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. 960318084-8274-04; 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: Final rule.

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[[Page 66070]]

SUMMARY: NMFS, upon application from the U.S. Department of the Navy

(U.S. Navy), issues regulations to govern the unintentional take of a

small number of marine mammals incidental to shock testing the USS

SEAWOLF submarine in the offshore waters of the U.S. Atlantic coast.

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 of marine mammals

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 activity, such authorization is provided by 10 U.S.C.

2366, 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.

DATES: Effective May 1 through September 30 of any single year between

the years 2000 and 2004, inclusive.

ADDRESSES: Copies of the application, Biological Opinion, Incidental

Take Statement (ITS) and a list of the references used in this document

may be obtained by writing to Michael Payne, Chief, Marine Mammal

Division, Office of Protected Resources, National Marine Fisheries

Service, 1315 East-West Highway, Silver Spring, MD 20910-3226 or by

telephoning the contact listed under the section FOR FURTHER

INFORMATION CONTACT.

Comments regarding the burden-hour estimate or any other aspect of

the collection of information requirement contained in this rule should

be sent to the preceding address and to the Office of Information and

Regulatory Affairs, Office of Management and Budget (OMB), Attention:

NOAA Desk Officer, Washington, DC 20503.

A copy of the final environmental impact statement (FEIS) may be

obtained from Will Sloger, U.S. Navy, at (803) 820-5797.

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 a period 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 and will not have an unmitigable adverse

impact on the availability of these species for subsistence uses and

that regulations are prescribed setting forth the permissible methods

of taking and the requirements pertaining to the monitoring and

reporting of such a taking.

Summary of Request

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 in 1997. 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 are 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.

The Navy proposes 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 May 1 and September 30, 2000, off

Mayport, FL, although scheduling delays may postpone the detonation

into a future year. 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.

The Mayport site is located on the continental shelf off Georgia

and northeast Florida. The Mayport site is the U.S. Navy's preferred

location for the shock trial because of an observed low abundance of

marine mammals at that site. However, because there is still a

potential impact to 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.

Comments

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). During the 45-day comment period, NMFS received

5 letters (Marine Mammal Commission (MMC), Humane Society of the United

States (HSUS), Defenders of Wildlife (DoW), People for the Ethical

Treatment of Animals (PETA) and one private citizen) commenting on the

proposed rule. Comments contained in these letters are addressed under

the Comments and Responses section. Comments regarding issues other

than the contents of the proposed rule have been addressed in the FEIS

prepared by the U.S. Navy.

[[Page 66071]]

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 believed that granting this request to modify the

effective date of the proposed rule was warranted, the requested

modification was proposed on April 22, 1997 (62 FR 19553). During the

30-day comment period, no comments were received. Subsequent to that

action, the U.S. Navy informed NMFS that the shock test would be

delayed until the year 2000 or beyond.

Comments and Responses

General Concerns

Comment 1: PETA believes that accepting the proposed rule would set

a dangerous precedent for other entities to apply for similar legal

exceptions and would make a mockery of current measures which are

designed to protect marine mammals from harm.

Response: NMFS disagrees. The MMPA provides authority under section

101(a)(5)(A) for the taking of small numbers of marine mammals while

conducting lawful activities provided the taking is having no more than

a negligible impact on marine mammals and provided regulations are

prescribed setting forth permissible methods of taking and other means

of effecting the least practicable impact on marine mammal species and

their habitat. The U.S. Navy first applied for a small take

authorization on May 13, 1993, under section 101(a)(5)(A) of the MMPA.

That application resulted in a final authorization to incidentally take

small numbers of marine mammals during the shock trial of the USS JOHN

PAUL JONES in 1994 (59 FR 5111, February 3, 1994). Monitoring that

shock trial indicated that no marine mammals were seriously injured or

killed and only a few dolphins were potentially harassed. The small

take application for the incidental take of marine mammals for the USS

SEAWOLF follows, and improves upon, the mitigation and monitoring

protocols established during the earlier shock trial.

Comment 2: Three commenters (HSUS, PETA, citizen) recommended NMFS

adopt the no action alternative and not issue a small take

authorization to the U.S. Navy.

Response: NMFS wishes to make clear that the Navy conducts ship

shock tests under the authority of 10 U.S.C. 2366. 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 (harassed, injured or killed) incidental

to the ship shock trial, the Navy applied to NMFS for a small take

authorization under section 101(a)(5)(A) of the MMPA. Thus, it is the

taking of marine mammals incidental to the Navy's ship shock tests that

NMFS is authorizing, not the shock trial itself. Unless scientific

evidence contradicts NMFS' preliminary determination (61 FR 40377,

August 2, 1996) that the ship shock trial is likely to result in only

small numbers of marine mammals being taken and that this taking would

have no more than a negligible impact on marine mammal stocks (provided

the recommended mitigation and monitoring are conducted), a small take

authorization is appropriate.

Comment 3: DoW questions the need for shock testing with the advent

of computer modeling and sophisticated model simulations. With billions

of dollars already spent on engineering and design for the vessel, this

mode of testing seems dated. If testing is necessary, then DoW

recommends the Navy moderate the size of the charge rather than the

distance (between the charge and the submarine). DoW also recommends

the Navy should investigate the use of ``shaped'' charges similar to

those used for building demolition to direct more of the shockwave

towards the vessel and less into the surrounding environment.

Response: According to the Navy, data from previous shock tests and

wartime experience have been incorporated into computer models which

are used to help predict the survivability of SEAWOLF-class submarines.

Modeling however, is only one of three components of the SEAWOLF LFT&E

program which together provide the data necessary to assess the

SEAWOLF's survivability. The components are computer modeling and

analysis, component and surrogate testing, and a shock test of the

entire ship. Computer modeling and component testing on machines or in

surrogates do not provide adequate information to assess the

survivability of the submarine in accordance with 10 U.S.C. 2366. In

addition, combat experience has demonstrated that computer models and

component testing, while helpful, cannot predict the broad range of

complex failure mechanisms which could occur inside sophisticated

electronic components or complex mechanical systems.

Unfortunately, smaller charges and shaped charges do not energize

the entire submarine at the desired level of shock intensity. According

to the Navy, the use of smaller charges would require many more

detonations to excite the entire submarine to the desired level.

Comment 4: DoW believes NMFS did not provide adequate notice of

public meetings and opportunity for hearings. In addition, they believe

that the title published in the Federal Register was insufficiently

detailed to elicit response. A secondary, descriptive title would have

been very helpful.

Response: The U.S. Navy's proposal to shock test the USS SEAWOLF

off the U.S. East Coast has been noted in the Federal Register and the

following newspapers on at least three occasions: Washington Post,

Beaches Leader, Florida Times Union, Southeastern Georgian and

Virginian Pilot. NMFS and the Navy first notified the public and held

scoping meetings in Silver Spring, MD, Norfolk, VA and Atlantic Beach,

FL in March, 1995. These meetings were announced in the above

newspapers and in the Federal Register. The notice of availability of

the draft environmental impact statement (DEIS) was published by the

Environmental Protection Agency in the Federal Register on June 14,

1996 (61 FR 30233); a copy of the DEIS was mailed to DoW and a number

of other interested organizations. The publication of the proposed rule

by NMFS on August 2, 1996 (61 FR 40377) announced the schedule for

public meetings under the National Environmental Policy Act (NEPA) and

the MMPA. The comment period on the DEIS was reopened (61 FR 40204,

August 1, 1996) until September 17, 1996 to incorporate the comments

expected from these meetings. A widely distributed press release on the

Navy proposal was also issued on August 2, 1996, by NOAA, two weeks

prior to public hearings in mid-August, 1996.

[[Page 66072]]

NOAA press releases are also available to the public through the NOAA

Homepage. As a result, NMFS believes the general public has had ample

opportunity to review and prepare comments prior to the MMPA/NEPA

public meetings and an additional period of time afterwards to submit

written comments.

The title of the proposed action published in the Federal Register

is limited to the title of the codified part (Taking and Importing of

Marine Mammals) and the subpart (Taking Marine Mammals Incidental to

Naval Activities). Secondary descriptive titles are not authorized by

the Office of the Federal Register.

Comment 5: DoW finds the site selection for the shock trial to be

problematic. They note that the coastal areas in Florida, particularly

those within the euphotic zone are some of the most productive

biologically. Any detonations of the magnitude described in the notice

would therefore not only affect marine mammals, but could have

devastating effects on local ecosystems and food chains. This could

have profound implications on the eastern recreational and commercial

fisheries.

Response: The environmental impacts of the shock trial on the

Florida east coast ecosystems have been described in the DEIS prepared

as part of this action. Readers are encouraged to refer to that

document or the recently released FEIS for an analysis of environmental

and economic impacts (see ADDRESSES).

Comment 6: The MMC recommends that NMFS carefully examine the data,

assumptions, and methods used to estimate the numbers of animals that

might be killed, injured or harassed to ensure that the estimates

appropriately reflect any possible sources of error or bias.

Recognizing that if the take is greater than authorized the Navy would

be required to stop testing before completion, even though the effects

on marine mammal distribution, abundance and productivity would still

be negligible, the MMC further recommends that the number of animals

authorized to be taken be increased if, after further examination, it

is determined that (1) the present estimates do not adequately reflect

possible sources of error and bias and (2) the possible effects on the

distribution, size, and productivity of the potentially affected

species and population stocks would remain negligible.

Response: NMFS believes that the U.S. Navy used the best scientific

information available in making its assessment of the potential impact

on marine mammals from the detonation of 5 explosive charges. In

addition to using documented sources (e.g., CETAP, stranding records),

the Navy conducted monthly aerial marine mammal surveys of the two

preferred geographic areas for a period of 6 months. This survey was

repeated at Mayport in 1997. The resulting estimate of the number of

marine mammals that might potentially be harassed, injured or killed is

provided in Tables 4-5 and 4-6 of the FEIS. It should be noted that the

U.S. Navy reviewed this concern as part of its NEPA review, and, for

reasons stated in response to Comment 7, these take levels have been

modified from the proposed rule and DEIS. A more detailed response to

this concern can be found in the FEIS (please refer to comment H4 in

Appendix H). Also, a complete description of the methodology used by

the Navy, and adopted by NMFS for this exercise, can be found in the

FEIS.

For discussion on the comment that the Navy would be required to

stop testing before completion if the take is greater than authorized,

please refer to comment 12.

Comment 7: The MMC notes that the Navy has introduced a new

criterion--acoustic discomfort--for determining how and how many

animals may be harassed by anthropogenic sounds in the marine

environment. The MMC therefore recommends that NMFS take such steps as

necessary to ensure that (1) the estimates of the numbers of marine

mammals that potentially could be taken by harassment are in fact,

overestimates, rather than underestimates; and (2) the planned

monitoring program is adequate to verify that any disruption of vital

behavior is momentary and that no more than the authorized number of

animals are harassed.

Response: As explained in detail in the FEIS, previous

determinations for explosives were based on peak pressure. However,

several sources recognize that peak pressure may not be the best basis

for predicting the effects of impulsive noise, such as underwater

explosives, on marine mammals (e.g., Richardson et al. 1995). In terms

of mammal hearing, a better measure may be total energy received in 1/

3-octave frequency bands (i.e., the approximate filter bandwidth of the

hearing system) within the integration time of the ear. As pulsed sound

sources with differing peak pressures could deliver the same energy

over a certain time period, the acoustic harassment criterion can be

improved over the standard 160 dB (re 1 Pa @ 1 m) used

previously during shock testing the USS JOHN PAUL JONES and other

explosive detonation events.

The 160-dB criterion is based on a behavioral response which may be

of questionable biological significance in the context of a single

acoustic pulse. In the case of a continuous source (e.g., industrial

noise) or repeated transient sources (e.g., seismic pulses), avoidance

by a marine mammal could result in changes to migration, feeding, or

reproduction patterns that could affect the energetics of both

individuals and populations. However, in the context of a single, brief

pulse from a detonation, a momentary startle response causing an animal

to dive or momentarily change course or speed is not likely to affect

either the individual or the population. Such a minor response is well

within the range of normal behaviors that an animal might exhibit at

any time in response to other animals or other environmental stimuli.

As a result, NMFS does not normally consider these simple, singular,

reflex actions (e.g., alert, startle, dive response to a stimulus) by

marine mammals to be sufficient on their own to warrant an incidental

harassment authorization. On the other hand, NMFS does not concur with

statements made by the Navy in response to a different rulemaking that

the term ``harassment'' in the MMPA should be limited to changes in

behavioral patterns of a magnitude that reflect an adverse reaction on

the part of the animals such as intense fear or pain or behavior that

is likely to harm the animal or its offspring. By statutory definition,

the de minimus level (for Level B harassment) should be less intrusive

on the animal than suggested by the Navy.

Therefore, the information provided in the FEIS supports the Navy's

selection of temporary threshold shift (TTS) as a harrasment criterion

for shock testing the USS SEAWOLF. NMFS concurs. TTS is being used as a

measure of quantifiable harassment, as TTS may also result in behavior

reflecting an adverse reaction, and TTS meets the definition of both

Level A and Level B harassment definitions found in the MMPA. On a

cellular level, TTS could be considered a very slight ``injury'' in the

sense of damage to hair cells in the ear and because TTS is temporary

hearing loss, it could lead to a temporary disruption of behavioral

patterns as specified in the statutory definition of Level B

harassment. For additional information please refer to the FEIS, in

particular, Appendix E. Based upon information provided in Appendix E,

a dual criterion for acoustic harassment has been developed: (1) an

energy-based TTS criterion of 182 dB re 1 uPa2-sec derived

[[Page 66073]]

from experiments with bottlenose dolphins (Ridgway et al. (1997), and

(2) 12 lbs/in2 (psi) peak pressure cited by Ketten (1995) as

associated with a ``safe outer limit for the 10,000 lb charge for

minimal, recoverable auditory trauma'' (i.e., TTS). The harassment

range therefore is the minimum distance at which neither criterion is

exceeded. Using the 182 dB (energy) criterion separate harassment

ranges were calculated for odontocetes and mysticetes based on their

differing sensitivity to low frequencies. For the Mayport area, the

harassment range is predicted to be 15.7 km (8.5 nautical miles (nm))

for odontocetes and 23.5 km (12.7 nm) for mysticetes. Estimated take

levels based upon the above criterion for Mayport can be found in

Tables 4-5 and 4-6 of the FEIS. For a single detonation at Mayport

about 358 marine mammals could be harassed; for five detonations, 1,788

animals could be harassed. Because the U.S. Navy will seek a site for

detonation that has the lowest real-time abundance of marine mammals,

these numbers should be regarded as upper limits. The species most

likely affected at Mayport are the bottlenose dolphin, Risso's dolphin,

Atlantic spotted dolphin, and the Stenella spp.

NMFS has concerns that focusing monitoring efforts on the

possibility that there may be more than a momentary disturbance of one

or more marine mammals located either inside or outside the acoustic

harassment zone would result in diminished monitoring within the safety

zone where, with lowered detection effort, marine mammals might be

seriously injured or killed. Because aircraft safety precludes more

than one survey aircraft being within the area at any one time (a

second aircraft will be held in reserve ashore), and because the survey

aircraft will operate (after completion of aerial monitoring) in a

circular holding pattern 4.6 km (2.5 nm) from the site to ensure no

marine mammals enter the safety zone, there will be limited opportunity

to observe marine mammal behavior at the instant of detonation.

Furthermore, it is unclear whether stationing an aircraft in the area

beyond the acoustic harassment zone would provide meaningful scientific

results. Based on current scientific information, the low frequency of

the explosive would potentially affect only marine mammals with the

ability to detect low frequency sounds, mainly mysticete and sperm

whales. Other than sperm whales, these species are not expected off

Mayport, FL during the summer. To accommodate MMC concerns however, the

Navy plans to locate and monitor any marine mammals, including

behavioral changes, found inside the acoustic harassment zone for a

period of 48 hours post-detonation, as detailed in the FEIS.

Comment 8: The MMC recommends NMFS (1) consider whether monitoring

and comparing marine mammal vocalizations before and after detonation

of charges would provide a reasonable means for validating the apparent

assumption that any disruption of behavior beyond the ``acoustic

discomfort'' range will be momentary; and (2) if judged reasonable,

require that the monitoring program be reviewed accordingly.

Response: The Marine Mammal Acoustic Tracking System will be

employed during the ship shock trial to acoustically detect marine

mammals that are within the safety zone to avoid injury or death of

these animals as a result of the detonation. Acoustic monitoring will

therefore focus primarily on marine mammals vocalizing within the

safety and buffer zone and secondarily on animals outside those zones

prior to detonation. Unfortunately, for security reasons, recordings of

vocalizing marine mammals after detonation cannot be made, either

inside or outside the acoustic harassment zone. Therefore, the

suggested experiment cannot be conducted.

Comment 9: HSUS recommends that post-detonation monitoring continue

for a period of time no less than 4 weeks after the final detonation in

order to account for animals who may not experience an immediately

observable negative impact.

Response: NMFS believes that 4-week post-detonation surveys would

be an unnecessary imposition on the U.S. Navy that would not provide

the public with meaningful information on the impact of explosions on

marine mammal populations. First, NMFS believes that any marine mammals

that might be killed by a detonation and sink would resurface within 1

week of their demise. Second, marine mammals that are injured might not

remain in the same area of the detonations after the shock trial is

completed. This would require the U.S. Navy to conduct extensive aerial

and ship surveys over a large area of the East Coast to locate injured

and deceased marine mammals. Finally, a cause-and-effect relationship

between dead marine mammals and the ship shock trial is not likely to

be evident by external examination (but see comment 10).

NMFS will require the U.S. Navy to conduct post-detonation surveys

for marine mammals a minimum of 48 hours and a maximum of 1 week

following each detonation. In addition, the U.S. Navy will be

coordinating follow-up investigations with local stranding networks.

Comment 10: HSUS recommends that the U.S. Navy fund necropsy

efforts of stranding networks for a period of one year in an attempt to

account for long-term impacts that result in mortality. HSUS recommends

this measure be a required element in the monitoring scheme in 50 CFR

216.165.

Response: In the Navy's FEIS, the Navy states that the stranding

networks will be requested to forward tissue samples from stranded

marine mammals and sea turtles to the Armed Forces Institute of

Pathology (AFIP) for analysis. The U.S. Navy will fund necropsy sample

analyses by the AFIP for one year following the last detonation. This

recommendation has been incorporated as a monitoring requirement under

50 CFR 216.165.

Comment 11: The MMC recommends that the Letter of Authorization

(LOA) make clear that the authorization is automatically revoked if

marine mammals are taken in ways or numbers not authorized. The HSUS

recommends that Sec. 216.166(b) be amended to require the LOA be

suspended or revoked (without prior notice or opportunity for public

comment).

Response: Prior to revocation of an LOA, NMFS must satisfy the

statutory notice and comment requirement of section 101(a)(5)(B).

However, under section 101(a)(5)(C) of the MMPA, the notice and comment

requirements do not apply prior to suspending an LOA due to emergency

conditions that pose a significant risk to the well-being of the marine

mammal stock. While, section 101(a)(5)(B), allows NMFS to withdraw

(revoke) or ``suspend for a time certain'' an LOA, subsequent to notice

and comment, section 101(a)(5)(C) does not waive the notice and comment

requirement where NMFS seeks to withdraw the authorization. Conditions

for suspension or withdrawal of an LOA are described in 50 CFR 216.106

of this part.

Comment 12: The HSUS recommends that if the incidental take limits

in 50 CFR 216.161(c) are exceeded, or if more than 1 mortality or

serious injury of a threatened or endangered species occurs (and this

should include all affected sea turtle species as well), then the LOA

should be immediately suspended or revoked. The Navy would then have to

make its findings governing the SEAWOLF based on the results of the

tests conducted at that time.

Response: Please see the response to comment 11. The serious injury

or death

[[Page 66074]]

of even 1 marine mammal listed under the ESA is prohibited by the

regulations governing the incidental take of marine mammals during the

SEAWOLF shock trial (50 CFR 216.161(c)). However, the serious injury or

death of these listed species, or the taking of any marine mammal

species after the harassment, injury or mortality quota(s) is (are)

reached will not necessarily result in the suspension of the LOA.

Suspension of an LOA will occur (1) if NMFS determines that additional

takings are having, or may have, a more than negligible impact on the

marine mammal stock(s); or (2) all quotas (harassment, injury and

death) have been reached. Nevertheless, any taking that is in excess of

the respective quota is prohibited and therefore a violation of the

MMPA.

The incidental taking of sea turtles is authorized under an ITS as

part of a Biological Opinion issued to the U.S. Navy under section 7 of

the Endangered Species Act, not under the MMPA. Under that authority,

the taking of listed species in excess of the take limits provided in

the ITS (including the taking of endangered marine mammals) requires a

reinitiation of consultation under section 7. Information on sea turtle

incidental take levels can be found in Appendix G of the FEIS.

Comment 13: HSUS recommends that 50 CFR 216.163(c) only apply if

the take is within the limits specified in 50 CFR 216.161(c).

Response: While 50 CFR 216.163 of the proposed rule did not contain

a paragraph (c), the incidental take authority provided in

Sec. 216.163(a) applies until all the quotas contained in

Sec. 216.161(c) are reached provided all other terms, conditions, and

requirements of the regulations and LOA are complied with. However,

should these quotas be reached, NMFS presumes that should the U.S. Navy

decide to continue their shock trial without a marine mammal

authorization, the mitigation described in Sec. 216.163(b) would be

continued by the U.S. Navy to ensure additional takings did not occur.

Comment 14: The MMC recommends that the reporting requirement be

revised to require that the results of the monitoring program be

provided to NMFS following each of the five tests, rather than 120 days

after the last test.

Response: NMFS disagrees. Submission of a written report after each

test is not warranted because of the potential delay in notifying NMFS

of takings, which in turn may result in a delay in the next shock test

while NMFS evaluates the data and discusses its findings with the Navy.

NMFS intends to require instead that the U.S. Navy notify NMFS,

immediately upon discovery, that a marine mammal has been sighted by

the post-detonation monitoring team, that either may have been

seriously injured or killed as a result of the detonation, or is

determined to have been within the safety zone at the time of

detonation. 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 with NMFS and appropriate changes

must be made, if at all possible, prior to conducting the next

detonation.

Description of Habitat and Marine Mammals Affected by Shock Testing

the USS SEAWOLF

A description of the U.S. Atlantic coast environment, its marine

life and marine mammal abundance, distribution and habitat can be found

in the draft and FEIS on this subject and is not repeated here.

Additional information on Atlantic coast marine mammals can be found in

Blaylock et al. (1995). These documents are available upon request (see

ADDRESSES).

Summary of Potential Impacts

Potential impacts to the marine mammal species known to occur in

these areas from shock testing include both lethal and non-lethal

injury, as well as harassment. Death or injury may occur as a result of

the explosive blast, and harassment may occur as a result of non-

injurious physiological responses to the explosion-generated shockwave

and its acoustic signature. The Navy believes it is very unlikely that

injury will occur from exposure to the chemical by-products released

into the surface waters, and no permanent alteration of marine mammal

habitat would occur. While the Navy does not anticipate any lethal

takes would result from these detonations, theoretical calculations

indicate that the Mayport site has the potential to result in up to 1

lethal take, 5 injurious takes, and 1,788 harassment takes. Detailed

descriptions on the definitions of take categories; calculation of

ranges for potential mortality, injury, and harassment; incidental take

calculations; and impacts on marine mammal habitat can be found in the

Navy application and the FEIS, which are available upon request (see

ADDRESSES).

Summary of Proposed Mitigation and Monitoring Measures

The Navy's proposed action includes mitigation and monitoring that

would minimize risk to marine mammals and sea turtles. As recently

revised, the Navy would:

(1) Through pre-detonation aerial surveys, select a test area with

potentially, the lowest number of marine mammals and turtles;

(2) monitor the area visually (aerial and shipboard monitoring) and

acoustically before each test and postpone detonation if (a) any marine

mammal, sea turtle, large sargassum raft or large concentration of

jellyfish is visually detected within a safety zone of 3.7 km (2.0 nm),

(b) any marine mammal is acoustically detected within a safety zone of

4.3 km (2.35 nm), or (c) any large fish school, or flock of seabirds is

detected within a safety zone of 1.85 km (1 nm);

(3) monitor the area visually (aerial and shipboard monitoring) and

acoustically before each test and postpone detonation if any marine

mammal or sea turtle is within a buffer zone of an additional 1.85 km

(1.0 nm) buffer zone, unless the marine mammals are on a course within

the buffer zone that is taking them away from the 3.7 km (2.0 nm)

safety zone, except that no detonation will occur if a listed marine

mammal is detected within the buffer zone, and subsequently cannot be

detected, until sighting and acoustic teams have searched the area for

2.5 hours (approximately 3 times the typical large whale dive

duration). If a northern right whale is seen, the shot will not occur

until the animal is positively reacquired outside the buffer zone and

at least one additional aerial monitoring of the safety range and

buffer zone shows that no other right whales are present;

(4) delay detonation if the sea state exceeds 3 (i.e., whitecaps on

33 to 50 percent of surface; 0.6 m (2 ft) to 0.9 m (3 ft) waves), or

the visibility is not 5.6 km (3 nm) or greater, and the ceiling is not

305 m (1,000 ft) or greater;

(5) no detonations would occur earlier than 3 hours after sunrise

or later than 3 hours prior to sunset to ensure adequate daylight for

pre- and post-detonation monitoring; and

(6) monitor the area for 48 hours after each detonation, and for 7

days following the last detonation, to find and treat any injured

animals. If post-detonation monitoring shows that marine mammals or sea

turtles were killed or injured as a result of the test, or if any

marine mammals or sea turtles were observed in the safety range

immediately after a detonation, testing would be halted until

procedures for subsequent detonations could be reviewed and changed as

necessary.

Detailed descriptions of the measures for mitigation and monitoring

the shock

[[Page 66075]]

test can be found in the FEIS (chapter 5), which is available upon

request (see ADDRESSES).

Reporting

Within 120 days of the completion of shock testing, the Navy is

required to submit a final report to NMFS. This report must include the

following information: (1) Date and time of each of the detonations;

(2) a detailed description of the pre-test and post-test activities

related to mitigating and monitoring the effects of explosives

detonation on marine mammals and their populations; (3) the results of

the monitoring program, including numbers by species/stock of any

marine mammals noted injured or killed as a result of the detonations

and numbers that may have been harassed due to undetected presence

within the safety zone; and (4) results of coordination with coastal

marine mammal/sea turtle stranding networks.

Changes From the Proposed Rule

NMFS has modified the final rule as follows:

1. The regulations specify that the incidental taking is authorized

for the waters off Mayport, FL (i.e., a negligible impact determination

has not been made for the Norfolk, VA site).

2. Amended the incidental harassment levels to reflect the change

from an acoustic discomfort criterion to one based upon TTS.

3. Harbor seals (Phoca vitulina) have been removed from the list of

authorized species for taking since it is remote that one would be off

the Florida coast in mid-summer.

4. Modified detonation postponement criteria in Sec. 216.163 for

certain marine mammals present in the buffer zone based on swimming

speeds and dive durations.

5. Modified post-detonation criteria in

50 CFR 216.163(b)(3) to require that if post-test surveys determine

that any marine mammals are in the safety range immediately after a

detonation, the test procedure and the monitoring methods must be

reviewed and appropriate changes must be made prior to conducting the

next detonation.

6. Requires the U.S. Navy to conduct during the first detonation,

and provide a report on, prior to the second detonation, the

attenuation of the sound pressure levels of the HBX1 explosive charge.

Based upon the results of this test, the monitoring and safety zones

described in the LOA, may be modified accordingly.

7. Reporting requirements have been modified to indicate that

reports must be submitted to the Regional Administrator, NMFS and a new

definition for ``Administrator, Southeast Region'' has been added.

8. A final report on results of necropsies of stranded marine

mammals funded by the U.S. Navy is now required to be submitted to NMFS

no later than 18 months after completion of shock testing the USS

SEAWOLF.

9. Minor, nontechnical, changes have been made to the regulations

for clarification and ease of understanding.

Conclusions

While NMFS believes that detonation of five 4,536-kg (10,000-lb)

charges may affect some marine mammals, the latest abundance and

seasonal distribution estimates indicate that such taking will have a

negligible impact on the populations of marine mammals inhabiting the

waters of the U.S. Atlantic Coast. NMFS concurs with the U.S. Navy that

impacts can be mitigated by mandating a conservative safety range for

marine mammal exclusion, incorporating aerial, shipboard, and acoustic

survey monitoring efforts in the program both prior to, and after

detonation of explosives, and provided detonations are not conducted

whenever marine mammals are either detected within the safety zone, or

may enter the safety zone at the time of detonation, or if weather and

sea conditions preclude adequate aerial surveillance.

NEPA

On June 14, 1996 (61 FR 30232), the Environmental Protection Agency

noted the availability for public review and comment a DEIS prepared by

the U.S. Navy under NEPA on this action. NMFS is a cooperating agency

as defined by the Council on Environmental Quality regulations (40 CFR

1501.6) and in this regard submitted comments on the DEIS to the U.S.

Navy on October 9, 1996. The U.S. Navy responded to NMFS' concerns on

December 11, 1996. NMFS has reviewed the Navy's response and the FEIS

and concludes that its comments and suggestions have been

satisfactorily addressed. As a result, NMFS hereby adopts the Navy FEIS

as its own as provided by 40 CFR 1506.3. Because NMFS' comments have

been addressed satisfactorily, NMFS finds that it is unnecessary to

either prepare its own NEPA documentation nor to recirculate the Navy

FEIS for additional comments.

Endangered Species Act (ESA)

NMFS has consulted with the Navy under section 7 of the ESA for

this shock trial. As the required mitigation measures, as well as

monitoring, will be conducted as described, the shock trial is expected

to provide adequate protection for listed species. As a result, NMFS

has determined that the activity, while not likely to jeopardize the

continued existence of those endangered or threatened species under the

jurisdiction of NMFS, may adversely affect certain sea turtle species.

A copy of the Biological Opinion and Incidental Take Statement

resulting from this consultation is available upon request (see

ADDRESSES).

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,

when this rule was proposed, that, if adopted, this rule would not have

a significant economic impact on a substantial number of small entities

as described in the Regulatory Flexibility Act. If implemented, this

rule will affect only the U.S. Navy, and an undetermined number of

contractors providing services related to the shock trial, including

the monitoring of impacts on marine mammals. Although the U.S. Navy, by

definition, is not a small business, some of the affected contractors

may be small businesses. The economic impact on these small businesses

is dependent upon the award of contracts for such services. The

economic impact cannot be determined with certainty, but will either be

beneficial or have no effect, directly or indirectly, on small

businesses. As such, a regulatory flexibility analysis is not required.

This rule contains collection-of-information requirements subject

to the provisions of the Paperwork Reduction Act (PRA). This collection

has been approved previously by OMB under section 3504(b) of the PRA.

The control number used by OMB is 0648-0151. Notwithstanding any other

provision of law, no person is required to respond to nor shall a

person be subject to a penalty for failure to comply with a collection

of information subject to the requirements of the PRA unless that

collection of information displays a currently valid OMB control

number.

The reporting burden for this collection is estimated to be

approximately 80 hours, including the time for gathering and

maintaining the data needed, and completing and reviewing the

collection of information. It does not include time for monitoring the

activity by observers. Send comments regarding these reporting

[[Page 66076]]

burden estimates or any other aspect of the collections of information,

including suggestions for reducing the burdens, to NMFS and OMB (see

ADDRESSES)

A list of the references used in this document may be obtained from

NMFS (see ADDRESSES).

List of Subjects in 50 CFR Part 216

Administrative practice and procedure, Imports, Indians, Marine

mammals, Penalties, Reporting and recordkeeping requirements,

Transportation.

Dated: November 23, 1998.

Andrew A. Rosenberg,

Deputy Assistant Administrator for Fisheries, National Marine Fisheries

Service.

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

as follows:

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

MAMMALS

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

follows:

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

2. In Sec. 216.3, a new definition for ``Administrator, Southeast

Region'' is added in alphabetical order to read as follows:

Sec. 216.3 Definitions.

* * * * *

Administrator, Southeast Region means Administrator, Southeast

Region, National Marine Fisheries Service, 9721 Executive Center Drive,

St. Petersburg, FL 33702-2432.

* * * * *

3. Subpart O is added 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.

216.161 Specified activity, geographical region and incidental

take levels.

216.162 Effective dates.

216.163 Permissible methods of taking; mitigation.

216.164 Prohibitions.

216.165 Requirements for monitoring and reporting.

216.166 Modifications to the Letter of Authorization.

216.167--216.169 [Reserved]

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. 216.161 Specified activity, geographical region, and incidental

take levels.

(a) Regulations in this subpart apply only to the incidental taking

of marine mammals specified in paragraph (b) of this section by U.S.

citizens engaged in the detonation of conventional military explosives

within the waters of the U.S. Atlantic Coast offshore Mayport, FL for

the purpose of shock testing the USS SEAWOLF.

(b) The incidental take of marine mammals under the activity

identified in paragraph (a) of this section is limited to the following

species: Blue whale (Balaenoptera musculus); fin whale (B. physalus);

sei whale (B. borealis); Bryde's whale (B. edeni); minke whale (B.

acutorostrata); humpback whale (Megaptera novaeangliae); northern right

whale (Eubalaena glacialis); sperm whale (Physeter macrocephalus);

dwarf sperm whale (Kogia simus); pygmy sperm whale (K. breviceps);

pilot whales (Globicephala melas, G. macrorhynchus); Atlantic spotted

dolphin (Stenella frontalis); Pantropical spotted dolphin (S.

attenuata); striped dolphin (Stenella coeruleoalba); spinner dolphin

(S. longirostris); Clymene dolphin (S. clymene); bottlenose dolphin

(Tursiops truncatus); Risso's dolphin (Grampus griseus); rough-toothed

dolphin (Steno bredanensis); killer whale (Orcinus orca); false killer

whale (Pseudorca crassidens); pygmy killer whale (Feresa attenuata);

Fraser's dolphin (Lagenodelphis hosei); harbor porpoise (Phocoena

phocoena); melon-headed whale (Peponocephala electra); northern

bottlenose whale (Hyperoodon ampullatus); Cuvier's beaked whale

(Ziphius cavirostris), Blainville's beaked whale (Mesoplodon

densirostris); Gervais' beaked whale (M. europaeus); Sowerby's beaked

whale (M. bidens); True's beaked whale (M. mirus); common dolphin

(Delphinus delphis); and Atlantic white-sided dolphin (Lagenorhynchus

acutus).

(c) The incidental take of marine mammals identified in paragraph

(b) of this section is limited to a total of 1 mortality, 5 injuries

and 1,788 harassment takes for detonations in the area described in

paragraph (a) of this section, except that the taking by serious injury

or mortality for species listed in paragraph (b) of this section that

are also listed as threatened or endangered under Sec. 17.11 of this

title, is prohibited.

Sec. 216.162 Effective dates.

Regulations in this subpart are effective May 1 through September

30 of any single year between the years 2000 and 2004, inclusive.

Sec. 216.163 Permissible methods of taking; mitigation.

(a) Under a Letter of Authorization issued pursuant to

Sec. 216.106, the U.S. Navy may incidentally, but not intentionally,

take marine mammals by harassment, injury or mortality in the course

detonating five 4,536 kg (10,000 lb) conventional explosive charges

within the area described in Sec. 216.161(a), provided all terms,

conditions, and requirements of these regulations and such Letter of

Authorization are complied with.

(b) The activity identified in paragraph (a) of this section must

be conducted in a manner that minimizes, to the greatest extent

possible, adverse impacts on marine mammals and their habitat. When

detonating explosives, the following mitigation measures must be

utilized:

(1) If marine mammals are observed within the designated safety

zone prescribed in the Letter of Authorization, or within the buffer

zone prescribed in the Letter of Authorization and on a course that

will put them within the safety zone prior to detonation, detonation

must be delayed until marine mammals are either no longer within the

safety zone or are on a course within the buffer zone that is taking

them away from the safety zone, except that no detonation will occur if

a marine mammal listed as threatened or endangered under Sec. 17.11 of

this title is detected within the buffer zone and subsequently cannot

be detected until such time as sighting and acoustic teams have

searched the area for 2.5 hours (approximately 3 times the typical

large whale dive duration). If a northern right whale is seen within

the safety or buffer zone, detonation must not occur until the animal

is positively reacquired outside the buffer zone and at least one

additional aerial monitoring of the safety range and buffer zone shows

that no other right whales are present.

(2) If weather and/or sea conditions as described in the Letter of

Authorization 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, or if any marine mammals are observed

in the safety range immediately after a detonation, the test procedure

and the monitoring methods must be reviewed by NMFS in

[[Page 66077]]

consultation with the Navy and appropriate changes made prior to

conducting the next detonation.

Sec. 216.164 Prohibitions.

Notwithstanding takings authorized by Sec. 216.161(b) and by a

Letter of Authorization issued under Sec. 216.106, the following

activities are prohibited:

(a) The taking of a marine mammal that is other than unintentional.

(b) The violation of, or failure to comply with, the terms,

conditions, and requirements of this part or a Letter of Authorization

issued under Sec. 216.106.

(c) The incidental taking of any marine mammal of a species not

specified in this subpart.

Sec. 216.165 Requirements for monitoring and reporting.

(a) The holder of the Letter of Authorization is required to

cooperate with the National Marine Fisheries Service and any other

Federal, state or local agency monitoring the impacts of the activity

on marine mammals. The holder must notify the Administrator, Southeast

Region at least 2 weeks prior to activities involving the detonation of

explosives in order to satisfy paragraph (g) of this section.

(b) The holder of the Letter of Authorization must designate

qualified on-site individuals, as specified in the Letter of

Authorization, to record the effects of explosives detonation on marine

mammals that inhabit the Atlantic Ocean test area.

(c) The Atlantic Ocean test area must be surveyed by marine mammal

biologists and other trained individuals, and the marine mammal

populations monitored, approximately 3 weeks prior to detonation, 48-72

hours prior to a scheduled detonation, on the day of detonation, and

for a period of time specified in the Letter of Authorization after

each detonation. Monitoring shall include, but not necessarily be

limited to, aerial, shipboard, and acoustic surveillance sufficient to

ensure that no marine mammals are within the designated safety zone nor

are likely to enter the designated safety zone immediately prior to, or

at the time of, detonation.

(d) Under the direction of a certified marine mammal veterinarian,

examination and recovery of any dead or injured marine mammals will be

conducted. Necropsies will be performed and tissue samples taken from

any dead animals. After completion of the necropsy, animals not

retained for shoreside examination will be tagged and returned to the

sea. The occurrence of live marine mammals will also be documented.

(e) The holder of the Letter of Authorization is required to

measure during the first detonation, and provide a report on, prior to

the second detonation, the attenuation of the sound pressure levels of

the HBX1 explosive charge. Measurements must be made at a number of

distances from the detonation sufficient to verify the model

predictions for the 3.7 km (2 nm) safety zone. Based upon the results

of this test, the monitoring and safety zones described in the Letter

of Authorization, may be modified accordingly.

(f) Activities related to the monitoring described in paragraphs

(c) and (d) of this section, or in the Letter of Authorization issued

under Sec. 216.106, including the retention of marine mammals, may be

conducted without the need for a separate scientific research permit.

The use of retained marine mammals for scientific research other than

shoreside examination must be authorized pursuant to subpart D of this

part.

(g) In coordination and compliance with appropriate Navy

regulations, at its discretion, the National Marine Fisheries Service

may place observer(s) 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.

(h) A final report must be submitted to the Administrator,

Southeast Region, no later than 120 days after completion of shock

testing the USS SEAWOLF. This report must contain the following

information:

(1) Date and time of all detonations conducted under the Letter of

Authorization.

(2) A description of all pre-detonation and post-detonation

activities related to mitigating and monitoring the effects of

explosives detonation on marine mammal populations.

(3) Results of the monitoring program, including numbers by

species/stock of any marine mammals noted injured or killed as a result

of the detonation and numbers that may have been harassed due to

presence within the designated safety zone.

(4) Results of coordination with coastal marine mammal/sea turtle

stranding networks.

(i) A final report on results of necropsies of stranded marine

mammals funded by the U.S. Navy must be submitted to the Director,

Office of Protected Resources, no later than 18 months after completion

of shock testing the USS SEAWOLF.

Sec. 216.166 Modifications to the Letter of Authorization.

(a) In addition to complying with the provisions of Sec. 216.106,

except as provided in paragraph (b) of this section, no substantive

modification, including withdrawal or suspension, to the Letter of

Authorization issued pursuant to Sec. 216.106 and subject to the

provisions of this subpart shall be made until after notice and an

opportunity for public comment.

(b) If the Assistant Administrator determines that an emergency

exists that poses a significant risk to the well-being of the species

or stocks of marine mammals specified in Sec. 216.161(b), or that

significantly and detrimentally alters the scheduling of explosives

detonation within the area specified in Sec. 216.161(a), the Letter of

Authorization issued pursuant to Sec. 216.106 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. 98-31993 Filed 11-30-98; 8:45 am]

BILLING CODE 3510-22-F