[Federal Register Volume 66, Number 53 (Monday, March 19, 2001)]
[Proposed Rules]
[Pages 15375-15394]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-6751]


=======================================================================
-----------------------------------------------------------------------

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.

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

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.
BILLING CODE 3510-22-S

[[Page 15394]]

[GRAPHIC] [TIFF OMITTED] TP19MR01.000

[FR Doc. 01-6751 Filed 3-16-01; 8:45 am]
BILLING CODE 3510-22-C