[Federal Register Volume 66, Number 87 (Friday, May 4, 2001)]
[Rules and Regulations]
[Pages 22450-22467]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-11161]


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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.

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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

[[Page 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 at-sea 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 real-time 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

[[Page 22452]]

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 single-event 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 pulse-power 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/in\2\ 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 short-

[[Page 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 follow-up 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 rule-making 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 uPa\2\-
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 uPa\2\-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.

[[Page 22454]]

    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 uPa\2\-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 uPa\2\-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

[[Page 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 uPa\2\-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 uPa\2\-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 
uPa\2\-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 uPa\2\-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 uPa\2\-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 uPa\2\-
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

[[Page 22456]]

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 uPa\2\-
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 uPa\2\-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 uPa\2\-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 uPa\2\-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

[[Page 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 non-injury, 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 depletion-both 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 uPa\2\-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 cross-species 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 uPa\2\-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 masked-hearing thresholds, defined as a 6-dB or 
larger increase in threshold over pre-exposure 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

[[Page 22458]]

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 non-lethal 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 over-extension 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, long-term, 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 uPa\2\-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 pre-exposure 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 uPa\2\-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

[[Page 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 non-serious 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 uPa\2\-sec used in the proposed rule and 
the Navy DEIS'' use of the term 182 dB re uPa\2\-sec.
    Response: Both documents should read 182 dB re 1 uPa\2\-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 uPa\2\-sec) and not the in-air standard (re 20 
uPa\2\-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

[[Page 22460]]

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 media-dependent 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

[[Page 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 non-randomly, 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

[[Page 22462]]

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 
self-described 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 uPa\2\-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 uPa\2\-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

[[Page 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 
non-lethal 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 non-
serious 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.

[[Page 22464]]

    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 uPa\2\-sec 
182 dB (re 1 uPa\2\-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 uPa\2\-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/in\2\ 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 non-serious 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 post-detonation 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

[[Page 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 white-sided 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,

[[Page 22466]]

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


Sec. 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 Sec. 7.11 of this title, is prohibited.


Sec. 216.152  Effective dates.

    Regulations in this subpart are effective from May 1, 2001, through 
September 30, 2001.


Sec. 216.153  Permissible methods of taking; mitigation.

    (a) Under a Letter of Authorization issued pursuant to 
Sec. 216.106, the U.S. Navy may incidentally, but not intentionally, 
take marine mammals by harassment, injury or mortality in the course 
detonating up to 4 4,536 kg (10,000 lb) conventional explosive charges 
within the area described in Sec. 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

[[Page 22467]]

changes must be made prior to conducting the next detonation.


 Sec. 216.154  Prohibitions.

    Notwithstanding takings authorized by Sec. 216.151(b) and by a 
Letter of Authorization issued under Sec. 216.106, the following 
activities are prohibited:
    (a) The taking of a marine mammal that is other than unintentional.
    (b) The violation of, or failure to comply with, the terms, 
conditions, and requirements of this part or a Letter of Authorization 
issued under Sec. 216.106.
    (c) The incidental taking of any marine mammal of a species not 
specified in this subpart.


Sec. 216.155  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 Sec. 216.106, including the retention of marine mammals, may be 
conducted without the need for a separate scientific research permit. 
The use of retained marine mammals for scientific research other than 
shoreside examination must be authorized pursuant to subpart D of this 
part.
    (f) In coordination and compliance with appropriate Navy 
regulations, at its discretion, the National Marine Fisheries Service 
may place an observer on any ship or aircraft involved in marine mammal 
reconnaissance, or monitoring either prior to, during, or after 
explosives detonation in order to monitor the impact on marine mammals.
    (g) A final report must be submitted to the Director, Office of 
Protected Resources, no later than 120 days after completion of shock 
testing the USS 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.


Sec. 216.156  Modifications to the Letter of Authorization.

    (a) In addition to complying with the provisions of Sec. 216.106, 
except as provided in paragraph (b) of this section, no substantive 
modification, including withdrawal or suspension, to the Letter of 
Authorization issued pursuant to Sec.  216.106 and subject to the 
provisions of this subpart shall be made until after notice and an 
opportunity for public comment.
    (b) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species 
or stocks of marine mammals specified in Sec. 216.151(b), or that 
significantly and detrimentally alters the scheduling of explosives 
detonation within the area specified in Sec. 216.151(a), the Letter of 
Authorization issued pursuant to Sec. 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