[Federal Register Volume 66, Number 160 (Friday, August 17, 2001)]
[Rules and Regulations]
[Pages 43442-43459]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-20647]



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Part V





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Part 216



Taking and Importing Marine Mammals; Taking Marine Mammals Incidental 
to Operation of a Low Frequency Sound Source by the North Pacific 
Acoustic Laboratory; Final Rule

  Federal Register / Vol. 66, No. 160 / Friday, August 17, 2001 / Rules 
and Regulations  

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 00801223-1204-03; I.D. 062000A]
RIN 0648-AO24


Taking and Importing Marine Mammals; Taking Marine Mammals 
Incidental to Operation of a Low Frequency Sound Source by the North 
Pacific Acoustic Laboratory

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 University of California San 
Diego, Scripps Institution of Oceanography (Scripps), is issuing 
regulations to govern the unintentional take of a small number of 
marine mammals incidental to the continued operation of a low frequency 
(LF) sound source by Scripps. The sound source was previously installed 
off the north shore of Kauai by the Acoustic Thermometry of Ocean 
Climate (ATOC) project. 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 conducting the activity; such 
authorization is not within the jurisdiction of the Secretary. Rather, 
these regulations 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 from September 17, 2001, through September 17, 2006.

ADDRESSES: Copies of the Scripps' application and NMFS' Biological 
Opinion 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 limited number of copies of the Final 
Environmental Impact Statement (final EIS), issued by the Office of 
Naval Research, Department of the Navy (ONR) for this activity, are 
available from Marine Acoustics Inc., 809 Aquidneck Ave., Middletown, 
RI 02842, attn. Kathy Vigness Reposa, 401-847-7508.
    Comments regarding the burden-hour estimate or any other aspect of 
the collection of information requirements contained in this rule 
should be sent to the Chief, 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 take are issued.
    Permission may be granted for periods of 5 years or less if the 
Secretary finds that the taking will be small, will have no more than a 
negligible impact on the species or stock(s), and will not have an 
unmitigable adverse impact on the availability of the species or 
stock(s) for Arctic Ocean 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 May 21, 2000, NMFS received an application for an incidental, 
small take authorization under section 101(a)(5)(A) of the MMPA from 
Scripps to take a small number of marine mammals incidental to the 
continued operation of a LF sound source previously installed off the 
north shore of Kauai, HI as part of the ATOC project. The principal 
funding agency for the proposed action is ONR. A final decision on 
whether to use the acoustic sound source and its seabed power cable for 
the North Pacific Acoustic Laboratory (NPAL), in order to combine a 
second phase of research on the feasibility and value of large-scale 
acoustic thermometry with long range underwater sound transmission 
studies and marine mammal monitoring and studies, will be made by 
Scripps and ONR based, in part, on their findings and determinations 
made under the National Environmental Policy Act (NEPA). Draft and 
final EISs have been prepared by the ONR. NMFS is a cooperating agency, 
as defined by NEPA, in the preparation of these documents.

Project Description

    Acoustic thermometry is a method for obtaining information about 
the temperature field in the ocean from precise measurements of the 
travel times of sound pulses transmitted through the ocean. It is also 
a technique for acoustic remote sensing of the ocean interior, in which 
the properties of the ocean between the acoustic sources and receivers 
are determined, rather than the properties of the ocean at the 
instruments as is the case for conventional thermometers and current 
meters.
    The basic principle behind acoustic thermometry is that, because 
sound travels faster in warm water than in cold water, sound travel 
time is a direct measure of the average temperature between source and 
receiver. The travel time of a sound pulse from a source near Kauai to 
a receiver in the western North Pacific Ocean, for example, will 
decrease if the ocean in between warms up and will increase if the 
ocean cools down. Measuring average ocean temperatures over time may 
answer questions related to global climate change.
    The NPAL acoustic project takes advantage of an acoustic 
``waveguide'' deep within the ocean that carries sounds over very long 
distances. This feature, known as the ``sound channel'' or sound fixing 
and ranging (SOFAR) channel, is at the ocean depth where the speed of 
sound is at a minimum. Above the SOFAR channel, sound travels faster 
because the water is warmer. Below the SOFAR channel, sound travels 
faster because the pressures are greater. Sounds that would otherwise 
spread to higher or lower depths are refracted (bent) back toward the 
SOFAR channel axis by this difference in speeds. The net effect is that 
the sound channel very efficiently transmits sounds for long distances. 
This effect also tends to limit sounds that are trapped in the SOFAR 
channel from being detectable at depths outside of the channel. The 
sounds to be produced by the NPAL source are digitally coded, low 
frequency rumbles

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at a pitch comparable to the low notes of a cello. The same digital 
sequences are repeated a number of times and combined at the receivers. 
This allows a signal to be detected beneath the ambient background 
noise which, in turn, permits use of a less intense sound source. The 
receiving stations use advanced digital processing techniques similar 
to those used to retrieve data from deep space probes, to detect 
signals after traveling great distances through the SOFAR channel.
    Long-range underwater sound transmission studies are needed: (1) To 
improve the understanding of the basic principles of LF, long-range 
underwater sound transmission (i.e., acoustic propagation) in the 
ocean; (2) to determine the effects of ocean environmental variability 
on acoustic signal stability and coherence; (3) to study the seasonal 
and annual variations in acoustic conditions in the North Pacific and 
the impact of environmental variability on acoustic propagation; and 
(4) to determine the fundamental limits to acoustic signal processing 
at long-range imposed by the ocean environment.
    The original ATOC feasibility project demonstrated that acoustic 
thermometry is a powerful tool for making routine measurements of 
large-scale ocean temperature variability and heat content. The key 
results obtained to date are: (1) Acoustic travel times can be measured 
with a precision of about 20-30 milliseconds at 3000-5000 km (1620-2700 
nm) ranges; (2) range- and depth-averaged temperature estimates made 
from the acoustic travel-time data are consistent with direct 
temperature measurements made with instruments lowered from ships 
(Worcester et al., 1999); (3) the observed travel time changes can be 
clearly related to known ocean processes; and (4) the range and depth-
averaged temperatures derived from ATOC are consistent with, and 
complementary to, related estimates derived from measurements of sea-
surface height.
    The purposes for conducting the proposed second-phase of large-
scale acoustic thermometry research are: (1) To test the feasibility 
and value of large-scale acoustic thermometry; (2) to study the 
behavior of sound transmissions in the ocean over long distances; (3) 
to study seasonal and interannual ocean variability associated with 
ocean phenomena such as El Nino, La Nina, and the Pacific Decadal 
Oscillation; (4) to use acoustic thermometry data in combination with a 
variety of other data types, including satellite altimeter data, 
surface drifter data, surface mooring data, and others to test and 
constrain computer models of ocean circulation in order to gain a 
better understanding of ocean variability and the earth's changing 
climate; and (6) to make an objective assessment of the value of 
acoustic methods for remote sensing of the ocean interior as one 
component of an integrated ocean observing system for ocean weather and 
climate. This second phase of acoustic research will require a long 
time series of acoustic measurements in order to determine whether the 
acoustically-derived time series of large-scale ocean temperature and 
heat content variability prove to be as valuable as anticipated in 
studying seasonal and interannual ocean variability.
    Under the proposed action, which is for Scripps to operate the 
sound source previously installed off the north shore of Kauai by the 
ATOC project, the seabed power cable and sound source from the ATOC 
project would remain in their present locations offshore of Kauai, and 
transmissions would continue with approximately the same signal 
parameters and transmission schedule used in the earlier ATOC project. 
The typical schedule would consist of six 20-minute (min) transmissions 
(one every 4 hours), every fourth day, with each transmission preceded 
by a 5-min ramp-up period during which the signal intensity is 
gradually increased, representing an average duty cycle of 2 percent. 
With the possible exception of short duration testing with duty cycles 
of up to 8 percent, or equipment failure, this schedule would continue 
for a period of 5 years. In this context, short duration testing refers 
to a maximum of 2 months of testing per year at a duty cycle higher 
than 2 percent. The signals transmitted by the source would have a 
center frequency of 75 Hertz (Hz) and a bandwidth of approximately 35 
Hz (i.e., sound transmissions are in the frequency band of 57.5-92.5 
Hz). Approximately 260 watts of acoustic power would be radiated during 
transmission. According to Scripps, the signal parameters and source 
level in the ATOC project have been found to provide adequate, but not 
excessive, signal-to-noise ratios in the receiver ranges of interest. 
At 1 meter (m)(3.3 feet (ft)) from the source (at 807 m (2,648 ft) 
water depth), sound intensity (i.e., source level) would be about 195 
decibels (dB) referenced to the intensity of a signal with a sound 
pressure level (SPL) of 1 microPascal (1 Pa).
    Average ambient noise levels in the 60-90 Hz band offshore central 
Kauai can be 76-98 dB (with various degrees of shipping traffic) and 
are expected to be higher (a105 dB) when humpback whales are present. 
At the water's surface above the NPAL source, the received level from 
the NPAL source is not expected to be louder than 137 dB when the 
source is on. The received level in the top 100 m (328.1 ft) from the 
water surface, when the source is on, has been measured to decrease to 
about 120 dB at 5 km (2.7 nm) shoreward of the source. The near-surface 
NPAL received level is predicted to decrease to about 120 dB at 7.5 km 
(4 nm) seaward of the source. Underwater sound levels in the area 
surrounding the NPAL source are expected to be: 140 dB at 245 m (804 
ft) water depth (562 m (1844 ft) from the source); 145 dB at 491 m 
(1611 ft) water depth (316 m (1037 ft) from the source); 150 dB at 629 
m (2064 ft) water depth (178 m (564 ft) range around the source); and 
165 dB at 775 m (2543 ft) water depth (32 m (105 ft) range around the 
NPAL source (ONR/NMFS, 2000; ARPA/NMFS, 1995).

Comments and Responses

    On December 22, 2000 (65 FR 80815), NMFS published a proposed rule 
to authorize Scripps to take small numbers of marine mammals incidental 
to the continued operation of a LF sound source previously installed 
off the north shore of Kauai, HI, and requested comments, information, 
and suggestions concerning the request and the regulations that would 
govern the taking by harassment of certain species of marine mammals. 
During the 45-day public comment period, NMFS received letters from one 
citizen, the Marine Mammal Commission (MMC), the Hawaii Department of 
Business, Economic Development and Tourism (State of Hawaii), the 
Humane Society of the United States (on behalf of itself, Earth Island 
Institute and the Natural Resources Defense Council)(HSUS), and from 
the Whale and Dolphin Conservation Society (WDCS). Some comments by the 
MMC regarding minor text edits modifications have been incorporated 
without further discussion in this document.

Activity Concerns

    Comment AC1: The MMC notes that the term ``short duration'' should 
be described in reference to duty cycles of up to 8 percent.
    Response: In the preamble to the proposed rule, NMFS stated: 
``[W]ith the possible exception of short duration testing with duty 
cycles of up to 8 percent, or equipment failure, this (NPAL 
transmission) schedule would continue for a period of 5 years.'' In 
this document, ``short duration testing'' refers to the maximum of 2 
months of testing per year at a duty cycle higher than 2 percent. This 
increased duty

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cycle would not occur during the humpback whale season (February 
through April), and would not have any single transmission longer than 
2 hours in duration. For example, an 8 percent duty cycle might include 
20-minute transmissions at 4-hour intervals every day, instead of every 
fourth day. Another example could involve transmitting the 20-minute 
signal on the hour for 24 hours followed by 72 hours with no 
transmissions, repeated up to 15 times over the 2-month 8-percent duty 
cycle period.
    Comment AC2: The MMC notes that the discussion does not, but 
should, explain that received sound levels at different distances from 
the source are mean or modal estimates and that certain environmental 
conditions could cause sound focusing, thereby resulting in received 
levels greater than estimated at various distances from the source.
    Response: NMFS agrees that SPLs at different distances may be 
affected slightly by water and bottom characteristics. This is 
especially likely for upslope propagation and is explained in some 
detail in ONR's final EIS. However, sound focusing is likely to occur 
only with surface ducting; with the NPAL source located at a depth of 
807 m (2,648 ft), surface ducting is very unlikely to occur.

MMPA Concerns

    Comment MMPA1: The MMC notes that, while any significant behavioral 
response by a marine mammal no doubt would constitute Level B 
harassment, it is not clear that other types of disturbance that cause 
disruption of behavioral patterns would not constitute harassment. As 
such, NMFS should more clearly explain how the distinction it seeks to 
draw between significant and other behavioral responses conforms to the 
statutory definition of Level B harassment. The MMC recommends also 
that NMFS more clearly describe what would constitute a significant 
behavioral response.
    Response: NMFS clarifies that, for small take authorizations (as 
opposed to intentional takings), NMFS considers a Level B harassment 
taking to have occurred if the marine mammal has a significant 
behavioral response in a biologically important behavior or activity. 
The term ``harassment'' is defined in the MMPA as ``any act of pursuit, 
torment, or annoyance which . . . (ii) has the potential to disturb a 
marine mammal or marine mammal stock in the wild by causing disruption 
of behavioral patterns, including, but not limited to, migration, 
breathing, nursing, breeding, feeding, or sheltering.''
    In this context, a behavioral pattern means a composite of 
biological traits characteristic of an individual or of a species. 
Therefore, to disrupt a behavioral pattern, the activity would need to 
disrupt an animal's normal pattern of biological traits or behavior, 
not just cause a momentary reaction on the part of a marine mammal. 
Therefore, if the only reaction to an activity on the part of the 
marine mammal is within the normal repertoire of actions that are 
required to carry out the behavioral pattern for that species of marine 
mammal, 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. For example, if there is a short-term change in 
breathing rates or a somewhat shortened or lengthened diving sequence 
that is within the animal's normal range of breathing patterns and 
diving cycles but there is not a disruption to the animal's overall 
behavioral pattern (i.e., the changes are not biologically 
significant), then these responses do not rise to a level requiring a 
small take authorization or, if under a small take authorization, does 
not constitute an incidental take.
    Examples of significantly disruptive or severe behavior would be 
where pinnipeds flee a haulout beach or rookery en mass due to a 
disturbance, or animals either leave an area of habitation for a period 
of time, or diverge significantly from their migratory path to avoid 
either an acoustic or a visual interference. For these two mentioned 
situations, non-significant behavioral responses would be when only a 
few pinnipeds leave the haulout or mill-about, but many pinnipeds alert 
to the disruption; or when marine mammals make minor course corrections 
that are not discernable either to observers or directional plotting, 
and which require statistical manipulation in order to determine that a 
course correction has taken place. For the action under consideration 
in this document, it is the behavioral response of the humpback and 
possibly sperm whale to the NPAL signal that is the biological response 
that is considered to be a taking by harassment.
    Comment MMPAC2: The HSUS believes that NMFS has used the NPAL 
proposed rulemaking to establish a standard for Level B (acoustic) 
harassment, which appears to extend well beyond this project. This new 
standard, which NMFS has referred to as ``biological significance,'' 
would count as ``takes'' only those activities with the potential to 
affect the reproduction and survival of a protected species. The HSUS 
believes that NMFS is making discriminations that are non-conservative 
judgements in violation of the MMPA. NMFS is obligated to use the 
definition found in the MMPA (for Level B harassment) in calculating 
species take and must include in its tally any animal whose behavioral 
patterns might potentially be disrupted. The Agency's failure to do so 
here, and its extension of this failure to a broadly applied rule, 
represents a rewriting of law and an offense to the conservative intent 
of the MMPA.
    Response: Reproduction and survival effects are used by NMFS to 
determine whether an activity is having a negligible impact on marine 
mammals, not whether an incidental take is occurring. Negligible impact 
determinations are based on the impact the activity might have on a 
species' or stocks' annual rates of recruitment (reproduction) or 
survival (50 CFR 216.103). Because negligible impact determinations are 
based, in part, on an activity's impact on a species' or stock's 
survival, this is far more significant to the conservation of marine 
mammal species and stocks than NMFS' consideration of what constitutes 
a significant behavioral response in a biologically important activity 
under Level B harassment. For Level B incidental harassment takings, 
NMFS will determine whether takings by harassment are occurring based 
on whether there is a significant behavioral change in a biologically 
important activity, such as feeding, breeding, migration or sheltering. 
All of these activities are potentially important for reproductive 
success of a marine mammal population.
    Comment MMPAC3: The MMC notes that, in a previous rulemaking for 
taking marine mammals incidental to conducting a shock trial, the MMC 
expressed a concern that NMFS' proposal to define Level B harassment 
from explosive detonation events exclusively in terms of temporary 
threshold shift (TTS) was tantamount to concluding that behavioral 
changes not related to TTS are biologically insignificant and do not 
constitute harassment as defined in the MMPA. Such a conclusion, the 
MMC contends, seems inconsistent with the statutory definition of the 
term harassment and needs to be reconsidered or further justified.
    Response: As stated in the final rulemaking for issuance of a small 
take authorization for the U.S. Navy

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incidental to conducting the shock trial (66 FR 22450, May 4, 2001), 
NMFS clarified that the criterion limiting Level B harassment to 
behavioral responses that are possible as a result of receiving an 
impairment to hearing (i.e., TTS) was limited to single-event 
explosions, not multiple explosive events spaced over a relatively 
short period of time in the same vicinity, nor to impulse or 
intermittent/continuous noise sources such as seismic, Navy sonars, and 
oceanographic instrumentation. 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. Because NPAL is considered an intermittent noise source, 
and has, therefore, the potential to result in non-TTS related 
behavioral responses, the comment is not relevant to the discussion in 
this rulemaking. Reviewers interested in NMFS' response to this concern 
of the MMC should review the previously mentioned rule, specifically 
NMFS' response to comment 3 in that document. For intermittent sounds, 
Level B harassment would include both TTS-related behaviors and 
behavioral responses resulting from noise levels lower than those that 
might potentially cause TTS. However, for the NPAL project, as 
mentioned elsewhere in this document, TTS is unlikely to occur.
    Comment MMPAC4: The MMC recommends NMFS more clearly describe what 
is meant by ``far exceed.''
    Response: The sentence referenced by the MMC states: ``Few data on 
the effects of non-explosive sounds on hearing thresholds of marine 
mammals have been obtained; however, in terrestrial mammals, and 
presumably in marine mammals, received sound levels must far exceed the 
animal's hearing threshold for there to be any TTS.'' The statement is 
meant to apply to marine mammals in general since the difference 
between hearing threshold (level where one could hear the quietest 
sounds) and a level that might cause onset-TTS is expected to vary 
among marine mammal species and even among individual animals. However, 
the term ``far exceed'' is based on Richardson et al.'s's (1991, 1995) 
conclusion, that, based upon studies on humans, SPLs of 80 to 100 dB 
and 130 dB over threshold are necessary in order to cause annoyance and 
for injury, respectively, in odontocetes (see response to comment 
MMPAC5 for more information).
    Comment MMPAC5: The WDCS quotes 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.'' The WDCS believes that temporary lack of 
predator avoidance skills may clearly lead to the death of an 
individual cetacean. This leads WDCS to conclude that TTS should be 
classified as a Level A harassment.
    Response: For reasons provided in response to comment 26 in the 
Federal Register document for issuance of a small take authorization 
for shock testing the USS WINSTON S. CHURCHILL (66 FR 22450, May 4, 
2001), NMFS does not believe the evidence warrants TTS being considered 
as Level A harassment (i.e., injury) due to the referenced secondary 
effects. Please refer to that document for additional information.
    Comment MMPAC6: The HSUS quotes NMFS stating: ``scientists have 
noted that a range of only 15-20 dB may exist between the onset of TTS 
and the onset of PTS . . . .'' With such a narrow safety margin, the 
HSUS considers it non-precautionary to consider TTS to be the upper 
portion of the Level B harassment zone, as does NMFS. With so little 
known about TTS, in mysticetes in particular, it seems more prudent and 
precautionary to consider TTS as the lower portion of the Level A 
harassment zone.
    Response: The statement in the proposed rule that is quoted in the 
comment was incomplete. The 15-20 dB difference refers to the 
difference between the sound exposure levels (SELs) that cause the 
slightest TTS and the onset of PTS. As explained in more detail in 
response to comment PRC6 and in the response to comment 29 in the final 
rulemaking document for the shock trial of the USS WINSTON S. CHURCHILL 
(66 FR 22450, May 4, 2001), experiments on chinchillas have shown that 
this species experiences full recovery from up to 40 dB of TTS (Ahroon 
et al.,, 1996) from impulsive noise. However, 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 
should not be interpreted to mean that the onset of PTS results when 
you add 20 dB to the dB level found to cause the onset TTS in an 
animal, but instead means that the onset of PTS is the SEL (in dB) that 
would cause 20 dB of TTS. This 20 dB level would be considered 
conservative for chinchillas, and would likely be conservative for 
marine mammals.
    Because of this conservative approach, and because of the 
relatively low intensity of the NPAL source, and the depth of water in 
which the source is anchored (further attenuating the SPL), NMFS does 
not need to apply additional precautions, such as considering all, or a 
portion of, TTS to be Level A harassment.
    Comment MMPAC7: The MMC notes that the reference in the proposed 
rule to ``lower Level A'' and ``upper Level B'' harassment are 
subdivisions not reflected in either the statutory definition of 
harassment or the NMFS' implementing regulations.
    Response: The designations proposed by NMFS for ``lower Level A'' 
and ``upper Level B'' harassment have been replaced in this document by 
adoption of a standard that onset PTS, which is Level A harassment 
(injury), for marine mammals is 20 dB of TTS.
    Comment MMPAC8: The MMC notes that the discussion on intentional 
taking of marine mammals by whale watching and recreational boating 
activities should be revised to note that both intentional and 
incidental taking for such purposes is prohibited, absent some 
authorization under the MMPA. Currently there is no such authorization.
    Response: NMFS clarifies here that the whale watching industry is 
not authorized to ``take'' marine mammals, either intentionally or 
incidentally, therefore, harassment takings are illegal.

Proposed Rule Concerns

    Comment PRC1: The MMC believes that the proposed rule relies to a 
significant extent on ONR's draft EIS for its interpretation and 
justification, and requests that previous comments by the MMC regarding 
the draft EIS be considered, incorporated by reference, and addressed 
in the NMFS final rule, as well as in ONR's final EIS.
    Response: As stated in previous documents, NMFS incorporates into 
its decision-making process all comments submitted on the NEPA document 
that accompanies a NMFS proposed action and the responses made on any 
recommendations and concerns. NMFS also incorporates additional 
information and documentation by reference. Under this action, this 
includes the comments submitted by the MMC and other organizations and 
individuals on ONR's draft EIS, and the responses made by ONR to these 
recommendations and concerns as provided in ONR's recently-released 
final EIS. Because NMFS is adopting ONR's final EIS as its own on this 
matter, these responses can be considered to also reflect NMFS' 
responses. Where necessary, this document provides additional

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clarification on certain issues raised by the MMC in its July 24, 2000, 
letter to Scripps. However, NMFS' procedures for addressing third party 
concerns in a NMFS final rule were provided previously (see 66 FR 
22450, May 4, 2001). Please refer to that document for further 
information, especially response to comment 11 regarding the USS 
WINSTON S. CHURCHILL shock trial's small take authorization.
    Comment PRC2: The MMC believes that NMFS should have addressed the 
private citizen's concern about the validity of assumptions inherent in 
the risk analysis and the Acoustic Integration Model (AIM). As noted by 
the MMC in comments on the ONR draft EIS, both the risk analysis and 
the AIM appear to be based on two assumptions, at least one of which 
likely is not valid. The first is that a received sound level below 120 
dB will not disturb a biologically important behavior of any of the 
listed species. The second is that the listed species are distributed 
uniformly or randomly throughout their ranges in the North Pacific. 
Thus, researchers familiar with the seasonal distribution, abundance, 
and movement patterns of the various species in the Hawaiian Islands 
area should be consulted to obtain a more realistic estimate of the 
numbers of the various species that could be exposed to received NPAL 
sound levels between 120 and 180 dB.
    Response: The only marine mammal species expected to be affected by 
the NPAL acoustic source are humpback whales, sperm whales and possibly 
Hawaiian monk seals. For a response regarding the assumption regarding 
marine mammal effects from SPLs of 120 dB or less, please refer to the 
response to comment MMIC6 later in this document.
    In its final EIS, ONR responded to the MMC concern about random 
distribution by noting that the ``incidental take'' analysis did not 
include an assumption that animals are distributed uniformly or 
randomly throughout their range in the North Pacific, but that the best 
scientific data for each species was used to model their individual 
dive profiles and distributions in the modeled areas. This precludes 
homogeneously distributed animal densities in the three dimensions 
profiled. Therefore, animal distribution on the large scale reflects 
known concentrations of animals, and distribution on the small scale 
represents the patchiness that is observed in the field. In reviewing 
the available data and information, NMFS believes that the population 
assessments of marine mammals, that were provided by ONR and Scripps, 
are the most realistic estimates available, as they are based on recent 
aerial surveys conducted by Hawaii-based marine mammal researchers, 
conducted over several years (see Mobley et al.,, 1999, 2000), and 
other sources of information. In addition, Dr. Mobley was a technical 
editor in the preparation of the ONR's draft and final EISs.
    Comment PRC3: The HSUS objects to the use of proposed rulemaking 
for specific projects as the regulatory avenue by which broadly applied 
acoustic harassment standards are being promulgated. Such proposed 
standards should be the subject of their own, separate rulemaking. 
Parties who might otherwise wish to comment on broadly applied 
standards may miss the import of a specific project's proposed rule.
    Response: First, NMFS clarifies that no new acoustic criteria are 
being proposed here, only new methodology is being utilized to 
determine and refine estimates of levels of impact and takings. This 
methodology has been subject to review and comment previously under 
NEPA for the SURTASS LFA sonar (Navy, 1999) and NPAL (ONR, 2000). 
Second, the new methodology (i.e., incorporation of the AIM) is only 
one means NMFS is using to determine impacts on marine mammals. NMFS 
will also continue to assess impacts by a review of relevant research 
conducted on marine mammals. Finally, NMFS does not agree that separate 
rulemaking is needed before it can adopt criteria for acoustic 
harassment. This is explained in detail in response to comment 15 in 
the final rulemaking document for the shock trial of the USS WINSTON S. 
CHURCHILL (66 FR 22450, May 4, 2001). Please refer to that document for 
additional information on this issue.
    Comment PRC4: The HSUS notes that NMFS appears to accept that the 
LOA application's use of the term ``prolonged'' is a clarifying element 
of its definition of harassment that is in compliance with, rather than 
a novel concept not found in the MMPA. The HSUS disagrees with this 
apparent acceptance and asks NMFS to clarify whether the concept of 
``prolonged'' disturbance is in compliance with, or exceeds, the 
criteria of the MMPA.
    Response: In response to comment 22 in the NPAL proposed rule (65 
FR 80815, December 22, 2000), NMFS explained that the term 
``prolonged,'' as used in ONR's draft EIS and Scripps' small take 
application, implies an increase in time or duration beyond normal 
limits. This, NMFS stated in the response, exceeds the criterion used 
by NMFS that harassment must refer to a reaction that is behaviorally 
significant on the part of the animal in the course of that animal's 
conducting a biologically important activity, such as breeding, 
feeding, or migrating. Therefore, the term ``prolonged'' is not used in 
this document, nor in ONR's final EIS. In this context, it is the 
impact of the activity on the animal, not the duration of the 
disturbance, that is critical. NMFS explained the use of the term 
``behaviorally significant'' previously in response to comment MMPAC1.
    Comment PRC5: The MMC notes that the NRC Report (NRC, 2000) states: 
``as a preliminary criterion, it seems reasonable to presume that any 
sound that produces a TTS of 10 dB or less in exposure episodes that 
are separated by nonexposure intervals that are ample to allow full 
recovery (at least 24 hours) does not constitute a major risk to the 
auditory system of a marine mammal.'' Therefore, the MMC questions the 
appropriateness of NMFS characterizing the NRC report as fully 
supporting that TTS does not constitute an injury.
    Response: The sentence used by NMFS is found on page 67 of the NRC 
(2000) report. That sentence reads: ``Animals that experience only low 
levels of TTS are not going to be injured, suggesting TTS as a 
conservative standard for prevention of injury.'' This sentence 
supports NMFS' statement in the proposed rule that TTS is not an 
injury. The statement quoted in this comment by the MMC is found on 
page 68. However, prior to the MMC quoted sentence, the NRC (2000) 
states: ``For certain animal models it appears that TTS of 10 dB or 
less within 15 minutes after exposure is fully reversible and without 
obvious cochlear damage (Liberman and Dodds, 1987; Ahroon et al., 1996) 
as long as the exposures are not continued for long periods of time. In 
both studies, cochlear damage was evident only after TTS exceeded 40 to 
60 dB within 15 minutes after exposure.'' NMFS believes that the NRC 
used this quoted statement to support the statements quoted by both the 
MMC and NMFS.
    NMFS believes however, that the NRC is overly cautious in its 
choice of 10 dB of TTS as being a safe level. NMFS' review of Liberman 
and Dodds (1987) and Ahroon et al. (1996) does not support a level as 
low as 10 dB of TTS for being an upper level for prevention of PTS as 
suggested by the NRC (2000). Contrary, Ahroon et al. (1996) and 
Liberman and Dodds (1987) indicate 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

[[Page 43447]]

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. 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, 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.
    Comment PRC6: The HSUS continues to oppose the establishment of a 
received level of 180 dB (re 1 uPa (rms)) as the criterion (for low 
frequency, intermittent, or any other kind of sound) for onset TTS for 
all marine mammals.
    Response: NMFS agrees, noting that Ridgway et al. (1997) and 
Schlundt et al. (2000) found TTS significantly higher than 180 dB (re 1 
uPa rms) in two odontocete species at intense one-sec. tones of 0.4, 3, 
10, 20, and 75 kHz, while Kastak et al. (1999) documented TTS, for 
octave band noise with frequencies from 100 to 2,000 Hz, 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. (However, 
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. NMFS clarifies that because TTS may result from a 
prolonged exposure to a faint sound, a brief exposure to a loud sound, 
or an intermediate exposure to a sound of intermediate loudness, sound 
duration and intensity can be considered to trade off with each other 
in causing TTS, as is indicated by comparing the work of Kastak et al. 
(1999) with the work of Schlundt et al. (2000). 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. For the NPAL action, ONR/Scripps prudently presume that 95 
percent of the marine mammals exposed to a ``single-ping equivalent'' 
(SPE) of 180 dB (re 1 uPa (rms)) could incur ``harm'' or TTS. NMFS 
believes that this is cautious as TTS is unlikely at an SPL of 180 dB 
since several species of cetaceans have the ability to vocalize at 180 
dB and greater (see Richardson et al., 1995, Table 7.1).
    To account for the longer duration NPAL signal however, ONR and 
Scripps use the 180-dB SPE as the level for the onset of ``harm'' or 
TTS. An SPE is defined as 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. In other words, an animal exposed to a single 1-minute 
ping at 180 dB could incur TTS, an animal exposed to 10 1-minute pings 
at 170 dB could incur TTS, and an animal exposed to 20 1-minute pings 
(the length of the standard NPAL signal) at 167 dB could incur TTS. 
This, NMFS believes, is precautionary and, notes that for the first 
time, a small take applicant has taken into account the duration of the 
signal when calculating impacts on marine mammals.
    Comment PRC7: The HSUS notes an inconsistency between the response 
to comment 5 and the response to comment 12 in the preamble to the 
proposed rule. In response 12, NMFS states ``[T]here is no obvious 
connection between an annoying or harmful sound level for humans in air 
and an annoying or harmful sound level for a marine mammal in water.'' 
Either the human model is an appropriate one for marine mammals or it 
is not, NMFS cannot pick and choose which aspects of human hearing to 
consider as appropriate parallels with marine mammal hearing.
    Response: In the response to comment 12 which made allegations of 
neurological damage in humans at 140 dB (re 20 1 uPa), NMFS was quoting 
from the reference provided in the Federal Register document (Chapman 
and Ellis, 1998). The conclusion of the Chapman and Ellis (1998) 
article is that it would be unwise to assume that the auditory 
experience of any animal would be the same as that of humans exposed to 
the same sound level. In response to comment 5, NMFS noted that ``while 
recognizing that no empirical data have been collected to establish 
this relationship, and there is no guarantee that marine mammal 
behavioral responses exhibit patterns similar to human hearing 
(emphasis added), the human model is the best objective foundation for 
an assessment and is consistent with Crocker (1997).'' Reading both 
statements carefully indicates that they are not in disagreement. As 
scientific research on the effects of noise on marine mammals becomes 
available, the data from this research will be used by NMFS instead of 
using comparisons with human hearing.
    Comment PRC8: The MMC believes the rule should be revised in 
paragraph 216.177(a) to clarify whether an LOA will be issued annually 
or once, to cover a five-year period.
    Response: NMFS has clarified that the LOA will be issued annually.

Marine Mammal Impact Concerns

    Comment MMIC1: The HSUS continues to be disturbed by NMFS' 
apparently broad application of low frequency acoustic harassment 
standards-for impulsive, intermittent, and continuous sounds, both 
narrow and broad-band in character, for all marine mammals and sea 
turtles-on the very limited results from a U.S. Navy project using 
single, pure tones at various frequencies on a small sample of only two 
species of odontocete cetaceans (Ridgway et al., 1997; Schlundt et al., 
2000). The HSUS repeats its objections, expressed in comments on the 
shock trial of the USS WINSTON S. CHURCHILL of applying the limited 
results from Schlundt et al. (2000) to all marine mammals.
    Response: While the small take authorization for the taking of 
marine mammals incidental to the use of the NPAL source by Scripps and 
ONR reference both Ridgway et al. (1997) and Schlundt et al. (2000) in 
its analysis for TTS impacts, it has not adopted the SPLs found by 
those authors for marine mammals incurring TTS. If it had, ONR/Scripps 
would have established the 95 percent risk value in the AIM at about 
192 dB instead of the more precautionary 180 dB (see ONR, 2001 for an 
explanation of terminology). The previously referenced papers found 
that a masked TTS of 6 dB or larger, in bottlenose dolphins and beluga 
whales, occurred at between 192 and 201 dB (re 1 uPa (rms)) for intense 
one-sec. tones of 0.4, 3, 10, 20, and 75 kHz. However, the present 
action implements a TTS/harm zone at 180 dB, not 192 dB. An additional 
precaution provided by ONR/Scripps is through consideration of the 180-
dB SPE, defined previously, to be ``harm'' or TTS. The 180-dB SPE is 
designed to take into account the longer duration of the NPAL signal 
(i.e., 20 min).
    However, because the Ridgway et al. (1997) and Schlundt et al. 
(2000) research were conducted in the region

[[Page 43448]]

of greatest hearing sensitivity for bottlenose dolphins, it is believed 
that the levels identified for behavioral change and TTS at 3 kHz would 
be conservative for small odontocetes below 3 kHz (Ridgway S. pers. 
comm. as cited in ONR, 2001). Large odontocetes are considered as 
sensitive as mysticetes while pinnipeds are believed to be less 
sensitive than small odontocetes to underwater sound (ONR, 2001). 
Therefore, NMFS considers it very conservative to establish the 
threshold that 95 percent of the small odontocetes and pinnipeds, 
exposed to a single ping of LF sound at 180 dB could incur TTS.
    There are no studies of TTS and PTS in mysticetes. However, studies 
of human hearing indicate that the normal process of hearing loss with 
age (presbycusis) can be accelerated by chronic exposure to sounds 80 
dB above the absolute threshold of hearing (Richardson et al., 1995). 
Here chronic is interpreted as about 8 hours/day for about 10 years. 
For odontocetes, Au et al. (1997) present data indicating that hearing 
thresholds are about 140 dB at 75 Hz. Hearing thresholds are not known 
in mysticetes, but the lowest value is speculated to be 80 dB (Ketten, 
1998). This suggests therefore that 10 years of exposure to 160 dB RL 
for 8 hours per day would cause auditory damage. Therefore, estimating 
that 95 percent of mysticete and large odontocete whales will 
experience TTS after exposure to a 1-minute ping at 180 dB is also 
considered by NMFS to be conservative.
    Comment MMIC2: The WDCS does not consider the level(s) for TTS 
found by Ridgway et al. (1997) to be conservative for the prediction 
for onset TTS in odontocetes or mysticetes in the wild. A report by 
Croll et al. (1999) states that baleen whales could suffer temporary 
auditory damage at noise levels as low as 120 dB and that physiological 
effects could occur well before 180 dB.
    Response: Please refer to the previous response. Although NMFS was 
unable to verify the statements directly to the Croll reference, the dB 
levels, quoted in the comment, apparently derive from Richardson et al. 
(1995) for effects on marine mammals extrapolated from human damage 
risk criteria (DRC) and from work done by Malme et al. (1983, 1984, 
1988). For reasons explained previously 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. NMFS believes that ONR/Scripps have addressed the 
duration issue by establishing the 180 dB SPE criterion.
    Comment MMIC3: The WDCS believes that repeated exposure could lead 
to at least gradual hearing loss and PTS. Ketten (1998) stated: ``It 
has been established that repeated exposures to TTS-level stimuli 
without adequate recovery periods can induce permanent, acute threshold 
shifts.'' Also, the MMC notes that as it is known that repeated 
exposure of terrestrial mammals to sounds capable of causing TTS 
increases the likelihood of PTS, there is the possibility that repeated 
exposure to sounds capable of causing TTS increases the likelihood that 
marine mammals would be injured.
    Response: 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 to date indicates that PTS can 
occur with repeated exposures of TTS without allowing animals to 
completely recover, as stated by Ketten (1998). However, noting the 
behavior of marine mammals in the NPAL area, especially the migratory 
behavior of humpback whales and that the NPAL source is in a water 
depth that would prevent marine mammals from incurring a TTS 
impairment, a PTS injury is unlikely to occur. NMFS believes the SPLs 
in those areas of the water column that marine mammals inhabit are 
simply too low to cause TTS, let alone PTS.
    In response to comment PRC6, NMFS concurred with ONR that a marine 
mammal exposed to 20 1-minute pings (the length of the standard NPAL 
signal) at 167 dB could incur TTS, or Level B harassment. The 167-dB 
isopleth is only 25 m (82 ft) around the NPAL source at its 807 m 
(2,648 ft) depth, meaning that a marine mammal would need to dive to a 
minimum depth of 782 m (2,565 ft) and remain within that small area for 
the entire 20-min transmission in order to theoretically incur a TTS 
impairment. Theoretically then, the marine mammal would need to do this 
dive repeatedly, time after time, year after year, to incur a PTS 
injury from the NPAL source. Therefore, NMFS believes that, considering 
the migratory behavior and transitory nature of those marine mammal 
species likely to be impacted, and other reasons including dive 
profiles, it would be very unlikely a marine mammal would incur a TTS 
impairment and virtually impossible for a marine mammal to incur a PTS 
injury from the NPAL source.
    Comment MMIC4: The MMC agrees with NMFS that defining TTS as Level 
B harassment is reasonable only if the TTS does not make the affected 
animals vulnerable to predation or otherwise affect their survival or 
productivity. In this regard, the MMC notes that it is not 
inconceivable that temporary hearing impairment over a period of one to 
a few days could increase the potential for injury or death of an 
affected animal, e.g., by increasing vulnerability to natural predation 
or ship strike. If such were the case, TTS would have the potential for 
injury and would constitute Level A harassment.
    Response: First, in order for a marine mammal to incur TTS from the 
NPAL source, it would need to dive to water depths deeper than 
scientific knowledge indicates that humpback whales are capable of 
diving. Sperm whales and beaked whales, while capable of diving to 
those depths, are not expected to occur in the immediate vicinity of 
the source in any numbers, nor likely coincide a dive to those depths 
during the brief 2 percent (or 8 percent for non-migratory marine 
mammals) duty cycle of the NPAL source. For those marine mammal species 
capable of hearing the NPAL sound, TTS is unlikely considering the 
depth of the 167-dB isopleth (based on a SPE of 180 dB for the full 20 
minutes) and the short duty cycle. For those marine mammal species 
unable to hear the NPAL source (75 Hz) well, TTS is simply not 
possible. For a response on considering all, or a portion of Level B 
harassment takings as Level A takings, please refer to the response to 
comment MMPAC1.
    Second, NMFS does not agree that affecting a marine mammal's 
survival or future productivity would require a taking to rise to Level 
A harassment (injury), unless the activity directly affected in some 
injurious way, either the mammal's ability to reproduce, or it's 
newborn or unborn offspring. To the extent possible, what NMFS is 
evaluating under Level B harassment is the lost opportunity to mate, 
primarily as demonstrated by using the AIM.
    Comment MMIC5: The HSUS continues to oppose NMFS rejection of the 
use of the preliminary results of the investigation into the March 2000 
stranding of various cetacean species in the Bahamas, as cited in the 
MMPA Bulletin, yet NMFS applies its management decisions on the results 
from Schlundt et al. (2000) and the Low Frequency Active Scientific 
Research Program (LFA SRP) associated with the Navy's NEPA process for 
SURTASS LFA sonar.
    Response: NMFS does not reject the preliminary findings of its 
joint investigation with the Navy on the Bahamian multi-species 
stranding, only the relevancy of the preliminary findings in the 
context of this

[[Page 43449]]

rulemaking. Issue 19/20 of the MMPA Bulletin noted that ``the injuries 
to the five beaked whales were all consistent with an intense acoustic 
or pressure event. All five beaked whales showed some evidence of 
trauma to tissue associated with hearing, sound production, and/or 
airways. In particular, all had some hemorrhages in or around the ears. 
Other tissues related to sound conduction, or production such as the 
larynx and auditory fats, had minor to severe hemorrhages. The injuries 
revealed in the necropsies were not consistent with a nearby explosion 
(there were no bone fractures), but could have been caused by a distant 
explosion, or an intense acoustic event. Postcranial tissues showed 
minor lesions in heart muscle and minor hemorrhage in lung and kidney 
tissue that are less indicative of cause than the skull damage. In 
humans, injuries such as these would have caused extreme discomfort, 
but do not generally cause permanent hearing loss or death. 
Essentially, these animals died from actually stranding on the beach.'' 
This means that loud, intense sounds can cause injuries to marine 
mammals that are in the vicinity of loud, high intensity sound sources. 
A sound source such as NPAL's source is simply not of sufficient 
intensity to cause the impacts described in this response. That is the 
reason NMFS does not consider the Bahamian stranding incident relevant 
to a discussion of potential impacts by the NPAL source. Because the 
NPAL source is moored in 807 m (2,648 ft) water depth, and because this 
depth is approximately 550 m (1,804 ft) deeper than the deepest 
recorded humpback whale dive depth (the only deep-diving marine mammal 
species expected to be commonly found in the offshore NPAL waters), 
NMFS restricts its discussion of impacts to behavioral responses (Level 
B harassment), and not injury (Level A harassment) or mortality to 
marine mammals from the NPAL source. As a result, NMFS has incorporated 
into its determination the scientific findings of the California and 
Hawaii ATOC Marine Mammal Research Program (MMRP), and secondarily the 
scientific findings of the LFA SRP. Utilization of the findings of 
Schlundt et al. (2000) have been discussed previously in this document.
    Comment MMIC6: The MMC requests NMFS provide the basis for the 
statement that a received level of 120 dB is presumed to have a zero 
potential for disturbing biologically important behavior of humpback 
whales. Apparently, both bowhead and beluga whales have shown strong 
avoidance reactions at or below a received level of 120 dB, and some of 
the clearest individual cessations of humpback whale song to the Navy's 
LFA source have occurred at received levels of only 122 dB.
    Response: As stated in ONR's final EIS, and adopted by reference by 
NMFS, science cannot establish zero risk. Therefore, the AIM cannot 
establish zero risk. However, given the shape of the risk function, 120 
dB can be established as the point at which risk is so low, that it is 
pointless to calculate the risk below it. Changing this basement value 
for risk by as much as +10 dB (110-130 dB) would not affect the number 
of potential takings and would not alter the cumulative risk values. 
For humpback whales, the marine mammal most likely to be impacted by 
the NPAL source, some singers stopped singing and showed avoidance 
reactions at levels near 120 dB (re 1 uPa (rms)), while other singers 
continued singing when exposed to playbacks at levels as high as 150 dB 
(re 1 uPa (rms)). This, according to Clark et al. (1999), may be due to 
individual differences between singers. Observers had the distinct 
impression, often even before a LFA playback began, that certain 
singers had very stable behavioral patterns and were imperturbable 
whereas other singers were much more variable and responsive even to 
the vessel approach. This may represent two different types of singers, 
dominant and experienced singers, and younger, less experienced, 
singers. If these younger, less experienced singers are nondominant 
males, unlikely to successfully mate, this behavior would not be 
unexpected if the SURTASS LFA sonar transmitting waveforms similar to 
humpback whale songs at the same time.
    While bowheads and belugas have been shown to have a behavioral 
reaction to received SPLs at or below 120 dB, NMFS would not 
characterize the avoidance reactions as being strong. For bowhead 
whales at least, it has been necessary to apply strong statistical 
analyses in order to determine that bowheads in the Beaufort Sea north 
of Alaska reacted to seismic pulses at distances where received levels 
were on the order of 120 dB. Richardson et al. (1995), summarizing the 
information available at that time, noted that initial behavioral 
changes were detected when received noise levels were 142-157 dB (re 1 
uPa (rms)); active avoidance became evident at SPLs of 152-178 dB. More 
recently, bowheads have been detected, through statistical analyses, 
making minor course corrections at lower SPL levels, however, these 
course corrections were not detectable visually from aircraft. NMFS has 
clarified several times that behavioral reactions appear to be context 
related, such as gray whales reacting to industrial noise when the 
source is located in its migration path, but showing greatly reduced 
responses when the acoustic source was located offshore of the 
migration path (Clark et al., 1999). In the case cited by the MMC, 
bowheads and belugas inhabit waters frequented by ice and may require a 
low ambient noise level in order to navigate successfully through the 
ice, to locate leads and polynyas, and avoid ice keels. This type of 
environment is not found in Hawaii.
    Comment MMIC7: The MMC recommends that the rationale should be 
provided for Scripps' determination that ``only humpback whales that 
remain in the vicinity of the source for a full day of transmissions 
may potentially experience any effect from the source transmissions.''
    Response: The rationale relates to how the modeling was carried 
out. ONR/Scripps conducted the AIM under two conditions - one in which 
the animals were only exposed to one 20-min transmission, and another 
in which the animals were exposed to six 20-min transmissions (that is, 
a full day of transmissions). In both cases, ONR/Scripps modeled a 
milling movement pattern that kept the animals in the general vicinity 
of the sound source, rather than the movement pattern that was observed 
from the shore stations where the animals moved parallel to the coast 
(and thus would not remain in the general vicinity of the sound source 
for very long). Only for humpback whales under the second scenario 
(milling in the vicinity of the sound source for a full day of 
transmissions) was there a chance for humpback whales to experience a 
biologically important reaction to the sound source (see Table 4.2-5 in 
the ONR final EIS). The details of the modeling are described on p. 4-
17 of the ONR final EIS.
    Comment MMIC8: The WDCS noted that while the studies noted in the 
NMFS' ANPR reported no significant changes in the abundance of humpback 
and sperm whales, Calambokidis et al. (1998) found that humpbacks and 
sperm whales were generally seen farther from the sound source during 
experimental versus control surveys.
    Response: While NMFS concurs with the WDCS' synopsis of the work by 
Calambokidis et al. (1998) during ATOC studies off Pioneer Seamount, 
NMFS does not equate a shift in local distribution of humpback whales 
with a change in abundance near the NPAL source. NMFS hopes that the 
findings

[[Page 43450]]

by these scientists will soon be published and become available. NMFS 
understands that humpback and sperm whales were displaced approximately 
0.6 km (0.3 nm, 1,823 ft) between times when the source was on and when 
it was off. However, NMFS notes that this displacement was noted by 
later statistical analysis and was not apparent to the observers. The 
findings of Calambokidis et al. (1998) are consistent with the findings 
of Frankel and Clark (1998, 2000). Frankel and Clark (2000) found that 
humpback whales within 12 km (6.5 nm) of the source showed only subtle, 
short-term effects on their surface behaviors. The whales did not show 
any immediately obvious response to the ATOC signal at received levels 
less than 130 dB and they did not abandon their coastal habitat 
adjacent to the offshore ATOC source. Frankel and Clark (2000) 
concluded that the present operation of the ATOC source off Kauai is 
not sufficient to cause biologically significant changes in behavior 
for the humpback whale population wintering off Hawaii, but that this 
conclusion cannot be generalized to the effects of cumulative impacts 
from other anthropogenic sources of noise in the marine environment. 
Essentially this is the reason for ONR/Scripps requesting a five-year 
small take authorization and having a monitoring program to better 
assess potential long-term cumulative impacts.
    Comment MMIC9: The MMC notes that the list of deep-diving species 
of marine mammals commonly found off Kauai in response to comment 12 of 
the proposed rule document should be revised to include sperm whales, 
another deep-diving marine mammal commonly found in the referenced 
offshore waters.
    Response: While sperm whales are found in the offshore waters of 
Kauai and are included in the list of species expected to be taken by 
harassment, information available to NMFS does not indicate that this 
species is commonly found in the area of NPAL operations. This is 
explained in the proposed rule and in ONR's draft EIS, and clarified in 
the response to the following comment.
    Comment MMIC10: The MMC notes that the statement that no 
statistically significant shifts in distribution were found for species 
other than humpback whales (and possibly sperm whales) does not 
diminish the fact that shifts in distribution were observed, especially 
since these two species have the ability to detect, and are more likely 
to occur at depths where they would be exposed to, the sound source. 
NMFS should more clearly explain the basis for the belief that sperm 
whale distributions may have been affected and should also include 
information on such confounding factors as small sample sizes etc.
    Response: Shifts in sperm whale distribution were not observed at 
the Kauai site due to small sample sizes. However, shifts in 
distribution were observed at the ATOC site at Pioneer Seamount, off 
California, and, therefore, can be presumed to occur at Kauai. NMFS 
notes that few sperm whales (about 100) were detected during the 
Hawaii-wide aerial surveys from 1993 to 1998 that detected 2,773 
humpback whales. Although some sperm whales may have been missed 
because they were diving at the time of the survey, these numbers 
provide support that sperm whales are more than an order of magnitude 
less abundant than humpback whales off Hawaii. Also, while the 
avoidance was statistically significant in California, the actual 
distance of displacement was small. Therefore, NMFS agrees that sperm 
whales could be affected if they were in the vicinity of the source 
during the 2 percent time that the source is on. However, there is no 
evidence on record to indicate that sperm whales are seasonal residents 
offshore of Kauai, and thus no individual animal is expected to receive 
more than a single transmission. Based on this information, NMFS 
believes that no more than a few sperm whales may pass through the NPAL 
source's zone of influence during the year when the source is on, and 
may have a minor avoidance reaction to the NPAL source.
    Comment MMIC11: The WDCS asks whether the statement that ``no 
significant shifts in distribution were found for any other species of 
marine mammal'' is valid because these other species were not the focus 
species of the survey or because the sample size was not large enough?
    Response: As stated in ONR's draft EIS, only humpback whales were 
seen in sufficient numbers (i.e., large enough sample size) around the 
Kauai site to permit quantitative assessments of distributional changes 
from 1994 (source off) to 1998 (source on).
    Comment MMIC12: The MMC believes the statement that humpback whales 
in Hawaii show an ``almost statistically significant increase in 
population size, is not convincing support for maintaining 
that the observed shift should not be considered important. The MMC 
believes that given the ambiguities associated with the data, it is 
particularly important that the monitoring program be designed to 
detect possible longer term biologically significant changes that may 
be produced by the sound source.
    Response: The monitoring program has been designed to detect long-
term changes in the distribution and abundance of humpback whales and 
is discussed later in this document.
    Comment MMIC13: Although the WDCS possibly agrees with NMFS that 
the best scientific information to date is provided by the ATOC MMRP 
and the SURTASS LFA SRP, these are still not complete studies. WDCS 
understands that the final analysis is not available from the LFA SRP.
    Response: The final analyses for the SURTASS LFA sonar SRP are 
found in the Technical Report # 1 (Clark et al., 1999). Some of this 
research remains under peer review prior to publication in scientific 
journals. Other research has already been published (Miller et al., 
2000). Scientific research under the ATOC MMRP includes Frankel and 
Clark (1998, 2000).
    Comment MMIC14: The WDCS, noting that both sperm and beaked whales 
are known to be deep divers and that sperm whales were shown to be 
affected by previous ATOC experiments, asks again whether research has 
been conducted on the depths that these animals reach around the 
proposed NPAL area.
    Response: Research on the diving depths of sperm whales and beaked 
whales in the waters offshore of Kauai is not practical due to the low 
abundance of these species in these waters. Research on depth of dive 
for these species in other areas indicates that they are capable of 
diving to the depth of the NPAL source. This was described in ONR's 
draft and final EISs.
    Comment MMIC15: One citizen noted that he does not know what 
acoustic devices the Allied forces may have employed around the time of 
the strandings, but we do know that LFAS was scheduled to operate in 
the region a short time earlier. One large balaenopterid live-stranded 
following that scheduled deployment, and it should be further 
investigated for evidence of trauma.
    Response: NMFS presumes the commenter is referring to the multi-
species stranding event in the Bahamas on March 16, 2000. The single 
minke whale that stranded during this event was released off the beach 
alive. Therefore, a necropsy was not conducted on that animal. Also, 
NMFS is unaware of what ``LFAS'' operation the commenter is referring; 
however, NMFS understands that no LFA sonar operations were conducted 
during the referenced time period.

[[Page 43451]]

    Comment MMIC16: One citizen pointed out that the evidence of 
hemorrhage in acoustic fats and tissues adjacent to the ears, and in 
the brain (Rowles et al., 2000) are not strictly speaking, auditory 
traumas. They are barotraumas, for which determination of TTS or PTS 
levels, and the assumed ``safe'' level of 180 dB RL are irrelevant. The 
commenter states he has investigated the information available on the 
Bahamas and 1996 Greek strandings (D'Amico (ed), 1998). He has 
calculated that damage to the tissues probably occurred in the range of 
143-157 dB RL of the offending acoustic energy. This damage could be 
exacerbated by resonance phenomena, such as that reported in the Navy's 
1999 Technical Report 3, in concert with the enormous pressure 
at the normal diving depths for beaked whales (500-1500 m (1,640-4,921 
ft)).
    Response: As NMFS has not been provided with any scientific 
information by the commenter to support his calculations that tissue 
damage could occur in the range of 143-157 dB RL, NMFS cannot respond 
further on this statement. NMFS notes however, that in order to incur 
an SPL of 143 dB, an animal would need to dive to a depth of at least 
400 m (1,312 ft) during the 2 percent time that the NPAL source is 
active, and not react to the source transmissions during ramp-up.
    Comment MMIC17: If resonance phenomena are implicated in tissue 
damage observed in the beaked whales, it should be noted that the 
resonant frequency of airspace in Ziphius cavirostris is reported to be 
75 Hz at 100 m (328 ft) depth (derived from D'Amico, 1998), which 
happens to be the center ATOC frequency. Theoretically, beaked whales 
could be damaged somewhere between 100 m (328 ft) and many kilometers 
from the source depending upon the signal and the propagation 
characteristics.
    Response: NMFS is charged by the MMPA to make negligible impact 
determination based upon the best scientific information available. As 
the commenter has not provided any scientific information to support 
his hypothesis, NMFS cannot respond further on this statement. However, 
NMFS would appreciate this information at the commenter's earliest 
opportunity.
    Comment MMIC18: The HSUS urges NMFS to consider the potential 
impact of loud, low frequency sound on other physiological processes 
and body organs of marine mammals. There is a growing body of 
literature that suggests such impacts can have long-term debilitating 
effects, at least in terrestrial species.
    Response: To NMFS' knowledge, other than pacinian corpuscles, which 
are believed to be sensitive to vibration, the only other physiological 
impacts to marine mammals would be due to high intensity sources that 
might impact marine mammal lungs or the fat pad sound channel (which 
conducts sounds to the middle ear) in the lower jaw of certain 
odontocetes. However, the NPAL source with a maximum SPL of 195 dB (re 
1 uPa (rms)) has neither sufficient intensity nor rise time to cause 
this type of injury.

Mitigation Concerns

    Comment MC1: The HSUS, while agreeing that ramp-up should be 
incorporated as a mitigation measure even if there is no evidence that 
it is effective, believes that calling ramp-up precautionary is 
inappropriate. If ramp-up is not effective, the animals will 
potentially suffer for it. The MMC believes that it is reasonable to 
assume that most marine mammals will move away from the sound source as 
it is ramped up. However, studies necessary to validate this assumption 
have not yet been done.
    Response: As noted in response to comment 17 in the proposed rule, 
NMFS recognizes that ramp-up may not be effective as a mitigation tool. 
However, ramp-up has been recommended to be employed in offshore 
seismic activities by the participants at the High-Energy Seismic 
Survey (HESS) panel. Moreover, based on observational data showing that 
humpback and sperm whales actively avoid noise from the NPAL source, 
ramp-up should be at least partially effective as a mitigation measure 
for the NPAL activity.
    Comment MC2: One citizen noted that the AIM referred to for 
mitigation is theoretically elegant, but woefully inadequate 
zoogeographically (Navy, 1999 SURTASS LFA Sonar Technical Report 2). 
The species abundance and distribution for cetaceans modeled for LFA 
sonar around the Bahamas (site 29) were obviously erroneous, and it 
appears likewise for areas around Hawaii (sites #6 and #12).
    Response: The AIM is a model used to estimate the levels of taking 
of marine mammals by harassment; it is not a mitigation measure. The 
ONR draft and final EISs on NPAL explain in detail the inputs into the 
AIM for the location of the NPAL source. When information becomes 
available to the Navy the AIM can be, and will be, improved. For the 
NPAL action, however, NMFS concludes that the information contained in 
the ONR draft and final EISs and the Scripps' small take application 
contain the best scientific information available on the subject, since 
additional information has not been provided to it, or the Navy.
    Comment MC3: The MMC believes that the mitigation measures should 
specify that the sound source will operate on a duty cycle of 2 percent 
and a power level no greater than 230 watts. The MMC also believes the 
authorization would appear to authorize transmissions exceeding 195 dB.
    Response: Both of these recommendations have been addressed as 
alternatives in ONR's draft and final EISs. The proposed action by 
Scripps and ONR is to operate the NPAL source on a duty cycle an 
average of 2 percent during the period February through April with any 
increases in the duty cycle beyond the nominal 2 percent (with a 
maximum of 8 percent) not occurring during the humpback whale season 
(January-April). The 2-percent duty cycle does not include the ramp-up 
period. However, there is no evidence in the record to support the 
MMC's recommendation to limit the transmissions to 2 percent year-
round. For reasons detailed in the ONR draft EIS, there are valid 
scientific reasons for needing to exceed a 2 percent duty cycle at 
certain times of the year.
    Also, there is no evidence in the record to support limiting the 
NPAL power source to 230 Watts, as opposed to the stated operating 
power of 260 Watts. The NPAL sound source has been designed to operate 
at the minimum power level necessary to support large-scale acoustic 
thermometry and long-range sound transmission objectives. It should be 
recognized that signal length and power trade off with each other; a 
shorter signal length would require increased power to accomplish the 
project's objectives. Mitigation measures are also described under 
``Mitigation'' in the preamble to both the proposed rule, and this 
document.

Monitoring and Reporting Concerns

    Comment MRC1: The MMC believes that, if NMFS has concluded that 
long-term monitoring studies are necessary only if the project's 
duration extends beyond 5 years, NMFS should explain why it believes 
that such long-term monitoring studies to identify the potential 
cumulative impacts of the currently proposed 5-year program are not 
currently warranted. The WDCS, while concurring with NMFS' statement 
(in response to comment 1 in the ANPR) that long-term studies should be 
initiated if the project were to continue beyond 5 years, believes such 
monitoring should start now, not after

[[Page 43452]]

the program has been in operation for more than 10 years.
    Response: NMFS clarifies that it considers the aerial monitoring 
program that was conducted between 1993 and 1998 off the north shore of 
Kauai as part of the ATOC MMRP to be part of a long-term monitoring 
program. Data were collected during the humpback whale winter breeding 
season (February-April) for a total of 3 baseline years when the Kauai 
ATOC source was not transmitting (1993, 1994 and 1995) and for 1 year 
when it was transmitting (1998). An additional year of baseline surveys 
(source off) were conducted in the area off the north shore of Kauai 
during the 2001 humpback breeding season. The earlier years' 
information is summarized in Mobley et al. (1999), which will be 
available upon request from NMFS, until formal publication. With 5 
years of data, NMFS believes that continuing this monitoring program 
during the next 5 years (when the source is expected to be on) will 
provide NMFS and others with information on long term trends. NMFS 
believes that the aerial monitoring program described in this document 
provides the best practical method for assessing long term effects of 
the NPAL source.
    Comment MRC2: The MMC believes that available data are insufficient 
to conclude with confidence that there will be no long-term effects on 
distribution, size, or productivity of any of the potentially affected 
marine mammal stocks. Given that there is uncertainty as to whether the 
taking could have biologically significant long-term effects, the MMC 
considers it essential that Scripps' monitoring program be designed to 
enable NMFS to detect any such possible project-related changes. The 
MMC, therefore, recommends NMFS consult with Scripps and scientists 
familiar with the demography and behavior of marine mammals that could 
be affected by the proposed action to determine the baseline 
information and kinds of monitoring that would be required to detect 
possible long-term population-level effects.
    Response: See response to comment MRC1. NMFS has determined that 
the long-term monitoring program designed by Scripps will adequately 
assess impacts to humpback whales during the 5-year authorization for 
NPAL takings. The evidence from various sources, contained in this 
document and in the Scripps/ONR final EIS, indicate that marine mammal 
species, other than humpback whales and possibly sperm whales, would be 
unaffected by the LF, low intensity source because of either 
distributional, water column preference, and/or hearing abilities for 
LF sounds. Therefore, NMFS believes it is most important to focus 
monitoring efforts on humpback whales (although other marine mammal 
species will also be assessed during humpback whale surveys).
    Comment MRC3: The MMC recommends that NMFS, if it issues the LOA, 
include a description of the required monitoring program, in sufficient 
detail to enable reviewers to judge the likelihood that it will be 
capable of detecting biologically significant long-term effects in time 
to stop and reverse them.
    Response: NMFS has expanded the discussion on the monitoring 
program in this document. For additional information on the protocols 
that will be employed, please refer to Mobley et al. (1999) which is 
available upon request. Their analysis included both calculating 
distance from shore and distance from source to assess distributional 
shifts. They also calculated an incidence rate that is comparable 
between years since the survey tracklines were constructed using the 
same rules. Therefore, although an overall abundance estimate cannot be 
estimated from these surveys, a relative incidence rate among years can 
be estimated.
    Comment MRC4: The MMC notes that NMFS did not respond to the MMC's 
recommendations (in its letter to Scripps dated 22 September 2000) that 
(1) scientists with broad knowledge of the form and function of 
cetacean vocalizations be consulted to determine whether monitoring and 
comparing vocalizations before, during, and after NPAL transmissions 
could help resolve the uncertainties concerning masking and possible 
behavioral disruptions and (2) if the consultations indicate that such 
monitoring would be possible and useful, an appropriate vocalization 
monitoring program be designed and included as part of the proposed 
action.
    Response: The potential for masking and masking effects were 
studied during the Kauai ATOC MMRP and summarized in ONR's draft and 
final EISs. The Kauai ATOC MMRP did not find any overt or obvious 
short-term changes in singing behavior of humpback whales in the 
vicinity of the sound source. In addition, no statistically significant 
changes in the underwater sound output from humpback whales in one of 
the frequency bands in which they vocalize was found in the vicinity of 
the Kauai source. Therefore, it is estimated that the potential for 
effects from masking would be minimal and limited to no more than 2 
percent of the time for those animals in residence off the north shore 
of Kauai. Therefore, NMFS has determined that no additional short-term 
studies on masking effects associated with the NPAL source are 
required, especially since this research would need to be conducted at 
the cost of decreased coverage in the long-term aerial monitoring 
program.
    Comment MRC5: The WDCS, while pleased that 8 aerial surveys will be 
conducted each year, rather than 4 surveys, is concerned that no 
surveys will be conducted when the duty cycle may be increased to 8 
percent.
    Response: As explained elsewhere in this document, under authorized 
funding levels for this project, conducting additional surveys outside 
the humpback whale season would necessitate a reduced aerial survey 
effort for humpback whales during the humpback whale season. Because 
the required humpback whale aerial surveys will also detect other 
marine mammal species, NMFS believes that additional aerial surveys are 
not an efficient use of NPAL's limited resources and, because this 
additional monitoring is unlikely to provide NMFS and the public with 
better data than would be provided during the humpback whale aerial 
surveys, should not be required.
    Because the smaller whales and dolphins are not expected to be 
sensitive (e.g., react) to the Kauai NPAL acoustic source transmission, 
and because the required humpback whale aerial surveys will also detect 
other marine mammal species, NMFS also does not believe that conducting 
boat-based surveys for these species is warranted.
    Comment MRC6: The WDCS does not believe that the proposal to 
coordinate and investigate stranding events will lead to a responsible 
indication of the number of cetacean deaths that may occur as a result 
of NPAL operations. The WDCS believes that a small number of cetaceans 
that die at sea (will) then wash ashore to be found.
    Response: As explained in detail elsewhere in this document, due to 
the water depth of the NPAL source and the fact that it is not of 
sufficient intensity to result in hearing damage, NMFS has no 
scientific reason to suspect that the NPAL source could result in 
injury or death to marine mammals through either hearing or other body 
function impairments. However, Scripps will be required to coordinate 
with the Hawaiian Islands' marine mammal stranding network to ensure 
that all strandings are investigated and analyzed to the extent 
possible. Moreover, marine mammals do not need to be onshore in order 
to be considered a stranding. Therefore, floating dead marine

[[Page 43453]]

mammals spotted during marine mammal aerial surveys will also be 
investigated by Scripps and the stranding network to the extent 
possible.
    Comment MRC7: The MMC notes that the discussion of the aerial 
survey monitoring program does not, but should, describe by whom the 
aerial surveys would be conducted, what area or areas would be 
surveyed, what data would be collected, and, what would be considered 
biologically significant effects, and should describe the kind of 
changes in distribution and abundance that would trigger a review and 
suspension or termination of the project.
    Response: NMFS agrees. A more complete description of the 
monitoring program protocols can be found in this document.
    Comment MRC8: The MMC notes two things in regard to the following 
sentence found in the preamble to the proposed rule: ``Based on an 
average of seven humpback sightings per survey observed during the 1998 
season and assuming a moderate-sized effect due to NPAL transmissions, 
eight surveys should produce a minimum of 56 sightings of humpback 
whales, which would result in an estimated power of 0.80 (i.e., there 
would be an 80-percent probability of detecting a change in 
distribution if an effect is present).'' First, that while the term 
``moderate-sized effect,'' found in discussion of the ability to 
monitor effects on humpback whales, is a standard statistical 
expression in estimating power, NMFS should indicate what it 
understands to be ``moderate-sized'' with respect to humpback abundance 
near the source. Second, NMFS should include a reference to size as 
well as distribution.
    Response: Previous studies (Calambokidis, 1998) showed the mean 
distance from the ATOC source to be a relatively sensitive metric for 
assessing distributional changes of whales. However, no significant 
changes were noted for incidence (numbers) of whales in the ``on'' vs 
``off'' experimental phases. Frankel and Clark (1998, 2000) also showed 
a similar effect in terms of distributional-related behaviors (i.e., 
distance and duration between surfacings). So the issue of statistical 
power was only applied to the distance from source variable, based on a 
difference on the order of 10 percent or greater. Though Scripps will 
report any differences in incidence, it is not expecting that metric to 
be particularly useful for later analysis, so the issue of power is not 
relevant there. In regard to the MMC's second point, it is not 
appropriate to calculate humpback whale abundance with the aerial 
survey design. However, since the aerial survey tracklines will be 
constructed using the same rules as the baseline data surveys, it is 
possible to calculate a rate of incidence that is comparable between 
years. Therefore, although an overall abundance estimate cannot be 
estimated from these surveys, a relative incidence rate among years can 
be estimated.
    Comment MRC9: The MMC asks what is meant by ``an acute or short-
term effect'' on marine mammals that would trigger suspension of source 
operation and contacting NMFS. Also, what criteria would be used to 
determine whether the NPAL source was responsible for a stranding 
event.
    Response: The Marine Mammal Monitoring and Studies Program would 
continue to monitor for acute, short-term effects, even though none 
were observed during the ATOC MMRP. Acute or short-term effects are 
defined as: (1) Animal dead or disabled (primary capability), (2) 
Increase in number of beached animals (potential/limited capability), 
(3) Increase in number of animals struck by vessels (potential/limited 
capability); (4) Repeated/prolonged activity (blowing, time on surface, 
etc.)(potential/limited capability), (5) Abnormal number of animals 
present/absent (primary capability), (6) Abnormal mother-calf activity 
(potential/limited capability). If at any time a Marine Mammal 
Monitoring and Studies Program team member positively identifies the 
occurrence of an acute or short-term effect, the information would be 
immediately communicated to the Marine Mammal Monitoring and Studies 
leader (Dr. J.Mobley, University of Hawaii). If the leader ascertains 
that an acoustic transmission (i.e., during the 5-min ramp-up or the 
20-min transmission) coincided with the observed effect, he would 
contact the Barking Sands shore termination site and Scripps, and 
suspend source operations immediately until further notice by NMFS. The 
leader would collate all pertinent information relative to the incident 
and contact NMFS to inform them of the situation. NMFS, in consultation 
with the leader, would make the determination as to the severity of the 
situation, based upon the knowledge of the species type, the animal's 
location relative to the source, the source level at the time of the 
incident, the estimated received level at the animal, whether there 
were any other noise sources in the vicinity, etc. Based upon analysis 
of the information supplied, NMFS would recommend that one of the 
following options be executed: (1) Continue experiment as planned, (2) 
Continue experiment with modifications to maximum source level or duty 
cycle, or (3) Suspend experiment pending consultation with NMFS. 
Regardless of the decision, within 24 hours, a written summary of the 
incident would be forwarded to ONR, Scripps, and NMFS.
    If a dead or disabled animal is observed during the visual aerial 
surveys, this information would be provided to the Kauai stranding 
coordinator, who would follow his/her agency's protocols for handling 
of a dead or disabled animal.
    Comment MRC10: The MMC questions the apparent discrepancy between 
NMFS statements that the 8 aerial surveys have an 80 percent chance of 
detecting a change in distribution (or abundance around the source) 
with the statement that the level of data from the monitoring program 
would not allow determinations to be made that the NPAL source was 
responsible for any decreases in abundance of humpback whales or other 
marine mammals in the vicinity of the source. The MMC believes that a 
monitoring program under a incidental taking authorization must be 
capable of detecting possible, non-negligible, project-related changes 
in distribution, abundance, or productivity of marine mammals.
    Response: The MMC quoted the sentence out of context. The entire 
statement from the proposed rule reads:
    NMFS does not believe that the level of data from the monitoring 
program will allow determinations to be made that the NPAL acoustic 
source was responsible for any decreases in abundance of humpback 
whales or other marine mammals in the vicinity of the source. At 
this time, evidence indicates that the numbers of humpback whales 
and Hawaiian monk seals off Kauai are increasing, however, it is 
unclear whether this is due to total abundance increases or 
geographic shifts due to oceanographic changes. Similarly, a cause 
and effect between operation of the NPAL source and any decrease in 
abundance of marine mammals in the offshore Hawaiian Islands over 
the short-term period of 5 years is unlikely.
    The aerial monitoring program is designed to detect a change in 
distribution and abundance of humpback whales in the vicinity of the 
NPAL source due to the source being on at the time of overflight versus 
the acoustic source being off. This will be done by ``distance from 
shore'' analyses. The aerial monitoring program will not detect changes 
in distribution for other marine mammals because the numbers of animals 
detected will be too low. However, the best scientific information 
indicates that these other species will not be affected by the NPAL 
acoustic source.

[[Page 43454]]

    NMFS believes that the NPAL monitoring program has been designed to 
conform to the greatest extent practicable with the guidelines found in 
the MMC's monitoring paper by Swartz and Hofman (1991). By using the 
information collected over the past five years, along with information 
collected by the aerial monitoring program north of Kauai and the 
Hawaii-wide aerial surveys, NMFS believes that determinations in trends 
in abundance for humpback whales will be attainable.
    Comment MRC11: The MMC recommends that the final rule should 
contain a specific date by which annual reports under the LOA are to be 
submitted.
    Response: A date for receipt of an annual report under a LOA is a 
condition for an LOA, not rulemaking. This allows NMFS the ability to 
modify the timing for the annual report, if necessary, without the need 
to undertake lengthy rulemaking. However, renewal of an LOA is 
conditional upon receipt of an annual report that is acceptable to 
NMFS.

NEPA, ESA and Other Concerns

    Comment NEC1: The WDCS, while pleased that the ONR and Scripps will 
include a discussion on Hawaiian monk seals in the final EIS and in the 
AIM calculations, is nevertheless dissatisfied considering the 
endangered status of the monk seal that data were not made available at 
the time of the writing of the draft EIS.
    Response: A draft EIS is, as its title suggests, a draft document. 
When information is lacking, incomplete or inaccurate, corrections are 
made in the final EIS, if noted by commenters and provided the 
information in the draft EIS is not so inadequate to preclude 
meaningful analysis (40 CFR 1502.9(a)). Information was provided in the 
draft EIS on the status of the monk seal in one of the NEPA 
alternatives, that is, use of the NPAL source at Midway Island. Recent 
information (Forney et al., 1999) indicates that the monk seal 
population at the Main Hawaiian Islands (MHI) is approximately 40 
animals which includes the 21 animals relocated to the MHI from Laysan 
Island in 1994. More recently, in August 2000, NMFS conducted a 
statewide aerial survey which observed 17 beached seals in Kauai County 
and 3 births which were all on the island of Kauai. To account for 
animals that may not have been observed for a reasonable estimate of 
the actual population size, NMFS normally multiplies the beach counts 
by a correction factor of 3. This recent information has been included 
in the ONR's final EIS. However, as stated previously, NMFS does not 
believe that Hawaiian monk seals will be impacted by the NPAL source 
considering that monk seals are believed to be mid-frequency-specialist 
hearers, the relatively low SPL of the NPAL source at the water surface 
in the offshore vicinity of the source (less than 136 dB), and the 
coastal nature of the Hawaiian monk seal, where SPLs will be even 
lower.
    Comment NEC2: The MMC notes that a reference was not provided with 
the statement that Hawaiian monk seals are ``high-frequency'' (HF) 
specialists. Also countering NMFS' statement that the Agency did not 
believe that monk seals would be impacted by the NPAL source, the MMC 
is unaware of studies on monk seal hearing, at-sea movements, diving 
behavior and behavioral responses to LF sound. The MMC believes that 
without additional analyses, installation and operation of a sound 
source at the Midway location would be contrary to the provisions of 
the ESA and NEPA and the regulations should not authorize operation of 
the NPAL acoustic source in the Midway Island area until such 
information is available.
    Response: The reference for monk seals being HF specialists is 
Thomas et al. (1990). These authors found auditory thresholds for monk 
seals from 2 to 48 kHz, with best sensitivity between 12 and 28 kHz. 
For marine mammals, this best-sensitivity range means that monk seals 
are considered mid-frequency specialists, not HF specialists. 
Nonetheless, this continues to support NMFS' belief that monk seals are 
unlikely to be affected by a LF source such as NPAL, which transmits at 
75 Hz (.075 kHz).
    It is not clear to NMFS how locating the source at Midway would be 
contrary to NEPA and the ESA. The draft and final EISs prepared for 
this action by ONR describe the impacts of locating the source at 
either Kauai or Midway. The Council on Environmental Quality 
regulations implementing NEPA (40 CFR 1502.22) addressed the issue of 
proceeding with incomplete or inadequate information.
    In addition, NMFS has completed consultation under section 7 of the 
ESA on conducting the activity off Kauai. If Scripps and ONR decided to 
relocate the activity to Midway, then ONR would need to reinitiate 
consultation under section 7 of the ESA. In addition, because this 
small take rule has now been finalized, a new rule would need to be 
proposed in order for a small take authorization to be issued for NPAL 
operations at Midway.
    Comment NEC3: The State of Hawaii noted that pursuant to 15 CFR 
930, Coastal Zone Management federal consistency concurrence is 
prerequisite to the issuance of the Letter of Authorization.
    Response: Because the State consistency finding is being undertaken 
by Scripps, and because Scripps has applied for the small take 
authorization (a permit) under the MMPA, this action comes under 
subpart D of 15 CFR Part 930, as revised on December 8, 2000 (65 FR 
77124). In consideration of Sec.  930.62(c), NMFS processes 
applications for small take authorizations and, if a state consistency 
process has not been completed by the time a small take authorization 
has been completed, NMFS conditions that small take authorization's 
effectiveness upon the written concurrence of the appropriate state 
that the activity proposed is consistent with the state's Coastal Zone 
Management program. That policy applies to this action.
    Comment NEC4: The HSUS is concerned that ONR and Scripps would 
proceed with this project even if they did not receive an LOA from 
NMFS. The HSUS quotes the proposed rule that: ``Without an 
authorization under the MMPA, NMFS and the public may not receive this 
information'' from reports. The HSUS presumes this means that the 
public would not receive the information because the project would not 
proceed because any taking of marine mammals would be illegal.
    Response: In the proposed rule NMFS simply provided a summary 
statement of the costs and benefits of the proposed action in 
compliance with E.O. 12866-Regulatory Planning and Review. Whether or 
not an activity would take place without a small take authorization is 
the decision of the activity participants. If an activity were to take 
marine mammals without an authorization, NMFS would investigate to 
determine whether there was a violation of the MMPA. The statement 
regarding receipt of information is simply a statement that, without a 
small take authorization, there would be no requirement to monitor the 
activity nor to submit reports to NMFS.

Description of Affected Marine Mammals

    A summary of the marine mammal species that may potentially be 
found in the vicinity of the NPAL acoustic source at either Kauai or 
Midway is presented here. For more detail on marine mammal abundance, 
density, and the methods used to obtain this information, reviewers are 
requested to refer to ONR's draft EIS. For general information on North 
Pacific Ocean marine mammals, reviewers may refer

[[Page 43455]]

to Forney et al. (2000) or many other references commonly available. 
For information on distribution and abundance of marine mammals in 
Hawaiian waters, reviewers are encouraged to review Mobley et al. 
(2000).
    Six species of baleen whales, humpback (Megaptera novaengliae), fin 
(Balaenoptera physalus), blue (B. musculus), Bryde's (B. edeni), minke 
(B. acutorostrata), and the North Pacific right (Blaena japonicus) 
whales, may occur in the Kauai or Midway Atoll areas. Although not 
reported near Midway Atoll, the humpback whale is the only 
balaenopterid whale known to be present in reasonably large numbers. 
Humpback whales are considered abundant in coastal waters of the main 
Hawaiian Islands from November through April. Fin whales and blue 
whales have the potential to occur in the area; however, their 
distribution and abundance in the region is believed to be uncommon 
(Balcomb, 1987), although only a single fin whale was observed during 
recent ATOC marine mammal research. Right whales in the North Pacific 
Ocean are extremely rare and therefore, would also be rare in the 
Hawaiian Islands. Bryde's whales, and minke whales may be occasionally 
seen in the area of Midway Atoll (Leatherwood et al., 1988), but are 
not usually found off Kauai.
    Sixteen species of odontocetes (toothed whales, dolphins and 
porpoises) may be found in the Kauai and Midway areas. These species 
are sperm whales (Physeter macrocephalus), short-finned pilot whales 
(Globicephala macrorhynchus), beaked whales (Ziphius cavirostris, 
Berardius bairdi, and Mesoplodon spp.), spinner dolphins (Stenella 
longirostris), spotted dolphins (Stenella attenuata), striped dolphins 
(Stenella coeruleoalba), bottlenose dolphins (Tursiops truncatus), 
rough-toothed dolphins (Steno bredanensis), pygmy sperm whales (Kogia 
breviceps), dwarf sperm whales (Kogia simus), killer whales (Orcinus 
orca), false killer whales (Pseudorca crassidens), pygmy killer whales 
(Feresa attenuata), and melon-headed whales (Peponocephala electra). It 
should be noted, however, that the latter 7 species were not sighted in 
or near the proposed Kauai area during marine mammal surveys conducted 
between 1993 and 1998.
    The Hawaiian monk seal (Monachus schauinslandi) occurs in the area 
of the Leeward Hawaiian Islands and, more recently in the main Hawaiian 
Islands, including the island of Kauai.

Assessment of Potential Impacts on Marine Mammals

    The effects of underwater noise on marine mammals are highly 
variable, and can be categorized as follows (based on Richardson et 
al., 1995): (1) The noise may be too weak to be heard at the location 
of the animal (i.e. lower than the prevailing ambient noise level, the 
hearing threshold of the animal at relevant frequencies, or both); (2) 
the noise may be audible but not strong enough to elicit any overt 
behavioral response; (3) the noise may elicit behavioral reactions of 
variable conspicuousness and variable relevance to the well being of 
the animal; these can range from subtle effects on respiration or other 
behaviors (detectable only by statistical analysis) to active avoidance 
reactions; (4) upon repeated exposure, animals may exhibit diminishing 
responsiveness (habituation), or disturbance effects may persist (the 
latter is most likely with sounds that are highly variable in 
characteristics, unpredictable in occurrence, and associated with 
situations that the animal perceives as a threat); (5) any noise that 
is strong enough to be heard has the potential to reduce (mask) the 
ability of marine mammals to hear natural sounds at similar 
frequencies, including calls from conspecifics and/or echolocation 
sounds, and environmental sounds such as storms and surf noise; and (6) 
very strong sounds have the potential to cause either a temporary or a 
permanent reduction in hearing sensitivity (i.e., TTS or PTS, 
respectively). In addition, intense acoustic or explosive events may 
cause trauma to tissues associated with organs vital for hearing, sound 
production, respiration and other functions. This trauma may include 
minor to severe hemorrhage.
    Few data on the effects of non-explosive sounds on hearing 
thresholds of marine mammals have been obtained. However, in 
terrestrial mammals (and presumably in marine mammals), received sound 
levels must far exceed the animal's hearing threshold for there to be 
any TTS and must be even higher for there to be risk of PTS (Richardson 
et al., 1995). In this proposed action, Scripps has calculated that a 
marine mammal would have to receive one ping greater than, or equal to 
180 dB in order to be considered receiving a non-serious injury (Level 
A harassment), or many pings at an RL slightly lower than 180 dB in 
order to potentially incur a significant biological response (Level B 
harassment) to the noise.
    In order to understand the biological significance of the risk of 
Level A or Level B harassment, it is necessary to determine how this 
risk might affect a population of marine mammals, starting with 
acoustic criteria. First, the marine mammal must be able to hear LF 
sound. Second, the animal must incur a reaction to the LF sound that is 
more than momentary. Third, any effect from LF sound must involve a 
significant behavioral change in a biologically important activity, 
such as feeding, breeding, or migration, all of which are potentially 
important for reproductive success of the population.
    Based on California and Hawaii ATOC MMRPs, Scripps found no overt 
or obvious short-term changes: (1) In the abundance and distribution of 
marine mammals in response to the ATOC transmissions (intensive 
statistical analyses of aerial survey data showed some subtle shifts in 
distribution of humpback (and possibly sperm) whales away from the 
California site (Calambokidis et al., 1998) and humpback whales away 
from the Kauai site); (2) in the behavior of humpback whales in 
response to the playback of ATOC-like sounds (intensive statistical 
analyses revealed some subtle changes in the behavior of humpback 
whales (Frankel and Clark, 1998; 2000)); or (3) in the singing behavior 
of humpback whales in the vicinity of the Kauai ATOC sound source. 
Bioacoustic experts concluded that these subtle effects would not 
adversely affect the survival of an individual whale or the status of 
the North Pacific humpback whale population (Frankel and Clark, 2000).
    To assess the potential environmental impact of the NPAL sound 
source on marine mammals, it was necessary for Scripps to predict the 
sound field that a given marine mammal species could be exposed to over 
time. This is a multi-part process involving (1) the ability to measure 
or estimate an animal's location in space and time, (2) the ability to 
measure or estimate the three-dimensional sound field at these times 
and locations, (3) the integration of these two data sets to estimate 
the potential impact of the sound field on a specific animal in the 
modeled population, and (4) the conversion of the resultant cumulative 
exposures for a modeled population into an estimate of the level of 
risk associated with a disruption of a biologically important activity.
    Next, a methodology for converting the resultant cumulative 
exposures for a modeled population into an estimate of the risk to the 
entire population associated with a significant disruption in a 
biologically important activity and or injury was developed. This 
process

[[Page 43456]]

assessed risk in relation to RL and repeated exposure. The resultant 
``risk continuum'' is based on the assumption that the threshold of 
risk is variable and occurs over a range of conditions rather than at a 
single threshold.
    Taken together, the recent results on marine mammals from LF 
sounds, the acoustical modeling, and the risk assessment, provide an 
estimate of potential environmental impacts to marine mammals.
    The acoustical modeling process was accomplished by Scripps using 
the U.S. Navy's standard acoustical performance prediction transmission 
loss model-Parabolic Equation (PE) version 3.4. The results of this 
model are the primary input to the AIM model. AIM was used in this 
analysis to estimate marine mammal sound exposures and integrate 
simulated characteristics of marine mammals (e.g., species 
distribution, density, dive profiles, and general movement), NPAL sound 
transmissions (e.g., duty cycle, transmission length), and the 
predicted sound field for each transmission to estimate acoustic 
exposure during a typical NPAL source transmission. A description of 
the PE and AIM models (including AIM input parameters for animal 
movement, diving behavior, and marine mammal distribution, abundance, 
and density) and the risk continuum analysis are described in detail in 
the Scripps' application and ONR's final EIS and are not discussed 
further in this document. For copies of these documents see ADDRESSES.
    Scripps has drawn some general conclusions about the potential 
impact of the NPAL sound source on marine mammals from the relative 
abundance of various marine mammal species in relationship to the NPAL 
sound field. The only mysticete (baleen) whale species expected in the 
waters off the north shore of Kauai in substantial numbers is the 
humpback whale. Scripps believes however, that because humpback whales 
usually prefer nearshore locations (inside the 100-fathom (188 m) depth 
contour) and not the offshore location of the NPAL source, few 
humpbacks are expected to be exposed to received levels greater than 
120 dB (i.e, the SPL level presumed by Scripps in its risk continuum 
(explained in Scripps' application) to be almost zero for marine 
mammals to have a potential to incur significant behavioral 
disturbance). Similarly, sperm whales are the most common deep-diving 
odontocete (toothed) whale in Hawaiian Islands area, but because they 
usually prefer offshore waters (i.e., water depths greater than 4,000 m 
(12,700 ft)), few are expected to be exposed to received levels greater 
than 120 dB. According to Scripps, these distributional preferences are 
supported by the Kauai ATOC MMRP (Mobley, 1999).
    Using the risk continuum and acoustic modeling, Scripps estimated 
the potential for biologically significant reactions by marine mammals 
under the proposed action. Scripps determined that of all the species 
found in the NPAL source area only humpback whales that remain in the 
vicinity of the sound source for a full day of transmissions may 
potentially experience any effect from the source transmissions. 
However, humpback whales typically travel parallel to the coast of 
Kauai, and, therefore, Scripps believes, would probably not receive 
sound from more than a single transmission. NMFS, having reviewed 
Mobley et al. (1999, 2000), and the information contained in ONR's 
draft and final EISs, concurs with this assessment and therefore 
concludes that operation of the NPAL source by Scripps will have no 
more than a negligible impact on the affected marine mammal stocks and 
habitats.

Mitigation

    Scripps' proposed action includes mitigation that would minimize 
the potential effects of the NPAL sound source to marine mammals. 
First, the sound source would operate at the minimum duty cycle (2 
percent during the humpback whale season) necessary to support the 
large-scale acoustic thermometry and long-range propagation objectives 
(described previously in this document). Any increases in the duty 
cycle beyond the nominal 2 percent (with a maximum of 8 percent) would 
not occur during the humpback whale season (January-April). However the 
proposed action includes the possibility of an 8-percent duty cycle for 
up to 2 months out of each year; this action, which would not occur 
during the period of time humpback whales inhabit Hawaiian waters. 
Second, NPAL transmissions would continue with approximately the same 
transmission schedule as that used during the first feasibility phase 
of the ATOC study. Third, the sound source would operate at the minimum 
power level necessary to support large-scale acoustic thermometry and 
long-range sound transmission objectives (It should be recognized that 
signal length and power trade off with each other; a shorter signal 
length would require increased power to accomplish the project's 
objectives-for that reason it is considered as a mitigation measure to 
prevent potential injury to marine mammals). The fourth mitigation 
measure proposed is to ramp-up the NPAL sound source transmissions over 
a 5-min period. This is believed to reduce the potential for startling 
marine mammals in the vicinity of the NPAL sound source and provides 
them an opportunity to move away from the sound source before 
transmitting at the maximum power levels.

Monitoring and Reporting

    In an effort to understand the potential for long-term effects of 
man-made sound on marine mammals, Scripps will monitor the distribution 
and abundance of marine mammals in the vicinity of the sound source by 
conducting eight surveys each year from February through early April. 
In order to maintain a basis for comparison with previous aerial 
surveys conducted in the area off the north shore of Kauai, the 
proposed survey protocol would follow the protocol used in the earlier 
1993-1998 surveys (see Mobley et al., 1999). North-south tracklines 
spaced 13 km (7 nm) apart would be surveyed within a 40-km (21.6 nm) 
radius of the NPAL source. One or two additional lines spaced 6.5 km 
(3.5 nm) apart would be added in the immediate vicinity of the Kauai 
source. Sightings of all marine mammal and sea turtle species would be 
made by two experienced observers, one on each side of the aircraft. 
Sightings would be called to a data recorder who would note the species 
sighted, number of individuals, presence or absence of a calf, angle to 
the sighting, and any apparent reaction to the aircraft. Additionally, 
GPS locations and aircraft altitude, measured by a radar altimeter) 
would be automatically recorded at 30-sec intervals and whenever a 
sighting is made.
    The 8 aircraft surveys would be scheduled eight days apart to match 
the NPAL transmission schedule. Based on an average of seven humpback 
sightings per survey observed during the 1998 season, and assuming a 
moderate sized effect due to NPAL transmissions, eight surveys should 
produce a minimum of 56 sightings of humpback whales, which would 
result in an estimated power of 0.80 (i.e., there would be an 80- 
percent probability of detecting a change in distribution if an effect 
is present). The estimate of 56 sightings is presumed to be a minimum, 
given previously reported evidence that the Hawaiian wintering 
population of humpback whales is increasing (Mobley et al., 1999).
    During the aerial surveys, the location (lat/long) of each sighting 
of a marine mammal or sea turtle will be recorded with GPS. Therefore, 
since the lat/long

[[Page 43457]]

location of the sound source is known, one can calculate distance of 
the marine mammal sighting from the sound source. Similarly, with the 
lat/long position of the sighting, a distance offshore can be 
calculated from a digitized map. These distances can then be compared 
to the baseline data that was collected during the 2001 field season, 
and a comparison between source ``on'' and source ``off'' distribution 
can be determined. As for the received level that a sighted animal was 
exposed to, during ATOC a detailed transmission loss (TL) study was 
conducted in the waters shoreward of the sound source, and the PE plots 
show the TL seaward of the sound source. Therefore, knowing the lat/
long position, one can estimate what sound level an animal would 
receive during a transmission.
    If humpback whales, or other marine mammals, are observed 
exhibiting avoidance reactions in response to NPAL source 
transmissions, the received level at the whale must be estimated and 
included in the required annual report. If acute effects such as injury 
or mortality of listed species are observed relative to the initiation 
of the sound source, then Scripps must immediately initiate the source 
shut-down procedure in the research protocol. Avoidance reactions must 
also be reported in the annual reports. Finally, since the aerial 
surveys will be scheduled to coincide with days that the source will be 
transmitting, if any injured or dead animals are observed, the Kauai 
stranding coordinator must be notified and informed of the location of 
the stranding, or the offshore location of the animal.
    A report on activities will be provided to NMFS annually upon the 
conclusion of that year's aerial surveys. Reports on the aerial survey 
results will be available to the public.

NEPA

    The ONR has released a final EIS under NEPA (see ADDRESSES). NMFS 
is a cooperating agency, as defined by the Council on Environmental 
Quality (40 CFR 1501.6), in the preparation of the draft and final 
EISs.

Endangered Species Act (ESA)

    On June 23, 2000, ONR submitted a Biological Assessment to NMFS to 
initiate consultation under section 7 of the ESA. In that regard, NMFS 
concluded consultation with ONR on this action on April 26, 2001. The 
finding of that consultation was that funding, and continuation of, the 
NPAL sound source located off Kauai, HI and the issuance by NMFS of a 
small take authorization for this activity are not likely to jeopardize 
the continued existence of any endangered or threatened species under 
the jurisdiction of NMFS. A copy of the Biological Opinion issued as a 
result of that consultation is available upon request (see ADDRESSES).

Determinations

    Based on the scientific analyses detailed in Scripps' application 
and further supported by information and data contained in ONR's final 
EIS, and discussed in this document, NMFS has determined that the 
taking of marine mammals potentially harassed incidental to the 
continued operation of an LF acoustic source previously installed off 
the north shore of Kauai by the NPAL project would result in only small 
numbers (as the term is defined in Sec.  216.103) of marine mammals 
being taken. In addition, this incidental harassment would have no more 
than a negligible impact on the affected marine mammal stocks or 
habitats and would not have an unmitigable adverse impact on Arctic 
subsistence uses of marine mammals.
    The following factors have been considered when making the 
determination that the taking by the NPAL acoustic source at Kauai 
would result in small numbers being harassed and having no more than a 
negligible impact: (1) The limited duty cycle of the source (2-8 
percent); (2) the information that most species of marine mammals are 
relatively insensitive to acoustic sounds as low as the NPAL source; 
(3) the fact that relatively few marine mammals that inhabit the 
acoustic source area are known to dive to depths that would put them in 
the proximity of sound fields that could disrupt biologically 
significant behavior; and (4) the low potential that a marine mammal 
actually would be within the acoustic sound field during sound 
transmissions. In consideration of these factors, NMFS has concluded 
that the operation of the acoustic source at Kauai would result in no 
more than small numbers of marine mammals being affected, and that the 
operation of the NPAL source offshore Kauai, HI for the next five years 
would have a negligible impact on affected marine mammal species and 
stocks. Finally, because no marine mammals potentially affected by the 
NPAL acoustic source are also utilized for subsistence by Alaskan 
natives, the NPAL project will not have an unmitigable adverse impact 
on subsistence uses of marine mammals. Therefore, in accordance with 
section 101(a)(5)(A) of the MMPA, a Letter of Authorization for the 
taking of small numbers of marine mammals incidental to operation of 
the NPAL source off Kauai, HI can be issued to Scripps under these 
regulations.

Costs and Benefits

    In addition to allowing Scripps to take a small number of marine 
mammals incidental to conducting scientific research using the NPAL 
acoustic source off Hawaii, this rule would require Scripps to provide 
NMFS and the public with information on the NPAL source's effect on 
certain species of marine mammals. Without an authorization under the 
MMPA, NMFS and the public might not receive this information. NMFS 
believes that obtaining this information is important because 
scientific findings resulting from the monitoring program are likely to 
be directly applicable to other oceanographic research activities that 
employ LF acoustic sources. The cost to ONR and Scripps cannot be fully 
determined at this time but these costs would be incurred through 
implementation of the aerial monitoring program that will be required 
under this proposed rule. Preliminarily, NMFS estimates that the cost 
would be approximately $300,000 during the 5-year program.
    Finally, NMFS agrees with Scripps and ONR that, while direct 
effects on the economy could occur through a reduction in whale-
watching and other tourism if changes in marine mammal abundance or 
behavior occurred, because the Kauai ATOC MMRP demonstrated that no 
overt or obvious short-term change in abundance, distribution, or 
behavior occurred as a result of the ATOC sound transmissions, no 
effects on the economy are anticipated.

Classification

    This action has been determined to be not significant for purposes 
of Executive Order 12866.
    The Assistant General Counsel for Legislation and Regulation of the 
Department of Commerce certified to the Chief Counsel for Advocacy of 
the Small Business Administration, at the proposed rule stage, that 
this rule, if adopted, would not have a significant economic impact on 
a substantial number of small entities since it would apply only to 
Scripps 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 NPAL source on marine 
mammals. Some of the affected contractors may be small businesses, but 
the number involved would not be

[[Page 43458]]

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. Because of this certification, a 
regulatory flexibility analysis is not required.
    Notwithstanding any other provision of law, no person is required 
to respond to nor shall a person be subject to a penalty for failure to 
comply with a collection of information subject to the requirements of 
the Paperwork Reduction Act (PRA) unless that collection of information 
displays a currently valid OMB control number. This proposed rule 
contains collection-of-information requirements subject to the 
provisions of the PRA. This collection has been approved previously by 
OMB under section 3504(b) of the PRA issued under OMB control number 
0648-0151. These requirements include an application for an LOA and an 
annual report on monitoring. Other information requirements in the rule 
are not subject to the PRA since they apply only to a single entity 
and, therefore, are not contained in a rule of general applicability.
    The reporting burden for this collection is estimated to be 
approximately 80 hours, including the time for gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information. It does not include time for monitoring the 
activity.

List of Subjects in 50 CFR Part 216

    Administrative practice and procedure, Imports, Indians, Marine 
mammals, Penalties, Reporting and recordkeeping requirements, 
Transportation.

    August 10, 2001.
William T. Hogarth,
Acting 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 P is added to read as follows:

Subpart P--Taking of Marine Mammals Incidental to Operating A Low 
Frequency Acoustic Source by the North Pacific Acoustic Laboratory

Sec.
216.170 Specified activity and specified geographical region.
216.171 Effective dates.
216.172 Permissible methods of taking.
216.173 Prohibitions.
216.174 Mitigation.
216.175 Requirements for monitoring and reporting.
216.176 Letter of authorization.
216.177 Renewal of a letter of authorization.
216.178 Modifications to a letter of authorization.

Subpart P--Taking of Marine Mammals Incidental to Operating A Low 
Frequency Acoustic Source by the North Pacific Acoustic Laboratory


Sec.  216.170  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the incidental taking 
of small numbers of marine mammals specified in paragraph (b) of this 
section by U.S. citizens engaged in conducting acoustic research using 
a moored, low-frequency acoustic source by the North Pacific Acoustic 
Laboratory off Kauai, Hawaii.
    (b) The incidental harassment of marine mammals under the activity 
identified in paragraph (a) of this section is limited to small numbers 
of the following species: humpback whales (Megaptera novaengliae), fin 
whales (Balaenoptera physalus), blue whales (B. musculus), Bryde's 
whales (B. edeni), minke whales (B. acutorostrata), North Pacific right 
whales (Balaena japonicus), sperm whales (Physeter macrocephalus), 
short-finned pilot whales (Globicephala macrorhynchus), beaked whales 
(Ziphius cavirostris, Berardius bairdi, and Mesoplodon spp.), spinner 
dolphins (Stenella longirostris), spotted dolphins (Stenella 
attenuata), striped dolphins (Stenella coeruleoalba), bottlenose 
dolphins (Tursiops truncatus), rough-toothed dolphins (Steno 
bredanensis), pygmy sperm whales (Kogia breviceps), dwarf sperm whales 
(Kogia simus), killer whales (Orcinus orca), false killer whales 
(Pseudorca crassidens), pygmy killer whales (Feresa attenuata), and 
melon-headed whales (Peponocephala electra). and Hawaiian monk seals 
(Monachus schauinslandi).


Sec.  216.171  Effective dates.

    Regulations in this subpart are effective from September 17, 2001, 
through September 17, 2006.


Sec.  216.172  Permissible methods of taking.

    (a) Under a Letter of Authorization issued pursuant to Secs.  
216.106 and 216.176, the Holder of this Letter of Authorization may 
incidentally, but not intentionally, take marine mammals by harassment 
within the area described in Sec.  216.170(a), provided the activity is 
in compliance with all terms, conditions, and requirements of these 
regulations and the Letter of Authorization.
    (b) The activities identified in Sec.  216.170(a) must be conducted 
in a manner that minimizes, to the greatest extent practicable, any 
adverse impacts on marine mammals and their habitat.


Sec.  216.173  Prohibitions.

    Notwithstanding takings authorized by Sec.  216.170(b) and by a 
Letter of Authorization issued under Secs.  216.106 and 216.176, no 
person in connection with the activities described in Sec.  216.170(a) 
shall:
    (a) Take any marine mammal not specified in Sec.  216.170(b);
    (b) Take any marine mammal specified in Sec.  216.170(b) other than 
by incidental, unintentional harassment;
    (c) Take any marine mammal specified in Sec.  216.170(b) if such 
take results in more than a negligible impact on the species or stocks 
of such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of these regulations or a Letter of Authorization issued 
under Secs.  216.106 and 216.176.


Sec.  216.174  Mitigation.

    As described in the Letter of Authorization issued under Secs.  
216.106 and 216.176., the North Pacific Acoustic Laboratory acoustic 
source must:
    (a) Operate at the minimum duty cycle necessary for conducting 
large-scale acoustic thermometry and long-range propagation objectives.
    (b) Not increase the duty cycle during the months of January 
through April.
    (c) Operate at the minimum power level necessary for conducting 
large-scale acoustic thermometry and long-range propagation objectives, 
but no more than 260 Watts.
    (d) Precede all transmissions from the acoustic source by a 5-
minute ramp-up of the acoustic source's power.


Sec.  216.175  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 Southwest Regional 
Administrator at least 2 weeks prior to commencing monitoring 
activities.
    (b) The Holder of this Authorization must conduct a minimum of 
eight

[[Page 43459]]

surveys each year from February through early April in the area off the 
north shore of Kauai, Hawaii, as specified in the Letter of 
Authorization issued under Secs.  216.106 and 216.176.
    (c) The Holder of this Authorization must, through coordination 
with marine mammal stranding networks in Hawaii, monitor strandings of 
marine mammals to detect long-term trends in stranding and the 
potential relationship to the North Pacific Acoustic Laboratory 
acoustic source.
    (d) Activities related to the monitoring described in paragraphs 
(b) and (c) of this section, or in the Letter of Authorization issued 
under Secs.  216.106 and 216.176 may be conducted without the need for 
a separate scientific research permit.
    (e) In coordination and compliance with marine mammal researchers 
operating under this subpart, at its discretion, the National Marine 
Fisheries Service may place an observer on any aircraft involved in 
marine mammal surveys in order to monitor the impact on marine mammals.
    (f) The holder of a Letter of Authorization must annually submit a 
report to the Director, Office of Protected Resources, National Marine 
Fisheries Service, no later than 120 days after the conclusion of the 
humpback whale aerial survey monitoring program. This report must 
contain all the information required by the Letter of Authorization, 
including the results, if any, of coordination with coastal marine 
mammal stranding networks.
    (g) A final comprehensive report must be submitted to the Director, 
Office of Protected Resources, National Marine Fisheries Service no 
later than 240 days after completion of the final year of humpback 
whale aerial survey monitoring conducted under Sec.  216.175. This 
report must contain all the information required by the Letter of 
Authorization.


Sec.  216.176  Letter of authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time specified in the Letter of Authorization but 
may not exceed the period of validity of this subpart.
    (b) A Letter of Authorization with a period of validity less than 
the period of validity of this subpart may be renewed subject to 
renewal conditions in Sec.  216.177.
    (c) A Letter of Authorization will set forth:
    (1) Permissible methods of incidental taking;
    (2) Authorized geographic area for taking;
    (3) Means of effecting the least practicable adverse impact on the 
species of marine mammals authorized for taking and its habitat; and
    (4) Requirements for monitoring and reporting incidental takes.
    (d) Issuance of a Letter of Authorization will be based on a 
determination that the number of marine mammals taken by the activity 
will be small, and that the number of marine mammals taken by the 
activity, specified in Sec.  216.170(b), as a whole, will have no more 
than a negligible impact on the species or stocks of affected marine 
mammal(s).
    (e) Notice of issuance or denial of a Letter of Authorization will 
be published in the Federal Register within 30 days of a determination.


Sec.  216.177  Renewal of a letter of authorization.

    (a) A Letter of Authorization issued under Sec.  216.106 and Sec.  
216.176 for the activity identified in Sec.  216.170(a) will be renewed 
annually upon:
    (1) Notification to the National Marine Fisheries Service that the 
activity described in the application for a Letter of Authorization 
submitted under Sec.  216.176 will be undertaken and that there will 
not be a substantial modification to the described work, mitigation, or 
monitoring undertaken during the upcoming season;
    (2) Timely receipt of the monitoring reports required under Sec.  
216.175, which have been reviewed by the National Marine Fisheries 
Service and determined to be acceptable;
    (3) A determination by the National Marine Fisheries Service that 
the mitigation, monitoring, and reporting measures required under Secs.  
216.174 and 216.175 and the Letter of Authorization were undertaken and 
will be undertaken during the upcoming period of validity of a renewed 
Letter of Authorization; and
    (4) Renewal of a Letter of Authorization will be based on a 
determination that the number of marine mammals taken by the activity 
continues to be small and that the number of marine mammals taken by 
the activity, specified in Sec.  216.170(b), will have no more than a 
negligible impact on the species or stock of affected marine mammal(s).
    (b) A notice of issuance or denial of a renewal of a Letter of 
Authorization will be published in the Federal Register within 30 days 
of a determination.


Sec.  216.178  Modifications to a letter of authorization.

    (a) In addition to complying with the provisions of Secs.  216.106 
and 216.176, except as provided in paragraph (b) of this section, no 
substantive modification (including withdrawal or suspension) to the 
Letter of Authorization issued pursuant to Secs.  216.106 and 216.176 
and subject to the provisions of this subpart shall be made by the 
National Marine Fisheries Service until after a notification and an 
opportunity for public comment has been provided. For purposes of this 
paragraph, a renewal of a Letter of Authorization under Sec.  216.177 
without modification, except for the period of validity, is not 
considered a substantive modification.
    (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.  216.170(b), a Letter of 
Authorization issued pursuant to Secs.  216.106 and 216.176 may be 
substantively modified without prior notification and an opportunity 
for public comment. Notification will be published in the Federal 
Register within 30 days subsequent to the action.
[FR Doc. 01-20647 Filed 8-16-01; 8:45 am]
BILLING CODE 3510-22-S