Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Naval Activities

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 960318084-6199-03; I.D. 071596C]

RIN 0648-AG55

Taking and Importing Marine Mammals; Taking Marine Mammals

Incidental to Naval Activities

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.

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SUMMARY: On March 11, 1997, the U.S. Navy submitted a petition to NMFS

amending its June 7, 1996, application and requesting a modification to

the proposed effective date of the regulations proposed by NMFS issuing

an incidental small take exemption under the Marine Mammal Protection

Act (MMPA) to take a small number of marine mammals incidental to shock

testing the USS SEAWOLF submarine in the offshore waters of the U.S.

Atlantic coast in 1997. By this notice, NMFS, in accordance with the

Navy's request, amends the proposed regulations to make them effective

from April 1 through September 30, 1998 and 1999. NMFS invites comment

on this modification.

DATES: Comments must be received no later than May 28, 1997.

ADDRESSES: Comments should be addressed to Michael Payne, Chief, Marine

Mammal Conservation Division, Office of Protected Resources, NMFS, 1315

East-West Highway, Silver Spring, MD 20910-3226. A copy of the March

11, 1997 petition, the application, or the proposed rule may be

obtained by writing to the above address, telephoning the person below

(see FOR FURTHER INFORMATION CONTACT) or by leaving a voice mail

request at (301) 713-4070.

FOR FURTHER INFORMATION CONTACT: Kenneth R. Hollingshead, NMFS, (301)

713-2055.

SUPPLEMENTARY INFORMATION:

Background

Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361 et seq.) directs

NMFS to allow, upon request, the incidental, but not intentional,

taking of marine mammals by U.S. citizens who engage in a specified

activity (other than commercial fishing) within a specified

geographical region if certain findings are made and regulations are

issued.

Permission may be granted for periods of 5 years or less if NMFS

finds that the taking will have a negligible impact on the species or

stock(s) of marine mammals, will not have an unmitigable adverse impact

on the availability of these species for subsistence uses, and

regulations are prescribed setting forth the permissible methods of

taking and the requirements pertaining to the monitoring and reporting

of such taking.

On June 7, 1996, NMFS received an application for an incidental,

small take exemption under section 101(a)(5)(A) of the MMPA from the

U.S. Navy to take marine mammals incidental to shock testing the USS

SEAWOLF submarine off the U.S. Atlantic coast. The USS SEAWOLF is the

first of a new class of submarines being acquired by the Navy. In

accordance with 10 U.S.C. 2366, each new class of ships constructed for

the Navy cannot proceed beyond initial production until realistic

survivability testing of the ship and its components are completed.

Realistic survivability testing means testing for vulnerability in

combat by firing munitions likely to be encountered in combat. This

testing and assessment is commonly referred to as ``Live Fire Test &

Evaluation (LFT&E).'' Because realistic testing by detonating torpedoes

or mines against a ship's hull could result in the loss of a multi-

billion dollar Navy asset, the Navy has established an LFT&E program

consisting of computer modeling, component and surrogate testing, and

shock testing the entire ship. Together, these components complete the

survivability testing as required by 10 U.S.C. 2366.

The shock test component of LFT&E is a series of underwater

detonations that propagate a shock wave through a ship's hull under

deliberate and controlled conditions. Shock tests simulate near misses

from underwater explosions similar to those encountered in combat.

Shock testing verifies the accuracy of design specifications for shock

testing ships and systems, uncovers weaknesses in shock sensitive

components that may compromise the performance of vital systems, and

provides a basis for correcting deficiencies and upgrading ship and

component design specifications. While computer modeling and laboratory

testing provide useful information, they cannot substitute for shock

testing under realistic, offshore conditions. To minimize cost and risk

to personnel, the first ship in each new class is shock tested and

improvements are applied to later ships of the class.

[[Page 22903]]

In its original application, the Navy proposed to shock test the

USS SEAWOLF by detonating a single 4,536-kg (10,000-lb) explosive

charge near the submarine once per week over a 5-week period between

April 1 and September 30, 1997. If the Mayport, FL, site is selected,

the shock tests would be conducted between May 1 and September 30, 1997

in order to minimize risk to sea turtles. Detonations would occur 30 m

(100 ft) below the ocean surface in a water depth of 152 m (500 ft).

The USS SEAWOLF would be underway at a depth of 20 m (65 ft) at the

time of the test. For each test, the submarine would move closer to the

explosive so the submarine would experience a more severe shock.

As part of a separate review under the National Environmental

Policy Act, two sites, Mayport, FL and Norfolk, VA, are being

considered by the Navy for the USS SEAWOLF shock test effort. The

Mayport site is located on the continental shelf of Georgia and

northeast Florida and the Norfolk site is located on the continental

shelf offshore of Virginia and North Carolina. The Mayport site is the

preferred location by the Navy because of a lower abundance of marine

mammals at that site. Because of the potential impact on marine

mammals, the Navy has requested NMFS to grant an exemption under

section 101(a)(5)(A) of the MMPA that would authorize the incidental

taking and issue regulations governing the take.

On August 2, 1996 (61 FR 40377), NMFS published a proposed rule to

issue an incidental small take exemption under the MMPA to take a small

number of marine mammals incidental to shock testing the USS SEAWOLF

submarine in the offshore waters of the U.S. Atlantic coast in 1997. A

correction notice on the proposed regulations was published on August

23, 1996 (61 FR 43517). The comment period for the proposed rule closed

on September 17, 1996. During the 45-day comment period, NMFS received

5 letters commenting on the rule. These comments, and relevant comments

received as a result of this notice, will be addressed in the notice of

final determination which will be published in the Federal Register.

Summary of Request

On March 11, 1997, the U.S. Navy submitted a petition to NMFS

amending its June 7, 1996, application and requesting a modification to

the proposed regulations for an incidental small take exemption under

the MMPA to take a small number of marine mammals incidental to shock

testing the USS SEAWOLF submarine in the offshore waters of the U.S.

Atlantic coast in 1997. The petition states that the U.S. Navy, for

reasons unrelated to the environment, will not be able to conduct the

shock trial from April 1, 1997, through September 30, 1997, and

requests that the period of effectiveness for the regulations and the

shock trial be extended until 1999. No modification to the proposed

seasonal restriction (which would prohibit any marine mammal takings

from October 1 through March 31 at the Norfolk site and from October 1

through April 30 at the Mayport site) to protect marine mammal and sea

turtle species is requested. Because section 101(a)(5)(A) of the MMPA

provides for small take authorizations to be effective for periods up

to 5 years, NMFS believes that granting this request to modify the

effective date of the proposed rule is warranted.

Classification

This action has been determined to be not significant for purposes

of E.O. 12866.

The Assistant General Counsel for Legislation and Regulation of the

Department of Commerce certified to the Small Business Administration

that the August 2, 1996, proposed rule, if adopted, would not have a

significant economic impact on a substantial number of small entities

since it would apply only to the U.S. Navy and would have no effect,

directly or indirectly, on small businesses. Extending the effective

date for the rule has no effect on the economic impact or on who would

be impacted.

This proposed rule does not contain a collection-of- information

requirement subject to the provisions of the Paperwork Reduction Act.

List of Subjects in 50 CFR Part 216

Administrative practice and procedure, Imports, Indians, Marine

mammals, Penalties, Reporting and recordkeeping requirements,

Transportation.

Dated: April 22, 1997.

Nancy Foster,

Deputy Assistant Administrator for Fisheries, National Marine Fisheries

Service.

For reasons set forth in the preamble, 50 CFR part 216 is proposed

to be amended as follows:

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

MAMMALS

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

follows:

Authority: 16 U.S.C. 1361 et seq. unless otherwise noted.

2. Subpart O is amended by adding Sec. 216.162 to read as follows:

Subpart O--Taking of Marine Mammals Incidental to Shock Testing the

USS SEAWOLF by Detonation of Conventional Explosives in the

Offshore Waters of the U.S. Atlantic Coast

* * * * *

Sec. 216.162 Effective dates.

Regulations in this subpart are effective from April 1 through

September 30, 1998, and April 1 through September 30, 1999.

[FR Doc. 97-10800 Filed 4-25-97; 8:45 am]

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