43130 Federal Register / Vol. 73, No. 143 / Thursday, July 24, 2008 / Rules and Regulations 

Delaware, Florida, Georgia, Hawaii, 

Louisiana, Maine, Maryland, 

Massachusetts, Mississippi, New 

Hampshire, New Jersey, New York, 

North Carolina, Oregon, Rhode Island, 

South Carolina, Texas, Virginia, and 

Washington; the territories of Guam, the 

U.S. Virgin Islands, and American 

Samoa; and the Commonwealths of 

Puerto Rico and the Northern Mariana 

Islands. 

* * * * * 

■ 21. Revise § 80.24 to read as follows: 

§ 80.24 Recreational boating access 

facilities. 

The State must allocate 15 percent of 

each annual apportionment under the 

Dingell-Johnson Sport Fish Restoration 

Act for recreational boating access 

facilities. However, a State may allocate 

more or less than 15 percent of its 

annual allocation with the approval of 

the Service’s Regional Director. 

Although a broad range of access 

facilities and associated amenities can 

qualify for funding under the 15-percent 

provision, the State must accommodate 

power boats with common horsepower 

ratings, and must make reasonable 

efforts to accommodate boats with larger 

horsepower ratings if they would not 

conflict with aquatic resources 

management. Any portion of a State’s 

15-percent set aside for the above 

purposes that remain unexpended or 

unobligated after 5 years must revert to 

the Service for apportionment among 

the States. 

§ 80.25 [Amended] 

■ 22. Amend § 80.25 by: 

■ a. In the section heading and 

paragraph (a), removing the words 

‘‘Federal Aid in’’ and adding in their 

place the words ‘‘Dingell-Johnson’’; and 

■ b. In paragraphs (a)(1) and (a)(2), 

removing the word ‘‘Aid’’. 

■ 23. Amend § 80.26 by revising the text 

of the introductory paragraph and 

paragraphs (b), (f) introductory text, (g) 

introductory text, and (h) introductory 

text to read as set forth below: 

§ 80.26 Symbols. 

We have prescribed distinctive 

symbols to identify projects funded by 

the Pittman-Robertson Wildlife 

Restoration Act and the Dingell-Johnson 

Sport Fish Restoration Act and items on 

which taxes and duties have been 

collected to support the respective Acts. 

* * * * * 

(b) Other persons or organizations 

may use the symbol(s) for purposes 

related to the Wildlife and Sport Fish 

Restoration Program as authorized by 

the Director. Authorization for the use 

of the symbol(s) will be by written 

agreement executed by the Service and 

the user. To obtain authorization, 

submit a written request stating the 

specific use and items to which the 

symbol(s) will be applied to Director, 

U.S. Fish and Wildlife Service, 

Washington, DC 20240. 

* * * * * 

(f) The symbol pertaining to the 

Pittman-Robertson Wildlife Restoration 

Act is below. * * * 

(g) The symbol pertaining to the 

Dingell-Johnson Sport Fish Restoration 

Act is below. * * * 

(h) The symbol pertaining to the 

Pittman-Robertson Wildlife Restoration 

Act and the Dingell-Johnson Sport Fish 

Restoration Act when used in 

combination is below. 

* * * 

■ 24. Revise § 80.27 to read as follows: 

§ 80.27 Information collection 

requirements. 

(a) Information gathering 

requirements include filling out forms 

to apply for certain benefits offered by 

the Federal Government. Information 

gathered under this part is authorized 

under the Dingell-Johnson Sport Fish 

Restoration Act (16 U.S.C. 777–777n) 

and the Pittman-Robertson Wildlife 

Restoration Act (16 U.S.C. 669–669k). 

The Service may not conduct or 

sponsor, and applicants or grantees are 

not required to respond to, a collection 

of information unless the request 

displays a currently valid OMB control 

number. OMB has approved our 

collection of information under OMB 

control number 1018–0007. Our 

requests for information will be used to 

apportion funds and to review and make 

decisions on grant applications and 

reimbursement payment requests 

submitted to the Wildlife and Sport Fish 

Restoration Program. 

(b) Submit comments on the accuracy 

of the information collection 

requirements to: U.S. Fish and Wildlife 

Service, Information Collection 

Clearance Officer, 4401 North Fairfax 

Drive, Suite 222, Arlington, VA 22203. 

Dated: July 14, 2008. 

Lyle Laverty, 

Assistant Secretary for Fish and Wildlife and 

Parks. 

[FR Doc. E8–16829 Filed 7–23–08; 8:45 am] 

BILLING CODE 4310–55–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 216 

[Docket No. 080220219–8829–02] 

RIN 0648–AT77 

Taking and Importing Marine 

Mammals; Taking Marine Mammals 

Incidental to a U.S. Navy Shock Trial 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS, upon application from 

the U.S. Navy (Navy), issues regulations 

to govern the unintentional taking of 

marine mammals incidental to 

conducting a Full Ship Shock Trial 

(FSST) of the USS MESA VERDE (LPD 

19) in the waters of the Atlantic Ocean 

offshore of Mayport, FL. Authorization 

of incidental take 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 affected species or stocks 

of marine mammals and will not have 

an unmitigable adverse impact on their 

availability for taking for subsistence 

uses. These regulations set forth the 

permissible methods of take and other 

means of effecting the least practicable 

adverse impact on the affected species 

or stocks of marine mammals and their 

habitat, as well as monitoring and 

reporting requirements. 

DATES: July 18, 2008 through July 18, 

2013. 

ADDRESSES: A copy of the Navy’s 

MMPA application, containing a list of 

references used in this document, 

NMFS’ Record of Decision (ROD), and 

other documents cited herein, may be 

obtained by writing to the Office of 

Protected Resources, National Marine 

Fisheries Service, 1315 East-West 

Highway, Silver Spring, MD 20910–

3225, by telephoning the contact listed 

under FOR FURTHER INFORMATION

CONTACT, or at: http:// 

www.nmfs.noaa.gov/pr/permits/ 

incidental.htm. 

A copy of the Navy’s Final 

Environmental Impact Statement/ 

Overseas Environmental Impact 

Statement (Final EIS/OEIS) can be 

downloaded at: http:// 

www.mesaverdeeis.com. A copy of the 

Navy’s documents cited in this final 

rule may also be viewed, by 


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appointment, during regular business 

hours at the NMFS address provided 

here. 

FOR FURTHER INFORMATION CONTACT: Ken 

Hollingshead, Office of Protected 

Resources, NMFS, (301) 713–2289, ext. 

128. 

SUPPLEMENTARY INFORMATION: 

Background 

Sections 101(a)(5)(A) and (D) of the 

MMPA (16 U.S.C. 1361 et seq.) direct 

the Secretary 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) if certain findings 

are made and regulations are issued or, 

if the taking is limited to harassment, 

notice of a proposed authorization is 

provided to the public for review. 

Authorization for incidental takings 

may be granted if NMFS finds that the 

taking will have a negligible impact on 

the species or stock(s), and will not have 

an unmitigable adverse impact on the 

availability of the species or stock(s) for 

subsistence uses (where relevant). 

NMFS must promulgate regulations 

setting forth the permissible methods of 

taking and requirements pertaining to 

the mitigation, monitoring and reporting 

of such taking. 

NMFS has defined ‘‘negligible 

impact’’ in 50 CFR 216.103 as: ‘‘an 

impact resulting from the specified 

activity that cannot be reasonably 

expected to, and is not reasonably likely 

to, adversely affect the species or stock 

through effects on annual rates of 

recruitment or survival.’’

With respect to military readiness 

activities (MRAs), such as the FSST, the 

MMPA defines ‘‘harassment’’ as: 

(i) Any act that injures or has the 

significant potential to injure a marine 

mammal or marine mammal stock in the wild 

[Level A Harassment]; or (ii) any act that 

disturbs or is likely to disturb a marine 

mammal or marine mammal stock in the wild 

by causing disruption of natural behavioral 

patterns, including, but not limited to, 

migration, surfacing, nursing, breeding, 

feeding, or sheltering, to a point where such 

behavioral patterns are abandoned or 

significantly altered [Level B Harassment]. 

Summary of Request 

On June 25, 2007, NMFS received an 

application from the Navy requesting 

authorization for the taking of marine 

mammals incidental to its FSST during 

a 4-week period in the spring/summer 

of 2008 utilizing the USS MESA VERDE 

(LPD 19), a new amphibious transport 

dock ship. The shock trial of the USS 

MESA VERDE consists of up to four 

underwater detonations of a nominal 

4,536 kilogram (kg) (10,000 pound (lb)) 

charge at a rate of one detonation per 

week. The purpose of the proposed 

action is to generate data that the Navy 

would use to assess the survivability of 

SAN ANTONIO Class amphibious 

transport dock ships. According to the 

Navy, an entire manned ship must 

undergo an at-sea shock trial to obtain 

survivability data that are not obtainable 

through computer modeling and 

component testing on machines or 

surrogates. Navy ship design, crew 

training, and survivability lessons 

learned during previous shock trials, 

and total ship survivability trials, have 

proven their value by increasing a ship’s 

ability to survive battle damage. Because 

marine mammals may be killed, injured 

or behaviorally harassed incidental to 

conducting the FSST, regulations and 

an authorization under section 

101(a)(5)(A) of the MMPA are required. 

Background 

According to the Navy, each new 

class of surface ships must undergo 

realistic survivability testing to assess 

the survivability of the hull and the 

ship’s systems, and to evaluate the 

ship’s capability to protect the crew 

from an underwater explosion. The 

Navy has developed the shock trial to 

meet its obligation to perform realistic 

survivability testing. A shock trial 

consists of a series of underwater 

detonations that propagate a shock wave 

through the ship’s hull under deliberate 

and controlled conditions. The effects of 

the shock wave on the ship’s hull, 

equipment, and personnel safety 

features are then evaluated. This 

information is used by the Navy to 

validate or improve the survivability of 

the SAN ANTONIO Class, thereby 

reducing the risk of injury to the crew, 

and damage to or loss of a ship. The 

proposed shock trial qualifies as a 

military readiness activity as defined in 

Section 315(f) of Public Law 107–314 

(16 U.S.C. 703 note). 

The USS MESA VERDE is the third 

ship in the new SAN ANTONIO (LPD 

17) Class of nine planned amphibious 

transport dock ships being acquired by 

the Navy to meet Marine Air-Ground 

Task Force lift requirements. The ships 

of the SAN ANTONIO Class will be 

replacements for four classes of 

amphibious ships—two classes that 

have reached the end of their service life 

(LPD 4 and LSD 36) and two classes that 

have already been retired (LKA 113 and 

LST 1179)—replacing a total of 41 ships. 

These new LPDs are a means to support 

Marine Expeditionary Brigade (MEB) 

amphibious lift requirements. The 

mission of the SAN ANTONIO Class 

will be to operate in various scenarios, 

as a member of a three-ship, forwarddeployed Amphibious Ready Group 

with a Marine Expeditionary Unit; in a 

variety of Expeditionary Strike Group 

scenarios; or as a member of a 12–14 

ship MEB. 

The USS MESA VERDE, would be 

exposed to a series of underwater 

detonations. The FSST is proposed to 

take place at a location at least 70 km 

(38 nm) off-shore of Naval Station 

Mayport within the Navy’s Jacksonville/ 

Charleston Operating Area over a fourweek period in the summer of 2008, 

based on the Navy’s operational and 

scheduling requirements for the ship 

class. The ship and the explosive charge 

will be brought closer together with 

each successive detonation to increase 

the severity of the shock to the ship. 

This approach ensures that the 

maximum shock intensity goal is 

achieved in a safe manner. A nominal 

4,536 kg (10,000 lb) explosive charge 

would be used. This charge size is used 

to ensure that the entire ship is 

subjected to the desired level of shock 

intensity. The use of smaller charges 

would require many more detonations 

to excite the entire ship to the desired 

shock intensity level. The proposed 

shock trial would be conducted at a rate 

of one detonation per week to allow 

time to perform detailed inspections of 

the ship’s systems prior to the next 

detonation. 

Three detonations would be required 

to collect adequate data on survivability 

and vulnerability. The first detonation 

would be conducted to ensure that the 

ship’s systems are prepared for the 

subsequent higher severity detonations. 

The second detonation would be 

conducted to ensure the safety of the 

ship’s systems during the third 

detonation, and to assess the 

performance of system configuration 

changes implemented as a result of the 

first detonation. The third and most 

severe detonation would be conducted 

to assess system configuration changes 

from the previous detonations. In the 

event that one of the three detonations 

does not provide adequate data, a fourth 

detonation may be required. As a result, 

the Navy’s proposed action was 

analyzed as consisting of up to four 

detonations. 

An operations vessel would tow the 

explosive charge in parallel with the 

USS MESA VERDE using the parallel 

tow method, as illustrated in Figure 1 of 

the Navy’s Letter of Authorization 

(LOA) application. The charge would be 

located approximately 610 meters (m) 

(2,000 feet (ft)) behind the operations 

vessel and suspended from a pontoon at 

a depth of 61 m (200 ft) below the water 

surface. Co-located with the charge 

would be a transponder used to track 


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the exact location of the charge prior to 

detonation. After each detonation, the 

shock trial array and rigging debris 

would be recovered. 

For each detonation, the USS MESA 

VERDE would cruise in the same 

direction as the operations vessel at a 

speed of up to 13 kilometers per hour 

(km/h) (up to 7 knots (kts or nm/hr)) 

with the charge directly abeam of it. 

After each detonation, an initial 

inspection for damage would be 

performed. The USS MESA VERDE 

would return to the shore facility for a 

detailed post-detonation inspection and 

to prepare for the next detonation. For 

each subsequent detonation, the USS 

MESA VERDE would move closer to the 

charge to experience a more intense 

shock level. 

Comments and Responses 

On April 11, 2008 (73 FR 19789), 

NMFS published a proposed rule on the 

Navy’s application for an incidental take 

authorization and requested comments, 

information and suggestions concerning 

the request and the structure and 

content of regulations to govern the 

take. During the 30-day public comment 

period, NMFS received comments from 

the U.S. Marine Mammal Commission 

and from one member of the public. The 

comments of the individual did not 

address issues specific to NMFS’

proposed action, so it is not addressed 

further in this final rule. The 

Commission concurs with NMFS’

finding that the planned shock trial is 

unlikely to have more than a negligible, 

short-term impact on the potentially 

affected marine mammal species and 

stocks, provided that the planned 

mitigation measures are imposed. 

Specific recommendations of the 

Commission follow. 

Comment 1: The Commission 

recommends that NMFS issue the 

requested authorization, subject to a 

requirement that operations be 

suspended immediately if more than the 

anticipated number of marine mammals 

are killed or injured incidental to the 

operations or if a dead or seriously 

injured North Atlantic right whale is 

found in the vicinity of the operations 

and the death or injury could have 

occurred incidental to the proposed 

activities. Suspension of operations 

should remain in place until NMFS (1) 

has determined that the death is not 

related to the shock testing activities, (2) 

has reviewed the situation and 

determined that further deaths or 

serious injuries are unlikely to occur, or 

(3) has revised the regulations to 

authorize additional takes under section 

101(a)(5)(A) of the MMPA. 

Response: Taking marine mammal 

species not authorized (e.g., North 

Atlantic right whales), by means not 

authorized (e.g., ship strike), and/or in 

numbers greater than authorized in the 

regulations, will result in at least a 

temporary suspension of the LOA while 

NMFS scientists investigate the 

mitigation and monitoring measures and 

recommend improvements to that 

program. While NMFS believes that the 

1-week period between detonations will 

provide sufficient time to investigate 

any unauthorized takings and 

recommend a solution, future 

detonations may need to be delayed 

pending resolution. 

Comment 2: The Commission agrees 

that the data used to estimate marine 

mammal density, seasonality of habitat 

use, and other relevant biological factors 

appear to be the latest and best data 

from NMFS and other sources. One 

exception involves the use of data 

collected jointly by NMFS and the 

Minerals Management Service (MMS) 

between 1996 and 2001, which is used 

instead of more recent data from the 

MMS’ (sperm whale seismic study 

(Palka and Johnson, 2007). The final 

report for that program was published in 

2007, and several related, peer-reviewed 

publications of sighting and tagging data 

also are available. 

Response: The Navy’s MMPA 

application for taking marine mammals 

incidental to conducting the FSST is for 

takings in the offshore waters of 

northern Florida and southern Georgia 

during the spring/summer of 2008. 

Sperm whales will not be found in these 

waters at this time of the year. As a 

result, the new analysis by Palka and 

Johnson (2007), which was conducted 

in waters north of Cape Hatteras, is not 

relevant to the current action. However, 

NMFS plans to merge the line transect 

data from Palka and Johnson (2007) 

with data collected during its previous 

surveys to investigate habitat 

preferences of sperm whales in the 

Atlantic Ocean. This new information 

will be used by NMFS and the Navy in 

future MMPA applications. 

Comment 3: The Commission is 

concerned about the possible 

consequences of staging the shock tests 

in the DeSoto Canyon area because the 

canyon appears to support relatively 

high concentrations of sperm whales, 

beaked whales, and other deep-diving 

cetaceans. 

Response: While the Navy’s Draft EIS/ 

OEIS identified offshore Norfolk, VA, 

Mayport, FL, and Pensacola, FL, as 

locations for conducting the shock trial, 

the Navy’s application under section 

101(a)(5)(A) of the MMPA requested an 

authorization for taking marine 

mammals in the offshore waters of 

Mayport, FL (the Navy’s preferred 

alternative under its Final EIS/OEIS). As 

a result, the FSST will not take place in 

DeSoto Canyon, which is off the west 

coast of Florida. 

Comment 4: The Commission 

recommends if the proposed shock trial 

cannot be completed before the end of 

summer 2008, that it be postponed until 

the spring or summer of 2009 to avoid 

the seasons when North Atlantic right 

whales are most likely to be present. 

Response: During the 5-year 

effectiveness period of these final 

regulations, NMFS, through an LOA, 

will authorize take incidental to the 

Navy’s proposed ship shock trial only 

during a period from May 1 through 

September 20, except in the case of 

2008, where an LOA will authorize take 

only upon the effective date of the 

regulations, and in the case of 2013, 

where an LOA would authorize take 

only up until the regulations expire. 

Comment 5: The Commission 

questions NMFS’s view that temporary 

threshold shift (TTS) constitutes Level B 

harassment under the MMPA. The 

Commission continues to believe that an 

across-the-board definition of ‘‘TTS’’ as 

constituting no more than Level B 

harassment inappropriately dismisses 

the possibility that an affected animal 

may experience injury or biologically 

significant behavioral changes if its 

hearing is compromised, even 

temporarily. The Commission believes 

this constitutes Level A harassment 

under both the generally applicable 

definition of this term and applicability 

to military readiness activities. NMFS 

should revisit this issue and revise its 

interpretation of TTS to recognize the 

potential for Level A harassment due to 

secondary effects of temporary hearing 

loss. 

Response: NMFS has addressed to 

this issue in several previous Federal 

Register notices in regards to potential 

impacts on marine mammals from 

explosives and sonar. Please see 70 FR 

48675, 48677 (August 19, 2005) and 66 

FR 22450 (May 4, 2001) for a detailed 

response. 

Affected Marine Mammals 

Up to 26 marine mammal species may 

be present in the waters off Mayport, FL: 

4 species of mysticetes, 19 species of 

odontocetes, 2 species of pinnipeds, and 

1 sirenian species (manatee). Mysticetes 

are unlikely to occur in this area during 

the spring or summer time period. 

Odontocetes may include the sperm 

whale, dwarf and pygmy sperm whale, 

4 species of beaked whales, and 11 

species of dolphins and porpoises. For 

detailed information on marine mammal 


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species, abundance, density estimates, 

and the methods used to obtain this 

information, reviewers are requested to 

refer to the Navy’s LOA application, and 

Final EIS/OEIS for the Shock Trial of 

the USS MESA VERDE (see ADDRESSES

for information on the availability of the 

Navy’s LOA application and Final EIS/ 

OEIS). 

Potential Impacts to Marine Mammals 

Potential impacts on the marine 

mammal species known to occur in the 

area offshore of Mayport, FL from shock 

testing include both lethal and nonlethal injury, as well as Level B 

harassment. NMFS concurs with the 

Navy that it is very unlikely that injury 

will occur from exposure to the 

chemical by-products released into the 

surface waters due to the low initial 

concentrations and rapid dispersion of 

such by-products. NMFS concurs with 

the Navy also believe that no permanent 

alteration of marine mammal habitat 

would occur as a result of the 

detonations. The Navy’s calculations 

(which include mitigation effectiveness) 

indicate that the FSST at the Mayport 

site, during summer, has the potential to 

result in up to 1 take by mortality, 2 

Level A harassment takes (injuries), and 

282 takings by Level B (behavioral) 

harassment across all species of 

odontocetes. Calculations by species are 

provided in the Navy’s LOA application 

and summarized here. 

Mortality and Injury 

Marine mammals can be killed or 

injured by underwater explosions due to 

the response of air cavities, such as the 

lungs and bubbles in the intestines, to 

the shock wave. The criterion for 

mortality used by the Navy in its 

analysis for the proposed USS MESA 

VERDE shock trial is the onset of 

extensive lung hemorrhage. In this 

analysis, the acoustic exposure 

associated with onset of severe lung 

injury (extensive lung hemorrhage) is 

used to define the outer limit of the 

zone within which species are 

considered to experience mortality. 

Extensive lung hemorrhage is 

considered debilitating and potentially 

fatal as a result of air embolism or 

suffocation. For the predicted impact 

ranges, representative marine mammal 

body sizes (mean body mass values) and 

average lung volumes were established, 

relative densities identified, and species 

were subsequently grouped by size (i.e., 

mysticetes and sperm whales, large 

odontocetes, small odontocetes). 

Thresholds and associated ranges for the 

onset of severe lung injury are variable 

for each of these groups depending 

upon their mean body mass and lung 

volume. Tables 4 and 5 in the Navy’s 

LOA application provide a list of the 

criterion with thresholds and ranges for 

each grouping by mean body mass. 

In the Navy’s analysis, all marine 

mammals within the calculated radius 

for onset of extensive lung injury (i.e., 

onset of mortality) are counted as lethal 

takes. The range at which onset of 

extensive lung hemorrhage is expected 

to occur is greater than the ranges at 

which 50 percent to 100 percent 

lethality would occur from closest 

proximity to the charge or from 

presence within the bulk cavitation 

region (see Tables 4 and 5 of the Navy’s 

LOA application). The region of bulk 

cavitation is an area near the water 

surface above the detonation point in 

which the reflected shock wave creates 

a region of cavitation within which 

smaller animals would not be expected 

to survive. Because the range for onset 

of extensive lung hemorrhage for 

smaller animals tends beyond the range 

of bulk cavitation and because all 

injuries more serious than onset of 

extensive lung hemorrhage are 

considered lethal takes, all smaller 

animals within the region of cavitation 

and all animals (regardless of body 

mass) with more serious injuries than 

onset of extensive lung hemorrhage are 

accounted for in the lethal take estimate. 

The calculated maximum ranges for 

onset of extensive lung hemorrhage 

depend upon animal body mass, with 

smaller animals having the greatest 

potential for impact, as well as water 

column temperature and density. 

Appendix D of the USS MESA VERDE 

Final EIS/OEIS presents calculations 

that estimate the range for the onset of 

extensive lung hemorrhage. 

For injury (Level A harassment), the 

criterion applied is permanent threshold 

shift (PTS), a non-recoverable injury 

that must result from the destruction of 

tissues within the auditory system (e.g., 

tympanic membrane rupture, 

disarticulation of the middle ear 

ossicles, and hair-cell damage). OnsetPTS is indicative of the minimum level 

of injury that would occur due to sound 

exposure. All other forms of trauma 

would occur closer to the sound source 

than the range at which the onset of PTS 

occurs. In this analysis, the smallest 

amount of PTS (onset-PTS) is taken to 

be the indicator for the smallest degree 

of injury that can be measured. The 

acoustic exposure associated with onsetPTS is an energy flux density (EL) of 

198 decibel (dB) re 1 μPa2-sec or greater 

for all mean body mass sizes. Appendix 

D of the USS MESA VERDE Final EIS/ 

OEIS presents calculations that estimate 

the range for the onset of PTS in marine 

mammals exposed to detonations 

associated with the FSST. 

Incidental Level B Harassment 

In the Navy’s LOA request and the 

accompanying USS MESA VERDE Final 

EIS/OEIS, TTS is used as the criterion 

for Level B (behavioral) harassment for 

marine mammals. As the Navy explains 

in the Final EIS/OEIS: 

Some physiological effects can occur that 

are non-injurious but which can potentially 

disrupt the behavior of a marine mammal. 

These include temporary distortions in 

sensory tissue that alter physiological 

function but which are fully recoverable 

without the requirement for tissue 

replacement or regeneration. For example, an 

animal that experiences a temporary 

reduction in hearing sensitivity suffers no 

injury to its auditory system, but may not 

perceive some sounds due to the reduction 

in sensitivity. As a result, the animal may not 

respond to sounds that would normally 

produce a behavioral reaction. This lack of 

response qualifies as a disruption of normal 

behavioral patterns—the animal is impeded 

from responding in a normal manner to an 

acoustic stimulus. 

As explained in previous incidental 

take authorizations for explosions, the 

smallest measurable amount of TTS 

(onset-TTS) is taken as the best 

indicator for Level B (behavioral) 

harassment. Because it is considered 

non-injurious, the acoustic exposure 

associated with onset-TTS is used to 

define the outer limit of the range 

within which marine mammal species 

are predicted to experience Level B 

harassment attributable to physiological 

effects. This follows from the concept 

that hearing loss potentially affects an 

animal’s ability to react normally to the 

sounds around it; it potentially disrupts 

normal behavior by preventing it from 

occurring. Therefore, the potential for 

TTS qualifies as a Level B harassment 

that is mediated by physiological effects 

upon the auditory system. 

In this analysis, a dual criterion for 

onset-TTS has been developed by the 

Navy: (1) An energy-based TTS criterion 

of 183 dB re 1 μPa2-sec EL, and (2) a 

pressure-based TTS criterion of 224 dB 

re 1 μPa (23 psi) received peak pressure. 

For additional information on the 

establishment of these criteria by the 

Navy and NMFS, please see Appendix 

D in the Final EIS/OEIS. If either 

threshold is met or exceeded, TTS is 

assumed to have occurred. The 

thresholds are primarily based on 

cetacean TTS data from Finneran et al. 

(2002). Because the impulsive sound 

exposures analyzed in this cetacean TTS 

data are similar to the sounds of interest 

for this analysis, they provide the data 

that are most directly relevant to this 

action. The predicted impact ranges 


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applied the more stringent criterion, in 

this case, the 183–dB re 1 μPa2-sec 

weighted energy flux density level. 

Corresponding TTS ranges are listed 

in Table 5 in the Navy’s LOA 

application. For onset-TTS, the more 

conservative of the two criteria was 

chosen for determining the range that 

defined the impact zone, regardless of 

water depth. Expected numbers of 

marine mammals within these radii 

were calculated using mean densities 

from Appendix B of the USS MESA 

VERDE Final EIS/OEIS. Mean density 

values were previously adjusted to 

account for submerged (undetectable) 

individuals. Because the range defining 

the zone in which onset-TTS is 

predicted is much larger than the range 

corresponding to mortality or injury, 

more individuals and more species 

could be affected. Marine mammal 

species known to occur at or near the 

proposed Mayport location, but not seen 

during aerial surveys used to develop 

density estimates (i.e., fin, humpback, 

minke, sperm, and North Atlantic right 

whales, and several dolphin species) 

and not expected to be present during 

the time of the year when the FSST will 

occur (summer), were not taken into 

account in these calculations. The 

results for individual species were 

rounded to the nearest whole number 

and then summed. For summations 

which were less than 0.5, calculations 

were rounded down to zero (see USS 

MESA VERDE Final EIS/OEIS, App. C). 

Table 1 below (Table 7 in the Navy’s 

LOA application) summarizes the 

mortality, injury, and harassment 

exposure estimates in summer, for the 

proposed Mayport location. The Navy 

estimates that for offshore Mayport, FL 

in summer 1 marine mammal (a 

bottlenose dolphin) will be killed and 2 

injured (a bottlenose dolphin and a 

Risso’s dolphin). Estimated numbers of 

marine mammals predicted to 

experience Level B harassment are 282 

individual marine mammals at Mayport, 

FL in the summer. 

BILLING CODE 3510–22–P 

BILLING CODE 3510–22–C 

Potential Impact on Marine Mammal 

Habitat 

As described in the Final EIS/OEIS, 

detonations would have only shortterm, localized impacts on the water 

column’s physical, chemical, and 

biological characteristics. No lasting or 

significant impact on marine mammal 

habitat is anticipated, and no restoration 

would be necessary. Therefore, we 

conclude that marine mammal habitat 

would not be affected. 

Mitigation and Monitoring Measures 

The operational site for the proposed 

shock trial off Mayport, FL would be a 

3.5-nm (6.5-km) radius Safety Range 

centered on the explosive charge. The 

concept of Safety Range is an integral 

part of the Navy’s protective measures 

plan, the purpose of which is to prevent 

death and injury to marine mammals 

(and sea turtles). The Safety Range for 

the Mayport location would be greater 

than the predicted maximum ranges for 

mortality and injury (onset PTS) 

associated with detonation of a 4,536 kg 

(10,000 lb) explosive (see Table 5 of the 

Navy’s LOA application). 

The Navy’s proposed action includes 

mitigation and monitoring that would 

minimize risk to marine mammals, 

which NMFS included in its proposed 

rule. (Mitigation measures for sea turtles 

have been analyzed in the Navy’s Final 

EIS/OEIS and addressed through 

consultation under section 7 of the 

Endangered Species Act (ESA) and 

issuance of a Biological Opinion on this 

action). The mitigation and monitoring 

measures that will be implemented to 

minimize risk to marine mammals are as 

follows: 

(1) Through pre-detonation aerial 

surveys, the Navy will select a primary 

and two secondary test sites within the 

test area where, based on the results of 

aerial surveys conducted one day prior 

to the first detonation, observations 

indicate that marine mammal 

populations are the lowest; 

(2) Pre-detonation aerial monitoring 

will be conducted on the day of each 


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detonation to evaluate the primary test 

site and verify that the 3.5 nm (6.5 km) 

Safety Range is free of visually 

detectable marine mammals (and other 

critical marine life). If marine mammals 

are detected in the primary test area, the 

Navy will survey the secondary areas for 

marine mammals, and may move the 

shock test to one of the other two sites; 

(3) Independent marine mammal 

observers (MMOs) will visually monitor 

the Safety Range by air (2 MMOs), 

onboard the USS MESA VERDE (a 

minimum of 6 MMOs) and onboard the 

Marine Animal Recovery Team (MART) 

support vessel (a minimum of 2 MMOs) 

before each test and coordinate with the 

Lead Scientist and Shock Trial Officer 

to postpone detonation if any marine 

mammal is detected within the Safety 

Range of 3.5 nm (6.5 km); 

(4) A detonation will not occur if an 

ESA-listed marine mammal is detected 

within the Safety Range, and 

subsequently cannot be detected. If a 

North Atlantic right whale or other ESAlisted marine mammal is seen, 

detonation will not occur until the 

animal is positively relocated outside 

the Safety Range and at least one 

additional aerial monitoring of the 

Safety Range shows that no other right 

whales or other listed marine mammals 

are present; 

(5) Detonation will not occur if the sea 

state exceeds 3 on the Beaufort scale 

(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 equal to or 

less than 5.6 km (3 nm), and/or the 

aircraft ceiling (i.e., vertical visibility) is 

equal to or less than 305 m (1,000 ft); 

(6) Detonation will not occur earlier 

than 3 hours after sunrise or later than 

3 hours prior to sunset to ensure 

adequate daylight for pre- and postdetonation monitoring; and 

(7) The area will be monitored by 

observers onboard the MART vessel and 

by aircraft observers for 48 hours after 

each detonation, and for 7 days 

following the last detonation, to find, 

document and track any injured or dead 

animals. The aerial survey will search 

for a minimum of 3 hrs/day; the MART 

observers will monitor during all 

daylight hours. If post-detonation 

monitoring shows that marine mammals 

were killed or injured as a result of the 

shock trial, or if any marine mammals 

are observed in the Safety Range 

immediately after a detonation, NMFS 

will be notified immediately and 

detonations will be halted until 

procedures for subsequent detonations 

can be reviewed by NMFS and the Navy 

and changed as necessary. 

More detailed descriptions of the 

protocols for the shock trial’s mitigation 

and monitoring can be found in Section 

5 of the Navy’s Final EIS/OEIS. 

Reporting Requirements 

Within 120 days of the completion of 

the USS MESA VERDE shock trial, the 

Navy will submit a final report to 

NMFS. This report will 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; (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 

an estimate of the number of marine 

mammals in the Safety Range at the 

time of the detonation based on post-test 

aerial monitoring and current density 

estimates; and (4) results of 

coordination with coastal marine 

mammal/sea turtle stranding networks. 

Determinations 

Based on the scientific analyses 

detailed in the Navy’s LOA application 

and further supported by information 

and data contained in the Navy’s Final 

EIS/OEIS for the USS MESA VERDE 

shock trial and summarized in the 

preamble to this final rule, NMFS has 

determined that the incidental taking of 

marine mammals resulting from 

conducting an FSST on the USS MESA 

VERDE in the waters offshore of 

Mayport, FL during the summer months 

would have a negligible impact on the 

affected marine mammal species or 

stocks. While detonation of up to four 

4,536-kg (10,000-lb) charges may 

adversely affect some marine mammals, 

the latest abundance and seasonal 

distribution estimates support the 

finding that the lethal taking of a single 

bottlenose dolphin, the injury of one 

bottlenose dolphin and one Risso’s 

dolphin, and the Level B behavioral 

harassment of 282 small whales and 

dolphins of 7 different genera will have 

a negligible impact on the affected 

species or stocks of marine mammals 

inhabiting the waters of the U.S. 

Atlantic Coast. Impacts will be 

mitigated by mandating a conservative 

safety range for pre-detonation marine 

mammal exclusion, incorporating aerial 

and shipboard monitoring efforts in the 

program both prior to, and after, 

detonation of explosives, and 

prohibiting detonations whenever 

marine mammals are either detected 

within the 3.5-nm (6.5-km) Safety Range 

(or may enter the Safety Range at the 

time of detonation), or if weather and 

sea conditions preclude adequate aerial 

surveillance. Implementation of 

required mitigation and monitoring 

measures will result in the least 

practicable adverse impact on marine 

mammal stocks. NMFS has also 

determined that the FSST operation will 

not have an unmitigable adverse impact 

on the availability of marine mammals 

for subsistence uses identified in MMPA 

section 101(a)(5)(A)(i) (16 U.S.C. 

1371(a)(5)(A)(i)). Therefore, NMFS has 

determined that the requirements of 

section 101(a)(5)(A) of the MMPA have 

been met. 

National Environmental Policy Act 

(NEPA) 

The Navy released its Draft EIS/OEIS 

for the USS MESA VERDE shock trial 

for public review on October 26, 2007 

(72 FR 60846; 72 FR 61329, October 30, 

2007) with the public review period 

ending on December 10, 2007. On May 

30, 2008 (73 FR 3115), the 

Environmental Protection Agency (EPA) 

announced receipt of the Navy’s Final 

EIS/OEIS on this action. NMFS is a 

cooperating agency, as defined by the 

Council on Environmental Quality (40 

CFR 1501.6), in the preparation of both 

the Draft and Final EIS/OEIS. The 

Navy’s Draft and Final EIS/OEISs are 

available for viewing or downloading at: 

http://www.mesaverdeeis.com. 

In accordance with NOAA 

Administrative Order 216–6 

(Environmental Review Procedures for 

Implementing the National 

Environmental Policy Act, May 20, 

1999), NMFS has reviewed the 

information contained in the Navy’s 

Final EIS/OEIS and determined that the 

Navy’s Final EIS/OEIS accurately and 

completely describes the Navy proposed 

action alternative, reasonable additional 

alternatives, and the potential impacts 

on marine mammals, endangered 

species, and other marine life that could 

be impacted by the preferred alternative 

and the other alternatives. NMFS has 

also concluded that the impacts on the 

human environment (particularly on 

marine mammals) evaluated by the 

Navy are substantially the same as the 

impacts of NMFS/NOAA’s proposed 

action to issue these regulations and an 

authorization under section 101(a)(5)(A) 

of the MMPA to the Navy to take marine 

mammals, by harassment, incidental to 

conducting an FSST on the USS MESA 

VERDE in the waters off Mayport, FL. In 

addition, the NMFS/NOAA has 

evaluated the U.S. Navy’s Final EIS/ 

OEIS and found that it includes all 

required components for adoption by 

NOAA, including: (1) A discussion of 

the purpose and need for the action; (2) 

a summary of the EIS, including the 

issues to be resolved, and in the Final 

EIS/OEIS, the major conclusions and 


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43136 Federal Register / Vol. 73, No. 143 / Thursday, July 24, 2008 / Rules and Regulations 

areas of controversy including those 

raised by the public; (3) a listing of the 

alternatives to the proposed action; (4) 

a description of the affected 

environment; (5) a succinct description 

of the environmental impacts of the 

proposed action and alternatives, 

including cumulative impacts; and (6) a 

listing of agencies and persons 

consulted, and to whom copies of the 

EIS have been sent. 

Based on this review and analysis, 

NMFS/NOAA has adopted the Navy’s 

Final EIS/OEIS under the Council on 

Environmental Quality’s Regulations for 

Implementing the National 

Environmental Policy Act (40 CFR 

1506.3). As a result, NMFS has 

determined it is not necessary to issue 

an Environmental Assessment (EA), 

supplemental EA or a new EIS for the 

issuance of regulations and an LOA to 

the Navy for the taking of marine 

mammals incidental to this activity. 

NMFS (ROD is available on NMFS’ Web 

site (see ADDRESSES). 

ESA 

On June 12, 2007, the Navy submitted 

a Biological Assessment to NMFS to 

initiate consultation under section 7 of 

the ESA for the USS MESA VERDE 

shock trial. NMFS concluded 

consultation with the Navy on this 

action on July 17, 2008. The conclusion 

of that consultation is NMFS’ Biological 

Opinion that conducting an FSST of the 

USS MESA VERDE in the waters 

offshore of Mayport, FL during the 

summer of 2008 and the issuance by 

NMFS of an incidental take 

authorization under section 101(a)(5)(A) 

for this activity are not likely to 

jeopardize the continued existence of 

any endangered or threatened species 

under the jurisdiction of NMFS or result 

in the destruction or adverse 

modification of critical habitat. 

Classification 

This action has been determined to be 

not significant for purposes of Executive 

Order 12866. 

The Chief Counsel for Regulation of 

the Department of Commerce certified 

to the Chief Counsel for Advocacy of the 

Small Business Administration at the 

proposed rule stage, that this action 

would not have a significant economic 

impact on a substantial number of small 

entities within the meaning of the 

Regulatory Flexibility Act. If 

implemented, this rule would affect 

only the U.S. Navy which, by definition, 

is not a small business. Because of this 

certification, a regulatory flexibility 

analysis is not required and none has 

been prepared. 

The Assistant Administrator for 

Fisheries, NOAA, finds good cause to 

waive the 30-day delay in effective date 

for this final rule under 5 U.S.C. 

553(d)(3) as impracticable and contrary 

to the public interest. This rule governs 

NMFS’ issuance of an LOA and sets 

forth the mitigation, monitoring and 

reporting requirements with which the 

U.S. Navy must comply in conducting 

the shock test of the USS MESA VERDE. 

The Navy has provided NMFS with 

information that a 30-day delay in 

effective date would eliminate any 

opportunity to conduct the FSST for 

two full years because of the short 

window available in 2008 to conduct 

the test and because the Navy can 

conduct LPD 17 class FSSTs on the East 

Coast only every other year. The Navy 

is required by 10 U.S.C. Section 2366 to 

conduct realistic life fire testing of new 

classes of ships and the FSST is a 

critical piece of this testing. 

Additionally the Navy conducts the 

FSST on a class of ships prior to 

overseas deployment, to ensure that the 

ship can survive damage sustained in a 

combat situation. As a result, the delay 

would negatively affect national 

security and military readiness by 

requiring the Navy to either alter the 

scheduled deployment of several ships, 

or send ships overseas without their 

normal validation of combat 

survivability. For these reasons, NMFS 

finds good cause to waive the 30-day 

delay in effective date. This rule is 

effective upon filing. 

Changes From the Proposed Rule 

Other than minor edits to the rule for 

clarification and consistency NMFS has 

made one change to the rule: 

1. The common dolphin has been 

added to the marine mammal species 

authorized for incidental taking in 50 

CFR 216.161(b). 

List of Subjects in 50 CFR Part 216 

Administrative practice and 

procedure, Imports, Indians, Marine 

mammals, Penalties, Reporting and 

recordkeeping requirements, 

Transportation. 

Dated: July 18, 2008. 

John Oliver, 

Deputy Assistant Administrator for 

Operations, 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. Subpart O is added to read as 

follows: 

Subpart O—Taking of Marine Mammals 

Incidental to Shock Testing the USS MESA 

VERDE (LPD 19) by Detonation of 

Conventional Explosives in the Offshore 

Waters of the U.S. Atlantic Coast 

Sec. 

216.161 Specified activity and incidental 

take levels by species. 

216.162 Effective dates. 

216.163 Mitigation. 

216.164 Prohibitions. 

216.165 Requirements for monitoring and 

reporting. 

216.166 Modifications to the Letter of 

Authorization. 

Subpart O—Taking of Marine Mammals 

Incidental to Shock Testing the USS 

MESA VERDE (LPD 19) by Detonation 

of Conventional Explosives in the 

Offshore Waters of the U.S. Atlantic 

Coast 

§ 216.161 Specified activity and incidental 

take levels by species. 

(a) Regulations in this subpart apply 

only to the incidental taking of marine 

mammals specified in paragraph (b) of 

this section by persons engaged in the 

detonation of up to four 4,536 kg 

(10,000 lb) conventional explosive 

charges within the waters of the U.S. 

Atlantic Coast offshore Mayport, FL, for 

the purpose of conducting one full shipshock trial (FSST) of the USS MESA 

VERDE (LPD 19) during the time period 

between July 23 and September 20, 

2008, and May 1 and September 20, 

2009 through 2013. 

(b) The incidental take of marine 

mammals under the activity identified 

in paragraph (a) of this section is limited 

to the following species: Minke whale 

(Balaenoptera acutorostrata), dwarf 

sperm whale (Kogia simus); pygmy 

sperm whale (K. breviceps); pilot whale 

(Globicephala macrorhynchus); Atlantic 

spotted dolphin (Stenella frontalis); 

spinner dolphin (S. longirostris); 

bottlenose dolphin (Tursiops truncatus); 

Risso’s dolphin (Grampus griseus); 

rough-toothed dolphin (Steno 

bredanensis); common dolphin 

(Delphinus delphis), false killer whale 

(Pseudorca crassidens); Cuvier’s beaked 

whale (Ziphius cavirostris), Blainville’s 

beaked whale (Mesoplodon 

densirostris); Gervais’ beaked whale (M. 

europaeus); and True’s beaked whale 

(M. mirus). 

(c) The incidental take of marine 

mammals identified in paragraph (b) of 

this section is limited to a total, across 

all species, of no more than 1 mortality 

or serious injury, 2 takings by Level A 


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harassment (injuries), and 282 takings 

by Level B behavioral harassment 

(through temporary threshold shift). The 

incidental taking of any species listed as 

threatened or endangered under the 

Endangered Species Act is prohibited. 

§ 216.162 Effective dates. 

Regulations in this subpart are 

effective July 18, 2008 through July 18, 

2013. 

§ 216.163 Mitigation. 

(a) Under a Letter of Authorization 

issued pursuant to § 216.106, the U.S. 

Navy may incidentally, but not 

intentionally, take marine mammals in 

the course of the activity described in 

§ 216.161(a) provided all requirements 

of these regulations and such Letter of 

Authorization are met. 

(b) The activity identified in 

paragraph § 216.161(a) of this section 

must be conducted in a manner that 

minimizes, to the greatest extent 

practicable, adverse impacts on marine 

mammals and their habitat. When 

detonating explosives, the following 

mitigation measures must be 

implemented: 

(1) Except as provided under the 

following paragraph (2), if any marine 

mammals are visually detected within 

the designated 3.5 nm (6.5 km) Safety 

Range surrounding the USS MESA 

VERDE, detonation must be delayed 

until the marine mammals are positively 

resighted outside the Safety Range 

either due to the animal(s) swimming 

out of the Safety Range or due to the 

Safety Range moving beyond the 

mammal’s last verified location. 

(2) If a North Atlantic right whale or 

other marine mammal listed under the 

Endangered Species Act (ESA) is seen 

within the Safety Range, detonation 

must not occur until the animal is 

positively resighted outside the Safety 

Range and at least one additional aerial 

monitoring of the Safety Range shows 

that no other right whales or other ESAlisted marine mammals are present; 

(3) If the sea state exceeds 3 on the 

Beaufort scale (i.e., whitecaps on 33 to 

50 percent of surface; 2 ft (0.6 m) to 3 

ft (0.9 m) waves), the visibility is equal 

to or less than 3 nm (5.6 km), or the 

aircraft ceiling (i.e., vertical visibility) is 

equal to or less than 1,000 ft (305 m), 

detonation must not occur until 

conditions improve sufficiently for 

aerial surveillance to be undertaken. 

(4) A detonation must not be 

conducted earlier than 3 hours after 

sunrise or later than 3 hours prior to 

sunset to ensure adequate daylight for 

conducting the pre-detonation and postdetonation monitoring requirements in 

§ 216.165; 

(5) If post-detonation surveys 

determine that an injury or lethal take 

of a marine mammal has occurred, 

(i) the Director, Office of Protected 

Resources, National Marine Fisheries 

Service must be notified within 24 

hours of the taking determination, 

(ii) the FSST procedures and 

monitoring methods must be reviewed 

in coordination with the National 

Marine Fisheries Service, and 

(iii) appropriate changes to avoid 

future injury or mortality must be made 

prior to conducting the next detonation. 

§ 216.164 Prohibitions. 

No person in connection with the 

activities described in § 216.161(a) shall: 

(a) Take any marine mammal not 

specified in § 216.161(b); 

(b) Take any marine mammal 

specified in § 216.161(b) other than by 

incidental, unintentional Level A or 

Level B harassment or mortality; 

(c) Take a marine mammal specified 

in § 216.161(b) if such taking results in 

more than a negligible impact on the 

species or stocks or marine mammals; 

(d) Violate, or failure to comply with, 

the requirements of a Letter of 

Authorization issued under § 216.106. 

§ 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, or state 

or local agency with regulatory 

authority for monitoring the impacts of 

the activity on marine mammals. The 

holder must notify the Director, Office 

of Protected Resources, National Marine 

Fisheries Service 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 at least 6 

experienced on-site marine mammal 

observers (MMOs) onboard the USS 

MESA VERDE, 2 experienced MMOs 

onboard the survey aircraft and 2 

experienced MMOs onboard the Navy 

support vessel each of whom has been 

approved in advance by NMFS, to 

monitor the Safety Range for presence of 

marine mammals and to record the 

effects of explosives detonation on 

marine mammals that inhabit the Navy’s 

Jacksonville/Charleston Operating Area 

offshore of Mayport, Florida. 

(c)(1) Prior to each detonation for the 

FSST, an area will be located which has 

been determined by an aerial survey to 

contain the lowest marine mammal 

abundance relative to other areas within 

the area off Mayport, FL. 

(2) The test area must be monitored by 

aerial and shipboard monitoring for the 

following periods of time: 

(i) 48–72 hours prior to a scheduled 

detonation (aircraft only), 

(ii) on the day of detonation, 

(iii) immediately after each detonation 

and continuing for at least 3 hours 

subsequent to each detonation (or until 

sighting conditions become unsuitable 

for visual observations), 

(iv) for at least 2 days after each 

detonation, unless weather and/or sea 

conditions preclude surveillance, in 

which case post-test survey dates must 

be extended, and 

(v) for a period of 7 days after the last 

detonation for a minimum of 3 hours 

per day at the detonation site and downcurrent from the site. 

(3) Monitoring shall include, but is 

not limited to, aerial and vessel 

surveillance sufficient to ensure that no 

marine mammals are within the 

designated Safety Range prior to or at 

the time of detonation. 

(d) Under the direction of an 

attending U.S.-licensed veterinarian (an 

attending U.S. licensed veterinarian is 

one who has graduated from a 

veterinary school accredited by the 

American Veterinary Medical 

Association Council on Education, has a 

certificate by the American Veterinary 

Graduates Association’s Education 

Commission for Foreign Veterinary 

Graduates, or has received equivalent 

formal education, as determined by the 

NMFS Assistant Administrator), an 

examination and recovery of any dead 

or injured marine mammals will be 

conducted in accordance with protocols 

and best practices of the NOAA Health 

and Stranding Response Program. 

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. 

(e) Activities related to the monitoring 

described in paragraphs (c) and (d) of 

this section, including the retention of 

marine mammals, may be conducted 

without 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) Subject to relevant Navy 

regulations, the National Marine 

Fisheries Service at its discretion may 

place an observer on any ship or aircraft 

involved in marine mammal monitoring 

either prior to, during, or after 

explosives detonation. 

(g) A final report must be submitted 

to the Director, Office of Protected 


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Resources, no later than 120 days after 

completion of the USS MESA VERDE 

(LPD 19) shock trial. This report must 

contain the following information: 

(1) Date and time of all detonations 

conducted under the Letter of 

Authorization. 

(2) A detailed description of all predetonation and post-detonation 

activities related to mitigating and 

monitoring the effects of explosives 

detonation on marine mammals. 

(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 

an estimate of the number, by species, 

of marine mammals in the Safety Range 

at the time of detonation based on posttest aerial monitoring and current 

density estimates. 

(4) Results of coordination with 

coastal marine mammal/sea turtle 

stranding networks. 

§ 216.166 Modifications to the Letter of 

Authorization. 

(a) Except as provided in paragraph 

(b) of this section, no substantive 

modification, including withdrawal or 

suspension, to a Letter of Authorization 

issued pursuant to § 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 wellbeing of the species or stocks of marine 

mammals specified in § 216.151(b), the 

Letter of Authorization may be 

substantively modified without prior 

notification and an opportunity for 

public comment. Notification will be 

published in the Federal Register 

subsequent to the action. 

[FR Doc. 08–1461 Filed 7–18–08; 3:06 pm] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 660 

[Docket No.070430095–7095–01] 

RIN 0648–XH85 

Fisheries Off West Coast States; 

Modifications of the West Coast 

Commercial Salmon Fishery; Inseason 

Action #1 and #2 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Modification of fishing seasons; 

request for comments. 

SUMMARY: NOAA Fisheries announces 

two inseason actions in the ocean 

salmon fisheries. Inseason action #1 

modified the commercial fishery from 

Cape Falcon, Oregon, to the Oregon/ 

California Border, and from Horse 

Mountain, California, to Point Arena, 

California. Inseason action #2 modified 

the recreational fishery from Cape 

Falcon, Oregon, to Humbug Mountain, 

Oregon and from Horse Mountain, 

Oregon, to the U..S./Mexico Border. 

DATES: Inseason action #1 was effective 

on March 15, 2008, in the area from 

Cape Falcon, Oregon, to the Oregon/ 

California Border, effective April 7, 

2008, in the area from Horse Mountain 

to Point Arena, CA. Inseason action #2 

was effective March 15, 2008 in the area 

from Cape Falcon to Humbug Mountain, 

Oregon, effective on April 1, 2008, in 

the area from Horse Mountain to Point 

Arena, CA, and effective April 15, 2008, 

in the area from Point Arena, CA, to the 

U.S/Mexico Border. Comments will be 

accepted through August 8, 2008. 

ADDRESSES: You may submit comments, 

identified by 0648–AV56, by any one of 

the following methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal http:// 

www.regulations.gov 

• Fax: 206–526–6736 Attn: Sarah 

McAvinchey 

• Mail: D. Robert Lohn, Regional 

Administrator, Northwest Region, 

NMFS, 7600 Sand Point Way N.E., 

Seattle, WA 98115–0070 or to Rod 

McInnis, Regional Administrator, 

Southwest Region, NMFS, 501 West 

Ocean Boulevard, Suite 4200, Long 

Beach, CA 90802–4213 

Instructions: All comments received 

are a part of the public record and will 

generally be posted to http:// 

www.regulations.gov without change. 

All Personal Identifying Information (for 

example, name, address, etc.) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 

submit Confidential Business 

Information or otherwise sensitive or 

protected information. NMFS will 

accept anonymous comments. 

Attachments to electronic comments 

will be accepted in Microsoft Word, 

Excel, WordPerfect, or Adobe PDF file 

formats only. 

FOR FURTHER INFORMATION CONTACT: 

Sarah McAvinchey 206–526–4323. 

SUPPLEMENTARY INFORMATION: In the 

2007 annual management measures for 

ocean salmon fisheries (72 FR 24539, 

May 3, 2007), NMFS announced the 

commercial and recreational fisheries in 

the area from Cape Falcon, Oregon, to 

the U.S/Mexico Border. 

On March 13, 2008, the Regional 

Administrator (RA) consulted with 

representatives of the Pacific Fishery 

Management Council, Washington 

Department of Fish and Wildlife, 

Oregon Department of Fish and Wildlife 

and California Department of Fish and 

Game. Information related to catch to 

date, Chinook and coho catch rates, and 

possible impacts to Sacramento Fall 

Chinook were discussed. These 

inseason actions were taken because 

these fisheries were to occur in the 

impact area for Sacramento Fall 

Chinook. This stock was projected not 

to meet its escapement goal in 2008 and 

therefore consistent with the MagnusonStevens Act all fisheries that impact the 

stock were to be closed. By moving the 

opening dates of these fisheries NMFS 

and the Council would have more time 

to evaluate the impacts of these fisheries 

on the Sacramento River fall Chinook 

stock. 

As a result, on March 13, 2008, the 

states recommended, and the RA 

concurred that inseason action #1 

would move the opening date of the 

commercial fishery in the area from 

Cape Falcon, Oregon, to the Oregon/ 

California Border, from March 15, 2008, 

to April 15, 2008. This action also 

closed the area from Horse Mountain, 

California, to Point Arena, California, 

effective April 7, 2008. Inseason action 

#2, modified recreational fishing in the 

area from Cape Falcon, Oregon, to 

Humbug Mountain, Oregon, by 

adjusting the opening date of the fishery 

from March 15, 2008, to April 15, 2008. 

Inseason action #2 also closed the area 

from Horse Mountain, California, to 

Point Arena, California, effective April 

1; and closed the area from Point Arena, 

California, to the U.S./Mexico Border 

effective April 5, 2008. Modification in 

quota and/or fishing seasons is 

authorized by regulations at 50 CFR 

660.409(b)(1)(I). 

The RA determined that the best 

available information indicated that the 

catch and effort data, and projections, 

supported the above inseason actions 

recommended by the states. The states 

manage the fisheries in state waters 

adjacent to the areas of the U.S. 

exclusive economic zone in accordance 

with these Federal actions. As provided 

by the inseason notice procedures of 50 

CFR 660.411, actual notice of the 

described regulatory actions was given, 

prior to the date the action was 

effective, by telephone hotline number 

206–526–6667 and 800–662–9825, and 

by U.S. Coast Guard Notice to Mariners 

broadcasts on Channel 16 VHF-FM and 


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