22450 Federal Register / Vol. 66, No. 87 / Friday, May 4, 2001 / Rules and Regulations

Center at Portals II, CY–A257, 445 12th

Street, SW, Washington, D.C. The

complete text of this decision may also

be purchased from the Commission’s

copy contractor, International

Transcription Service, Inc., (202) 857–

3800, 1231 20th Street, NW,

Washington, D.C. 20036.

List of Subjects in 47 CFR Part 73

Radio Broadcasting.

Part 73 of Title 47 of the Code of

Federal Regulations is amended as

follows:

PART 73—RADIO BROADCAST

SERVICES

1. The authority citation for Part 73

continues to read as follows:

Authority: 47 U.S.C. 154, 303, 334, 336.

§ 73.202 [Amended]

2. Section 73.202(b), the Table of FM

Allotments under Vermont, is amended

by adding Brighton, Channel 295A.

Federal Communications Commission.

John A. Karousos,

Chief, Allocations Branch Policy and Rules

Division Mass Media Bureau.

[FR Doc. 01–11170 Filed 5–3–01; 8:45 am]

BILLING CODE 6712–01–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 73

[DA 01–1065; MM Docket No. 00–123, RM

9903]

Radio Broadcasting Services; Rincon,

PR.

AGENCY: Federal Communications

Commission.

ACTION: Final rule.

SUMMARY: This document denies a

Petition for Reconsideration filed by

Jose J. Arzuaga, Jr., d/b/a Ocean

Communications directed to the Report

and Order in this proceeding which

denied a proposal for a Channel 300B

allotment at Rincon, Puerto Rico. See 66

FR 10658, February 16, 2001. With this

action, the proceeding is terminated.

FOR FURTHER INFORMATION CONTACT:

Robert Hayne, Mass Media Bureau (202)

418–2177.

SUPPLEMENTARY INFORMATION: This is a

synopsis of the Commission’s

Memorandum Opinion and Order in

MM Docket No. 00–123, adopted April

18, 2001, and released April 24, 2001.

The full text of this decision is available

for inspection and copying during

normal business hours in the FCC

Reference Information Center at Portals

ll, CY–A257, 445 12th Street, SW.,

Washington, DC. The complete text of

this decision may also be purchased

from the Commission’s copy contractor,

International Transcription Service,

Inc., (202) 857–3805, 1231 M Street,

NW., Washington, DC 20036.

Federal Communications Commission.

John A. Karousos,

Chief, Allocations Branch, Policy and Rules

Division, Mass Media Bureau.

[FR Doc. 01–11171 Filed 5–3–01; 8:45 am]

BILLING CODE 6712–01–U

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 73

[DA 01–1016; MM Docket No. 90–195, RM–

7152]

Radio Broadcasting Services;

Brookline, Missouri

AGENCY: Federal Communications

Commission.

ACTION: Final rule; petition for

reconsideration.

SUMMARY: This document dismisses as

moot a Petition for Reconsideration filed

by Lake Broadcasting, licensee of

Station KBMX(FM), Channel 270A,

Eldon, Missouri and permittee of

Station KFXE(FM), Channel 271A, Cuba

Missouri, of the Report and Order in

this proceeding, which allotted Channel

271 at Brookline, Missouri, as a first

local service. See 60 FR 62219

published December 5, 1995. Lake had

argued that the Brookline allotment

prejudices Lake’s reconsideration

petition in MM Docket 89–120 for an

upgrade of its Eldon station, but the staff

ruled that the Brookline petition was

moot in view of the Commission’s

revocation of Lake’s license for its Eldon

and other stations, the affirmance by the

U.S. Court of Appeals for the DC Circuit,

and the denial of certirorari by the U.S.

Supreme Court and in view of the

Commission’s dismissal of Lake’s

reconsideration petition in MM Docket

89–120. This document also denies

Lake’s motion to set aside the Report

and Order, holding that the Brookline

allotment is valid even though the

original rulemaking proponent did not

file an application for the allotment

because four other parties did file

applications. With this action, the

proceeding is terminated.

FOR FURTHER INFORMATION CONTACT:

Andrew Rhodes, Mass Media Bureau

(202) 418–2120.

SUPPLEMENTARY INFORMATION: This is a

synopsis of the Commission’s

Memorandum Opinion and Order in

MM Docket No. 90–195, adopted April

11, 2001, and released April 20, 2001.

The full text of this decision is available

for inspection and copying during

normal business hours in the FCC

Reference Information Center at Portals

ll, CY–A257, 445 12th Street, SW.,

Washington, DC. The complete text of

this decision may also be purchased

from the Commission’s copy contractor,

International Transcription Service,

Inc., (202) 857–3805, 1231 M Street,

NW., Washington, DC 20036.

Federal Communications Commission.

John A. Karousos,

Chief, Allocations Branch, Policy and Rules

Division, Mass Media Bureau.

[FR Doc. 01–11176 Filed 5–3–01; 8:45 am]

BILLING CODE 6712–01–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 216

[Docket No. 000218048–1095–03; I.D.

013100A]

RIN 0648–AN59

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.

SUMMARY: NMFS, upon application from

the U.S. Navy is issuing regulations to

govern the unintentional take of a small

number of marine mammals incidental

to shock testing the USS WINSTON S.

CHURCHILL (DDG-81) in the offshore

waters of the Atlantic Ocean off

Mayport, FL. Issuance of regulations

governing unintentional incidental takes

of marine mammals 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 activity as such authorization is

not within the jurisdiction of the

Secretary. Rather, these regulations

Federal Register / Vol. 66, No. 87 / Friday, May 4, 2001 / Rules and Regulations 22451

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, 2001.

ADDRESSES: Copies of the Letter of

Authorization (LOA), the Navy

application, and the NMFS Biological

Opinion and Incidental Take Statement

may be obtained by writing to Donna

Wieting, Chief, Marine Mammal

Conservation Division, Office of

Protected Resources, National Marine

Fisheries Service, 1315 East-West

Highway, Silver Spring, MD 20910–

3226 or by telephoning the contact

listed here (see FOR FURTHER

INFORMATION CONTACT). A copy of the

Navy’s Final Environmental Impact

Statement (FEIS) for conducting the

shock trial are available by contacting

Will Sloger, U.S. Navy, at (843) 820–

5797.

Comments regarding the burden-hour

estimate or any other aspect of the

collection of information requirement

contained in this final 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.

FOR FURTHER INFORMATION CONTACT:

Kenneth R. Hollingshead (301) 713–

2055, ext. 128.

SUPPLEMENTARY INFORMATION:

Background

Section 101(a)(5)(A) of the Marine

Mammal Protection Act (16 U.S.C. 1361

et seq.) (MMPA) directs the Secretary of

Commerce (Secretary) to allow, upon

request, the incidental, but not

intentional, taking of small numbers 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 governing the

taking are issued.

Permission may be granted for periods

of 5 years or less if the Secretary finds

that the taking will have no more than

a negligible impact on the species or

stock(s), will not have an unmitigable

adverse impact on the availability of the

species or stock(s) for subsistence uses,

and if 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 January 12, 2000, NMFS received

an application for an LOA under section

101(a)(5)(A) of the MMPA from the U.S.

Navy to take a small number of marine

mammals incidental to shock testing the

USS WINSTON S. CHURCHILL in the

offshore waters of the Atlantic Ocean off

either Mayport, FL, or Norfolk, VA or

the offshore waters of the Gulf of

Mexico off Pascagoula, MS. However,

based, in part, on findings and

determinations made under the National

Environmental Policy Act (NEPA), the

Navy has determined that Mayport, FL

is the preferred location for the shock

trial. As a result, NMFS has conducted

its analysis of impacts on marine

mammal stocks based only on this

location. For the Navy to make a

determination to conduct the shock trial

at another location, a new negligible

impact determination and a

modification of these regulations would

be necessary before an LOA could be

issued.

Section 2366, Title 10, United States

Code (10 U.S.C 2366) requires realistic

survivability testing of a covered

weapon system to ensure the

vulnerability of that system under

combat conditions is known. (In this

case, the covered weapon system is the

USS WINSTON S. CHURCHILL.)

Realistic survivability testing means

testing for the vulnerability of the ship

in combat by firing munitions likely to

be encountered in combat with the ship

configured for combat. This testing is

commonly referred to as ‘‘Live Fire Test

& Evaluation’’(LFT&E). Realistic testing

by firing live ammunition at the ship or

detonating a real mine against the ship’s

hull, however, could result in the loss

of a multi-million dollar Navy asset.

Therefore, the Navy has established an

approved LFT&E program to complete

the vulnerability assessment of ships as

required by 10 U.S.C. 2366. The LFT&E

program includes three major areas that

together provide for a complete and

comprehensive evaluation of the

survivability of ships in a near miss,

underwater explosion environment.

These areas are computer modeling and

analysis, component testing, and an atsea ship shock trial. While computer

modeling and laboratory testing provide

useful information, they cannot

substitute for shock testing under

realistic, offshore conditions as only the

at-sea shock trial can provide the realtime data necessary to fully assess ship

survivability.

A shock test 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. 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 USS WINSTON S. CHURCHILL is

the third ship in a new Flight of 23

ARLEIGH BURKE (DDG 51)-class guided

missile destroyers being acquired by the

Navy. (A Flight is a subset of a class of

ships to which significant

modifications/upgrades have been

made.) These ships are referred to as the

Flight IIA ships and they represent the

largest single upgrade to the original

DDG 51-class destroyer.

The USS JOHN PAUL JONES (DDG

53) was shock tested off the coast of

California in June 1994 to assess the

survivability of the original DDG 51-

class destroyer. Flight IIA ships are

significantly different from the original

DDG 51-class destroyers in their design.

Major structural changes include the

addition of a helicopter hangar, Vertical

Launch System foundation changes, and

raising the aft radar arrays. Major

equipment changes include the addition

of a ship-wide Fiber Optic Data

Multiplexing System, a Zonal Electrical

Power Distribution System involving

the addition of switchboards and load

centers throughout the ship, and the

widespread use of commercial

equipment in various mission critical

systems to reduce the cost of the ships.

Typically the lead ship of a new class

or major upgrade is shock tested. The

USS WINSTON S. CHURCHILL was

selected as the shock trial ship because

it has additional design changes that

will not be included in the first two

Flight IIA ship; therefore, it is more

representative of the Flight.

The Navy’s proposed action is to

conduct a shock trial of the USS

WINSTON S. CHURCHILL at an

offshore, deep-water location. The ship

would be subjected to a series of three

or four 4,536 kg (10,000 lb) explosive

charge detonations sometime between

May and 30 September, 2001. Three

detonations are needed to collect

adequate data on survivability. A fourth

detonation would be conducted by the

Navy only if one of the planned three

detonations fails to provide technically

acceptable data (e.g., due to equipment

22452 Federal Register / Vol. 66, No. 87 / Friday, May 4, 2001 / Rules and Regulations

failure or some other technical

problem).

The ship and the explosive charge

would be brought closer together with

each successive detonation to increase

the severity of the shock. This gradation

in severity would ensure that the

survivability of the ship and its systems

is fully assessed and the point at which

failure modes begin is accurately

determined. It would also reduce the

chance of significant damage at the

highest severity detonation. The 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 ship

experiencing the next level of shock

intensity.

Comments and Responses

On December 12, 2000 (65 FR 77546),

NMFS published a proposed rule to

authorize the Navy to take small

numbers of marine mammals incidental

to the exemption and requested

comments on the proposed rule and

application. During the 45-day public

comment period, NMFS received

comments from the Marine Mammal

Commission (MMC), the American

Cetacean Society (ACS), the Cetacean

Society International (CSI), Earth Island

Institute (EII), the Humane Society of

the United States (HSUS), the Natural

Resources Defense Council (NRDC), the

OrcaLab, the Stop LFAS Worldwide

Network (SLFASWN), and the Whale

and Dolphin Conservation Society

(WDCS).

Activity Concerns

Comment 1: The SLFASWN

considered it peculiar that the permit

application lacked geo-specific

information on the proposed location of

the shock trial. It appeared to the

commenter that without an exact

location, the potential for impact is

unknown. The SLFASWN would like to

know the process used in determining

the location for the shock trial.

Response: The application noted that

the shock trial was proposed to take

place in one of three locations, off

Norfolk, VA, Mayport, FL, or

Pascagoula, MS. While the Navy’s small

take application discussed only the

potential impacts to marine mammals

(as is appropriate), substantial

information on the impacts to the total

marine environment was provided in

the accompanying draft environmental

impact statement (DEIS) that was

prepared by the Navy for this proposed

action. Likewise, the Navy’s DEIS

provided detailed discussion on the

parameters used in determining the

proposed location for the shock trial.

Comment 2: The SLFASWN asked

whether the proposed shock trial for the

USS WINSTON S. CHURCHILL is a

‘‘floating flotilla of future shock tests.’’

The SLFASWN believes the rule would

be effective for 5 years and would

provide the Navy a ‘‘carte blanche’’

ticket for shock trials.

Response: The proposed shock trial

for the USS WINSTON S. CHURCHILL

is a single shock trial of three or four

detonations that is proposed to take

place between May 1 and September 30,

2001. If the Navy proposes future shock

trials for other vessels, the Navy would

need to meet its responsibilities under

NEPA, the MMPA, and the Endangered

Species Act (ESA) prior to conducting

another shock trial. This final rule does

not authorize additional shock trials.

MMPA Concerns

Comment 3: The MMC believes that

NMFS’ proposal to limit Level B

acoustic harassment from explosive

detonation events exclusively in terms

of temporary threshold shift (TTS) is

tantamount to determining that

behavioral changes not related to TTS

do not constitute harassment as defined

in the MMPA. Such a conclusion, the

MMC contends, would be inconsistent

with the statutory definition of the term

harassment.

Response: First, NMFS would like to

clarify that the proposed criterion

limiting Level B harassment to

behavioral responses that are possible as

a result of receiving an impairment to

hearing (i.e., TTS) is limited to singleevent explosions, not multiple explosive

events spaced over a relatively short

period of time in the same vicinity, such

as multiple Signal, Underwater Sound

(SUS) charges and live-fire exercises,

nor to multiple impulse-noise sources,

such as seismic airguns and the pulsepower generator, nor to intermittent and

continuous noise sources such as Navy

sonars and oceanographic

instrumentation. All of these other

listed activities have at least the

potential to cause significant behavioral

responses on the part of marine

mammals that are not related to

behavioral disruptions caused by TTS.

For those species of marine mammals

capable of hearing the distant sounds

from the detonation, simply hearing the

acoustic signal and not reacting to that

noise is not considered a ‘‘take.’’ NMFS

considers a Level B harassment take to

occur within the maximum zone for

TTS, which, for this action at Mayport,

FL, has been calculated by the Navy as

follows:

Water Depth (ft/m) 600/183 1200/366 2,300/701

Odontocetes (nm/km) 7.2/13.3 11.0/20.4 13.6*/25.2

Mysticetes (nm/km) 13.0/24.1 13.0/24.1 15.0/27.8

* determined by the 12 lbs/in2 criterion

The different TTS distances between

odontocetes and mysticetes are based on

their probable differing hearing

sensitivity to LF sounds (Navy FEIS,

2001).

Beyond the range for TTS, NMFS has

been unable to identify behavioral

reactions on the part of a marine

mammal from a single-noise event that

would both disrupt some behavior

pattern in a biologically significant way

and have a reasonable probability of

occurrence. For a take to be considered

to have occurred, the marine mammal

would need to show some form of

behavioral reaction and the only

behavioral reactions possibly occurring

from a single noise event are either

momentary reactions such as an

orientation response relative to the

unusual event or other reactions such as

a startle response, an interruption in

vocalization, or a sensitization.

The definition of Level B harassment,

when applied to incidental takings,

questions whether a single, minor,

reaction (such as a startle, a ‘‘heads-up’’

(alert) display, or a single modified dive

sequence by either pinnipeds or

cetaceans), that has no biological

context, should qualify as a ‘‘take’’

under the definition of ‘‘harassment’’

under the MMPA. As stated by NMFS

previously (66 FR 9291, February 7,

2001), if the only reaction to the activity

on the part of the marine mammal is

within the normal repertoire of actions

that are required to carry out that

behavioral pattern, NMFS considers the

activity not to have caused an incidental

disruption of the behavioral pattern,

provided the animal’s reaction is not

otherwise significant enough to be

considered disruptive due to length or

severity. Therefore, for example, a shortVerDate 11<MAY>2000 17:13 May 03, 2001 Jkt 194001 PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 E:\FR\FM\04MYR1.SGM pfrm04 PsN: 04MYR1
Federal Register / Vol. 66, No. 87 / Friday, May 4, 2001 / Rules and Regulations 22453

term change in breathing rates or a

somewhat shortened or lengthened dive

sequence that are within the animal’s

normal range and that do not have any

biological significance (i.e., do not

disrupt the animal’s overall behavioral

pattern of breathing under the

circumstances), do not rise to a level

requiring a small take authorization. For

single explosive events, a determination

that these minor effects should not be

considered to be harassment of a marine

mammal was supported unanimously

by the marine mammal scientists

attending the NMFS Acoustic Criteria

Workshop in 1998. Under a restrictive

definition of ‘‘harassment’’ under the

MMPA, an incidental taking could be

presumed to occur for even a single

pinniped lifting or turning its head to

look at a passing, offshore, watercraft.

NMFS notes that, in 50 CFR 17.3, the

U.S. Fish and Wildlife Service defines

harass as an action that creates the

likelihood of injury to a listed species

by annoying it to such an extent as to

significantly disrupt normal behavior

patterns which include, but are not

limited to, breeding, feeding, and

sheltering.’’ NMFS supports such a

definition when marine mammals are

taken incidental to the conduct of a

maritime activity. However, the

application of Level B harassment as

described in this preamble is intended

to apply only to incidental taking by

harassment for this and similar one-time

actions and not for actions directed at

marine mammals which may have a

lower threshold of application.

Comment 4: The HSUS, in a followup comment to NMFS′ response number

1 in the proposed rule, questions NMFS

considering a permanent threshold shift

(PTS) in hearing to be Level A

harassment. According to HSUS, Level

A harassment should be reserved for the

‘‘potential to injure.’’ Since PTS is an

injury, in an acoustically oriented

species, such as cetaceans, it should be

considered as ‘‘serious injury,’’ not

Level A harassment.

Response: Depending upon the level

of severity, PTS may or may not be

considered to be a serious injury. For

example, a permanent 15 dB loss across

the animal’s entire hearing range might

be considered a severe injury, whereas

a permanent loss of 15 dB in only a few

frequencies of the hearing range might

not be considered severe. It is simply

not possible at this time to make a

scientific judgement about the severity

of different degrees of permanent

hearing loss in marine mammals with

the present state of scientific

knowledge. However, the MMPA does

not specifically include ‘‘injury’’ under

the definition of ‘‘take;’’ it includes

‘‘harass’’ under the definition of ‘‘take’’

and specifically includes ‘‘potential to

injure’’ only under the definition of

‘‘Level A harassment.’’ Therefore, the

MMPA does not distinguish between

‘‘potential to injure’’ and an actual

injury, nor does it distinguish between

serious injury and non-serious injury.

However, it is NMFS’ preference to

review all small take applications with

the potential to cause serious injury

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

(as the Navy is doing in this action).

This was expressed by NMFS in

proposed rulemaking establishing the

protocol for issuing authorizations

under section 101(a)(5)(D) of the MMPA

(60 FR 28379, May 31, 1995).

Comment 5: The CSI, quoting from

the National Research Council (NRC,

2000) report on LF sound, notes that the

NRC ‘‘recommends that in the absence

of appropriate, adequately funded

research ‘‘management of sound in the

ocean should remain conservative . . . in

the absence of required knowledge.’’

The CSI, noting that in the absence of

adequate data, NMFS and the Navy

should apply the Precautionary

Principle, the fundamental elements of

the principle being: the existence of

some indication of threat of harm; the

harm is serious or irreversible; scientific

uncertainty as to the nature or severity

of the outcome; and an obligation on

decision-makers. Finally, CSI asks

whether NMFS refutes the application

of this principle to the LOA and rulemaking at hand.

Response: The MMPA prohibits the

taking of marine mammals unless

exempted or permitted. Taking means to

harass, hunt, capture, or kill, or attempt

to harass, hunt, capture, or kill any

marine mammal. Therefore, NMFS

believes that the precautionary principle

is already at the core of the MMPA.

However, because the MMPA authorizes

the taking of marine mammals under

section 101(a)(5), provided certain

conditions and requirements are met,

NMFS must prudently apply the

Precautionary Principle through careful

analysis of impacts and implementation

of measures that will reduce impacts to

marine mammals to the lowest level

practicable. As described in this

document, NMFS believes that it and

the Navy have applied the

Precautionary Principle to the greatest

extent possible for this action through

an extensive aerial monitoring and

mitigation program that will protect

marine mammals to the greatest extent

practicable. The mitigation and

monitoring program are discussed later

in this document. In addition, NMFS

and the Navy have applied the

precautionary principle by having the

decision-making process in the public

forum through NEPA and notice and

comment rulemaking.

Comment 6: OrcaLab requests that

NMFS proceed with caution and reject

both the Navy’s request for permission

to proceed with the ship shock trial and

the proposal to classify 182 dB as Level

B harassment.

Response: The Navy’s proposal to

classify the 182 dB (re 1 uPa2–sec)

criterion is discussed later in this

document. However, NMFS must clarify

that the Navy is not requesting an

authorization to conduct the shock trial,

only the taking of marine mammals

incidental to that activity. Whether or

not the Navy conducts the shock trial of

the USS WINSTON S. CHURCHILL is

the responsibility of the Secretary of the

Navy, not NMFS.

Comment 7: The ACS requests NMFS

provide peer-reviewed, independent

scientific studies in support of the 182

dB (re 1 uPa2–sec) criterion level.

Response: There is no requirement to

require independent peer-reviewed

research studies prior to issuing an

authorization under the MMPA.

Independent peer-review for marine

mammal monitoring or research is

required under section 101(a)(5) of the

MMPA only for incidental harassment

authorizations that affect Arctic

subsistence uses. Since the shock trial is

not taking place in Arctic waters, or

affecting subsistence species,

independent peer review is not

required. However, it should be

understood that several of the

documents referenced in the proposed

rule and in this document have been

peer reviewed prior to publication in

scientific journals. For example, the

Schlundt et al. (2000) and Finneran et

al. (2000) research papers, which are

discussed later in this document, were

peer reviewed prior to publication in

the Journal of the Acoustical Society of

America.

Comment 8: OrcaLab believes that the

cetacean deaths and strandings in the

Bahamas in March 2000, which

coincided with U.S. Navy activities,

should be sufficient evidence of the

potential risks to cause NMFS to reject

the authorization, at least at this time.

OrcaLab and the WDCS recommend that

NMFS wait until the ongoing

investigation of the causes of the

Bahamas strandings are known before

allowing the U.S. Navy to carry out

further high risk activities that involve

exposing marine mammals to

potentially harmful underwater sounds.

The SLFASWN and others were also

concerned about recent marine mammal

strandings in the Bahamas and in

Florida waters.

22454 Federal Register / Vol. 66, No. 87 / Friday, May 4, 2001 / Rules and Regulations

Response: In response to the stranding

of beaked whales in the Bahamas on

March 15, 2000, the Navy and NMFS are

investigating the transit of several ships

using standard, hull-mounted sonar

operations within normal frequency

ranges, power outputs, and duty cycles,

which are, respectively: 3.5 and 7.5 kHz,

235 dB (and lower) and ‘‘pings’’ of short

duration (about one-tenth of a second or

less duration on a standard duty cycle

of 24 seconds). Because these sonars

have signal and operational

characteristics very different from

explosives, and because an effective

monitoring and mitigation program will

be required for protecting marine

mammals from injury or mortality from

the shock trial, NMFS does not believe

it is appropriate to delay issuance of an

LOA until the investigation of these

strandings is complete. In this action,

the Navy has recognized that

conducting the ship shock trial can

result in a taking of marine mammals,

and in that regard, applied for an

authorization under the MMPA. It

should be understood, that the taking of

marine mammals, including mortality,

can be authorized under the MMPA,

provided the taking is small and would

have no more than a negligible impact

on affected marine mammal

populations. Those determinations will

be made in this document.

The cause of the unusual stranding of

bottlenose dolphins off the coast of

Florida last year remains unknown and

under investigation at this time.

Comment 9: The NRDC, in a footnote,

expresses concern that, if NMFS

continues to consider TTS as being

limited to Level B harassment, because

the MMPA contains an exemption for

scientific research activities that

produce only Level B harassment, it

might weaken, to an unknown extent,

the application of the MMPA.

Response: Current NMFS regulations

(50 CFR 216.44(b)) prohibit issuing

General Authorizations for Level B

harassment for all intrusive research on

marine mammals. Intrusive research,

which must be authorized under a

marine mammal scientific research

permit under section 104 of the MMPA,

is defined in 50 CFR 216.3 to include

the use of a stimulus (e.g., acoustics)

directed at the animal.

Rulemaking Concerns

Comment 10: The CSI objects to the

arbitrary decision not to address

comments of the MMC and the

Commonwealth of Virginia

(Commonwealth) because ‘‘they were

limited to the Navy’s DEIS for shock

testing.’’ CSI states that it is very

interested in the NMFS reply to those

comments, and, by the time they are

available in the Navy’s FEIS, the issue

at hand may be in court. The MMC also

expressed concern that the proposed

rule did not address its comments on

the Navy DEIS in its response to

comments on the Advanced Notice of

Proposed Rulemaking (ANPR).

Response: NMFS did not respond to

the comments contained in the MMC

and Commonwealth letters on the ANPR

in the proposed rule document because

they did not directly address issues in

the proposed rule or the application;

those organizations simply attached

copies of the letters they submitted to

the Navy on the Navy’s DEIS without

further elaboration or clarification.

NMFS does not consider it appropriate

to respond in the Federal Register to

attachments to letters, unless the

attachment supports concerns made in

the actual letter to NMFS. Although, as

a cooperating agency, NMFS may

review and comment on the Navy’s

response to those letters in the FEIS, the

responsibility to reply resides with the

Navy, not NMFS.

Comment 11: The MMC believes that

the proposed rule relies to a significant

extent on the Navy’s DEIS for its

interpretation and justification, and

requests that previous comments be

considered as incorporated by reference,

and addressed in the NMFS final rule,

as well as the Navy’s FEIS.

Response: As is normal procedure,

NMFS has incorporated into its

decision-making process all comments

submitted on the NEPA document that

accompanies the proposed action. In

this case this includes the comments

submitted by the MMC and other

organizations and individuals on the

Navy’s DEIS, and the responses made by

the Navy to these recommendations and

concerns as provided in the Navy’s

recently-released FEIS. Because NMFS

has adopted the Navy’s FEIS as its own

on this matter, these responses can be

considered to also reflect NMFS’

response. Where necessary, this

document provides additional

clarification on certain issues raised by

the MMC in its March 30, 2000, letter.

However, NMFS clarifies for future

reference that it will respond in the

Federal Register only to comments

provided directly to the Agency during

the designated comment period that are

relevant to the proposed action. Unless

NMFS is the responsible Federal agency

under NEPA, or is a co-sponsor (as

opposed to being a cooperating agency)

for the NEPA preparation, NMFS will

not respond in the Federal Register to

comments on NEPA documents

prepared by other Federal agencies.

Comment 12: The EII believes that

because scientific research is

insufficient to judge environmental

impact from loud, undersea noise

events, it is premature to issue the rule.

Additional scientific research must be

carried out by the Navy and NMFS in

order to address the unknown factors of

adverse environmental impacts of noise

on marine wildlife.

Response: While NMFS agrees that

more scientific research would be

desirable to assess impacts from

explosive events on marine mammals,

NMFS does not agree that the current

information is insufficient to issue small

take authorizations for this type of an

activity. Recognizing the difficulty of

directly studying impacts of explosives

on live marine mammals, the reluctance

of many researchers to risk harm to

marine mammals, and the objections by

some members of the public to allowing

even non-intrusive research on marine

mammals, researchers must use either

surrogate species or deceased marine

mammals. This information is provided

in Appendices D and E of the Navy’s

DEIS and FEIS on this action. NMFS

believes that the information contained

in the Navy’s application, and the

Navy’s FEIS on the USS WINSTON S.

CHURCHILL, along with other

information, provide the best scientific

information available for making a

determination of negligible impact on

marine mammal species.

Comment 13: The HSUS expresses

concern that nothing in the proposed

rule restricts the use of 182 dB (re 1

uPa2-sec) criterion for inducing TTS to

impulsive sounds only. The HSUS

requests that NMFS clarify that the

criterion established for the USS

WINSTON S. CHURCHILL shock test is

for impulsive sounds only. The NRDC

believes that the proposed rule adopts a

new standard for impulse-related

threshold shifts (TSs). The CSI believes

the proposed rule ignores the

distinction between impulse and

continuous noise; repetitive impulse

sounds have cumulative effects.

Response: See response to Comment

3. In general, NMFS recognizes two

categories of sounds in the water,

impulsive and intermittent/continuous.

Depending upon the rise-time of the

signal and its duration, an impulsive

sound may be considered as an

explosion. Use of the 182 dB (re 1 uPa2-

sec) as one of the two required criteria

for determining onset of TTS applies

only to those types of impulsive sounds

that have the short-rise time indicative

of an explosion; it does not apply

directly, at this time, to other forms of

repetitive impulse sounds (such as

seismic airguns), wherein an animal’s

Federal Register / Vol. 66, No. 87 / Friday, May 4, 2001 / Rules and Regulations 22455

hearing is not given sufficient time to

fully recover. It also does not apply to

intermittent/continuous sounds, such as

the Navy’s Surveillance Towed Array

Sensor System Low Frequency Active

(SURTASS LFA) sonar system. For

repetitive impulse sounds that are not

explosions, NMFS agrees with the

scientists participating at the Mineral’s

Management Service’s High Energy

Seismic Survey (HESS) Workshop

(MMS, 1999) and the NMFS Workshop

on Acoustics, that they were

apprehensive about levels above 180 dB

re 1 uPa (root-mean-squared (rms)) with

respect to overt behavioral,

physiological, and hearing effects on

marine mammals in general (MMS,

1999). It should be clarified here that

the 180 dB (re 1 uPa (rms)) refers only

to impulse sounds, not intermittent or

continuous anthropogenic sounds. Also,

as clarified at the 1998 NMFS Acoustics

Criteria Workshop, the 180 dB (re 1 uPa

(rms)) applies only to cetaceans; a 190

dB (re 1 uPa (rms)) level was established

at that meeting for impulse sounds

affecting pinniped (seals and sea lions)

hearing. However, all parties recognized

that the 180 dB (re 1 uPa (rms)) is only

an interim criterion until such time as

new information becomes available that

indicates a different level to be

appropriate.

Because the shock trial consists of 3–

4 detonations each spaced a week apart,

cumulative effects that might be

anticipated with other impulse sounds

are unlikely.

Comment 14: The HSUS notes that

the best available scientific information

on TTS in cetaceans (as well as

pinnipeds) is both clearly preliminary

and extremely limited in scope.

Agencies should, therefore, limit its

application and should not use it to

establish a broad regulatory definition of

Level B (acoustic) harassment.

Response: NMFS is in complete

agreement with the comment. Use of the

12 psi peak-pressure and the 182 dB (re

1 uPa2–sec) dual criterion should be

limited, at this time, to single-impulse

events, and not multiple-events. This

was expressed in the shock trial

proposed rule and previously in this

document.

Comment 15: Several commenters

requested NMFS to promulgate a

separate proposed rule, subject to public

comment and scientific scrutiny, that

addresses a new standard for all marine

mammal species for onset of TTS at 182

dB (re 1 uPa2–sec).

Response: NMFS does not agree that

separate rulemaking is needed before it

can adopt levels for acoustic

harassment. Because part of this

rulemaking is the criteria NMFS

proposes to use to determine levels of

harassment and injury incidental to

takings of marine mammals by the USS

WINSTON S. CHURCHILL shock trial, it

was fully available for public review

and comment by the public and

independent scientists at the proposed

rule stage. While this document can be

used as guidance for other maritime

activities for determining whether an

activity might result in a taking of a

marine mammal (if that activity uses

explosives), as will be demonstrated in

this document, codifying such

regulations would impede timely

modification to adopt new scientific

information whenever new data and

information become available. For

example, a sound pressure level (SPL) of

180 dB (re 1 uPa (rms)) has been

generally accepted as a level (for

impulse noise only) sufficient to protect

marine mammals from anthropogenic

noise, but only as an interim measure

until additional data becomes available.

Future research might indicate that this

level was not sufficiently conservative

to protect all species of marine

mammals (or that it was overly

conservative). If codified, NMFS would

likely be delayed in the implementation

of any new criteria until new amending

regulations could be implemented (a

minimum of 1 year). This is not

warranted at this time because NMFS

anticipates significant advances in this

area in the near future. However, NMFS

anticipates publishing its acoustic

criteria for determining impacts from

underwater noise on marine mammals

shortly. Although this guidance will not

be codified, it will provide the latest

guidance to the affected public and

governmental agencies and will be

available for public review and

comment.

Comment 16: The CSI objects to the

use of multiple criteria in a final rule

that is an energy-based TTS criterion of

182 dB (re 1 uPa2–sec) and a 12 lbs/in2

(psi) peak pressure. Also, the HSUS

does not understand the need for dual

criteria. The HSUS finds it redundant

and confusing and the CSI believes it

will be confusing to future reviewers, as

it provides no consistent scale between

the two boundaries, unless the reviewer

is fluent with appropriate mathematical

formulas.

Response: The dual criteria were

selected to provide the greatest

protection for marine mammals by

ensuring that future activities calculate

the criterion that is most conservative

for marine mammals. As explained in

detail in Appendix E of the Navy’s DEIS

and FEIS, in most cases, the 182 dB (re

1 uPa2-sec) criterion will be the

determining factor. Therefore, while it

may be difficult for nonprofessionals to

calculate the appropriate ranges,

acoustical scientists should have little

difficulty making these calculations.

NMFS believes that it would be

appropriate for scientists to provide a

clear explanation for reviewers on how

they derived the appropriate TTS zones,

using the dual criteria. The bottom line,

however, is that the criterion that

provides the greatest protection for

marine mammals is the one that must by

used by activity proponents for

assessing impacts.

Comment 17: The CSI objects to

NMFS′ allowing such a variety of

defined measurements in permit and

LOA applications. Why does the

CHURCHILL request use dB (re 1 uPa2–

sec) energy criterion instead of dB (re 1

uPa (rms)), as used in the SURTASS

LFA sonar DEIS? Even if the technical

distinction is a function of impulse

versus continual sources, the scientific

community has accepted an SPL of 180

dB (re 1 uPa @ 1 m) as an interim

standard for human-caused noise that

causes injurious marine mammal

hearing threshold shift (TS), but only as

an interim measure until additional data

became available. Will the SURTASS

LFA FEIS be modified to dB defined by

energy, to maintain a consistent

reference? Why isn’t a consistent

measure used to aid reviews?

Response: First, NMFS clarifies here

that the accepted SPL is 180 dB (re 1

uPa (rms)) received level, not 180 dB (re

1 uPa @ 1 m), which references a source

level. NMFS also clarifies that the 180

dB (re 1 uPa (rms)) SPL criterion has not

been categorized as the level that causes

an injury (or even a threshold shift in

marine mammal hearing) from impulse

noise, but is a consensus of some

scientists and non-scientists that at

some unknown SPL above that 180 dB

(re 1 uPa (rms)) level, a marine mammal

may incur a hearing impairment. This

SPL criterion has also not been fully

accepted for other types of noise,

although it is currently being utilized by

activities to delineate a safety zone for

marine mammal protection. It is NMFS’

intention, through rulemakings similar

to this one, to replace this single SPL

criterion, one that is not based on

science, with science-based criteria,

whenever feasible.

As described in the proposed rule,

NMFS proposes to use a dual criterion

for explosives, one for pressure and one

for energy. For the energy criterion,

NMFS and the Navy propose to use 182

dB (re 1 uPa2-sec), cumulative energy

flux in any 1/3 octave band above 10 Hz

for mysticetes and above 100 Hz for

odontocetes (and sea turtles). For the

pressure criterion, the Navy and NMFS

22456 Federal Register / Vol. 66, No. 87 / Friday, May 4, 2001 / Rules and Regulations

propose using 12 psi peak pressure as

suggested by Ketten (1995). Whichever

criterion provides the greatest

protection for marine mammals is the

one that will be used during the shock

trial.

The SURTASS LFA sonar rulemaking

proposes to use a different criterion than

either the dual criterion used in this

document or the standard 180 dB (re 1

uPa (rms)). That Navy action and NMFS’

proposed rule for a small take

authorization for that activity use a

criterion of a ‘‘180-dB single-ping

equivalent,’’ which is the summation of

the intensities for all received brief

acoustic sounds into an equivalent

exposure from one ping, which is

always at a higher level than the highest

individual ping received (66 FR 15375,

March 19, 2001). This criterion is

designed to take into account the longer

duration of the LFA sonar signal (i.e.,

60–100 sec).

Comment 18: The NRDC believes that

the present rule establishes a criterion

that, based on a single, problematic

study, is substantially weaker than

earlier criteria.

Response: NMFS believes that the

current rulemaking provides significant

recognition that marine mammal

hearing can be affected by frequency,

intensity and duration. Contrary to the

commenter’s belief, the dual criterion is

based on extensive research and

analysis (as described in Appendix E of

the Navy’s DEIS and FEIS), and contrary

to the 180 dB (re 1 uPa (rms)) criterion,

which while simple and

understandable, is one that is not based

on science and is recognized by all

parties as only an interim measure until

better criteria are developed. We believe

that the dual criterion is an

improvement for one type of

anthropogenic noise.

In the small take authorization for the

taking of marine mammals incidental to

the detonation of conventional military

explosives within the waters of the

Outer Sea Test Range of the Naval

Warfare Center, Pt Mugu, Ventura

County, CA (59 FR 5111, February 3,

1994), the Navy and NMFS established

a safety zone for the shock trial of the

USS JOHN PAUL JONES at 180 dB (re

1 uPa) and a behavioral response zone

at 160 dB. The rulemakings for the USS

SEAWOLF and the USS WINSTON S.

CHURCHILL have provided detailed

information on why a behavioral

response, outside of TTS, was not

appropriate for a single-shot detonation.

It should be noted however, that the

USS JOHN PAUL JONES shock trial off

Southern California established a safety

zone based upon a SPL of 180 dB (re 1

uPa)(Chief of Naval Operations, 1993).

The Navy calculated the 180 dB SPL

would be at 8600 ft/1.4 nm (2621 m)

from the detonation point at a depth of

50 ft (15.2 m) from the water surface and

at 12,150 ft/2 nm (3703 m) at 1,000 ft

(309 m) below the water surface. This

distance is significantly less than the

Navy’s calculated zone for TTS for the

USS WINSTON S. CHURCHILL shock

trial. Although NMFS believes that the

distances would vary somewhat for the

USS WINSTON S. CHURCHILL shock

trial due to physical parameters of the

water at the Atlantic Ocean site, they

provide support for NMFS adopting the

dual criterion over one established for

other forms of impulse noise. Even at

maximum depth, the distance for an

SPL of 180 dB (re 1 uPa (rms)) would

likely remain within the safety zone

established for the USS WINSTON S.

CHURCHILL shock trial.

Comment 19: The HSUS and CSI are

concerned because the rule actually

proposed an SPL for the onset of TTS

of 192 dB re 1 uPa at 1 m, recalculated

as energy flux. They believe that this

level is higher than previously

recommended by the scientific

community.

Response: Please refer to response to

Comment 13. Also, a source level

cannot predict impacts at various

distances. Therefore, NMFS presumes

that the reference should be for a

received level which would be written

‘‘dB re 1 uPa (rms).’’

The evidence shows that for a tonal or

broadband stimulus lasting more than a

quarter second, onset TTS is better

predicted by the total amount of energy

in the signal than by any other metric.

Thus, the current reference for inducing

onset TTS (the lowest threshold shift

(TS) measurable) with tonal or

broadband sound is 192 dB (re 1 uPa2-

sec), cumulative energy flux at the

recipient (not at 1 m from the source).

It so happens that a 1 sec tone at 192

dB SPL contains exactly 192 dB (re 1

uPa2–sec) of cumulative energy flux

(because the metric’s reference is 1 sec).

A tone of 192 dB SPL lasting 2 seconds

would contain approximately twice as

much cumulative energy flux (i.e., 3 dB

more) or 195 dB (re 1 uPa2-sec),

cumulative energy flux. Conversely, the

SPL of a 2–second tone would have to

be dropped to 189 dB SPL to deliver a

total of 192 dB (re 1 uPa2–sec) over the

2–second period. In other words, the

182 dB cumulative energy flux is

approximately 1/10 the cumulative

energy flux in the reference tonal signal

of 1 sec at 192 dB SPL. This is explained

in Appendix E of the Navy’s FEIS.

Comment 20: The HSUS was unable

to find one of the references used by

NMFS because NMFS did not provide

the full reference.

Response: The Schlundt et al (2000)

research paper was not cited in the

Navy’s DEIS because that document had

not been published by the time the DEIS

was published. NMFS does not provide

full references to cited documents in the

Federal Register because it is NMFS

policy to reduce the size of Federal

Register documents to the extent

practicable due to costs for publication.

In lieu of complete citations for all

references used, NMFS noted in the

proposed rule that a list of references

used in the document was available

upon request.

Comment 21: The MMC notes that the

rationale for using a 50–percent

probability of eardrum rupture as a

criterion for non-lethal injury, is not

clear and appears to be based on data

from terrestrial mammals, rather than

marine mammals. Further, there is no

indication as to why there is a 50–

percent probability that the eardrums of

different marine mammal species would

rupture at the calculated distance or that

the ruptures would heal without

causing problems. A better explanation

of, and justification for using this

criterion should be provided.

Response: Terrestrial mammal and

marine mammal auditory systems have

similarities in structure and function

(Ketten, 1995, 1998). There are no

detailed experimental results from

marine mammals upon which to base a

quantitative analysis of the potential

effects of a 10,000 lb (4,536 kg) charge

detonation on marine mammal auditory

systems. Ketten (1995, 1998) addresses

these same issues. By using the results

from controlled underwater explosion

experiments on small terrestrial

mammals (dogs and sheep), reasonable

assumptions can be made concerning

potential auditory system impacts to

small marine mammals. Under identical

assumed conditions, the Navy FEIS and

Ketten (1995, 1998) are consistent in the

assumed overall potential impacts to

marine mammals.

Fifty-percent eardrum rupture was

considered as a criterion for non-lethal

injury because it is a standard,

statistically meaningful measure that

has been estimated in a variety of

mammals (Ketten 1995, 1998). Further,

it provides an indirect way to estimate

the range for PTS, an auditory impact

that has never been studied in marine

mammals (in terrestrial mammals, 50

percent incidence of TM rupture is

associated with 30 percent incidence of

PTS). Estimated ranges for eardrum

rupture probabilities less than 50

percent would be highly variable.

Therefore, instead of estimating an outer

Federal Register / Vol. 66, No. 87 / Friday, May 4, 2001 / Rules and Regulations 22457

bound for eardrum rupture or

calculating a gradient or probability

curve, the Navy counts 100 percent of

the animals in this range as ‘‘injured’’

even though the incidence of eardrum

rupture would be less than 50 percent

at this range and the incidence of PTS

would be less than 30 percent. By

considering 100 percent of all marine

mammals within the 50 percent TM

rupture zone as being injured, when

there is a 50–percent probability of noninjury, NMFS believes that the Navy has

accounted for all marine mammals that

had even a 1 percent chance of

incurring TM rupture. Also adding to

the conservative nature of the injury

calculations, marine mammals at depths

other than where the effect is maximal

would also be less vulnerable to

eardrum rupture.

Comment 22: The MMC also notes

that any use of the probability of

eardrum rupture as a criterion for

defining non-lethal injury appears to

reflect a misunderstanding of

underwater hearing. While an eardrum

rupture could have little effect on

hearing, the cochlea and hair cells could

be severely damaged even if no rupture

of the eardrum occurred. Thus an

eardrum rupture is a questionable

measure of acoustic injury in marine

mammals.

Response: NMFS agrees. Because the

criterion is based upon land mammals

rather than marine mammals, and

because TM rupture research has not

been conducted on marine mammals, it

is not the 50–percent TM rupture itself

that is the criterion used, but the

‘‘impulse’’ in psi-msec that is associated

with other impacts on the body. In this

case, the energy flux density that causes

either the 50–percent TM rupture or the

impulse that causes slight lung

hemorrhage is the real criterion. This is

illustrated in figures D-9 and D-10 of

Appendix D in the Navy’s FEIS. NMFS

believes this is conservative, even if it

is based on terrestrial mammals because

the hearing structures of marine

mammals are probably more resistant to

pressure (for diving) than are terrestrial

mammalian ear structures. However,

because the impulse estimated to cause

slight lung hemorrhage was more

conservative (i.e., had a greater range),

it is slight lung hemorrhage that is the

defining criterion used for determining

injury in this action, not the energy flux

density used for 50 percent TM rupture.

Marine Mammal Acoustic Impact

Concerns

Comment 23: Several commenters

noted that TTS in marine mammals

results in minor injury at the cellular

level. The NRDC argues that common

usage of the word ‘‘injury’’ makes no

distinction between temporary and

permanent impacts. The NRDC also

argues that there is evidence obtained

through light and electron microscopy

of swelling and vacuolization and of

shortening of the stereocilia rootlets;

evidence of depletion of synaptic bodies

and associated vesicles; studies showing

a buckling of cochlear pillar bodies and

an uncoupling of stereocilia from the

tectorial membrane.

Response: NMFS agrees that an injury

should not be considered something

else simply because it is temporary.

However, the term used by NMFS in the

proposed rule was impairment, which

NMFS argues does not necessarily

denote an injury. The source of the

information encapsulated in this

comment is from Liberman et al. (1987)

regarding swelling, vacuolization and

rootlet shortening, from Henry et al.

(1995) regarding synaptic depletionboth as reported in Appendix E of the

Navy’s DEIS and FEIS and from

Nordmann et al.’s (2000) research on

chinchillas regarding pillar buckling

and stereocilia uncoupling. Swelling,

vacuolization, shortening and depletion

were examined at TS levels associated

with TTS and were deemed by the

authors to be fully recoverable without

the loss and replacement of tissue.

Nordmann et al. (2000) examined

animals at TS averaging 43 dB - levels

over 40 dB are associated with slight

PTS. However, both pillar cell buckling

and stereocilia shortening detach the

hair cell from the tectorial membrane in

order to protect the hair cells from

injury at the expense of a temporary loss

of hearing sensitivity. That is, the

buckling of pillar cells and shortening of

stereocilia together function as a

‘‘partially protective response’’

(Nordmann et al., 2000). In other words,

pillar cells and stereocilia are designed

to work this way, time after time.

Therefore, buckling and shortening can

be considered to be adaptations that

protect the hair cells from injury, and

are not injuries in and of themselves.

NMFS notes however, that whereas

TTS does not result in cell destruction,

even minor boat propeller strikes on

manatees (a comparison used by the

HSUS to indicate levels of injury from

serious to non-serious) result in the

destruction of cellular tissue which

must be replaced if recovery is to occur.

Comment 24: The HSUS and the

WDCS express concern over NMFS’ use

of the 182 dB (re 1 uPa2–sec) criterion

for both mysticetes and odontocetes.

The HSUS notes that NMFS agrees that

the SPL that would cause TTS in

cetaceans by explosives has not been

tested empirically on live cetaceans.

The HSUS questions the

appropriateness of using the Ridgway et

al. (1997) results in the context of shock

testing.

Response: The dual criterion was

developed for this action as an estimate

for impulsive waveforms from available

tonal data, not for all waveforms. In the

energy portion of the dual criterion, the

specified energy in lower frequencies is

estimated for mysticetes and in higher

frequencies for odontocetes to

accommodate for differences in the most

sensitive frequencies. The only crossspecies assumption made is that the

amount of energy required for onset TTS

will be similar in both odontocetes and

mysticetes.

The first direct tests of explosives on

cetaceans have recently been completed

by Finneran et al. (2000). Those tests

delivered 179 dB (re 1 uPa2–sec) energy

at about 10 psi to dolphins in a

waveform that simulated a distant blast

without inducing onset TTS. Finneran

et al. (2000) found no TS in maskedhearing thresholds, defined as a 6-dB or

larger increase in threshold over preexposure levels, had been observed at

the highest impulse level generated (500

kg (1102 lbs) at 1.7 km (0.9 nm), peak

pressure 70 kPa. Other work is in

progress for another type of impulsive

waveform that in many respects

resembles that from a close explosive

source with higher levels of energy and

pressure.

Comment 25: The HSUS believes that

while TTS may be temporary and fully

reversible, animals suffering TTS may

be further injured or killed due to a

temporary inability to hear approaching

ships or predators. The HSUS and the

CSI believe that marine mammals may

also become disoriented and strand.

Because this carries with it the

‘‘potential to injure (or even kill),’’ the

HSUS believes TTS should be

categorized as Level A harassment. The

MMC, while agreeing that defining TTS

as Level B harassment is reasonable

provided it does not make the affected

animals vulnerable to predation or

otherwise affect their survival or

productivity, believes it is not

inconceivable that temporary hearing

impairment over a period of a few days

could increase the potential for injury or

death of an affected animal. If such were

the case, TTS would have the potential

for injury and would constitute Level A

harassment.

Response: As stated in the ANPR,

these second level impacts due to a

marine mammal having a temporary

hearing impairment cannot be predicted

and are, therefore, speculative.

However, the principal reason that

second level impacts are not considered

22458 Federal Register / Vol. 66, No. 87 / Friday, May 4, 2001 / Rules and Regulations

in classification is that any Level B

disruption of behavior could, with

suppositions, be seen as potentially

dangerous and, therefore, considered

potential Level A harassment as well.

Similarly, all Level A injuries could be

seen as being accompanied by some

disruption of behavior and therefore,

Level B disturbances as well as Level A

injuries. Such reasoning blurs the

distinctions that the definitions of

harassment attempt to make. The NMFS

believes that Level B harassment, if of

sufficient degree and duration, can be

very serious and require consideration.

For example, moderate TTS does not

necessarily mean that the animal cannot

hear, only that its threshold of hearing

is raised above its normal level. The

extent of time that this impairment

remains is dependent upon the amount

of initial TS which in turn depends on

the strength of the received sound and

whether the TTS is in a frequency range

that the animal depends on for receiving

cues that would benefit survival. It

should be noted that increased ambient

noise levels, due to biologics, storms,

shipping, and tectonic events, may also

result in short-term decreases in an

animal’s ability to hear as well as

normal. For example, ambient noise in

the Hawaiian Islands Humpback Whale

Sanctuary increases seasonally in

conjunction with an increase in

humpback whale abundance, with no

known impacts to these animals. NMFS

scientists believe that marine mammals

have likely adopted behavioral

responses, such as decreased spatial

separation, slower swimming speeds,

and cessation of socialization to

compensate for increased ambient noise

or hearing threshold levels.

Ship strikes between whales and large

vessels suggest that at least certain

species of large whales do not use vessel

sounds to avoid interactions and there

is no indication that smaller whales and

dolphins with TTS would modify

behavior significant enough to be struck

by an approaching vessel. Finally a

hypothesis that marine mammals would

be subject to increased predation

presumes that the predators would

either not be similarly affected by the

explosion or would travel from areas

outside the impact zone, indicating

recognition between the signal of a

single detonation at distance and

potentially debilitated food sources.

Therefore, NMFS does not believe the

evidence warrants, as suggested by the

MMC and the HSUS, that all (or an

unknown percentage) of the estimated

numbers of Level A (PTS) and Level B

(TTS) harassment takes be considered as

mortalities. What this document does

do, however, is to consider that 100

percent of the marine mammals within

the lethal zone (1.35 km/0.73 nm)

would be killed, even though larger

mammals may survive their injury from

the shock wave, and that 100 percent of

the marine mammals within the nonlethal injury radius would be injured,

even though some animals may not be

injured (depending upon the animal’s

size and depth in the water).

NMFS notes moreover, that TTS does

not cause disorientation. Disorientation

is caused by vestibular affects to the

inner ear, not related to TTS (although

an animal having vestibular effects

could also suffer from TTS). For

example, humans attending certain

sport or music events may incur a TTS

impairment due to the noise, but are not

noted for being disoriented afterwards,

unless caused by something other than

noise.

Comment 26: The WDCS supports the

previous comments by quoting Ketten

(1998) that ‘‘...sublethal impacts may

ultimately be as devastating as lethal

impacts, causing death indirectly

through behavioral reactions, such as

panic, as well as impaired foraging or

predator detection, but the potential for

this type of extended or delayed impact

from any sound source is not well

understood for any mammal.’’ Also, the

MMC notes that there is the possibility

that repeated exposure to sounds

capable of causing TTS increases the

likelihood that animals would be

injured.

Response: The quoted statement was

taken out of context. The sentence

preceding the one quoted by the WDCS,

which clarifies the author’s intent,

reads: ‘‘Sublethal impacts are those in

which a hearing loss is caused by

exposures to sounds that exceed the

ear’s tolerance to some acoustic

parameter, i.e., auditory damage occurs

from metabolic exhaustion or overextension of one or more inner ear

components.’’ In the two quoted

sentences, it is clear that Ketten (1998)

did not distinguish between TTS and

PTS at this point in her paper. NMFS

and the Navy do not dispute that marine

mammals suffering from acute, longterm, hearing impairment may have

decreased survival rates, even though

many dolphins and pilot whales thrive

in social groupings, even with extreme

hearing loss (called presbycusis).

However, the rationale for not including

TTS (and similarly, PTS) impairments

as mortalities has been explained in this

document previously.

While there is some recent research

indicating that there is no relationship

between repeated TTS exposures and an

animal incurring a PTS injury, the

science indicates that PTS can occur

with repeated exposures of TTS without

allowing animals to completely recover.

However, the shock trial for the USS

WINSTON S. CHURCHILL is a set of 3-

4 detonations separated by a week

between each detonation. Therefore, it

is unlikely that animals would be in the

TTS zone for more than a single

detonation nor that any TTS impairment

would not have recovered completely

within that time. However, for multiple

detonation activities that provide little

time for TTS recovery, proponents

would need to estimate, to the greatest

extent possible, whether marine

mammals are likely to be injured due to

receiving multiple TTS impairments.

Comment 27: The NRDC is concerned

regarding the use of the 182 dB (re 1

uPa2–sec) criterion that it ignores the

fact that a masking of 20–30 dB in the

subject dolphins might result in lower

TS levels. The NRDC notes that

Schlundt et al. (2000) recommended

caution in using this limited data to

support other conclusions. The HSUS

expresses similar concerns.

Response: NMFS agrees that a slightly

lower TS might have resulted if masking

had not been present. Finneran et al.

(2000) acknowledge the possibility that

larger TSs may have been observed

without the masking noise. Finneran et

al. (2000) reference Humes (1990)

presentation of data for humans

showing that exposure to broadband

masking noise sufficient to raise preexposure thresholds 20 dB resulted in

TTSs that were approximately 5 dB

lower than those obtained without

masking noise. However, at this time the

data do not support the choice of any

single dB level over any other level.

Comment 28: The NRDC also believes

NMFS ignores the data showing a

masked TTS of 8 dB, in one dolphin, at

172 dB (re 1 uPa2–sec).

Response: According to the Navy,

because of the large difference between

that animal’s TTS level and the other

tested dolphins, that single bottlenosed

dolphin was retested later and showed

TTS levels similar to the other animals

tested. That information is expected to

be available shortly.

Comment 29: The CSI notes that

NMFS has stated that ‘‘scientists have

noted that a range of only 15–20 dB may

exist between onset TTS and onset

of...PTS’’ The CSI asks at what physical

range from the detonation does the

onset of PTS occur?

Response: The statement in the

proposed rule was incomplete. The 15–

20 dB difference refers to the difference

between the SELs that cause the

slightest TTS and onset PTS.

Chinchillas experience full recovery

Federal Register / Vol. 66, No. 87 / Friday, May 4, 2001 / Rules and Regulations 22459

from up to 40 dB of TTS (Ahroon et al.,

1996) from impulsive noise. In the

absence of comparable data for marine

mammals, NMFS believes it is

precautionary to define the onset of PTS

for marine mammals to be 20 dB of TTS.

This level would be conservative for

chinchillas, and would likely be

conservative for marine mammals.

Regarding TS’s themselves, the

preponderance of data on terrestrial

species indicates that the difference

between an initial TS that results in

slight TTS (onset TTS) and the initial

TS that results in slight PTS (onset PTS)

is about 40–60 dB. In other words, from

the lowest initial TS that recovers (i.e.,

TTS) to the level at which recovery is

incomplete by several dB (i.e., PTS), the

difference is routinely found to be 40–

60 dB of TS. These values are found not

only with longer duration stimulation,

but with repeated application of

impulsive stimuli as well (Ahroon et al.

1996). The problem of determining the

same values for marine mammals with

their marine-adapted ears remains to be

solved. Therefore, this remains an

avenue for future investigation that

NMFS encourages the Navy and others

to undertake. However, because the

onset of PTS in marine mammals would

be expected to be quite variable

dependent upon the ear structure of the

mammalian group (mysticetes,

odontocetes, pinnipeds) and species

specific sensitivity, the health of the

individual animal, and the

characteristics of both the water and the

acoustic source, there may not be a

single value to establish for determining

onset PTS. Therefore, NMFS has

decided to reserve detailed discussion

or use of this alternative methodology

for estimating PTS for a future notice

and comment rulemaking and has

determined to use an alternative,

simpler method for calculating a zone

for non-serious injury to hearing for the

shock trial of the USS WINSTON S.

CHURCHILL. This method derives from

human damage risk criteria (DRC) as

well as clinical and experimental

observations of PTS.

According to Richardson et al. (1995),

the distances at which marine mammal

auditory systems might be at risk for

PTS from a single explosive pulse can

be estimated based on extrapolations

from human DRC. Based on the data

presented by Richardson et al. (1995),

PTS might be expected to occur within

distances of about 1.7 nm (3.1 km) from

the detonation point for a 10,000–lb

(4,536–kg) charge. More relevant for

marine mammals, Ketten (1995)

hypothesized a PTS/TTS transition zone

extending from about 0.9 km (0.5 nm)

from the detonation point to 5 km (2.7

nm) from the detonation point for a

10,000–lb (4,536–kg) charge. This is

illustrated in figures D-9 and D-10 of

Appendix D in the Navy’s FEIS. Based

on Ketten’s calculations, and the fact

that shock wave intensity decays

exponentially with distance, it would be

reasonable to assume that PTS is

unlikely to occur beyond the monitored

buffer zone (3 nm/5.6 km) for the shock

trial of the USS WINSTON S.

CHURCHILL. Therefore, the zone

between the range that has the potential

to produce either the onset of slight lung

hemorrhage or 50–percent TM rupture

(usually slight lung hemorrhage is the

more sensitive indicator), which is 1.22

nm/2.25 km from the detonation, and

the outer edge of the buffer zone (3 nm/

5.6 km) could be an area wherein

marine mammals might incur a nonserious PTS injury. NMFS notes

however, that because the Navy has

calculated a take by injury wherein 100

percent of the marine mammals within

the injury zone would be injured when

in fact the incidence of eardrum rupture

would be less than 50 percent at this

range and the incidence of PTS would

be less than 30 percent, there is no need

to recalculate take by injury levels due

to this slightly extended zone of

possible slight injury to the ear.

Comment 30: The CSI continues that

the Navy application shows a

representative point of injury at 1.22 nm

(2.25 km), defined as 25.3 psi-msec, or

175 Pa-sec. A representative point of

harassment (TTS) at 17.7 nm (32.8 km)

defines the outside of the TTS envelope,

where the received level is 182 dB

energy. If onset TTS occurs as far out as

17.7 nm (32.8 km) does this imply that

the detonations lose only 20 dB over

16.5 nm (39.6 km), from a point

somewhere inside the ‘‘slight lung

hemorrhage injury’’ zone?

Response: NMFS is unaware of the

calculations used by the commenter to

determine that detonations lost 20 dB

over 16.5 nm (39.6 km) so it is unable

to respond directly to the comment.

However, it should be noted that the

stated distance for onset-TTS should not

be taken as an implicit statement about

the rate of signal loss out to that

distance, but rather as one about the

worst-case propagation distances and

animal depths that insures that all

affected marine mammals are counted.

The Navy calculated the farthest extent

of TTS harassment for odontocetes at

Norfolk at 17.7 nm (32.8 km) and 23 nm

(42.6 km) for mysticetes. However, the

preferred location for the shock trial is

Mayport, FL where those maximum

ranges for TTS harassment are 13.6 nm

(25.2 km) and 15.0 nm (27.8 km)

respectively. These ranges are depth

dependent (see table in response to

comment 3) and distances were based

on whichever of the dual criteria

provided the greatest distance for

calculating TTS.

Comment 31: The HSUS requested

clarification of the discrepancy between

the use of 182 re 1 uPa2–sec used in the

proposed rule and the Navy DEIS’’ use

of the term 182 dB re uPa2–sec.

Response: Both documents should

read 182 dB re 1 uPa2–sec. The two

units are interchangeable and mean the

same thing once a reader recognizes that

the standard reference used in the

document is for the water standard (re

1 uPa2–sec) and not the in-air standard

(re 20 uPa2–sec). Because NMFS

processes small take applications for

both in-air and in-water incidental

takings, it prefers to use the full

reference to reduce confusion. This has

been noted recently making faulty

comparisons between loud underwater

noise source levels with received levels

of familiar terrestrial noise sources

without noting that different standards

were being used for each and

compensating for those differences (see

Chapman and Ellis (1998) for more

information).

Comment 32: The WDCS cite Ketten

(1998) that ‘‘Sharp rise-time signals

have been shown also to produce broad

spectrum PTS at lower intensities than

slow onset signals both in air and in

water.’’ and ‘‘Although technically a

pressure induced injury, hearing loss

and the accompanying gross structural

damage to the ear from blasts are more

appropriately thought of as the result of

the inability of the ear to accommodate

the sudden, extreme pressure

differentials and over-pressures from the

shock wave.’’

Response: Neither NMFS nor the

Navy disagree with these statements.

The Ketten (1998) document is one of

the primary references cited in

Appendix D of the Navy’s DEIS and

FEIS.

Comment 33: The WDCS also cites

statements by Croll et al. (1999) that

baleen whales could suffer temporary

auditory damage at noise levels as low

as 120 dB and, secondly, that

physiological effects could occur well

before 180 dB. The WDCS believes that

NMFS and the Navy have totally

disregarded these statements.

Response: Although NMFS was

unable to verify the statements directly

to the reference, these dB levels

apparently derive from Richardson et

al.(1995) for effects on marine mammals

extrapolated from human DRC and from

work done by Malme et al.(1983, 1984,

1988). For reasons explained previously

22460 Federal Register / Vol. 66, No. 87 / Friday, May 4, 2001 / Rules and Regulations

in this document, one must consider

duration of the signal and the type of

noise (impulse or intermittent/

continuous) before making generalities

on impacts based solely on an SPL.

Comment 34: The HSUS uses the

Kastak et al. (1999) paper on three

species of pinnipeds to support a more

precautionary approach to noise

standards than suggested by Ridgway et

al. (1997).

Response: Kastak et al. (1999)

documented TTS in three species of

pinnipeds exposed to varying levels of

octave band noise (OBN) for periods on

the order of 20 minutes. OBN center

frequencies from 100 to 2,000 Hz were

used in these tests, and the results

presented in the paper pooled the data

from each exposure frequency. The

results indicate onset of TTS at mean

values of 137, 150, and 148 dB (re 1

uPa) for the harbor seal, sea lion and

elephant seal, respectively, for 20– to

22–minute exposures of OBN. Because

of the pooling effect, these data also

have variations around the mean on the

order of -5 to +10 dB. As described in

the account of the test, these levels can

be considered to represent the lower

level for onset of TTS for a 20–minute

signal. However, NMFS notes that

because TTS may result from a brief

exposure to a loud sound, intermediate

exposure to a sound of intermediate

loudness, or prolonged exposure to a

faint sound, sound duration and

intensity can be considered to trade off

with each other in causing TTS, as is

indicated in the work by Kastak et al.

(1999). This is one reason why NMFS

advises caution in the widespread

advocation for the use of the 180 dB (re

1 uPa (rms)) standard for noise sources

other than impulse noise.

Comment 35: The HSUS disagrees

with NMFS’ concurrence of the Navy’s

use of the human auditory DRC for

determining criteria for marine

mammals. The HSUS notes that in the

Navy’s SURTASS LFA sonar DEIS, the

Navy established a safe received level

for continuous LF sound for humans at

145 dB (re 1 uPa (rms)), but at 180 dB

(re 1 uPa (rms)) for marine mammals.

The HSUS, therefore, finds it

inconsistent and illogical for NMFS to

then claim human auditory DRC are an

appropriate standard for marine

mammals and if they do so, NMFS and

the Navy should consistently apply the

most conservative human standards.

Response: In this action, NMFS and

the Navy do not use quantitative human

DRC to establish criteria for TTS in

marine mammals, its only use in this

document was to provide support for

the qualitative determination that TTS

should not be considered as an injury.

In the SURTASS LFA sonar action,

the Navy did not establish the 145 dB

human diver criterion based on human

DRC but on a comprehensive study

conducted by the Navy in conjunction

with a consortium of university and

military laboratories (Navy SURTASS

LFA Sonar Technical Report 3, 1999).

These two acoustic values mentioned by

the commenter for intermittent noise

represent different criteria:

psychological aversion from direct

measurements with human divers (145

dB) and the exposure level at or above

which all marine mammals are

evaluated (180 dB) for impulse noise.

The level of potential effects for humans

is lower than that for marine mammals

primarily because of the inherent

physiological and psychological

differences. A human diver is in an

unnatural, hazardous and unpredictable

environment when diving. Breathing

compressed air introduces special risks

for humans underwater. The potential

for a startle response that could have

serious consequences is much greater

for humans underwater than for a

marine mammal whereas marine

mammals are in their natural habitat,

their ear structure are pressure-adapted

to their environment, and they are

accustomed to hearing LF sounds

underwater.

Comment 36: The HSUS is unable to

reconcile the statement that ‘‘[t]he

criteria for differentiating TTS and PTS

zones are not species and mediadependent and may be strongly

influenced by the health of the ear’’

with the extrapolation of human DRC

and a single study’s (i.e., Ridgway et al.

(1997)) results to all marine mammals

and sea turtles.

Response: As mentioned in the

previous comment, the Navy’s DEIS and

FEIS do not extrapolate specific values

from human DRC. NMFS has addressed

the methodology for differentiating TTS

between mysticetes and odontocetes

earlier in this document. Given that

there are data on two marine-adapted

cetaceans, until additional anatomical

or other data become available, these

estimates are better than quantitative

generalizations from the data of

terrestrials or longer chains of

extrapolation from general models.

Appendix E Concerns

This section contains responses to

comments on Appendix E of the Navy’s

DEIS that have not been addressed

previously in this document.

Comment 37: The HSUS and the CSI

note that Appendix E of the Navy’s DEIS

acknowledges that PTS in humans can

be induced by ‘‘chronic exposure to

nonpainful SPLs and...PTS may not be

detected until later in life.’’ This, HSUS

notes, is highly relevant to the work

done on marine mammals. If chronic

exposure to non-painful sounds can

cause PTS, which may not be detected

until long after exposure to the sounds,

then the reliance on behavioral

indicators alone for harassment criteria

for marine mammals seems

questionable. The HSUS understands

that this is why the Navy has chosen TS

criteria for Level A and Level B

harassment, but the speculative nature

of these criteria for all marine mammals

is also highly questionable.

Response: First, it should be

recognized that the quoted sentence

means that the detection of PTS long

after exposure was the result of not

having looked for the PTS a short time

after exposure, not that PTS lay hidden

or dormant and arose long after the

exposure. Second, ‘‘chronic exposure’’

means long-term exposure, a condition

that is not relevant to this shock trial (or

to other single exposure explosion

events). Please refer to the response to

comment 34 regarding duration of

sounds.

The USS SEAWOLF and the USS

WINSTON S. CHURCHILL EISs are the

first to date that spell out in detail with

full references to the primary literature,

the complicated series of questions that

must be answered to put marine

environmental impact assessments from

explosives on a systematic and rational,

rather than a speculative, footing.

Comment 38: The WDCS noted that

Appendix E states that TTS studies with

impulsive stimuli have been conducted,

but the results are not yet available.

Would the results of these studies not

have been considered important here to

increase our understanding of such

activities?

Response: This research has been

completed, published and discussed

previously in this document. Other

relevant research is in progress. Please

refer to the response to Comment 24 on

the findings of Finneran et al. (2000).

Comment 39: The HSUS finds

questionable the extrapolation of the

results from Ahroon et al. (1996) on

chinchillas to generate a broad concept

about TTS.

Response: The results of the cited

study are discussed in a very extensive

review and integration of other studies

of other species. In particular, the stated

conclusion rests more firmly on the

work of Liberman et al. (1987) at the

electron microscopic level of analysis

with the highly systematic study of

Ahroon et al.(1996) lending support at

the light microscope level of analysis.

Other studies of various types on

various species are also cited that

Federal Register / Vol. 66, No. 87 / Friday, May 4, 2001 / Rules and Regulations 22461

directly and indirectly support the

findings of Lieberman et al. (1987) and

Ahroon et al. (1996).

Comment 40: The HSUS does not

agree with Appendix E’s broadly

extrapolating the results from Ridgway

et al.(1997) as a cautious use of data.

The HSUS does not consider these

results to be ‘‘good’’ scientific

information for marine mammals other

than bottlenose dolphins. Given the

many caveats that the Navy includes in

its discussion of hearing thresholds, the

HSUS fails to see how it can then

conclude that broadly extrapolating the

data from the Ridgway study for

management purposes affecting all

marine protected species is cautious.

Response: The commenter fails to

recognize the wealth of supporting

research and discussion contained in

Appendix E, in addition to the work by

Ridgway et al.(1997). Since the

determination of levels of impact

derived from the analysis contained in

Appendix E is far more conservative

than the use of a single SPL criterion

recommended by several commenters as

an alternative, NMFS believes that the

extrapolations can be considered

cautious. As a result, NMFS is able to

conclude that the information contained

in this document and other supporting

research is the best scientific

information available on the subject.

Comment 41: The HSUS strongly

disputes the assumptions made to

conduct the analyses for calculating

TTS impact zones are conservative.

Response: NMFS does not concur.

NMFS believes the analysis contained

in the Navy’s DEIS (and FEIS) uses a

series of extremely conservative

assumptions regarding propagation-the

water depth of greatest propagation in

each possible test area, the animal depth

of highest pressure or energy regardless

of each species’ preference, highly

reflective boundaries (bottom and

surface) and the sound velocity profile

of greatest propagation. In other words,

the worst case propagation contours

were used to derive the longest possible

distance and thus, the greatest possible

number of animals of each species were

subsumed in the count. The basic

metrics of pressure and energy used in

the analysis were derived as described

in Appendix E with a series of

conservative assumptions. As explained

in that document, even though new data

continues to emerge and refinements

will inevitably modify estimates up or

down by small amounts, the overall

series of assumptions and their

applications allow for some error while

still remaining conservative in their

estimates.

LOA Concerns

Comment 42: The MMC notes that not

all marine mammal species that might

be taken incidental to the shock tests are

included in the proposed authorization.

Inasmuch as it is unlikely that observers

will be able to detect and identify all

marine mammals within the vicinity of

the test site, the MMC questions

whether the applicant will be able to

ensure compliance with this provision.

Response: The paragraph in the

proposed regulations cited by the MMC

is a standard paragraph in all LOAs and

IHAs to ensure that the list of those

species expected to be taken is as

complete as possible. Unless

commenters provide NMFS with

additional information on those marine

mammal species that it suspects might

be within the shock test areas that have

not been included in the Navy’s

application, NMFS must rely on its

expertise and from the list of marine

mammals described in the Navy

application and DEIS. The information

provided to NMFS was obtained from

several aerial surveys and other sources,

including seasonal distribution, and is

believed to be the best scientific

information available. If a marine

mammal is taken that is not authorized,

then the applicant is considered to be in

violation of the conditions of the LOA.

If the aerial observers sight and identify

a marine mammal of an unauthorized

species, then the shock test must be

delayed to ensure that a taking does not

occur. NMFS has consulted with the

Navy to ensure that the list is as

complete as possible.

It should be noted that the list of

species expected to be taken incidental

to the shock trial has been modified in

this document because the Navy’s FEIS

has determined that the Mayport FL site

is the preferred alternative. As a result,

marine mammal species found in the

Gulf of Mexico, and not off the east

coast of Florida, have been removed

from the list.

Comment 43: The MMC suggests that

NMFS advise the applicant that, despite

the issuance of the requested LOA, there

is the possibility that conducting the

shock tests as planned might constitute

a violation of the MMPA and encourage

the applicant to expand its request to

include all marine mammal species that

potentially could be taken.

Response: Please see previous

response. NMFS and the Navy are

unaware of any species of marine

mammals that have any potential of

being in the offshore waters off Mayport,

FL during the period between May and

September that have not been included

in this document.

Navy Application Concerns

Comment 44: The HSUS notes that

the Navy application cites that there

were no mortalities or serious injuries

detected during the shock trial of the

USS JOHN PAUL JONES. The HSUS is

concerned by the Navy’s (and NMFS’)

proclivity for maintaining that absence

of evidence is evidence of absence.

Response: That no mortalities or

serious injuries were detected by the

monitoring program during and after the

USS JOHN PAUL JONES shock trial is

simply a statement of fact. NMFS views

this statement, made after extensive

aerial and boat surveys after each

detonation to locate marine mammals,

as different from similar statements

made by others when there is not a

concerted effort to detect ‘‘takes’’ during

an activity. In that context, NMFS agrees

with the commenter, noting that there is

a potential for marine mammal

mortality and injury by this action, and

for that reason, the Navy has requested

a small take authorization under the

MMPA.

Comment 45: The HSUS questions the

validity of the Navy’s assumption of

random spatial distribution of groups

when scientific literature indicates that

cetacean groups often clump around

vital resources which are not always

randomly encountered or distributed.

Response: The random distribution of

groups is a conservative assumption. If

cetacean groups are clumped, the

probability of zero groups in the Safety

Range will be higher than calculated

values. In other words, the probability

of encountering a Safety Range with no

cetacean groups would be increased. As

noted in Appendix C of the Navy DEIS,

‘‘The assumption of an approximately

random distribution is reasonable for

individual turtles and for mammal

groups (obviously not for individuals,

which are highly aggregated). To the

extent that groups are distributed nonrandomly, i.e., aggregated, the

probability of zero will be

underestimated by the Poisson

distribution. In other words, if groups

are themselves clustered together, then

the probability of encountering zero

groups in a given Safety Range-sized

area will be higher than predicted by a

random model. There is considerable

evidence that marine mammal groups

and sea turtles are not randomly

distributed but are associated with

certain oceanographic features. For

example, cetacean densities are higher

inside cold core rings and in the

confluence zones between warm and

cold core rings (Davis et al., 2000); sea

turtles have temperature preferences

(Coles, 1999) and are concentrated

22462 Federal Register / Vol. 66, No. 87 / Friday, May 4, 2001 / Rules and Regulations

inshore of the Gulf Stream western wall

(Fritts et al., 1983). However, as

discussed in Section 5.0 of the Navy’s

DEIS and FEIS, test site selection would

use satellite imagery and aerial surveys

to avoid areas where marine mammals

and turtles are highly concentrated.

Therefore, the assumption of random

distribution is reasonable, especially for

comparing among test areas since the

same assumption is applied to all three

test areas.

Mitigation and Monitoring Concerns

Comment 46: Given the analysis in

the LOA application of the proposed

testing sites, the HSUS believes that the

Pascagoula (site) exhibits the ‘‘best’’

profile for minimal impact to marine

life.

Response: NMFS notes that under

NEPA, the Navy must assess impacts on

the total human environment, not solely

on impacts to marine mammals as

illustrated in a table estimating the total

number of marine mammal takes

anticipated at the three marine sites

identified as alternative locations in the

Navy’s application. The choice of site

locations was more fully addressed in

the Navy’s DEIS and FEIS. In the FEIS,

the Navy determined that the Mayport

site provided the best location for its

needs and the least overall impact to the

environment. It will be up to the Navy

in the development of its Record of

Decision to determine the location for

the shock trial.

Comment 47: The SLFASWN believes

that mortality and injury will occur and

that it will occur largely unobserved.

Also the ‘‘carnage’’ will occur slowly

over a period of time.

Response: While NMFS agrees that

there is some potential for mortality and

injury of marine mammals by the shock

trial, NMFS does not agree that it will

occur largely unobserved over a period

of time. The calculations conducted by

the Navy, as explained in detail in its

DEIS and FEIS, indicated that the

Mayport FL site may result in up to 4

mortalities and 6 injuries. As explained

elsewhere in this document, the Navy

believes that this level is likely an

overestimate of takings that will occur

during the 4–week shock trial. NMFS

concurs. In addition, without further

clarification by SLFASWN on its

concerns on the effectiveness of the

monitoring program, NMFS is unable to

concur that mortality and injury will go

on unobserved. NMFS believes that

post-detonation aerial and surface

monitoring, and coordination with the

local stranding networks, as described

in the Navy application, will be capable

of detecting injured or dead marine

mammals to the greatest extent

practicable.

NEPA, ESA and Executive Order (E.O.)

12866 Concerns

Comment 48: The ACS expresses

concern over whether NMFS, in its selfdescribed capacity as a ‘‘cooperating’’

rather than an ESA-required

‘‘consulting’’ agency, is properly

performing its mandated role as the

gatekeeper of the MMPA. The ACS

contends that NMFS, by this action, is

abdicating its responsibility to uphold

national environmental policy and is, in

fact contributing to the degradation of

the marine environment rather than

protecting it.

Response: NMFS disagrees that it is

not upholding its responsibilities under

the MMPA, the ESA, and NEPA. NMFS

has responsibilities under all three

statutes and has met those

responsibilities through a program of

cooperation and consultation as

required under 40 CFR 1501.6 which

implements NEPA, section 7 of the ESA,

and section 101(a)(5)(A) and other

sections of the MMPA. Under the ESA,

NMFS concluded consultation with the

Navy on this activity on October 10,

2000.

Comment 49: The NRDC believes that

NMFS is justifying the proposed rule

because of the benefits of the

information that the Navy would be

required to provide on the effects on the

marine environment, particularly

marine mammals.

Response: NMFS simply provides in

the proposed rule a summary of costs

and benefits of the proposed action in

compliance with E.O. 12866. NMFS’

responsibility is to make a

determination of the impacts of an

activity on marine mammals and

whether or not that impact is negligible;

determinations are not made based on

the economic benefit of the activity.

Other Concerns

Comment 50: The HSUS contends

that the acoustic criteria, discussed

previously in this document, were not

proposed for public review in the

proposed rulemaking governing the

taking of marine mammals incidental to

the shock trial of the USS SEAWOLF.

Response: While the commenter is

correct, it should be understood that the

preamble to a rulemaking cannot

discuss all aspects of an application and

proposed authorization, and often refers

to either the application, a NEPA

statement, or both for additional

information. Therefore, it is important

for reviewers to also review the

accompanying application and any

documents noted as being available for

review. However, for the USS

SEAWOLF proposal, the proposed rule

did not mention using the 182 dB (re 1

uPa2–sec) criterion because the Navy

application and the proposed rule were

published prior to the availability of the

Ridgway et al. (1997) research paper.

Based, in part by a concern raised by

NMFS in a letter (October 9, 1996) to the

Navy regarding its criterion of ‘‘acoustic

discomfort’’ for Level B harassment, the

U.S. Navy convened a scientific working

group to review and revise Appendix E

of the USS SEAWOLF DEIS. The FEIS

for the USS SEAWOLF, with the revised

Appendix E, was released in May, 1998.

A similar concern on the Navy’s use of

‘‘acoustic discomfort’’ to characterize

Level B harassment was also raised by

the MMC in its letter to NMFS on

September 16, 1996, in response to the

proposed rule. NMFS′ response to the

MMC concern was then addressed in

the final rule for the SEAWOLF small

take authorization, noting the revision

from using only a pressure-based

criterion to using both a pressure-based

criterion and an energy-based criterion.

However, because this was a final

rulemaking, the USS WINSTON S.

CHURCHILL small take authorization

rulemaking provides the public with the

first notice and opportunity for

comment on using the dual criterion of

182 dB (re 1 uPa2–sec) and 12 psi

criteria for explosive events. As noted

previously, this rulemaking is being

promulgated under section 101(a)(5) of

the MMPA and the Administrative

Procedure Act.

Comment 51: In concluding its letter,

the HSUS notes, among other items

previously addressed in this document,

that the preliminary nature of the

information provided by the Navy and

NMFS is insufficient justification for

abandoning truly precautionary acoustic

standards for harassment of 140–160 dB

re 1 uPa at 1 m.

Response: A source level (dB re 1 uPa

at 1 m) cannot predict impacts at

various distances. Therefore, NMFS

presumes that the HSUS is referring

here to a received level (i.e., dB re 1 uPa

(rms)). The rationale for not recognizing

a behavioral response by marine

mammals (other than those resulting

from TTS) has been addressed in

response to comments 23 and 25. NMFS

cautions against using acoustic

standards without reference also to the

type of noise (e.g., impulse, intermittent,

continuous), the frequency of the sound,

and the duration of the signal.

Consideration should also be given to its

oceanic context (e.g., Arctic, inshore,

offshore waters).

Comment 52: The SLFASWN

expresses concern over the increasing

Federal Register / Vol. 66, No. 87 / Friday, May 4, 2001 / Rules and Regulations 22463

number of acoustic programs occurring

in the water simultaneously and wants

to know if it was possible to know

which other tests might have occurred

in the last 15 months.

Response: NMFS does not believe that

the number of acoustic programs are

increasing substantially, only that these

programs are coming to the attention of

the public. However, even if all these

activities were known, NMFS believes

that this would make up only an

extremely small percentage of the

anthropogenic noise in the ocean.

Larger, more persistent, anthropogenic

noise sources include shipping, seismic

surveys, oceanographic research, and, in

certain areas, recreational boating.

Cumulative impacts from noise in the

vicinity of the proposed shock trial is

discussed in the Navy’s FEIS on this

subject.

Description of Habitat and Marine

Mammals Affected by Shock Testing

A description of the U.S. Atlantic

environment, its marine life and marine

mammal abundance, distribution and

habitat can be found in the Navy’s DEIS

and FEIS on this subject and is not

repeated here.

Affected Marine Mammals

A summary of the marine mammal

species found in the Mayport FL area is

presented here. A complete list of

potentially affected marine mammal

species can be found later in this

document. For more detail on marine

mammal abundance, density and the

methods used to obtain this

information, reviewers are requested to

refer to either the Navy application or

the Navy’s FEIS. Additional information

on Atlantic and Gulf coast marine

mammals can be found in Waring et al.

(1999 and 2001).

Up to 27 marine mammal species may

be present in the waters off Mayport, FL,

including five species of mysticetes and

22 species of odontocetes. Mysticete

whales are very unlikely to occur at

Mayport during the May through

September time period. Odontocetes

may include the sperm whale, dwarf

and pygmy sperm whale, four species of

beaked whales, and 15 species of

dolphins and porpoises. These 22

species are listed in 50 CFR 216.151(b).

Potential Impacts to Marine Mammals

Mortality and Injury

Potential impacts to several marine

mammal species known to occur in

these areas from shock testing include

both lethal and non-lethal injury, as

well as harassment. Marine mammals

may be killed or injured as a result of

the explosive blast due to the response

of air cavities in the body, such as the

lungs and bubbles in the intestines.

Effects are more likely to be most severe

in near surface waters above the

detonation point where the reflected

shock wave creates a region of negative

pressure called ‘‘cavitation.’’ This is a

region of near total physical trauma

within which no animals would be

expected to survive. Based on

calculations in Appendix D of the

Navy’s DEIS or FEIS, the maximum

horizontal extent of the cavitation

region is estimated to be 683 m (2,240

ft). This region would extend from the

surface to a maximum depth of about 23

m (77 ft). A second criterion for

mortality is the onset of extensive lung

hemorrhage. Extensive lung hemorrhage

is considered debilitating and

potentially fatal. Suffocation caused by

lung hemorrhage is likely to be the

major cause of marine mammal death

from underwater shock waves. The

estimated range for the onset of

extensive lung hemorrhage to marine

mammals varies depending upon the

animal’s weight, with the smallest

mammals having the greatest potential

hazard range. The range predicted for a

small marine mammal (e.g., a dolphin

calf) is 1.35 km (0.73 nautical miles

(nm)) from the detonation point. For

estimating the impact from the

detonation(s), NMFS and the Navy

presume that 100 percent of the marine

mammals within this radius would be

killed, even though larger mammals

may survive their injury from the shock

wave.

NMFS and the Navy have established

a dual criteria for determining nonlethal injury, the peak pressure that will

result in: (1) The onset of slight lung

hemorrhage, or (2) a 50-percent

probability level for a rupture of the

tympanic membrane. These are injuries

from which animals would be expected

to recover on their own. The range

predicted for the onset of slight lung

hemorrhage is 2.25 km (1.22 nm). The

range predicted for 50 percent

probability of eardrum TM rupture

varies with the mammal’s depth in the

water column; the highest value being

2.16 km (1.17 nm) for a mammal at a

depth of 335 m (1,100 ft). The criterion

with the greater range (in this case,

onset of slight lung hemorrhage) was

used to estimate the number of potential

non-lethal injuries. It is presumed that

100 percent of the marine mammals

within this radius would be injured.

However, as noted previously, the

mortality calculation based on extensive

lung hemorrhage presumes that 100

percent of the animals within a radius

of 1.35 km (0.73 nm) would be killed.

While all animals within this radius are

assumed to be killed, in reality some are

unlikely to be even injured.

In addition to a non-lethal injury

zone, NMFS has described in this

document a method for calculating a

zone of slight injury to the ear wherein

marine mammals might incur a slight

PTS injury. This zone is based on Ketten

(1995, 1998) wherein a PTS/TTS

transition zone has been hypothesized

extending from about 0.9 km (0.5 nm)

from the detonation point to 5 km (2.7

nm) from the detonation point for a

10,000–lb (4,536–kg) charge. This is

illustrated in figures D-9 and D-10 of

Appendix D in the Navy’s FEIS. Based

on Ketten’s calculations, and the fact

that shock wave intensity decays

exponentially with distance, it is

reasonable to assume that PTS is

unlikely to occur beyond the monitored

buffer zone (3 nm/5.6 km) for the shock

trial of the USS WINSTON S.

CHURCHILL. Therefore, the method

described by NMFS considers the zone

between the range that has the potential

to produce impulse levels for causing

either the onset of slight lung

hemorrhage or the energy flux density to

produce 50 percent TM rupture, which

is 1.22 nm/2.25 km from the detonation,

and the outer edge of the buffer zone (3

nm/5.6 km) to be an area wherein

marine mammals might incur a nonserious PTS injury. NMFS notes

however, that because the Navy has

calculated a take by injury wherein 100

percent of the marine mammals within

the injury zone would be injured when

in fact the incidence of eardrum rupture

would be less than 50 percent at this

range and the incidence of PTS would

be less than 30 percent, there is no need

in the case of the USS WINSTON S.

CHURCHILL to recalculate take by

injury levels due to this slightly

extended slight injury zone.

Finally, 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.

Incidental Harassment

NMFS has described TTS as an

example of one form of harassment (60

FR 28379, May 31, 1995). TTS is a

change in the threshold of hearing (the

quietest sound an animal can hear),

which could temporarily affect an

animal’s ability to hear calls,

echolocation sounds, and other ambient

sounds. As such, it could result in a

temporary disruption of behavioral

patterns, as specified in the statutory

definition of Level B harassment.

22464 Federal Register / Vol. 66, No. 87 / Friday, May 4, 2001 / Rules and Regulations

Since the small take authorization and

Navy’s FEIS for the USS SEAWOLF

shock trial (63 FR 66069, December 1,

1998), the Navy has conducted an

extensive analysis of the scientific

literature, producing a good perspective

on the physiological effects of TTS, as

well as its use in human DRC by the

Occupational Health and Safety

Administration and in the National

Institute for Occupational Safety and

Health’s (NIOSH) Criteria for

Recommended Noise Standard (NIOSH,

1998). The best research to date

indicates that the distortion and

dysfunction of sensory tissue observed

during TTS are only temporary and

fully reversed upon recovery (i.e.,

occasional TTS produces no permanent

tissue damage to the ear, only the

temporary nondestructive impairment

of tissue that fully recovers). As

described in detail earlier in this

document, this type of temporary

nondestructive impairment as well as

the use of TTS in human DRC are the

scientific basis for no longer considering

TTS as Level A harassment. Therefore,

NMFS and the Navy concur that an

impairment of hearing-related behavior

during periods of TTS is the most

reliable and meaningful estimate of

Level B harassment for explosive

detonation events.

Based upon information provided in

the Navy’s application for a small take

authorization and in greater detail in

Appendix E of the Navy’s FEIS, a dual

criterion for Level B acoustic

harassment has been developed: (1) an

energy-based TTS criterion of 182 dB re

1 uPa2–sec 182 dB (re 1 uPa2–sec),

cumulative energy flux in any 1/3

octave band above 10 Hz for mysticetes

and above 100 Hz for odontocetes (and

sea turtles) derived from experiments

with bottlenose dolphins (Ridgway et

al., 1997; Schlundt et al., 2000); and (2)

12 psi peak pressure cited by Ketten

(1995) as associated with a ‘‘safe outer

limit for the 10,000 lb (4,536 kg) 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 (re 1 uPa2–sec)

criterion, the Navy calculated separate

ranges for odontocetes and mysticetes

based on their differing sensitivity to

low frequency sounds. For those

odontocetes which are ‘‘high-frequency

specialists,’’ all frequencies greater than

or equal to 100 Hz were included. For

mysticetes, which are ‘‘low-frequency

specialists,’’ the frequency range was

extended down to 10 Hz. Water depth

is also an important factor in calculating

harassment ranges. However, regardless

of water depth, the Navy chose the

highest values for TTS harassment

ranges. Expected numbers of marine

mammals within these radii (and

thereby potentially receiving a TTS

harassment impact) were calculated

using the mean densities for the species

expected in each area, and adjusting

those estimates to account for

submerged (undetectable) individuals.

These ranges are as follows:

Water Depth (ft/m) 600/183 1200/366 2,300/701

Odontocetes (nm/km) 7.2/13.3 11.0/20.4 13.6*/25.2

Mysticetes (nm/km) 13.0/24.1 13.0/24.1 15.0/27.8

* determined by the 12 lbs/in2 criterion

Estimated Level of Marine Mammal

Takings

While the Navy does not expect that

any lethal takes will result from these

detonations (because of mitigation

measures taken), calculations indicate

that the Mayport site has the potential

to result in up to 4 mortalities, 6 nonserious injuries, and 2,885 takings by

harassment.

Mitigation and Monitoring Measures

The Navy’s proposed action includes

mitigation and monitoring that would

minimize risk to marine mammals and

sea turtles. These mitigation and

monitoring measures 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 potentially, marine

mammals and sea turtle populations are

the lowest, based on the results of aerial

surveys conducted one to two days prior

to the first detonation;

(2) Pre-detonation aerial monitoring

will be conducted on the day of each

detonation to evaluate the primary test

site and verify that the safety range and

buffer zone are 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

biologists and acousticians will monitor

the area visually (aerial and shipboard

monitoring) and acoustically (by

deploying sonobuoys) 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 4.16 km (2.25

nm), or (c) any large fish school, or flock

of seabirds is detected within a safety

zone of 1.85 km (1 nm);

(4) The area will be monitored

visually (aerial and shipboard

monitoring) and acoustically (by

deploying sonobuoys) before each test

and detonation will not occur 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 (2.0nm) safety zone. A

detonation will not 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 North

Atlantic right whale is seen, detonation

will not occur until the animal is

positively relocated 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;

(5) Detonation will not occur 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;

(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 for 48

hours after each detonation, and for 7

days following the last detonation, to

find, document and track 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 will be halted until procedures

for subsequent detonations can be

reviewed and changed as necessary.

Detailed descriptions of the measures

for mitigation and monitoring the shock

Federal Register / Vol. 66, No. 87 / Friday, May 4, 2001 / Rules and Regulations 22465

test can be found in Section 5 of the

Navy’s DEIS or FEIS.

Reporting

Within 120 days of the completion of

shock testing, 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 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.

Substantial Changes to the Proposed

Rule

The effective date of the rule is

changed from a beginning date of April

1st to a beginning date of May 1st in

order to conform with the Navy’s small

take application. (May 1st had been

chosen by the Navy because of a

determination that this date provided

additional protection to sea turtles

which are more abundant off the

inshore waters off Mayport in April).

With the decision made by the Navy,

through completion of its Record of

Decision (part of which was its NEPA

documentation), to conduct the shock

trial in the offshore waters of the

Atlantic Ocean off Mayport, FL, the list

of affected marine mammals has been

amended to authorize the taking of only

those species with some potential to be

in the Mayport, FL offshore region

between May and September. The

following species have therefore been

removed: Blue whale (Balaenoptera

musculus); fin whale (B. physalus); sei

whale (B. borealis); Bryde’s whale (B.

edeni); minke whale (B. acutorostrata);

northern right whale (Eubalaena

glacialis); humpback whale (Megaptera

novaeangliae); long-finned pilot whale

(Globicephala melas); northern

bottlenose whale (Hyperoodon

ampullatus); Sowerby’s beaked whale

(Mesoplodon bidens); Atlantic whitesided dolphin (Lagenorhynchus acutus);

harbor porpoise (Phocoena phocoena),

and harbor seal (Phoca vitulina).

Costs and Benefits

In addition to allowing the Navy to

take a small number of marine mammals

incidental to conducting the shock trial,

this final rule requires the Navy to

provide NMFS and the public with

information on the shock trial’s effect on

the marine environment, especially on

marine mammals. Besides the improved

survivability of U.S. armed forces at sea

and the Navy’s multi-billion dollar ship

assets, this final rule will result in

NMFS and the public being provided

this information. NMFS believes that

obtaining this information is extremely

important because shock trials are not

the only explosive noise source in the

world’s oceans, and the scientific

findings resulting from monitoring are

likely to be directly applicable to future

activities. Also, the mitigation measures

for protecting marine mammals, sea

turtles and other marine life that will be

required by the final rule will result in

a substantial reduction in impacts on

these animals. Without these

regulations, these mitigation measures

could not be required to be undertaken

by the U.S. Navy. Also, the cost to the

Navy to comply with the mitigation and

monitoring measures that will be

required by this rule cannot be fully

determined at this time, however NMFS

believes that the cost will be

approximately $ 1.8 million, due, in

large part, to expenses incurred with

conducting 8 aerial surveys for

humpback whales and other marine

mammals annually.

NEPA

On December 10, 1999 (64 FR 69267),

a notice of availability of the Navy DEIS

was published. The public comment for

that document was extended until

March 31, 2000. On February 23, 2001

(66 FR 11288), the Navy released an

FEIS on this action. NMFS is a

cooperating agency, as defined by the

Council on Environmental Quality (40

CFR 1501.6), in the preparation of these

documents. NMFS has reviewed the

Navy’s FEIS and does not have any

significant concerns with the findings

contained therein. As a result, NMFS

hereby adopts the Navy FEIS as its own

as provided by 40 CFR 1506.3 and finds

that it is unnecessary to either prepare

its own NEPA documentation on the

issuance of these regulations nor to

recirculate the Navy FEIS for additional

comments.

ESA

The U.S. Navy requested consultation

with NMFS under section 7 of the ESA

on this action. In that regard, NMFS

concluded consultation with the Navy

on this activity on October 10, 2000.

The finding of that consultation was

that the shock trial is not likely to

jeopardize the continued existence of

any species under the jurisdiction of

NMFS. A copy of the Biological Opinion

is available upon request (see

ADDRESSES).

Conclusions

While NMFS believes that detonation

of three to four 4,536–kg (10,000–lb)

charges may affect some marine

mammals, the latest abundance and

seasonal distribution estimates indicate

that such taking will result in only small

numbers of marine mammals being

affected, and that this level of impact

will have no more than 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, as provided in its FEIS

and small take application, 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. Since the taking will

not result in more than the incidental

harassment (as defined by the MMPA

Amendments of 1994) of small numbers

of certain species of marine mammals,

will have only a negligible impact on

these stocks, will not have an

unmitigable adverse impact on the

availability of these stocks for

subsistence uses, and, through

implementation of required mitigation

and monitoring measures, will result in

the least practicable adverse impact on

the affected marine mammal stocks,

NMFS has determined that the

requirements of section 101(a)(5)(A) of

the MMPA have been met and the LOA

can be issued.

Authorization

Accordingly, NMFS issued an LOA on

the date of this document to the U.S.

Navy to take small numbers of marine

mammals incidental to conducting a

shock trial of the USS WINSTON S.

CHURCHILL in the offshore waters off

Mayport, FL, provided the previously

mentioned mitigation, monitoring, and

reporting requirements are carried out.

Classification

This action has been determined to be

not significant for purposes of Executive

Order 12866.

The Chief Counsel Regulation of the

Department of Commerce certified to

the Chief Counsel for Advocacy of the

Small Business Administration, when

this rule was proposed, that, if adopted,

22466 Federal Register / Vol. 66, No. 87 / Friday, May 4, 2001 / Rules and Regulations

it 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. It will also affect a

small number of contractors providing

services related to reporting the impact

of the shock trial on marine mammals.

Some of the affected contractors may be

small businesses, but the number

involved would not be substantial.

Further, since the monitoring and

reporting requirements are what would

lead to the need for their services, the

economic impact on them would be

beneficial. Accordingly, the analytical

requirements of the Regulatory

Flexibility Act do not apply and a

regulatory flexibility analysis has not

been prepared.

The Assistant Administrator for

Fisheries, NOAA, finds for good cause,

under section 553(d)(3) of Title 5 of the

U.S.C., namely that it is unnecessary

and contrary to public interest to delay

the effective date of this rule for 30

days. This rule authorizes the issuance

of an LOA by NMFS and sets forth the

mitigation, monitoring and reporting

requirements that the U.S. Navy must

comply with in conjunction with the

shock test of the USS WINSTON S.

CHURCHILL. Neither NMFS nor the

U.S. Navy need any time in order to

come into compliance with the

requirements of this rule and are

prepared to implement them

immediately. Further, because the U.S.

Navy has completed its requirements

under NEPA and has assets ready to

conduct the shock trial, a delay of 30

days would be costly to the U.S. Navy

and a waste of taxpayer dollars.

List of Subjects in 50 CFR Part 216

Administrative practice and

procedure, Imports, Indians, Marine

mammals, Penalties, Reporting and

recordkeeping requirements,

Transportation.

Dated: April 26, 2001

Clarence Pautzke,

Acting 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. Subpart N is added to read as

follows:

Subpart N—Taking of Marine Mammals

Incidental to Shock Testing the USS

WINSTON S. CHURCHILL by Detonation of

Conventional Explosives in the Offshore

Waters of the U.S. Atlantic Coast

Sec.

216.151 Specified activity, geographical

region, and incidental take levels.

216.152 Effective dates.

216.153 Permissible methods of taking;

mitigation.

216.154 Prohibitions.

216.155 Requirements for monitoring and

reporting.

216.156 Modifications to the Letter of

Authorization.

Subpart N—Taking of Marine Mammals

Incidental to Shock Testing the USS

WINSTON S. CHURCHILL by

Detonation of Conventional Explosives

in the Offshore Waters of the U.S.

Atlantic Coast

§ 216.151 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

WINSTON S. CHURCHILL.

(b) The incidental take of marine

mammals under the activity identified

in paragraph (a) of this section is limited

to the following species: Sperm whale

(Physeter macrocephalus); dwarf sperm

whale (Kogia simus); pygmy sperm

whale (K. breviceps); pilot whale

(Globicephala 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); melon-headed

whale (Peponocephala electra); Cuvier’s

beaked whale (Ziphius cavirostris),

Blainville’s beaked whale (Mesoplodon

densirostris); Gervais’ beaked whale (M.

europaeus); True’s beaked whale (M.

mirus); and common dolphin

(Delphinus delphis).

(c) The incidental take of marine

mammals identified in paragraph (b) of

this section is limited to a total of no

more than 4 mortalities, 6 injuries, and

2,885 takings by harassment, except that

the incidental taking by serious injury

or mortality for species listed in

paragraph (b) of this section that are also

listed as threatened or endangered

under § 7.11 of this title, is prohibited.

§ 216.152 Effective dates.

Regulations in this subpart are

effective from May 1, 2001, through

September 30, 2001.

§ 216.153 Permissible methods of taking;

mitigation.

(a) Under a Letter of Authorization

issued pursuant to § 216.106, the U.S.

Navy may incidentally, but not

intentionally, take marine mammals by

harassment, injury or mortality in the

course detonating up to 4 4,536 kg

(10,000 lb) conventional explosive

charges within the area described in

§ 216.151(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 the marine mammals are no longer

within the safety zone or on a course

within the buffer zone that is taking

them away from the safety zone.

(2) If a marine mammal listed under

the Endangered Species Act is detected

within the buffer zone, and

subsequently cannot be detected,

detonation must not occur until sighting

and acoustic teams have searched the

area for 2.5 hours.

(3) If a northern right whale is seen,

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;

(4) If weather and/or sea conditions as

described in the Letter of Authorization

preclude adequate aerial surveillance,

detonation must not occur until

conditions improve sufficiently for

aerial surveillance to be undertaken.

(5) 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

Federal Register / Vol. 66, No. 87 / Friday, May 4, 2001 / Rules and Regulations 22467

changes must be made prior to

conducting the next detonation.

§ 216.154 Prohibitions.

Notwithstanding takings authorized

by § 216.151(b) and by a Letter of

Authorization issued under § 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 § 216.106.

(c) The incidental taking of any

marine mammal of a species not

specified in this subpart.

§ 216.155 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 test area must be surveyed by

marine mammal biologists and other

trained individuals, and the marine

mammal populations monitored, 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 § 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

WINSTON S. CHURCHILL. 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.

§ 216.156 Modifications to the Letter of

Authorization.

(a) In addition to complying with the

provisions of § 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 § 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), or

that significantly and detrimentally

alters the scheduling of explosives

detonation within the area specified in

§ 216.151(a), the Letter of Authorization

issued pursuant to § 216.106 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. 01–11161 Filed 4–30–01; 3:38 pm]

BILLING CODE 3510–22–S

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Parts 600 and 660

[Docket No. 001226367–0367–01; I.D.

121500E]

Fisheries off West Coast States and in

the Western Pacific; Pacific Coast

Groundfish Fishery; Annual

Specifications and Management

Measures; Corrections; Trip Limit

Adjustments

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Trip limit adjustments;

correction to the 2001 specifications;

fishing restrictions for the Pacific Coast

groundfish fishery; request for

comments.

SUMMARY: NMFS announces changes in

the following trip limits for the Pacific

Coast groundfish fisheries north and

south of 40°10′ N. lat.: limited entry

trawl for flatfish north, limited entry

fixed gear and open access for minor

nearshore rockfish north, open access

for minor nearshore rockfish south, and

open access for yellowtail rockfish taken

with salmon troll gear. These actions,

which are authorized by the Pacific

Coast Groundfish Fishery Management

Plan (FMP) are intended to help the

fisheries achieve optimum yield (OY)

while protecting overfished and

depleted stocks. This document also

contains corrections relating to the

lingcod and boccacio OYs, which were

initially announced in the annual

specifications and management

measures that were published on

January 11, 2001.

DATES: Changes to management

measures are effective 0001 hours (local

time) May 1, 2001, unless modified,

superseded, or rescinded. These

changes are effective until the effective

date of the 2002 annual specifications

and management measures for the

Pacific Coast groundfish fishery, which

will be published in the Federal

Register. Comments on this rule will be

accepted through May 21, 2001.

ADDRESSES: Submit comments to Donna

Darm, Acting Administrator, Northwest

Region (Regional Administrator), NMFS,

7600 Sand Point Way N.E., Bldg. 1,