aerial surveys and that most
gray whales (78 percent of cow-calf pairs and 94 percent of all other
whales) were within 3 nm (5.6 km) of the islands. Animals classified by
researchers as ``calves of the season'' comprised nearly 12 percent of
the raw counts. Ninety-four percent of the cow-calf pairs were seen
east of Santa Rosa Island. It should also be noted that pregnant gray
whales are in the vanguard of the south-bound migration and, because
they give birth from January to mid-February in and near the lagoons in
Baja California, should have migrated south through the SCB by
February, the time of the proposed testing.
---------------------------------------------------------------------------
\6\Forney, K.A. and J. Barlow. 1993. Winter abundance estimates
for cetaceans along the California coast based on 1991 and 1992
aerial surveys. NMFS Doc. SOCCS 2. 29pp.
\7\Jones, M.L. and S. L. Swartz. 1990. Abundance and
distribution of gray whales in the Channel Islands National Marine
Sanctuary during the southward migration in January 1986 and 1987.
IWC Gray Whale Workshop. paper SC/A90/G17. 15pp.
---------------------------------------------------------------------------
Guadalupe Fur Seal/Steller Sea Lion
Comment: One commenter questioned the Navy's rationale for not
requesting an incidental take of Guadalupe fur seals and NMFS' position
should this species be taken. Another had similar concerns regarding
the Steller sea lion.
Response: The Navy made a determination not to request an
incidental take authorization for Guadalupe fur seals and Steller sea
lions because their population sizes in the SCB (one to five fur seals
and 100 sea lions) were low and that mitigation measures would likely
detect these species if an individual was there. In the event a
Guadalupe fur seal or a Steller sea lion is taken, such taking would be
in violation of the MMPA (and the LOA). Alternatively, if one is seen
in the area prior to the test but not taken because the test is delayed
until the animal leaves, then the Navy may elect to request an
amendment to its LOA and the authorizing regulations for future tests.
Noise in the Ocean
Comment: One commenter recommended NMFS implement regulations to
limit decibel levels from all human activity in the marine environment.
Response: Such a proposal is outside the scope of this rulemaking.
Outer Sea Test Range
Comment: Many commenters were concerned over the choice of the OSTR
because of its proximity to the Channel Islands. Many were concerned
that alternative sites to the OSTR had not been adequately explored.
One commenter believed the test site should be moved another 100 nm
west, another that the test area should be limited to south of
33 deg.27'N. latitude, while another was concerned that utilizing the
southern and western extremities of the OSTR would put the test near
the San Juan Seamount, an area of high primary and fish productivity.
Response: The EA listed the criteria that the Navy established for
locating ship shock trials. Refer to that document for a list of these
criteria. However, it should be recognized that the Pacific Missile
Range is an oceanic area designated for military activities since it
was established by the Department of Defense in 1946. According to the
Navy, the OSTR has been used for ship shock trials since 1990. The only
other West Coast site where ship shock trials of this magnitude have
been conducted is within a military operations area east of San
Clemente Island. However, since 1990, environmental concerns and the
large number of fleet operations (greater than 200,000 per year),
preclude the use of this area for ship shock trials. Thus, this
alternative was eliminated from further consideration by the Navy. For
a discussion on utilizing portions of the OSTR, refer to similar
concerns under ``National Environmental Policy Act Concerns'' above and
``Channel Islands National Marine Sanctuary Concerns'' below.
It should also be noted that the San Juan Seamount is approximately
12 nm west of the western boundary of the OSTR. Because the 2-nm safety
zone will be within the OSTR, at a minimum, the test site will be 14 nm
from the eastern slope of the seamount. The Navy believes, and NMFS
concurs, that there will be little or no impact on the resources of the
seamount.
Comment: One commenter was concerned about the impact of duds and
projectiles that sink to the bottom and either explode later or at a
greater depth.
Response: For the ship shock trials, the explosive is not allowed
to free fall through the water column but is towed to the site, armed,
buoyed at the appropriate depth (125 ft (38 m) or 200 ft (61 m)
depending upon the charge weight) and detonated. Unexploded ordnance is
towed to a deep-water site for safe disposal.
Channel Islands National Marine Sanctuary
Comment: Many reviewers commented on the Channel Islands National
Marine Sanctuary and the impacts that they believe the ship shock
testing will have on the marine life within the sanctuary. One
commenter stated that the contiguous line drawn between the two
territorial sea limits was only 6 miles (9.6 km) from the sanctuary at
Santa Barbara. This commenter believed the shock tests could have a
negative effect on the marine mammals and seabirds that inhabit the
Sanctuary. The commenter goes on to state that both noise and
concussions generated from the test could, at the least, startle and
disrupt pinnipeds, cetaceans and seabirds within the Sanctuary, and at
the worst, the concussions could injure or kill these creatures. This
commenter recommended that NMFS require the Navy to conduct ship shock
trials south of latitude 33 deg.27' N., at least 20 nm from the
Sanctuary boundary, to give an added buffer zone to protect the
resources of the Sanctuary.
Response: There is no evidence that ship shock tests, conducted
within the OSTR will impact the resources of the Channel Islands
National Marine Sanctuary, and commenters have not offered contrary
documentation (refer to related comment under ``Mitigation and
Monitoring'' above). While the actual ship shock test site will likely
be upwards of 50 nm from the outer boundary of the Sanctuary (in the
southwestern portion of the OSTR), the northeastern boundary of the
OSTR is located no closer than 6 nm (11.1 km) from the outer perimeter
of the Sanctuary, a distance greater than calculated for onset of all
types of take except acoustic harassment at significant water depths.
As mentioned previously, the Navy will be utilizing NMFS' 1993 marine
mammal survey data to limit the test site within the OSTR to an area
with few or no marine mammals. This current aerial survey data will be
used to ``reduce'' the test area to a site that will minimize potential
impacts to marine mammals. Arbitrarily limiting the test area to a
particular area of the OSTR at this stage would be premature, and may
not result in reduced impacts to marine mammals and other marine life.
Other Concerns
Comment: The City of Malibu and one supporting commenter object to
the issuance of an incidental take permit because the activity is
contrary to local policy aimed at protecting marine life in the waters
of Santa Monica Bay and the nearby Channel Islands.
Response: The OSTR is located over 70 nm from Santa Monica Bay, and
the likely test site an additional 30-40 nm farther offshore. Based
upon information in the EA on this issue, NMFS believes that there will
not be an adverse impact on marine resources of the SCB (including
Santa Monica Bay).
Comment: One commenter noted that NMFS has failed to ensure that
the proposed activity is consistent with California's coastal
management program and that the EA failed to address the manner in
which protection of environmentally sensitive habitat areas, the
productivity and quality of coastal waters and the protection of marine
resources will be accomplished.
Response: NMFS believes the EA fully describes the mitigation
measures that will be required under the small take regulations to
protect marine life and particularly marine mammals. Because the Navy
is considered the lead agency under 15 CFR 930.40, the EA does not
discuss the California coastal management program. However, the
proposed rule made note of the requirement for consistency. This final
rule contains a similar statement (see Classification below).
Comment: One commenter noted that the proposed activity may require
a section 404 permit under the Federal Water Pollution Control Act and
a permit under the Rivers and Harbors Act of 1989 (sic).
Response: These concerns have been forwarded to the Navy for
resolution, since they are beyond the scope of NMFS' authority.
Comment: One commenter wanted the Navy ship shock trials subject to
oversight by a civilian committee drawn from among marine mammal
protectionists and civic leaders in the affected area, including the
City of Malibu.
Response: The regulations and LOA authorizing the incidental taking
require the Navy to allow NMFS personnel onboard vessels and aircraft
during ship shock trials and other operations using explosives within
the OSTR. NMFS authority does not extend to requiring the Navy to be
subject to an oversight committee of citizens. The comment has been
forwarded to the Navy for consideration.
Comment: One commenter asserted that if the LOA is issued, ``a
financial bonus will accrue to the Southwest Fisheries Science Center
in La Jolla. This represents a clear conflict of interest on the part
of NMFS. The appearance of a conflict could have been mitigated had
other entities with marine mammal monitoring experience been requested
to bid; that would also have resulted in the lowest cost estimate by
SWFSC, which had no incentive to trim its cost estimate and which will
have no incentive to limit actual costs to an amount less than the
estimated costs.''
Response: NMFS does not concur with this assessment. The Navy, in
1992, made preliminary inquiries regarding the cost of conducting
marine mammal surveys with private entities experienced in marine
mammal surveys, in addition to the NMFS' SWFSC. The Navy independently
determined that NMFS would be able to conduct the surveys at
approximately one-third the cost of the other groups contacted. With
that determination made, the Navy made an inter-agency transfer of
funds to NMFS to conduct the surveys and post-test monitoring. The
SWFSC proposal was included in the application of the Navy for a small
take authorization and available therefor for review and comment at
that time. No comments were received on the proposal.
Changes from the Proposed Rule
The codification scheme in the final rule has been modified to
avoid a conflict with another proposed rule (58 FR 33425, June 17,
1993).
Description of Rule
The subject regulations govern the incidental taking of marine
mammals during the detonation of conventional explosives in the OSTR
off Pt. Mugu, CA. The regulations are based on the entire rulemaking
record including evidence submitted in an application from the Navy
that the detonation of conventional explosives off the Channel Islands,
CA, over the next 5 years may involve the incidental taking
(harassment, injury or death) of marine mammals. NMFS has determined
that the total taking will involve small numbers of marine mammals and
will have a negligible impact on the species for which the take is
requested, their habitat, and the availability of these species for
subsistence uses. Although two of the species of pinnipeds on the
Channel Islands, the northern fur seal and the harbor seal, are taken
for subsistence in Alaska, an incidental take from the populations in
the Channel Islands would not reduce the availability of these species
for subsistence in Alaska. Therefore, NMFS has determined that this
incidental taking will not have an unmitigable adverse impact on the
availability of marine mammals for subsistence by Alaska natives.
The regulations apply only to Navy projects involving the
underwater detonation of conventional explosives in the offshore waters
of the OSTR of the NAWC, off Pt. Mugu, Ventura County, CA. All
activities must be conducted in a manner that minimizes adverse effects
on marine mammals authorized to be taken and their habitat and in
conformance with any requirements in a LOA issued under these
regulations.
Under these regulations NMFS is issuing the Navy a 1-year LOA. This
LOA is the official document allowing the incidental taking of marine
mammals. It will be renewed annually upon receipt of a report detailing
activities conducted during the previous 12 months, including levels of
taking of marine mammals, provided the required mitigation measures are
undertaken and the annual taking authorizations are not exceeded. If a
species' annual authorization is exceeded, NMFS will review the
documentation submitted with the annual report to ensure that the
taking continues to have no more than a negligible impact on the
species or stock involved.
The annual report must be submitted to the Assistant Administrator
for Fisheries, NOAA (AA), at least 120 days prior to the date of
expiration of the annual LOA in order for issuance of a LOA for the
following year.
Any substantive changes to the conditions contained within the
annual LOA, including suspension or withdrawal, over the 5-year period
the regulations are in effect will be subject to public review and
comment unless NMFS determines that an emergency exists that
necessitates immediate action. Whether changes are ``substantive'' will
be determined by the AA. The regulations require the holder of the LOA
to cooperate with NMFS and any other Federal, state or local agency
monitoring impacts resulting from this activity on these species. At
its discretion, NMFS will place observers onboard either the fleet tug
or the target vessel, or both, and on any ship or aircraft involved in
marine mammal reconnaissance and monitoring either prior to, during, or
after explosives detonation.
Description of Habitat and Marine Mammals Affected by Military Weapons
Testing at the OSTR
The OSTR is an area in the eastern North Pacific Ocean, seaward of
the Channel Islands, CA, a minimum of 20 nm (37 km) northwest of San
Nicolas Island, 20 nm (37 km) south of San Miguel Island, and 12 nm (22
km) southwest of Santa Rosa Island. The area extends 60 nm (111 km)
westward of San Nicolas Island to 120 deg.45'W. longitude in the OSTR
of the NAWC, Ventura County, CA. Water depths in the test area range
from approximately 200 to over 1,900 fathoms (366 to 3,475 m).
Shallowest depths (less than 750 m) in the test area are associated
with the Patton Ridge, identifiable as a rise oriented north-south and
located nearly mid-range.
The following species/stocks of marine mammals are found in the
SCB: (1) California sea lion (Zalophus californianus); (2) harbor seal
(Phoca vitulina); (3) northern elephant seal (Mironga anguistrostris);
(4) northern fur seal (Callorhinus ursinus); (5) Steller sea lions
(Eumetopias jubatus); (6) Guadalupe fur seals (Arctocephalus
townsendi); (7) common dolphin (Delphinus delphis); (8) striped dolphin
(Stenella coeruleoalba); (9) Risso's dolphin (Grampus griseus); (10)
Pacific white-sided dolphin (Lagenorhynchus obliquidens); (11) northern
right whale dolphin (Lissodelphis borealis); (12) Dall's porpoise
(Phocoenoides dalli); (13) bottlenose dolphin (Tursiops truncatus);
(14) killer whale (Orcinus orca); (15) sperm whale (Physeter
macrocephalus); (16) beaked whales (seven species requested as a single
group because of difficulty in identification including Baird's beaked
whale (Berardius bairdii), Cuvier's beaked whale (Ziphius cavirostris),
Hubb's beaked whale (Mesoplodon carlhubbsi), Blainville's beaked whale
(M. densirostris), Ginkgo-toothed beaked whale (M. ginkgodens),
Hector's beaked whale (M. hectori) and Stejneger's beaked whale (M.
stejnegeri)); (17) minke whale (Balaenoptera acutorostrata); (18) blue
whale (Balaenoptera musculus); (19) fin whale (Balaenoptera physalus);
(20) sei whale (Balaenoptera borealis); (21) humpback whale (Megaptera
novaeangliae); (22) gray whale (Eschrichtius robustus); and (23) right
whale (Eubalaena glacialis). However, because of low population
estimates in the SCB and marine mammal monitoring measures planned in
association with the tests, no impacts or incidental takes of Steller
sea lions or Guadalupe fur seals are expected and incidental take
authorizations have not been requested by the Navy or authorized by
NMFS. A description of the SCB area and the biology and abundance of
the marine mammal species in the SCB can be found in the EA prepared in
association with this activity. A copy of the EA is available upon
request (see ADDRESSES).
Effects of Military Testing Activities on Marine Mammals
Potential impacts to marine mammals from explosives detonation
include exposure to chemical by-products, lethal and injurious
incidental take, as well as physical and acoustic harassment. Injury or
death could occur as a direct result of the explosive blast
(concussion) and resultant cavitation8. Injury could include
damage to internal organs and/or the auditory system. Non-injurious
harassment of marine mammals could occur as a result of physiological
response to both the explosion-generated shockwave as well as to the
acoustic signature of the detonation. Based upon information provided
by the Navy, NMFS believes it is unlikely that injury will occur from
exposure to the chemical by-products released into the surface waters.
---------------------------------------------------------------------------
\8\ The area of cavitation is where the water pressure becomes
extremely low with the passage of the negative shock wave that moves
down from the surface. The water separates, producing a region of
cavitation bubbles for a brief time. This region of cavitation
bubbles then collapses and generates a weak positive pressure wave.
---------------------------------------------------------------------------
Measures to Reduce Impacts
Because of the highly mobile nature of ship shock tests, successful
avoidance of, or reduction in, the incidental taking of marine mammals
is dependent upon the detection of marine mammals. Extensive pre-test
surveys in the test area are being conducted to document on-range
marine mammal seasonal abundance and to detect areas of high mammal
density. Three 80-nm\2\ (275-km\2\) areas for ship shock tests will be
identified prior to each test based on an analysis of the 1993 NMFS 12-
month aerial survey results and historical marine mammal survey data.
Intensive aerial surveys will be flown in the three targeted areas 1
month prior to the first scheduled shock test and the areas will
subsequently be ranked from low to high with respect to marine mammal
density. An intensive survey will be conducted in the primary test area
2 days prior to each scheduled shock test. If scientists determine that
marine mammal density is higher than previously predicted, the
alternate secondary and tertiary areas will be surveyed to determine
their short-term suitability for shock tests.
On test days, extensive aerial and surface surveillance will be
conducted to monitor for the presence, behavior and condition of marine
mammals before and after each detonation. Pre- and post-detonation
aerial reconnaissance surveys will be conducted from a fixed-wing
aircraft, Navy helicopters, and from the test vessel. If marine
mammals, sea turtles, or endangered or threatened seabirds are seen
within the 2-nm (3.7-km)-radius safety zone (for the 10,000-lb. (4,536-
kg) charge), detonation of the charge will be delayed until the animals
exit the safety zone. Tests will not be conducted if marine mammals,
sea turtles, seabird flocks or fish schools are detected within the
safety zone. Also, tests will not be conducted when weather or sea
conditions preclude adequate aerial surveillance. No detonations will
be permitted without the concurrence of the NAWC Ecologist assigned to
the program as the Environmental Coordinator. Any dead marine mammals
and turtles seen by aerial survey observers during the pre-test (48
hours prior to test) aerial survey of one or more of the three 80-nm\2\
(275-km\2\) will be documented and marked/tagged by MART, onboard an
independent recovery vessel, so that those animals that were dead prior
to the ship shock test will not be included in incidental take numbers
reported to NMFS after the trial. Full necropsies will not be performed
on these animals, although tissues may be collected if time permits.
Monitoring and Reporting
After each detonation, an aerial reconnaissance survey of the ship
shock test zone, to 3 nm (5.6 km) radial distance from the detonation,
will be conducted by NMFS SWFSC scientists who will notify the MART
personnel if any dead or injured marine animals are seen. The
occurrence of live marine mammals, seabirds and sea turtles will also
be documented by aerial and vessel survey personnel. Under the
direction of a Navy marine mammal veterinarian, examination and
recovery of any dead or injured animals will be undertaken by MART.
Necropsies will be performed and tissue samples taken by MART's
veterinary staff from any dead marine mammals or sea turtles.
Activities related to the monitoring of the Navy ship shock program
will be authorized under these regulations and will not require a
separate permit under section 104 of the MMPA.
If post-test surveys determine that an injurious or lethal take of
a marine mammal has occurred, the test procedure and the monitoring
methods will be reviewed by the Navy and NMFS and appropriate changes
may be made. Inter-agency coordination between the Navy and NMFS/SWFSC
will ensure that the tests will proceed by the safest possible means.
Within 90 days after any detonation project, the Navy will have to
submit a summary report to NMFS. This report must include the following
information: (1) Date and time of the test; (2) a summary of the pre-
test and post-test activities related to mitigating and monitoring the
effects of explosives detonation on marine mammal populations; and (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
detonation and numbers that may have been harassed due to presence
within the safety zone.
An annual report must be submitted by the Navy to NMFS at least 120
days prior to the date of expiration of the annual LOA in order for
issuance of a LOA for the following year. This annual report must
contain: (1) The date and time of all tests conducted during the
previous calendar year; (2) a description of all pre-test and post-test
activities related to mitigating and monitoring the effects of
explosives detonation on marine mammal populations; (3) the results of
the post-test monitoring program, including numbers by species/stock of
any marine mammals noted injured or killed as a result of the
detonation and numbers that may have been harassed due to presence
within the safety zone; and (4) the results of population assessment
studies conducted by Navy or contract scientists, if any, made on
marine mammals in the SCB during the previous year.
Letter of Authorization
NMFS will renew the LOA annually upon timely receipt of the summary
and annual reports, a determination that the maximum incidental take
authorizations were not exceeded, and that the mitigation measures were
undertaken. If one or more species' lethal or serious injury take
levels were reached or exceeded during the previous year, NMFS will
require the holder of the LOA to provide additional documentation, as
may be requested, on the taking, including the results of the required
reviews of the ship shock test procedure and the monitoring methods and
any measures that will be undertaken in the following year to prevent
exceeding the authorized incidental take levels in the future.
NMFS will review these reports and if it is determined that the
taking may be having more than a negligible impact on any species, or
if the methods of taking, monitoring, or reporting are not being
substantially complied with, NMFS shall, under Sec. 228.6(e), and after
notice and comment in the Federal Register, withdraw or suspend the
LOA.
Conclusions
While NMFS believes that detonation of the larger (i.e., 1,200- and
10,000-lb. (544- and 4,536-kg)) charges may affect some marine mammals,
the latest abundance and distribution estimates, based on the best
available scientific information, indicate that the taking will have no
more than a negligible impact on the populations of marine mammals
inhabiting the waters of the SCB. NMFS concurs with the Navy that
impacts can be mitigated by mandating conservative safety zones for
marine mammal exclusion, incorporating an active aerial survey
monitoring effort in the program both prior to, and after detonation of
explosives, and provided tests are not conducted whenever marine
mammals are detected within the testing zone, or if weather and sea
conditions preclude adequate aerial surveillance.
Classification
The AA has determined, based on an EA prepared by NMFS, that this
action will not have a significant impact on the environment. As a
result of this determination, an environmental impact statement has not
been prepared. The EA is available upon request (see ADDRESSES).
NMFS has consulted with the Navy under section 7 of the ESA for
this rule. The required mitigation measures, as well as monitoring
tests are expected to provide adequate protection for listed species. A
copy of the Biological Opinion and Incidental Take Statement resulting
from this consultation is available upon request (see ADDRESSES).
The General Counsel of the Department of Commerce certified to the
Small Business Administration, when this rule was proposed, that, if
adopted, this rule would not have a significant economic impact on a
substantial number of small entities. Accordingly, no regulatory
flexibility analysis was required or prepared.
This rule contains collection-of-information requirements subject
to the provisions of the Paperwork Reduction Act. The collections have
been approved by the Office of Management and Budget under OMB Control
No. 0648-0151. The reporting burden for this collection is estimated to
be approximately 27 hours per project, including the time for gathering
and maintaining the data needed, and completing and reviewing the
collection of information. Send comments regarding this burden estimate
or any other aspect of this collection of information, including
suggestions for reducing this burden, to the National Marine Fisheries
Service (F/PR), 1335 East-West Highway, Silver Spring, MD 20910, and to
the Office of Information and Regulatory Affairs, Office of Management
and Budget, Washington, DC 20503. (Attn: Paperwork Reduction Act
Project 0648-0151.)
NMFS has determined that this rule may result in an impact on
living marine resources that also reside within the coastal zone of the
State of California, a State with an approved coastal zone management
program under the Coastal Zone Management Act (CZMA). However, aerial
monitoring and other mitigation measures that will be employed by the
Navy prior to, and during, testing will result in a negligible impact
on marine mammals and other marine life. The Navy will be submitting a
consistency determination for this activity to the State of
California's Division of Governmental Coordination for review pursuant
to the CZMA section 307(c)(1) and 15 CFR part 930, subpart C. The Navy,
under 15 CFR 930.40 (multiple Federal agency participation), will be
the lead Federal agency for CZMA Federal consistency purposes.
List of Subjects in 50 CFR Part 228
Marine mammals, Reporting and recordkeeping requirements.
Dated: January 31, 1994.
Nancy Foster,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For reasons set forth in the preamble, 50 CFR part 228 is amended
as follows:
PART 228--REGULATIONS GOVERNING SMALL TAKES OF MARINE MAMMALS
INCIDENTAL TO SPECIFIED ACTIVITIES
1. The authority citation for part 228 continues to read as
follows:
Authority: 16 U.S.C. 1361 et seq.
2. Subpart F is added to read as follows:
Subpart F--Taking of Marine Mammals Incidental to Underwater Detonation
of Conventional Explosives by the Department of Defense
Sec.
228.51 Specified activity, geographical region and incidental take
levels.
228.52 Effective dates.
228.53 Permissible methods of taking; mitigation.
228.54 Prohibitions.
228.55 Requirements for monitoring and reporting.
228.56 Renewal of Letter of Authorization.
228.57 Modifications to Letter of Authorization.
Subpart F--Taking of Marine Mammals Incidental to Underwater
Detonation of Conventional Explosives by the Department of Defense
Sec. 228.51 Specified activity, geographical region, and incidental
take levels.
(a) Regulations in this subpart apply only to the incidental taking
of marine mammals specified in paragraph (b) of this section by U.S.
citizens engaged in the detonation of conventional military explosives
within the waters of the Outer Sea Test Range of the Naval Air Warfare
Center, Pt. Mugu, Ventura County, CA.
(b) The incidental take of marine mammals under the activity
identified in paragraph (a) of this section is limited annually to the
following species and species groups:
------------------------------------------------------------------------
Harassment
Lethal Injury
------------------------------------------------------------------------
California Sea Lion......................... 2 38 173
Harbor Seal................................. 2 16 68
Northern Elephant Seal...................... 9 158 724
Northern Fur Seal........................... 2 13 57
Common Dolphin.............................. 1 16 67
Striped Dolphin............................. 0 2 5
Risso's Dolphin............................. 0 1 2
Pacific White-Sided Dolphin................. 3 52 236
Northern Rt. Whale Dolphin.................. 2 24 108
Dall's Porpoise............................. 0 6 18
Bottlenose Dolphin.......................... 0 4 15
Killer Whale................................ 0 0 1
Sperm Whale................................. 0 6 20
Beaked Whales............................... 0 0 3
Minke Whale................................. 0 0 4
Blue Whale.................................. 0 1 11
Fin Whale................................... 0 0 6
Sei Whale................................... 0 0 1
Humpback Whale.............................. 0 0 4
Gray Whale.................................. 0 3 40
Right Whale................................. 0 0 1
------------------------------------------------------------------------
Sec. 228.52 Effective dates.
Regulations in this subpart are effective from March 3, 1994,
through March 3, 1999.
Sec. 228.53 Permissible methods of taking; mitigation.
(a) U.S. citizens holding a Letter of Authorization issued pursuant
to Sec. 228.6 may incidentally, but not intentionally, take marine
mammals by harassment, injury or killing in the course of the
detonation of conventional explosives up to the following maximum
annual level within the area described in Sec. 228.51(a):
(1) 12 detonations of 10,000 lbs (4,536 kg);
(2) 2 detonations of 1,200 lbs (544 kg);
(3) 10 detonations of 100 lbs (45 kg);
(4) 10 detonations of 10 lbs (4.5 kg); and
(5) 20 detonations of 1 lb (0.45 kg), provided all terms,
conditions, and requirements of these regulations and such Letter of
Authorization are complied with.
(b) The activity identified in paragraph (a) of this section must
be conducted in a manner that minimizes, to the greatest extent
possible, adverse impacts on marine mammals and their habitat. When
detonating explosives, the following mitigation measures must be
utilized:
(1) If marine mammals are observed within the designated safety
zone prescribed in the Letter of Authorization, or on a course that
will put them within the safety zone prior to detonation, detonation
must be delayed until the marine mammals are no longer within the
safety zone.
(2) If weather and/or sea conditions preclude adequate aerial
surveillance, detonation must be delayed until conditions improve
sufficiently for aerial surveillance to be undertaken.
(3) If post-test surveys determine that an injurious or lethal take
of a marine mammal has occurred, the test procedure and the monitoring
methods must be reviewed and appropriate changes must be made prior to
conducting the next project.
Sec. 228.54 Prohibitions.
Notwithstanding takings authorized by Sec. 228.53 or by a Letter of
Authorization issued under Sec. 228.6, the following activities are
prohibited:
(a) The taking of a marine mammal that is other than unintentional;
(b) The violation of, or failure to comply with, the terms,
conditions, and requirements of this part or a Letter of Authorization
issued or renewed under Secs. 228.6 or 228.56; and
(c) The incidental taking of any marine mammal of a species either
not specified in this subpart or whose taking authorization for the
year has been reached.
Sec. 228.55 Requirements for monitoring and reporting.
(a) The holder of the Letter of Authorization is required to
cooperate with the National Marine Fisheries Service and any other
Federal, state or local agency monitoring the impacts of the activity
on marine mammals. The holder must notify the Director, Southwest
Region, National Marine Fisheries Service, 501 West Ocean Boulevard,
suite 4200, Long Beach, CA (Telephone: (310) 980-4001), 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 a
qualified on-site individual(s) to record the effects of explosives
detonation on marine mammals that inhabit the Outer Sea Test Range.
(c) The primary test area, and if necessary, secondary and tertiary
test areas, in the Outer Sea Test Range, must be surveyed by marine
mammal biologists and other trained individuals, and the marine mammal
populations monitored, approximately 48 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 test or project.
Monitoring shall include, but not necessarily be limited to, aerial
surveillance sufficient to ensure that no marine mammals are within the
designated safety zone nor are likely to enter the designated safety
zone prior to or at the time of detonation.
(d) (1) Under the direction of a certified marine mammal
veterinarian, examination and recovery of any dead or injured marine
mammals will be conducted. Necropsies will be performed and tissue
samples taken from any dead animals. After completion of the necropsy,
animals not retained for shoreside examination, will be tagged and
returned to the sea. The occurrence of live marine mammals will also be
documented.
(2) Activities related to the monitoring described in paragraph
(d)(1) of this section or the Letter of Authorization issued under this
part may include the retention of marine mammals without the need for a
separate scientific research permit. The use of such marine mammals in
other scientific research may be authorized pursuant to 50 CFR parts
216 and 220.
(e) At its discretion, the National Marine Fisheries Service may
place an observer on either the towing vessel, target vessel, or both,
and on any ship or aircraft involved in marine mammal reconnaissance,
or monitoring either prior to, during, or after explosives detonation
in order to monitor the impact on marine mammals.
(f) A summary report must be submitted to the Assistant
Administrator for Fisheries, NOAA, within 90 days after the conclusion
of any explosives detonation project. This report must include the
following information:
(1) Date and time of the test(s);
(2) A summary of the pre-test and post-test activities related to
mitigating and monitoring the effects of explosives detonation on
marine mammal populations; and
(3) Results of the monitoring program, including numbers by
species/stock of any marine mammals noted injured or killed as a result
of the detonation and numbers that may have been harassed due to
presence within the safety zone.
(g) An annual report must be submitted to the Assistant
Administrator for Fisheries, NOAA, no later than 120 days prior to the
date of expiration of the annual Letter of Authorization in order for
issuance of a Letter of Authorization for the following year. This
annual report must contain the following information:
(1) Date and time of all tests conducted under the expiring Letter
of Authorization;
(2) A description of all pre-test and post-test activities related
to mitigating and monitoring the effects of explosives detonation on
marine mammal populations;
(3) Results of the monitoring program, including numbers by
species/stock of any marine mammals noted injured or killed as a result
of the detonation and numbers that may have been harassed due to
presence within the designated safety zone;
(4) If one or more species' take levels have been reached or
exceeded during the previous year, additional documentation must be
provided on the taking and a description of any measures that will be
taken in the following year to prevent exceeding the authorized
incidental take level.
(5) Results of any population assessment studies made on marine
mammals in the Outer Sea Test Range during the previous year.
Sec. 228.56 Renewal of Letter of Authorization.
(a) A Letter of Authorization issued under Sec. 228.6 for the
activity identified in Sec. 228.51(a) will be renewed annually upon:
(1) Timely receipt of the reports required under Sec. 228.55(f) and
(g), which have been reviewed by the Assistant Administrator for
Fisheries, NOAA, and determined to be acceptable;
(2) A determination that the maximum incidental take authorizations
in Sec. 228.51(b) will not be exceeded; and
(3) A determination that the mitigation measures required under
Sec. 228.53(b) and the Letter of Authorization have been undertaken.
(b) If a species' annual authorization is exceeded, the National
Marine Fisheries Service will review the documentation submitted with
the annual report required under Sec. 228.55(g), to determine that the
taking is not having more than a negligible impact on the species or
stock involved.
(c) Notice of issuance of a renewal of the Letter of Authorization
will be published in the Federal Register.
Sec. 228.57 Modifications to Letter of Authorization.
(a) In addition to complying with the provisions of Sec. 228.6,
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. 228.6 and subject to the
provisions of this subpart shall be made until after notice and an
opportunity for public comment. For purposes of this paragraph, renewal
of a Letter of Authorization under Sec. 228.46, without modification,
is not considered a substantive modification.
(b) If the National Marine Fisheries Service 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. 228.51, or that
significantly and detrimentally alters the scheduling of explosives
detonation within the area specified in Sec. 228.51, the Letter of
Authorization issued pursuant to Sec. 228.6, or renewed pursuant to
this section may be substantively modified without prior notice and an
opportunity for public comment. A notice will be published in the
Federal Register subsequent to the action.
[FR Doc. 94-2482 Filed 2-1-94; 8:45 am]
BILLING CODE 3510-22-P
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.