[Federal Register Volume 63, Number 230 (Tuesday, December 1, 1998)]
[Rules and Regulations]
[Pages 66069-66077]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-31993]
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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
