Notices. Amendment to Notices of Opportunity To Request Administrative Review of Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation

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BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE International Trade Administration [A-821-802] Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Amendment to the Notices of Opportunity To Request Administrative Review AGENCY: Import Administration, International Trade Administration, Department of Commerce. ACTION: Amendment to Notices of Opportunity To Request Administrative Review of Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation.

SUMMARY: This is an amendment to the notices of “Opportunity to Request Administrative Review of Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation” with respect to Certain Cut-to-Length Carbon Steel Plate from the Russian Federation, that published on October 1, 2004 (69 FR 58889) and on January 3, 2005 (70 FR 74). DATES: *Effective Date:* January 11, 2005. FOR FURTHER INFORMATION CONTACT: Sally Gannon or Jonathan Herzog, Office of Policy and Negotiations, Bilateral Agreements Unit, Import Administration, International Trade Administration, U.S.

Department of Commerce, 14th Street and Constitution Avenue, NW., Washington DC 20230; telephone

(202)482-0162 or

(202)482-4271, respectively. Background On October 1, 2004, the Department of Commerce (“the Department”) published a notice providing the opportunity to request an administrative review of the suspension agreement on Cut-to-Length Steel Plate from the Russian Federation (A-821-808) (“CTL Plate Agreement”). *See Notice of Opportunity to Request Administrative Review of Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation,* 69 FR 58889 (October 1, 2004). However, effective January 23, 2003, the Department signed a new CTL Plate Agreement, which replaced the previous agreement. Therefore, the anniversary month of this suspension agreement should be January, and the previous notice was in error with respect to this case. Thus, the Department is now providing notice of the opportunity to request an administrative review of the CTL Plate Agreement for the period of January 1, 2004 through December 31, 2004. This notice is published in accordance with sections 751(a) of the Tariff Act of 1930, as amended (19 U.S.C. 1675(a)), and 19 CFR 351.221(c)(1)(I). Dated: January 4, 2005. Holly A. Kuga, Senior Office Director, Office 4 for Import Administration. [FR Doc. E5-40 Filed 1-10-05; 8:45 am] BILLING CODE 3510-DS-P DEPARTMENT OF COMMERCE International Trade Administration A-570-506 Porcelain-on-Steel Cooking Ware from the People's Republic of China: Rescission of Antidumping Duty New Shipper Review AGENCY: Import Administration, International Trade Administration, Department of Commerce. SUMMARY: In response to a request from Shanghai Watex Metal Products, Co., Ltd., the Department of Commerce initiated a new shipper review of the antidumping duty order on porcelain-on-steel cooking ware from the People's Republic of China. The period of review is December 1, 2003, through May 31, 2004. For the reasons discussed below, this new shipper review is being rescinded. EFFECTIVE DATE: January 11, 2005. FOR FURTHER INFORMATION CONTACT: Anya Naschak or Benjamin Kong, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC, 20230; telephone:

(202)482-6375 and

(202)482-7907, respectively. SUPPLEMENTARY INFORMATION: Background On September 16, 2004, the Department of Commerce (“the Department”) initiated a new shipper review of Shanghai Watex Metal Products, Co., Ltd. (“Watex”) under the antidumping duty order on porcelain-on-steel cooking ware (“POS”) for the period December 1, 2003, through May 31, 2004. *See Certain Porcelain-On-Steel Cookware from the People's Republic of China: Initiation of New Shipper Antidumping Duty Review* , 69 FR 55795 (September 16, 2004) (“ *Initiation Notice* ”). The Department's initiation of a new shipper review of Watex was based on, among other things, Watex's certification that it was both the exporter and producer of the subject merchandise for which it requested new shipper review. See 19 CFR 351.214(b)(i) and *Initiation Notice* . Relying on the certification provided by Watex, the Department issued instructions to US. Customs and Border Protection (“CBP”) in accordance with section 751(a)(2)(B) of the Tariff Act of 1930, as amended (“the Act”), which allowed, at the option of the importer, the posting, until completion of the review, of a bond or security in lieu of a cash deposit for each entry of the subject merchandise for which Watex was both the producer and exporter. On October 25, 2004, Watex submitted its Section A, C and D Questionnaire 1 response (“Response”) to the Department. In this response, Watex reported for the first time that another company, Shanghai Ping An Enamel Products Co. (“Ping An”), actually produced the subject merchandise that Watex exported to the United States. *See* Response, at page A-2. 1 Section A of the questionnaire requests general information concerning a company's corporate structure and business practices, the merchandise under this investigation that it sells, and the manner in which it sells that merchandise in all of its markets. Section B requests a complete listing of all home market sales, or, if the home market is not viable, of sales in the most appropriate third-country market (this section is not applicable to respondents in non-market economy

(NME)cases). Section C requests a complete listing of U.S. sales. Section D requests information on the factors of production of the merchandise under investigation. Section E requests information on further manufacturing. On November 12, 2004, Columbian Home Products, LLC (“Petitioner”) submitted a letter to the Department requesting that the Department rescind the new shipper review of Watex because Watex failed to provide the proper certification as required by 19 CFR 251.214(b)(2). Petitioner based its rescission request on Watex's incorrect statement in its initial request that it was both the exporter and producer of the subject merchandise and its failure to provide certifications from Ping An in its initial request for a new shipper review. On November 24, 2004, Watex submitted its response to Petitioner's November 12, 2004, request. Watex claimed that it unintentionally omitted the certification from Ping An in its request for review. Watex further stated that the delayed certification neither materially impacted nor prejudiced any party in the review. On November 29, 2004, Petitioner responded to Watex's November 24, 2004, comments, noting that the essential question is not whether the delayed certification had a material impact or prejudiced any party to this case, but rather whether the regulatory requirements for initiating the new shipper review were met, and in this case they were not. On December 6, 2004, the Department notified parties of its intent to rescind the review with respect to Watex because Watex failed to provide in its new shipper review request the necessary certification from the producer or supplier of the subject merchandise. The Department also determined that Watex provided misleading statements in its request for new shipper review and in its certification suggesting it was both the producer and exporter when it in fact was not. Based on these findings, the Department determined that it did not have a sufficient basis to initiate the new shipper review of Watex. *See* “Memorandum to the File: Antidumping New-Shipper Review of Certain Porcelain-on-Steel Cookware from the People's Republic of China: Notification of Intent to Rescind,” dated December 6, 2004 (“Intent to Rescind”). The Department requested comments from interested parties on this issue no later than December 10, 2004. No parties filed any comments in response to the Department's Intent to Rescind of December 6, 2004. Scope of the Order Imports covered by this order are shipments of POS, including teakettles, which do not have self-contained electric heating elements. All of the foregoing are constructed of steel and are enameled or glazed with vitreous glasses. The merchandise is currently classifiable under the Harmonized Tariff Schedule (“HTS”) item number 7323.94.00. The HTS item number is provided for convenience and customs purposes; the written description of the scope remains dispositive. Rescission of Review The Department is rescinding the new shipper review with respect to Watex. As noted above, Watex did not provide the proper certification, pursuant to 19 CFR 351.214(b)(2)(ii)(B), to meet the minimum requirements for entitlement to a new shipper review. In order to meet the minimum requirements for entitlement to a new shipper review, a company that is the exporter but not the producer of the subject merchandise for which it requests review must provide, among other things,

(1)a certification that it did not export subject merchandise to the United States during the POI and

(2)a certification from the person or company which produced or supplied the subject merchandise that the producer or supplier did not export the subject merchandise to the United States during the POI. *See* 19 CFR 351.214(2)(ii)(A) and (B). Watex did not provide a certification in accordance with 19 CFR 351.214(b)(2)(ii)(B), in its initial request, from the producer of subject merchandise that Watex sold or exported to the United States during the POR. Specifically, Watex was required to provide in its review request a certification from Ping An because Ping An produced the merchandise subject to this review, as confirmed by information contained in Watex's Response. Therefore, Watex did not meet the minimum certification requirements for initiation of a new shipper review. A certification from the producer is fundamental to the Department's initiation decision. Since Watex did not provide the certification, the Department has determined that Watex failed to provide all necessary certifications required to initiate and conduct a new shipper review. For these reasons and in accordance with our precedent, the Department is rescinding the new shipper review of the antidumping duty order on POS from the People's Republic of China (“PRC”) with respect to Watex pursuant to 19 CFR 351.214(b)(2). *See, e.g., Certain Preserved Mushrooms from the People's Republic of China: Intent to Rescind Antidumping Duty New Shipper Review* , 68 FR 45792 (August 4, 2003); *Fresh Garlic from the People's Republic of China: Partial Rescission of Antidumping Duty New Shipper Review* , 67 FR 65782 (October 28, 2002). Cash Deposits Bonding is no longer permitted to fulfill security requirements for shipments from Watex of POS from the PRC entered, or withdrawn from warehouse, for consumption in the United States on or after the publication of this notice of rescission of antidumping duty new shipper review in the **Federal Register** . Further, effective upon publication of this notice for all shipments of the subject merchandise exported by Watex and entered, or withdrawn from warehouse, for consumption, the cash-deposit rate will be the PRC-wide rate, which is 66.65 percent. Notification to Interested Parties This notice serves as a reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and subsequent assessment of double antidumping duties.This rescission notice is published in accordance with sections 751(a)(2)(B) and 777(i) of the Act and 19 CFR 351.214. Dated: January 3, 2005. James J. Jochum, Assistant Secretary for Import Administration. [FR Doc. E5-39 Filed 1-10-05; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE International Trade Administration [A-485-805] Certain Small Diameter Carbon and Alloy Seamless Standard, Line, and Pressure Pipe From Romania: Notice of Extension of Time Limit for the Final Results of Antidumping Duty Administrative Review AGENCY: Import Administration, International Trade Administration, Department of Commerce. EFFECTIVE DATE: January 11, 2005. FOR FURTHER INFORMATION CONTACT: David Layton or Erin Begnal, China/NME Unit, Office 8, AD/CVD Enforcement, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone:

(202)482-0371 and

(202)482-1442, respectively. SUPPLEMENTARY INFORMATION: On September 7, 2004, the Department of Commerce (the Department) published in the **Federal Register** the preliminary results of the administrative review of the antidumping duty order on certain small diameter carbon and alloy seamless standard, line, and pressure pipe from Romania. *See Certain Small Diameter Carbon and Alloy Seamless Standard, Line, and Pressure Pipe From Romania: Preliminary Results and Partial Rescission of Antidumping Duty Administrative Review and Preliminary Determination Not To Revoke in Part* , 69 FR 54119 (September 7, 2004) ( *Seamless Pipe Preliminary Results* ). Pursuant to section 751(a)(3)(A) of the Tariff Act of 1930, as amended (the Act), the final results are currently due on January 5, 2005. Extension of Time Limit for Final Results Pursuant to section 751(a)(3)(A) of the Act,, the Department may extend the deadline for completion of the final results of an administrative review if it determines that it is not practicable to complete the final results within the statutory time limit of 120 days from the date on which the preliminary results were published. The Department has determined that due to the complexity of the issues arising from Romania's graduation to market economy status during the review period, it is not practicable to complete this review within the time limits mandated by section 751(a)(3)(A) of the Act and section 19 CFR 351.213(h)(1) of the Department's regulations. Therefore, the Department is extending the time limit for the completion of these final results by 30 days. Accordingly, the final results of this review will now be due on February 4, 2005. This notice is published in accordance with section 751(a)(3)(A) of the Act and section 19 CFR 351.213(h)(2) of the Department's regulations. Dated: January 5, 2005. Barbara E. Tillman, Acting Deputy Assistant Secretary for Import Administration. [FR Doc. E5-61 Filed 1-10-05; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE International Trade Administration [A-583-816] Certain Stainless Steel Butt-Weld Pipe Fittings From Taiwan: Final Results and Final Rescission in Part of Antidumping Duty Administrative Review AGENCY: Import Administration, International Trade Administration, Department of Commerce. SUMMARY: On July 7, 2004, the Department of Commerce (“Department”) published in the **Federal Register** the preliminary results of the administrative review of the order on certain stainless steel butt-weld pipe fittings from Taiwan. *See Certain Stainless Steel Butt-Weld Pipe Fittings From Taiwan: Preliminary Results of Antidumping Duty Administrative Review and Notice of Intent To Rescind in Part,* 69 FR 40859 (July 7, 2004) (“ *Preliminary Results* ”). This review covers one manufacturer/exporter of the subject merchandise. The period of review (“POR”) is June 1, 2002, through May 31, 2003. We gave interested parties an opportunity to comment on the preliminary results. Based upon our analysis of the comments received, we have made no changes in the margin calculation. Therefore, the final results have not changed from the *Preliminary Results* of this review. The final weight-averaged dumping margin is listed below in the section titled “Final Results of the Review.” EFFECTIVE DATE: January 11, 2005. FOR FURTHER INFORMATION CONTACT: Irene Gorelik or Alex Villanueva, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue, NW., Washington, DC 20230, telephone

(202)482-6905 or

(202)482-3208, respectively, fax

(202)482-9089. SUPPLEMENTARY INFORMATION: Background The Department's preliminary results of review were published on July 7, 2003. *See Preliminary Results.* We invited parties to comment on the *Preliminary Results.* We received written comments on August 13, 2004, from Petitioners 1 and from Ta Chen Stainless Pipe Co., Ltd. (“Ta Chen”) and its wholly owned subsidiary Ta Chen International, Inc. (“TCI”). On August 20, 2004, we received rebuttal comments from Petitioners and Ta Chen. On October 20, 2004, the Department extended the final results of this review by 45 days until December 19, 2003. *See Certain Stainless Steel Butt-Weld Pipe Fittings From Taiwan: Extension of Final Results of Antidumping Duty Administrative Review,* 69 FR 61649, (October 20, 2004). On December 16, the Department fully extended the final results by the remaining 15 days, or until January 3, 2005. *See Certain Stainless Steel Butt-Weld Pipe Fittings from Taiwan: Extension of Final Results of Antidumping Duty Administrative Review,* 69 FR 75305, (December 16, 2004). The Department is conducting this administrative review in accordance with section 751 of the Tariff Act of 1930, as amended (“the Act”). 1 Petitioners in this administrative review are Flowline Division of Markovitz Enterprise, Inc., Shaw Allow Piping Products, Inc., Gerlin, Inc., and Taylor Forge Stainless, Inc. Scope of the Order The products subject to this order are certain stainless steel butt-weld pipe fittings, whether finished or unfinished, under 14 inches inside diameter. Certain welded stainless steel butt-weld pipe fittings (“pipe fittings”) are used to connect pipe sections in piping systems where conditions require welded connections. The subject merchandise is used where one or more of the following conditions is a factor in designing the piping system:

(1)Corrosion of the piping system will occur if material other than stainless steel is used;

(2)contamination of the material in the system by the system itself must be prevented;

(3)high temperatures are present;

(4)extreme low temperatures are present; and

(5)high pressures are contained within the system. Pipe fittings come in a variety of shapes, with the following five shapes the most basic: “elbows”, “tees”, “reducers”, “stub ends”, and “caps.” The edges of finished pipe fittings are beveled. Threaded, grooved, and bolted fittings are excluded from this review. The pipe fittings subject to this review are classifiable under subheading 7307.23.00 of the Harmonized Tariff Schedule of the United States (“HTSUS”). Although the HTSUS subheading is provided for convenience and customs purposes, our written description of the scope of this review is dispositive. Pipe fittings manufactured to American Society of Testing and Materials specification A774 are included in the scope of this order. Partial Rescission of Review In the *Preliminary Results,* the Department issued a notice of intent to rescind the review with respect to Liang Feng Stainless Steel Fitting Co., Ltd. (“Liang Feng”), Tru-Flow Industrial Co., Ltd. (“Tru-Flow”), and PFP Taiwan Co., Ltd. (“PFP”) as we found that there were no entries of subject merchandise during the POR. *See Preliminary Results* at 40861. The Department received comments on this issue concerning Liang Feng and Tru-Flow. However, we continue to find that rescission of the review concerning Liang Feng, Tru-Flow and PFP is appropriate. Therefore, the Department is rescinding the review with respect to Liang Feng, Tru-Flow, and PFP. Analysis of Comments Received All issues raised in the case briefs, as well as the Department's findings, in this administrative review are addressed in the *Issues and Decision Memorandum for the Administrative Review of Stainless Steel Butt-Weld Pipe Fittings from Taiwan,* (“ *Decision Memorandum* ”), dated January 3, 2005, which is hereby adopted by this notice. A list of the issues raised and to which we have responded, all of which are in the *Decision Memorandum,* is attached to this notice as Appendix I. Parties can find a complete discussion of all issues raised in this review and the corresponding recommendations in this public memorandum which is on file at the U.S. Department of Commerce, in the Central Records Unit, in room B-099. In addition, a complete version of the *Decision Memorandum* can be accessed directly on the Web at *www.ia.ita.doc.gov.* 2 2 The paper copy and electronic version of the public version of the *Decision Memorandum* are identical in content. Sales Below Cost in the Home Market As discussed in more detail in the *Preliminary Results,* the Department disregarded home market below-cost sales that failed the cost test in the final results of review. Changes Since the Preliminary Results A list of the issues which parties have raised and to which we have responded, all of which are in the *Decision Memorandum,* is attached to this notice as Appendix I. Based on our analysis of the comments received, we have made no changes in the margin calculation. Final Results of the Review We determine that the following percentage weighted-average margin exists for the period June 1, 2002, through May 31, 2003: Certain Stainless Steel Butt-Weld Pipe Fittings From Taiwan Producer/ manufacturer/exporter Weighted-average margin (percent) Ta Chen Stainless Pipe Co., Ltd 5.08 Assessment Rates The Department will determine, and U.S. Customs and Border Protection (“CBP”) shall assess, antidumping duties on all appropriate entries. In accordance with 19 CFR 351.212(b)(1), we have calculated an importer-specific assessment rate for merchandise subject to this review. The Department will issue appropriate assessment instructions directly to CBP within 15 days of publication of these final results of review. We will direct CBP to assess the resulting assessment rates against the entered customs values for the subject merchandise on each of the importer's entries during the review period. For duty assessment purposes, we calculated importer-specific assessment rates by dividing the dumping margins calculated for each importer by the total entered value of sales for each importer during the POR. Cash Deposit Requirements In accordance with section 751(a)(1) of the Act, the following deposit requirements will be effective upon publication of this notice of final results of administrative review for all shipments of certain stainless steel butt-weld pipe fittings from Taiwan entered, or withdrawn from warehouse, for consumption on or after the date of publication:

(1)The cash deposit rate for Ta Chen will be the rate shown above;

(2)for previously reviewed or investigated companies not listed above, the cash deposit rate will continue to be the company-specific rate published for the most recent period;

(3)if the exporter is not a firm covered in this review, a prior review, or the original less-than-fair-value

(LTFV)investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recent period for the manufacturer of the merchandise; and

(4)the cash deposit rate for all other manufacturers shall continue to be 51.01 percent. These deposit requirements shall remain in effect until publication of the final results of the next administrative review. Notification of Interested Parties This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties. This notice also serves as the only reminder to parties subject to administrative protective orders (“APO”) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 C.F.R. 351.305. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction. We are issuing and publishing this determination and notice in accordance with sections 751(a)(1) and 777(i) of the Act. Dated: January 3, 2005. James J. Jochum, Assistant Secretary for Import Administration. Appendix I—List of Issues for Discussion Comment 1: Adverse Facts Available (“AFA”) for the Emerdex Companies 3 3 The Department will address all the Emerdex companies within this comment: Emerdex Stainless Flat Roll Products (“Emerdex 1”), Emerdex Stainless Steel (“Emerdex 2”), Emerdex Group, Inc. (“Emerdex 3”) and Emerdex Shutters (“Emerdex 4”). Comment 2: Partial AFA for Dragon Stainless Inc. (“Dragon Stainless”) Selling Expenses Comment 3: Whether To Apply Total AFA for Ta Chen Comment 4: Constructed Export Price (“CEP”) Offset and Level of Trade (“LOT”) Comment 5: CEP Profit Comment 6: Date of Sale for Home and U.S. Market Sales Comment 7: Overstated Home Market Packing Expenses Comment 8: Short-Term Borrowing Comment 9: Total AFA for Liang Feng and Tru-Flow [FR Doc. E5-62 Filed 1-10-05; 8:45 am] BILLING CODE 3510-22-P 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 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 *AcousticEIS.Comments@noaa.gov* 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. 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 dB rms re: 1μPa 160 dBrms re: 1μPa (impulse) 120 dBrms re: 1μPa (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: 1μPa) (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 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 μPa) 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 dB rms re: 1μPa 160 dB rms re: 1μPa (impulse) 120 dB rms re: 1μPa (continuous) II Both criteria variable depending on environment III 195 dB re: 1μPa 2

(s)160 dB rms re: 1μPa IV 209 dB re: 1μPa 2

(s)189 dB re: 1μPa 2

(s)V 215 dB re: 1μPa 2

(s)195 dB re: 1μPa 2

(s)VI 221 dB re: 1μPa 2

(s)209 dB re: 1μPa 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: 1μPa2(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: 1μPa 2 (s)) plus 20 dB to equal PTS onset (215 dB re: 1μPa2(s)) minus 6 dB, or 209 dB re: 1μPa 2 (s). The Level B harassment criterion for Alternative IV is estimated TTS onset (195 dB re: 1μPa 2 (s)) minus 6 dB, or 189 dB re: 1μPa 2 (s). For Alternative V, the Level A harassment criterion is the estimated PTS onset (215 dB re: 1μPa2(s) as described above) and the Level B harassment criterion is estimated TTS onset (195 dB re: 1μPa 2 (s)). In Alternative VI, the Level A harassment criterion is 6 dB above estimated PTS onset (or 221 dB re: 1μPa2(s)) while the Level B harassment criterion is 6 dB below estimated PTS onset (or, 209 dB re: 1μPa 2 (s)). 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]

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