Federal Register / Vol. 87, No. 105 / Wednesday, June 1, 2022 / Proposed Rules 33113 

of licensed noncommercial educational 

television stations to be 390. 

Notwithstanding, the Commission does 

not compile and otherwise does not 

have access to information on the 

revenue of NCE stations that would 

permit it to determine how many such 

stations would qualify as small entities. 

There are also 2,246 low power 

television stations, including Class A 

stations (LPTV), and 3,543 TV translator 

stations. Given the nature of these 

services, the Commission will presume 

that all of these entities qualify as small 

entities under the above SBA small 

business size standard. 

The Commission note, however, that 

in assessing whether a business concern 

qualifies as ‘‘small’’ under the above 

definition, business (control) affiliations 

must be included. Our estimate, 

therefore, likely overstates the number 

of small entities that might be affected 

by our action, because the revenue 

figure on which it is based does not 

include or aggregate revenues from 

affiliated companies. In addition, 

another element of the definition of 

‘‘small business’’ requires that an entity 

not be dominant in its field of operation. 

The Commission is unable at this time 

to define or quantify the criteria that 

would establish whether a specific 

television broadcast station is dominant 

in its field of operation. Accordingly, 

the estimate of small businesses to 

which rules may apply does not exclude 

any television station from the 

definition of a small business on this 

basis and is therefore possibly overinclusive. Also, as noted above, an 

additional element of the definition of 

‘‘small business’’ is that the entity must 

be independently owned and operated. 

The Commission notes that it is difficult 

at times to assess these criteria in the 

context of media entities and its 

estimates of small businesses to which 

they apply may be over-inclusive to this 

extent. 

Description of Projected Reporting, 

Recordkeeping, and Other Compliance 

Requirements for Small Entities 

White space devices are unlicensed 

devices that operate in the TV bands at 

locations where frequencies are not in 

use by licensed services. These devices 

may be either fixed or portable. To 

prevent harmful interference to 

broadcast television stations and other 

authorized users of these bands, white 

space devices must obtain a list of 

available TV channels that may be used 

at their location from databases 

administered by private entities selected 

by the Commission. The database 

determines channel availability using 

protection criteria specified in the rules. 

Most RF transmitting equipment, 

including white space devices, must be 

authorized through the certification 

procedure. Certification is an equipment 

authorization issued by a designated 

Telecommunication Certification Body 

(TCB) based on an application and test 

data submitted by the responsible party 

(e.g., the manufacturer or importer). The 

FNPRM does not propose to change the 

authorization procedure for white space 

devices, or the requirement for them to 

obtain a list of available channels from 

a database. It seeks comment on 

possible changes to the requirement on 

how frequently narrowband and mobile 

white space devices must contact a 

database that determines channel 

availability for white space devices. 

Current rules require these devices to recheck the database at least once daily, 

while the Commission has decided to 

require other white space devices to recheck the database once per hour. 

Steps Taken To Minimize the 

Significant Economic Impact on Small 

Entities, and Significant Alternatives 

Considered 

The RFA requires an agency to 

describe any significant, specifically 

small business, alternatives that it has 

considered in reaching its proposed 

approach, which may include the 

following four alternatives (among 

others): ‘‘(1) the establishment of 

differing compliance or reporting 

requirements or timetables that take into 

account the resources available to small 

entities; (2) the clarification, 

consolidation, or simplification of 

compliance and reporting requirements 

under the rule for such small entities; 

(3) the use of performance rather than 

design standards; and (4) an exemption 

from coverage of the rule, or any part 

thereof, for such small entities.’’ 

There are currently no approved 

narrowband or mobile white space 

devices, so changing the database recheck interval would have no 

immediate impact on device 

manufacturers. If manufacturers develop 

devices that comply with the current 

daily re-check interval and the 

Commission subsequently decreases the 

interval (e.g., to once per hour), 

manufacturers would have to modify 

devices to comply. Because a device’s 

database re-check interval would be 

programmed in software, such 

modifications would not be burdensome 

on manufacturers. 

Federal Rules That May Duplicate, 

Overlap, or Conflict With the Proposed 

Rules 

None. 

Ordering Clauses 

Accordingly, it is ordered that, 

pursuant to the authority contained in 

Sections 4(i), 302, 303(b), (c), (e), (f), (r), 

and 307 of the Communications Act of 

1934, as amended, and sections 6403 

and 6407 of the Middle Class Tax Relief 

and Job Creation Act of 2012, Public 

Law 112–96, 126 Stat. 156, 47 U.S.C. 

154(i), 302, 303(b), (c), (e), (f), (r), 307, 

1452, 1454, this Second Order on 

Reconsideration, Further Notice of 

Proposed Rulemaking, and Order is 

hereby adopted. 

It is further ordered that the 

Commission’s Consumer and 

Governmental Affairs Bureau, Reference 

Information Center, shall send a copy of 

the Second Order on Reconsideration, 

Further Notice of Proposed Rulemaking, 

and Order, including the Initial 

Regulatory Flexibility Analysis and 

Final Regulatory Flexibility Analysis, to 

the Chief Counsel for Advocacy of the 

U.S. Small Business Administration. 

Federal Communications Commission. 

Marlene Dortch, 

Secretary. 

[FR Doc. 2022–11686 Filed 5–31–22; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 218 

[RTID 0648–XC018] 

Taking and Importing Marine 

Mammals; Taking Marine Mammals 

Incidental to the U.S. Navy Training 

and Testing Activities in the HawaiiSouthern California Training and 

Testing Study Area 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Receipt of application for 

revision of regulations and Letters of 

Authorization; request for comments 

and information. 

SUMMARY: NMFS has received a request 

from the U.S. Navy (Navy) for revision 

of the existing regulations and Letters of 

Authorization (LOAs) authorizing the 

take of marine mammals incidental to 

Navy training and testing activities 

conducted in the Hawaii-Southern 

California Training and Testing (HSTT) 

Study Area. In 2021, two separate U.S. 

Navy vessels struck unidentified large 

whales on two separate occasions, one 


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33114 Federal Register / Vol. 87, No. 105 / Wednesday, June 1, 2022 / Proposed Rules 

whale in June 2021 and one whale in 

July 2021. NMFS and the Navy 

discussed the vessel strikes, and the 

Navy has reanalyzed the potential for 

vessel strike in the HSTT Study Area. 

As a result, the Navy has requested two 

additional takes of large whales by 

serious injury or mortality by vessel 

strike for the remainder of the current 

regulatory period. Pursuant to 

regulations implementing the Marine 

Mammal Protection Act (MMPA), NMFS 

is announcing receipt of the Navy’s 

application for the development and 

implementation of revised regulations 

governing this additional incidental 

taking of marine mammals. NMFS 

invites the public to provide 

information, suggestions, and comments 

on the Navy’s application and request. 

DATES: Comments and information must 

be received no later than July 1, 2022. 

ADDRESSES: Comments on the 

application should be addressed to Jolie 

Harrison, Chief, Permits and 

Conservation Division, Office of 

Protected Resources, National Marine 

Fisheries Service and should be 

submitted via email to ITP.Davis@

noaa.gov. 

Instructions: NMFS is not responsible 

for comments sent by any other method, 

to any other address or individual, or 

received after the end of the comment 

period. Comments, including all 

attachments, must not exceed a 25- 

megabyte file size. All comments 

received are a part of the public record 

and will generally be posted online at 

https://www.fisheries.noaa.gov/ 

national/marine-mammal-protection/ 

incidental-take-authorizations-militaryreadiness-activities without change. All 

personal identifying information (e.g., 

name, address) voluntarily submitted by 

the commenter may be publicly 

accessible. Do not submit confidential 

business information or otherwise 

sensitive or protected information. 

FOR FURTHER INFORMATION CONTACT: 

Leah Davis, Office of Protected 

Resources, NMFS, (301) 427–8401. An 

electronic copy of the Navy’s 

application may be obtained online at: 

https://www.fisheries.noaa.gov/ 

national/marine-mammal-protection/ 

incidental-take-authorizations-militaryreadiness-activities. In case of problems 

accessing these documents, please call 

the contact listed above. 

SUPPLEMENTARY INFORMATION: 

Background 

The MMPA prohibits the ‘‘take’’ of 

marine mammals, with certain 

exceptions. Sections 101(a)(5)(A) and 

(D) of the MMPA (16 U.S.C. 1361 et 

seq.) direct the Secretary of Commerce 

(as delegated to NMFS) 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 either regulations are 

proposed or, if the taking is limited to 

harassment, a notice of a proposed 

incidental harassment authorization is 

provided to the public for review. 

Authorization for incidental takings 

shall be granted if NMFS finds that the 

taking will have a negligible impact on 

the species or stock(s), finds that the 

taking will not have an unmitigable 

adverse impact on the availability of the 

species or stock(s) for subsistence uses 

(where relevant), and if the permissible 

methods of taking and requirements 

pertaining to the mitigation, monitoring, 

and reporting of such takings are set 

forth. 

NMFS has defined ‘‘negligible 

impact’’ in 50 CFR 216.103 as an impact 

resulting from the specified activity that 

cannot be reasonably expected to, and is 

not reasonably likely to, adversely affect 

the species or stock through effects on 

annual rates of recruitment or survival. 

The MMPA defines ‘‘take’’ to mean to 

harass, hunt, capture, kill or attempt to 

harass, hunt, capture, or kill any marine 

mammal. 

The National Defense Authorization 

Act (NDAA) for Fiscal Year 2004 (Pub. 

L. 108–136) amended section 101(a)(5) 

of the MMPA to remove the ‘‘small 

numbers’’ and ‘‘specified geographical 

region’’ provisions and amended the 

definition of ‘‘harassment’’ as applied to 

a ‘‘military readiness activity’’ to read as 

follows (Section 3(18)(B) of the MMPA): 

(i) Any act that injures or has the 

significant potential to injure a marine 

mammal or marine mammal stock in the 

wild (Level A Harassment); or (ii) Any 

act that disturbs or is likely to disturb 

a marine mammal or marine mammal 

stock in the wild by causing disruption 

of natural behavioral patterns, 

including, but not limited to, migration, 

surfacing, nursing, breeding, feeding, or 

sheltering, to a point where such 

behavioral patterns are abandoned or 

significantly altered (Level B 

Harassment). On August 13, 2018, the 

NDAA for Fiscal Year 2019 (Pub. L. 

115–232) amended the MMPA to allow 

incidental take regulations for military 

readiness activities to be issued for up 

to seven years. 

Summary of Request 

On March 31, 2022, NMFS received 

an adequate and complete application 

(Navy’s 2022 rulemaking/LOA 

application) from the Navy requesting 

that NMFS modify the existing 

regulations and LOAs to authorize two 

additional takes of large whales by 

serious injury or mortality by vessel 

strike over the remainder of the HSTT 

authorization period. The current HSTT 

regulations (50 CFR part 218, subpart H) 

and LOAs authorize the take of marine 

mammals from the Navy’s training and 

testing activities in the HSTT Study 

Area through December 20, 2025. These 

regulations and LOAs authorize the take 

of three large whales by serious injury 

or mortality by vessel strike. 

The Navy’s 2022 request is based 

upon new information regarding U.S. 

Navy vessel strikes off the coast of 

southern California. As described in the 

Navy’s 2022 rulemaking/LOA 

application, in 2021, two separate U.S. 

Navy vessels struck unidentified large 

whales off the coast of southern 

California on two separate occasions, 

one whale in June 2021 and one whale 

in July 2021. (Separately, a foreign naval 

vessel struck two fin whales off the 

coast of southern California in May 

2021.) 

The regulatory revision would be 

conducted through a proposed and final 

rulemaking analyzing the total proposed 

authorized take, including the requested 

additional takes of large whales by 

serious injury or mortality, consistent 

with the requirements of section 

101(a)(5)(A) of the MMPA. The Navy’s 

specified activities have not changed. 

Specifically, the activities include the 

same level and type of training and 

testing (all categorized as military 

readiness activities) including the same 

use of active acoustic sonar systems and 

other transducers, in-water detonations, 

air guns, construction activities 

involving pile removal and installation, 

and the operation of a fleet of vessels 

throughout the HSTT Study Area. These 

activities may result in the incidental 

take of marine mammals in the form of 

Level B harassment (behavioral 

disruption or temporary hearing 

impairment), Level A harassment 

(permanent hearing impairment or 

tissue damage), or serious injury or 

mortality in a very small number of 

cases. 

Description of Activity 

In the Navy’s 2022 rulemaking/LOA 

application, the Navy proposes no 

changes to the specified activities 

covered by the 2020 HSTT final rule (85 

FR 41780; July 10, 2020). The level of 

activity within and between years 

would be consistent with that 

previously analyzed in the 2020 HSTT 

final rule (85 FR 41780; July 10, 2020), 

and all activities would be conducted 

within the same boundaries of the HSTT 


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Federal Register / Vol. 87, No. 105 / Wednesday, June 1, 2022 / Proposed Rules 33115 

Study Area identified in the 2020 HSTT 

final rule (85 FR 41780; July 10, 2020). 

Therefore, the training and testing 

activities (e.g., equipment and sources 

used, exercises conducted) are identical 

to those described and analyzed in the 

2020 HSTT final rule (85 FR 41780; July 

10, 2020), including the level of vessel 

use. 

Given the new information regarding 

U.S. Navy vessel strikes of large whales 

off the coast of southern California, the 

Navy’s 2022 rulemaking/LOA 

application includes a revised analysis 

of vessel strike in the HSTT Study Area 

and a request for two additional takes by 

serious injury or mortality for large 

whales from vessel strikes, beyond that 

authorized in the 2020 HSTT final rule 

(85 FR 41780; July 10, 2020). 

Regarding the quantification of 

expected takes from acoustic and 

explosive sources (by Level A 

harassment and Level B harassment, as 

well as mortality resulting from 

exposure to explosives), the number of 

takes are based directly on the level of 

activities (days, hours, counts, etc., of 

different activities and events) in a 

given year, and the Navy has not 

changed these take numbers in its 2022 

rulemaking/LOA application. 

The Navy has changed its policy 

regarding Lookouts to require the use of 

three Lookouts on Navy cruisers and 

destroyers (the only types of Navy 

vessels that have struck whales in the 

Pacific) while underway, as compared 

to the previous requirement of one 

Lookout when a vessel was underway 

and not engaged in sonar training or 

testing. The Navy has included this 

update in its 2022 application. 

Otherwise, the mitigation, monitoring, 

and reporting measures included in the 

Navy’s rulemaking/LOA application are 

identical to those described and 

analyzed in the 2020 HSTT final rule 

(85 FR 41780; July 10, 2020). Please see 

Section 11.1 (Standard Operating 

Procedures) and Section 11.2 

(Mitigation Measures) of the Navy’s 

2022 rulemaking/LOA application, 

respectively, for additional detail. 

Mitigation would continue to include 

procedural mitigation measures and 

mitigation areas. Procedural mitigation 

would continue to include, but not be 

limited to, the use of trained Lookouts 

to monitor for marine mammals in 

mitigation zones, requirements for 

Lookouts to immediately provide 

notification of sightings to the 

appropriate watch station, requirements 

for implementation of powerdown and 

shutdown mitigation measures (based 

on activity defined zones), pre- and 

post-monitoring requirements for 

explosive events, and measures to 

reduce the likelihood of vessel strikes. 

Chapter 5 of the 2018 HSTT Final 

Environmental Impact Statement/ 

Overseas Environmental Impact 

Statement (FEIS/OEIS) and the 

Mitigation Measures section of the 2018 

HSTT final rule include detailed 

descriptions of mitigation measures for 

each specified activity in the HSTT 

Study Area. The Navy would also 

continue to implement mitigation 

measures within certain areas 

(Mitigation Areas) and/or at certain 

times to avoid or minimize potential 

impacts on marine mammals in areas 

and/or times where they are known to 

engage in biologically important 

behaviors (i.e., for foraging, migration, 

reproduction), where the disruption of 

those behaviors would be more likely to 

result in population-level impacts. The 

Mitigation Measures section in the 2018 

HSTT final rule includes detailed 

descriptions of geographic mitigation 

measures in the HSTT Study Area. 

Maps and tables of the mitigation areas 

can be found in Chapter 5 of the 2018 

HSTT FEIS/OEIS. 

The Navy would continue 

implementation of the robust Integrated 

Comprehensive Monitoring Program 

and Strategic Planning Process outlined 

in the current regulations at 50 CFR part 

218, subpart H. The Navy’s monitoring 

strategy, currently required by the 

existing regulations, is well-designed to 

work across Navy ranges to help better 

understand the impacts of the Navy’s 

activities on marine mammals and their 

habitat by focusing on learning more 

about marine mammal occurrence in 

different areas and exposure to Navy 

stressors, marine mammal responses to 

different sound sources, and the 

consequences of those exposures and 

responses on marine mammal 

populations. Similarly, the revised 

regulations would include identical 

adaptive management provisions and 

reporting requirements as the existing 

regulations. 

Information Solicited 

Interested persons may submit 

information, suggestions, and comments 

concerning the Navy’s request (see 

ADDRESSES). NMFS will consider all 

information, suggestions, and comments 

related to the request during the 

development of proposed regulations 

governing the incidental taking of 

marine mammals by the Navy, if 

appropriate. 

Dated: May 24, 2022. 

Kimberly Damon-Randall, 

Director, Office of Protected Resources, 

National Marine Fisheries Service. 

[FR Doc. 2022–11577 Filed 5–31–22; 8:45 am] 

BILLING CODE 3510–22–P 


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