cartome.org

19 March 2001

Source: http://www.access.gpo.gov/su_docs/aces/fr-cont.html

    [Federal Register: March 19, 2001 (Volume 66, Number 53)]
    [Proposed Rules]
    [Page 15375-15394]
    From the Federal Register Online via GPO Access [wais.access.gpo.gov]
    [DOCID:fr19mr01-23]

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    DEPARTMENT OF COMMERCE

    National Oceanic and Atmospheric Administration

    50 CFR Part 216

    [Docket No. 990927266-0240-02;
    I.D. 072699A]
    RIN 0648-AM62

    Taking and Importing Marine Mammals; Taking Marine Mammals
    Incidental to Navy Operations of Surveillance Towed Array Sensor System
    Low Frequency Active Sonar

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

    ACTION: Proposed rule; request for comment.

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    SUMMARY: NMFS has received an application from the U.S. Navy requesting
    a Letter of Authorization (LOA) for the take of small numbers of marine
    mammals by harassment incidental to Navy operations of the Surveillance
    Towed Array Sensor System (SURTASS) Low Frequency Active (LFA) Sonar.
    By this document, NMFS is proposing regulations to govern that take. In
    order to issue the LOA and issue final regulations governing the take,
    NMFS must determine that the taking will have a negligible impact on
    the affected species and stocks of marine mammals, will (if appropriate
    through implementation of appropriate mitigation measures) be at the
    lowest level practicable, and will not have an unmitigable adverse
    impact on the availability of the species or stock(s) for subsistence
    uses. NMFS invites comment on the application, and the regulations.

    DATES: Comments must be postmarked no later than May 3, 2001. A
    petition requesting NMFS to hold a public hearing must be submitted no
    later than April 3, 2001. Comments will not be accepted if submitted
    via e-mail or the Internet.
        Comments regarding the burden-hour estimate or any other aspect of
    the collection of information requirement 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.

    ADDRESSES: Comments should be addressed 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. A copy of the application, a list of references used in
    this document and a list of principal commenters on this action, are
    available and may be obtained by writing to this address or by
    telephoning the contact listed here (see FOR FURTHER INFORMATION
    CONTACT).

    FOR FURTHER INFORMATION CONTACT: Kenneth R. Hollingshead (301) 713-
    2322, ext. 128.

    SUPPLEMENTARY INFORMATION:

    Background

        Section 101(a)(5)(A) of the Marine Mammal Protection Act (MMPA) (16
    U.S.C. 1361 et seq.) 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 are
    issued.
        Permission may be granted for periods of 5 years or less if the
    Secretary finds that the taking will be small, have a negligible impact
    on the species or stock(s) of affected marine mammals, and will not
    have an unmitigable adverse impact on the availability of the species
    or stock(s) for subsistence uses, and if regulations are prescribed
    setting forth the permissible methods of taking and the requirements
    pertaining to the monitoring and reporting of such taking.

    [[Page 15376]]

    Summary of Request

        On August 12, 1999, NMFS received an application from the U.S. Navy
    requesting a small take exemption under section 101(a)(5)(A) of the
    MMPA for the taking of marine mammals incidental to operation of the
    SURTASS LFA sonar for a period of time not to exceed 5 years, beginning
    in FY 2000. SURTASS LFA sonar will operate a maximum of 4 ship systems
    in the 10 geographic operating regions in which SURTASS LFA sonar could
    potentially operate. There would be a maximum of four SURTASS LFA sonar
    systems with a nominal maximum of two systems at sea at any one time.

    Description of the Activity

        The SURTASS LFA sonar system is a long-range, low frequency
    (between 100 and 500 Hertz) sonar that has both active and passive
    components. It does not rely on detection of noise generated by the
    target. The active component of the system is a set of low frequency
    (LF) acoustic transmitting source elements (called projectors)
    suspended from a cable from underneath a ship. The projectors are
    devices that produce the active sound or pulse.
        The purpose of SURTASS LFA sonar is to provide the Navy with a
    reliable and dependable system for long-range detection of quieter,
    harder-to-find submarines. LF sound travels in seawater more
    effectively and for greater distances than higher frequency sound used
    by most other active sonars. The SURTASS LFA sonar system would meet
    the Navy's need for improved detection and tracking of new-generation
    submarines at a longer range. This would maximize the opportunity for
    U.S. armed forces to safely react to, and defend against, potential
    submarine threats while remaining a safe distance beyond a submarine's
    effective weapons range.
        The typical SURTASS LFA sonar signal is not a constant tone, but
    rather a transmission of various waveforms that vary in frequency and
    duration. A complete sequence of sound transmissions is referred to as
    a ``ping'' and can last for as short as 6 seconds (sec) to as long as
    100 sec. The time between pings is typically from 6 to 15 minutes.
    Average duty cycle (ratio of sound ``on'' time to total time) can be
    controlled but is less than 20 percent; typical duty cycle is between
    10 and 20 percent.
        The passive or listening component of the system is SURTASS, which
    detects returning echoes from submerged objects, such as submarines,
    through the use of hydrophones. The hydrophones are mounted on a
    horizontal array that is towed behind the ship. The SURTASS LFA sonar
    ship maintains a minimum speed of 3.0 knots (5.6 km/hr; 3.4 mi/hr).
        The Navy anticipates that a nominal SURTASS LFA sonar deployment
    schedule for a single vessel would involve about 270 days/year at sea
    (underway). A nominal at-sea mission would occur over a 30-day period,
    made up of two 9-day exercise segments. Active sonar operations could
    be conducted up to 20 hrs during an exercise day, although the system
    would actually be transmitting for only a maximum of 4 hrs/day
    (resulting in 432 hrs of active transmission time per year for each
    SURTASS LFA sonar system in operation based on a maximum duty cycle of
    20 percent). The remaining 12 days of the at-sea mission would be spent
    in transit or repositioning the vessel. In a nominal year there could
    be a maximum of 9 missions, six of which would involve the employment
    of SURTASS LFA sonar in the active mode and three of which would employ
    the SURTASS LFA sonar in the passive mode. Between missions, an
    estimated 95 days would be spent in port for upkeep and repair. With
    two vessels in the Pacific-Indian Ocean area and two vessels in the
    Atlantic Ocean-Mediterranean Sea area, there could be up to 12
    operations in each of these oceanic areas per year.
        At present, only one SURTASS LFA sonar system is available for
    deployment. A second SURTASS LFA sonar system is expected to be
    available in FY 2001. The third and fourth systems are tentatively
    planned for FY 2003 and FY 2004, but their delivery may be postponed
    until after FY 2005. With 4 systems, a nominal maximum of two vessels
    would be at sea at any one time. As a result, under 5-year regulations
    NMFS proposes to authorize marine mammal harassment takings for 2
    SURTASS LFA sonar vessels for FY 2000 through FY 2002, 3 vessels for FY
    2003, and 4 vessels for FY 2004, recognizing, however, that there may
    not be more than 2 vessels operating within the 5-year window of these
    proposed regulations.

    Comments and Responses

        On October 22, 1999 (64 FR 57026), NMFS published an Advance Notice
    of Proposed Rulemaking (ANPR) on the U.S. Navy application and invited
    interested persons to submit comments, information, and suggestions
    concerning the application and the structure and content of
    regulations, if the application is accepted. During the 30-day comment
    period on that notice, significant comments were received from several
    organizations and individuals. A list of organizations and individuals
    whose comments are analyzed in this document is available upon request.
    Additionally, a large number of letters, form letters, and petitions
    were received. Comments regarding NMFS' responsibilities under the
    MMPA, the Endangered Species Act (ESA) and the National Environmental
    Policy Act (NEPA) are addressed in this document. Comments to the Navy
    regarding the Navy's draft Overseas Environmental Impact Statement/
    Environmental Impact Statement (OEIS/EIS) that were attached to the
    comments on the ANPR, and those comments regarding the scope, content,
    and adequacy of the Navy draft OEIS/EIS, and the Navy's marine mammal
    scientific research program have been addressed in the Navy's Final
    OEIS/EIS.

    Activity Concerns

        Comment 1: Numerous commenters were concerned that the Navy's
    SURTASS LFA sonar was not viable, or was not practicable and that the
    Navy's small take application for an LOA should be denied, for those
    reasons.
        Response: Whether a project is viable or practical is not a
    criterion under the MMPA for determining whether to authorize marine
    mammal takings incidental to an activity. The authority for authorizing
    operations and deployment of the Navy SURTASS LFA resides with the
    Secretary of the Navy, not NMFS.
        Comment 2: Many commenters were concerned regarding a conflict
    between the ANPR and the draft OEIS/EIS. The ANPR states that the 180
    dB (i.e., 180 dB re 1 microPa(rms) RL (180 dB)) sound field is 2 km
    (1.1 nm) from the sound source. The draft OEIS/EIS states that the
    sound field is 1 km (0.54 nm) from the sound source. The commenters
    felt that if the ANPR was in error, it should be withdrawn and
    republished and the public comment period extended.
        Response: The draft OEIS/EIS is correct; the ANPR was in error. A
    correction notice was published as quickly as possible once that error
    was detected. That notice was published on November 22, 1999 (64 FR
    63783). Because the error did not affect the scope of the ANPR, and led
    only to speculation on the sound pressure level (SPL) of the SURTASS
    LFA sonar, and because NMFS is publishing in this document for public
    comment and review the same action as noticed in the ANPR, NMFS
    determined that no benefit would have been achieved by

    [[Page 15377]]

    reopening the public comment period on the ANPR.
        Comment 3: One commenter notes that the Navy application is for all
    SURTASS LFA sonar operations, whereas the draft OEIS/EIS addressed only
    SURTASS LFA sonar operations for training and testing, not for actual
    military operation. If ``hostile'' operations are not included in the
    schedule of operations, then the actual take projections must be
    recalculated to account for such missions.
        Response: The LOA application clearly states that the request is
    for the taking of marine mammals incidental to the employment of
    SURTASS LFA sonar during training, testing, and routine military
    operations. The authorization will not cover use of the system in armed
    conflict or direct combat support operations, nor during periods of
    heightened national threat conditions, as determined by the National
    Command Authorities. NMFS does not have a role in making these
    determinations. Therefore, takings during these situations would not be
    covered by the regulations or the LOAs. The recalculation of takings
    outside of the LOA in advance is neither necessary nor possible without
    knowing where the ``hostile'' activity will take place and how long
    that situation would last.

    MMPA Concerns

        Comment 4: Several commenters recommended that NMFS should extend
    the comment period to allow more time for review of the application.
        Response: The ANPR is only the first of two public comment periods
    on NMFS' action. ANPRs are not required by the MMPA, but are utilized
    by NMFS to provide the public with early notification and to assist
    NMFS in the drafting of proposed regulations. The ANPR stated that, if
    NMFS proposes rulemaking (as we are doing here), as required by section
    101(a)(5)(A)(ii) of the MMPA, NMFS will offer the public a second
    comment period. For this rulemaking, NMFS is providing a comment period
    of 45 days.
        Comment 5: A commenter questioned why NMFS did not publish the ANPR
    until October 27, 1999, when the application was received from the Navy
    on August 12, 1999.
        Response: NMFS published the ANPR as expeditiously as possible.
        Comment 6: Several commenters wanted more time for review of the
    application and ANPR because of the detail of the draft OEIS/EIS.
        Response: Because the application submitted by the U.S. Navy
    closely follows the information and data provided by the Navy in its
    draft OEIS/EIS for SURTASS LFA sonar (which had a 90-day public comment
    period), and comments on that document were due 3 weeks prior to the
    close of the ANPR comment period, NMFS believes that little additional
    effort should be required by those members of the public interested in
    reviewing both documents in order to respond adequately to the U.S.
    Navy application for the small take authorization within the 30-day
    comment period.
        Comment 7: NMFS should hold public hearings because the Navy
    application is unprecedented. Among other things, the application
    contemplates a world-wide scale for its activities, far exceeding the
    limits of what the small take exemption was meant to cover. It subjects
    marine mammals * * *  to levels of exposure well above anything NMFS
    has heretofore allowed for non-impulsive noise.
        Response: The Navy held public outreach meetings on the draft OEIS/
    EIS in Washington, DC, Boston, MA, Miami, FL, Los Angeles, CA,
    Honolulu, HI, and Seattle, WA. In addition, public hearings on the
    draft OEIS/EIS were held by the U.S. Navy on September 29, 1999, in
    Norfolk, VA; on October 12, 1999, in San Diego, CA; and on October 14,
    1999, in Honolulu, HI. NMFS attended these meetings. NMFS believes the
    opportunity to respond to this notice of proposed rulemaking provides
    the public with an adequate degree of participation in this process.
    However, if a petition is submitted to NMFS within 15 days of the date
    of publication of this document that it hold a public hearing, and that
    petition demonstrates that relevant information exists which can only
    be presented at a hearing (and cannot be presented in writing in
    response to this document), NMFS will hold a public hearing during the
    45-day comment period on this document.
        Comment 8: Under the MMPA, NMFS has an obligation to reject a
    proposal prior to rulemaking if the agency cannot make an affirmative
    finding that the project's impacts are ``negligible.''
        Response: NMFS does not interpret the MMPA to require NMFS to
    reject an application submitted, under section 101(a)(5)(A) of the
    MMPA, prior to publishing proposed rulemaking, unless the applicant has
    not provided, as part of its application on the activity, sufficient
    documentation on those marine mammals affected, and the anticipated
    impact of the activity on marine mammals. Using the information
    provided by the Navy in its application and draft OEIS/EIS, NMFS
    believes that it has sufficient information to move forward and propose
    rulemaking. This decision, however, does not preclude NMFS from
    requesting additional information from the Navy during the rulemaking
    process. However, a final rule will not be promulgated by NMFS unless
    the Agency makes a finding of negligible impact based on all relevant
    information acquired during the rulemaking process.
        Comment 9: Commenters were of the opinion that SURTASS LFA sonar
    activities proposed by the Navy are not eligible for a ``small take''
    exemption.
        Response: For maritime activities conducted by U.S. citizens (other
    than commercial fishing, activities permitted under section 104 of the
    MMPA or activities otherwise exempted from the MMPA), there are two
    means to obtain an exemption to the MMPA's moratorium on taking marine
    mammals. The first is the small take exemption under section 101(a)(5)
    of the MMPA, and the second is a waiver of the moratorium under section
    101(a)(3)(A) of the MMPA. If the Navy does not qualify for a small take
    authorization under section 101(a)(5)(A) of the MMPA, then the Navy
    would need to obtain a waiver under section 101(a)(3)(A) of the MMPA.
        Comment 10: The scope of the activity contemplated by the Navy
    exceeds any reasonable interpretation of the statutory language for
    authorizing a small take exemption for a ``specified geographic
    region.''
        Response: When Congress enacted the 1981 Amendments to the MMPA,
    which first authorized the Secretary to exempt specific activities from
    the MMPA's moratorium on takings without waiving the moratorium under
    section 101(a)(3), certain restrictions were placed on the
    circumstances under which the Secretary may issue an exemption. One of
    these requirements is that the activity must take place within ``a
    specified geographic region.'' The Legislative history for this
    provision states: ``It is the intention of the Committee that both the
    specified activity and the specified region referred to in section
    101(a)(5) be narrowly identified so that the anticipated effects will
    be substantially similar.'' `` * * [T]he specified geographical region
    should not be larger than is necessary to accomplish the specified
    activity, and should be drawn in such a way that the effects on marine
    mammals in the region are substantially the same. Thus, for example, it
    would be inappropriate to identify the entire Pacific coast of the
    North American Continent as a specified geographic region, but it may
    be appropriate to identify particular segments of that coast having
    similar characteristics, both biological and otherwise, as

    [[Page 15378]]

    specified geographic regions'' (H. Rept 97-228, September 16, 1981, p
    19).
        NMFS believes that the regions described in this proposed rule are
    in keeping with Congress' legislative intent in enacting this
    provision. Although SURTASS LFA sonar requires fairly large geographic
    regions because of the Navy's need to deploy the system on a world-wide
    basis, these areas have been selected so as to retain similar
    biological characteristics within each region. As a result, NMFS
    believes that these areas are large enough to accomplish the specified
    activity without being so large that the effects on marine mammals will
    not be substantially the same.
        It should be noted that the regions described in this proposed rule
    differ from those contained in the Navy's original application and
    described in the ANPR. Based on a suggestion made by NMFS in the ANPR,
    the U.S. Navy revised its original proposal for 10 regions to one that
    proposes to adopt, with modification, the United Nation Food and
    Agriculture Organization's (FAO) division of the world's oceans into 16
    distinct areas as shown in this document as Figure 1. (See FAO, 1971.
    The Fish Resources of the Ocean. Fishing News Books (Ltd). Surry
    England). These regions are described later in this document.
    Additionally, coastal areas and Arctic and Antarctic waters would be
    excluded from SURTASS LFA sonar operations. NMFS proposes to issue an
    LOA for each individual SURTASS LFA sonar system which will list the
    area(s) in which the deployment vessel plans to operate. As a result,
    NMFS believes the designated areas closely approximate the distribution
    of affected marine mammal species and will allow NMFS to implement
    appropriate mitigation and monitoring measures. One aspect of marine
    mammal distribution not taken into account by these areas is the shift
    in marine mammal distribution due to changes in oceanographic
    physiography. However, NMFS believes that it would be impractical to
    attempt to structure regulations specifying migratory corridors. While
    NMFS believes that little would be accomplished by further subdivision
    of the world's oceans, it welcomes additional comments on this
    preliminary determination.
        NMFS also disagrees with the commenters' suggestion that the
    application should not be accepted because it is world-wide in scope
    and thus is more extensive than any activity previously authorized.
    Although no world-wide authorizations have previously been granted,
    NMFS does accept applications, and issue authorizations, for similar
    activities in more than a single geographic region. For example,
    seismic surveys for oil and gas exploration may be conducted
    concurrently in the U.S. Beaufort Sea, southern California waters, and,
    in the Gulf of Mexico. Similar to SURTASS LFA sonar operations, each
    seismic survey employs a large vessel slowly towing a high-intensity,
    LF sound source. If warranted, small take authorizations should be
    available to these activities.
        NMFS does not believe that Congress intended NMFS to issue separate
    regulations governing taking for each ``specific geographic region,''
    as would be one alternative. While it would be possible for NMFS to do
    so, NMFS believes that these regulations would be redundant and
    unnecessary. As a result, the proposed incidental, small take
    regulations for SURTASS LFA sonar have been designed to be generic;
    LOAs issued under these regulations, would be tailored to the vessel's
    specific geographic operating area and would include any appropriate
    prohibitions and mitigation or monitoring requirements.
        Comment 11: One commenter wanted NMFS to acknowledge that the draft
    OEIS/EIS definitions for ``non-serious injury'' and ``non-serious
    harassment'' are unique and unsupported in the statutory context of the
    MMPA, or in definitions from NMFS.
        Response: NMFS understands that the Navy's draft OEIS/EIS
    definition caused confusion to reviewers. The Navy has modified these
    terms in the final OEIS/EIS. NMFS will continue to define takings by
    harassment as they are defined in section 3 of the MMPA (i.e., Level A
    and Level B harassment).

    Small Take Concerns

        Comment 12: Because the abundance of marine mammals within
    identified species and stocks that may be taken by SURTASS LFA sonar
    exceeds any reasonable interpretation of the MMPA's ``small numbers''
    provision, NMFS should reject the Navy's application.
        Response: The definition of the term ``small numbers'' at 50 CFR
    216.103 differs from the commenters' interpretation of ``small
    numbers.'' NMFS believes it was unfortunate that Congress was unable to
    provide more specific guidance on what it meant by the term ``small.''
    The Legislative history for this provision (H. Rept 97-228, September
    16, 1981) stated that the Committee recognized ``the imprecision of the
    term . . ., but was unable to offer a more precise formulation because
    the concept is not capable of being expressed in absolute numerical
    limits'' NMFS agrees with that Congressional statement. NMFS believes
    that by defining ``small numbers'' to mean a portion of a marine mammal
    species or stock whose taking would have a negligible impact as in the
    definition of ``small'' found in Sec. 216.103, an upper limit is placed
    on the term, and the phrase effectively implements the Congressional
    intent underlying the rule.

    Negligible Take Concerns

        Comment 13: The Navy's draft OEIS/EIS ignored and/or did not
    adequately address the negative effects of LFA testing, including
    stranding of beaked whales in the Mediterranean, 3 abandoned cetacean
    calves in the Hawaii sonar test area, 80 percent of humpback whales
    stopping singing during tests, blue and fin whales decreasing
    vocalizations, and gray whales changing their migration route.
        Response: The Navy has addressed these events in the Navy's final
    OEIS/EIS. However, while NMFS recognizes that there is some potential
    for marine mammals to be affected by SURTASS LFA sonar signals
    (otherwise an incidental, small take authorization would not be
    needed), NMFS notes that: (1) detailed analyses of data from Phase I
    research indicated that there were no significant differences in vocal
    activity by blue and fin whales between those periods when SURTASS LFA
    sonar was not transmitting and when it was; (2) gray whale research was
    specifically designed to elicit an avoidance response, but was not
    conducted similar to SURTASS LFA sonar operations (in fact the research
    indicated that when SURTASS LFA sonar operated offshore, there was
    little or no avoidance response); and (3) the Navy acknowledges that
    while some singing humpback whales showed some apparent avoidance
    responses and cessation of song, an equal number showed no cessation of
    song. Also, there is no evidence linking SURTASS LFA sonar
    transmissions to any stranding event, and further the Navy's proposed
    long-term monitoring (LTM) program will have a component to investigate
    any correlation between SURTASS LFA sonar transmissions and stranding
    events.
        Comment 14: The Navy underestimates the extent and cumulative
    impacts of its deployment because it fails to consider operations
    undertaken for purposes of surveillance, deployments in direct support
    of combat, and deployments during periods of heightened threat
    conditions, as determined by the National Command Authorities.

    [[Page 15379]]

        Response: NMFS must make a determination that the total taking
    incidental to an applicant's specified activity, during the proposed 5-
    year period of authorization of the regulations, will have no more than
    a negligible impact on affected marine mammal populations. The
    application for the authorization specifically requests an
    authorization for employment of the SURTASS LFA sonar during training,
    testing, and routine military operations. It will not cover use of the
    system in other conflict situations mentioned by the commenter.
    Recognizing that certain mitigation, monitoring, and reporting
    requirements could not be met by the Navy in wartime situations, NMFS
    believes the approach taken by the Navy to be appropriate.
        Comment 15: One commenter stated that, given that cetaceans are
    accepted as ``people,'' it follows that NMFS, which treats them as
    stocks subject to sustainable ``harvest'' is promulgating the fiction
    that the cetaceans are to be treated in the same category as fish, when
    in fact, they are the oldest and most intelligent sentient creatures on
    Earth and fully worthy of our protection and respect.
        Response: The MMPA prohibits the taking of marine mammals unless
    exempted or permitted. NMFS disagrees with the commenter that marine
    mammals are treated similar to fish. Fish are considered, among other
    things, a resource that may be harvested in a sustainable manner for
    consumption while the United States has affirmed that marine mammals
    should be protected and encouraged to develop to the greatest extent
    feasible commensurate with sound policies of resource management.
        Comment 16: Several commenters criticized the Navy statement in the
    application that ``research conducted to date is sufficient to assess
    impacts on marine mammals.'' Some recommended that on this basis, NMFS
    deny the Navy a small take permit. Another questioned how NMFS could
    make a negligible impact determination without having all relevant
    facts at its disposal.
        Response: When the U.S. Navy first discussed whether an incidental,
    small take authorization was required for its SURTASS LFA sonar, NMFS
    determined that insufficient information existed to make a negligible
    impact determination. NMFS suggested the U.S. Navy conduct a scientific
    research program on marine mammals to determine potential effects of
    SURTASS LFA sonar on marine mammals. In making a finding as to whether
    an action will have a negligible impact on marine mammals, NMFS is
    required to use the best scientific information available. This
    information should be available to applicants either publically or
    through NMFS. However, Congress clarified in the Legislative history on
    this provision (H. Rept 97-228, September 16, 1981) that for situations
    where a negligible impact finding cannot be made (either because the
    proposed project or activity is hypothetical or the impact on the
    marine environment from the activity has not been investigated), the
    applicant would need to conduct research on the potential impacts of
    the proposed project or activity on marine mammals. For SURTASS LFA
    sonar, independent scientists focused their research efforts on 3 of
    the 4 species of marine mammals identified in a public workshop as most
    likely to be impacted by LF sound. Research conducted under an MMPA
    section 104 scientific research permit has been completed and the
    findings have been made available to the public. A preliminary
    determination on whether information is sufficient to make a
    determination that SURTASS LFA sonar is having no more than a
    negligible impact is a part of this rulemaking process.

    Marine Mammal Impact Concerns

        Comment 17: The LOA request excludes several species of marine
    mammals because their ranges purportedly do not overlap with the
    potential geographic operating regions of SURTASS LFA sonar.
        Response: Preliminarily, the Navy and/or NMFS have determined that
    the following species should be added to the list of species that may
    potentially be affected. These species are the beluga whale
    (Delphinapterus leucas), the harbor porpoise (Phocoena phocoena), and
    the hooded seal (Cystophora cristata). Additional species may be added
    in the future based upon information obtained during the LTM Program or
    by other means. Adding species to the list, however, will require
    rulemaking to correct the list proposed in Sec. 216.180(b). Until an
    amendment is made effective, the taking of marine mammal species not
    listed in Sec. 216.180(b) remain prohibited. However, some species of
    marine mammals listed by one commenter, specifically bowhead whales,
    narwhals, and Arctic and Antarctic seals, while occupying the same
    geographic region as the SURTASS LFA sonar proposes to operate, are
    pagophilic (ice loving), and, therefore, would be unlikely to occupy
    the same region at the same time as SURTASS LFA sonar would be capable
    of operating in that region. Another species mentioned by the same
    commenter, Balaenoptera bonarensis, is a small minke whale. Without
    more information on the species, for management purposes in this
    document, NMFS considers it a minke whale. Noting the typographical
    error in the Navy application, mixing the scientific and common names
    for sei whales and Bryde's whales, NMFS considers B. edeni and B.
    brydeias synonomous, as noted in Rice (1998).
        Dugongs are not under the jurisdiction of NMFS. If the Navy
    believes that SURTASS LFA sonar may incidentally take dugongs by
    harassment, they should apply to the U.S. Fish and Wildlife Service for
    a small take authorization for this species. However, NMFS notes that
    the text referenced by the commenter (Jefferson et al., 1993) states
    that this species is found in the Indo-Pacific in coastal and inshore
    waters, areas where SURTASS LFA sonar will not operate.
        Comment 18: Unless the 180 dB criteria is dramatically reduced
    (given proven impacts of sounds at far lower amplitudes), all species
    of excluded coastal cetaceans (the remaining species of porpoises as
    well as coastal ``river'' dolphins) will have to be included.
        Response: The 180 dB criterion delineates an area around the source
    wherein scientists have determined that, at an SPL somewhere above that
    level, some marine mammal species may incur a permanent shift, or
    elevation, in hearing sensitivity (referred to as permanent threshold
    shift (PTS)). For that reason, NMFS encourages small take applicants,
    if possible, to design, establish and monitor an appropriate area
    around a loud noise source. Terminating sound transmissions whenever
    marine mammals enter a zone where their hearing may be affected, will
    prevent, to the greatest extent practicable, marine mammals from
    potentially incurring an impairment to hearing. For this proposed
    action, scientists have determined that a single-ping received level of
    180 dB can be considered a scientifically precautionary level to
    prevent the potential onset of injury to a marine mammal. As a result,
    the Navy has proposed to establish a 180 dB safety zone for SURTASS LFA
    sonar operations, that would protect marine mammals that enter this
    area because the SURTASS LFA source transmissions would be terminated
    upon detection of the animal. The Navy calculates that this safety zone
    will encompass an area with a radius of approximately 1 km (0.54 nm).
    The Navy has stated that, as a mitigation measure, the 180 dB isopleth
    would remain at least 22 km

    [[Page 15380]]

    (12 nm) from all coastlines. Because sound normally attenuates more
    quickly on a shoaling bottom (that would be expected in coastal areas),
    than it does in the open ocean, the Navy does not expect marine mammals
    in coastal or riverine areas to be taken (by harassment) by SURTASS LFA
    sonar while the animals are in these areas.
        Comment 19: Marine mammals may be killed incidental to SURTASS LFA
    sonar operations due to stranding, and due to increased risk to
    predation and starvation through masking.
        Response: The potential for masking and increased predation have
    been discussed in the Navy application and the draft OEIS/EIS. Please
    refer to those documents for additional information. While masking
    could possibly occur for those species of marine mammals that use the
    same frequency as SURTASS LFA sonar, masking would be minor and
    temporary (i.e., 80-90 percent of the time a whale would be able to
    perceive predator or prey through LF sounds), because the SURTASS LFA
    sonar bandwidth is very limited (approx. 30 Hz), signals do not remain
    at a single frequency for more than 10 seconds, and the system is off
    at least 80 percent of the time.
        Because of the offshore nature of SURTASS LFA sonar operations, the
    Navy does not believe that there is a potential for SURTASS LFA sonar
    to result in marine mammal stranding incidents. Under the Navy's LTM
    program however, the Navy plans to coordinate with principal world-wide
    marine mammal stranding networks and report any correlations between
    SURTASS LFA sonar operations and stranding events to NMFS. However,
    because the Navy has not requested an incidental take by mortality (as
    in a stranding event), an LOA, if issued, would not authorize this form
    of taking. Under regulations found at Sec.  216.106(e), an LOA may be
    modified, suspended or revoked if a marine mammal is taken by a method
    that is not authorized.
        Comment 20: Commenters noted that the Navy has deflated its
    assessment of serious injury (to marine mammals) to near zero with an
    untested monitoring program. Another commenter believes that the draft
    OEIS/EIS assumes 100-percent detection within the safety zone. This
    commenter believes it is unacceptable (for marine mammals to incur an
    SPL greater than 180 dB) and could even be fatal.
        Response: The Navy has assessed the efficiency of its tripartite
    monitoring system (discussed later in this document) at approximately
    80 percent (70-percent high-frequency marine mammal monitoring (HFM3)
    sonar and 5 percent each for visual and passive acoustic monitoring).
    Based upon that level of efficiency, the Navy has indicated that
    incidental harassment takes would be as indicated in Tables 4-12 and 4-
    13 of its application. NMFS recognizes that the Navy should provide
    supporting evidence of the efficiency of the HFM3 sonar based on
    documentation of its effectiveness or field testing results. As a
    result, until such time as the Navy provides verifiable test results on
    the HFM3 sonar, NMFS will need to base its determination of negligible
    impact solely on the effectiveness of geographic mitigation.
        However, NMFS does not agree that the proposed incidental takings
    would result in more than minimal levels of serious injury. Because
    serious injury is unlikely to occur unless a marine mammal is well
    within the 180 dB SURTASS LFA sonar safety zone and close to the
    source, and because the closer the mammal is to the vessel, the more
    likely it will be detected, and the SURTASS LFA sonar operation
    suspended, the potential for serious injury to occur is minimal.
        For mitigation effectiveness for harassment and non-serious injury,
    NMFS recommends reviewers study the last column of Table 4-10 of the
    application (Table 4.2-10 of the OEIS/EIS). The last column lists the
    reduction of potential for effects on marine mammals.

    Long-Term and Cumulative Effects Concerns

        Comment 21: We know almost nothing about the long term effects of
    LFA sonars on marine life, and the Navy fails to consider the full
    range of cumulative effects that SURTASS LFA sonar would have together
    with other noise sources. The Navy has also neglected to measure the
    foreseeable effects of proliferation once this technology is deployed.
    All this must be considered by NMFS. Another commenter believes the
    scenario of more than two vessels being at sea in the same sea
    simultaneously conducting exercises has not been given full
    consideration.
        Response: NMFS believes that the issue of cumulative impact of
    increasing use of LFA sonar technologies by non-U.S. nations and other
    LF sources is a subject for the Navy to address under NEPA. However,
    under section 101(a)(5)(A) of the MMPA, NMFS is required only to make a
    determination that the total of the incidental taking of marine mammals
    by the specified activity being authorized during the 5-year period
    concerned will have no more than a negligible impact on such species or
    stock of marine mammal. In this case, NMFS must assess the potential
    impacts on marine mammals from no more than four SURTASS LFA vessels
    transmitting 432 hrs/vessel/yr.
        In its application, the Navy states that there is a remote
    possibility that two sources may be operating in the same geographic
    area at the same time. NMFS intends to base its negligible impact
    assessment on that scenario. If LOAs are issued, the use of more than
    two SURTASS LFA sonar sources operating at the same time within the
    same specific geographic area would be considered a violation of the
    LOA.

    Mitigation Concerns

        Comment 22: If NMFS moves forward with rulemaking, it is obligated
    under the MMPA to prescribe methods and means of effecting the least
    practicable adverse impact.
        Response: NMFS agrees that measures to mitigate the impact to the
    lowest level practicable is a requirement of the MMPA. However, NMFS
    cannot require compliance with impractical methods and means. Specific
    mitigation measures are discussed in the following 9 comments and
    responses.
        Comment 23: Several commenters questioned the use of a 180 dB
    criterion for suspension of transmissions, since far lower SPLs have
    been demonstrated to cause clear short-term behavioral impacts on
    cetaceans. If an LOA is issued, a much lower level of exposure for
    protected species should be required.
        Response: As mentioned previously, based on information provided at
    two public workshops (HESS Workshop, June 12-13, 1997, NMFS Acoustic
    Criteria Workshop, September, 1998), in general, 180 dB is the level
    above which scientists caution a PTS injury has the potential to occur
    in marine mammals. The distance from the SURTASS LFA sonar source to
    the 180 dB isopleth is approximately 1 km (0.54 nm). Thus, the 180 dB
    SURTASS LFA sonar mitigation zone is the proposed safety zone that will
    prevent, to the greatest extent practicable, both PTS and temporary
    hearing impairment (termed temporary threshold shift (TTS)) to marine
    mammals.
        While the commenter is correct that behavioral modifications can be
    expected at lower SPLs, the proposed monitoring (visual, passive
    acoustic and active acoustic), is not likely to be as effective at the
    greater distances where these impacts are likely to occur. As a result,
    NMFS prefers to require the Navy to concentrate monitoring in an area
    wherein marine mammals are more

    [[Page 15381]]

    likely to incur an injury, than at distances wherein the incidental
    taking will be limited to short-term behavioral modifications. Since
    monitoring is less likely to be effective at distances much greater
    than the 180-dB isopleth, and because the Navy has requested a small
    take authorization for the incidental harassment of marine mammals,
    NMFS has preliminarily determined that the establishment of a safety
    zone at the 180 dB isopleth is the distance that is most practicable
    for reducing potential impacts on marine mammals to the lowest level.
        Comment 24: One commenter recommended that, if an LOA is issued, no
    transmissions at night or in sea conditions greater than Beaufort 4 be
    allowed, to maximize the probability of detecting protected species.
        Response: NMFS concurs with the U.S. Navy that in order for
    training to be effective it must simulate, to the greatest extent
    practicable, conditions that would be expected during periods of
    heightened readiness. Hostile situations do not diminish with sunset or
    high sea states. As a result of poor nighttime and high sea state
    visibility for detecting marine mammals, the Navy will use the HFM3
    sonar and passive sonar to improve marine mammal detection.
        Comment 25: Commenters recommended additional mitigation measures,
    such as geographical restrictions above and beyond those proposed by
    the Navy, including an extension of the coastal exclusion zone beyond
    the limits of the U.S. territorial sea and the territorial seas of
    other countries, expansion of the Southern Ocean whale sanctuary, the
    addition of the Indian Ocean whale sanctuary, and the addition of
    biologically significant offshore areas; and a timely, transparent, and
    publicly accountable procedure for supplementing the initial list of
    restrictions.
        Response: In this proposed rule, NMFS is proposing to establish a
    system for government agencies, non-government organizations, and the
    public to be able to propose areas for NMFS to consider adding to the
    list of offshore biologically important areas (OBIAs) for marine
    mammals. NMFS emphasizes that, in order for designation, an area must
    be of particular importance for marine mammals as an area for primary
    feeding, breeding, or migration, and not simply an area occupied by
    marine mammals. The proposed area should not be within a previously
    designated exclusion area nor rationalized simply because of previous
    designations for geopolitical reasons.
        In order for NMFS to begin the rulemaking process for designating
    areas of biological importance for marine mammals, proponents must
    petition NMFS and submit the information described in Sec. 216.191(a).
    If NMFS makes a preliminary determination that the petitioners have
    provided sufficient information that the area is of significant
    biological importance for marine mammals, NMFS will propose rulemaking
    to add the recommended area to the list of previously designated areas.
    Through notice in the Federal Register, NMFS will invite information,
    suggestions, and comments on the proposal for a period of time not less
    than 45 days from the date of publication in the Federal Register.
    After review of the comments, and relevant data and information, NMFS
    will make a final decision on whether to add the recommended area to
    the list found in Sec.  216.183(d). NMFS will either issue a final
    rulemaking on the proposal or provide notice in the Federal Register on
    its determination. It should be understood, however, that proposals for
    designation of areas would not affect the status of LOAs while the
    rulemaking is in process. NMFS anticipates that the time between
    nominating an area and publication of a final determination is likely
    to take 8-12 months. However, in order to provide proper notice and
    comment to interested parties, NMFS will not accept recommendations for
    additional OBIAs until after the present rulemaking has been completed.
        To extend the list of restrictions (referred to in this document as
    mitigation measures), found in Sec. 216.184, an individual or
    organization would need to petition NMFS under the Administrative
    Procedure Act (APA) to add additional mitigation measures. Petitions
    would need to provide sufficient information for NMFS to determine that
    new rulemaking is warranted and practical.
        Comment 26: One commenter noted that only 2 examples of offshore
    OBIAs are presented in the draft OEIS/EIS. Have other OBIAs been
    designated? If not, it seems that such designations would be required
    before the public and government agencies would be able to
    appropriately review the potential impacts of this action on offshore
    species. Another commenter was of the opinion that we do not have
    sufficient knowledge about OBIAs to state where these might be in the
    ocean.
        Response: In a recent letter to NMFS, the Navy added the Costa Rica
    Dome in the eastern Pacific Ocean to the list of OBIAs and expanded the
    Antarctic Convergence Zone OBIA. Also, NMFS, at the request of NOAA's
    National Ocean Service, has proposed to add Penguin Bank, off the
    Island of Kauai, Hawaii, inside the NOAA's Hawaiian Islands Humpback
    Whale National Marine Sanctuary (HIHWNMS). These additions are
    reflected in the rulemaking at the conclusion of this document.
    However, NMFS does not agree that more designations are necessary
    before it can review the Navy small take application. As mentioned in
    response to the previous comment, a system has been proposed by NMFS to
    afford the public an opportunity to propose new OBIAs. As knowledge
    about offshore areas increases over the next few years, new areas can
    be nominated if they are determined to provide a critical need for
    marine mammals. It should be noted that determinations regarding the
    impact of the proposed activities will be based on operation of SURTASS
    LFA sonar without any OBIAs that might be proposed in the future.
        Comment 27: NMFS should ensure that the coastal exclusion zone
    applies to islands as well as continents, regardless of size, as these
    waters contain some of the rarest and bio-rich marine habitat in the
    world.
        Response: The Navy proposes to restrict the 180 dB isopleth from
    the SURTASS LFA sonar to outside 12 nm (22 km) of any coastline in the
    world. This would include coastlines of offshore islands, such as
    Hawaii.
        Comment 28: One commenter recommended NMFS impose a condition, if
    the authorization is granted, limiting received sound levels to 150 dB
    or less in Hawaii State waters and in additional areas in the HIHWNMS
    lying outside of state waters.
        Response: The Navy believes that, by imposing a mitigation measure
    of an SPL no greater than 180 dB for SURTASS LFA sonar at 12 nm (22 km)
    of any coastline in the world, SPLs greater than 150 dB (from the
    SURTASS LFA sonar) should not occur within Hawaiian State waters. If a
    state or other organizations can provide documentation that state
    waters need additional protection, they can provide the documentation
    and petition NMFS proposing such restrictions as a mitigation measure,
    as described in response to previous comments. NMFS notes, however,
    that there are numerous other sources of anthropogenic noise within
    coastal waters that far exceed 150 dB for which states have not
    required similar restrictions.
        Similarly, if more protection is needed for the marine mammals
    inhabiting the HIHWNMS than would be provided by making Penguin Bank an
    OBIA, interested parties can petition

    [[Page 15382]]

    NMFS to either impose additional mitigation measures to protect a
    National Marine Sanctuary's marine mammal resources, or to establish
    that portion of the HIHWNMS (or any other National Marine Sanctuary)
    that extends beyond 12 nm (22 km) of the coast as an OBIA.
        Comment 29: One commenter recommended mitigation measures include
    reductions in source level, duty cycle, and annual transmission hours,
    none of which, the commenter believes, has as yet been operationally
    justified as having the least practicable adverse impact on marine
    mammals.
        Response: As stated previously, NMFS does not authorize the
    activity and does not have the expertise to determine what source
    levels, transmission hours or duty cycles would be appropriate for
    SURTASS LFA sonar mitigation without affecting the efficiency of the
    system. Similar concerns have been provided to the Navy as comments to
    the draft OEIS/EIS and have been addressed in the final OEIS/EIS. NMFS
    will review the final OEIS/EIS for the Navy's response to these
    suggestions prior to making a final determination on whether the
    incidental harassment takings by SURTASS LFA sonar is at the lowest
    level practicable.
        Comment 30: One commenter recommended the use of ramp-up procedures
    to protect marine mammals.
        Response: The Navy proposed in its application to employ a 5-minute
    ramp-up during the HFM3 sonar transmissions. Since the HFM3 sonar will
    be operating for a minimum of 30 minutes prior to initiation of SURTASS
    LFA sonar, ramp-up of the SURTASS LFA sonar is not necessary.
        Comment 31: One commenter recommended that mitigation measures
    include replacement of LFA to the extent practicable with new passive
    acoustic technologies, such as the Advanced Deployable System (ADS)
    which is currently being tested off the California coast.
        Response: The ADS is not a mitigation measure for SURTASS LFA but
    is an entirely different system that is not under consideration for
    takings under this proposed rulemaking. The Navy has addressed other
    acoustic technologies in greater detail in the final OEIS/EIS. NMFS
    must state again that it does not authorize the activity, only the
    taking of marine mammals incidental to the activity. For SURTASS LFA
    sonar, that activity is authorized by the Secretary of the Navy. It is
    for the Navy to decide, through its decision-making process, one step
    of which is the NEPA process, whether to deploy the SURTASS LFA sonar
    system.

    Monitoring and Reporting Concerns

        Comment 32: Passive acoustic monitoring to detect marine mammals is
    questionable. Will only audible frequencies be monitored, and if so,
    how will species which vocalize above our hearing range be detected? To
    evaluate the validity of acoustic monitoring for cetaceans, the
    proportion of the time each species vocalizes . . . will need to be
    determined. There are some species of cetaceans (particularly beaked
    whales) for which nothing is known about the frequency range produced
    by vocalizing animals.
        Response: NMFS believes these comments developed because there was
    insufficient information on passive acoustic monitoring in the draft
    OEIS/EIS. Passive acoustic monitoring will be accomplished using the
    SURTASS LFA sonar horizontal towed array whose detection capabilities
    are in the same general frequency range as that of the transmit array
    (i.e., below 500 Hz). As a result, it will not detect vocalizations
    from all marine mammal species, and is the reason why the Navy only
    considers this monitoring method at 5 percent efficiency. The Navy
    anticipates that the passive acoustic monitoring program will be used
    simply to cue the HFM3 sonar to the presence of vocalizing mammals. It
    should be understood that an operator need not be able to distinguish
    species by vocalizations here, only that they be capable of
    distinguishing between these sounds and those of other underwater
    sounds. Highly trained Navy sonar technicians are very proficient at
    distinguishing between the two sounds. NMFS believes, moreover, that
    the LTM program will provide needed data on the adequacy of the
    monitoring methodology over the first few years of operation.
        Comment 33: Research and development of passive acoustic and other
    technologies for monitoring marine mammals within a wide radius of the
    source; and verification of Navy's as-yet unproven and potentially
    harmful HFM3 system, should be accomplished before operations begin.
    One commenter questioned whether the HFM3 sonar should have an OEIS/EIS
    of its own (i.e., be subject to NEPA).
        Response: First, NMFS questions the commenter's statement that the
    HFM3 sonar is potentially harmful. Table 4-11 of the application
    compares the HFM3 sonar with other standard ``fish finding'' sonars.
    Due solely to a 10-20 kHz lower frequency and lower reverberation, the
    HFM3 has an increased range for detecting marine mammals and other sea
    life. At this time, NMFS has no evidence that ``fish-finding'' sonars
    are harmful to marine mammals. Because the HFM3 sonar is fully
    discussed in the draft OEIS/EIS, NMFS does not believe that the Navy's
    use of fish-finding-type sonars, like the HFM3, are subject to NEPA,
    separate from the draft (and final) OEIS/EIS.
        Second, NMFS has stated previously in this document that, until the
    Navy provides documentation supporting its claim that the HFM3 is 70
    percent effective, NMFS plans to calculate incidental take levels using
    just the geographic mitigation. The Navy has the option to provide
    additional information on the effectiveness of the HFM3 sonar during
    this rulemaking that NMFS may use during its final determination on
    this action.
        NMFS does not believe the MMPA requires a delay in the issuance of
    an authorization until mitigation or alternative technology proves
    effective (as long as a negligible impact determination can be made),
    only that the taking be reduced to the lowest level practicable.
    However, NMFS encourages the Navy and others to undertake research into
    more effective passive acoustics.
        Comment 34: Given the long dive times of many species of marine
    mammals, 30 minutes of monitoring prior to start up is inappropriate.
    The commenter recommends 1-2 hours prior to starting up the SURTASS
    LFA.
        Response: NMFS does not believe that a time period greater than 30
    minutes should be required for visual, passive and active acoustic
    monitoring considering the relatively small area of the SURTASS LFA
    sonar safety zone, and because, unlike many other activities which (in
    order to mitigate marine mammal takings) employ only visual monitoring,
    SURTASS LFA sonar operations will also employ acoustic systems to
    locate marine mammals within this safety zone. Therefore, NMFS proposes
    here to make a condition of the LOA that visual monitoring must start
    no less than 30 minutes prior to starting SURTASS LFA sonar
    transmissions, whenever visibility allows such monitoring.
        Comment 35: Monitoring should include post-transmission monitoring.
    This would allow for the detection of changes in behavior subsequent to
    transmission.
        Response: NMFS agrees and is proposing that the LOA contain a
    condition requiring the Navy to conduct visual and passive acoustic
    monitoring for a period of time no less than 15 minutes after the last
    SURTASS LFA sonar transmission of the sequence

    [[Page 15383]]

    (monitoring will also continue between ``pings'').
        Comment 36: Will NMFS demand that the LTM program data be readily
    available to scientists not associated with the LFA or the Office of
    Naval Research?
        Response: Reports will be provided by the Navy annually to NMFS
    under Sec.  216.186. These documents will contain LTM data and will be
    available to the public for review.
        Comment 37: One commenter recommended establishment of an
    extramural, independent board of scientists, policymakers,
    environmental advocates, and citizen representatives to review
    monitoring data and relevant research and to make recommendations to
    NMFS, as well as the Navy, for reducing the system's impacts.
        Response: NMFS does not believe that a formal board is necessary
    for reviewing monitoring and research reports, and applications for
    annual LOAs. Because such a board would probably come under the Federal
    Advisory Council Act (FACA) and the requirements under FACA, NMFS
    recommends that interested individuals meet as a non-governmental
    organization and remain independent from the Federal Government.
    Members of this board could independently or jointly comment to NMFS,
    based on annual reports, or petition NMFS under the APA to amend
    regulations based on their interpretation of the reports.

    Research Concerns

        Comment 38: One commenter recommended the establishment of a clear
    timetable for additional research, especially of SURTASS LFA's long
    term impacts; and a secure budget for research over the expected life
    of the program.
        Response: NMFS cannot require the Navy to undertake a particular
    level and type of research, outside the purview of this proposed
    Authorization. NMFS can however, and does, strongly encourages the Navy
    to undertake research to determine impacts on species of marine mammals
    that may potentially be affected by LF sounds. NMFS notes that its
    preliminary negligible impact determination is based on research
    conducted by independent scientists, funded by the U.S. Navy, on 3
    species of balaenopterid whales, that were determined most likely to be
    affected by SURTASS LFA sonar noise. The Navy has provided information
    in the final OEIS/EIS on the potential effects of SURTASS LFA sonar on
    additional species, including, to the extent practicable, sperm whales,
    beaked whales, other odontocetes and pinnipeds. NMFS expects the Navy
    will provide NMFS with a detailed plan for research.

    LOA Concerns

        Comment 39: One commenter questioned whether NMFS' proposal to
    issue an LOA to each vessel as it becomes operational would mean that
    each LOA for each ship will consist of a 5-year permit for the taking
    of marine mammals, making the effective permit for LFA operations a
    total of 10 years if the last vessel becomes operational in FY 2004.
    This is not acceptable and the ANPR should be withdrawn as it was not
    analyzed as such in the draft OEIS/EIS. Another commenter considers it
    inappropriate for the Navy to request a 5-year authorization for up to
    4 vessels, in part because procurement and development schedules are
    not sufficiently guaranteed. This commenter recommended issuing LOAs
    for each vessel just prior to operational status.
        Response: These regulations are proposed to be effective for a
    period of 5 years, from the date of issuance. An LOA cannot be issued
    until the regulations are effective and cannot exist beyond the
    expiration date of the regulations. Under the proposed regulations,
    LOAs would be issued for 1 year and would be renewed annually. An LOA
    would be issued for each SURTASS LFA sonar system, once that system
    becomes operational and is deployed on a vessel.
        Comment 40: One commenter recommended use of an annual system of
    reporting and reauthorization that requires the Navy to specify,
    pursuant to the MMPA, each geographical region to be affected by its
    intended operations.
        Response: NMFS concurs and has established a system for an annual
    submission of a list of geographic areas for operations and for
    reporting annually on their activity.
        Comment 41: One commenter recommended that each LOA must specify a
    maximum number of takes by species, population and region for each
    vessel, establish a monitoring system to warn of impending maximums,
    and include restrictions on the further use of LFA for any purpose if
    the maximum take is reached.
        Response: Establishing and enforcing quotas under an LOA is
    practical only when timely reporting of incidental takings can be
    accomplished, when NMFS can conduct an analysis of the data within the
    period of validity of an LOA, and when the affected marine mammal
    stocks would be disadvantaged by exceeding a certain level. In the case
    of SURTASS LFA sonar, the Navy has stated that the data from the LTM
    program cannot be available in real-time because of post-mission
    analysis requirements including declassification of sensitive national
    security information. In its application, the Navy has proposed that
    this information be provided to NMFS annually. NMFS intends to review
    this information (in addition to other information) to ensure that the
    determinations made during this rulemaking (i.e., that the taking is
    small and having no more than a negligible impact on affected species
    and stocks of marine mammals) are appropriate.
        In addition, as noted in the application, incidental take levels
    are estimated as a percentage of the population, and not as individual
    numbers of animals, and the monitoring proposed by the Navy is to
    ensure that Level A harassment is reduced to the lowest level
    practicable. As a result, as presently designed, NMFS does not consider
    it practical to establish, and enforce, a quota system.

    ESA Concerns

        Comment 42: Commenters were concerned that the Navy did not also
    request that threatened and endangered marine turtle species, and
    endangered fish species be included under the MMPA authorization.
        Response: Other than marine mammals, threatened and endangered
    species of marine life are not protected under the MMPA; however, they
    are provided protection under the ESA. Under section 7 of the ESA, the
    U.S. Navy requested initiation of formal consultation with NMFS on
    October 4, 1999. This consultation will be concluded prior to a
    determination on issuance of a final rule and any MMPA authorization.
    If appropriate, NMFS will authorize takings of marine species listed as
    threatened or endangered under the ESA incidental to SURTASS LFA sonar
    to the Navy through an Incidental Take Statement issued under section 7
    of the ESA.

    NEPA Concerns

        Comment 43: The U.S. Navy has submitted an application for an
    incidental take of marine mammals, and NMFS has accepted that
    application, prior to close of the comment period of the draft OEIS/EIS
    under NEPA. Processing the Navy application should be delayed until
    after the Navy has completed its NEPA responsibilities.
        Response: NMFS does not believe that delaying the incidental small
    take authorization process until completion of NEPA documentation would
    be appropriate. Both the Council on Environmental Quality (CEQ)

    [[Page 15384]]

    regulations (40 CFR 1502.5(d)) and NOAA's NEPA guidelines provide for
    proposed regulations to accompany a draft NEPA document. As a
    cooperating agency in the preparation of the OEIS/EIS, which NMFS may
    adopt as its own NEPA document, the Navy draft OEIS/EIS is the key NEPA
    document for the NMFS action. Not beginning the small take
    authorization/ regulatory process until completion of NEPA requirements
    would lead to unnecessary and potentially extensive delays in
    processing applications, a key problem previously recognized by
    Congress in 1994, when it amended the MMPA to expedite authorizations
    under the small take program. Under NEPA, NMFS may not make final
    regulations governing the taking of marine mammals effective for at
    least 30 days after an action agency releases a Final EIS on the
    action. However, because publication of this rulemaking document was
    delayed for several months, the Navy's final OEIS/EIS was released
    prior to release of this rulemaking.
        Comment 44: What exactly constitutes NMFS being a cooperating
    agency on a project where NMFS is legally mandated to play a regulatory
    role?
        Response: CEQ regulations (40 CFR 1501.6) stipulate that any
    Federal agency having either jurisdiction by law, or expertise on
    subject matter that should be addressed in the draft EIS, may be a
    cooperating agency whenever requested. For the Navy's draft OEIS/EIS
    for SURTASS LFA sonar, NMFS, as a Federal agency, meets both those
    criteria. For this action NMFS' role under NEPA is explained in the
    letter to the Navy on April 1, 1998 (see Appendix A, draft OEIS/EIS)
    and was limited to review and comment on the draft OEIS/EIS during its
    preparation. In addition, because the regulations contained in this
    notice also constitute a federal action, NMFS also has a NEPA
    responsibility. NMFS anticipates that this responsibility will be
    satisfied by adopting the Navy's final OEIS/EIS, in whole or in part,
    as its own NEPA document when making the final decision on the issuance
    of the small take authorization, in accordance with 40 CFR 1506.3.
        Comment 45: There appears to be a conflict of interest when the
    same person listed in FOR FURTHER INFORMATION CONTACT is also listed as
    a preparer of the draft OEIS/EIS.
        Response: NMFS disagrees, noting that as a Federal agency, NMFS has
    NEPA responsibilities for the proposed issuance of a small take
    authorization to the U.S. Navy. Knowing that the Navy's SURTASS LFA
    sonar had the potential to take marine mammals incidental to it
    operation, and, that there was consideration being given at the time
    that an incidental, small take application would be submitted by the
    U.S. Navy, NMFS, on April 1, 1998, agreed to be a cooperating agency,
    as defined by the CEQ regulations (40 CFR 1501.6), on the preparation
    of the U.S. Navy draft OEIS/EIS on SURTASS LFA sonar. NMFS provided
    guidance to the U.S. Navy on the OEIS/EIS preparation so that the
    document could satisfy both agency's NEPA responsibilities. Whether it
    has done so will be determined upon NMFS' review of the final OEIS/EIS.
        Comment 46: Several commenters concluded that it would be
    irresponsible for NMFS to issue regulations and authorizations based on
    the insufficiency, and unsubstantiated claims in the draft OEIS/EIS.
        Response: NMFS must make its determinations under section
    101(a)(5)(A) of the MMPA based on the best scientific information
    available. At this time, most, if not all, of that information is
    contained in the draft (and final) OEIS/EIS. NMFS expects that
    necessary corrections that were brought to the Navy's attention during
    the comment period on the draft OEIS/EIS will be addressed and, if
    necessary, updated in the final OEIS/EIS. NMFS will not promulgate
    final regulations nor make any determinations under section
    101(a)(5)(A) of the MMPA until the Navy and NMFS have both met their
    NEPA responsibilities.

    Other Concerns

        Comment 47: On what basis does NMFS state that this proposed action
    is not significant for purposes of Executive Order (E.O.) 12866? The
    draft OEIS/EIS does not refer to any costs whatsoever, yet the Navy has
    been reported as having spent from $350 million to $1.45 billion on
    SURTASS LFA sonar to date. Until the true costs of the entire program
    are stated, and a cost-benefit analysis conducted per E.O. 12866, the
    ANPR should be withdrawn.
        Response: E.O. 12866, ``Regulatory Planning and Review,'' among
    other things, requires a Federal agency to determine whether a
    regulation it is proposing is significant. This regulation has been
    determined to be significant. For a regulation to require a cost-
    benefit analysis, the regulation (not the activity itself) must have an
    annual effect on the economy of $100 million or more or adversely
    affect in a material way the economy, a sector of the economy,
    productivity, competition, jobs, the environment, public health or
    safety, or state, local, or tribal governments or communities. Since
    NMFS is promulgating regulations regarding the incidental taking of
    marine mammals, and these regulations materially affect only the U.S.
    Navy, NMFS has determined that these regulations do not have an annual
    effect on the economy of $100 million or more or adversely affect in a
    material way the economy, a sector of the economy, productivity,
    competition, jobs, the environment, public health or safety, or state,
    local, or tribal governments or communities. NMFS has determined that
    these regulations do not require a full cost-benefit analysis (see
    Classification).

    Affected Marine Mammal Species

        In the Navy draft OEIS/EIS analysis and small take application, the
    Navy excluded from take consideration those marine mammal species that
    either do not inhabit the areas wherein SURTASS LFA sonar would operate
    or do not possess sensory mechanisms that allow the mammal to perceive
    LF sounds. Where data were not available or were insufficient for one
    species, comparable data for a related species were used, if available.
    Because all species of baleen whales produce LF sounds, and anatomical
    evidence strongly suggests that their inner ears are well adapted for
    LF hearing, all balaenopterid species are considered sensitive to LF
    sound and at risk from exposure to LF sounds. The ten species of baleen
    whales that may be affected by SURTASS LFA sonar are blue (Balaenoptera
    musculus), fin (Balaenoptera physalus), minke (Balaenoptera
    acutorostrata), Bryde's (Balaenoptera edeni), sei (Balaenoptera
    borealis), humpback (Megaptera novaeangliae), northern right (Eubalaena
    glacialis), southern right (Eubalaena australis), pygmy right (Capera
    marginata), and gray (Eschrichtius robustus) whales.
        The odontocetes (toothed whales) that may be affected because they
    inhabit the deeper, offshore waters where SURTASS LFA sonar might
    operate include both the pelagic (oceanic) whales and dolphins and
    those coastal species that also occur in deep water including harbor
    porpoise, beluga, Stenella spp., Risso's dolphin (Grampus griseus),
    rough-toothed dolphin (Steno bredanensis), Fraser's dolphin
    (Lagenodelphis hosei), right-whale dolphin (Lissodelphis spp.),
    Lagenorhynchus spp., Cephalorhynchus spp., bottlenose dolphin (Tursiops
    truncatus), common dolphin (Delphinus delphis), Dall's porpoise
    (Phocoenoides dalli), melon-headed whale (Peponocephala spp.), beaked
    whales (Berardius spp., Hyperoodon spp., Mesoplodon spp., Cuvier's
    beaked whale (Ziphius cavirostris), Shepard's

    [[Page 15385]]

    beaked whale (Tasmacetus shepherdi), Longman's beaked whale
    (Indopacetus pacificus), killer whale (Orcinus orca), false killer
    whale (Pseudorca crassidens), pygmy killer whale (Feresa attenuata),
    sperm whale (Physeter macrocephalus), dwarf and pygmy sperm whales
    (Kogia simus and K. breviceps), and short-finned and long-finned pilot
    whales (Globicephala macrorhynchus and G. melas).
        Potentially affected pinnipeds include hooded seals, harbor seals
    (Phoca vitulina), spotted seal (P. largha), ribbon seal (P. fasciata),
    gray seal (Halichoerus grypus), elephant seals (Mirounga
    angustirostrisand M. leonina), Hawaiian monk seals (Monachus
    schauinslandi), Mediterranean monk seals (Monachus monachus), northern
    fur seals (Callorhinus ursinus); southern fur seals (Arctocephalus
    spp.), Steller sea lion (Eumetopias jubatus), California sea lions
    (Zalophus californianus), Australian sea lions (Neophoca cinerea), New
    Zealand sea lions (Phocarctos hookeri), and South American sea lions
    (Otaria flavescens).
        A description of affected marine mammal species, their biology, and
    the criteria used to determine those species that have the potential
    for taking by harassment are provided and explained in detail in the
    Navy application and draft OEIS/EIS and, although not be repeated here,
    are considered part of the record of decision on this matter.

    Impacts to 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 human-made
    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, echolocation sounds of
    odontocetes, and environmental sounds such as surf noise; and (6) very
    strong sounds have the potential to cause temporary or permanent
    reduction in hearing sensitivity.
        The analysis of potential impacts on marine mammals from SURTASS
    LFA sonar was developed by the Navy based on the results of a
    literature review, the Navy's LF Sound Scientific Research Program (LFS
    SRP), and a complex, comprehensive program of underwater acoustical
    modeling. To assess the potential impact on marine mammals by the
    SURTASS LFA sonar source operating at a given site, it was necessary
    for the Navy 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 total acoustic
    exposure for each animal in the modeled population, (4) converting the
    resultant cumulative exposures for a modeled population into an
    estimate of the risk from a significant disturbance of a biologically
    important behavior, and (5) converting these estimates of behavioral
    risk into an assessment of risk in terms of the level of potential
    biological removal.
        Next, as discussed later in this document, a relationship for
    converting the resultant cumulative exposures for a modeled population
    into an estimate of the risk to the entire population of a significant
    disruption of a biologically important behavior and of injury was
    developed. This process assessed risk in relation to received level
    (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 LFS SRP results, the acoustical modeling, and
    the risk assessment, provide an estimate of potential environmental
    impacts to marine mammals.
        The acoustical modeling process was accomplished using the 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 Acoustic Integration Model (AIM). AIM was used to
    estimate marine mammal sound exposures and essentially integrates
    simulated movements (including dive patterns) of marine mammals, a
    schedule of SURTASS LFA sonar transmissions, and the predicted sound
    field for each transmission to estimate acoustic exposure during a
    hypothetical SURTASS LFA sonar operation. Description of the PE and AIM
    models, including AIM input parameters for animal movement, diving
    behavior, and marine mammal distribution, abundance, and density are
    described in detail in the Navy application and the draft OEIS/EIS and
    are not discussed further in this document. NMFS recommends reviewers
    read these documents if additional information is desired.
        Using the AIM model, the Navy developed 31 acoustic modeling
    scenarios for the major ocean regions (which are described in the
    application and draft OEIS/EIS). Locations were carefully selected by
    the Navy to represent the highest potential effects for each of the
    three major ocean acoustic regimes where SURTASS LFA sonar would be
    employed. These acoustic regimes were: (1) Deep-water convergence
    propagation zone, (2) near surface duct propagation zone, and (3)
    shallow water bottom interaction propagation zone. These scenarios
    represent the condition under which, on average, the greatest number of
    animals could be exposed to the greatest number of pings at the highest
    RLs and were considered the most severe conditions that could be
    expected from operation of the SURTASS LFA sonar system. Thus, if
    SURTASS LFA sonar operations were conducted in an area that was not
    acoustically modeled, the Navy believes the potential effects would
    most likely be less than those obtained from the most similar scenario
    in the analysis. The modeled scenarios were then used by the Navy to
    estimate the percentages of marine mammal stocks potentially affected.

    Risk Analysis

        In order to determine the potential impacts that exposure to LF
    sound from SURTASS LFA sonar operations could have on marine mammals,
    biological risk standards were defined by the Navy with associated
    measurement parameters. Based on the MMPA, the potential for biological
    risk was defined as the probability for injury or behavioral harassment
    of marine mammals. In this analysis, behavioral harassment is defined
    as a significant disturbance of a biologically important behavior. The
    potential for biological risk is a function of an animal's exposure to
    a sound that would potentially cause hearing, behavioral, psychological
    or physiological effects. The measurement parameters for

    [[Page 15386]]

    determining exposure were RLs in dB, the length of the signal (ping),
    and the number of pings received.
        The Navy interprets the results of the LFS SRP to justify use of
    unlimited exposure during a mission to 120 dB as the lowest value for
    risk. Below this level, the risk of a biologically significant response
    from marine mammals approaches zero. It is important to note that risk
    varies with both level and number of exposures.
        In the draft OEIS/EIS and small take application, the Navy
    calculated the risks for take by non-serious injury based on criteria
    of 180 dB, which, based on Ridgway et al. (1997), is a conservative
    value for the onset of a minor TTS in hearing. Ridgway et al.'s (1997)
    measurement at one-second duration implies that the TTS threshold for a
    100-second signal would be between 182 and 172 dB, depending upon the
    formula used (Navy, 1999). The Navy believes that the 180-dB single
    ping equivalent (SPE) criterion can be considered conservative.
    However, as mentioned previously in this document, in order for marine
    mammals to incur serious injury, the RL would need to be significantly
    higher, and therefore, the marine mammal would have to be much closer
    to the SURTASS LFA sonar array than the 1 km (0.54 nm) radius around
    the vertical array which delineates the 180 dB sound field. With three
    levels of mitigation monitoring for detecting marine mammals (described
    later in this document (see Mitigation)), it is unlikely that any
    marine mammal would get that close before either turning away from the
    annoyance, or being detected and the SURTASS LFA sonar shut down.
    However, because the probability is not zero, the Navy has included
    this scenario in its authorization request.
        Because the LFS SRP failed to document any extended biologically
    significant response at maximum RLs up to 150 dB, the Navy determined
    that there was a 2.5-percent value of a risk of an animal incurring a
    disruption of biologically important behavior at an SPL of 150 dB, a
    50-percent risk at 165 dB, and a 95-percent risk at 180 dB.
        This analysis of risk is used by the Navy as an alternative to an
    all-or-nothing use of standard thresholds for the onset of either
    behavioral change or injury. The subsequent discussion of risk function
    emphasizes the advantages of using a smoothly varying model of
    biological risk in relation to sound exposure. However, for the
    purposes of estimating the number of individuals that could potentially
    be injured from SURTASS LFA sonar operations, this document uses a
    simpler calculation. Given the low numbers of individual marine mammals
    that could potentially experience high received levels, the added
    complexity of an ``injury continuum'' was not deemed necessary by the
    Navy.
        When SURTASS LFA sonar transmits, there is a boundary which will
    enclose a volume in which received levels exceed 180 dB, and a volume
    outside this boundary which experiences received levels below 180 dB.
    In this analysis, the 180-dB boundary is emphasized because it
    represents a single-ping RL that can be considered to be a
    scientifically reasonable estimate for the potential onset of harm or
    injury. Therefore, the level of risk for marine mammals depends on
    their location in relation to SURTASS LFA sonar. As mentioned
    previously, the Navy scientific team established the threshold for risk
    of harm as a single ping at 180 dB (Navy, 1999b). Harm was defined in
    this context as onset TTS. Under the Navy proposal, a marine mammal
    would have to receive one ping greater than, or equal to 180 dB or many
    pings at a slightly lower RL to potentially incur non-serious injury.
    For serious injury, the animal would have to be well within the 180-dB
    sound field at the onset of a transmission.
        However, NMFS scientists and other scientists are in general
    agreement that TTS is not an injury (i.e., does not result in tissue
    damage) but is an impairment to hearing (resulting in an increased
    elevation in hearing sensitivity) that may last for a few minutes to a
    few days, depending upon the level and duration of exposure. In
    addition, there is no evidence that TTS would occur in marine mammals
    at an SPL of 180 dB, and, in fact, Schlundt et al. (2000) indicates
    that onset TTS, for at least some species, occurs at significantly
    higher SPLs. Therefore, in this document, NMFS makes clear that,
    although TTS is not an injury (i.e., Level A harassment), because PTS
    is considered an injury (Level A harassment), and because scientists
    have noted that a range of only 15-20 dB may exist between the onset of
    TTS and the onset of PTS, TTS is considered by NMFS to be in the upper
    portion of the Level B harassment zone (near the lower end of the Level
    A harassment zone). Therefore, onset PTS, not onset TTS, is considered
    by NMFS to be the lower end of Level A harassment. NMFS believes that
    establishing TTS at the upper end of the Level B harassment zone is
    both precautionary and warranted by the science. However, mitigation
    measures, such as establishing safety zones, should be applied whenever
    a marine mammal has the potential to incur a TTS in hearing in order to
    prevent an animal incurring a PTS injury.
        While, the Navy believes that the probability of a marine mammal
    occurring within the 180-dB sound field at the onset of a transmission
    is nearly zero because of the proposed monitoring program (described
    later in this document), because the monitoring is not 100 percent
    effective, some Level A harassment takings still need to be considered
    possible.
        Before the biological risk standards could be applied to realistic
    SURTASS LFA sonar operational scenarios, two factors had to be
    considered by the Navy which resulted in the development of the risk
    continuum approach: (1) How does risk vary with repeated sound
    exposure? and (2) how does risk vary with RL? These questions have been
    addressed by the Navy by developing a function that translates the
    history of repeated exposures (as calculated in the AIM) into an
    equivalent RL for a single exposure with a comparable risk. This
    approach is similar to those adopted by previous studies of risk to
    human hearing (Richardson et al., 1995; Crocker, 1997).

    Effects of Repeated Exposure

        It is intuitive to assume that effects would be greater for
    repeated exposures than for a single ping. However, because no
    published data on repeated exposures of LF sound on marine mammals
    exist, the Navy turned to the most applicable human data. Based on the
    analysis of Richardson et al. (1995) and Kryter (1985), the potential
    for effects of repeated exposure on marine mammals was modeled on the
    extensive data available for human subjects. Based on discussion in
    Richardson et al. (1995) and consistent with Crocker (1997), the Navy
    determined that the best scientific information available is based on
    human model and, therefore, the formula L + 5log10(N) (where
    L = ping level in dB and N is the number of pings) defines the single
    ping equivalent (SPE). This formula then is considered appropriate for
    assessing the risk to a marine mammal from a significant disturbance of
    a biologically important behavior from LF sound like SURTASS LFA sonar
    transmissions.

    Estimation of Potential Effect to Marine Mammal Stocks

        The potential effects on marine mammals from operation of SURTASS
    LFA sonar will not cause the direct removal of animals, but may result
    in a small reduction of an affected individual animal's overall
    reproductive

    [[Page 15387]]

    success. Based on AIM modeling results, the primary effects are from
    the potential for a significant disturbance of a biologically important
    behavior.
        To estimate the percentage of marine mammal stocks affected on a
    yearly basis, the typical annual operating schedule for SURTASS LFA
    sonar was correlated by the Navy to the modeled site scenarios. Even
    though the Navy may not have the maximum number of systems operating
    during the next 5 years, its analysis incorporated four systems with
    six operations each annually. With two vessels in the Pacific/Indian
    Ocean area and two vessels in the Atlantic/Mediterranean area, the Navy
    estimates there could be up to 12 operations in each of these oceanic
    basin areas. Using a total of 12 operations in each large geographic
    area (e.g., Eastern North Pacific, Western North Atlantic), the Navy
    calculated take estimates based on a 20-day exercise (actually under
    the nominal schedule mentioned previously in this document the Navy
    proposes two 9-day exercises or a total of 18 days, not 20 days of
    exercise). NMFS concurs with this approach but notes that because only
    2 SURTASS LFA sonar vessels will be available through 2002, possibly 3
    vessels during 2003, and possibly 4 vessels during 2004 and 2005, the
    Navy's projected incidental harassment levels found in the draft OEIS/
    EIS and application are overestimates of potential harassment levels
    during the early period of these regulations. NMFS estimates,
    therefore, that there would be a total of 12 active missions annually
    during the first two years of these regulations (6 in each ocean
    basin), 18 during the third year (6 in one ocean basin, 12 in the
    other), and the maximum of 24 active missions during the last 2 years
    of these regulations (12 in each of the two ocean basins).
        AIM Modeling in Table 4-10 in the application (Table 4.2-10 in the
    draft OEIS/EIS) provides estimates of the percentage of stocks
    potentially affected for single SURTASS LFA sonar operations. Tables 4-
    12 and 4-13 in the application (Tables 4.2-12 and 4.2-13 in the draft
    OEIS/EIS) provide an example of annual total estimates of percentages
    of marine mammal stocks potentially affected by a total of 24
    operations (12 in each of the two ocean basins). As mentioned
    previously however, this number of operations are unlikely until the
    latter part of the effectiveness period of these regulations. Also,
    because each oceanic area is assumed to contain one or more discrete
    stocks of each affected species, these estimates are not additive when
    determining effects on marine mammal stocks. It should also be
    recognized that the scenarios chosen by the Navy are not the only
    possible combinations of where the SURTASS LFA sonar will operate. The
    potential effects from other scenarios can be estimated by those so
    wishing to do so by presupposing the areas in which the Navy would
    conduct SURTASS LFA sonar operations annually in each oceanic basin
    area, determining from Table 4-10 the percentage of each stock that may
    potentially be affected, and adding those percentages together for each
    affected stock. This is what NMFS proposes to do annually for each LOA
    issued. Also, as pertinent new information becomes available that would
    improve the Navy model, NMFS anticipates that the Navy could rerun the
    AIM models and recalculate take estimates. For this document however,
    NMFS is preliminarily adopting the Navy estimates shown in Tables 4-12
    and 4-13 as the best information available in that they are based on
    the most likely scenario with two systems operating in each of the two
    oceanic areas. As indicated either by using these two tables, or by
    choosing a different combination of potential geographic areas for
    SURTASS LFA sonar operations derived from Table 4-10, NMFS believes
    that the potential effect by SURTASS LFA sonar operations will be
    limited to only small percentages of the affected stocks of marine
    mammals and that potential effect will be limited to incidental
    harassment that will not adversely affecting the stock through annual
    rates of recruitment or survival.

    Mitigation for Marine Mammals

        This document preliminarily adopts the Navy proposal to use visual,
    passive acoustic, and active acoustic monitoring of the area
    surrounding the SURTASS LFA sonar array to prevent the incidental
    injury of marine mammals that might enter the 1 km (0.54 nm) safety
    zone. The three monitoring systems are described in the following
    section of this document. If a marine mammal (or sea turtle) was
    detected within the 1 km (0.54 nm) safety zone SURTASS LFA sonar
    transmissions would be immediately delayed or suspended. Transmissions
    could commence/resume 15 minutes after the marine mammal/sea turtle had
    left the area of the 180 dB sound field or there was no further
    detection of the animal within the 180 dB sound field. The protocol
    established by the Navy for implementing this temporary shut-down is
    described in the application (pages 10-11). SURTASS LFA sonar operators
    would be required to estimate SPLs prior to and during each operation
    to provide the information necessary to modify the operation, including
    delay or suspension of transmissions, in order not to exceed the
    mitigation sound field criteria.
        The Navy has proposed that the SURTASS LFA sonar operations would
    be conducted to ensure that the sound field does not exceed 180 dB
    (i.e., the zone of potential for injury to marine mammals) within 12 nm
    (22 km) of any coastline, including islands, nor in OBIAs that are
    outside the 12 nm (22 km) zone during the biologically important
    season(s) for that particular area. It should be noted that the 12 nm
    (22 km) safety zone restriction includes almost all marine-related
    critical habitats and National Marine Sanctuaries. Areas critical for
    marine mammals that are outside this safety zone can be nominated as an
    OBIA. This process was described earlier in this document.
        In addition, to establishing a safety zone at 180 dB to protect
    marine mammals and other noise sensitive marine animals, the Navy has
    proposed to establish a safety zone for human divers at 145 dB re 1
    microPa(rms) around all known human commercial and recreational diving
    sites. Although this geographic restriction is intended to protect
    human divers, its imposition will also reduce the LF sound levels
    received by marine mammals that are located in the vicinity of known
    dive sites.
        The Navy has proposed establishing OBIAs for marine mammal
    protection. These areas are defined as those areas of the world's
    oceans where marine mammals congregate in high densities to carry out
    biologically important activities such as feeding, migration, breeding,
    and calving. To date, the U.S. Navy has proposed three sites as OBIAs
    for SURTASS LFA sonar under these regulations. These areas are: (1) the
    North American East Coast between 30 deg. N and 50 deg.N from west of
    40 deg.W to the 200-m (656 ft) isobath; (2) the Antarctic Convergence
    Zone, from 20 deg.E to 120 deg.E, south of 55 deg.S, from October
    through March; and (3) the Costa Rica Dome, centered at 9 deg.N and
    88 deg.W, year-round. Also, an area included in this document, at the
    request of NOAA's National Ocean Service, is Penguin Bank off the
    Island of Kauai, Hawaii, inside the HIHWNMS. In addition, the Navy in
    its application, and NMFS in this document, is proposing a system for
    expanding the list of OBIAs. This process is described in more detail
    in NMFS' response to comment 25 earlier in this document.
        It should be recognized however, that the establishment of OBIAs is
    not

    [[Page 15388]]

    intended to apply to other Navy activities and sonar operations, but is
    proposed here as a mitigation measure to reduce incidental takings by
    SURTASS LFA sonar because it is practical considering SURTASS LFA
    sonar's offshore operation.

    Monitoring

        In order to minimize risks to potentially affected marine mammals
    that may be present in waters surrounding SURTASS LFA sonar, the Navy
    has proposed to: (1) Conduct visual monitoring from the ship's bridge
    during daylight hours, (2) use passive SURTASS LFA sonar to listen for
    vocalizing marine mammals; and (3) use high frequency active sonar
    (i.e., similar to a commercial fish finder) to monitor/locate/track
    marine mammals in relation to the SURTASS LFA sonar vessel and the
    sound field produced by the SURTASS LFA sonar source array.
        Through observation, acoustic tracking and establishment of shut-
    down criteria, the Navy will ensure, to the greatest extent
    practicable, that no marine mammals approach the SURTASS LFA sonar
    source closely enough to be subjected to potentially harmful sound
    levels (inside the 180 dB sound field; approximately 1 km (0.54 nm)
    from the source). The Navy estimates that the probability of detecting
    a marine mammal within the 180 dB sound field of the source array by at
    least one of these monitoring methods is between 70 and 99 percent.
    However, nominally, an effectiveness of 80 percent is used in the take
    calculations. The Navy's assumption incorporates the 70-percent
    effectiveness of the HFM3 sonar, and an additional conservative 5-
    percent contribution each for visual and passive monitoring. In
    general, the Navy believes that small, solitary marine mammals would be
    the most difficult to detect, while large whales and dolphin schools
    would be much easier to detect. However, as stated previously in this
    document, NMFS will not consider the effectiveness of the HFM3 sonar in
    reducing the incidental take of marine mammals by the SURTASS LFA sonar
    until such time as the Navy has demonstrated its effectiveness. In the
    meantime, NMFS will adopt only the geographic mitigation as being
    effective in reducing takes.
        NMFS has reviewed this Navy proposal and believes that the proposal
    can be modified to provide additional protection for marine mammals.
    Because the HFM3 has the capability to detect marine mammals, and track
    them, to a distance of 2 km (1.1 nm) from the source, NMFS is proposing
    to require the Navy to terminate transmissions whenever a marine mammal
    can receive a calculated SPE of 180 dB within the zone of
    detectability. This will require, however, both that the marine mammal
    remains within the zone of detectability between ``pings'' while the
    vessel is underway, and for the Navy to continue to monitor the 2 km
    (1.1 nm) zone between pings. Because the time between ``pings'' is 6-15
    minutes, and the Navy has already committed to visual and acoustic
    monitoring for no less than 30 minutes prior to a ``ping,'' monitoring
    will continue during the interim period and marine mammals will
    continue to be tracked.

    Reporting

        During routine operations of SURTASS LFA sonar, technical and
    environmental data would be collected and recorded. These would include
    data from visual and acoustic monitoring, ocean environmental
    measurements, and technical operational inputs. This information would
    become part of the data required from the LTM Program.

    Research

        The Navy proposes to provide a LTM program to conduct annual
    assessments of the potential cumulative impact of SURTASS LFA sonar
    operations on the marine environment, provide the necessary reporting
    to increase knowledge of the species, and to coordinate research
    opportunities and activities. This would include cumulative impact
    analyses of the annually tabulated injuries (if any) and harassments
    over the next 5 years. The purpose of the LTM program would be to
    continue scientific data collection once SURTASS LFA sonar is deployed.
        While NMFS believes that research conducted to date is sufficient
    to assess impacts on those species of marine mammals that were
    identified in public meetings as most susceptible to LF noise, it
    believes that it would be prudent to continue research over the course
    of the period of effectiveness of these regulations.

    Proposed LOA Conditions

        The proposed regulations have been designed to allow many of the
    mitigation, monitoring and reporting requirements to be detailed in the
    LOA, rather than in these regulations. This has been done to provide
    NMFS the ability to change these protective measures in a prompt manner
    to changing conditions. While public comment will be provided for
    substantial modifications to LOA requirements before being made
    effective, modifications can be implemented in a shorter period of time
    if contained in LOAs than would be possible if rulemaking were required
    for each modification. It should be understood that the public would be
    provided a comparable length of time for commenting on LOA
    modifications (except when NMFS determines that an emergency exists
    which impacts on the health and welfare of the marine mammal), whether
    or not those requirements were contained in regulations. However, for
    security reasons, locations and times for certain operations may need
    to be classified and not provided to the public.
        In the past, NMFS has promulgated rulemakings for small take
    authorizations that did not clearly describe LOA conditions. For this
    activity NMFS plans the following conditions (in addition to, or in
    clarification of, those found in these regulations).
        (1) Prior to each exercise, the marine mammal safety zone will be
    measured to determine the distance from the source to the 180-dB
    isobleth. That distance will be the established safety zone for that
    exercise; and
        (2) The Navy must test the effectiveness of HFM3 at detecting
    marine mammals within 0.5 km (0.3 nm), 1 km (0.54 nm) and 2 km (1.1 nm)
    of the source. A report must be provided to NMFS not later than 120
    days prior to the expiration of the first LOA.

    Designation of Biologically Important Marine Mammal Areas

        NMFS is proposing to establish a system under this proposed rule
    for the public to be able to propose areas for NMFS to consider adding
    to the list of biologically important areas for marine mammals. NMFS
    emphasizes that, in order for designation, an area must be of
    particular importance for marine mammals as an area for primary
    feeding, breeding, or migration, and not simply an area occupied by
    marine mammals. The proposed area should also not be within a
    previously designated area. In order for NMFS to begin the rulemaking
    process for designating areas of biological importance for marine
    mammals, proponents must petition NMFS and submit the information
    described in Sec. 216.191(a). If NMFS makes a preliminary determination
    that the area is biologically important for marine mammals, NMFS will
    propose rulemaking to add the recommended area to the list of
    previously designated areas. Through notice in the Federal Register,
    NMFS will invite information, suggestions, and comments on the proposal
    for a period of time not less

    [[Page 15389]]

    than 45 days from the date of publication in the Federal Register.
    After review of the comments and information, NMFS will make a final
    decision on whether to add the recommended area to the list found in
    Sec. 216.183(d). NMFS will either issue a final rulemaking on the
    proposal or provide notice in the Federal Register on its
    determination. It should be understood however, that proposals for
    designation of areas will not affect the status of LOAs while the
    rulemaking is in process. NMFS anticipates that the time between
    nominating an area and publication of a final determination is likely
    to take 8-12 months.

    Preliminary Conclusions

        Based on the scientific analyses detailed in the Navy application
    and further supported by information and data contained in the Navy's
    draft OEIS/EIS for SURTASS LFA sonar operations, NMFS concurs with the
    Navy that the incidental taking of marine mammals resulting from
    SURTASS LFA sonar operations would result in only small numbers (as the
    term is defined in Sec. 216.103) of marine mammals being taken, have no
    more than a negligible impact on the affected marine mammal stocks or
    habitats and not have an unmitigable adverse impact on Arctic
    subsistence uses of marine mammals. These conclusions are particularly
    supported by the proposed mitigation measures that would be implemented
    for all SURTASS LFA sonar operations and the proposed LTM program. This
    includes geographic operation restrictions, mitigation measures to
    prevent injury to any marine mammals, monitoring and reporting and
    supplemental research that will result in increased knowledge of marine
    mammal species, and the potential impacts of LF sound on these species.
    The latter measures offer the means of learning of, encouraging, and
    coordinating research opportunities, plans, and activities relating to
    reducing the incidental taking of marine mammals from anthropogenic
    underwater sound, and evaluating the possible long-term effects from
    exposing marine mammals to anthropogenic underwater sound.
        In addition to the mitigation measures described previously, the
    following factors need to be considered when determining whether a
    taking would be negligible: (1) The small number of SURTASS LFA sonar
    systems that will be operating world-wide; (2) the vessel must be
    underway while transmitting (in order to keep the receiver array
    deployed); (3) the low duty cycle and short mission periods; and (4)
    the possibility of a marine mammal being within the 180-dB sound field
    during sonar transmissions is unlikely.

    Information Solicited

        NMFS requests interested persons and organizations to submit
    comments, information, and suggestions concerning the content of the
    proposed regulations to authorize the taking. All commenters are
    requested to review the application prior to submitting comments and
    not submit comments solely on this Federal Register document. Comments
    on issues not relevant to either the potential impact of SURTASS LFA
    sonar on marine mammals or NMFS' responsibilities under the MMPA will
    not be considered.

    NEPA

        On July 30, 1999 (64 FR 41420), the Environmental Protection Agency
    (EPA) announced receipt of a draft OEIS/EIS from the U.S. Navy on the
    deployment of SURTASS LFA sonar. The public comment period on the Draft
    EIS ended on October 28, 1999. On February 2, 2001 (65 FR 8788), EPA
    announced receipt of a final OEIS/EIS from the U.S. Navy on the
    deployment of SURTASS LFA sonar. NMFS is a cooperating agency, as
    defined by the Council on Environmental Quality (40 CFR 1501.6), in the
    preparation of these documents.

    ESA

        NMFS will be consulting with the U.S. Navy under section 7 of the
    ESA on this action. In that regard, on October 19, 1999, the Navy has
    submitted to NMFS a Biological Assessment under the ESA. This
    consultation will be concluded prior to a determination on issuance of
    a final rule and exemption.

    Classification

        This action has been determined to be significant for purposes of
    E.O. 12866. NMFS has preliminarily determined that this rule, if
    implemented, will provide NMFS and the public, through the Navy's
    monitoring and research program, with information on the SURTASS LFA
    sonar system's effect on the marine environment, especially on marine
    mammals. Without an authorization under the MMPA, NMFS and the public
    are unlikely to receive this information. NMFS believes that obtaining
    this information is extremely important because SURTASS LFA sonar is
    not the only LF noise source in the world's oceans, and the scientific
    findings resulting from monitoring and research is likely to be
    directly applicable to other activities. In addition, this rule, if
    implemented, and any LOAs issued thereunder, would impose appropriate
    mitigation measures for protecting marine mammals, sea turtles and
    other marine life. Without these regulations and LOAs, mitigation
    measures could not be required to be undertaken by the U.S. Navy.
        While a determination to eventually deploy the SURTASS LFA sonar
    system will be made by the Navy, NMFS notes that additional benefits
    for implementing this proposed rule is an increased level of national
    defense, and improved survivability of U.S. armed forces at sea, and
    the Navy's associated multi-billion dollar naval assets. The cost to
    the Navy cannot be fully determined at this time but these costs would
    be incurred through implementation of the LTM and LTR programs that
    will be required under this proposed rule. Preliminarily, NMFS believes
    that this cost would be approximately $ 1 million annually.
        The Assistant General Counsel for Legislation and Regulation of the
    Department of Commerce has certified to the Chief Counsel for Advocacy
    of the Small Business Administration that this proposed rule, if
    adopted, will not have a significant economic impact on a substantial
    number of small entities within the meaning of the Regulatory
    Flexibility Act. If implemented, this proposed rule would affect only
    the U.S. Navy which, by definition, is not a small business. It will
    also affect a small number of contractors providing services related to
    reporting the impact of SURTASS LFA sonar on marine mammals. Some of
    the affected contractors may be small businesses, but the number
    involved would not be substantial. Further, since the research 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. These requirements have been approved by OMB
    under control number 0648-0151, and include applications for LOAs, and
    an annual report. 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.

    [[Page 15390]]

        The reporting burden for the approved collections-of-information
    are preliminarily estimated to be approximately 80 hours for each
    annual application for a LOA (total of 2 in FY2001-FY2002, 3 in FY
    2003, and 4 in FY 2004), and 80 hours each for interim and final
    reports. These estimates include the time for reviewing instructions,
    searching existing data sources, gathering and maintaining the data
    needed, and completing and reviewing the collection-of-information.
    Send comments regarding these burden estimates, or any other aspect of
    this data collection, including suggestions for reducing the burden, to
    NMFS and OMB (see ADDRESSES).

    List of Subjects in 50 CFR Part 216

        Exports, Fish, Imports, Indians, Labeling, Marine mammals,
    Penalties, Reporting and recordkeeping requirements, Seafood,
    Transportation.

        Dated: March 12, 2001.
    Rolland A. Schmitten,
    Acting Assistant Administrator for Fisheries, National Marine Fisheries
    Service.

        For reasons set forth in the preamble, 50 CFR part 216 is proposed
    to be 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., unless otherwise noted.

        2. A definition for ``single ping equivalent'' is added in
    alphabetic order to Sec. 216.103 to read as follows:

    Sec. 216.103  Definitions.

    * * * * *
        Single ping equivalent means the summation of the intensities for
    all received brief acoustic sound into an equivalent exposure from one
    ping, which is always at a higher level than the highest individual
    ping received. It is a methodology used during acoustic modeling of
    potential impacts to marine mammals exposed to sonar signals. This
    method estimates the total exposure of each individually modeled
    mammal, which was exposed to multiple pings over an extended period of
    time.

        3. Subpart Q is added to part 216 to read as follows:

    Subpart Q--Taking of Marine Mammals Incidental to Navy Operations
    of Surveillance Towed Array Sensor System Low Frequency Active
    Sonar

    Sec.
    216.180  Specified activity and specified geographical region.
    216.181  Effective dates.
    216.182  Permissible methods of taking.
    216.183  Prohibitions.
    216.184  Mitigation.
    216.185  Requirements for monitoring.
    216.186  Requirements for reporting.
    216.187  Applications for Letters of Authorization.
    216.188  Letters of Authorization.
    216.189  Renewal of Letters of Authorization.
    216.190  Modifications to Letters of Authorization.
    216.191  Designation of Biologically Important Marine Mammal Areas.

    Subpart Q--Taking of Marine Mammals Incidental to Navy Operations
    of Surveillance Towed Array Sensor System Low Frequency Active
    Sonar

    Sec. 216.180  Specified activity and specified geographical region.

        Regulations in this subpart apply only to the incidental taking of
    those marine mammal species specified in paragraph (b) of this section
    by the U.S. Navy, Department of Defense, engaged in the operation of
    SURTASS LFA sonar operations, in areas specified in paragraph (a) of
    this section. The authorized activities, as specified in a Letter of
    Authorization issued under Secs.  216.106 and 216.188, include the
    transmission of low frequency sounds from the SURTASS LFA sonar, and
    the transmission of high frequency sounds from the mitigation sonar,
    described in Sec. 216.185 during training, testing, and routine
    military operations of SURTASS LFA sonar.
        (a) With the exception of those areas specified in Sec. 216.183(d),
    the incidental taking by harassment may be authorized in the following
    areas as specified in a Letter of Authorization:
        (1) North Atlantic Ocean,
        (i) Western North Atlantic, from 35 deg. N. lat. north to a line
    between Cape Chidley, Labrador northeast to Nuuk, Greenland, and from
    the North American continent east to 41 deg. W. long. (Area A),
        (ii) Eastern North Atlantic, from 35 deg. N. lat. north to 72 deg.
    N. lat. and 41 deg. W. long. east to the European continent (Area B),
        (2) Mediterranean Sea (Area C),
        (3) North Pacific Ocean,
        (i) Western North Pacific, from 20 deg. N. lat. north to the
    Aleutian Island chain and the Sea of Okhotsk, and from the Asian
    continent east to 175 deg. W. long. (Area D),
        (ii) Eastern North Pacific, from 42 deg. N. lat. north to Alaska
    and the south side of the Aleutian Islands and from the North American
    continent west to 175 deg. W. long. (Area E),
        (4) Central Atlantic Ocean,
        (i) Eastern Central Atlantic, from 7 deg. S. lat. north to 35 deg.
    N. lat. and from the African continent west to 40 deg. W. long. between
    5 deg. N. lat. and 35 deg. N. lat., to 30 deg. W. long. between 0 deg.
    lat. and 5 deg. N. lat., and to 20 deg. W. long. between 7 deg. S. lat.
    and 0 deg. lat. (Area F),
        (ii) Western Central Atlantic, from 5 deg. N. lat. north to 35 deg.
    N. lat., and from the American continent, east to 40 deg. W. long.
    (Area G),
        (5) Indian Ocean,
        (i) Eastern Indian Ocean, from 60 deg. S. lat. north to the Bay of
    Bengal, and Asian continent, and from 80 deg. E. long. east to the
    Asian continent, the Sunda Islands and Australia and to 150 deg. E.
    long. (Area H1),
        (ii) Western Indian Ocean, from 60 deg. S. lat. north to the
    Arabian Sea, and from 30 deg. E. long. east to 80 deg. E. long. (Area
    H2),
        (6) Central Pacific Ocean,
        (i) Western Central Pacific, from 175 deg. W. long., east to the
    Asian continent and Indonesia, and from 10 deg. S. lat., north to
    20 deg. N. lat. (Area I),
        (ii) Central Pacific, from 10 deg. S. lat., north to 42 deg. N.
    lat. between 175 deg. W. long. and 130 deg. W. long. (Area J1),
        (iii) Eastern Central Pacific, from 5 deg. S. lat. north along the
    American coastline to 42 deg. N. lat., from 130 deg. W. long. along
    10 deg. S. lat. to 105 deg. W. long., from 10 deg. S. lat. along
    105 deg. W. long. to 5 deg. S. lat., from 105 deg. W. long. along
    5 deg. S. lat. to the South American coastline, from 130 deg. W. long.
    along 42 deg. N. lat. to the North American coastline and from 42 deg.
    N. lat. to 10 deg. S. lat. along the 130 deg. W. long. line (Area J2),
        (7) South Pacific Ocean,
        (i) Western South Pacific from 60 deg. S. lat. north to 10 deg. S.
    lat. and from the east coast of Australia in the north and 150 deg. E.
    long. south of Australia east to 105 deg. W. long. (Area K),
        (ii) Eastern South Pacific from 60 deg. S. lat. north to 5 deg. S.
    lat. and from the 105 deg. W. long. east to the South American
    coastline in the north and 70 deg. W. long. in the south (Area L),
        (8) South Atlantic Ocean,
        (i) Western South Atlantic, from 60 deg. S. lat. north to 5 deg. N.
    lat. in the area west of 30 deg. W. long., and from 60 deg. S. lat.
    north to 0 deg. lat. in the area east of 30 deg. W. long. and from the
    South American continent east to 30 deg. W. long. between 0 deg. and
    5 deg. N. lat. and east to 20 deg. W. long. between 0 deg. and 60 deg.
    S. lat. (Area M), and
        (ii) East South Atlantic from 50 deg. S. lat. north to 7 deg. S.
    lat. and from 20 deg. W. long. east to the African coastline in the
    north and 30 deg. E. long. south of the continent (Area N).
        (b) The incidental take by harassment and non-serious injury of
    marine

    [[Page 15391]]

     mammals under the activity identified in this section is limited to
    the following species and species groups:
        (i) Mysticete whales, including, blue whale (Balaenoptera
    musculus), fin whale (Balaenoptera physalus), minke whale (Balaenoptera
    acutorostrata), Bryde's whale (Balaenoptera edeni), sei whale
    (Balaenoptera borealis), humpback whale (Megaptera novaeangliae),
    northern right whale (Eubalaena glacialis), southern right whale
    (Eubalaena australis), pygmy right whale (Capera marginata), and gray
    whales (Eschrichtius robustus).
        (ii) Odontocete whales, including Risso's dolphin (Grampus
    griseus), rough-toothed dolphin (Steno bredanensis), Fraser's dolphin
    (Lagenodelphis hosei), right-whale dolphin (Lissodelphis spp.),
    bottlenose dolphin (Tursiops truncatus), common dolphin (Delphinus
    delphis), Dall's porpoise (Phocoenoides dalli), harbor porpoise
    (Phocoena phocoena), beluga whale (Delphinapterus leucas), Stenella
    spp., Lagenorhynchus spp., Cephalorhynchus spp.melon-headed whale
    (Peponocephala spp.), beaked whales (Berardius spp., Hyperoodon spp.,
    Mesoplodon spp.), Cuvier's beaked whale (Ziphius cavirostris),
    Shepard's beaked whale (Tasmacetus shepherdi), Longman's beaked whale
    (Indopacetus pacificus), killer whale (Orcinus orca), false killer
    whale (Pseudorca crassidens), pygmy killer whale (Feresa attenuata),
    sperm whale (Physeter macrocephalus), dwarf and pygmy sperm whales
    (Kogia simus and K. breviceps), and short-finned and long-finned pilot
    whales (Globicephala macrorhynchus and G. melas).
        (iii) Pinnipeds, including harbor seals (Phoca vitulina), spotted
    seals (P. largha), ribbon seals (P. fasciata), gray seals (Halichoerus
    grypus), hooded seal (Cystophora cristata), elephant seals (Mirounga
    angustirostris and M. leonina). Hawaiian monk seals (Monachus
    schauinslandi), Mediterranean monk seals (Monachus monachus), northern
    fur seals (Callorhinus ursinus); southern fur seals (Arctocephalus
    spp.), Steller sea lions (Eumetopias jubatus), California sea lions
    (Zalophus californianus), Australian sea lions (Neophoca cinerea), New
    Zealand sea lions (Phocarctos hookeri), and South American sea lions
    (Otaria flavescens).

    Sec. 216.181  Effective dates.

        Regulations in this subpart are effective from May 1, 2001, through
    April 30, 2006.

    Sec. 216.182  Permissible methods of taking.

        (a) Under Letters of Authorization issued pursuant to Secs. 216.106
    and 216.188, the Holder of the Letter of Authorization may
    incidentally, but not intentionally, take marine mammals by harassment
    and non-serious injury within the area described in Sec. 216.180(a),
    provided the activity is in compliance with all terms, conditions, and
    requirements of these regulations and the appropriate Letter of
    Authorization.
        (b) The activities identified in Sec. 216.180 must be conducted in
    a manner that minimizes, to the greatest extent practicable, any
    adverse impacts on marine mammals, their habitat, and on the
    availability of marine mammals for subsistence uses.

    Sec. 216.183  Prohibitions.

        Notwithstanding takings authorized by Sec.  216.180 and by a Letter
    of Authorization issued under Secs. 216.106 and 216.188, no person in
    connection with the activities described in Sec. 216.180 shall:
        (a) Take any marine mammal not specified in Sec. 216.180(b);
        (b) Take any marine mammal specified in Sec. 216.180(b) other than
    by incidental, unintentional harassment or non-serious injury;
        (c) Take any marine mammal while operating under a Letter of
    Authorization in either a non-operating area, indicated in Figure 1, or
    in a geographic operating area for which an authorization for taking
    has not been issued under a Letter of Authorization;
        (d) Operate the SURTASS LFA sonar while under a Letter of
    Authorization, such that the SURTASS LFA sonar sound field exceeds 180
    dB (re 1 micro Pa(rms)) within 12 nautical miles (22 kilometers) of any
    coastline, including offshore islands, or any designated offshore area
    that is biologically important for marine mammals that exist outside
    the 12 nautical miles (22 kilometers) zone during the biologically
    important season for that particular area.
        (e) The following areas have been designated by NMFS as offshore
    areas of critical biological importance for marine mammals (by season
    if appropriate):

    ----------------------------------------------------------------------------------------------------------------
             Name of Area                       Location of Area                       Months of Importance
    ----------------------------------------------------------------------------------------------------------------
    (1) 200-m isobath North          From 30 deg. N to 50 deg. N west of 40                               Year-Round
     American East Coast                                             deg. W
    (2) Antarctic Convergence Zone         30 deg. E to 80 deg. E:45 deg. S                    October through March
                                              80 deg. E to 1500 E:55 deg. S
                                          150 deg. E to 50 deg. W:60 deg. S
                                              50 deg. W 30 deg. E:50 deg. S
    (3) Costa Rican Dome              Centered at 9 deg. N and at 88 deg. W       Year-round; no resident population
    (4) Penguin Bank                  Centered at 22 deg. N and at 159 deg.                 November 1 through May 1
    ----------------------------------------------------------------------------------------------------------------

        (f) Take a marine mammal specified in Sec.  216.180(b) if such
    taking results in more than a negligible impact on the species or
    stocks of such marine mammal; or
        (g) 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 216.188.

    Sec. 216.184  Mitigation.

        The activity identified in Sec. 216.180(a) must be conducted in a
    manner that minimizes, to the greatest extent practicable, adverse
    impacts on marine mammals and their habitats. When conducting
    operations identified in Sec. 216.180, the mitigation measures
    described in this paragraph and in the Letter of Authorization issued
    under Secs. 216.106 and 216.188 must be implemented.
        (a) Through monitoring described under Sec. 216.185, the Holder of
    a Letter of Authorization will ensure, to the greatest extent
    practicable, that no marine mammal is subjected to a single ping
    equivalent of 180-dB within the 180-dB re 1 micro Pa(rms) sound field.
        (b) If a marine mammal is detected within the 180-dB safety zone,
    SURTASS LFA sonar transmissions will be immediately suspended.
    Transmissions will not resume earlier than 15 minutes after:
        (1) All marine mammals have left the area of the 180-dB re 1 micro
    Pa(rms) sound field; and
        (2) There is no further detection of the animal within the 180-dB
    re 1 micro Pa(rms) sound field as determined by the visual and/or
    passive or active acoustic monitoring described in Sec. 216.185.

    [[Page 15392]]

        (c) The HFM3 source, described in Sec. 216.185 will be ramped-up
    slowly to operating levels over a period of no less than 5 minutes:
        (1) No later than 30 minutes before the first SURTASS LFA sonar
    transmission;
        (2) Prior to any SURTASS LFA sonar calibrations or testings that
    are not part of regular SURTASS LFA sonar transmissions described in
    paragraph (c)(1) of this section; and
        (3) Anytime after the HFM3 source has been powered down for a
    period of time greater than 2 minutes.

    Sec. 216.185  Requirements for monitoring.

        (a) In order to mitigate the taking of marine mammals by SURTASS
    LFA sonar to the greatest extent practicable, the Holder of a Letter of
    Authorization must:
        (1) Conduct visual monitoring from the ship's bridge during
    daylight hours;
        (2) Use low frequency passive SURTASS LFA sonar to listen for
    vocalizing marine mammals; and
        (3) Use high frequency active sonar to locate and track marine
    mammals in relation to the SURTASS LFA sonar vessel and the sound field
    produced by the SURTASS LFA sonar source array.
        (b) Pursuant to (a)(1)-(3) of this section monitoring must:
        (1) Commence no later than 30 minutes before the first SURTASS LFA
    sonar transmission;
        (2) Continue between transmission pings; and
        (3) Continue for at least 15 minutes after completion of the
    SURTASS LFA sonar transmission exercise;
        (c) Holders of Letters of Authorization issued pursuant to
    Secs. 216.106 and 216.188 for activities described in Sec. 216.180 are
    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.
        (d) Holders of Letters of Authorization must designate qualified
    on-site individuals to conduct the mitigation, monitoring and reporting
    activities specified in the Letter of Authorization issued pursuant to
    Sec. 216.106 and Sec. 216.188.
        (e) Holders of Letters of Authorization must conduct all monitoring
    and/or research required under the Letter of Authorization.

    Sec. 216.186  Requirements for reporting.

        (a) The Holder of a Letter of Authorization must submit an interim
    report to the Director, Office of Protected Resources, National Marine
    Fisheries Service, no later than 90 days prior to expiration of the
    Letter of Authorization. This report must contain all the information
    required by the Letter of Authorization.
        (b) A final comprehensive report must be submitted to the Director,
    Office of Protected Resources, National Marine Fisheries Service at
    least 240 days prior to expiration of these regulations. This report
    must contain all the information required by any final year Letter of
    Authorization.

    Sec. 216.187  Applications for Letters of Authorization.

        (a) To incidentally take marine mammals pursuant to these
    regulations, the U.S. Navy authority that is conducting the activity
    identified in Sec. 216.180, must apply for and obtain a Letter of
    Authorization in accordance with Secs. 216.106 and 216.188.
        (b) The application for an initial, or a renewal of, a Letter of
    Authorization must be submitted to the Director, Office of Protected
    Resources, National Marine Fisheries Service, at least 90 days before
    the date that either the vessel is scheduled to begin conducting
    SURTASS LFA sonar operations or the previous Letter of Authorization is
    scheduled to expire.
        (c) All applications for a Letter of Authorization must include the
    following information:
        (1) The date(s), duration, and the specified geographical region
    where the vessel's activity described in Sec. 216.180 will occur;
        (2) The species and/or stock(s) of marine mammals likely to be
    found within each specified geographical region;
        (3) The type of incidental taking authorization that is being
    requested (i.e., take by Level A and/or Level B harassment);
        (4) The estimated percentage of marine mammal species/stocks
    potentially affected in each specified geographic region and for the
    12-month period of effectiveness of the Letter of Authorization; and
        (5) The means of accomplishing the necessary monitoring and
    reporting that will result in increased knowledge of the species, the
    level of taking or impacts on populations of marine mammals.
        (d) NMFS will review an application for a Letter of Authorization
    in accordance with Sec.  216.104(b) and, if adequate and complete,
    issue a Letter of Authorization for a period of time not to exceed 1
    year.

    Sec. 216.188  Letters of Authorization.

        (a) A Letter of Authorization, unless suspended or revoked will be
    valid for a period of time not to exceed one year, but may be renewed
    annually subject to annual renewal conditions in Sec. 216.189.
        (b) Each Letter of Authorization will set forth:
        (1) Permissible methods of incidental taking;
        (2) Authorized geographic areas for taking;
        (3) Means of effecting the least practicable adverse impact on the
    species of marine mammals authorized for taking, its habitat, and on
    the availability of the species for subsistence uses; and
        (4) Requirements for monitoring and reporting incidental takes.
        (c) Issuance of each Letter of Authorization will be based on a
    determination that the number of marine mammals taken by the activity
    will be small, that the total number of marine mammals taken by the
    activity, specified in Sec. 216.180, as a whole will have no more than
    a negligible impact on the species or stock of affected marine
    mammal(s), and that the total taking will not have an unmitigable
    adverse impact on the availability of species or stocks of marine
    mammals for taking for subsistence uses.
        (d) Notice of issuance or denial of a Letter of Authorization will
    be published in the Federal Register within 30 days of a determination.

    Sec. 216.189  Renewal of Letters of Authorization.

        (a) A Letter of Authorization issued under Sec. 216.106 and
    Sec. 216.188 for the activity identified in Sec. 216.180 will be
    renewed annually upon:
        (1) Notification to the National Marine Fisheries Service that the
    activity described in the application submitted under Sec. 216.187 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) Notification to the National Marine Fisheries Service of the
    information items identified in Sec. 216.187(c), including the planned
    geographic area(s), and anticipated duration of each SURTASS LFA sonar
    operation;
        (3) Timely receipt of the monitoring reports required under Sec.
    216.185, which have been reviewed by the National Marine Fisheries
    Service and determined to be acceptable;
        (4) A determination by the National Marine Fisheries Service that
    the mitigation, monitoring and reporting measures required under
    Secs. 216.184 and 216.185 and the Letter of Authorization were
    undertaken and will be undertaken during the upcoming annual period of
    validity of a renewed Letter of Authorization; and

    [[Page 15393]]

        (5) 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, that the total number of marine mammals taken by
    the activity, specified in Sec. 216.180, as a whole will have no more
    than a negligible impact on the species or stock of affected marine
    mammal(s), and that the total taking will not have an unmitigable
    adverse impact on the availability of species or stocks of marine
    mammals for taking for subsistence uses.
        (b) If a request for a renewal of a Letter of Authorization issued
    under Secs. 216.106 and 216.188 indicates that a substantial
    modification to the described work, mitigation or monitoring will occur
    during the upcoming season, or if the National Marine Fisheries Service
    proposes a substantial modification to the Letter of Authorization, the
    National Marine Fisheries Service will provide the public a period of
    30 days for review and comment on the requested modification. Amending
    the list of areas for upcoming SURTASS LFA sonar operations is not
    considered a substantial modification to the Letter of Authorization.
        (c) 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. 216.190  Modifications to Letters of Authorization.

        (a) In addition to complying with the provisions of Secs. 216.106
    and 216.188, 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 216.188
    and subject to the provisions of this subpart shall be made by the
    National Marine Fisheries Service until after notification and an
    opportunity for public comment has been provided. For purposes of this
    paragraph, a renewal of a Letter of Authorization under Sec. 216.189,
    without modification, except for the period of validity and a listing
    of planned operating areas, or for moving the authorized SURTASS LFA
    sonar system from one ship to another, are not considered substantive
    modifications.
        (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. 216.180(b), a Letter of
    Authorization issued pursuant to Secs. 216.106 and 216.188 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.

    Sec. 216.191  Designation of Biologically Important Marine Mammal
    Areas.

        In order for the National Marine Fisheries Service to designate
    areas that are considered of biological importance for marine mammals
    under this rule, proponents must petition the Agency by requesting an
    area be added to the list of biologically important areas in
    Sec. 216.183(d) and submitting the following information:
        (a) Geographic region proposed for consideration (including
    geographic boundaries) as an area of importance,
        (b) A list of marine mammals, within the proposed geographic
    region,
        (c) Whether the proposal is for year-round designation or seasonal,
    and if seasonal, months of years for proposed designation, and
        (d) Detailed information on the biology of marine mammals within
    the area including estimated population size, distribution, density,
    status; and principal biological activity during the proposed period of
    designation of the area sufficient for the National Marine Fisheries
    Service to make a preliminary determination that the area is
    biologically important for marine mammals.
        (e) In order for the National Marine Fisheries Service to designate
    an area as an offshore area of biological importance for marine mammals
    under this subpart, the petitioner will need to provide detailed
    information on the area in regards to its importance for marine mammals
    for either primary feeding, breeding, or migration for those species of
    marine mammals that have the potential to be affected by low frequency
    sounds;
        (f) Proposed areas that are within 12 nautical miles (22
    kilometers) of any coastline including offshore islands, or within non-
    operating areas for SURTASS LFA sonar shown in Figure 1 will not be
    eligible for consideration under this section;
        (g) If the National Marine Fisheries Service makes a preliminary
    determination that the area is biologically important for marine
    mammals and, that area is not located within a previously designated
    area, the National Marine Fisheries Service will propose rulemaking to
    add the recommended area to Sec. 216.183(d).
        (h) Through notice in the Federal Register, the National Marine
    Fisheries Service will invite information, suggestions, and comments on
    the proposal for a period of time not less than 45 days from the date
    of publication in the Federal Register.
        (i) After review of the comments and information, the National
    Marine Fisheries Service will make a final decision on whether or not
    to add the recommended area to the list found in Sec. 216.183(d). The
    National Marine Fisheries Service will either issue a final rulemaking
    on the proposal or provide notice in the Federal Register on its
    determination.
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