[Federal Register Volume 61, Number 150 (Friday, August 2, 1996)]
[Proposed Rules]
[Pages 40377-40380]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19659]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 216
[Docket No. 960318084-6199-02; I.D. 071596C]
RIN 0648-AG55
Taking and Importing Marine Mammals; Taking Marine Mammals
Incidental to Naval Activities
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; notice of public meetings and request for
comments.
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SUMMARY: NMFS has received an application from the U.S. Navy for an
incidental small take exemption under the Marine Mammal Protection Act
(MMPA) to take a small number of marine mammals incidental to shock
testing the USS SEAWOLF submarine in the offshore waters of the U.S.
Atlantic coast in 1997. By this notice, NMFS is proposing regulations
to govern that take. NMFS also announces the times, dates, and
locations of public meetings in order to receive comments from the
general public on the Navy application and the proposed regulations. In
order to grant the exemption and issue the regulations, NMFS must
determine that these takings will have a negligible impact on the
affected species and stocks of marine mammals. NMFS invites comment on
the application and the proposed regulations.
DATES: Comments must be received no later than September 17, 1996.
Public meetings are scheduled as follows:
1. August 19, 1996, 10 a.m.-4 p.m. Silver Spring, MD.
2. August 20, 1996, 7-10 p.m. Norfolk, VA.
3. August 21, 1996, 7-10 p.m. Atlantic Beach, FL.
ADDRESSES: Comments should be addressed to Chief, Marine Mammal
Division, Office of Protected Resources, National Marine Fisheries
Service, 1315 East-West Highway, Silver Spring, MD 20910-3226. A copy
of the application may be obtained by writing to the above address,
telephoning the person below (see FOR FURTHER INFORMATION CONTACT) or
by leaving a voice mail request at (301) 713-4070. A copy of the draft
environmental impact statement (draft EIS) may be obtained from Will
Sloger, U.S. Navy, at (803) 820-5797.
The public meetings will be held at the following locations:
1. Norfolk--Lafayette Winona Middle School auditorium, 1701 Alsace
Avenue, Norfolk, VA.
2. Atlantic Beach--Mayport Middle School cafeteria, 2600 Mayport Road,
Atlantic Beach, FL.
3. Silver Spring--Silver Spring Metro Center Building 4, 1st floor,
1305 East-West Highway, Silver Spring, MD.
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 above individual and to the Office of Information and
Regulatory Affairs, Office of Management and Budget (OMB), Attention:
NOAA Desk Officer, Washington, D.C. 20503.
FOR FURTHER INFORMATION CONTACT: Kenneth R. Hollingshead, NMFS, (301)
713-2055.
SUPPLEMENTARY INFORMATION:
Background
Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361 et seq.) directs
NMFS to allow, upon request, the incidental, but not intentional taking
of marine mammals by U.S. citizens who engage in a specified activity
(other than commercial fishing) within a specified geographical region
if certain findings are made and regulations are issued.
Permission may be granted for periods of 5 years or less if NMFS
finds that the taking will have a negligible impact on the species or
stock(s) of marine mammals, will not have an unmitigable adverse impact
on the availability of these species for subsistence uses, and
regulations are prescribed setting forth the permissible methods of
taking and the requirements pertaining to the monitoring and reporting
of such taking.
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. The USS SEAWOLF is the
first of a new class of submarines being acquired by the Navy. In
accordance with 10 U.S.C. 2366, each new class of ships constructed for
the Navy cannot proceed beyond initial production until realistic
survivability testing of the ship and its components are completed.
Realistic survivability testing means testing for vulnerability in
combat by firing munitions likely to be encountered in combat. This
testing and assessment is commonly referred to as ``Live Fire Test &
Evaluation (LFT&E).'' Because realistic testing by detonating torpedoes
or mines against a ship's hull could result in the loss of a multi-
billion dollar Navy asset, the Navy has established an LFT&E program
consisting of computer modeling, component and surrogate testing, and
shock testing the entire ship. Together, these components complete the
survivability testing as required by 10 U.S.C. 2366.
The shock test component of LFT&E is a series of underwater
detonations that propagate a shock wave through a ship's hull under
deliberate and controlled conditions. Shock tests simulate near misses
from underwater explosions similar to those encountered in combat.
Shock testing verifies the accuracy of design specifications for shock
testing ships and systems, uncovers weaknesses in shock sensitive
components that may compromise the performance of vital systems, and
provides a basis for correcting deficiencies and upgrading ship and
component design specifications. While computer modeling and laboratory
testing provide useful information, they
[[Page 40378]]
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 April 1 and September 30, 1997.
If the Mayport, FL site is selected, the shock tests would be conducted
between May 1 and September 30, 1997 in order to minimize risk to sea
turtles. Detonations would occur 30 m (100 ft) below the ocean surface
in a water depth of 152 m (500 ft). The USS SEAWOLF would be underway
at a depth of 20 m (65 ft) at the time of the test. For each test, the
submarine would move closer to the explosive so the submarine would
experience a more severe shock.
As part of a separate review under the National Environmental
Policy Act (NEPA), two sites are being considered by the Navy for the
USS SEAWOLF shock test effort. The Mayport site is located on the
continental shelf of Georgia and northeast Florida and the Norfolk site
is located on the continental shelf offshore of Virginia and North
Carolina. The Mayport site is the preferred location because of a lower
abundance of marine mammals at that site. Because of the 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 June 14, 1996 (61 FR 30212), NMFS published a notice of receipt
of the Navy's application for a small take exemption and requested
comments, information and suggestions concerning the request and the
structure and content of regulations to govern the take. The comment
period closed on July 15, 1996, but no comments were received.
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 EIS on this subject and is not repeated here. Additional
information on Atlantic coast marine mammals can be found in Blaylock
et al. (1995).1 These documents are available upon request.
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\1\ Blaylock, Robert A., James W. Hain, Larry J. Hansen, Debra
L. Palka, and Gordon T. Waring. 1995. U.S. Atlantic and Gulf of
Mexico Marine Mammal Stock Assessments. NOAA Technical Memorandum
NMFS-SEFC-363. 211 pp.
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Summary of Potential Impacts
Potential impacts to the several 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 1 lethal take, 5 injurious takes, and 570
harassment takes, while the Norfolk site has the potential to result in
8 lethal takes, 38 injurious takes, and 4,819 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, which is available upon request (see
ADDRESSES).
Summary of Proposed Mitigation and Monitoring Measures
The Navy's proposed action includes mitigation that would minimize
risk to marine mammals and sea turtles. 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 either (a) any marine mammal or sea
turtle is detected within a safety zone of 3.8 km (2.05 nmi) or a
buffer zone of an additional 1.8 km (0.05 nmi), or (b) the sea state
exceeds Beaufort 4 (i.e., wind velocity >16 kt), or the visibility is
not 1.85 km (1 nmi) or greater and the ceiling is not 305 m (1,000 ft)
or greater; and (3) monitor the area after each test 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,
testing would be halted until procedures for subsequent detonations
could be reviewed and changed as necessary.
A detailed description on the proposed measures for mitigation and
monitoring the shock test can be found in the Navy application and
draft EIS, which are available upon request (see ADDRESSES).
Reporting
Within 120 days of the completion of shock testing, the Navy would
be 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.
Preliminary 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 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 detected within the safety zone, 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 draft EIS
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).
[[Page 40379]]
Endangered Species Act (ESA)
NMFS will be consulting with the U.S. Navy under section 7 of the
ESA for this action. In that regard, the Navy submitted to NMFS a
Biological Assessment under the ESA. This consultation will be
concluded prior to a determination on issuance of a final rule and
exemption.
Classification
This action has been determined to be not significant for purposes
of E.O. 12866.
The Assistant General Counsel for Legislation and Regulation of the
Department of Commerce certified to the Small Business Administration
that this proposed rule, if adopted, would not have a significant
economic impact on a substantial number of small entities since it
would apply only to the U.S. Navy and would have no effect, directly or
indirectly, on small businesses.
This proposed 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 issued under OMB Control No. 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 burden
estimates or any other aspect of the collections of information,
including suggestions for reducing the burdens, to NMFS and OMB (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: July 30, 1996.
Charles Karnella,
Acting Director, Office of Operations Management Information.
For reasons set forth in the preamble, 50 CFR part 216 is proposed
to be amended as follows:
PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS
1. The authority citation for part 216 continues to read as
follows:
Authority: 16 U.S.C. 1361 et seq.
2. 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 or
Norfolk, VA 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); Atlantic white-sided dolphin (Lagenorhynchus
acutus); and harbor seals (Phoca vitulina).
(c) The incidental take of marine mammals identified in paragraph
(b) of this section is limited to a total of 8 mortalities, 38 injuries
and 4,819 harassment takes for detonations in the Norfolk, VA area, or
1 mortality, 5 injuries and 570 harassment takes for detonations in the
Jacksonville, FL area, 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 from April 1, 1997,
through September 30, 1997.
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 the regulations in this subpart 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 the marine mammals are no longer within the
safety zone or on a course
[[Page 40380]]
within the buffer zone that is taking them away from the safety zone.
(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, the test procedure and the monitoring
methods must be reviewed and appropriate changes must be 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 appropriate Regional
Director at least 2 weeks prior to activities involving the detonation
of explosives in order to satisfy paragraph (f) of this section.
(b) The holder of the Letter of Authorization must designate
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 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 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) 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.
(f) In coordination and compliance with appropriate Navy
regulations, at its discretion, the National Marine Fisheries Service
may place an observer 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.
(g) A final report must be submitted to the Director, Office of
Protected Resources, 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.
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.
Secs. 216.167-216.169 [Reserved]
[FR Doc. 96-19659 Filed 8-1-96; 8:45 am]
BILLING CODE 3510-22-W
