[Federal Register Volume 70, Number 7 (Tuesday, January 11, 2005)]
[Notices]
[Pages 1871-1875]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-525]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

I.D. 060804F


Endangered Fish and Wildlife; Notice of Intent to Prepare an 
Environmental Impact Statement

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA).

ACTION: Notice of Public Scoping and Intent (NOI) to prepare an 
Environmental Impact Statement (EIS); request for written comments.

-----------------------------------------------------------------------

SUMMARY: NMFS will be preparing an EIS to analyze the potential impacts 
of applying new criteria in guidelines to determine what constitutes a 
``take'' of a marine mammal under the Marine Mammal Protection Act 
(MMPA) and Endangered Species Act (ESA) as a result of exposure to 
anthropogenic noise in the marine environment. This notice describes 
the proposed action and possible alternatives and also describes the 
proposed scoping process.

DATES: NMFS will hold 4 public meetings to obtain comments on the scope 
of issues to be addressed in the EIS. The locations of the meetings are 
San Francisco, CA; Seattle, WA; Boston, MA; and Silver Spring, MD. See 
Supplementary Information for

[[Page 1872]]

meetings dates and locations. In addition to obtaining comments in the 
public scoping meetings, NMFS will also accept written and electronic 
comments. Comments must be received by March 14, 2005.

ADDRESSES: Written comments on the scope of the EIS and requests to 
participate in the public scoping meetings should be submitted to P. 
Michael Payne, Chief, Marine Mammal Conservation Division, Office of 
Protected Resources, NMFS (F/PR2), 1315 East-West Highway, Silver 
Spring, MD 20910. Written comments may also be submitted by email to 
[email protected] or by facsimile (fax) to (301) 427-2581. 
Include in the subject line the following identifier: I.D. 060804F.

FOR FURTHER INFORMATION CONTACT: Brandon Southall, Office of Protected 
Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910; 
Telephone (301) 713-2322. Additional information is available at 
(www.nmfs.noaa.gov/prot_res/PR2/Acoustics_Program). For information 
regarding the EIS process, contact Michael Payne at the above 
referenced contact information.

SUPPLEMENTARY INFORMATION:

Meetings Dates and Locations

    The San Francisco, CA scoping meeting: January 18, 2005, 5 p.m. - 8 
p.m. The meeting location is Hilton Fisherman's Wharf, 2620 Jones 
Street, San Francisco, CA, 94133,
    telephone: 415-885-4700.
    The Seattle, WA scoping meeting: January 20, 2005,
    5p.m. - 8p.m. The meeting location is NOAA's Western Regional 
Center, Building 9 Auditorium, 7600 Sand Point Way NE, Seattle, WA, 
98115.
    The Boston, MA scoping meeting: January 25, 2005,
    5p.m. - 8p.m. The meeting location is the New England Aquarium, 
Conference Center, Central Wharf, Boston, MA 02110.
    The Silver Spring, MD scoping meeting: January 27, 2005, 5p.m. - 
8p.m. The meeting location is the NOAA's Auditorium, 1301 East West 
Highway, Silver Spring, MD 20910.

Background

    Section 3(18)(A) of the MMPA defines ``harassment'' as:
    ...any act of pursuit, torment, or annoyance which (i) has the 
potential to injure a marine mammal or marine mammal stock in the 
wild [Level A harassment]; or (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 
[Level B harassment].
    The National Defense Authorization Act, enacted in November 2003, 
altered the definition of marine mammal harassment for ``military 
readiness activities'' and ``scientific research activities conducted 
by or on behalf of the Federal Government consistent with section 104 
(c)(3)'' of the MMPA, as follows:
    (i) any act that injures or has the significant potential to 
injure a marine mammal or marine mammal stock in the wild [Level A 
harassment];
    (ii) any act that disturbs or is likely to disturb a marine 
mammal or marine mammal stock in the wild by causing disruption of 
natural behavioral patterns, including, but not limited to, 
migration, surfacing, nursing, breeding, feeding, or sheltering, to 
a point where such behavioral patterns are abandoned or 
significantly altered [Level B harassment].
    NMFS has been using generic sound exposure thresholds since 1997 to 
determine when an activity in the ocean that produces sound might 
result in impacts to a marine mammal such that a take by harassment 
might occur (an 'acoustic' take). NMFS is developing new science-based 
thresholds to improve and replace the current generic exposure level 
thresholds that have been used since 1997.

Proposed Action

    NMFS will be proposing to replace the current Level A and Level B 
harassment thresholds with guidelines based on exposure characteristics 
that are derived from empirical data and are tailored to particular 
species groups and sound types. These guidelines will identify 
exposures levels and durations that may produce either temporary or 
permanent shifts in hearing sensitivity thereby providing a more 
scientific basis for defining the threshold levels that might result in 
marine mammal harassment. Such information would be of use to industry 
(oil and gas, marine construction), researchers, academic, government, 
military and shipping activities.
    As currently envisioned, the noise exposure guidelines would be 
based on the following sets of criteria. They would divide marine 
mammals into five functional hearing groups: low-frequency cetaceans 
(all mysticetes or baleen whales); mid-frequency cetaceans (all 
odontocete species (dolphins and porpoises) not included in the low or 
high frequency groups); high-frequency cetaceans (harbor and Dall s 
porpoise, river dolphins); pinnipeds under water (seals, fur seals and 
sea lions); and pinnipeds out of water. Each of the functional hearing 
groups has somewhat different hearing capabilities. Consequently, 
frequency-specific thresholds are being developed based on what is 
known about these differences.
    The criteria would also categorize all anthropogenic sounds into 
four different types: single pulses (brief sounds with a fast rise 
time); single non-pulses (all other sounds); multiple pulses in a 
series; and multiple non-pulses in a series. Each of the five 
functional hearing groups would then be paired against the four sound 
types resulting in a matrix of values. These values would represent the 
noise-exposure criteria that NMFS would use, at least in part, to guide 
determinations of when an anthropogenic sound results in an acoustic 
``take'' by harassment under the MMPA or ESA for each of the different 
marine mammal hearing groups. All threshold values would be expressed 
in terms of either a sound pressure level value that the animal 
receives, or as a measure of exposure that incorporates both sound 
pressures and time as a dimension where it is appropriate. This is 
referred to as the sound exposure, or energy flux density level. Energy 
levels are not directly comparable to pressure levels because of the 
time dimension.
    A number of assumptions will be made in developing the acoustic 
matrix of threshold levels. For example, in most cells within the 
matrix, the criteria assume that all species in a functional hearing 
group have the same threshold apply to all species in the group. In 
reality, some species are so different from others in their functional 
hearing group that separate threshold criteria are appropriate for 
them. Further, there are no direct data on the effects of many kinds of 
sounds on many species of marine mammals. For now, therefore, it is 
necessary to extrapolate making reasonably conservative criteria from 
existing data to cover cases of missing data. An example of an 
extrapolation is the use of data from dolphins or beluga whales for 
other cetaceans. Most data on the effects of noise on marine mammals 
come from mid-frequency dolphins, especially bottlenose dolphins and 
beluga whales. The results of studies on these species are applied 
directly to low- and high-frequency cetaceans (for which data are 
sparse or non existent) without adjustment. This substitution is likely 
conservative for low frequency cetaceans because the mid-frequency 
cetacean ear is almost certainly more sensitive. The substitution is 
also likely satisfactory for high-frequency cetaceans. In the absence 
of data for marine mammals, in some cases, data from terrestrial 
mammals are used in determining exposure criteria.

[[Page 1873]]

Purpose of the Action

    NMFS will prepare an EIS to assess the potential impacts of the 
proposed framework for developing and implementing science-based 
acoustic Atake@ criteria. The EIS will analyze the potential 
environmental impacts resulting from implementation of the proposed 
noise exposure criteria to determine acoustic-based harassment of 
marine mammals, and alternative noise exposure criteria.
    The areas of interest for evaluation of environmental and 
socioeconomic effects will be U.S. and international waters.

Use of the Noise Exposure Criteria

    The noise exposure criteria would be used to inform NMFS guidelines 
as to what characteristics of human sound exposure (e.g., exposure 
frequency, level, and duration) might result in harassment and 
constitute a Atake@ under the MMPA and ESA. For example, an acoustic 
``take'' might be considered to have occurred whenever the sound that 
the animal receives exceeds the exposures defined by the criteria. The 
noise exposure criteria would also provide guidance with respect to 
what type of take might result from exposure to sound - one for Level A 
harassment and one for Level B harassment.

Scope of the Action

    The scope of the EIS will identify and evaluate all relevant 
impacts, conditions, and issues associated with the proposed framework 
for the development and implementation of these criteria, and 
alternatives, in accordance with Council on Environmental Quality=s 
(CEQ) Regulations at 40 CFR parts 1500 - 1508, and NOAA=s procedures 
for implementing NEPA found in NOAA Administrative Order (NAO) 216-6, 
Environmental Review Procedures for Implementing the National 
Environmental Policy Act, dated May 20, 1999.
    The EIS will analyze the potential environmental impacts of 
implementation of the proposed framework and noise exposure criteria to 
determine acoustic ``takes'' of marine mammals, and alternative 
frameworks for developing and implementing noise exposure criteria. The 
EIS must meet the requirements of NEPA and the analyses must also 
document compliance with the related environmental impact analysis 
requirements of other statutes and executive orders. These include, but 
are not limited to, the MMPA, Coastal Zone Management Act, ESA, and the 
Magnuson-Stevens Fishery Conservation and Management Act.

Alternatives

    The EIS will consider several alternatives for determining the 
acoustic threshold at which both Level A and Level B harassment takes 
might occur: 1) maintaining the status quo (the no action alternative); 
2) using a precautionary approach and very conservative interpretations 
of data on marine mammals based on considering human noise exposures 
relative to ambient noise conditions; 3) defining a Level A harassment 
take as that exposure which results in a temporary shift in hearing 
sensitivity (TTS) and a Level B harassment take as that exposure 
estimated to result in a 50 percent behavioral avoidance for each 
species or group of species; 4) defining Level A harassment take as 
that exposure which results in a Permanent Threshold Shift (PTS) minus 
6 decibels (dB) and defining a Level B harassment take as a level 6 dB 
below that exposure estimated to causes TTS; 5) defining a Level A 
harassment take as noise exposure consistent with estimated PTS onset 
and a level B harassment take as TTS onset; and 6) defining a Level A 
harassment take as occurring at the PTS onset plus 6 dB and level B 
harassment take as 6 dB below the estimated point of PTS onset (see 
Table 1).

                                            Table 1: Acoustic Criterion for each of the Proposed Alternatives
--------------------------------------------------------------------------------------------------------------------------------------------------------
                           Alternative                                         Level A Criterion                           Level B Criterion
--------------------------------------------------------------------------------------------------------------------------------------------------------
                  I (Status Quo)                                                     180 dBrms re: 1microPa            160 dBrms re: 1microPa (impulse)
                                                                                                                    120 dBrms re: 1microPa (continuous)
                  II                                                                        Highest average      lowest possible natural ambientambient
                  III                                                                             TTS Onset                    50% Behavioral Avoidance
                  IV                                                                          PTS Onset-6dB                               TTS Onset-6dB
                  V                                                                               PTS Onset                                   TTS Onset
                  VI                                                                          PTS Onset+6dB                               PTS Onset-6dB
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Alternative I: A no action alternative would perpetuate the use of 
the existing thresholds for Level A harassment (sound pressure level of 
180 dBrms re: 1microPa) (hereafter dB SPL), and Level B harassment (160 
dB SPL for impulse noise and 120 dB SPL for continuous sound) that have 
been used for the past six years. The advantages of this alternative 
are that the public is familiar with this approach, and safety zones 
can easily be calculated from standard sound propagation models. A 
disadvantage is that this considers only the sound pressure level of an 
exposure but not its other attributes, such as duration, frequency, or 
repetition rate, all of which are critical for assessing impacts on 
marine mammals. For example, a sound of 181 dB SPL lasting for two 
seconds would be identified as a Level A harassment take, but a 
potentially more harmful sound of 179 dB SPL lasting two days is 
currently considered a Level B harassment take. It also assumes a 
consistent relationship between rms (root-mean-square) and peak 
pressure values for impulse sounds, which is known to be inaccurate 
under certain (many) conditions.
    Alternative II: A second alternative is based on very conservative 
behavioral response data for marine mammals. Under this alternative 
takes would occur at the SPL at which the most sensitive species first 
begin to show a behavioral response. Level A harassment would occur if 
the received noise from a human source exceeded the highest average 
ambient noise level in the area of operation. Level B harassment would 
occur if the received noise from a human source exceeded the lowest 
possible ambient noise condition. Criteria based largely on behavioral 
responses to noise just above ambient level would be extremely 
conservative. Under this alternative, a behavioral response may, and 
behavioral avoidance would, constitute Level B harassment.
    Alternative III: A third alternative would define a Level A 
harassment take as occurring at that level of exposure which results in 
a temporary loss of hearing sensitivity (TTS) but which is fully 
recoverable. This approach is also conservative because scientific 
experts in this field do not consider TTS to

[[Page 1874]]

result in harm or injury because no irreversible cell damage is 
involved. A Level B harassment take would be defined as that level of 
noise exposure known or estimated to result in 50 percent behavioral 
avoidance of a sound source for each species or animal group. There are 
a small number of these types of empirical data available for certain 
conditions, but some of the level B criteria constructed in this manner 
would require extrapolations and assumptions, particularly in the above 
context of how biological significance is defined. Generally this 
alternative would be less conservative than the previous alternative.
    Alternative IV: A fourth alternative would determine that a Level A 
harassment take occurs at that level of noise exposure which results in 
a permanent loss of hearing sensitivity (PTS) due to non-recoverable 
cell damage, minus some ``safety'' factor. This alternative would be 
more conservative than federal workplace standards for humans which 
permit exposures that result in some degree of PTS over a lifetime for 
some individuals. A doubling of absolute sound pressure magnitude (in 
microPa) represents a 6 dB increase in SPL. A proposed ``safety'' 
factor to ensure that exposures do not result in permanent injury is to 
set the Level A harassment criteria 6 dB below that noise exposure 
estimated to cause PTS onset for each animal group. The proposed Level 
B harassment take criteria for alternative 4 are those exposures 
resulting in TTS onset minus a ``safety'' factor of 6 dB.
    Alternative V: A fifth alternative defines a Level A harassment 
take as noise exposures estimated to result in PTS onset and Level B 
harassment take as noise exposures consistent with TTS onset for each 
animal group. This alternative would allow Level A harassment criteria 
levels that are higher than either TTS (Alternative III) or PTS minus 
some safety factor (Alternative IV); Level A harassment criteria would 
be based on those exposures that are believed to result in irreversible 
tissue damage. The Level B harassment criteria under Alternative V 
would set the take threshold slightly higher than Alternative IV but 
considerably below those in Alternative 6.
    Alternative VI: A sixth alternative defines a Level A harassment 
take based on estimated PTS onset (as in Alternatives 4 and 5), but 
requires a higher probability of exposed animals experiencing a 
meaningful change in hearing sensitivity above merely the onset of 
tissue injury, such as 6 dB of PTS. Under Alternative VI, Level B 
harassment take would be defined as exposures estimated as 6 dB below 
those required to cause PTS onset. This alternative would result in 
noise threshold levels that are greater than any of the other proposed 
alternatives.
    The noise exposure criteria are based on research available for all 
species of marine mammals, plus some data from terrestrial mammals and 
humans. Using data from one species of mammals to set criteria for 
another species is acceptable for injury because the anatomy of the 
inner ear of all mammals is extremely similar. As an example, certain 
human hearing standards are based in part on extrapolations from the 
effects of noise on the chinchilla ear. Table 2 provides an example of 
noise exposure criteria that would result under each of the proposed 
alternatives for gray whales. Gray whales were selected as an example 
because some data on behavioral reactions exist and are used (in 
Alternative III), but setting criteria based on TTS or PTS rely on 
extrapolations from other cetacean species (Alternatives III-VI). The 
use of direct information combined with reasonable extrapolation is 
representative of how such criteria would be established under any of 
the alternatives.

        Table 2: Example of Noise Exposure Criteria for Gray Whales for each of the Proposed Alternatives
----------------------------------------------------------------------------------------------------------------
                     Alternative                            Level A Criterion             Level B Criterion
----------------------------------------------------------------------------------------------------------------
                  I                                        180 dBrms re: 1microPa        160 dBrms re: 1microPa
                                                                                                      (impulse)
                                                                                         120 dBrms re: 1microPa
                                                                                                   (continuous)
                  II                                       Both criteria variable      depending on environment
                  III                                   195 dB re: 1microPa\2\(s)        160 dBrms re: 1microPa
                  IV                                    209 dB re: 1microPa\2\(s)     189 dB re: 1microPa\2\(s)
                  V                                     215 dB re: 1microPa\2\(s)     195 dB re: 1microPa\2\(s)
                  VI                                    221 dB re: 1microPa\2\(s)     209 dB re: 1microPa\2\(s)
----------------------------------------------------------------------------------------------------------------

    Alternative I indicates the status quo criteria already in place. 
Alternative II criteria are established based on ambient noise 
conditions experienced by animals in the area of operation. Since these 
conditions may be dominated by either natural or human noise and are 
quite variable depending on many spatial and temporal factors, the 
criteria for determining both Level A and Level B harassment are 
variable depending on the operational environment.In Alternative III, 
the Level A criterion is set at noise exposures estimated to cause TTS 
[195 dB re: 1microPa2(s). This is the estimated point of TTS onset for 
cetaceans based on Finneran et al. (2002)]. For Alternative III, Level 
B criteria are based on behavioral avoidance data for migrating gray 
whales (Malme et al., 1983; 1984). These are, in fact, the same data 
upon which the status quo (Alternative I) Level B data are based.
    An additional extrapolation is made in Alternative IV to estimate 
PTS. The level of noise exposure required to induce PTS in marine 
mammals is unknown, but may be estimated using the TTS onset data and 
extrapolations based on terrestrial mammals. Using the slope of the 
function relating increases in noise exposure and TTS, and using a 
relatively conservative estimate of PTS as 40 dB of TTS, it is 
estimated that an additional 20 dB of noise exposure is required above 
TTS onset to induce PTS. Thus, for Alternative IV, the Level A 
harassment criterion is estimated TTS onset (195 dB re: 1microPa\2\(s)) 
plus 20 dB to equal PTS onset (215 dB re: 1microPa2(s)) minus 6 dB, or 
209 dB re: 1microPa\2\(s). The Level B harassment criterion for 
Alternative IV is estimated TTS onset (195 dB re: 1microPa\2\(s)) minus 
6 dB, or 189 dB re: 1microPa\2\(s).
    For Alternative V, the Level A harassment criterion is the 
estimated PTS onset (215 dB re: 1microPa2(s) as described above) and 
the Level B harassment criterion is estimated TTS onset (195 dB re: 
1microPa\2\(s)). In Alternative VI, the Level A harassment criterion is 
6 dB above estimated PTS onset (or 221 dB re: 1microPa2(s)) while the 
Level B harassment criterion is 6 dB below estimated PTS onset (or, 209 
dB re: 1microPa\2\(s)).

[[Page 1875]]

Public Involvement and the Scoping Process

    NMFS' intent is to afford an opportunity for the public, including 
interested citizens and environmental organizations; any affected low-
income or minority populations; affected local, state and Federal 
agencies; and any other agencies with jurisdiction or special expertise 
concerning the environmental impacts to be addressed in the EIS to 
participate in this process.
    NMFS will hold public scoping meetings and accept oral and written 
comments (See ADDRESSES) to determine the issues of concern with 
respect to practical considerations involved in applying these criteria 
and to determine whether NMFS is addressing the appropriate range of 
alternatives. In addition to comments on other aspects of the scope of 
this EIS, NMFS is particularly interested in comments regarding real-
world application of the science-based noise exposure criteria. The 
public, as well as Federal, state, and local agencies, are encouraged 
to participate in this scoping process. The dates and locations of 
these meetings appear in this Federal Register notice (See 
SUPPLEMENTARY INFORMATION).
    NMFS is also seeking written comments on the scope of issues that 
should be addressed in the EIS. The agency also invites the public to 
submit data, new information, and comments by e-mail, mail, or fax (See 
ADDRESSES) identifying relevant environmental and socioeconomic issues 
to be addressed in the environmental analysis.

    Dated: January 6, 2005.
P. Michael Payne,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 05-525 Filed 1-6-05; 3:17 pm]
BILLING CODE 3510-22-S