[Federal Register Volume 67, Number 136 (Tuesday, July 16, 2002)]
[Rules and Regulations]
[Pages 46712-46789]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-16853]



[[Page 46711]]

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Part II





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Part 216



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

  Federal Register / Vol. 67, No. 136 / Tuesday, July 16, 2002 / Rules 
and Regulations  

[[Page 46712]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 990927266-2137-03; 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: Final rule.

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SUMMARY: NMFS, upon application from the U.S. Navy, is issuing 
regulations to govern the unintentional takings of small numbers of 
marine mammals incidental to Navy operation of the Surveillance Towed 
Array Sensor System (SURTASS) Low Frequency Active (LFA) Sonar. 
Issuance of regulations, and Letters of Authorization under these 
regulations, governing unintentional incidental takes of marine mammals 
in connection with particular activities is required by the Marine 
Mammal Protection Act (MMPA) when the Secretary of Commerce 
(Secretary), after notice and opportunity for comment, finds, as here, 
that such takes will have a negligible impact on the species and stocks 
of marine mammals and will not have an unmitigable adverse impact on 
the availability of them for subsistence uses. These regulations do not 
authorize the Navy's operation of SURTASS LFA sonar as such 
authorization is not within the jurisdiction of the Secretary. Rather, 
these regulations authorize the unintentional incidental take of marine 
mammals in connection with this activity and prescribe methods of 
taking and other means of effecting the least practicable adverse 
impact on marine mammal species and their habitat, and on the 
availability of the species for subsistence uses.

DATES: Effective from August 15, 2002 through August 15, 2007.

ADDRESSES: A copy of the Navy application and a list of references used 
in this document may be obtained by writing to Donna Wieting, Chief, 
Marine Mammal Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service, 1315 East-West Highway, Silver 
Spring, MD 20910-3226 or by telephoning the contact listed here (see 
FOR FURTHER INFORMATION CONTACT). The NMFS' Administrative Record for 
this action is available for viewing, by appointment during regular 
business hours, at the above address. Copies of letters, documents and 
the public hearing record are available, at copy cost, from this 
address.
    Comments regarding the burden-hour estimate or any other aspect of 
the collection of information requirement contained in this final rule 
should be sent to the Chief, and to the Office of Information and 
Regulatory Affairs, Office of Management and Budget (OMB), Attention: 
NOAA Desk Officer, Washington, DC 20503.

FOR FURTHER INFORMATION CONTACT: Kenneth R. Hollingshead (301) 713-
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.

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 deploying the 
SURTASS LFA sonar system for training, testing and routine military 
operations anywhere within the world's oceans (except for Arctic and 
Antarctic waters) for a period of time not to exceed 5 years. According 
to the original Navy application, SURTASS LFA sonar would 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 an expected maximum of 
two systems at sea at any one time.
    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. Low-frequency (LF) sound travels in seawater 
more effectively and for greater distances than higher frequency sound 
used by most other active sonars. According to the Navy, 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.

Description of the Activity

    The SURTASS LFA sonar system is a long-range, LF sonar (between 100 
and 500 Hertz) 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 up to 18 LF acoustic transmitting 
source elements (called projectors) suspended from a cable from 
underneath a ship. The projectors are devices that transform electrical 
energy to mechanical energy by setting up vibrations, or pressure 
disturbances with the water to produce the pulse or ping. The SURTASS 
LFA sonar acoustic transmission is an omnidirectional (full 360 
degrees) beam in the horizontal. The expected water depth of the center 
of the array is 400 ft (122 m), with a narrow vertical beamwidth that 
can be steered above or below the horizontal. The source level (SL) of 
an individual projector in the SURTASS LFA sonar array is approximately 
215 dB, and because of the physics involved in beam forming and 
transmission loss processes, the array can never have a sound pressure 
level (SPL) higher than the SPL of an individual projector. The 
expected minimum water depth at which the SURTASS LFA vessel will 
operate is 200 m (656.2 ft). Normally, the shallowest depth that it can 
operate is 100 m (328.1 ft).
    The typical SURTASS LFA sonar signal is not a constant tone, but 
rather a transmission of various signal types that vary in frequency 
and duration (including continuous wave (CW) and frequency-modulated 
(FM) signals). A complete sequence of sound transmissions is referred 
to by the Navy as a ``ping'' and can last as short as 6 seconds (sec) 
to as long as 100 sec, normally with no more than 10 seconds at any 
single frequency. The time

[[Page 46713]]

between pings is typically from 6 to 15 minutes. Average duty cycle 
(ratio of sound ``on'' time to total time) can be controlled but cannot 
be greater than 20 percent; typical duty cycle is between 10 and 15 
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) in 
order to keep the array deployed.
    The Navy anticipates that a normal SURTASS LFA sonar deployment 
schedule for a single vessel would involve about 270 days/year at sea 
(underway). A normal at-sea mission would occur over a 30-day period, 
made up of two 9-day exercise segments. The remaining 12 days of the 
at-sea mission would be spent in transit or repositioning the vessel. 
In an average 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 only. 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). Between 
missions, an estimated 95 days would be spent in port for upkeep and 
repair.
    At present, only one SURTASS LFA sonar system is available for 
deployment. A second SURTASS LFA sonar system is expected to be 
available shortly. Delivery of the third and fourth systems have been 
postponed until after FY 2007. As a result, under the 5-year window of 
these regulations, NMFS is authorizing marine mammal harassment takings 
for only 2 SURTASS LFA sonar systems, on average with one vessel 
operating in the Pacific-Indian Ocean area and one vessel in the 
Atlantic Ocean-Mediterranean Sea area. With two vessels, there would 
normally be 6 SURTASS LFA sonar missions in each of these oceanic 
basins (or equivalent shorter missions totaling no more than 432 hours 
of transmission/vessel/ year), or a total of 12 active sonar missions 
per year over the 5-year period of the regulations.

Description of Acoustic Propagation

    The following is a very basic and generic description of the 
propagation of LFA sonar signals in the ocean and is provided to 
facilitate understanding of this action. However, because the actual 
physics governing the propagation of SURTASS LFA sound signals is 
extremely complex and dependent on numerous in-situ environmental 
factors, the following is for illustrative purposes only.
    In actual SURTASS LFA sonar operations, the crew of the SURTASS LFA 
sonar platform will measure oceanic conditions (such as sea water 
temperature and salinity versus depth) prior to and during 
transmissions and at least every 12 hours, but more frequently when 
meteorological or oceanographic conditions change. These technicians 
will then use U.S. Navy sonar propagation models to predict and/or 
update sound propagation characteristics. According to the Navy, these 
extremely sophisticated computer simulations are among the most 
accurate in the world. The short time periods between actual 
environmental observations and the subsequent model runs further 
enhance the accuracy of these predictions. Fundamentally these models 
are used to determine what path the LF signal will take as it travels 
through the ocean and how strong the sound signal will be at given 
range along a particular transmission path.
    Accurately determining the speed at which sound travels through the 
water is critical to predicting the path that sound will take. The 
speed of sound in seawater varies directly with depth, temperature, and 
salinity. Thus, an increase in depth or temperature or, to a lesser 
degree, salinity will increase the speed of sound in seawater. However, 
the oceans are not homogeneous and the contribution of each of these 
individual factors is extremely complex and interrelated. The physical 
characteristics which determine the sound speed change with depth (in 
the case of temperature and salinity), season, geographic location, and 
locally, with time of day. After accurately measuring these factors, 
mathematical formulas or models can be used to generate a plot of sound 
speed versus water depth. This type of plot is generally referred to as 
a sound speed profile (SSP). Near the surface, ocean water mixing 
results in a fairly constant temperature and salinity. In this mixed 
layer, depth (pressure) dominates the SSP and sound speed increases 
with depth. Below the mixed layer, sea temperature drops rapidly in an 
area referred to as the thermocline. In this region, temperature 
dominates the SSP and speed decreases with depth. Finally, beneath the 
thermocline, the temperature becomes fairly uniform and increasing 
pressure causes the SSP to increase with depth.
    One way to envision sound traveling though the sea is to think of 
the sound as ``rays.'' As these rays travel though the sea, their 
direction of travel changes as a result of speed changes, bending or 
refracting toward areas of lower speed and away from areas of higher 
speed. Depending on environmental conditions, refraction can either be 
toward or away from the surface. Additionally, the rays can be 
reflected or absorbed when they encounter the surface or the bottom. 
Under the correct environmental conditions, sound rays can repeatedly 
be refracted upward and downward and thus become trapped in a duct or 
``sound channel.'' Similarly, reflections from the surface or the 
bottom can combine with refraction to create a duct. In the right 
circumstances, repeated refraction can result in long-range focusing 
and defocusing of the sound. Because of the possibility of multiple 
transmission paths, all of which are dependent on environmental 
conditions, accurate predictions of how sound travels in water is an 
extremely complex process.
    Some of the more prevalent acoustic propagation paths in the ocean 
include: acoustic ducting; convergence zone (CZ); bottom interaction; 
and shallow-water propagation.

Acoustic Ducting

    There are two types of acoustic ducting: surface ducts and sound 
channels.

Surface Ducts

    As previously discussed, the top layer of the ocean is normally 
well mixed and has relatively constant temperature and salinity. 
Because of the effect of depth (pressure), surface layers exhibit a 
slightly positive sound speed gradient (that is, sound speed increases 
with depth). Thus, sound transmitted within this layer is refracted 
upward toward the surface. If sufficient energy is subsequently 
reflected downward from the surface, the sound can become ``trapped'' 
by a series of repeated upward refractions and downward reflections. 
Under these conditions, a surface duct, or surface channel is said to 
exist. Sound trapped in a surface duct can travel for relatively long 
distances with its maximum range of propagation dependent on the 
specifics of the SSP, the frequency of the sound, and the reflective 
characteristics of the surface. As a general rule, surface duct

[[Page 46714]]

propagation will improve as the temperature uniformity and depth of the 
layer increase. For example, transmission is improved when cloudy, 
windy conditions create a well-mixed surface layer or in high-latitude 
midwinter conditions where the mixed layer extends to several hundred 
feet deep.

Sound Channels

    Variation of sound speed, or velocity, with depth causes sound to 
travel in curved paths. A sound channel is a region in the water column 
where sound speed first decreases with depth to a minimum value, and 
then increases. Above the depth of minimum value, sound is refracted 
(bent) downward; below the depth of minimum value, sound is refracted 
upward. Thus, much of the sound starting in the channel is trapped, and 
any sound entering the channel from outside its boundaries is also 
trapped. This mode of propagation is called sound channel propagation. 
This propagation mode experiences the least transmission loss along the 
path, thus resulting in long-range transmission.
    At low and middle latitudes, the deep sound channel axis varies 
from 1,970 to 3,940 ft (600 to 1,200 m) below the surface. It is 
deepest in the subtropics and comes to the surface in the high 
latitudes, where sound propagates in the surface layer. Because 
propagating sound waves do not interact with either the sea surface or 
seafloor, sound propagation in sound channels do not attenuate as 
rapidly as bottom- or surface-interacting paths. The most common sound 
channels used by SURTASS LFA sonar are convergence zones (CZs).

Convergence Zones

    CZs are special cases of the sound-channel effect. When the surface 
layer is narrow or when sound rays are refracted downward, regions are 
created at or near the ocean surface where sound rays are focused, 
resulting in concentrated levels of high sounds. The existence of CZs 
depends on the SSP and the depth of the water. Due to downward 
refraction at shorter ranges, sound rays leaving the near-surface 
region are refracted back to the surface because of the positive sound 
speed gradient produced by the greater pressure at deep ocean depths. 
These deep-refracted rays often become concentrated at or near the 
surface at some distance from the sound source through the combined 
effects of downward and upward refraction, thus causing a CZ. CZs may 
exist whenever the sound speed at the ocean bottom, or at a specific 
depth, exceeds the sound speed at the source depth. Depth excess, also 
called sound speed excess, is the difference between the bottom depth 
and the limiting, or critical depth.
    CZs vary in range from approximately 18 to 36 nm (33 to 67 km), 
depending upon the SSP. The width of the CZ is a result of complex 
interrelationships and cannot be correlated with any specific factor. 
In practice, however, the width of the CZ is usually on the order of 5 
to 10 percent of the range (see Figure 1). For optimum tactical 
performance, CZ propagation of SURTASS LFA signals is desired and 
expected in open ocean conditions.

BILLING CODE 3810-FF-P

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[GRAPHIC] [TIFF OMITTED] TR16JY02.000

BILLING CODE 3810-FF-C

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Bottom Interaction

    Reflections from the ocean bottom and refraction within the bottom 
can extend propagation ranges. For mid- to high-level frequency sonars 
(greater than 1,000 Hz), only minimal energy enters into the bottom; 
thus reflection is the predominant mechanism for energy return. 
However, at low frequencies, such as those used by the SURTASS LFA 
sonar source, the sound penetrates the ocean floor, and refraction 
within the seafloor, not reflection, dominates the energy return. 
Regardless of the actual transmission mode (reflection from the bottom 
or refraction within the bottom), this interaction is generally 
referred to as ``bottom-bounce'' transmission.
    Major factors affecting bottom-bounce transmission include the 
sound frequency, water depth, angle of incidence, bottom composition, 
and bottom roughness. A flat ocean bottom produces the greatest 
accuracy in estimating range and bearing in the bottom-bounce mode.
    For SURTASS LFA sonar transmissions between 100 and 330 Hz, bottom 
interaction would generally occur in areas of the ocean where depths 
are between approximately 200 m (average minimum water depth for 
SURTASS LFA sonar deployment) and 2,000 m (660 and 6,600 ft).

Shallow Water Propagation

    In shallow water, propagation is usually characterized by multiple 
reflection paths off the sea floor and sea surface. Thus, most of the 
water column tends to become ensonified by these overlapping reflection 
paths. As LFA signals approach the shoreline, they will be affected by 
shoaling, experiencing high transmission losses through bottom and 
surface interactions. Therefore, LFA sonar will not be effective in 
shallow, coastal waters.
    In summary, for the SURTASS LFA sonar signal in low- and mid-
latitudes, the dominant propagation paths for LFA signals are CZ and 
bottom interaction (2000 m (6,600 ft) depth). In high-latitudes, 
surface ducting provides the best propagation. In most open ocean 
water, CZ propagation will be most prominent. An example of this 
propagation path is shown in Figure 1. The SURTASS LFA sonar signals 
will interact with the bottom, but due to high bottom and surface 
losses, SURTASS LFA sonar signals will not penetrate coastal waters 
with appreciable signal strengths.

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 was accepted. During the 30-day comment 
period of that notification, significant comments were received from 
several organizations and individuals. On March 19, 2001 (66 FR 15375), 
NMFS published a proposed rule to authorize the U.S. Navy to take small 
numbers of marine mammals incidental to operation of SURTASS LFA sonar 
and requested comments, information, and suggestions concerning the 
request and the regulations proposed to govern the take. The comments 
provided to NMFS during the ANPR's comment period were addressed in the 
notice of proposed rulemaking. A copy of the proposed rulemaking 
document is available at: http://www.nmfs.noaa.gov/prot__res/PR2/
Acoustics__Program/acoustics.html
    While the comment period on the proposed rule was for a period of 
45 days, the comment period was extended until May 31, 2001, a period 
of 73 days (66 FR 26828, May 15, 2001). During that time period, NMFS 
received several thousand comments from organizations and interested 
citizens. Most of the comments received were petitions, postcards and 
form letters, either mailed or faxed to NMFS. Approximately 87 letters 
contained comments, information, and questions that NMFS determined 
warranted response in this document. Moreover, these letters reflected 
the same comments that were contained in the other letters and 
postcards, but in greater detail. They are available for viewing at the 
following location: http://fish.nmfs.noaa.gov/ibrm/OPRComments.lhtml?rulein=2. For those without access to the Internet, 
copies of these letters and all comments received by NMFS are available 
from NMFS at copy cost (see ADDRESSES).
    In addition to written comments, NMFS held three public hearings to 
obtain oral and written information from the public on NMFS' proposed 
rule (66 FR 19414, April 16, 2001). These public hearings were held in 
Los Angeles, CA on April 26, 2001, Honolulu, HI on April 28, 2001, and 
Silver Spring, MD on May 3, 2001. A copy of any or all of the hearing 
records is also available from NMFS at copy cost (see ADDRESSES).
    In this document, NMFS has (1) provided response to comments (RTCs) 
on both its proposed rule and the Navy's Final EIS; (2) provided cross-
references to the appropriate response in the Navy's Final Overseas 
Environmental Impact Statement and Environmental Impact Statement for 
SURTASS LFA Sonar (Final EIS) for comments that were addressed in the 
Navy's Final EIS; (3) edited some comments for clarity and brevity; and 
(4) grouped similar comments or chosen one or two comments to represent 
several similar comments. Some comments may not have been addressed 
because their meaning or relevance was not clear.
    In the following sections, NMFS is responding to comments on the 
Navy activity whether or not the comment was relevant to the Navy's 
application or the effect of SURTASS LFA sonar on marine mammals and 
thereby under the purview of NMFS. This was done to further facilitate 
understanding of the Navy's proposed action, the alternatives 
identified by the public to SURTASS LFA sonar, and the potential impact 
of SURTASS LFA sonar on marine mammals.

Activity Concerns (AC)

    Comment AC1: The Cold War is over. With no threat from the 
Russians, why is LFA needed?
    Response: It is the opinion of the Navy that the end of the Cold 
War doesn't end the need for naval surveillance. On 11 October 2001, in 
testimony before the Subcommittee on Fisheries Conservation, Wildlife 
and Oceans of the House Committee on Resources on the MMPA and SURTASS 
LFA Sonar, Vice-Admiral Dennis V. McGinn, the Deputy Chief of Naval 
Operations for Warfare Requirements and Programs made the following 
statement concerning the need for SURTASS LFA sonar:

    The Navy has an immediate, critical need for SURTASS LFA. By 
law, the Navy's primary mission is to maintain, train and equip 
combat-ready Naval forces capable of winning wars, deterring 
aggression and maintaining freedom of the seas. Antisubmarine 
warfare, or ASW, is a critical part of that mission. The Chief of 
Naval Operations (CNO) has stated that ASW is essential to sea 
control and maritime dominance. Many nations throughout the world 
can employ submarines to deny access to forward regions or to 
significantly delay the execution of crucial Navy operations. 
Because of its inherent stealth, lethality, and affordability, the 
submarine is a powerful threat. In 1998 the Chief of Naval 
Operations emphasized the importance of ASW in protecting our 
national security and set the direction for achieving operational 
primacy in ASW. He stated that the Navy's goal is to

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have the best-trained ASW force in the world, with the right set of 
tools to prevail in any type of conflict, including the kind we are 
now facing in the Middle East. My goal here today is to show you why 
I believe one of the primary ASW tools must be SURTASS LFA.

    Comment AC2: War/heightened tension clause is a major loophole 
allowing the Navy to operate wherever they want without mitigation. 
Both the Final EIS and the permitting process should address the use of 
SURTASS LFA sonar during war, combat, and heightened threat conditions.
    Response: War, combat, and heightened threat conditions are 
determined by the Congress or the National Command Authorities (NCA), 
not the U.S. Navy. Chapter 1 (Purpose and Need) and RTC 1-1.7 of the 
Final EIS identify the NCA as the President and the Secretary of 
Defense (or their duly designated alternates or successors), as 
assisted by the Chairman of the Joint Chiefs of Staff. Since these 
determinations are not made by the Navy, both the small take 
application and the Navy's Draft and Final EISs are specifically 
limited to employment of the SURTASS LFA sonar during training, 
testing, and routine military operations and will not cover use of the 
SURTASS LFA system in self-defense, in times of war, combat or 
heightened threat conditions mentioned by the commenter.
    The Final EIS does not include use of SURTASS LFA sonar during 
these conditions because these operations would be speculative at the 
EIS stage and outside the Navy's control. Moreover, as noted here, the 
Council on Environmental Quality (CEQ) regulations, Department of 
Defense (DOD) Directives and Executive Order (E.O.) 12114 provide 
specific guidance on what to do in emergencies that are not susceptible 
to the regular NEPA process.
    CEQ Regulations For Implementing the Procedural Provisions of the 
National Environmental Policy Act under 40 CFR 1506.11 concerning 
``Emergencies'' states,

    Where emergency circumstances make it necessary to take action 
with significant environmental impact without observing the 
provisions of these regulations, the Federal agency taking the 
action should consult with the Council about alternative 
arrangements. Agencies and the Council will limit such arrangements 
to actions necessary to control the immediate impacts of the 
emergency.

    DOD Directive 6050.1, Environmental Effects in the United States of 
DOD Actions, implements the above CEQ regulations and provide policy 
and procedures to DOD officials. This directive defines ``Emergencies'' 
as they apply to DOD Components to include ``actions that must be taken 
to promote the national defense or security that cannot be delayed, and 
actions necessary to protect life or property.''
    E.O. 12114 (Environmental Effects Abroad of Major Federal Actions) 
directs federal agencies to provide informed decision-making for 
actions that have the potential to significantly harm the environment 
outside U.S. waters and furthers the purposes of NEPA and other 
statutes in the global commons. E.O. 12114 Section 2-5 Exemptions and 
Considerations Subsection (a)(iii) states, ``actions taken by or 
pursuant to the direction of the President or Cabinet officer when 
national security or interest is involved or when the action occurs in 
the course of an armed conflict are exempt from the Order.'' Because 
wartime and heightened threat conditions are provided for by a separate 
process under CEQ Regulations and are exempted from the requirements of 
E.O. 12114, consideration of these conditions are outside of the scope 
of the Final EIS. Therefore, NMFS agrees with the Navy that it is 
appropriate for these conditions not to be addressed in the Navy's 
Final EIS.
    NMFS is not authorizing the incidental taking of marine mammals 
during periods of war, combat, and heightened threat conditions in its 
MMPA application because: (1) The Navy did not request an authorization 
to cover these conditions, (2) the timing of such events is speculative 
and outside the control of the U.S. Navy, and (3) because the Navy may 
not be capable of complying with certain conditions (e.g., area of 
operations and length of mission, and mitigation and monitoring 
requirements) contained in the regulations and the Letter of 
Authorization (LOA). In the rare event that any of these conditions was 
declared and the Navy's SURTASS LFA sonar assets were included in this 
condition, an LOA would be placed in abeyance until the war, combat, or 
heightened threat condition was terminated. Upon its conclusion, NMFS 
would then reassess the impact on marine mammals using information from 
the activity area(s) and updated modeling results to determine whether 
the takings in the future would continue to have no more than a 
negligible impact on affected marine mammal stocks. For example, 
additional mitigation might be required to ensure that the stocks 
affected during the heightened threat condition were not additionally 
impacted during the period of the regulations' effectiveness.
    Comment AC3: A lower-powered, shorter-range system should be used. 
In a discussion of the supercavitation technology and the Russian Skval 
torpedo, the commenter stated, ``they [the Russians] have also been 
selling Kilo-Class diesel-electric submarines to nations like North 
Korea. These submarines are super quiet * * *.''
    Response: According to the Navy, a lower-powered, and thus shorter-
range, system will not meet the Navy's stated need for long-range 
detection of quiet submarines. The latter statement in the comment 
reinforces the Final EIS Purpose and Need statement for the development 
of SURTASS LFA sonar technology and the immediate need to be able to 
detect these quiet submarines at long range.
    Comment AC4: One commenter believes that SPAWAR (Space and Naval 
Warfare Systems Command) in San Diego (TD3105) stated that SURTASS LFA 
System was apparently successfully used to locate Soviet submarines 
during the Cold War.
    Response: The referenced statement by SPAWAR actually stated that 
the SPAWAR Systems Center focused its efforts on the development of 
capabilities to detect and track Soviet nuclear submarines operating in 
deep water. It also stated that these efforts (development of 
capabilities) were successful for several systems, such as SURTASS LFA 
sonar. SPAWAR did not state that SURTASS LFA sonar was used to actually 
track Soviet submarines during the Cold War.
    Comment AC5: The Final EIS states that SURTASS LFA sonar is needed 
to protect ``choke points'' through which international shipping moves. 
It also states that LFA operations would generally not occur in areas 
of high human activity such as high shipping density. Also, will LFA be 
used in the littorals? If so, the EIS claim that near-shore 
environments will not be the focus of SURTASS LFA appears to be false.
    Response: According to the Navy, SURTASS LFA sonar is a long-range 
sonar, it does not have to operate in, or near, ``choke points'' nor 
close to shore to detect submarines at long range.
    SURTASS LFA sonar may support operations that take place in the 
littoral zone. However, according to the Naval Doctrine Command (1998), 
littoral zone refers to that area off the coast where naval forces 
conduct strategic sealift operations, control or interdict sea lines of 
communication, and project power ashore. The latter objective may 
entail operations up to approximately 200 nautical miles (nm) (370.4 
km) from the coast. However, mitigation measures

[[Page 46718]]

prohibit SURTASS LFA sonar from transmitting an SPL greater than 180 dB 
at a distance of 12 nm (22 km) from any shore.
    Comment AC6: One commenter has described a scenario in which the 
enemy deploys numerous decoys, or ``phantom submarines,'' to confuse 
the SURTASS LFA sonar computer. He also states that merely by 
transmitting, the LFA vessel will give away its position.
    Response: As stated in the Final EIS (RTC 1-1.6), the SURTASS LFA 
sonar vessel cannot remain undetected when transmitting, but it will be 
protected by naval forces. The use of decoys is a standard 
countermeasure for undersea warfare, one that has been taken into 
consideration in the planning and design of sonar systems and tactics.
    Comment AC7: Use the military intelligence community to address the 
diesel submarine threat from rogue nations.
    Response: According to the Navy, the intelligence community does 
provide the Navy Fleet Commanders-in-Chief with information regarding 
threat submarines. However, real-time, tactical information is still 
needed from SURTASS LFA sonar for theater commanders to respond to 
these threats.
    Comment AC8: SURTASS LFA sonar is the loudest sound ever produced 
by man. SURTASS LFA sonar will add tremendously to the problem of ocean 
noise pollution through the use of very high-energy sound blasting 
coupled with the long-range underwater effects characteristic of LF 
sound.
    Response: The maximum sound exposure an animal could receive from 
SURTASS LFA sonar is 215 dB. This is not the loudest sound in the 
oceans from natural or human sources, nor is it the greatest source of 
sound energy (in lay terms, the total quantity of sound) in the oceans. 
Each year billions of lightning strikes hit the ocean with source 
levels of about 260 dB. Earthquakes and other geological events that 
exceed 230 dB occur about 1,000 times per year in the Pacific Ocean 
alone, and 10,000 of them occur that exceed 205 dB. Frankel (1994) 
estimated the source level for singing humpback whales to be between 
170 and 175 dB while Au and Andrews (2001) measured their calls off 
Hawaii at 189 dB; the average call source level for blue whales was 
calculated by McDonald et al. (2001) to be 186 dB. Watkins et al. 
(1987) and Charif et al. (2002) found source levels for fin whales up 
to 186 dB, and Mhl et al. (2000) recorded source levels for sperm 
whale clicks up to 223 dB (rms).
    Aside from explosions, the loudest human noise in the oceans is 
from airgun arrays used in oil and gas exploration. World-wide, there 
are approximately 150 vessels that conduct these surveys. With source 
levels of up to 255 dB, and capable of shooting every 10 seconds around 
the clock, any one of these surveys can put more acoustic energy into 
the ocean annually than SURTASS LFA sonar. However, the greatest source 
of sound energy in the oceans caused by humans is from commercial 
shipping. SURTASS LFA sonar and all other impulsive human noises could 
be eliminated and noise levels in the oceans would continue to rise 
because of shipping alone.
    Comment AC9: Provide LFA source level (SL) and attenuation. Define 
the difference between actual and effective SL of the LFA array. NMFS 
personnel do not understand that the effective source level of LFAS 
really is 240 dB. The cumulative sound produced by the LFA array is not 
limited to the volume of each speaker.
    Response: As stated in the Final EIS (RTC 2-1.1 and 2-1.2), the SL 
of an individual SURTASS LFA source projector is approximately 215 dB. 
Because the SURTASS LFA array employs more than one source projector, 
the effective (not actual) SL of the array is a theoretical calculation 
based on the sound field beam formed by the array at a range of 
hundreds of meters from the array, where propagation loss has already 
caused a decrease in received level (RL) of over 40 dB. Therefore, in 
the proximity of the SURTASS LFA sonar array, the SL approximates that 
of an individual projector (215 dB), and the sound field of the array 
is not higher than the SL of an individual projector. For a more 
detailed explanation see the Final EIS, Appendix B, Subchapter B.3.1.
    Comment AC10: The Navy stated that LFA intensities under 215 dB 
will not ``fulfill the purpose.'' Therefore, there is the likelihood 
that higher levels will be used during actual military operations. 
Source level of 215 dB is neither necessary nor desirable. Source 
levels can be reduced by using: (1) longer duration source signals, (2) 
replacing single array with multiple arrays, and (3) multi-ship arrays.
    Response: According to the Navy, in order to meet the requirement 
for long-range detection, 215 dB SL is necessary. There will be no 
transmission levels of greater than 215 dB for each projector. The 
three items mentioned by the commenter will not reduce the SLs. These 
items are already part of ASW operations. First, long duration signals 
of up to a 100-second duration are used by SURTASS LFA sonar. Second, a 
new twin line SURTASS passive array is being developed to improve 
detection and will be used with SURTASS LFA sonar. Finally, multiple-
ship receive arrays are used. Passive-only SURTASS vessels can be used 
to receive the SURTASS LFA signal from vessels with the active (LFA) 
component installed. See the Final EIS (RTC 1-1.3) for more 
information.
    Comment AC11: Passive alternatives to SURTASS LFA sonar (e.g., ADS 
(Advanced Deployable System), Twin Line SURTASS, Acoustic Rapid 
Commercial-off-the-shelf Insertion (ARCI) processing, Robust Passive 
Sonar, ``Acoustic daylight'' technology) were not considered.
    Response: Passive alternatives to SURTASS LFA sonar are discussed 
in the Final EIS (RTCs 1-2.1, 1-2.2, and 1-2.3). Effective ASW 
operations require the ability of Fleet Commanders-in-Chief to balance 
many variable factors, both tactical and environmental, to provide the 
acceptable probability of detection of threat submarines. The Navy has 
investigated and/or developed many technologies with the potential to 
meet its detection needs. These include both passive and active 
systems. According to the Navy, no one single technology will provide 
the solution during all tactical and environmental conditions. As 
stated in the Final EIS (page 2-2), LFA sonar ``is an augmentation to 
the passive [SURTASS] detection system, and is planned for use when 
passive performance is inadequate.'' While in some instances passive 
sonar can provide the detection required, under most conditions, 
passive sonar cannot detect quiet targets. Therefore, passive systems 
alone cannot meet the Navy's requirement to detect quiet, hard-to-find 
submarines during all conditions, particularly at long ranges.
    Comment AC12: What are the potential and specific conditions for 
exceeding 180 dB re: 1 micro Pa (root mean squared (rms)) beyond the 1-
km (0.54-nm) mitigation zone? How does that relate to mitigation 
effectiveness?
    Response: Under almost all oceanographic conditions, the 180-dB SPL 
will not be beyond 1 km (0.54 nm) from the array. Even under ducted or 
CZ conditions, spherical spreading losses will dominate transmission 
losses within 1 km (0.54 nm). The actual 180 dB SPL will vary from 750 
to 1,000 m (0.4-0.5 nm) from the array. This will not influence 
mitigation effectiveness.
    Comment AC13: In Comment 2-2.1 (in the Final EIS), the Navy states 
that ``the restricted areas will not affect SURTASS LFA sonar routine 
training and testing, as well as the use of the system during military 
operations.''

[[Page 46719]]

However, on page 2-23 this is contradicted because the Navy stated that 
``Alternative 2 [unrestricted operations] would provide Fleet operators 
with * * * maximum submarine detection capability * * *.''
    Response: Training operations under Alternative 1 in the Navy's EIS 
will not provide for maximum submarine detection capabilities because 
of the geographic restrictions. However, Alternative 1 is the Navy's 
preferred alternative in order to protect marine mammals and as a 
result a small take authorization under the MMPA was not requested for 
Alternative 2, which would have a potential for increased marine mammal 
takes.
    Comment AC14: Why was the discussion of ``Time Reversed Acoustics'' 
as applied to LFA Sonar by NATO (North Atlantic Treaty Organization) 
and SACLANT (Supreme Allied Commander, Atlantic Center) research 
omitted from the Final EIS?
    Response: There was no discussion of time reversed acoustics in the 
Final EIS because: (1) No comments were received concerning this issue 
on the Draft EIS, and (2) It is not relevant to SURTASS LFA sonar 
analysis. The article referenced by the commenter is Fink (1999) 
(Scientific American 283(11): 91-97). The commenter stated, ``This is 
an article about a Low Frequency Active Sonar application employed by 
NATO and the SACLANT research being done.'' A review of the article 
found no reference to SURTASS LFA sonar. The NATO/SACLANT experiment 
concerned underwater communications.
    Comment AC15: Individual skippers, untrained in the effects of 
sound on wildlife, will be allowed to make their own instantaneous 
assessments based solely on military and political consideration, 
answerable to none.
    Response: NMFS disagrees. The U.S. Navy has asserted that it is 
committed to full compliance with the LOA issued by NMFS for taking 
marine mammals incidental to operating SURTASS LFA sonar. Under the 
LOA, shutdown criteria will be followed whenever a marine mammal is 
detected prior to entering the 180-dB SURTASS LFA mitigation zone.

Marine Mammal Impact Concerns (MMIC)

    During the public comment period, several issues were raised that 
related more to interpretation of the MMPA than to a discussion of 
impacts on marine mammals. The former issues are addressed later in 
this document (see MMPA Concerns).
Selection of Species
    Comment MMIC1: The impacts on endangered, threatened and depleted 
species and stocks have not been properly assessed. Specifically 
mentioned were the migration paths of the female northern (Atlantic) 
right whale, dugong, and blue and fin whale concentrations in the open 
ocean.
    Response: NMFS believes that impacts to threatened, endangered and 
depleted species and stocks have been addressed and properly assessed 
in the Draft and Final EISs. In addition, the Navy has completed formal 
section 7 consultation under the Endangered Species Act (ESA) with NMFS 
with the issuance of a Biological Opinion. One result of that 
consultation is that the Spitzbergen stock of bowhead whales may be 
subject to Level B harassment. As a result, that stock has been added 
to the list of authorized species under these regulations.
    Animals in unspecified migration corridors and open ocean 
concentrations are adequately protected by the tripartite mitigation 
protocols. Dugongs are discussed in RTC MMIC2.
    Comment MMIC2: Dugongs occur more than 12 nm (22.2 km) offshore in 
Australian waters. The U.S. Fish and Wildlife Service (USFWS) should be 
consulted.
    Response: Dugongs are usually found in calm, sheltered, nutrient-
rich water less than 5-m (16.4 ft) deep, generally in bays, shallow 
island and reef areas which are protected against strong winds and 
heavy seas and which contain extensive sea grass beds. However, they 
are not confined to inshore waters. There have been sightings near 
reefs up to 80 km (43.2 nm) offshore in waters up to 37 m (121.4 ft) 
deep. The average minimum water depth that the SURTASS LFA vessel will 
operate is 200 m (656.2 ft). The shallowest depth that it can operate 
is 100 m (328 ft). As a result of sound attention in shallow and 
shoaling water, dugongs are unlikely to be affected.
    The USFWS was consulted. On 18 May 1998, the Department of the 
Navy, pursuant to section 7 of the ESA, as amended, requested that the 
USFWS provide a compilation of listed, proposed, and candidate 
threatened and endangered species under the cognizance of the USFWS 
covering the ocean regimes in which SURTASS LFA sonar was intended to 
operate. A copy of this letter was provided in Appendix A of the Final 
EIS. In addition, the USFWS and the Department of the Interior were 
provided copies of both the Draft and Final EISs. Because of the 
offshore nature of SURTASS LFA sonar operations, the Navy determined 
that endangered or threatened species or the critical habitat of any 
protected species under the jurisdiction of the USFWS will not be 
affected.
    Comment MMIC3: Based on their marked avoidance responses (fleeing 
up to 80 km (43 nm) from an area where first disturbed) to relatively 
low levels of LF sounds between 94 and 105 dB (i.e., the 20-1000 Hz 
band) produced by icebreakers at extraordinarily long ranges, why were 
white whales (belugas) in Cook Inlet determined not to be affected by 
LFA sonar operating in the Gulf of Alaska?
    Response: This was discussed in the Final EIS (RTCs 3-2.10 and 3-
2.11). The Cook Inlet beluga stock is located in coastal waters and, 
therefore, is not within the geographic region that SURTASS LFA sonar 
would operate. Cook Inlet beluga stocks are also unlikely to be subject 
to SURTASS LFA sonar signals considering the significant coastal sound 
attenuation prior to reaching Cook Inlet. This assumption has been 
verified through modeling, as depicted in Figure B-1 of Technical 
Report (TR) 2. This stock of belugas, therefore, was excluded from 
further analysis. More information is provided in the Final EIS 
Subchapter 3.2.5.1.
    Furthermore, NMFS does not believe that the discussion on 
icebreaking vessel noise provided by the commenter is valid for SURTASS 
LFA sonar. First, NMFS believes the sounds affecting belugas at great 
distances were not in the 20-1,000 Hz range, but instead were in the 5-
kHz range as cited by Richardson et al. (1995, p. 257) from the work by 
Cosens and Dueck (1993). Those latter authors expand on Richardson et 
al. (1995) by noting that belugas are relatively insensitive to sounds 
below 1 kHz, thus they are unable to detect LF ship noise beyond a few 
hundred meters of the source even though the source level is high 
(e.g., 501 Hz at 110 dB = 0.65 km). Higher frequency components of 
icebreaking vessel noise should be detectable at greater distances 
because the source levels are relatively high and detection thresholds 
(of belugas) at those frequencies are relatively low (Cosens and Dueck, 
1993). Second, NMFS believes the commenter has taken Richardson et al. 
(1995) out of context. Richardson et al. (1995) did not state ``fleeing 
up to 80 km from an area where first disturbed at levels between 94 and 
105 dB.'' The commenter has combined two separate discussions in 
Richardson et al. (1995). What Richardson et al. (1995) stated was that 
after initially being displaced by relatively low levels of noise from 
the approaching ship (94

[[Page 46720]]

to 105 dB in the 20 to 1000 Hz range), the whales sometimes returned 1 
to 2 days later when the icebreaking noise levels were still as high as 
120 dB. On page 257, Richardson et al. (1995) stated that belugas 
travel up to 80 km (43.2 nm) from the ship track, and typically remain 
away for 1 to 2 days. They also indicated that this may be due to the 
high frequency component. Also, this paragraph in Richardson et al. 
(1995) refers to both belugas and narwhals and references Finley et al. 
(1990) (which concerns both whale species). So, it's unclear whether 
Richardson et al. (1995) was referring to narwhals or belugas.
    Concerning the belugas ``fleeing,'' on page 256 Richardson et al. 
(1995) stated, ``Belugas are rather tolerant of the frequent passages 
by larger ship vessels traveling in consistent directions in summering 
areas such as the St. Lawrence River, Cook Inlet, and Beaufort Sea. * * 
* However, belugas often flee from fast and erratic moving small 
boats.'' Icebreakers are not particularly fast, do not move 
erratically, and are not small. Also, as noted by Cosens and Dueck 
(1993), the environmental conditions in Lancaster Sound are likely very 
different than in other areas, such as Cook Inlet. Belugas in Lancaster 
Sound are inexperienced with shipping noises. Therefore, NMFS considers 
that the comparison provided by the commenter is not valid for SURTASS 
LFA sonar.
    Comment MMIC4: The EIS completely dismisses organisms that cannot 
hear in the LF range-humans or toothed whales and dolphins.
    Response: The Draft and Final EISs do not dismiss organisms that 
cannot hear in the LF range. In the Final EIS Subchapter 3.2.1, one of 
the criteria for analysis of potential impacts is that the organism 
must have organs or tissues with acoustic impedance different from 
water or be able to sense LF sound. Potential impacts to human divers 
and odontocetes are extensively discussed and analyzed. It should also 
be noted that humans and most odontocetes (which includes dolphins) are 
capable of hearing in the LF range.
    Comment MMIC5: NMFS dismissed concerns of one commenter that ice 
seals were excluded from consideration in the Draft EIS.
    Response: In response to the Marine Mammal Commission (MMC) comment 
on the Draft EIS, the hooded seal was included in the analysis in the 
Final EIS and the proposed rule. Also, see Final EIS (RTC 3-2.10).

Potential Effects

    Comment MMIC6: The Navy has dismissed behavioral effects below 180 
dB as temporary and thus biologically insignificant.
    Response: The potential for significant changes in biologically 
important behavior is considered from 119 to 180 dB as discussed in the 
Final EIS Subchapter 4.2, specifically 4.2.3.2 and in TR 2.
    Comment MMIC7: Intense noise can cause strandings at a variety of 
frequencies and at RLs well below 180 dB; therefore, there is potential 
for strandings to occur from deployment of LFA. RLs lower than 180 dB 
re 1 micro Pa (RMS) can be extremely harmful, even lethal. The Grecian 
and Bahamian stranding events strongly suggest that SPLs far lower than 
180 dB from mid-frequency and LF sounds could have lethal effects on 
several species of beaked whales over relatively large geographic 
areas. Therefore, the 1-km (0.54-nm) safety zone is inadequate.
    Response: While NMFS agrees that intensive sounds could result in 
strandings at various frequencies for those marine mammals whose 
hearing includes the primary frequencies of the sound source, NMFS does 
not agree with the statements that strandings would occur at levels 
significantly less than 180 dB. First, results of the Low Frequency 
Sound Scientific Research Program (LFS SRP) indicated no significant 
change in biologically important behavior for exposure to sound levels 
up to 155 dB; i.e., there were no behavioral reactions indicating that 
marine mammals were being significantly affected or injured. Even 
though there is an increased probability of behavioral harassment from 
155 to 180 dB, there is no indication that behavioral harassment 
impacts could cause strandings. It should also be noted that many 
whales vocalize in this range and are not known to result in 
strandings. With regard to the potential for injury below 180 dB from 
possible resonance effects, Cudahy and Ellison (2002) noted that ``each 
of the in vivo (in the living body) and theoretical studies related to 
potential tissue damage from underwater sound support a damage 
threshold on the order of 180 to 190 dB.'' This tissue damage could 
include lung damage and hemorrhaging. Also, it has been hypothesized 
that LF sound could cause bubble growth from supersaturated gases in 
the blood (similar to the human diver condition known as the bends). 
Crum and Mao (1996) stated that received level would have to exceed 190 
dB in order for there to be the possibility of significant bubble 
growth due to supersaturation of gases in the blood (See Final EIS, 
page 10-137).
    Moreover, the Navy's monitoring and mitigation protocols proposed 
for employment of SURTASS LFA sonar will preclude employment in narrow 
and deep channels surrounded by land such as those in the Bahamas (22-
km/12-nm restriction); and the shut-down criteria for the Navy's high-
frequency marine mammal monitoring (HF/M3) sonar has been expanded to 
include any detection by the HF/M3 sonar that is classified as a marine 
mammal, which could occur up to 1 km beyond the SURTASS LFA sonar 
mitigation zone. The stranding of Cuvier's beaked whales in the 
Mediterranean in 1996 was considered in the SURTASS LFA sonar impact 
analysis. For details, see the Final EIS pages 3.2-45 to 3.2-47. Both 
the Greek and Bahamas strandings involved beaked whales. These species 
are mid-frequency specialists. The only common acoustic source to both 
events was in the mid-frequency range.
    For discussion on whether or not the 1-km (0.54 nm) safety zone is 
adequate, please see Mitigation Concerns later in this document.
    Comment MMIC8: The assumption that temporary threshold shift (TTS), 
even when it lasts for days, does not constitute injury is 
intrinsically flawed. TTS may lead to increased vulnerability to 
predation or to confusion, which may lead to stranding and death.
    Response: TTS is a change in the threshold of hearing (the quietest 
sound an animal can hear), which could temporarily affect an animal's 
ability to hear calls, echolocation sounds, and other ambient sounds. 
As such, it could result in a temporary disruption of behavioral 
patterns, thereby resulting in Level B harassment under the MMPA. The 
best research to date indicates that the distortion and dysfunction of 
sensory tissue observed during TTS are only temporary and fully 
reversed upon recovery (i.e., occasional TTS produces no permanent 
tissue damage to the ear, only the temporary nondestructive impairment 
of tissue that fully recovers). This type of temporary nondestructive 
impairment, as well as the use of TTS in human damage risk criteria, is 
the scientific basis for not considering TTS as an injury.
    Acousticians are in general agreement that a temporary shift in 
hearing threshold of up to 40 dB due to moderate exposure times is 
fully recoverable and does not involve tissue damage or cell loss. 
Liberman and Dodds (1987) state, ``* * *acute threshold shifts as large 
as 60 dB are routinely seen in ears in which the

[[Page 46721]]

surface morphology of the stereocilia is perfectly normal.'' 
Stereocilia are the sensory cells responsible for the sensation of 
hearing. In the chinchilla, no cases of TTS involve the loss of 
stereocilia, but all cases of PTS do (Ahroon et al., 1996). Cell death 
clearly qualifies as Level A harassment (injury) under the MMPA. 
Because there is no cell death with modest (up to 40 dB) TTS, such 
losses of sensitivity constitute a temporary impairment but not an 
injury. Since the boundary line between TTS and PTS is not clear, 
definitive, and predictable for marine mammals, NMFS has adopted the 
standard that 20 dB of TTS defines the onset of PTS (i.e., a temporary 
shift of 20 dB in hearing threshold). This intentionally conservative 
standard is appropriate because all of the research on stereocilia has 
been done on terrestrial mammals, which may be poor models for marine 
mammals since marine mammals have evolved to withstand large pressure 
change differentials during diving. This should not be interpreted to 
mean that the onset of PTS results from adding 20 dB to the dB level 
found to cause the onset of TTS in an animal, but instead means that 
the onset of PTS is the sound exposure in level (dB) and duration that 
would cause a temporary shift of 20 dB in hearing threshold.
    As stated in previous actions (66 FR 22450, May 4, 2001), second 
level impacts (such as potential predation) due to a marine mammal 
having a temporary hearing impairment cannot be predicted and are, 
therefore, speculative and difficult to quantify. In fact, any 
disruption of behavior (Level B harassment) could, with suppositions, 
be seen as potentially dangerous and, therefore, considered potentially 
injurious (Level A harassment) as well. Similarly, all injuries could 
be seen as being accompanied by some disruption of behavior and 
therefore, Level B disturbances as well as Level A injuries. Such 
reasoning blurs the distinctions that the statutory definitions of 
harassment attempt to make.
    NMFS believes that Level B harassment, if of sufficient degree and 
duration, can be very serious and requires consideration when making 
impact determinations. For example, moderate TTS does not necessarily 
mean that the animal cannot hear, only that its threshold of hearing is 
raised above its normal level. The extent of time that this impairment 
remains is dependent upon the amount of initial TS, which in turn 
depends on the strength of the received sound and whether the TTS is in 
a frequency range that the animal depends on for receiving cues that 
would benefit survival. It should be noted that increased ambient noise 
levels, due to biologics, storms, shipping, and tectonic events, may 
also result in short-term decreases in an animal's ability to hear as 
well as normal. For example, ambient noise in the Hawaiian Islands 
Humpback Whale National Marine Sanctuary increases seasonally in 
conjunction with an increase in humpback whale abundance, with no known 
impacts to these animals. NMFS scientists believe that marine mammals 
have likely adopted behavioral responses, such as decreased spatial 
separation, slower swimming speeds, and interruption of socialization 
to compensate for increased ambient noise or hearing threshold levels.
    A hypothesis that marine mammals would be subject to increased 
predation presumes that the predators would either not be similarly 
affected by the resultant SPL or would travel from areas outside the 
impact zone, indicating recognition between a sonar signal at some 
distance and potentially debilitated food sources. Moreover, NMFS notes 
that TTS does not cause confusion or disorientation. Disorientation is 
caused by vestibular affects to the inner ear, not related to TTS 
(although an animal having vestibular effects could also suffer from 
TTS). For example, humans attending certain sport or music events may 
incur a TTS impairment due to the noise, but are not noted for being 
disoriented afterwards, unless caused by something other than noise. 
Therefore, NMFS does not believe the evidence warrants that TTS be 
considered as an injury.
    However, because of the SURTASS LFA sonar mitigation zone and the 
use of the HF/M3 sonar to locate mammals prior to incurring potential 
injury, the number of animals that might experience an injury from 
SURTASS LFA transmissions is considered to be few to none. Therefore, 
no expected increased vulnerability to predation or confusion by 
SURTASS LFA sonar is expected. This issue will be discussed later in 
this document (see RTC MMIC40).
    Comment MMIC9: There is no evidence that TTS should not occur at 
SPL of below 180 dB. Caution should be used in citing studies (such as 
Schlundt et al., 2000) where captive animals were used and the subject 
animals were not considered to be at the highest risk from LF sound.
    Response: The two species tested in Schlundt et al. (2000), were 
tested at their best hearing frequencies (i.e., mid-frequency). In 
fact, neither the tested bottlenose dolphins nor the belugas exhibited 
TTS after a 1-second exposure to maximum levels of 193 dB at 0.4 kHz 
(400 Hz), the approximate frequency range of SURTASS LFA sonar. NMFS 
agrees, however, that TTS may occur below 180 dB, depending in part on 
the duration of the signal and the frequency sensitivity of the 
recipient. Schlundt et al. (2000) showed that bottlenose dolphins 
experience onset of masked TTS (defined as 6 dB of shift) from a one-
second, 3 to 75 kHz, exposure at approximately 192 dB RL sound. 
Assuming a 3-dB exchange rate (e.g., the same amount of shift would 
result from reducing the intensity by 3 dB and doubling the exposure 
time (Finneran et al., 2000)), these odontocetes could experience TTS 
(Level B harassment) from a 16-second exposure to a 180-dB sound at 
their best frequency, a 32-second exposure at 177 dB, and a 100-sec. 
exposure at 173 dB. Since this approximation is for mid-frequency 
marine mammal specialists at mid-frequency sound levels, NMFS believes 
it is probable that LF marine mammal specialists would incur TTS (Level 
B harassment) at similar levels and duration to LF sounds. However, the 
typical SURTASS LFA 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 last between 6 and 100 
seconds, although the duration of each continuous frequency sound 
transmission is never longer than 10 seconds. Therefore, the SURTASS 
LFA signal itself, while possibly capable of causing TTS (Level B 
harassment), is unlikely to result in Level A harassment (injury) in 
marine mammals at levels below 180 dB.
    Comment MMIC10: Why does NMFS focus on ``serious injury'', assumed 
as PTS, whereas the MMC and many other experts have declared that 
behavioral impacts of biological significance to reproduction and 
survival cannot be ruled out as results of exposure to LFA well below 
180-dB RL? According to NMFS, these impacts cannot be observed over the 
short term, cannot be mitigated, cannot be quantified as reliable data, 
and cannot be considered without delaying deployment of LFA. NMFS 
excludes ``behavioral modifications'' biologically significant to 
reproduction and survival because they cannot be observed.
    Response: NMFS and the Navy concur that behavioral impacts of 
biological significance can occur at SPLs below 180 dB. This is 
implicit in the calculations for Level B takings conducted using the 
Acoustic Integration Model (AIM). For Level B incidental harassment 
takings, NMFS

[[Page 46722]]

will determine whether takings by harassment are occurring based on 
whether there is a significant behavioral change in a biologically 
important activity, such as feeding, breeding, migration or sheltering. 
All of these activities are potentially important for reproductive 
success of a marine mammal population.
    However, NMFS and the Navy focus on reducing the level of 
incidental take by injury, through appropriate mitigation measures 
(discussed elsewhere in this document), because it believes that injury 
and mortality can be reduced to the lowest level practicable through 
various monitoring and mitigation means. In addition, extensive AIM 
modeling aggregate data results versus probability of risk for all 
marine mammals modeled at 32 sites worldwide illustrated that the 
preponderance of all modeled received levels were below 155 dB. This is 
in the range of exposures in the LFS SRP during which no behavioral 
impacts of biological significance were observed. Moreover, as detailed 
elsewhere in this document, NMFS will work with the Navy to undertake a 
research program to validate impacts on marine mammals and the 
estimated harassment takes in the area outside the 180-dB isopleth (see 
RTC MOC25).
    Comment MMIC11: Just because animals remain in a particular 
environment with anthropogenic noise sources present does not mean that 
they are not negatively impacted by it. They may tolerate the 
interfering and/or fatiguing effects of the noise because it is 
occurring in an area of particular biological significance.
    Response: NMFS and the Navy agree that animals exposed to SURTASS 
LFA sonar signals may continue feeding. Phase I of the LFS SRP 
demonstrated this for blue and fin whales. Also, California sea lions 
(at Ballard Locks, Seattle, WA) and seals approaching aquaculture pens 
that are equipped with acoustic harassment devices will feed even in 
the presence of intense sound sources. However, the 180-dB safety zone 
for SURTASS LFA sonar insures that no animals will be exposed above 
that level regardless of context. The 180-dB limit is conservative 
because both blue and fin whales are known to produce vocalizations at 
186 dB. That is, the SURTASS LFA criterion affords animals protection 
from SPLs that they may commonly experience from other animals.
    The alternative hypothesis is discussed in RTC 4-5.39 of the Final 
EIS.
    Comment MMIC12: The LOA application and the Final EIS state, ``Even 
with a 25 percent reduction in foraging efficiency for all of the 20 
days, this would represent only a 5 percent reduction in food intake 
for that season.'' The commenter believes that a reduction of 5 percent 
might affect breeding success, or survival.
    Response: Based on the natural regional and annual variability in 
chlorophyll concentrations that indicate food production for many 
marine mammals, particularly the baleen whales, a 5 percent change in 
food availability falls within very reasonable statistical bounds. 
While this does not necessarily mean that an animal would not change 
its foraging range in order to make up for a food deficiency in one 
area, it does point up the high probability that from year-to-year, 
marine mammals can be expected to have different levels of food intake. 
Thus, a one-time 5 percent change in food intake for a single season 
(provided the animal is not affected in more than that single season) 
is considered to have a very low probability of exerting any 
significant change in that animal's survival or breeding success; and 
certainly will not affect an animal stock in any significant way.
    Comment MMIC13: No research done on effects of marine mammals 
feeding, or the species upon which they feed.
    Response: The LFS SRP conducted research related to marine mammal 
feeding. The goal of the LFS SRP was to demonstrate avoidance reactions 
for LF-sensitive species (baleen whales) during critical biological 
behaviors (foraging/feeding, migrating, breeding). Phase I of the LFS 
SRP conducted manipulative field experiments to test the effects of LF 
sound on foraging fin and blue whales off San Nicolas Island, CA. For 
additional information see Croll et al. (2001) and TR 1.
    In addition, the potential effects of SURTASS LFA sonar on fish and 
prey species are covered in the Final EIS Subchapters 4.1.1 and 
4.2.7.6. The potential effects on invertebrates are covered in the 
Final EIS Subchapter 3.2.1.1.

Non-Auditory Metrics

    Comment MMIC14: It is incorrect to pick sensory modality for the 
only discussion concerning the potential harm to marine mammals from 
mid- and low-frequency sonar. To support this, Richardson et al. (1995) 
was paraphrased in a misleading way because the authors listed four 
zones of noise influence in which the fourth and most extreme was the 
zone of hearing loss, discomfort, or injury that is in the ``area near 
the noise source * * *.'' In other words, NMFS has inappropriately 
attempted to lead the discussion toward auditory effects, whereas the 
authors cited, and objective reviewers clearly recognize, that there 
are many non-auditory traumas attributable to sound received at high 
levels. Those listed by the commenter included lung damage and organ 
system hemorrhage, vestibular dysfunction, and bubble growth in tissue.
    Response: NMFS does not agree that it has paraphrased Richardson et 
al. (1995) incorrectly. While Richardson et al. (1995) listed only four 
types of noise influence, in recent years, NMFS has defined six 
categories of noise based on Richardson et al. (1995), but updated by 
Richardson in several small take applications (see for example, BPXA, 
1999; Western Geophysical, 1999, 2000; WesternGeco, 2001). This updated 
information was incorporated into the preamble to the proposed rule. 
Recently, NMFS has updated small take notices with recognition that 
there is a potential for non-auditory impacts from loud noises. For 
example, in the preamble to the final rule for NPAL (66 FR 43442, 
August 17, 2001) NMFS noted that ``intense acoustic or explosive events 
may cause trauma to tissues associated with organs vital for hearing, 
sound production, respiration and other functions. This trauma may 
include minor to severe hemorrhage.'' This statement has been added 
into the current document in recognition of the potential for non-
auditory impacts from loud noise events.
    However, what is relevant in this document and in the Final EIS is 
whether or not marine mammals will be exposed to SURTASS LFA signals at 
high enough intensities to cause non-auditory traumas. With the 
proposed mitigation measures, the Final EIS analysis concluded that the 
potential impact on any stock of marine mammals from injury is 
considered negligible, and the effect on the stock of any marine mammal 
from significant change in a biologically important behavior is 
considered minimal. These potential effects include non-auditory 
traumas (tissue damage), which are considered to be injuries.
    Since the release of the Final EIS, an investigation by Cudahy and 
Ellison (2002) noted that the expected threshold for in vivo (in the 
living body) tissue damage (including lung damage and hemorrhaging) for 
LF sound is on the order of 180 to 190 dB. Vestibular effects 
themselves, which could affect balance and equilibrium, while not 
considered to be an injury, could be a manifestation of an injury when 
caused by an impact such as PTS. However, these effects are based on 
humans.

[[Page 46723]]

Vestibular function was investigated by the Navy during the Diver's 
Study and the results reported in TR 3. Measurable performance 
decrements in vestibular function were observed for guinea pigs using 
160 dB SPL signals at lung resonance and 190 dB SPL signals at 500 Hz. 
It should be kept in mind that guinea pigs are not aquatic species and, 
as such, are not as robust to pressure changes as marine mammals. 
Finally, as stated in Crum and Mao (1996) and as discussed in the Final 
EIS (page 10-137), researchers hypothesized that the received level 
would have to exceed 190 dB in order for there to be the possibility of 
significant bubble growth due to supersaturation of gases in the blood. 
Because the above ``non-auditory traumas'' are not expected to result 
from sound exposure below SPLs of 180-dB and the high detection rate of 
the HF/M3 sonar assuring required SURTASS LFA sonar shutdown when any 
marine mammal approaches or enters the 180-dB SURTASS LFA mitigation 
zone, the risks of these traumas to a marine mammal approach zero.
    Comment MMIC15: The Navy and NMFS have systematically 
underestimated the number of animals that may be taken by SURTASS LFA 
sonar, if deployed, because: (1) Neither the Navy nor NMFS has 
considered the potential for non-auditory physiological impacts; (2) 
neither has meaningfully evaluated the potential for stranding; (3) 
both have underestimated the potential for auditory impacts; (4) both 
have failed to consider the full range of behavioral impacts and have 
underestimated the potential for those it has considered; (5) neither 
has accounted for cumulative and synergistic impacts of multiple active 
systems or other sound sources operating in the same region; and (6) 
both have underestimated or have failed to assess impacts on prey 
species.
    Response: The number of animals potentially taken has not been 
underestimated. On the contrary, the analysis contained in the Draft 
and Final EISs has erred on the side of caution. The analysis is based 
on criteria for impacts based on the potential effects to baleen 
whales, which are considered the most sensitive marine mammals to LF 
sound (Ketten, 2001). These potential effects are then applied equally 
to all marine mammals that, based on geographic demographics, could be 
exposed to the SURTASS LFA sonar signal. Most of these animals are not 
as sensitive to LF sound as the baleen whales. Some may be nearly as 
sensitive, such as the sperm whale and elephant seal; but more are 
predominately sensitive to mid- to high-frequency sounds. Other 
conservative assumptions used in the analysis are presented in the 
Final EIS Subchapter 1.4.3. Responses to the specific issues are 
provided here in summary and in detail later in this document:
    Non-auditory physiological impacts: As mentioned in RTC MMIC20, 
Cudahy and Ellison (2002) stated that the expected threshold for in 
vivo tissue damage for low frequency sound is on the order of 180 to 
190 dB.
    Stranding: This issue is addressed in detail starting with RTC 
MMIC22 in this document. In addition, a review of all SURTASS LFA 
operations with recorded stranding events determined that there have 
been no strandings associated with SURTASS LFA sonar.
    Auditory impacts: The potential for auditory impacts as discussed 
in the Draft and Final EISs is based on scientific research and 
conservative analyses.
    Behavioral impacts: The criteria for the potential risk of 
significant change in biologically important behavior, which are 
discussed in detail in the Draft and Final EISs, are based on 
scientific research and conservative analyses. See RTC MMIC10 and 
MMPAC22a in this document.
    Cumulative impacts: Cumulative impacts are covered in the Final EIS 
in Subchapter 4.4. The synergistic impact of multiple active systems is 
analyzed in the Final EIS Subchapter 4.2.7.4. In addition, SURTASS LFA 
sonar operations will usually avoid areas with high levels of LF noise/
sound (e.g., seismic surveys).
    Prey species: Prey species are discussed in the Final EIS. Many of 
these species, such as squid and zooplankton, are not analyzed because 
they did not meet the screening criteria used in the Draft and Final 
EISs for determining whether species would be impacted as determined in 
Croll et al. (1999). Fish species are covered in the Final EIS 
Subchapters 3.2.2 and 4.1.1. Additionally, during the LFS SRP Phase I, 
prey field studies were conducted. Variations in these fields were 
within the normal prey field variations expected from typical changes 
in natural oceanographic conditions (see TR 1 for more information).
    Therefore, based on the above information, NMFS concludes that the 
potential takes of marine mammals from the operation of the SURTASS LFA 
sonar has more likely been overestimated by the Navy than 
underestimated.
    Comment MMIC16: One commenter notes that the LOA application 
states, ``* * * 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 
possibly incur non-serious injury.'' This, the commenter believes, is 
inconsistent with discussions elsewhere in the LOA application and the 
Final EIS and proposed rule. According to those discussions, ``all 
marine mammals who receive a ping greater than 180 dB are presumed to 
be injured (that is, seriously injured).'' This is presented as 
conservative because the mitigation seeks to exclude all marine mammals 
from the 1 km (0.54 nm) ``serious injury impact zone (corresponding to 
the 180 dB sound field).'' Therefore, marine mammals will definitely 
incur serious injury, as a ``conservative'' assumption. Clarify 
``serious injury'' well inside of the 180-dB zone and any animal within 
the 180-dB zone is considered to be injured. The possibility of damage 
should be at 1 km (0.54 nm), not next to the array.
    Response: Neither the proposed rule nor the Final EIS use the term 
``serious'' injury when referring to the 180-dB criterion. In response 
to comment 18 in the proposed rule, NMFS stated that for this proposed 
action, scientists have determined that a single-ping RL of 180 dB can 
be considered a scientifically precautionary level to prevent the 
potential onset of injury to marine mammals. Serious injury is 
discussed in response to comment 20 in the proposed rule. NMFS stated 
that because serious injury is unlikely to occur unless a marine mammal 
is well inside of the 180-dB safety zone and close to the SURTASS LFA 
sonar source, and because the closer a marine mammal is to the SURTASS 
LFA source the more likely it is to be detected and transmissions 
suspended, the potential for serious injury is minimal.
    The LOA application was based on the Draft EIS while the proposed 
rule was based on the Final EIS. For this reason the LOA application is 
inconsistent with the Final EIS and proposed rule because the terms 
``non-serious'' and ``serious'' injury were changed from the Draft EIS 
to the Final EIS as a result of comments received on the Draft EIS. 
Also see response to comment 11 in the proposed rule document.
    Comment MMIC17: Many scientists believe that LFA sonar is likely to 
be more harmful than mid-frequency sonar because it covers greater 
distances and, therefore, exposes more animals and has longer pings.
    Response: Comparisons of mid- and low-frequency sonar 
characteristics do not support this belief. It is true that LF-sonar 
signals travel farther and usually have longer pulse/ping lengths than 
MF-sonar signals, under most oceanographic

[[Page 46724]]

conditions, which is why the Navy developed the technology. Of 
importance, however, is the animals' physical susceptibility and 
behavioral reaction to LF sounds, and that there are far greater 
numbers of marine mammals sensitive (i.e., auditory--how well they 
hear) to mid- and high-frequency sound than to LF sound. Most marine 
mammals hear, vocalize and/or echolocate in the mid- to high-frequency 
range. In addition, over the past 5 years, the potential effects of LF 
sonar on marine life has been studied in greater detail than for mid-
frequency sonars, meaning there have been more data generated to 
support the conclusions presented in the Final EIS. NMFS believes that 
the SURTASS LFA process could be a model of the precautionary approach 
to introducing novel sound sources into the sea, moving incrementally, 
conducting research, and developing appropriate mitigation measures.
    Comment MMIC18: Because LFA signals are best propagated in the deep 
sound channel, distant whales are likely to hear the source.
    Response: That is a correct statement provided the whales are 
actually in the deep sound channel and that there is a sufficient 
amount of SURTASS LFA sonar energy within the channel for the whales to 
hear. Also, as discussed later in this document, simply hearing the 
SURTASS LFA signal does not necessarily indicate that a whale has been 
harassed or ``taken.''
    Comment MMIC19: Injury and psychological effects can result in 
stranding or adverse reaction, such as rapid ascent from depth.
    Response: The Final EIS offers detailed analysis and discussion to 
support the conclusion that, given the employment of SURTASS LFA sonar 
will occur as proposed in the Final EIS (with geographic restrictions 
and monitoring/mitigation measures), the potential for injury to any 
marine mammals is considered negligible. See Subchapter 1.4 and 
Subchapter 4.2 for more details. Also, despite the fact that the 
measurement of the potential for psychological effects on marine 
mammals from underwater sound sources in the field is extremely 
problematic and expensive to collect, it is not unreasonable to 
consider that the analysis of the potential for behavioral effects can 
be used as a benchmark. Thus, the Final EIS concludes that if SURTASS 
LFA sonar is employed with the proposed geographic restrictions and 
monitoring/mitigation measures, the effect on the stock of any marine 
mammal from significant change in a biologically important behavior is 
considered minimal.
    Finally, it seems plausible that marine mammals that have evolved 
in an ambient hydrostatic pressure environment spanning several orders 
of magnitude (1:103) of dynamic range would be predisposed 
to have an innately more rugged physiology for handling pressure 
changes than terrestrial animals (Cudahy and Ellison, 2002). Therefore, 
no psychological or physiological effects would be anticipated from any 
rapid ascent from depth.
    As mentioned in RTC MMIC15 and later in RTC MMIC27, a review of all 
SURTASS LFA sonar operations has determined that there have been no 
strandings associated with SURTASS LFA sonar or any other sonar 
operating below 450 Hz.
    Comment MMIC20: LF sonar disrupts the immune system, nervous 
system, and other body systems and tissues, and causes psychological 
problems.
    Response: See previous response regarding psychological effects. 
Also, there is no reason to suspect that an intermittent noise source, 
such as SURTASS LFA sonar would have impacts on marine mammal immune, 
nervous or other body systems. If LF sounds were to have system-level 
impacts, one would presume that such effects would manifest first in 
those marine mammals inhabiting noisy areas, such as offshore large 
ports where large vessels (with LF sounds) occur in large numbers, or 
the Gulf of Mexico, off Newfoundland or in the North Sea where offshore 
oil and gas seismic activity predominate almost year-round.
    Regarding tissue effects, Cudahy and Ellison (2002) indicate that 
the potential for in vivo tissue damage to marine mammals from exposure 
to underwater LF sound will occur at a damage threshold on the order of 
180 to 190 dB. This includes: (1) Transluminal (hydraulic) damage to 
tissues at intensities on the order of 190 dB or greater; (2) vascular 
damage thresholds from cavitation at intensities in the 240-dB regime; 
(3) tissue shear damage at intensities on the order of 190 dB or 
greater; and (4) tissue damage in air-filled spaces at intensities 
above 180 dB.
    Therefore, unless an animal is within the 180-dB SURTASS LFA sonar 
mitigation zone, NMFS believes that present scientific information 
indicates that there should be no physical damage to marine mammal body 
systems or tissues at an SPL less than 180 dB. Because of the 
mitigation measures, the potential taking of a marine mammal within the 
180-dB mitigation zone is considered minimal. For additional 
information see Final EIS (RTC 3-2.2, 4-5.14, and 4-6.21).
    Comment MMIC21: Injury and aversion could extend to at least the 
first CZ (33 to 65 km (17.8 to 35.1 nm)).
    Response: For discussion on CZs, refer to the discussion earlier in 
this document (see Description of Acoustic Propagation). As discussed 
in response to earlier comments, unless an animal is within the 180-dB 
SURTASS LFA sonar mitigation zone, the best scientific information 
available to NMFS indicates that there should be no physical damage (or 
injury) to marine mammal body systems or tissues at SPLs below 180 dB. 
Because the first CZ (as shown in Figure 1) is well beyond the 1-km 
(0.54 nm) radius of the 180-dB SURTASS LFA mitigation zone, no injury 
should occur at the first CZ or beyond.
    The Navy concluded in the Final EIS analysis that significant 
changes in biologically important behaviors, which could include 
aversion, may occur, although effects to marine mammal stocks are 
considered to be negligible.

Strandings

    Comment MMIC22: Because none of the previously identified beaked 
whales in the Bahamas have been seen since the stranding, they may have 
all been killed or displaced.
    Response: Worldwide, the numbers and behavior of beaked whales are 
poorly known because the animals tend to be shy and avoid survey 
vessels. The beaked whale population of the Northeast and Northwest 
Providence Channels of the Bahamas is known somewhat better than in the 
rest of the Caribbean because resident biologists have been studying it 
for some time. While one of these biologists stated that the animals 
are no longer in the area of the March 2000 stranding event, and NMFS 
has no reason to doubt this statement, the statement that these whales 
all died from the sonar is an assertion that is not based on data. 
These whales could have moved to a different foraging area. Without 
data, one cannot fairly attribute disappearances to any particular 
cause. These data would not be difficult to obtain. However, one cannot 
presume that because one type of sonar is implicated in taking one type 
of whale, another sonar system will have a similar effect. Therefore, 
the above comment is noted as a comment ancillary to the action under 
consideration here.
    Comment MMIC23: The Navy stated that because of the offshore nature 
of SURTASS LFA sonar operations, it does not believe that there is a 
potential for LFA sonar to result in marine mammal stranding incidents. 
Is this because the

[[Page 46725]]

operations are a long distance from coastlines (and strandings are 
unlikely to come ashore), or because the LFA sonar will not cause 
strandings?
    Response: NMFS does not consider strandings to occur only when an 
animal comes ashore. Any marine mammal injured, dead, or dying comes 
under the NMFS stranding program and is investigated to the fullest 
extent possible. However, based on the operational parameters of the 
SURTASS LFA sonar, there is no reason to believe that there is a 
potential for the SURTASS LFA sonar to cause injuries or strandings. In 
addition, because of the fact that SURTASS LFA sonar operations will 
not occur closer than 12 nm (22 km) from any coastline and because the 
mitigation measures (passive acoustic, visual observations, and a new 
high frequency sonar designated HF/M3) used will be above 95 percent 
effective in detecting most marine mammals prior to entry into the 180-
dB SURTASS LFA sonar mitigation zone, injury and/or strandings are 
highly unlikely.
    Comment MMIC24a: Active sonar can kill/traumatize whales. Examples 
are strandings (Greece, Bahamas, 6 additional strandings, etc.). LFA 
sonar will cause the extinction of beaked whales and the entire world 
population of marine mammals. The Navy has ignored a number of mass 
strandings connected with naval maneuvers involving one form or another 
of active sonar. Discuss the well-documented stranding of four beaked 
whales on 3 different Caribbean islands on October 1999, which were 
correlated with loud sounds in the water. The Canadian LFA system 
(Towed Integrated Active-Passive Sonar (TIAPS)) has been implicated in 
the stranding of three Blainville's beaked whales in March 1998 at Rum 
Cay in the Bahamas. The NATO LFA system (Towed Vertically Directive 
Source (TVDS)) has been implicated in at least two stranding events in 
the Mediterranean: (1) Thirteen mammals in Kyparissiakos Gulf in Greece 
on May 12 and 13, 1996 and (2) nine mammals in the western Peloponnesus 
approaches on October 1997. These strandings demonstrate that whales 
can be injured by LF sonar. Why was there a failure to consider the 
strandings that followed NATO use of low-frequency sonar in the 
Mediterranean in 1996?
    Response: Sonars differ in their operating characteristics, and 
marine mammal species differ greatly in the sounds to which they are 
susceptible. This is often overlooked by the public. The scientific 
investigation regarding the Bahamian beaked whale stranding found that 
the tactical mid-range frequency sonars that were in use aboard U.S. 
Navy and allied ships during the March 15-16, 2000, Bahamas sonar 
exercise were the most plausible source of acoustic or impulse trauma 
to six beaked whales (DOC and SECNAV, 2001). Tissues from these animals 
are being intensively studied for the mechanism that caused death. DOC 
and SECNAV (2001) noted, ``SURTASS LFA, another Navy sonar, had no 
involvement in this event.''
    A review of the Smithsonian stranding database shows that there 
have been seven other instances of beaked whale strandings involving 
more than one species. One of these activities involved ordnance, two 
were not identified with military activities, and four were concurrent 
with military maneuvers (Potter, 2000). Except for the Bahamas 
stranding, no tissues were collected, and the type of military 
maneuvers and time and distance separating them from the strandings are 
not known. Without this information science can never prove whether 
sonar did or did not cause these deaths. These events point out the 
pressing need for proper scientific study of marine mammals around many 
sonar operations, including those of SURTASS LFA sonar.
    Investigations indicate that SURTASS LFA sonar has not been known 
to cause a stranding; and because it uses extensive mitigation measures 
(passive acoustic, visual observers, and the HF/M3 sonar) that make an 
injury and therefore a stranding unlikely. No mitigation was used with 
any of the other events just discussed.
    The stranding of Cuvier's beaked whales in the Mediterranean in 
1996 was considered in the SURTASS LFA sonar impact analysis. For 
details, see the Final EIS pages 3.2-45 to 3.2-47.
    On October 3, 1999, 4 beaked whales (Ziphius cavirostris) stranded 
in the U.S. Virgin Islands. The Navy had exercises ongoing in the 
offshore waters and also had live-fire exercises in nearshore waters 
during the time period when the beaked whales stranded. The offshore 
exercises, but not inshore exercises involved sonar. Although SURTASS 
LFA sonar was not involved in these exercises, the Navy has not 
formally confirmed whether mid-frequency sonars may have caused these 
four whales to strand in the Caribbean.
    Information on the stranding in March 1998 at Rum Cay is provided 
in the following RTC.
    Comment MMIC24b: One commenter stated that TIAPS, the Canadian LFA 
system, has been implicated in the stranding of three Blainville's 
beaked whales in March 1998 at Rum Cay in the Bahamas. He also stated 
that a large balaenopterid (cf. Balaenoptera physalus) stranded alive 
under mysterious circumstances on Eleuthera Island in the Bahamas on 
March 3, 2000, following a TIAPS exercise in the area on February 2000.
    Response: TIAPS is an independent Research and Development project 
being conducted by the Defense Research and Development Canada, an 
agency of the Department of National Defense and there is no frequency 
overlap between TIAPS and SURTASS LFA sonar (TIAPS is approximately 1 
kHz). To respond to this comment, the Navy contacted the Project 
Manager/TIAPS at the Canadian Defense Research Establishment Atlantic. 
The project manager stated that he cooperated with the commenter and 
his associates in regard to his investigation of both strandings. 
Concerning the three beaked whale strandings in March 1998 it is 
apparent that TIAPS Q244 was completed in Exuma Sound well before the 
time the whales stranded. NMFS, of course, is interested in receiving 
any information regarding this stranding for its stranding database.
    In regard to the March 2000 stranding of a fin whale, because that 
stranding occurred 18 days after the TIAPS exercise, there does not 
appear to be a connection between TIAPS trials and the March 2000 
strandings in the Bahamas.
    Comment MMIC25: Historical records of beaked whale strandings, 
compiled by the Smithsonian Institution's Marine Mammal Program in the 
wake of the Bahamas event, suggest a very high correlation between 
naval activities and both individual beaked whale strandings and multi-
species strandings involving beaked whales. The correlation of all the 
known mixed species mass strandings involving beaked whales with nearby 
naval maneuvers (International Whaling Commission (IWC, 2001)) most 
certainly provides evidence for causation. Further investigations by 
the Navy into military activities and cetacean stranding is warranted.
    Response: As mentioned in RTC MMIC24a, Potter (2000) indicates that 
there have been seven mixed species mass strandings involving beaked 
whales. Although four of the seven mixed-species mass strandings are 
associated in time with some type of military maneuvers, none appears 
to be related to LF sonar.
    Simmonds and Lopez-Jurado (1991) stated that between 1982 and 1989 
there were 22 strandings of cetaceans in the Canary Islands, with only 
three being

[[Page 46726]]

related in time to military activity. Simmonds and Lopez-Jurado (1991) 
reported in their text that ``Local people have only been aware of such 
military maneuvers three times since 1985; on each occasion mass live 
strandings have occurred.'' These authors indicate that military 
maneuvers were documented in 1985, 1988 and 1989. However, they report 
a mass stranding in the Canary Islands in 1986, and there is no mention 
of military activity in either their report or the Smithsonian 
database. Furthermore, there is another mixed species mass stranding 
involving beaked whales noted in the Smithsonian database that occurred 
in the Canary Islands in 1987, which is also not associated with 
military activity. One of the mass strandings, from 1974, had an animal 
with bullet holes found in the body.
    Only one of these seven multiple species strandings is known to 
have occurred concurrent with naval activities and the use of active 
mid-frequency sonar, the Bahamas stranding in March 2000. There was a 
single species, mass stranding of Cuvier's beaked whales in the 
Kyparissiakos Gulf in Greece concurrent with the testing of a NATO 
sonar, whose lowest frequency is 450 Hz, but which also transmits in 
the 2.6 kHz to 3.4 kHz range. See the Final EIS Subchapter 3.2.5.1 for 
a more information on these beaked whale strandings.
    Summarizing, the information available on marine mammal strandings 
is, at best, incomplete and inconsistent. Since NMFS does not know how 
many sonar operations occurred during this time period without marine 
mammal injuries or strandings, it believes that the data do not 
necessarily suggest a high correlation between naval activities and 
beaked whale strandings, nor do they provide evidence of causation; 
especially for LF sonar.
    However, NMFS has not dismissed this information and will 
coordinate information contained in the annual LOA report, principally 
time and location of every SURTASS LFA sonar operation, with stranding 
data that NMFS receives from its stranding coordinators in order to 
determine whether any links might exist between them.
    Comment MMIC26: Based on calculations of the probability of the 
number of coincidences between strandings and military activities, 
under the null hypothesis, it is very unlikely that the stranding 
events of beaked whales were unrelated to military operations unless 
military operations are very common.
    Response: The commenter's application of a binomial probability 
experiment methodology to these data may not be statistically 
appropriate. NMFS notes that the ``rate'' of military activity is 
undefined and unquantified. Also, the stranding data are most probably 
skewed, in that the distribution of stranding network effort, and naval 
activity are both non-random and are most likely correlated, since 
generally countries with an advanced economy and military can afford 
stranding network efforts and attract military attention.
    Comment MMIC27: Because Dr. Tyack's analysis discussed in Final EIS 
(RTC 4-4.21) is not presented in detail, the response is ``arbitrary 
and capricious.'' Provide a comparison of Dr. Tyack's analysis to that 
of Dr. Whitehead in his May 4, 2001, comments on the proposed rule. One 
commenter disputes the NMFS statement that ``there is no evidence 
linking SURTASS LFA sonar transmissions to any stranding events * * *'' 
because of the beaked whale stranding on the Grecian coast in 1996.
    Response: The Grecian stranding in 1996 was not caused by SURTASS 
LFA sonar because that sonar was not operating in that area. Both the 
Greek and Bahamas strandings involved beaked whales. These species are 
mid-frequency specialists. The only common acoustic source to both 
events was in the mid-frequency range. There were no low frequency 
sonar sources involved in the Bahamas stranding (DOC and SECNAV, 2001). 
Therefore, the evidence does not support the LF component as having a 
causal relationship to the stranding of beaked whales in Greece. 
Because tissue damage is not expected to occur from sound exposure 
below SPLs of 180 dB (Cudahy and Ellison, 2002) and the SURTASS LFA 
sonar operational protocols require shutdown when any marine mammal 
approaches and before entering the safety (LFA sonar mitigation) zone, 
the risk of injury to a marine mammal is negligible. It should be noted 
that there were no mitigation protocols during either the 1996 or 2000 
naval operations, although NMFS understands that the Navy has 
instituted mitigation measures since the March 2000 event to avoid 
future stranding incidents (DOC and SECNAV, 2001).
    Dr. Peter Tyack of the Woods Hole Oceanographic Institution (Woods 
Hole) attempted to conduct a correlation analysis of marine mammal 
strandings and past SURTASS LFA sonar operations. There was no evidence 
of any correlation; thus, no report was generated. The latter analysis 
in the comment was discussed in the previous RTC in this document.
    Comment MMIC28: There is now a weight of evidence (Bahamas 
stranding event) that beaked whales are at far greater risk from these 
operations (naval sonar operations) than the four species of mysticetes 
studied in the LFS SRP; thus, the commenters suggest that NMFS should 
revise its ``negligible impact determination'' accordingly.
    Response: The Navy's LFS SRP was designed to study those marine 
mammals most susceptible to LF sound, sperm and large baleen whales. 
Beaked whales are mid-frequency specialists, not LF specialists, which 
was the reason for not including them in the LFS SRP. Moreover, because 
of their unknown habitats and rare sightings, there is great difficulty 
in attempting to study these species (see RTC MMIC22). Results from the 
interim report on the Bahamas strandings (DoC and SECNAV, 2001) cannot 
be extrapolated to estimate potential risk to these animals from 
SURTASS LFA sonar because of the differences in frequency regimes (100-
500 Hz vs. 3,000-4,000 Hz). Furthermore, as mentioned previously, DOC 
and SECNAV (2001) state, ``SURTASS LFA, another Navy sonar, had no 
involvement in this (beaked whale stranding) event.'' However, on July 
25, 2001, NMFS issued a modification to a scientific research permit 
held by Dr. Peter Tyack to undertake studies on beaked whales. In 
addition, NMFS is recommending research on beaked whales be funded 
under the SURTASS LFA long-term monitoring (LTM) program.
    In the interim, because NMFS does not expect tissue damage to occur 
from sound exposure below SPLs of 180 dB and because of the high 
detection rate of the HF/M3 sonar and other monitoring requirements 
ensuring SURTASS LFA sonar shutdown when any marine mammal (including 
any beaked whales) approaches or enters the 180-dB LFA mitigation zone, 
the risk of injury to a marine mammal is near zero. Moreover, the 
monitoring and mitigation protocols proposed for employment of SURTASS 
LFA will preclude employment in narrow and deep channels surrounded by 
land such as those in the Bahamas (22-km/12-nm restriction).
    Regarding its negligible impact determination, until scientific 
evidence is forthcoming on stock discreteness of the Bahamian 
population of beaked whales, NMFS must conclude that, while locally 
significant, it is highly unlikely that stock or species level impacts 
occurred to the beaked whales as a result of the Bahamas incident.

[[Page 46727]]

Similarly, it is unlikely that SURTASS LFA sonar operations (which 
would not operate in areas similar to the Bahamas incident) would cause 
stock level impacts. Therefore, as indicated later in this document, 
NMFS believes that SURTASS LFA sonar operations are unlikely to have 
more than a negligible impact on affected species or stocks of marine 
mammals.
    Comment MMIC29: There is no evidence to support the Navy's position 
in the Final EIS that the difference in frequency of the sonar in the 
Bahamas stranding event makes LFA particularly safe or that beaked 
whales are the only species vulnerable to strandings. The Bahamas 
incident demonstrates that such impacts are possible and are of concern 
for LFA sonar.
    Response: Please see previous RTCs regarding the potential for 
strandings to be caused by SURTASS LFA sonar.
    Comment MMIC30: NMFS should await the final report on the Bahamas 
stranding investigation before issuing a small take permit to the Navy.
    Response: The interim report on the Bahamas stranding event was 
released to the public in December 2001 (DOC and SECNAV, 2001). The 
final report will not be completed until final necropsy analyses have 
been completed. However, because the analyses regarding the cause of 
the beaked whale stranding event needed by NMFS to make its 
determinations on the Navy's small take application are in the interim 
report, NMFS does not need to delay decision-making until the final 
report is completed and released to the public.
    Comment MMIC31: One commenter stated, ``* * * in the Navy's 
treatment of the Bahamas strandings (Final EIS at 3.2-47), where it 
suggested that the lack of observed strandings during the LFS SRP rules 
out any conclusion that might be made about potential impacts on the 
basis of that incident (and subsequent investigations).''
    Response: There is no discussion in the Final EIS or in TR 1 of the 
lack of strandings during the LFS SRP. What was stated was that there 
is no evidence that beaked whales are more sensitive to LF sound than 
the baleen whales studied during the LFS SRP. However, as noted by the 
commenter, there was a ``lack of observed strandings'' during all three 
phases of the LFS SRP. For additional information on events potentially 
related to LFS SRP Phase III, see the Final EIS (RTC 4-5.25). The Navy 
did not, as suggested by the commenter, use this lack of strandings as 
proof of absence of harm.
    Comment MMIC32: Was the Bahamas stranding the results of the Navy's 
testing of super-cavitation torpedoes?
    Response: It was not. Readers interested in super-cavitation 
torpedoes are directed to Ashley. 2001. Scientific American 285(5).

Resonance

    Comment MMIC33: Resonance effects in air/gas cavities or spaces can 
cause injury (tissue damage) or mortality to marine mammals, such as 
the Greece and Bahamas beaked whale strandings. Air space resonance 
produced by LFA sonar could cause tissue damage to the lungs of many 
cetaceans and can inflict injury at frequencies to which creatures are 
not acoustically sensitive. The resonance would be substantially larger 
than the displacement associated with mid-frequency sonar. Can the LFA 
source stimulate resonance sufficient to cause injury to marine 
mammals? Ten seconds could be enough to induce resonance. Most 
underwater acousticians would have considered the tactical sonar to be 
less likely than LFA sonar to cause the bubble resonance phenomena due 
to the relatively short duration and high sweep rates typical of 
tactical sonar compared to LFA. One organization received 18 comments 
on resonance applicability to LFA.
    Response: The concept that resonance will increase stress on tissue 
to the point of damage is in reality two separate concepts: resonance 
and tissue damage. Cudahy and Ellison (2002) state that resonance does 
not equal damage and damage is not always linked to resonance. So the 
issue is not resonance in air/gas cavities, but tissue damage, whether 
it is caused by resonance or by other means. As discussed in detail 
under RTC MMIC20, the potential for in vivo tissue damage to marine 
mammals from exposure to underwater LF sound will not occur at a level 
less than 180 to 190 dB (Cudahy and Ellison, 2002). Please refer to RTC 
MMIC20 for more information.
    Therefore, unless an animal is within the 180-dB SURTASS LFA sonar 
mitigation zone, there should be no physical damage to body systems or 
tissues. Because of the mitigation measures, the potential impact to 
any marine mammal stock from injury is considered negligible. Whether 
or not SURTASS LFA sonar is more or less likely than a mid-frequency, 
shorter pulse, sonar to cause resonance is not relevant to the impact 
analysis in this case because marine mammals are very unlikely to be 
exposed to injurious levels (above 180 dB RL). Likewise, whether or not 
10 seconds could be enough to produce resonance is also not relevant in 
this case for the same reason.
    Comment MMIC34: More studies are required on lung volume resonance 
in marine mammals which require more detailed studies to model lung 
responses over a range of volumes and diving depths. The Navy has the 
capability and resources to conduct a thorough review and modeling of 
all this data, including, for example, full finite element analysis of 
the ears and air spaces of the Cetacea and other marine mammals to LFA 
sonar sounds to access the potential for tissue damage, hearing loss, 
and death. It is unclear what frequency ranges cause resonance in each 
species and over what dive depths. Calculated resonance frequencies for 
marine animals fall within the LFA frequency range. Cranial air space 
resonance of beaked whales is known to be about the center frequency of 
LFA, so resonance should be expected. One commenter listed several 
anatomical considerations concerning airspaces that may be vulnerable 
to LFA-frequency-induced resonance. These included the lungs and 
others, such as sinuses. Calculations show that resonance would occur 
in a bottlenose dolphin lung at 100 Hz at 34 m (111.5 ft) depth to 500 
Hz at 500 m (1640 ft) depth and a beaked whale at 100 Hz at 151 m (495 
ft) depth to 500 Hz at 1,042 m (3419 ft) depth.
    Response: There is abundant anatomical evidence that marine mammals 
have adapted to dramatic fluctuations in pressure. For example, marine 
mammal lungs are reinforced with more extensive connective tissues than 
their terrestrial relatives. These extensive connective tissues, 
combined with the probable collapse of the alveoli at the depths at 
which significant SURTASS LFA signals can be heard, make it very 
unlikely that significant lung resonance effects could be realized. 
Alveolar collapse is not the only change in the lungs. The trachea can 
also collapse because cartilage armor rings are often incomplete. Air 
that does not escape the alveoli is quickly absorbed during diving due 
to the high partial pressure of the gas (Berta and Sumich, 1999). 
Complete lung collapse occurs at depths of 25 to 50 m (82 to 164 ft) 
for Weddell seals (Falke et al., 1985), 75 m (246 ft) for the 
bottlenose dolphin (Ridgway and Howard, 1979), and probably occurs in 
the first 50 to 100 m (164 to 328 ft) for most marine mammals (Berta 
and Sumich, 1999). Also as determined by Cudahy and Ellison (2002), 
tissue damage is not expected to occur in marine mammals below 180 dB 
RL.
    Based on these reasons, NMFS does not believe that additional 
research is necessary on the potential for resonance effects in marine 
mammals due to LF sound prior to SURTASS LFA sonar

[[Page 46728]]

operations being authorized to incidentally harass marine mammals, but 
such research should occur simultaneously with SURTASS LFA sonar 
operations (i.e., small take authorization holders are required through 
statements by Congress to conduct appropriate research to address 
impacts and ways to mitigate those impacts). Moreover, NMFS understands 
that such research is already underway (e.g., finite element modeling 
is being conducted on beaked whale skulls collected at the 2000 Bahamas 
stranding, and studies of tissue and air-space resonance in the head 
are being conducted by two independent research teams) and additional 
research may be conducted by the Navy, the National Science Foundation 
or the National Institutes of Health in the future.
    Comment MMIC35: One commenter submitted a paper titled ``Air-space 
Resonance and Other Mechanisms Which May Cause Tissue Damage in 
Cetaceans'' as an attachment to his comments. This paper postulates 
that: (1) Air space resonance could cause damage to some of the large 
sinus cavities of cetaceans and that LFA sonar could cause lung damage 
due to resonance, (2) LFA sonar could cause resonance in the lungs and 
sinuses and a resonance at the same frequency of the tympanic bone of 
the middle ear, (3) LFA sonar could induce panic and subsequent 
problems with equalization, (4) LFA sonar could possibly cause bubble 
growth in blood vessels, and (5) LFA sonar signals are of long enough 
duration to cause resonance.
    Response: Resonance does occur in natural systems. However, an 
analysis subsequent to the Final EIS by Cudahy and Ellison (2002) of 
the potential for resonance from SURTASS LFA signals to cause injury 
does not support the conclusions in the commenter's paper. The issue is 
not resonance, but tissue damage. The potential for in vivo tissue 
damage to marine mammals from exposure to underwater LF sound will 
occur at a damage threshold on the order of 180 to 190 dB (Cudahy and 
Ellison, 2002) (see RTC MMIC20). The maximum SPL of 160 dB proposed by 
the commenter is based on a degree of tuning, or Q value, of 10. (Note: 
The Q of a system denotes how sharply the system responds at 
resonance). In other words, Q designates how much higher a system's 
resonance frequency response is compared to its response at non-
resonance frequencies. If Q is high, the peak in frequency response is 
high; whereas, if Q is small, the frequency response peak is shallow 
(Prout and Bienvenue, 1990). Critical issues to consider in examining 
resonance effects are the tuning of the resonance and the damping due 
to contiguous body structures. The Q value that has been measured in 
vivo in the lungs (of pigs and humans) is a Q from 3 to 5 (Martin et 
al., 2000). There are no data to support the use of a Q value of 10 as 
a good estimate of the degree of tuning in cetacean air-filled spaces. 
In general, the internal organs of mammals are very highly damped. 
Examining fishes, extensive measurements of the Q of swim bladders at 
resonance (covering a wide range of species and sizes) support an in 
vivo range of Q from 1.0 to 6.1 (Love, 1978). Thus, an educated 
estimate of the Q for other gas-filled structures, which are much less 
free to move than the lung, would generally be very small, even less 
than the (1Q6) range encompassing both lung and fish swim bladder 
measured results (Cudahy and Ellison, 2002). Therefore, resonance 
calculations based on a Q value of 10 are incorrect.
    For reasons mentioned in RTC MMIC34, there is abundant anatomical 
evidence that marine mammals have adapted to dramatic fluctuations in 
pressure. Please refer to that RTC for further response. In addition, 
the nasal air sacs are too small to be relevant to LFA transmissions. 
Furthermore, these nasal diverticuli are clearly involved in sound 
production (Heyning and Mead, 1990). The pressure fluctuations that 
accompany the emission of echolocation clicks or communicative sounds 
must be substantial, so these tissues should also be relatively 
resistant to damage from external sound sources.
    It is likely that marine mammals, which have evolved in an ambient 
hydrostatic pressure environment spanning several orders of magnitude 
(1:10\3\), would be pre-disposed to have an innately rugged physiology 
for handling pressure changes. Therefore, it is unlikely that they 
would experience equalization problems. Crum and Mao (1996) stated, 
``For SPL's below about 190 dB, however, except under relatively 
extreme conditions of supersaturation, significant bubble growth is 
unexpected.'' This is covered in the Final EIS RTC 4-9.4.
    In summary, resonance can occur in marine animals, but this 
resonance does not necessarily lead to injury. Scientific data noted 
above demonstrate that in order for LF sound to cause injury, the SPL 
must be above 180 dB. Due to the 180-dB SURTASS LFA sonar safety zone 
and the additional 1-km buffer zone, the probability of any marine 
mammal being exposed to received levels at or above 180 dB, with or 
without resonance, approaches zero. Therefore, the above evidence does 
not support the claims by the commenter that LFA sonar signals will 
cause air space resonance, tissue damage or injury to marine mammals.
    Comment MMIC36: One commenter stated, ``We would like to have had 
the time to see if there are co-resonances, in which, for example, a 
lung at resonance becomes a sound source of its own. If the Q of the 
system is 10, then the re-radiation of the lung is actually 10  x  the 
incoming sound pressure that sent it into resonance. Therefore, the 
lung becomes an acoustic amplifier. Then, in calculating the effects of 
LFAS, one must consider any resonant cavity to be a sound source LOUDER 
than the original LFAS signal, just multiply by Q.''
    Response: From a purely physiological standpoint, it could be 
hypothesized that the lung could possibly become an acoustic amplifier. 
However, there are no data to support a Q of 10 as a good estimate of 
the degree of tuning in an air-filled space; and in general, the 
internal organs of mammals are highly damped (Cudahy and Ellison, 
2002). These authors cite data for a range of Q from 1 to 6 
encompassing both lungs and fish swimbladders. Further, human and pig 
data collected in vivo indicate that at the resonant frequency of the 
lung, tissue damage occurs above 180 dB SPL (see TR 3 and Cudahy and 
Ellison, 2002). Since the data were collected at resonance, any 
amplification would have been included in the response of the lung to 
the sound, regardless of the Q value.
    Comment MMIC37: The Final EIS analysis did not consider Minnaet's 
and Andreeva/Barham's equations that relate bubble size to resonance 
frequency and show that there are air cavity volumes of all sizes that 
may resonate in marine animals.
    Response: The consideration of Minnaet's and Andreeva/Barham's 
equations relating to resonance are not relevant to the analysis in the 
Final EIS because the best supportive evidence as documented indicates 
that below 180 dB RL SURTASS LFA signals would not cause injury. For 
additional information, see the Final EIS Subchapter 1.4.2 and RTC 
MMIC35. Because of mitigation protocols, the probability of a marine 
mammal being undetected within the 180-dB SURTASS LFA mitigation zone 
during transmission approaches zero. The subsequent analysis, mentioned 
previously, by Cudahy and Ellison (2002) on the potential for resonance 
from LFA signals to cause injury supports this conclusion.
    Comment MMIC38: One commenter stated, ``Further, not all marine 
life

[[Page 46729]]

damage can be attributed to air cavity resonance alone. Damage to 
hearing apparatus of marine mammals such as uncovered by Dr. Darlene 
Ketten from Woods Hole illustrates my point. The entry to the brain and 
on to the hearing apparatus was through a nerve foramen from a sinus 
cavity. The air cavity of the sinus will not vibrate as a bubble 
because the bony sinus cavity presents a different acoustical impedance 
to the sonar. The whole of the lung/bronchial tubes/trachea/sinus/air-
volume complex must be considered. Modeling of this complex air volume 
may be possible by considering the lung to vibrate like a bubble and 
the remaining part act as a Helmholtz resonator. A coupled resonant 
system such as this can explain the punch through at the nerve foramen 
site which is soft compared to the bony sinus cavity thus concentrating 
the displacement on the soft foramen site into the brain where Ketten 
observed the bloody mass and hearing apparatus trauma.''
    Response: This comment is an untested hypothesis presented as to a 
possible coupled resonance mechanism for the injury to the Blainville's 
beaked whale that stranded during the Bahamas standing event in March 
2000. As noted in DOC/SECNAV (2001), the necropsy found a unilateral 
temporal subarachnoid hemorrhage with blood clots bilaterally in the 
lateral ventricles. In simpler terms, there was a blood trail in at 
least one animal that could be traced to a hemorrhage in a discrete 
region of a fluid space around the temporal regions and within the 
ventricle of the brain. There was no conclusion drawn by the interim 
report stating that this was, or could have been, caused by coupled 
resonance causing the ``punch through'' at the nerve foramen site into 
the brain. In fact the report stated, ``The actual mechanisms by which 
these sonar sounds could have caused animals to strand, or their 
tissues to be damaged, have not yet been revealed, but research is 
underway.''
    The commenter discusses the lungs/bronchial tubes/trachea/sinus 
(air sac) complex. He also comments upon the sinuses surrounding the 
middle ear. The tympano-periotic structure has a neural connection to 
the brain, and it was along this neural pathway that he stated Dr. 
Ketten reported damage in the Bahamas stranding animals. However, there 
is no connection between the respiratory and auditory systems. Any 
resonance that may occur in the respiratory system has no physical 
connection to the bulla and brain. In fact, the bulla appears to be 
acoustically isolated by ligaments and the peri-tympanic sinuses to 
prevent any bony sound conduction to the ear (Ketten, 1997), 
emphasizing the auditory pathway from the pan bone in the lower jaw. 
Therefore, the connection between any possible resonance (coupled or 
not) in the respiratory system and the bulla/brain is unlikely.
    Finally, the SPL threshold for the potential for in vivo tissue 
damage due to exposure to underwater sound, including resonance 
effects, is on the order of 180 to 190 dB (Cudahy and Ellison, 2002). 
In conclusion, the above hypothesis does not appear to be valid.

Additional Marine Mammal Impact Concerns

    Comment MMIC39: Can LFA reduce the resolution power (capability) of 
echo-locating by marine mammals? For example, will a dolphin's ability 
to distinguish heads from tails on a coin be affected?
    Response: No. Dolphin echolocation utilizes high frequency sound 
and SURTASS LFA sonar is low frequency. Therefore, SURTASS LFA sonar 
will not affect the resolution capability of echo-locating marine 
mammals.
    Comment MMIC40a: One organization believes that potential non-
detectable and unmonitored effects of SURTASS LFA sonar include 
increases in miscarriage rates, increased vulnerability to other 
anthropogenic threats (such as entanglement in fishing gear or 
susceptibility to ship strikes), decreases in feeding rate, changes in 
lactation rates, increased stress, changes in navigational abilities, 
potential hearing loss, etc. Even the Navy concedes that incidental 
takes consisting of short-term behavioral modifications will occur 
outside the 180-dB isopleth. Since these effects are typically 
undetectable, it will be impossible to assess or monitor these effects. 
As a result, the commenter does not believe that NMFS can make a 
finding of negligible impact.
    Response: This comment combines impacts that could potentially 
occur due to an injury to hearing and those that are short-term 
behavioral effects due to the SURTASS LFA sonar sounds. In order for 
injury-related effects to potentially occur, the HF/M3 sonar would need 
to be ineffective at locating marine mammals. This, as noted elsewhere 
in this document is unlikely (see Mitigation Concerns). Moreover, in 
order for a marine mammal to be injured, the HF/M3 sonar would need to 
have missed the animal through the several acoustic sweeps that it 
would make prior to the animal getting close enough to the projectors 
to be injured. Potential behavioral effects, which are the principal 
means of taking being authorized by this action, have been discussed 
throughout this document and the Navy's Final EIS. NMFS' determination 
of negligible impact is discussed later in this document.
    Comment MMIC40b: There is no way to know what becomes of stressed 
or confused animals in offshore waters due to noise pollution. The 
cause of entanglements, ship collisions, and other such incidents 
cannot be predicted or recognized.
    Response: There is no scientific information to support a 
hypothesis that sound from SURTASS LFA sonar will increase stress or 
confusion in marine mammals. Because of the relatively short duty 
cycle, the water depth of the CZ ray path, the movement of marine 
mammals in relationship to the SURTASS LFA sonar ship, and the 
effectiveness of the tripartite mitigation program, few marine mammals 
are likely to be affected. In order to receive more than one ``ping,'' 
during a normal 8-hr vessel leg, an animal would need to match the ship 
in speed and course direction between pings. Also, entanglement in 
fishing gear, collisions with ships, or strandings appear to result 
from vestibular effects to the inner ear associated with explosives or 
being very close to a loud, underwater noise. However, while there is 
no indication that this would result from being within the 180 dB 
safety zone for SURTASS LFA sonar, in the effects analysis of the Final 
EIS, the Navy presumes that 100 percent of the marine mammals within 
the 180 dB zone would receive an injury even though animals may not 
actually be injured.
    Comment MMIC41: The assumption in the Final EIS analysis that 
animals are only subject to acoustic stress during LFAS operations is 
not correct. An animal knowing that the presence of the SURTASS LFA 
vessel indicates a periodic, unpredictable, annoying noise source, 
which interferes with their behavior, causes stress.
    Response: This assumption presumes that marine mammals will 
associate a visual cue (the SURTASS LFA sonar vessel) with a noise 
(presumably an annoying noise). This is unlikely unless the marine 
mammal can associate a cause and effect between the two cues based on 
earlier experience. Although this has been known to occur in certain 
situations (e.g., the eastern tropical Pacific yellowfin tuna purse 
seine fishery), the short mission length and the likelihood of 
subsequent encounters make this scenario unlikely in the case of 
SURTASS LFA sonar. In addition, the results of the LFS SRP did not 
detect any prolonged behavioral responses

[[Page 46730]]

after the cessation of transmissions or any behavioral responses to the 
mere presence of the R/V Cory Chouest.
    Comment MMIC42: One commenter stated, ``Observations of sea otters 
made near the playback site during LFS SRP tests off California in 
January, 1998 found that sea otter foraging success was reduced by 11 
percent and dive time increased by 11 perecent when LFA sound source 
was on (Quicklook, Phase II). This decrease in food-getting efficiency 
and increase in dive time could have biologically significant effects 
on a population.''
    Response: The commenter's quote is incomplete. Benech (1998) 
summarizes observations of sea otters made near the playback site 
during January 1998. The following is a quote from her conclusions as 
presented in the Quicklook Report of Phase II and in TR 1:

    Sea otter densities, foraging behavior, and activity patterns 
remained normal through the course of the acoustic testing period. 
The only possible atypical behavior that was linked to the offshore 
acoustic tests was that of forage dive duration and success. The 
[foraging] success rate was reduced by 11% and dive time increased 
by a similar amount when all dives during acoustic testing were 
pooled. Success did not diminish with increasing [sound] duration or 
[source level] decibels. This difference in forage diving success, 
although detectable, was not statistically significant within a 95% 
level of confidence, however there is at least an 80% probability 
that this reduction in success was not a random event.

    It must be noted that these conclusions are based on only two 
sightings: On January 14, 1998 and January 22, 1998. The sightings were 
near the playback site(s), which were between 2 and 4 km (1.1 and 2.2 
nm) offshore. During regular SURTASS LFA sonar operations, the vessel 
will be outside of 12 nm (22 km) from the shore. Therefore, based on 
the statement by the investigator that the sea otter densities, 
foraging behavior, and activity patterns remained normal through the 
course of the acoustic testing period, and that the difference in 
forage diving success, although detectable, was not statistically 
significant, and based on the coastal nature of sea otters, there is a 
minimal chance of any biologically significant effects on the sea otter 
population.
    Comment MMIC43: NMFS and the Navy have not conducted studies as to 
the potential impacts of SURTASS LFA sonar on pinnipeds, dolphins, 
other toothed whale, sea otters, fish, cephalopods, and other 
vulnerable marine species.
    Response: As stated in the Draft and Final EISs, studies were 
conducted on the four species of large whales to serve as indicators 
for species considered to be equally or less sensitive to LF sound, 
which included pinnipeds and odontocetes. Sea otters were studied 
during the LFS SRP Phase II as discussed previously. For additional 
details, see Final EIS RTC 4-5.2. There are discussions and analyses of 
potential impacts on fish, sharks and sea turtles in the Final EIS in 
Subchapters 3.2.1.2, 3.2.2, 3.2.3, 4.1.1, 4.1.2, and 4.3.1. Cephalopods 
were eliminated because of poor sensitivity to LF sound, with hearing 
thresholds in the LF range estimated to be 146 to 150 dB. For 
additional information, see Subchapter 3.2.1.1 in the Draft and Final 
EISs.
    Comment MMIC44: One commenter believes that new empirical 
experiments must be done to assess the implications for the oceans as a 
whole and the creatures that live in them, and the effects on the 
ecosystem performance, productivity, biodiversity, extinction rates, 
and numerous other factors. New data yet to be addressed by the Navy 
and NMFS includes: self-awareness of cetacea; cultural transmission; 
language and communications skills; tool use; lifespan of some 200 
years; ability to heal human diseases and conditions; increased brain 
size, increased IQ, more intelligent than humans, brain more evolved 
than humans; and cetacea are a sovereign people/nation. The permit 
application must be rejected pending proper analysis and research 
incorporating new data showing clearly that LFAS is safe for our 
planet.
    Response: The information provided by the commenter that is 
relevant to the Navy's responsibility under the National Environmental 
Policy Act (NEPA) and/or NMFS' responsibility under the MMPA has been 
addressed in the appropriate documents prepared under these statutes. 
Other issues have not been addressed because they are outside the scope 
of the analyses required by statute, and NMFS and the Navy do not 
believe SURTASS LFA sonar will affect those aspects of marine mammal 
evolution, behavior or social organization identified by the commenter.

Scientific Information Concerns (SIC)

Data Gaps
    Comment SIC1: Science cannot provide adequate data to determine the 
specific characteristics or level of anthropogenic noise that will 
cause biologically significant impacts. Data gaps/unknown information: 
(1) Hearing thresholds, (2) injury thresholds, (3) resonance 
frequencies and levels for injury, (4) short-term impacts, (5) long-
term impacts, (6) cumulative effects, (7) how sound affects marine 
animals, (8) how whales communicate, (9) abundance and distribution of 
species and stocks, and (10) reproduction and survival rates.
    Response: For the SURTASS LFA sonar NEPA analysis, the best 
available scientific information has been used. Data gaps/unknown 
information are discussed in the Final EIS (RTCs 1-3.6, 2-3.4, 2-3.7, 
2-4.2, 3-8.1, 3-8.3, and 4-4.1). In the Final EIS Subchapter 1.4.2, the 
Navy discusses scientific data gaps regarding the potential for effects 
of LF sound on marine life. While recognizing that not all of the 
questions on the potential for LF sound to affect marine life are 
answered, and may not be answered in the foreseeable future, the Navy 
has combined scientific methodology with a conservative approach 
throughout the Final EIS to protect the marine environment. The Final 
EIS was developed based on the guidance for how to proceed under 
situations with incomplete or unavailable information as provided in 
CEQ NEPA regulations (40 CFR 1502.22). Incomplete and unavailable 
information were identified and key data gaps were filled through 
research. The Navy's LFS SRP studies filled in data gaps on the 
potential effects of LF sound on marine life, and the ongoing 
monitoring and research programs instituted by the Navy will continue 
to reduce areas of incomplete information and provide invaluable data 
that are presently unavailable.
    Comment SIC2: One commenter stated that the Navy simply lacks 
sufficient scientific data to draw any firm conclusions, so it relies 
upon assumptions and guesses. The example cited was that ``although 
there is no direct data on auditory thresholds for any mysticete 
species anatomical evidence strongly suggests that their inner ears are 
well adapted for LF hearing.'' Therefore the precautionary approach 
should be followed. Making assumptions based on incomplete data is not 
precautionary.
    Response: The Navy approach was conservative, in that, with the 
lack of physical data on the hearing thresholds of mysticete whales, it 
was assumed that they were sensitive to LF sounds and evaluated as 
such. The same assumption was made for all potentially affected marine 
mammals, regardless of their sensitivity to LF sound. For a more 
detailed discussion on the conservative procedures and assumptions in 
the research and modeling, see Final EIS Subchapter 1.4.3.
    NMFS believes that the SURTASS LFA process could be a model of the

[[Page 46731]]

precautionary approach to introducing novel sound sources into the sea, 
moving incrementally, conducting and continuing research, developing 
appropriate mitigation measures, and monitoring impacts to test the 
validity of both the model and the assumptions.
    Comment SIC3: Species most likely to be affected are pelagic 
cetaceans, yet there are no reasonable audiograms for these species. 
There is a lack of information on beaked whales. If acoustic 
sensitivity is unknown, it is impossible to estimate the potential for 
injury impacts to stocks.
    Response: While it is true that there are no audiograms for large 
cetaceans and a general lack of data on beaked whales and other pelagic 
species, that does not mean that estimates of the potential impacts 
under NEPA and MMPA cannot be performed. CEQ's NEPA regulations (40 CFR 
1502.22) provide guidance for how to proceed under situations with 
incomplete or unavailable information. The auditory thresholds utilized 
in the analysis were based on the best available information. Figure 1-
4 in the Final EIS illustrates the assumption that mysticetes have the 
best LF hearing of all marine mammals. To further ensure the validity 
of the estimates, the analysis relied on conservative procedures and 
assumptions in research and modeling as detailed in the Final EIS 
Subchapter 1.4.3.

LFS SRP

    Comment SIC4: The information provided on the LFS SRP often is not 
sufficient for the reader to understand or judge the merits of Navy and 
NMFS conclusions based on their results. The Final EIS describes on 
pages 4.2-26 to 4.2-29 previous studies that suggest significant 
behavioral responses to underwater sounds. The Final EIS seems to 
ignore that evidence in forming its conclusions about potential 
behavioral effects. For example the Final EIS includes: (1) A summary 
statement by Richardson et al. (1995) that indicates that marine 
mammals may have a limited tolerance for continuous underwater sound 
levels at or above 120 dB, (2) a description of significant gray whale 
responses to continuous sounds about 120 dB, (3) a description of 
behavioral responses of belugas to icebreaker noise at 27 nm (50 km), 
and (4) a description of avoidance responses of bowhead whales to drill 
ship noise at RLs of 110 to 132 dB. Therefore, those data, combined 
with the LFS SRP, demonstrate some potential for significant behavioral 
responses of marine mammals to LF sound. Available information on the 
LFS SRP is not sufficient to assess the significance of these changes 
and more investigations are required.
    Response: The specific studies referenced in the Final EIS on pages 
4.2-26 to 4.2-29 were not ignored. In fact, Malme et al. (1983, 1984) 
demonstrated that gray whales exhibited statistically significant 
responses to four different playbacks typical of industrial noise from 
oil production (drillship, semisubmersible, drilling platform, and 
production platform) at RLs of approximately 120 dB. This study was 
replicated in Phase II of the LFS SRP using SURTASS LFA sonar stimuli. 
However, the Phase II research demonstrated that it may be invalid to 
apply the inshore (2 km (1.1 nm) from shore) response model (when 50 
percent of the whales avoided SURTASS LFA sonar stimuli at RL of 141 
3 dB) to sources that are farther offshore (4 km (2.2 nm)). 
With the source level of the offshore source adjusted so that the 
whales' received level was 140 dB (same as when the source was inshore 
within the migration corridor), the whales did not alter their 
migration paths. For additional information see the Final EIS page 4.2-
26. For the SURTASS LFA sonar, the offshore model is more appropriate 
because the SURTASS LFA vessel will not operate within 12 nm (22 km) of 
the coast.
    The other two studies referenced discussed the reactions of two 
arctic species (bowheads and belugas) in response to noise from 
icebreakers. Bowheads and belugas inhabit waters frequented by ice and 
may require a low ambient noise level in order to navigate successfully 
through the ice, to locate leads and polynyas, and avoid ice keels. 
SURTASS LFA sonar is not authorized to take marine mammals in this type 
of environment. Please refer to RTC MMIC3 for more information on 
beluga whales.
    The commenter's statement that Richardson et al. (1995), 
``indicates that marine mammals may have a limited tolerance for 
continuous underwater sound levels at or above 120 dB'' was taken out 
of context. It was precisely this premise that the LFS SRP was designed 
to test for LF sonar signals. The Final EIS Subchapter 4.2.4.1 page 
4.2-26 actually states: ``Prior to the LFS SRP, the best information 
regarding whale responses to continuous, LF, anthropogenic noise was 
summarized by Richardson et al. (1995b): ``Some marine mammals 
tolerate, at least for a few hours, continuous sound at received levels 
above 120 dB re 1 Pa. However, others exhibit avoidance when 
the noise level reaches ~120 dB * * *. It is doubtful that many marine 
mammals would remain for long in areas where received levels of 
continuous underwater noise are 140+ dB at frequencies to which the 
animals are most sensitive.''

    On page 4.2-29 the Final EIS concluded:
    In summary, the scientific objective of the LFS SRP was to 
conduct independent field research in the form of controlled 
experimental tests of how baleen whales responded to SURTASS LFA 
sonar signals. Taken together, the three phases of the LFS SRP do 
not support the hypothesis that most baleen whales exposed to RLs 
near 140 dB would exhibit significant disturbance of behavior and 
avoid the area. These experiments, which exposed baleen whales to 
RLs ranging from 120 to about 155 dB, detected only minor, short-
term behavioral responses. Short-term behavioral responses do not 
necessarily constitute significant changes in biologically important 
behaviors. The fact that none of the LFS SRP observations revealed a 
significant change in a biologically important behavior helped 
determine an upper bound for risk. The LFS SRP results cannot, 
however, be used to prove that there is zero risk at these levels. 
Accordingly, the risk continuum presented below assumes that risk is 
small, but not zero, at the RLs achieved during the LFS SRP. The 
risk continuum modeled a smooth increase in risk that culminates in 
a 95 percent level of risk of significant change in a biologically 
important behavior at 180 dB. In this region, the risk continuum is 
unsupported by observations. However, the AIM simulation results 
indicate that a small fraction of any marine mammal stock would be 
exposed to sound levels exceeding 155 dB (see Appendix D and Figures 
1-5a through 1-5c).

    NMFS concurs with the Navy that sufficient information was provided 
on the LFS SRP in the Final EIS and TR 1, which was incorporated by 
reference into the Final EIS in accordance with 40 CFR 1500.21. TR 1 
was available to the public upon request.
    Comment SIC5: The Final EIS states that ``* * * SRP selected the 
most plausible and likely impacts to address, in particular, 
significant change in a biologically important behavior. They observed 
none * * *. Other less plausible and unlikely effects were not 
addressed.'' According to the LFS SRP there were biologically 
significant behaviors.
    Response: NMFS and the Navy do not agree that there were 
biologically significant behavioral changes during the LFS SRP. The 
independent scientists who designed and conducted the LFS SRP 
determined that these experiments, which exposed baleen whales to RLs 
ranging from 120 to about 155 dB, detected only minor, short-term 
behavioral responses (Final EIS at page 4.2-29). See RTC MMIC10 for 
further discussion.

[[Page 46732]]

    Comment SIC6: The LFS SRP was insufficient because only 4 baleen 
whales were studied. A limited study of four species of whales could 
not provide a basis for conclusions about impacts of LFA on all marine 
mammals. Species studied were not representative species, for example 
the gray whale is inshore and LFA will operate offshore in pelagic 
waters. The information collected to date is not representative of the 
effects of LFS on all cetaceans. Marine mammals have at least four 
basic types of ears; therefore, the Navy cannot lump all whales into 
the same category (baleens).
    Response: It is impossible to conduct studies of all marine mammal 
species within a reasonable period of time. Accordingly, four mysticete 
species (blue, fin, gray, and humpback whales) were selected because: 
(1) They are considered most likely among all marine mammals to have 
the best hearing in the SURTASS LFA sonar frequency band (i.e., they 
would be the most likely species affected if there was an impact from 
LFA sonar), (2) most have protected status under the ESA, and (3) there 
is prior evidence of some avoidance responses to LF sounds. Their 
responses to LF sound signals during the LFS SRP were to serve as 
indicators for the responses of other potentially LF-sensitive species, 
which were presumed to be less vulnerable to SURTASS LFA sonar signals. 
Whether or not the gray whale is an inshore or pelagic animal is not 
germane to whether it is a representative species for the LFS SRP. It 
is representative because it met the three criteria for selection 
listed above.
    The Navy's analysis did not ``lump'' all whales into the same 
category. The rationale for using representative species to study the 
potential effects of LF sound on marine animals emerged from an 
extensive review in several workshops by a broad group of interested 
parties: academic scientists, federal regulators, and representatives 
of environmental and animal welfare groups. The outcome of these 
discussions concluded that baleen whales (mysticetes) would be the 
focus of the three phases of the LFS SRP and indicator species for 
other marine mammals in the analysis of underwater acoustic impacts 
because they met the selection criteria. Because the results were then 
utilized in the impact analysis of less LF-sensitive marine mammals, 
NMFS believes the approach was conservative and scientifically sound, 
and the potential impacts to odontocetes and pinnipeds were 
overestimated, not underestimated. For additional information, see the 
Final EIS (RTCs 4-5.1 and 4-5.2).
    Comment SIC7: The LFS SRP was insufficient because it remains to be 
proven whether it is something about the inshore environment that 
causes whales to show a greater reaction to noise, or something about 
the composition of whales that migrate inshore.
    Response: While the results from such research would be 
informative, it would not be relevant to the deployment of the SURTASS 
LFA sonar because SURTASS LFA sonar will not operate inside of 12 nm 
(22 km) of any coastline.
    Comment SIC8: The LFS SRP was insufficient because it did not 
study: (1) The species most likely to be affected (commenter did not 
state what species to which he was referring), (2) sperm and beaked 
whales, and (3) dolphins that can make LF sounds.
    Response: Recognizing that it would not be possible to conduct 
studies of all marine mammal species within a reasonable period of 
time, the LFS SRP was designed to study the marine mammal species 
considered to be the most sensitive to LF sound, the baleen whales. 
Phase III was designed to allow playback experiments with sperm whales, 
but no animals were encountered before or during the offshore portions 
of the cruise schedule. Beaked whales and dolphins were not considered 
for the LFS SRP because: (1) They are believed to be more sensitive to 
mid- and high-frequency sound, rather than LF sound, like SURTASS LFA 
sonar; and (2) they are not listed as threatened or endangered under 
the ESA, thereby not meeting the selection criteria described in RTC 
SIC6. However, research on additional marine mammal species will be 
undertaken in the near future as explained in RTC MOC25 in this 
document.
    Comment SIC9: The LFS SRP was insufficient because research was not 
conducted at power levels of actual operations. Animals not subjected 
to 180-dB RL.
    Response: NMFS and the Navy do not believe it desirable nor 
necessary for this action, let alone humane, to test animals at or 
above levels that might result in injury simply to develop an injury 
risk continuum (at or above 180 dB). All marine mammals exposed to RL 
at or above 180 dB are considered for the analysis and for monitoring/
reporting purposes to be injured and activities are mitigated to 
protect marine mammals at that level.
    As noted in the Final EIS (RTC 4-5.21), in some of the LFS SRP 
Phase I experiments (studying the responses of feeding blue and fin 
whales), the SURTASS LFA source was transmitting at operational power 
levels. Even under these circumstances very few animals were exposed at 
received levels as high as 155 dB. The research was specifically 
designed so as NOT to expose animals to higher received levels. These 
research results confirmed what is predicted from the AIM that a very 
small percentage of animals will be close enough to the SURTASS LFA 
sonar to experience levels above 155 dB. See the Final EIS Figures 1-5a 
through 5c, Subchapter 4.2.4.3 and Appendix D. The Navy has stated that 
it would not seek a scientific research permit to perform field tests 
at higher RLs to animals in the wild. Moreover, injury cannot be 
studied in the wild. Any such experiments should be undertaken under 
controlled laboratory conditions, with animals in a more controlled 
setting. Finally, the Navy believes it has adequate data to assess what 
the potential for impacts would be for RLs greater than 180 dB RL for 
the LF sounds from SURTASS LFA sonar, without the need to try to 
actually expose animals to that RL.
    Comment SIC10: The LFS SRP was insufficient because sound levels 
utilized were only 120 to 150 dB, far lower than the 180 dB deemed 
acceptable by the Navy. The LFS SRP did not assess potential behavioral 
responses to signals in the range of 150 or 155 to 180 dB. One cannot 
extrapolate results above 155 dB. Seventy percent of humpback whales 
stopped singing at 140 dB; blue whales stopped vocalizing and many 
stopped feeding; gray whales altered their migration routes. Why are 
these behavioral effects not considered ``significant''?
    Response: The scientific objective of the LFS SRP was to conduct 
independent field research in the form of controlled experimental tests 
of how baleen whales responded to SURTASS LFA sonar signals. These 
experiments, which exposed baleen whales to RLs ranging from 120 to 
about 155 dB, detected only minor, short-term behavioral responses. 
Short-term behavioral responses do not necessarily constitute 
significant changes in biologically important behaviors. Study results 
in TR 1 indicate that 6 cases of humpback song cessation were 
considered possible responses to SURTASS LFA sonar transmissions. 
However, the estimated maximum RLs for these animals were 121.5 dB, 123 
dB, 129 dB, 133 dB, 145 dB and 150.5 dB (not 70 percent at 140 dB as 
the commenter states). The fact that none of the LFS SRP observations 
revealed a significant change in a biologically

[[Page 46733]]

important behavior helped determine an upper bound for risk. The LFS 
SRP results cannot, however, be used to prove that there is zero risk 
at these levels.
    Accordingly, the risk continuum assumes that risk is small, but not 
zero, at the RLs achieved during the LFS SRP. The risk continuum 
modeled a smooth increase in risk that culminates in a 95 percent level 
of risk of significant change in a biologically important behavior at 
180 dB. In this region, the risk continuum is unsupported by 
observations. However, because the AIM simulation results indicate that 
only a small fraction of any marine mammal stock would be exposed to 
sound levels exceeding 155 dB (See the Final EIS Figures 1-5a through 
1-5c, Subchapter 4.2.4.3, and Appendix D) and because the LFA sonar 
duty cycle is low (60-100 sec ping with 6-15 minute ``off'' periods) 
with missions lasting no more than 30 days (normally with two 9-day 
transmission periods/ mission), significant impacts to marine mammals 
are not expected. For example, stress is usually a long-term process, 
but the low duty cycle for SURTASS LFA sonar makes stress seem highly 
unlikely.
    That stated, research on the behavioral reactions of whales to 
sound levels that were not tested during the LFS SRP, specifically 
between 155 and 180 dB, has been identified by NMFS as an important 
component for continuing research under an LOA (see RTC MOC25).
    Comment SIC11: The LFS SRP was insufficient because limited sample 
size in LFS SRP should not be construed as indicating a lack of impact.
    Response: The Navy did not expect that these data would provide the 
definitive, final answer on this issue. Nevertheless, these data, 
combined with existing data, provide a reasonable basis for informed 
decision-making regarding the proposed action. For additional 
information, see the Final EIS (RTCs 4-5.10 and 4-5.23).
    Comment SIC12: The LFS SRP was insufficient because the LFS SRP was 
limited in the temporal and spatial parameters observed (short-term 
effects only). No long-term effects studied. It is not clear that 
short-term behavioral responses are good indicators of the potential 
long-term effects. Significant changes in biologically important 
behaviors do not necessarily manifest themselves in short-term, visible 
behavioral responses; i.e., these significant changes can go 
undetected. No long-term data on changes in reproduction rates or other 
long-term behavior.
    Response: The LFS SRP was one of the largest scientific field 
studies on the potential impact of underwater sound on marine mammals 
to date, and consisted of four baleen whale indicator species and three 
phases, each in a different geographical location. Many scientific 
metrics were part of the LFS SRP, including aerial surveys, Sound 
Surveillance System (SOSUS) data collection, observation vessel 
sightings, and shore-based visual observations, which yielded large 
experimental datasets, collected in the wild. All of these provided 
information relating to more than just the potential for short-term 
biological behavioral effects. The scientific investigators observed 
some short-term behavior responses and some longer-term responses 
during the longer Phases I and III of the research, which approached 
the time period of a full SURTASS LFA sonar mission. The Navy and the 
independent scientists involved in the LFS SRP believe that the data 
from the LFS SRP, when combined with other data, provide an adequate 
basis for the analysis contained in the Draft and Final EISs. NMFS 
concurs. In addition, short-term studies can address the potential for 
impacts on behaviors that relate to demographic parameters such as 
birth rate, growth rate and death rate. For example, the LFS SRP 
addressed feeding rates, which relate to birth and growth rates. 
Finally, research on the long-term behavioral reactions of whales to 
LFA sounds has been identified by NMFS as an important component of a 
continuing research program under an LOA (see RTC MOC25).
    Comment SIC13: The LFS SRP was insufficient because it did not 
study physiological and psychological stress. Also, it did not study 
non-acoustic responses.
    Response: The LFS SRP field research studies complement Office of 
Naval Research (ONR) and Chief of Naval Operations (CNO)-sponsored 
laboratory studies on TTS, physiological stress, and soft tissue 
damage. The focus of the LFS SRP was on the potential for baleen whale 
behavioral reactions to LF sound in the wild. Methods to investigate 
physiological reactions (e.g., TTS, PTS, stress) to underwater LF sound 
have only recently been accomplished on captive small toothed whales 
and seals, and are not yet available for free-ranging large whales.
    Comment SIC14: The LFS SRP was insufficient because humpback whales 
left the area in Phase III. This is supported by TR 1, Figure D-21.
    Response: There was no statistically significant difference in the 
overall distribution of the number of animals during Phase III of the 
LFS SRP. For information regarding the sufficiency of the LFS SRP, see 
the Final EIS Subchapters 1.4.2, 4.2.4, and 4.2.4.3, and Final EIS 
(RTCs 4-5.1, 4-5.2, 4-5.6, 4-5.8, 4-5.10, 4-5.12, 4-5.14, and 4-5.21). 
Further, NMFS believes that the Navy has provided sufficient 
information to make its findings under the MMPA.
    As a requirement of this regulatory action and the LOA, the Navy 
will conduct research in areas where information on the potential 
effects of SURTASS LFA sonar operations on the marine environment is 
incomplete. Potential topics for proposed research include responses of 
sperm and beaked whales to SURTASS LFA signals, behavioral responses of 
whales to sound levels not tested (specifically between 155 and 180 
dB), and long-term and cumulative effects on marine mammal stocks (also 
see RTC MOC25).
    Comment SIC15: The full results of the LFS SRP were not considered. 
All peer-reviewed data should be made available, including full results 
of the LFS SRP, and for all species concerned.
    Response: All pertinent results from the LFS SRP were considered in 
the EIS analysis and in this rulemaking process. LFS SRP data are 
available to the public in TR 1. The LFS SRP was one of the largest 
studies on the effects of anthropogenic sound on marine mammals to 
date. Analysis of the LFS SRP data is continuing. However, there is no 
evidence in the data that indicates that deployment of the SURTASS LFA 
system with the mitigation protocols will have any significant effect 
on marine mammal stocks. Any future results from LFS SRP data analysis 
will be analyzed by NMFS and the Navy during this authorization period.
    Comment SIC16: Much of the data from the LFS SRP, even that which 
has been analyzed, is still not fully interpreted. For example, based 
on Miller et al. (2000), it is assumed that male humpback whales 
consider LFA signals to be competition from other male singers.
    Response: Miller et al. (2000) analyzed songs from six individuals, 
from whom they had complete song (i.e., a complete song cycle) 
recordings for periods before, during, and after the LFA transmissions. 
They found that song length increased during SURTASS LFA transmissions 
by an average of 29 percent, and returned to baseline length following 
the playback. Miller et al. (2000) suggested that song lengths were 
increased to compensate for acoustic interference. That interference is 
simply the presence of potentially masking noise--not the presence of a 
competing male. The response of singers to the

[[Page 46734]]

nearby presence of other singers is stronger, and includes the singer 
swimming toward and interacting with the other nearby singer(s) 
(Darling and Berube, 2001). These response components, typical of 
intra-sexual competition, were not observed in Miller et al. (2000), 
supporting their suggestion that the increase in song length is in 
response to the presence of noise in the bandwidth of the signal, not 
the presence of a competing male.
    Comment SIC17: The results of the LFS SRP have not been published 
and have yet to survive the peer review process.
    Response: This comment was addressed in the Final EIS (RTCs 4-5.18 
and 4-5.19). To date one article and one paper regarding the results of 
the LFS SRP have been published: Miller et al. (2000), and Croll et al. 
(2001).
    Comment SIC18: The Final EIS (RTC 4-5.27) states that many prior 
studies (prior to LFS SRP) were reviewed in the development of the 
marine mammal monitoring mitigation, yet no reference is made to these 
prior studies in the Final EIS.
    Response: RTC 4-5.27 states that the Final EIS reviewed the results 
of prior studies. This information was utilized not only in determining 
the research strategies for the LFS SRP as noted in the Final EIS 
Subchapter 4.2.4.1, but also in the analyses performed and documented 
in the Final EIS. Marine mammal monitoring mitigation was developed as 
a result of this process; and, therefore, it included the review of 
literature utilized in the Final EIS for these purposes. A list of 
references can be found in the Final EIS (pages 13-1 to 13-54).
    Comment SIC19: The National Research Council (NRC) stated that 
critical exposure levels cannot be extrapolated from a few species. 
However, this is what the Final EIS does based on testing on 4 
mysticetes.
    Response: It is impossible to conduct studies on all marine mammal 
species within a reasonable period of time. Accordingly, four mysticete 
species (blue, fin, gray, and humpback whales) were selected based on 
the criteria described under RTC SIC8. Their responses to LF sound 
signals during the LFS SRP were to serve as indicators for the 
responses of other potentially LF-sensitive species, which were 
presumed to be less vulnerable to SURTASS LFA sonar signals. For 
additional information see Final EIS (RTC 4-5.1).

LFS SRP Phases I and II

    Comment SIC20: During the LFS SRP Phase I, the sample size was too 
small for statistical evaluation of an apparent drop in vocalization 
rate by fin and blue whales and the no impact findings may have been an 
artifact of the small sample size.
    Response: NMFS and the Navy did not expect that these data would 
provide a definitive answer on this issue. Nevertheless, these data, 
combined with existing data, provide a reasonable basis for informed 
decision-making regarding the proposed action. For additional 
information, see the Final EIS (RTCs 4-5.10, 4-5.23, and 4-5.44).
    Comment SIC21: Gray whales cannot be used as indicator species as 
supported by the Navy's statement in Final EIS (RTC 4-4.18) where it 
stated, ``Gray whales inhabit a unique environment, and all research 
conducted to date indicates that their behavior does not generalize to 
other species.''
    Response: The statement was taken out of context. The term ``their 
behavior'' referred only to avoidance by gray whales of sound that was 
in their migratory path. The LFS SRP results showed that gray whales do 
not respond to 155 dB RL, generated outside of their migratory path. 
The gray whale research in Phase II of the LFS SRP was done with a 
different objective than Phases I and III.

LFS SRP Phase III

    Comment SIC22: There is a very real question as to whether the 
results of the LFS SRP Phase III are statistically significant.
    Response: The LFS SRP was intended to collect field research data 
regarding the responses of selected species of cetaceans to LF sound 
and, in that respect, the independent scientist principal investigators 
and the Navy strongly believe it was successful. The Navy did not 
expect that these data would provide the definitive, final answer on 
this issue. Nevertheless, these data, combined with existing data, 
provide a reasonable basis for informed decision-making regarding the 
proposed action. Phase III included a total of 33 playback experiments 
with 17 being conducted during focal follows. Singers continued to sing 
throughout seven of the 17 playbacks. There were six cases of song 
cessation that were considered possible responses to playback. During 
the testing period there were 191 hours of control and almost 33 hours 
of playback observations.
    Comment SIC23: One commenter stated that a scientist hired by the 
Navy to conduct the LFS SRP cautioned in the Executive Summary of the 
Hawaii Quicklook Report that ``it will be difficult to extrapolate from 
these tests (with received levels below 155 dB and usually below 140 
dB) to predict responses at higher exposure levels.'' Yet the Navy did 
not heed the advice of the LFS SRP scientist because they extrapolated 
in the Final EIS to conclude that there is no significant risk below 
180-dB levels.
    Response: The actual quote from the Quicklook of Phase III dated 
August 31, 1998, states, ``Responses did not scale consistently to 
received level, and it will be difficult to extrapolate from these 
results to predict responses at higher exposure levels.'' This was 
addressed in the Final EIS (RTC 4-5.1). The analysis presented in the 
Final EIS does not extrapolate from 150 dB to 180 dB. The selection of 
the 180-dB criterion was not related to results from the LFS SRP. The 
Navy accepts that risk is high at 180 dB RL, and assumes that risk of a 
significant change in a biologically important behavior is low below 
150 dB RL because of the relatively modest responses observed during 
the LFS SRP.
    The risk continuum is a biologically reasonable formula for 
reconciling the LFS SRP data with the conventional assumption of high 
risk at 180 dB RL. The fact that responses did not consistently scale 
with RL confirms the risk continuum assumption that not all individuals 
will react identically when exposed to the same level of SURTASS LFA 
sonar signals. It should be noted that the risk continuum function 
corresponds to a dose-response function in a typical pharmacological 
risk assessment. The Navy's analyses estimated the risk posed by 
SURTASS LFA sonar by treating the risk of biologically significant 
behavior to received levels (SPLs in decibels) using probability 
distribution functions. The results of these analyses appear as 
continuous functions that are analogous to dose-response curves used in 
toxicology: at one end of these curves, low received levels (``low 
dose'') would not be expected to elicit a response in the species; at 
the other end of these curves, high received levels (``high dose'') 
would be expected to elicit much more serious responses. These types of 
data analyses are accepted as the best practice in disciplines ranging 
from epidemiology, toxicology, and pharmacology.
    Comment SIC24: One commenter disagrees with the Navy's 
interpretation that changes in singing behavior from the LFS SRP 
results in a minor, non-significant change. Because song is related to 
mating behavior, any change is likely to be significant to the limited 
gene pool of the endangered humpback whale.

[[Page 46735]]

    Response: TR 1 concerning Phase III (humpback whales) stated, 
``Many of the whale subjects continued to sing and interact during the 
playback. Some behavioral responses of focal whales were observed 
during playback * * * Most of the whales that did respond resumed 
activities normal for the breeding area within less than an hour.'' The 
independent scientists conducting Phase III of the LFS SRP did not 
conclude that these alterations of behavior were widespread. Therefore, 
NMFS believes that it is unlikely that a SURTASS LFA sonar vessel, 
transmitting at no more than a 20-percent duty cycle and moving 
constantly, thereby resulting in only short term noise interference for 
an individual animal; and operating at various locations in a yearly 
period would have a significant (or widespread) impact to this 
biologically important behavior, including those for humpback whales. 
This conclusion is supported by the Final EIS analysis.
    Comment SIC25: The actual range of RLs during Phase III that 
coincided with cessation of singing was 103.5 to 142.3 dB, not 120 to 
150 dB.
    Response: Table D-15 in TR 1 presents the RLs of the 17 singers 
followed by the observation vessel. The range of RLs for singers that 
stopped singing was 121.5 to 150.5 dB. The RLs for singers that did not 
stop singing was 122.8 to 149.9 dB.
    Comment SIC26: There is no discussion of the reports of whales 
leaving the test area (Phase III) in the Final EIS. ``Omission of this 
information cannot be other than deliberate.''
    Response: The Final EIS addresses this issue in RTC 4-5.10. 
Humpback whales typically commence their migration from Hawaiian waters 
in early March. Thus, the decrease in whale numbers in March is 
consistent with the typical departure schedule for humpback whales.
    Comment SIC27: Data imply that there were more whales off the Kona 
coast on March 8 than on March 1 (Mobley survey), thus supporting the 
possibility that SURTASS LFA testing drove humpback whales out of one 
of their favorite breeding and birthing areas. Such effects are 
biologically significant.
    Response: In a court declaration on March 19, 1998 (See Final EIS 
Appendix C Tab G), Dr. Mobley recounted a higher sighting rate of 0.21 
whales per minute for March 1, 1998, versus 0.29 whales per minute for 
March 8, 1998, for the area off the Kona, or west side, of Hawaii. The 
declaration did not specify the location in any more detail, nor did it 
indicate the size of the survey area. However, a larger data set taken 
over a much longer time period than one week is needed before 
conclusions can be drawn. Dr. Mobley also stated in his declaration 
that for the same area there were more than twice the whales than in 
1995. It should be noted that the results from the LFS SRP Phase III 
show a different result. Sightings made from the observation vessel 
showed an observation rate of 1.5 humpback whales per hour on March 1, 
1998 and 3.0 humpback whales per hour on March 8, 1998. Therefore, the 
scientific data are scientifically inconclusive that the LFS SRP Phase 
III drove humpback whales out of the area off the Big Island.
    Comment SIC28: The Mobley 1998 survey did not include Keahole 
Point, nor were there any surveys before the testing.
    Response: Mobley et al. (1999) indicate that the tracklines used 
during the 1998 survey included the Kona coast and the west side of 
Hawaii, which includes Keahole Point.
    Comment SIC29: As reported by a whale watching activity in Hawaii, 
the season after the LFS SRP Phase III (1998-99) showed a dramatic drop 
in numbers of humpbacks in Kona waters as compared to the previous 
year. The whale watching industry in the remaining areas of the 
Hawaiian Islands reported numbers at least equal, or as in the case of 
Kauai, much greater. The Navy did not do follow up research in the area 
the following year.
    Response: The Navy funded statewide research surveys in 1998 and 
2000 for Hawaiian waters that included the Kona Coast. Preliminary 
results indicate that there were fewer whales around the Big Island 
relative to other areas: however, the sea state conditions for the Big 
Island were worse in 2000 relative to 1998 (J. Mobley, pers comm). The 
mean values were a Beaufort sea state of 3.24 for the 2000 survey and 
2.82 for the 1998 survey. Buckland et al. (1993) found that sea state 
greatly affects the probability of detection of marine mammals. Based 
on previous surveys (1993-1998), Mobley et al. (1999) found that the 
probability of detecting a whale at the surface dropped significantly 
beyond a Beaufort sea state of 3. Moreover, the overall trend since 
1993 is for increasing numbers of humpback whales visiting the Hawaiian 
Islands.
    Comment SIC30: Did Phase III of the LFS SRP cause the decline of 
spinner dolphin population on Hawaiian waters? Reports by independent 
naturalists, whaleboat captains and fishermen of stillbirths by spinner 
and spotted dolphins after the LFS SRP Phase III have not been studied 
by the Navy.
    Response: NMFS has not received any scientifically supportable 
evidence of the decline of spinner/spotted dolphin populations in 
Hawaiian waters, nor information on still births. Forney et al. (2000) 
and Caretta et al. (2001) do not support a hypothesis that there has 
been a population decline.
    Comment SIC31: The Final EIS did not include reports of abnormal 
behavior by marine animals off Hawaii during the tests (schooling 
hammerhead sharks, whales swimming at high speeds, dolphins behaving as 
if threatened).
    Response: The reports of the abnormal behavior by marine animals 
during the LFS SRP Phase III are included in the Final EIS in Appendix 
C Tabs A, B, and E. In court declarations both Dr. Mobley (Final EIS 
Appendix C Tab G) and E. Nitta (Final EIS Appendix C Tab H) stated that 
none of these behaviors were unusual for the Hawaiian waters. In his 
court declaration (Final EIS Appendix C Tab F) Dr. Fristrup stated that 
the reported calf breaching activity fell within the range of breaching 
activity observed during the control period (when the sound source was 
off). The reported lone humpback whale calf breaching off Hawaii during 
the LFS SRP Phase III was discussed in the Final EIS (RTC 4-5.25). 
Reported ``acute behavioral responses'' during the LFS SRP Phase III 
are discussed in the Final EIS (RTC 4-5.46).
    Comment SIC32: The Final EIS does not meet the minimal standards in 
dealing with the Chris Reid complaint during Phase III of the LFS SRP. 
The declaration filed by Dr. Kurt Fristrup in Appendix C of the EIS 
does not include Ms. Reid's revised date of 10 March 1998. The EIS does 
not contain the second Fristrup response, which states that a person at 
Ms. Reid's location would have experienced a received level of 125 dB.
    Response: The Navy has conducted a comprehensive and thorough 
scientifically based research program on the potential effects of LF 
sound on human divers. Medical doctors and clinical researchers have 
carried out extensive computer modeling and testing of human and animal 
subjects. (All testing was done within the guidelines for the 
protection of human subjects and standard ethical procedures for animal 
experiments.) The study concluded that the maximum tested sound level 
of 157 dB did not cause damage to internal or external tissues, or the 
vital bodily functions and processes in human subjects. Based on the 
data obtained from these studies, the

[[Page 46736]]

Navy Bureau of Medicine incorporated a wide safety margin and 
established a very conservative limit of 145 dB for LF received sound 
level for recreational and commercial divers. The mitigation measures 
provided in the Final EIS will ensure that no diver will be exposed to 
levels of sound above 145 dB.
    The commenter has misinterpreted Dr. Fristrup's statement in his 
second declaration. Dr. Fristrup stated, ``Given our source level and 
range to Keahole Pt., the conservative estimate of received level would 
be 125 dB. This is equivalent to the received level of song from a 
singing humpback whale at 400 m distance.'' Also this is 20 dB below 
the maximum allowable level that the Navy has determined to be the 
accepted LFS exposure level (145 dB) to recreational and commercial 
divers, or 100 times less intense. See Final EIS RTC 4-5.26 and 
Appendix C for additional information.

LFS SRP Conclusions

    Comment SIC33: LFS SRP demonstrated that exposure up to 155 dB (and 
often lower than 155 dB) causes small but measurable (and statistically 
significant) behavioral responses (Ref: Croll et al (2001), and Miller 
et al. (2000)). Scientific data from the LFS SRP does not justify the 
Navy's statement that levels below 150 dB are less than 2.5 percent 
likely to lead to a ``significant change in biologically important 
behavior'' because roughly one quarter of the singers in Phase III 
stopped singing in response to the LFA signal as low as 130 dB.
    Response: The LFS SRP, which exposed baleen whales to RLs ranging 
from 120 to about 155 dB, detected only minor, short-term behavioral 
responses. Short-term behavioral responses do not necessarily 
constitute significant change in biologically important behaviors. Most 
of the singers resumed their songs when the SURTASS LFA signal was 
terminated. Therefore, the use of 2.5 percent for potential significant 
change in biologically important behavior at levels below 150 dB is 
warranted. This is addressed in the Final EIS (RTC 4-5.10 and 4-6.19) 
and Subchapters 1.4.2, 4.2.4, and 4.2.5.
    Comment SIC34: NMFS should direct the Navy to conduct further 
scientific testing on a broader range of species and at higher RLs 
before an LOA is issued.
    Response: The Navy has instituted a long term research program that 
will address NMFS-identified research issues potentially including 
responses of sperm and beaked whales to SURTASS LFA signals, behavioral 
responses of whales to sound levels not tested (specifically between 
155 and 180 dB), and long-term and cumulative effects on marine mammal 
stocks. These research issues are described in RTC MOC25. However, it 
is not necessary to delay this rulemaking until more information is 
available since the Navy has provided sufficient information in its 
Final EIS for NMFS to make the findings required by the MMPA. These 
findings are discussed later in this document.
    Comment SIC35: The results of the LFS SRP cannot be used, 
regardless of the findings, to show absence of harm at sound levels up 
to 180 dB. The Navy predicted a ``small take'' on the basis that a 
received level of 180 dB would be relatively safe. This was not based 
on direct tests.
    Response: The LFS SRP was not designed to demonstrate the absence 
of harm at sound levels up to 180 dB, nor was this criterion based on 
direct tests. See Final EIS (RTC 4-5.9) for more details. ``Small 
takes'' were not based on the 180-dB received level, but on SPLs 
between 119 and 215 dB.
    Comment SIC36: There was an inappropriate comparison of the results 
of the Acoustic Thermometry of Ocean Climate (ATOC) project impact on 
humpback and sperm whales to LFA. Commenter stated that the Final EIS 
willing to use data from ATOC to conclude that there is an absence of 
responsiveness to LF broadcasts. However, when ATOC caused whale 
deaths, the Final EIS stated that ATOC and LFA had different acoustic 
patterns.
    Response: As discussed in the Final EIS (RTC 4-4.20), there is no 
evidence that ATOC transmissions resulted in the death of any whale.

Impact Criteria/Risk Continuum

    Comment SIC37: The LFS SRP cannot be used to determine the ``risk 
continuum.''
    Response: As explained in the Final EIS, the risk continuum was not 
determined exclusively by the results of the LFS SRP. See Subchapters 
1.4.2.2 and 4.2.4.3 for more details.
    Comment SIC38: The discussion on pages 54-56 of the LOA application 
(regarding the 180-dB criterion) differs from information found in the 
Navy Final EIS; neither is convincing. In the application, the Navy 
speculated that cetaceans that hear best at low frequencies would have 
higher thresholds than cetaceans that hear best at high frequencies 
because ambient noise levels are higher for LF. These levels cannot be 
used to speculate because ambient noise levels have been increasing in 
recent times and because noise levels in the past history are unknown.
    Response: The LOA application is based on information contained in 
the Draft EIS, while the proposed rule relies on information contained 
in the Final EIS. NMFS believes that the Navy's Final EIS combined with 
the empirical data collected during the LFS SRP and other data provide 
a reasonable basis for informed decision-making.
    Figure 1-4 of the Final EIS provides information on hearing 
thresholds of marine mammals indicating that mysticete auditory 
thresholds at their best hearing frequencies are estimated to be about 
60 to 90 dB while the thresholds for odontocetes at their best hearing 
thresholds are about 30 to 40 dB. Additional information can be found 
in Subchapter 1.4 of the Final EIS. However, NMFS believes that the 
commenter has misinterpreted the statement in the Navy's application. 
Archaic ambient LF noise levels are presumed to have been lower than 
ambient noise of today, due in major part to increases in worldwide 
shipping, but offset somewhat by archaic volcanic activity. To estimate 
the threshold for hearing of LF marine mammal specialists (i.e., the 
large whales), the Navy and NMFS used the best science available on 
this issue by adopting threshold levels cited in Ketten (1998). Use of 
this information, while somewhat speculative, remains the best science 
available until such time as NMFS and the Navy are successful in 
measuring threshold levels for marine mammals under MMPA scientific 
research permit 931-1597-00 (dated May 22, 2001).
    Comment SIC39: Because the LFS SRP was conducted at a maximum level 
of 160 dB, this implies that the Navy agreed with many researchers that 
there is a potential physical threat to marine mammals over 160 dB.
    Response: Based on early comments from the MMC and others stating 
that there may be insufficient information available for the assessment 
of the potential environmental impacts to conduct a proper NEPA review, 
the Navy convened a scientific working group of government and non-
government scientists to provide advice on needed research. The Navy, 
based on inputs from the scientific group, developed and implemented 
the three-phase LFS SRP (see Final EIS Subchapter 4.2.4). The goals, as 
set by the scientific group, were to determine short-term behavioral 
impacts to those marine mammals presumed to have the greatest 
sensitivity to LF sound, the baleen whales. The maximum level of 160 dB 
was set by the scientific working group and the independent scientists, 
who planned and executed the LFS

[[Page 46737]]

SRP, not the Navy. However, as indicated by research (Schlundt et al. 
(2000), Cudahy and Ellison (2002), and Crum and Mao (1996)), the choice 
of 160 dB should not be interpreted to mean that injury occurs at an 
SPL of 160 dB.
    Comment SIC40: One commenter stated that on page 52 the LOA 
application mentioned that Richardson et al. (1995) conjectured that 
prolonged exposure to 120 dB might cause PTS in odontocete species at 
their most sensitive frequency. This acoustic behavior of odontocetes 
cannot be used to predict the acoustic behavior of all whales because 
their hearing is above LFA transmissions frequencies.
    Response: The statement in the Navy application notes that the 120 
dB level corresponds to the level of uninterrupted sound conjectured by 
Richardson et al. (1995) that might lead to PTS in the most sensitive 
odontocete species at their most sensitive frequency, if exposure were 
sustained for a very long time. Recent research does not fully support 
the commenter's conjecture. Schlundt et al. (2000) showed that 
bottlenose dolphins experience onset of masked TTS (defined as 6 dB of 
shift) from a one-second, 3-75 kHz, exposure at approximately 192 dB RL 
sound. Assuming a 3-dB exchange rate (e.g., the same amount of shift 
that would result from reducing the intensity by 3 dB and doubling the 
exposure time (Finneran et al., 2000), these odontocetes could 
experience TTS from a 16-second exposure to a 180-dB sound at their 
best frequency, a 32-second exposure at 177 dB, etc. Since this 
approximation is for mid-frequency marine mammal specialists at mid-
frequency sound levels, NMFS believes that low frequency marine mammal 
specialists should incur TTS at similar levels and duration when 
exposed to low frequency sounds. However, the typical SURTASS LFA 
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 lasts between 6 and 100 seconds, although the 
duration of each continuous frequency sound transmission is normally 10 
seconds or less. Therefore, the SURTASS LFA signal itself is unlikely 
to result in either PTS or TTS in marine mammals.
    Comment SIC41: The composite pinniped audiogram (Final EIS Figure 
1-4) is misleading. It is oversimplified and ignorant of published 
audiometric data. There is a substantial difference between phocids and 
otariids.
    Response: The composite audiograms shown in Figure 1-4 use measured 
and estimated marine mammal hearing data to illustrate that mysticetes 
have the best LF hearing of all marine mammals. As stated in the Final 
EIS Subchapter 1.4.2.1 and within Figure 1-4, the thresholds shown for 
pinnipeds are a composite of measured lowest thresholds for multiple 
species from Richardson et al. (1995). It is recognized that there is a 
substantial difference between phocids and otariids concerning hearing, 
however, this does not change the conclusion in the Final EIS that 
there are no marine mammals with more sensitive LF hearing than 
mysticetes.
    Comment SIC42: The assumption that the potential for masking 
effects is negligible because of narrow bandwidth and maximum 10-second 
duration is incorrect. Also, if we assume that there is no noise other 
than LFA sonar, it still would not be adequate for a whale to 
experience no masking 80 percent of the time, if during the other 20 
percent of the time a predator is masked, resulting in the whale's 
death.
    Response: The potential impacts for masking by the SURTASS LFA 
sonar are assessed in the Final EIS Subchapter 4.2.7.7. In summary, 
masking effects are not expected to be severe because the SURTASS LFA 
sonar bandwidth is very limited (approximately 30 Hz), the signals do 
not remain at the same frequency for more than 10 seconds, and the duty 
cycle is limited (system off at least 80 percent of the time). For 
example, Dahlheim et al. (1984) determined that gray whales in the San 
Ignacio Lagoon, Baja California shifted the frequencies of their 
vocalizations away from the predominant noise producers in the lagoon 
to overcome masking effects. This was also addressed by Richardson et 
al. (1995) who noted in particular that marine mammals, like 
terrestrial animals, have evolved adaptations to reduce masking of 
sounds that are important to them. Therefore, it is very likely that, 
if necessary, marine mammals can adapt by shifting their vocalizations 
away from the narrow SURTASS LFA frequency band. The probability of an 
intermittent sound of interest to a marine mammal continuously 
overlapping the SURTASS LFA signal (with its 6- to 100-sec. 
transmission period every 6 to 15 minutes) for any period of time is 
small. A continuous sound, such as noise from a ship, cannot be masked 
by the intermittent SURTASS LFA transmission.
    Comment SIC43: The attempt to apply a single noise exposure 
standard for all marine mammals is a gross oversimplification of an 
exceedingly complex and poorly understood suite of issues.
    Response: NMFS and the Navy concur that the effects of 
anthropogenic sound on marine mammals is exceedingly complex and there 
is a lack of information on many, if not most, species. The complexity 
and length of the Final EIS is testimony to this. Because of this, very 
conservative assumptions were used for all of the Navy's analyses. 
These assumptions are detailed in the Final EIS Subchapter 1.4.3.
    The exposure standard used in the Final EIS analysis for all 
potentially affected marine mammals is appropriate because of its 
extremely conservative bias. Foremost of these is that all marine 
mammals were evaluated as if they were equally as sensitive to LF sound 
as the baleen whales.

180-dB Criterion

    Comment SIC44: There are two separate justifications presented for 
the utilization of the 180-dB criterion for the onset of injury, or 
threshold shift, one in the proposed rule based on the Draft EIS and 
the other in the Final EIS. Notwithstanding this, each of these 
analyses tends to underestimate the potential for auditory impacts. 
Factors include: (1) Reliance on the Ridgway TTS study; (2) inaccurate 
use of the HESS (High-Energy Seismic Survey) Workshop and NMFS' 
Acoustic Criteria Workshop; and (3) reliance on human audiology to 
determine threshold shift based on ``equivalent quiet.'' Finally, the 
Navy's theory is inconsistent with the little empirical data that 
exists on marine mammals (pinnipeds). The extrapolation of human 
hearing loss data to create models for estimating potential injury to 
marine mammals may be unfounded. The adoption of a 180-dB SPL as safe 
for all marine mammals is unsupported by science and actual events 
(e.g., the beaked whales strandings in Greece and the Bahamas).
    Response: The determination of the 180-dB criterion for injury was 
developed from a combination of several scientific studies and 
analytical calculations including: (1) Marine mammal hearing 
thresholds, (2) human hearing loss studies, (3) comparison of fish 
hearing loss studies, and (4) TTS studies. This was noted in both the 
Draft and Final EISs. The HESS and NMFS workshops concluded that the 
180-dB SPL is the point above which some potentially serious problems 
in the hearing capability of marine mammals could start to occur. 
Detailed information on this subject is provided

[[Page 46738]]

in the Final EIS Subchapter 1.4.2.1. A subsequent analysis by Cudahy 
and Ellison (2002) of the potential for resonance from SURTASS LFA 
signals to cause injury supports this conclusion.
    While there is limited empirical evidence at this time (beyond 
Schlundt et al., 2000) on any injury criterion, the 180 dB level makes 
common sense, given that Frankel (1994) estimated the source level for 
singing humpback whales to be between 170 and 175 dB while Au and 
Andrews (2001) measured their calls off Hawaii at 189 dB; the average 
call source level for blue whales was calculated by McDonald et al. 
(2001) to be 186 dB; Watkins et al. (1987) and Charif et al. (2002) 
found source levels for fin whales up to 186 dB; and Mohl et al. (2000) 
recorded source levels for sperm whale clicks up to 223 dB. If marine 
mammals vocalize at these levels, it is realistic to believe that these 
species have also evolved mechanisms to protect themselves and 
conspecifics from high SPL vocalizations.
    Comment SIC45: One commenter asked that NMFS ``prove that the 
experts agreed that 180 dB was an appropriate threshold of mitigation 
for the LFA source, based on scientific evidence of biologically 
important impacts rather than Navy needs or mitigation potentials.'' 
Provide certification that the 180-dB criterion is specifically 
supported by the following workshops: HESS, ONR Workshop on the Effects 
of Man-Made Noise on Marine Mammals, and NMFS Workshop on Acoustic 
Criteria. The 180-dB criterion is not accepted by the vast majority of 
competent non-U.S. Navy supported scientists.
    Response: A panel of nine experts in the fields of marine biology 
and acoustics sponsored by Southern California's HESS Team convened at 
Pepperdine University in June, 1997 to develop marine mammal exposure 
criteria (Knastner, 1998). The consensus of the combined experts was 
that they were

``apprehensive'' about levels above 180 dB re 1 Pa (rms) 
with respect to overt behavioral, physiological, and hearing effects 
on marine mammals in general. Therefore, the 180-dB radius, as 
initially defined by transmission loss model and verified on-site, 
is recommended as the safety zone distance to be used for all 
seismic surveys within the southern California study area.

Those scientists and experts from Cornell University, University of 
California San Diego, University of Maryland, Woods Hole, NOAA, ONR, 
and Naval Submarine Medical Research Laboratory who assisted in the 
preparation of the Draft and Final EISs support the 180-dB criteria. 
The Final EIS states, ``For the purposes of the SURTASS LFA sonar 
analyses presented in this OEIS/EIS, all marine animals exposed to RLs 
180 dB are evaluated as if they are injured'' (See Final EIS 
page 1-34, also See Final EIS pages 14-1 to 14-4 and RTC 4-4.9).
    However, NMFS has advised caution with any widespread use of the 
180-dB standard for other than impulsive noise. Because SURTASS LFA is 
not an impulsive noise, the Navy conservatively presumed that any 
marine mammal exposed to SURTASS LFA sonar received levels of 
180 dB are evaluated as if they are injured for the purposes 
of their analysis and operational mitigation.
    Comment SIC46: NMFS' mandate is to ensure that ``the taking will 
have negligible impact on the affected species and stocks of marine 
mammals, will be at the lowest level practicable, and will not have an 
immitigable adverse impact of the availability of the species or 
stock(s) for subsistence use.'' Why does NMFS believe that an RL of 180 
dB is an adequate threshold of LFA mitigation to satisfy this mandate? 
Unless and until the Navy and NMFS can provide an empirically based 
rationale for choosing 180 dB as the upper limit for acoustic 
harassment and non-serious injury, rather than any other value between 
150 and 180 dB, the 120-dB criterion currently in use should not be 
abandoned. The LFS SRP does not justify revision of the general 
criterion from 120 to 180 dB. The use of a level lower than 180 dB as 
the injury level is appropriate. There is no scientific basis for the 
180-dB standard as the upper limit of harassment.
    Response: The comment fails to distinguish between an SPL that has 
been used previously to indicate the onset of Level B harassment for 
non-impulse (intermittent) noise (i.e., 120 dB) and the level that NMFS 
and others have adopted as a precautionary level to prevent injury for 
an impulsive sound (i.e., 180 dB). Research conducted by Malme et al. 
(1983, 1984) showed that gray whales demonstrated statistically 
significant responses to four different playbacks typical of industrial 
(intermittent/continuous) noise from oil production (drillship, 
semisubmersible, drilling platform, and production platform) at RLs of 
approximately 120 dB. Therefore, this level was the basement level 
established by NMFS previously for all non-impulsive noise that 
indicated marine mammals could potentially be harassed at those 
received levels. For industrial-type (non-impulsive, intermittent and 
continuous) noise sources, unless noise levels can be mitigated to 
below this level at the marine mammal, a small take authorization may 
be necessary in order to remain in compliance with the MMPA's 
prohibition on taking by harassment. Since the Navy determined that 
SURTASS LFA sonar operations could result in marine mammals being 
exposed to SPLs greater than 120 dB, it applied for an authorization 
under the MMPA for incidental taking. Based on the LFS SRP results, 119 
dB was adopted by the Navy as the B parameter (or basement value) for 
risk to have a significant biological response on the part of the 
marine mammal. This is explained in more detail in the Final EIS 
(Subchapters 4-2.3 and 4-2.5.1). Also explained in the Final EIS 
(Subchapter 1.4.2.1) and in this document are the reasons for 
determining that 180 dB is a conservative estimate for assessing the 
onset for injury.
    Once the determination is made that a taking will have no more than 
a negligible impact on affected marine mammal stocks (as is done in 
this document), the MMPA requires NMFS to prescribe regulations 
``setting forth* * * means for effecting the least practicable adverse 
impact on such species or stocks.* * *'' These ``means'' are called 
mitigation measures by NMFS and have been set out in 50 CFR 216.184 and 
include the establishment of the 180-dB sound field (i.e., SURTASS LFA 
mitigation zone) wherein the Navy will not transmit whenever a marine 
mammal is within that zone. This 180-dB sound field has been determined 
to be the lowest SPL that is practicable to prevent injury to marine 
mammals. The HF/M3 sonar is effective up to 2 km (1.1 nm), no practical 
alternative mitigation measures have been identified that would be 
superior to the HF/M3, and NMFS and the Navy have shown elsewhere in 
this document that injury to marine mammals would not occur at lower 
SPLs. As a result, NMFS has determined that the Navy has mitigated 
harassment takings to the greatest extent practicable.
    Please see RTC SIC44 on why the 180 dB level is a realistic 
application based upon existing knowledge. In summary, if marine 
mammals vocalize at high SPLs, it is realistic to believe that these 
species have also evolved mechanisms to protect themselves and 
conspecifics from high SPL vocalizations.
    Comment SIC47: One commenter stated that a RL of 180 dB as the 
appropriate threshold of mitigation for the LFA source is not 
substantiated, and is not scientifically or legally defensible. The 
commenter stated that the Navy's designation of the 180-dB zone of

[[Page 46739]]

influence is arbitrary and capricious and that the Navy uses the 180-dB 
sound field to significantly limit the scope of mitigation.
    Response: Please see RTC SIC46 regarding the establishment of a 
180-dB safety zone and the scientific basis for this determination. In 
addition, the 180-dB determination is supported by two government-
sponsored workshops. The 180-dB criterion was not arbitrarily selected 
based on the fact that the monitoring mitigation methods are only 
effective to 1 km (0.54 nm), but on the need to minimize the potential 
for injury. Depending on conditions, visual monitoring can be effective 
up to 3 nm (5.5 km). Passive acoustic monitoring does not provide 
range, but will effectively locate the bearing of vocalizing animals at 
greater distances. Finally, the HF/M3 sonar is effective up to 2 km 
(1.1 nm)(See the Final EIS Figure 2-5).
    Comment SIC48: Based on the stranding in Greece and the results of 
the LFS SRP (gray whales changing their migration route), it appears 
that the risk continuum underestimates the decibel level of risk for 
change in biologically important behavior.
    Response: There are no scientific data relating the strandings in 
Greece to sonar received levels below 180 dB. The LFS SRP, which 
included gray whales changing their migration route close to shore, 
exposed baleen whales to RLs ranging from 120 to about 155 dB. This 
research detected only minor, short-term behavioral responses. Short-
term behavioral responses do not necessarily constitute significant 
changes in biologically important behaviors. The fact that none of the 
LFS SRP observations revealed a significant change in a biologically 
important behavior helped determine an upper bound for risk. Also, AIM 
simulation results demonstrate that a very small portion of any marine 
mammal stock would be exposed to sound levels exceeding 155 dB. 
Therefore, the risk continuum does not underestimate the level of risk 
for change in biologically important behavior. For additional 
information, see Final EIS Figures 1-5a through 1-5c, Subchapter 
4.2.4.3, RTC 4-6.2, and Appendix D.
    Comment SIC49: In the Final EIS the use of extrapolated data from 
human auditory standards to justify the 180-dB criterion is 
inappropriate. Also it is not only highly unlikely that the equivalent 
quiet (EQ) value for marine mammals in water would be the same as that 
for humans in air, but the empirical data from Kastak et al. (1999) 
indicate that it is not the same. EQ calculations should be at least 10 
dB lower than the 140 dB given in the Final EIS.
    Response: In accordance with best scientific practice, the Final 
EIS Subchapter 1.4.2.1 (Estimating the Potential for Injury to Marine 
Mammals) studied and analyzed all extant and viable hearing data. These 
went into the Final EIS discussions on marine mammal hearing 
thresholds, human hearing loss studies, selection of the 180-dB 
criterion, extrapolation to marine mammals, comparison to fish hearing 
studies, and TTS. Where extrapolation and estimation were necessary, 
internationally recognized scientific subject matter experts in marine 
biology, marine mammalogy and underwater acoustics were called on to 
develop this part of the Final EIS.
    EQ values extrapolated from human measurements were compared with 
Kastak et al.'s (1999) mean values of onset of TTS for the harbor seal 
(137 dB), sea lion (150 dB) and elephant seal (148 dB) for 20-minute 
periods of octave band noise (OBN) in the 100-2,000 Hz frequency 
regime. The resultant EQ values (adjusted for 8-hour exposure as in 
Kastak et al.'s (1999) 20 minutes) were 125 dB for the harbor seal, 138 
dB for the sea lion, and 136 dB for the elephant seal, yielding an 
average EQ of 133 dB. Applying the SURTASS LFA sonar 100-second EQ 
differential level of 54 dB to these values results in single-ping safe 
exposure levels of 179, 193, and 191 dB, respectively, for the three 
species tested by Kastak et al. (1999). Therefore, a 100-second 
duration for SURTASS LFA sonar of 180 dB can be considered appropriate 
and, based on Kastak et al. (1999) sea lion and elephant seal data, 
should be conservative for these species at least. See the Final EIS 
pp. 1-24 to 1-27 for more details.
    Ketten (2001) has stated that marine mammal ears physically 
resemble land mammal ears, and since many forms of hearing loss are 
based on physical structure, it is therefore likely hearing damage 
occurs by similar mechanism in both land and marine mammal ears.
    Comment SIC50: The Navy ``reverse engineered'' the presentation of 
risk to obtain a mitigation level of 180 dB at 1 km (0.54 nm) thus 
limiting the scope of mitigation. Because 1 km (0.54 nm) can be most 
effectively monitored visually and with passive acoustics, 180-dB level 
was therefore chosen. One commenter's hypothesis is that significant 
biological behaviors take place at RLs far below the level assumed in 
the EIS and that mitigation of those impacts is probably impossible.
    Response: The 180-dB criterion was not selected based on the fact 
that the monitoring mitigation methods are only effective to 1 km (0.54 
nm). Refer to RTC SIC44 for the 180-dB selection criteria. Depending on 
conditions, visual monitoring can be effective for greater than 1 km 
(0.54 nm) and under good conditions can extend to 5.5 km (3 nm). 
Passive acoustic monitoring does not provide range, but will 
effectively locate the bearing of vocalizing animals at greater 
distances than either of the other two methods. Finally, the HF/M3 
sonar is effective up to 2 km (1.1 nm) (See the Final EIS Figure 2-5). 
For additional information see the Final EIS (RTC 4-6.5 and 5-1.14).
    Comment SIC51: SURTASS LFA sonar operators need to monitor exposure 
to animals at levels of 160 dB and above for continuous, or quasi-
continuous (longer than the integration time of mammalian ears), noise 
with an absolute never-exceed value of 170 dB in order to reasonably 
expect to have no physiological damage.
    Response: There is no scientific evidence of what a ``never 
exceed'' value should be for marine mammals. Essentially, the commenter 
noted this by stating ``longer duration signals should be assigned a 
lower limit, perhaps in the region of 170 dB.'' The justification for 
the Navy's use of the 180-dB criterion for potential injury to marine 
mammals is discussed in several previous RTCs. For information on 
monitoring capability for the SURTASS LFA sonar system, see Monitoring 
Concerns later in this document.
    Comment SIC52: If human divers can only safely absorb SURTASS LFA 
sonar under 145 dB as proposed in the Final EIS, why is it likely that 
whales can escape injury at much higher levels (up to 180 dB)?
    Response: As noted in Final EIS (RTC 4-6.21), the two levels are 
based on different criteria. The 145-dB criterion for divers is based 
on psychological aversion (as behavioral response), and the marine 
mammal criterion is based on potential injury.
    Comment SIC53: According to the Navy, it did not deem it necessary 
to develop an ``injury continuum'' because of the low number of marine 
mammals that could potentially experience high RL. This assumption 
should be validated with detailed research.
    Response: NMFS and the Navy do not believe it desirable or 
necessary, let alone humane, to test animals at or above levels of 
potential injury in order to develop an injury risk continuum (above 
180 dB). All marine mammals exposed to RLs at or above 180 dB are 
considered for the analysis and for monitoring/ reporting purposes to 
be injured and SURTASS LFA sonar is

[[Page 46740]]

mitigated to prevent any injury. In other words the injury risk is 1.0, 
which is a very conservative assumption, because not all marine mammals 
exposed to 180 dB and higher RLs will actually be injured.

Risk Continuum

    Comment SIC54: The Navy and NMFS have concluded that RLs of LF 
sound below 180 dB are unlikely to cause either TTS or significant 
disruption of feeding, breeding, or other biologically important 
behaviors. No data are provided or experiments performed to support the 
conclusion that exposure levels below 180 dB will not cause significant 
disruption of any biologically important behavior. The conclusion that 
180 dB is relatively safe for marine mammals deviates from accepted 
literature and is not based on empirical data, but on extrapolation 
above 155 dB.
    Response: The scientific objective of the LFS SRP was to conduct 
independent field research in the form of controlled experimental tests 
of how baleen whales responded to SURTASS LFA sonar signals. Taken 
together, the three phases of the LFS SRP do not support the hypothesis 
that most baleen whales exposed to RLs near 140 dB would exhibit 
disturbance of behavior and avoid the area (Richardson et al., 1995). 
These experiments, which exposed baleen whales to RLs ranging from 120 
to about 155 dB, detected only minor, short-term behavioral responses. 
Short-term behavioral responses do not necessarily constitute 
significant changes in biologically important behaviors. The fact that 
none of the LFS SRP observations revealed a significant change in a 
biologically important behavior helped determine an upper bound for 
risk. The LFS SRP results, however, cannot be used to prove that there 
is zero risk at these levels. Accordingly, the risk continuum assumes 
that risk is small, but not zero, at the RLs achieved during the LFS 
SRP. The risk continuum modeled a smooth increase in risk that 
culminates in a 95 percent level of risk of significant change in a 
biologically important behavior at 180 dB. In this region, the risk 
continuum is unsupported by observations. However, the AIM simulation 
results indicate that only a small fraction of any marine mammal stock 
would be exposed to sound levels exceeding 155 dB (See the Final EIS 
Figures 1-5a through 1-5c, Subchapter 4.2.4.3, and Appendix D).
    Comparisons of research and analyses of TTS to the 180-dB criterion 
are discussed in the Final EIS Subchapter 1.4.2.1. Research on the 
behavioral reactions of whales to sound levels that were not tested 
during the LFS SRP, specifically between 155 and 180 dB, has been 
identified by NMFS as a potential topic for the follow-on research 
under the LOA.
    Comment SIC55: Based on the risk continuum 95 percent of marine 
mammals at RL of 180 dB are at risk. Also all marine mammals exposed to 
 180 dB are evaluated as if they were injured. Therefore, if 
most are at risk at 180 dB, then some are at risk at levels below 180 
dB.
    Response: The risk continuum and the 95 percent value refer to 
``significant changes in biologically important behavior'' while the 
 180 dB value of RL is the risk of the onset of injury. The 
Final EIS did consider exposures below 180 dB as posing a risk of 
injury, but determined that the 180-dB criterion for injury is 
appropriate as detailed in previous responses. A subsequent analysis by 
Cudahy and Ellison (2002) of the potential for resonance and tissue 
damage from LFA signals to cause injury supports this conclusion.
    Comment SIC56: One commenter stated that the risk continuum is 
accepted by NMFS as one of the hypothetical assumptions in the Final 
EIS to support the 180-dB criteria. This commenter also stated that the 
risk continuum means that 50 percent of all animals exposed to 165 dB 
are injured.
    Response: The commenter has misinterpreted the basis for the risk 
continuum as being a measure of injury. It is not a measure of injury; 
it is a measure of the potential risk of significant change in a 
biologically important behavior. This is explained in the Final EIS 
Subchapter 4.2.3.
    Comment SIC57: At 66 FR 15386, first column, third paragraph in the 
proposed rule document, it states, ``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.'' However, NMFS provides no indication of what 
is meant by ``extended biologically significant behavior'' and how does 
this term conform to the statutory definition of harassment?
    Response: In the 1999 application, the Navy stated, ``The value of 
A used (10) (i.e., A = 10) was consistent with the LFS SRP results, 
which failed to document any extended, biologically significant 
response at maximum RLs up to 150 dB.'' (As defined in the Final EIS 
Subchapter 4.2.5.2, the A parameter controls how rapidly risk 
transitions from low to high values with increasing SPL). The term 
``extended'' related to the results of the LFS SRP and meant that none 
of the biologically significant behaviors observed during the LFS SRP 
persisted for any period of time and all subjects returned to normal 
activities within tens of minutes of cessation of playbacks. Additional 
details on the risk continuum can be found in the Final EIS Subchapter 
4.2.5.
    However, NMFS believes that the term ``extended'' as used in the 
Navy application is a higher threshold than harassment, which refers to 
a reaction that is behaviorally significant on the part of the animal 
in the course of that animal's conducting a biologically important 
activity, such as breeding, feeding, or migrating. Therefore, the term 
``extended'' is not used in this document or in the Navy's Final EIS. 
In this context, it is the impact of the activity on the animal, more 
than the duration of the disturbance, that is critical. NMFS clarifies 
that, for small take authorizations (as opposed to intentional 
takings), a Level B harassment taking occurs if the marine mammal has a 
significant behavioral response in a biologically important behavior or 
activity. For further discussion on this issue, please refer to RTC 
MMPAC13.

Other Studies

    Comment SIC58: The analysis relied too heavily on Ridgway et al. 
(1997), which may not be a good model for the onset of TTS due to 
SURTASS LFA operations (not 1 second signal). The results of Ridgway et 
al. (1997) were based on exposure to sounds of different frequencies 
(3, 20, and 75 kHz) from those generated by SURTASS LFA sonar (0.1 to 
0.5 kHz).
    Response: Ridgway et al. (1997) and Schlundt et al. (2000) data can 
be used to extrapolate responses to the SURTASS LFA sonar signals, 
using established methods of adjusting for differences in signal 
duration. This was explained in detail in the Final EIS Subchapter 
1.4.2.1.
    Ridgway et al. (1997) was expanded, peer reviewed, and published as 
Schlundt et al. (2000). These results are applicable to the LFA 
frequency range. As stated in the Final EIS on page 1-27,

Schlundt et al. (2000) documented temporary shifts in underwater 
hearing thresholds in trained bottlenose dolphins (Tursiops 
truncatus) and white whales (Delphinapterus leucas) after exposure 
to intense one-second duration tones at 400 Hz, and 3, 10, 20, and 
75 kHz. Of primary importance to this deliberation are the LF-band 
tones at 400 Hz. At this frequency, the researchers were

[[Page 46741]]

unable to induce TTS in any animal at levels up to 193 dB re 1 micro 
Pa, which was the maximum level achievable with the equipment being 
used.

    Comment SIC59: One organization commented that NMFS' reliance on 
the Navy's TTS studies in San Diego, which suggest that TTS occurs in 
bottlenose dolphins exposed to a single, 1-second pure tone occur at 
levels above 190 dB, is unwarranted because: (1) High ambient noise 
levels exist in San Diego Bay (i.e., the research used masking 
thresholds of some 20-40 dB above acoustic sensitivity; a technique 
that has long been known to audiologists to result in less observable 
threshold shifts and thus weaker damage risk criteria); (2) 
Extrapolation from two species of odontocetes to other species is 
unjustified; and (3) Extrapolation from 1-second pure tone pulses to 
the broadband 100-second pulse of LFA is unjustified.
    Response: (1) As stated in Schlundt et al. (2000), masking noise 
was used to provide a leveling effect in the presence of variable 
ambient noise in San Diego Bay, and this masking noise may have caused 
larger shifts than may have been seen without the masking noise. The 
scientific evidence from the audiologists (unidentified by the 
commenter, but assumed to be those referenced in Schlundt et al., 2000) 
does support the theory concerning less observable threshold shifts for 
humans (Parker et al., 1976; Humes, 1980). Recent research reported by 
Finneran et al. (2001) at the 2001 Meeting of the Acoustical Society of 
America in Ft. Lauderdale, FL does not support this theory for marine 
mammals. That study tested two dolphins in a low noise environment 
(tank) for 3 and 4.5 kHz with a 1-second pure tone. Subjects 
demonstrated behavioral changes at 190 dB. Preliminary results indicate 
no TTS at 4.5 kHz for either subject at received SPLs of 200 dB. The 
results of Schlundt et al. (2000) are applicable because (1) they are 
supported by recent scientific research and (2) marine mammals live in 
a noisy environment, one that closely resembles the environmental 
conditions of the study.
    (2) Utilizing the results of this study for other species based on 
two species is justified. The use of indicator species, and 
extrapolation of results, is an accepted scientific practice, 
especially if the results are applied in a conservative manner. First, 
for the 400-Hz signal, no TTS was observed at the highest level of 
exposure (193 dB). Second, the onset of TTS is not considered by NMFS 
to be injury (although the Navy has considered any SPL above 180 dB to 
be a conservative level for determining injury). Therefore, PTS (or 
injury) would occur above 193 dB. Third, the injury criterion for 
SURTASS LFA sonar was not based solely on this study (see the Final EIS 
Subchapter 1.4). Finally, for the purposes of the SURTASS LFA sonar EIS 
analysis and the proposed mitigation protocols, the level for potential 
injury was set at 180 dB--a conservative level.
    (3) The extrapolation from a 1-second pure tone to a broadband 100-
second ping is discussed in previous RTCs. In addition, LF shipping 
noise is broadband, SURTASS LFA is not. SURTASS LFA sonar bandwidth is 
very limited (approximately 30 Hz), and the signals do not remain at 
the same frequency for more than 10 seconds.
    Comment SIC60: In a 5-year report submitted to NMFS in March 1998, 
the Ocean Mammal Institute (OMI) concluded that when boat engines reach 
an RL of 120 dB whales swim two to three times faster than around 
quieter boats. This corroborates the large body of literature 
indicating that whales avoid sounds at about 115-120 dB.
    Response: This concern was discussed in the Final EIS (RTC 4-4.25). 
In a summary posted on the OMI website, researchers reported that 
humpback whales changed their behavior when approached by boats with 
200 hp engines, which produced RLs of 120 dB at 100 m (328.1 ft) at 
2,000 Hz. A review of the actual report submitted to NMFS shows that 
the report does not support the claim made in the comment. Furthermore, 
Au and Green (2000) concluded,

* * * the whales appeared to swim fastest in response to the loudest 
boat. However, it is difficult to know exactly what a pod of 
humpback whales reacts to. The mere presence of a boat moving into 
their vicinity could cause serious reactions. Besides the levels of 
the underwater sounds and the complexity of the sound, the size and 
shape of a boat may also be important factors.

    At close ranges sound intensity and spectral content change 
rapidly, providing clues to the whales that something is approaching 
rapidly, thus eliciting an avoidance response, which is not necessarily 
based on sound level. The OMI website supported this when it stated, 
``Data analysis showed that the loudness of the boat's engine and the 
rate of change in noise level significantly affected the whales' 
swimming speed.'' It also stated, ``Other researchers have noted that 
whales appear to respond to rate of change in noise level.'' In other 
words, it is just as likely that the whales got out of the way because 
the boat was rapidly approaching them, rather than the level of sound 
from the engine. A review of the report showed no scientific research 
control for the speed and course of the approaching boat relative to 
the whales. Despite the conclusions in Green (1998) and Au and Green 
(2000), the OMI website presented only one of several potential 
conclusions when it stated, ``These studies show that whales'' swimming 
speed and amount of time underwater is affected by the noise level of 
boats that approach them.''
    LFA will not present a rapid ``rate of change'' to marine mammals 
because of the boat's slow speed of approximately 3 knots. 
Additionally, the frequency of the engine noise used to elicit 
responses from the whales in the Au and Green (2000) study was 
substantially higher than that of the SURTASS LFA sonar's signal. 
Therefore, the results from the 5-year report concerning humpback whale 
reactions to boat engine noise submitted to NMFS by OMI (Green, 1998) 
and later published (Au and Green, 2000) are not directly comparable to 
the scientific analyses in the Final EIS.
    Comment SIC61: Evidence suggests the potential for serious physical 
and behavioral effects at exposure levels below 180 dB and widely 
accepted research demonstrates biological disturbance at far lower 
levels (115-120 dB).
    Response: In order to determine the potential impacts that exposure 
to LF sound from SURTASS LFA sonar operations could have on marine 
mammals (below 180 dB), biological risk standards were defined with 
associated parameters of exposure. Based on the MMPA (Final EIS 
Subchapter 1.3.3.1), the potential for biological risk was defined as 
the probability for injury or behavioral harassment of marine mammals. 
In this analysis, behavioral harassment is assumed to be a significant 
change in a biologically important behavior, which is consistent with 
the NRC's characterization (NRC, 2000). 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 risk continuum was developed as a measure of the 
biological risk for behavioral response. The measurement parameters for 
determining exposure were RL in decibels, length of the signal (ping), 
and number of pings received. Simple disturbance does not constitute 
injury or biologically significant behavior modifications.
    Comment SIC62: When evaluating the TTS study by Schlundt et al. 
(2000), the Navy downplays individual variability where the small 
sample size clearly

[[Page 46742]]

weakens the general application of the results.
    Response: Schlundt et al. (2000) is only one of several papers and 
research cited in the discussion of TTS in the Final EIS. See the Final 
EIS Subchapter 1.4.2.
    Comment SIC63: On page 45, the LOA Request states, ``Marine mammal 
biologists and marine bioacousticians agreed that, based on the best 
available data, including results from the LFS SRP, and best scientific 
judgment, the SURTASS LFA biological risk standards for marine mammals 
(particularly mysticetes--baleen whales) used for this study are those 
discussed below.'' One commenter notes that a significant number of 
marine mammal biologists and marine bioacousticians do not agree with 
this.
    Response: The SURTASS LFA sonar EIS analysis, based on both 
scientific research and literature reviews, utilized a risk function 
methodology to assess the biologically significant behavior of marine 
mammals. This process was developed by leading experts in the fields of 
acoustics, bioacoustics and marine biology, and was reviewed by NMFS. 
Because this methodology is novel, academic discussion is both 
anticipated and desired. The NRC has proposed the use of risk function 
(concerning the definition of Level B harassment under the MMPA). NRC 
(2000) stated, ``the ultimate long-term goal should be a risk function 
involving intensity and duration of exposure (see Miller, 1974) for 
each species, but our current lack of knowledge impedes this goal.''
    Comment SIC64: Why was TR 3 (Summary Report on the Bioeffects of 
Low Frequency Waterborne Noise) missing from the Final EIS?
    Response: As explained in Final EIS (RTC 1-3.11), none of the three 
TRs were missing from the Final EIS. As stated in the Final EIS on page 
xii, the TRs are incorporated by reference in accordance with 40 CFR 
1500.21 and are available upon request. A copy of TR 3 was provided to 
the commenter on August 24, 1999, during the comment period for the 
Draft EIS.

Impact Analysis/Modeling

    Comment SIC65: The conversion of dB (air) to dB (water) is 26 dB, 
not 60 dB.
    Response: Sound levels in air are not the same as sound levels in 
water. In order to compare sound (or acoustic) intensity in air against 
that in water, one must consider the difference in reference standards 
(26 dB) and the difference in impedance between air and water (35.5 
dB), a 61.5-dB difference. To produce equivalent acoustic pressure 
level for air, 61.5 dB must be subtracted from the sound intensity in 
water. In other words, 100 dB in air would be equivalent to 161.5 dB in 
water. See Final EIS (RTC B-1.1) and Appendix B Subchapter B.3.2 for 
more information.

PE/AIM Simulations

    Comment SIC66: It appears from the data provided in the Navy's 
Final EIS that the Navy's researchers ran their modeling program an 
insufficient number of hours. Whereas LFA would transmit a proposed 72 
hours during each tour of duty, the LFA model seems to have been run 
only 32 hours--the product of a 60-second ``ping'' repeated every 15 
minutes for 20 days (Compare Final EIS at 2-8 with Final EIS at 4.2-22, 
4.2-38). The difference between these two figures becomes more salient 
when tours of duty are multiplied, to reflect the proposed deployment. 
In sum, it would appear that, by this single error alone, the Navy has 
underestimated the overall impact of its system by a factor as great as 
2.25, at least some of which would be reflected in additional numbers 
of animals ``taken.'' Some part of this multiplier would also be 
reflected in higher equivalent received levels for animals exposed a 
multiple of times--a concern for NMFS in calculating negligible impact.
    Response: The modeling program (AIM) was run with a sufficient 
number of hours to accurately reflect historical and expected SURTASS 
LFA operations. Page 4.2-22 of the Final EIS erroneously stated that a 
20-percent duty cycle was used in the AIM calculations. AIM modeling 
was independent of duty cycle and signal duration, as they are embedded 
in the risk function upper limit calculation. The AIM modeling was 
based on a maximum received pressure level per transmission basis, 
independent of the duration of an individual ping. The transmit 
pressure level used to calculate the received level at the animal was 
the absolute maximum of all the individual elements in a given 
transmission. Subchapter 1.4.2.1 addresses how signal duration is 
accounted for in the selection of the 180 dB upper limit of the risk 
function, and explains why a 100-second duration criterion for SURTASS 
LFA sonar of 180 dB is appropriate and conservative. Typical durations 
for a transmission vary between 6 and 100 seconds, but the peak 
received pressure level at an individual animal is unaffected by this 
duration. Thus, the AIM modeling was based on two fundamental 
quantities: (1) The peak received pressure level at an animal's 
location, and (2) the number of pings received. Processing AIM results 
using the risk continuum (Subchapter 4.2.6.3) incorporated signal 
duration (rooted in the risk function). Therefore, varying the duration 
of a given transmission (and thus the duty cycle) is not directly 
related to the number of transmissions, nor the number of takes for a 
given operation, but has been accounted for in post-AIM analysis. Thus, 
even though page 4.2-22 of the Final EIS was in error, the AIM model 
runs presented in the Final EIS are correct. The take estimates 
presented in the Final EIS Tables 4.2-10 through 4.2-12 are not 
underestimated, but are valid, as explained in the Final EIS, and 
conservative (see Subchapters 1.4.3, and 4.2.7.5).
    Furthermore, the Navy will rerun the models at least once prior to 
operating in a specific geographic region in order to derive new take 
estimates. The Navy will provide this information to NMFS that will 
reflect estimates for those areas requested for upcoming SURTASS LFA 
operations, in accordance with the annual LOA.
    Comment SIC67: The accuracy and reliability of the input data are 
missing from these sophisticated models.
    Response: The reliability and accuracy of the modeling input 
parameters were reviewed and cross-checked with marine biology experts. 
For more details, see the Final EIS (RTCs 4-3.13 and 4-3.14).
    Comment SIC68: Calculations (Draft EIS/Final EIS) are based on the 
assumption that marine mammal species and stocks are uniformly or 
randomly distributed. Considerable evidence exists to indicate that 
this distribution is neither uniform nor random, but determined by 
biological and physical oceanographic features and could lead to an 
underestimate of effects.
    Response: According to the Navy, it agrees that the distribution of 
marine mammals in the wild is neither uniform nor random. This was an 
integral part of the acoustic modeling. For each model site, the area 
was divided into sections or grids (See Appendix A of TR 2). Each 
section was assigned an animal weight or density for each of the 
modeled species. Within each of these sections, the distribution was 
random. Species distributions for each of the 31 sites are provided in 
Appendix C of TR 2.
    Comment SIC69: The Navy should rerun its AIM simulations using 
varying estimates for its monitoring program to simulate more realistic 
conditions. Take calculations should be adjusted so as

[[Page 46743]]

not to include monitoring detection of species.
    Response: This has already been done. Under Alternative 1, modeling 
was used to analyze each site and species both without and with 
monitoring mitigation. See Final EIS Table 4.2-10. The AIM simulations 
utilized conservative values for monitoring mitigation effectiveness. 
The modeling did not place a high reliance on visual and passive 
acoustic monitoring. The effectiveness of the HF/M3 sonar was limited 
to a conservative value of 50 percent. The combined efficiency of 
monitoring by all three methods used in the modeling was 66 percent. 
Based on testing of the HF/M3 sonar, its efficiency for a 10-m (32.8-
ft) whale at 1,000 m (3280.8 ft) is over 95 percent. If the ``take'' 
numbers were recalculated, as suggested, the percentages of potentially 
affected marine mammals would decrease, not increase. For more 
information, see the Final EIS Subchapters 2.3.2.2 and 4.2.7.1.
    Comment SIC70: The SACLANTCEN report states that Cuvier's beaked 
whale specific sounds are not known, yet the Final EIS claims that 
passive acoustic devices have a 25 percent probability of detecting 
them.
    Response: The Final EIS Subchapter 4.2.7.1 at 4.2-49 stated: ``The 
USS SEAWOLF Shock Testing EIS (Navy, 1998) proposed using a broadband 
passive detection system. With this system, the USS SEAWOLF EIS assumed 
the following estimates for passive acoustic detection (1.0 = 100 
percent):
    Sperm whales and Stenella dolphins: MEpassive = 0.75
    Other odontocetes except Cuvier's beaked whales: 
MEpassive = 0.50
    Baleen whales and Cuvier's beaked whale: MEpassive = 
0.25
    Because the SURTASS passive array has limited bandwidth, the lowest 
(conservative) value of 0.25 was used for MEpassive.''
    Moreover, it should be noted that the fact that Cuvier's beaked 
whale species sounds are not known does not imply that they do not 
vocalize. It only implies that their sounds cannot necessarily be 
distinguished from other vocalizing cetaceans. However, the Navy's 
passive detection monitoring is not species-specific. The detection of 
any sounds identified to be from a marine mammal will require adherence 
to the mitigation protocols in accordance with Chapter 5 of the Final 
EIS.
    Comment SIC71: How were ship movements during the modeled exercise 
factored into the calculation?
    Response: The AIM simulation can calculate the projected sound 
field from the SURTASS LFA source in either stationary or moving mode. 
For the calculations in the Draft and Final EISs, the source vessel was 
moving at 3 knots with the ship track being a triangle, eight hours per 
leg (3 legs per day) with mission durations of 20 days/24 hours per 
day, as noted in the Draft and Final EIS Table 4.2-6 and TR 2 Table 3-
2.
    Comment SIC72: The swim speed, interval of course change, angle of 
course change, dive times, distribution, abundance, and density inputs 
to AIM are not site-specific.
    Response: Swim speed, interval of course change, and angle of 
course change are the same for all species at all sites. However, 
diving regime (depth ranges and percent of time) are based on 
individual species. Population densities are determined for each site 
by species by season. These data are provided in the Final EIS 
Subchapter 4.2.2.2 and TR 2.
    Comment SIC73: Beaked whales were not included in the Draft EIS or 
any modeling scenarios (sites).
    Response: The Draft and Final EISs (Table 4.2-4) included beaked 
whales at 22 of the 31 modeled sites.
    Comment SIC74: The PE model did not indicate the effects of 
infrasonic (0.1 to 15 Hz) sound produced by LFA.
    Response: The SURTASS LFA sonar transmit array is not physically 
capable of producing infrasonic signals.

Single Ping Equivalent (SPE)

    Comment SIC75: The Navy does not adequately deal with the exposure 
of marine mammals to repeated LFA signals, which could increase and 
intensify the resulting impacts.
    Response: The SPE, as defined in the Final EIS Subchapter 4.2.3.1, 
is the methodology used during the acoustic modeling of potential 
impacts to marine animals from exposure to LF sound. This method 
estimates the total exposure of each individually modeled animal, which 
was exposed to multiple pings over an extended period of time. This is 
accomplished by the summation of the intensities for all received pings 
into an equivalent exposure from one ping, which is always at a higher 
level than the highest individual ping received.
    Comment SIC76: There is no scientific justification for the 5 
log10 (N) rule for assessing behavioral disturbance risk of 
multiple exposures. An additive effect of exposure is more 
appropriately modeled as 10 log10 (N). The Final EIS greatly 
underestimates the number of marine mammals that will be harassed due 
to multiple exposures at low levels.
    Response: The National Institute for Occupational Safety and Health 
(NIOSH) has recently changed their ``exchange rate''; that is, the drop 
in an acceptable noise level for increased durations. The former 
standard was 5 dB, and the current standard is 3 dB. The section on 
exchange rate concludes with this statement:

    The 3-dB exchange rate is the method most firmly supported by 
the scientific evidence for assessing hearing impairment as a 
function of noise level and duration, whether or not an adjustment 
is used for intermittent exposures. (NIOSH, 1998)

Additionally, at a recent meeting of the Acoustical Society of America, 
the existing data for TTS in marine mammals were compared for duration 
and received level. These data also mostly fit along the 3-dB exchange 
rate.
    The 3-dB exchange rate is based on the equal energy assumption and 
is equivalent to the 10 log10 (duration or N) formulation 
suggested by the commenter. However, this formulation is based on 
continuous noise exposure. Interruptions in the noise exposure allow 
for recovery. Clark et al. (1987) found that ``intermittent exposures 
produced less temporary and permanent hearing loss and less cochlear 
damage than continuous exposures of equal energy.'' If these TTS 
results also apply to behavior, it suggests that the intermittent 
nature of the SURTASS LFA source justifies the 5 log10 (N) 
formulation.
    Furthermore, the existing data on long-term noise exposure in 
humans show that the effect drops from 10 log10 (duration) 
to 3.3 log10 (duration) when the total exposure drops to 8 
hours. There are also data from impulsive noise exposure that indicate 
a 5-dB change in threshold is appropriate for a 10-fold change in the 
number of exposures. This is equivalent to 5 log10 (N).
    These data are for TTS, and therefore not directly applicable to 
behavioral responses. However, the range of known values are 3.3 
log10 (N), 5 log10 (N), and 10 log10 
(N). Picking the intermediate value may represent the best estimate 
based on partial knowledge. Picking the extreme value represents the 
``worst case'' scenario. It is conservative, but may be less accurate.
    Another argument for a value less than 10 log10 (N) is 
that most animals that are exposed to multiple pings are at a 
reasonable range from the ship. These animals are moving through the 
water column, and the acoustic path of the signal for CZ propagation is 
a relatively narrow band. As the animals move up and down in the water 
column, they are unlikely to experience multiple sequential loud pings. 
The model allows

[[Page 46744]]

for non-sequential loud pings, even pings separated to be considered 
additive, which is a conservative approach.
    Comment SIC77: The SPE approach appears to mask potential effects 
of repeated exposure at lower levels, such as abandonment of feeding 
and breeding areas or resonance effects. Treating the effects of a 
single ping at high levels close to the ship as equivalent to multiple 
pings at lower levels ignores the impact of multiple pings at lower 
levels taking place at substantial distances.
    Response: The SPE approach does not mask potential effects of 
repeated exposures at lower levels because the number of pings required 
to equate to 180-dB exposure was modeled in the analysis. This 
conservative approach demonstrated that the potential impact on any 
stock of marine mammals from injury is considered negligible, which 
included consideration of multiple impacts at lower levels that equated 
to 180-dB exposure.
    Comment SIC78: Undetected animals could be subject to repeated 
pings within the 180-dB zone. If an animal is detected within this zone 
after LFA sonar transmissions have been initiated, it will not be 
possible to know how long the animal has been subject to high RLs. This 
animal should be assumed to be injured.
    Response: As stated in the Final EIS and the application, all 
marine mammals that receive a SPL of 180 dB, or greater, are 
conservatively assumed to be injured.

Cumulative Impacts

    Comment SIC79: The Final EIS section on cumulative effects does not 
provide the necessary analyses to assess the combined effect (all other 
human-related factors) on marine mammals. The EIS discussion of 
cumulative impacts does not mention other nations' deployment of LFA 
systems. Cumulative impacts analysis cannot compare LFA sonar to 
shipping. One organization is concerned that the multiple deployments 
of LFA sonar in conjunction with potential deployment of other nation's 
LF sonar has not been addressed and may have a devastating cumulative 
effect on marine mammals.
    Response: Cumulative impacts that are reasonably foreseeable were 
considered by the Navy in the preparation of the EIS (Subchapter 4.4) 
and are discussed in the Final EIS Subchapter 4.4 and RTCs 4-10.1, 4-
10.3, 4-10.4, and 4-10.6. Operating more than a single SURTASS LFA 
sonar source within a single ocean basin is unlikely. However, the Navy 
did analyze the potential impacts from operating two SURTASS LFA sonars 
within a representative area (Gulf of Oman). This was described in both 
the Navy's application and in the Navy's Draft and Final EISs. Table 4-
14 of the application assesses the percentage of marine mammal stocks 
within that area that could potentially be affected. Since no more than 
two SURTASS LFA sonars are expected to be deployed under this action, 
no further analyses are required. Moreover, NMFS is unaware of the use 
by other nations of SURTASS LFA sonar, or other systems that use a LF 
source (i.e., 1 kHz or below), except for the SACLANTCEN (NATO) TVDS 
system whose frequency ranges are 450 to 700 Hz for the LF component 
and 2.6 to 3.4 kHz for the mid-frequency component (SACLANTCEN, 1998). 
The Navy has no plans to operate with this NATO system. Moreover, if 
the TVDS system is ever used by other nations, use of this single 
system and the 2 planned SURTASS LFA systems for the period of these 
regulations would not exceed the number of LF systems analyzed in the 
Navy's Final EIS. For further discussion on this issue, please refer to 
RTC MMPAC33.
    Comment SIC80: The United States will not be able to control the 
deployment of LFA technology by other nations that may not limit their 
routine usage to levels safe for marine life.
    Response: NMFS and the U.S. Navy have no control over activities by 
other nations. However, while LF sonar technology, in one form or 
another, may be deployed by other nations, such deployments remain 
speculative at this time.
    Comment SIC81: Despite the fact that LFA signals are a minor part 
of the increasing oceanic ambient noise, the LFA transmissions 
nevertheless stand out from this increasing hum. Two commenters state 
that recorded LFA transmissions at 1,000 miles (1609 km) during 
acoustic studies highlight this.
    Response: Because of its short duty cycle and limited number of 
systems to be deployed, SURTASS LFA sonar transmissions will not add 
measurably to the increasing ambient noise in the oceans, and will not 
be perceptible in most of the ocean basins in which it is deployed. As 
to the acoustic studies that reported recording of SURTASS LFA at 1,000 
miles (1609 km), there was no indication as to the RL of this signal 
from the Magellan II project except a comment that the researcher was 
``forced to jump up and turn down the speaker.''
    In later research he stated that he recorded strong long duration 
sounds in the 3 kHz range coming from the direction of the R/V Cory 
Chouest at a distance of about 40 mi (64.4 km). Since the SURTASS LFA 
sonar source can not transmit at mid-frequencies, it was not the 
SURTASS LFA sonar signal from the R/V Cory Chouest.
    Comment SIC82: The Navy's calculations strongly underestimate the 
potential impacts of its noise on an animal's lifetime productivity 
rate.
    Response: The Navy's Final EIS, Subchapter 4.2.7.5 (Biological 
Context) addresses the potential for long-term effects, such as loss of 
part of a breeding season, loss of part of a foraging season, and 
reduction of individual animals' reproductive success. Since the 
conclusion reached from the analyses done in conjunction with the 
development of the Final EIS, including the LFS SRP field research, is 
that the potential impact on any stock of marine mammals from injury 
due to SURTASS LFA sonar operations is negligible, the primary 
potential effect for marine mammals is a significant change in a 
biologically important behavior. For this to translate into impacts on 
an animal's lifetime productivity rate, the SURTASS LFA sonar would 
likely need to be operated in a concentrated breeding area throughout 
an entire breeding season, or operated in a feeding area for months at 
a time. System operational plans and restrictions preclude these 
scenarios: (1) All operations will be outside 12 nm (22 km) of any 
coastline or offshore island, and far enough away from designated 
offshore biologically important areas to limit SPLs in those areas to 
below 180 dB; (2) operations will not occur in places and during times 
of the year when marine mammals are engaged in critical activities (as 
frequent system shutdowns due to animal detections would negate the 
system's operational utility); (3) mission length will not exceed 20 
days; and (4) no more than 12 percent of any marine mammal stock may 
incur Level B harassment during the time period of validity for each 
LOA (1 year). Therefore, NMFS believes the Navy has not underestimated 
the potential impacts on the lifetime productivity rates for marine 
mammals.
    Comment SIC83: In the Final EIS Subchapter 4.2.7.5 on biological 
context, the effect of the impact for a 20-day mission over 20 years of 
breeding seasons per animal were discussed. The model used is incorrect 
because there was only one mission per animal per 20-year period. 
Because there are ``at least three missions per year per area'' there 
will be a greater intersection of missions on breeding seasons over 20 
years, not just one.
    Response: The discussion in Subchapter 4.2.7.5 was not intended to

[[Page 46745]]

be a model. For illustration purposes, the intersection of only one 
mission per animal over a 20-year period is a valid assumption. First, 
there will be only two SURTASS LFA sonar vessels deployed during the 
upcoming 5-year period with each one expected to be located in a 
different ocean basin and, therefore, only a limited number of active 
sonar operations (normally 12 missions/year). Second, marine mammal 
breeding is seasonal, thereby further limiting the period when marine 
mammals could potentially be exposed during this critical period. 
Moreover, as noted in RTC SIC82, it is reasonable to expect that it is 
unlikely that any single marine mammal will receive an appreciable 
sound exposure level from SURTASS LFA sonar that will cause significant 
changes in biologically important behavior during any single mission. 
Based on the modeled underwater acoustic RLs (AIM analyses results), 
presented in the Final EIS Subchapter 4.2 EIS, the data presented in 
Figures 1-5a through 1-5c in the Final EIS, illustrate that the 
preponderance of all modeled RLs fall below the 155 dB level. 
Therefore, even if the Navy should choose to conduct missions within 
the same year in the same area, for the above reasons NMFS believes 
that SURTASS LFA sonar would not have reproductive level effects on 
marine mammals. Finally, as explained in detail later in this document 
(see RTC MMPAC23), NMFS will review the Navy's LOA application to 
ensure that the Navy has planned active SURTASS LFA sonar missions to 
avoid, to the extent practical, those critical areas and times of the 
year when marine mammals are concentrated to carry out important 
biological activities.

Non-Marine Mammal Impact Concerns (NMMIC)

    Comment NMMIC1: The EIS did not include sea snakes because they 
primarily inhabit inshore waters.
    Response: Because sea snakes primarily inhabit shallow areas where 
SURTASS LFA sounds will attenuate to low levels and because sea snakes 
have little to no sensitivity to LF sound either from hearing or non-
auditory effects, it was appropriate for the Navy to eliminate them 
from further consideration in the Final EIS.
    Comment NMMIC2: The potential effects cannot be predicted and/or 
were not considered in the analysis for fish, diving birds, 
invertebrates, plankton, and other non-mammalian species (such as 
transatmospheric life forms). Soft tissue damage in fish was not 
considered. No studies done for fish, plankton, and sea turtles. What 
is the effect of LFA sonar on the marine mammal food chain, such as 
zooplankton and fish?
    Response: The potential effects of SURTASS LFA sonar on fish and 
prey species are covered in the Final EIS Subchapters 4.1.1 and 
4.2.7.6; sea turtles are covered in the Final EIS Subchapter 4.1.2; 
invertebrates are covered in the Final EIS Subchapter 3.2.1.1; plankton 
are addressed in the Final EIS Subchapter 3.2.1; and diving birds are 
discussed in the Final EIS Subchapter 3.2.1.2. As previously stated, 
the SPL threshold for the potential for in vivo tissue damage due to 
exposure to underwater sound is on the order of 180 to 190 dB. Because 
the potential for injury to marine mammals, sea turtles, and fish 
stocks was set at a SPL of 180 dB, the Navy did consider tissue damage 
for these species. The Final EIS did include life forms that exist both 
in the atmosphere and the ocean, including pinnipeds, sea turtles, 
diving sea birds, and humans. As suggested by the commenter, 
information on other ``transatmospheric'' life forms is available at 
http://www.roswellrods.com
    Comment NMMIC3: Subchapter 4.1.1.1 of the Final EIS incorrectly 
states that large pelagic fish (such as tuna) spend most of their time 
near the surface.
    Response: The Final EIS concluded that a negligible portion of any 
fish stock will be present within the 180-dB sound field and thus the 
potential for injury to fishes is limited. Therefore, even if pelagic 
fish do not spend most of their time near the surface, it will not 
change the determinations made in the Final EIS.
    Comment NMMIC4: The analysis of the potential impact to fish in the 
Final EIS is limited. There is no discussion at all of the potential 
impacts on fish eggs. The commenter then goes on to state, ``There is 
no basis for assuming that the only injurious effects on fish or fish 
eggs will take place at 180 dB or higher.''
    Response: The effects on fish and fish eggs are discussed in the 
Final EIS subchapters 3.2.2, 3.3.1, 4.1.1, 4.3.1, and RTC 3-2.5, 4-1.6, 
4-1.7, and 4-1.10.
    Comment NMMIC5: The Navy's conclusions on non-significant impact on 
fish, sharks and sea turtles and their habitats are based on a number 
of assumptions and not on empirical evidence. The Navy gives only a 
cursory look at the potential impact to fish.
    Response: Subject matter experts provided the analyses of impacts 
on fish, sharks, and sea turtles. Much of their analyses are based on 
peer-reviewed research, as noted here. Where assumptions were necessary 
because of lack of scientific data, they were made by the subject 
matter experts and were conservative. There are extensive discussions 
on fish, sharks and sea turtles in the Final EIS in Subchapters 
3.2.1.2, 3.2.2, 3.2.3, 4.1.1, 4.1.2, and 4.3.1. The conclusions are 
based on the research of numerous recognized scientists. Examples of 
cited research include Bartol et al. (1999), Cox et al. (1986a), Cox et 
al. (1986b), Cox et al. (1987), Enger (1981), Hastings et al. (1996), 
Klimley and Beavers (1998), Lombarte and Popper (1994), Popper and 
Clarke (1976), Ridgway et al. (1969), Rogers and Cox (1988), Sand and 
Hawkins (1973), and Ye (1996).
    Comment NMMIC6: In Comment 4-5.38, Dr. Popper, a coauthor in 
Hastings et al. (1996), stated that there indeed was delayed sensory 
damage that was not an artifact of the sacrificing schedule.
    Response: Dr. Popper co-authored and reviewed the sections of the 
Final EIS concerning potential impacts to fish (See Final EIS page 14-
2). The possible inconsistency noted in the comment, however, is not 
relevant because the study exposed the oscar (Astronotus ocellatus) to 
a 300-Hz, 180-dB signal for a minimum of 1 hour. The LFA signal's 
maximum length is 100 seconds with no more than 10 seconds at any 
single frequency. Therefore, at this time there is no reason to presume 
that the limited damage found in Hastings et al. (1996) would occur 
with the much shorter LFA signal. Based partially on the reference, the 
Final EIS conservatively concluded that it is reasonable to consider 
hearing loss or injury to fishes from SURTASS LFA sonar transmissions 
to be limited to the region  180 dB. However, no more than a 
negligible portion of any fish stock would be present within the 180-dB 
sound field at any given time.
    Comment NMMIC7: The Navy has dismissed the potential impact to 
fish, turtles, and humans from resonance of cavities and swim bladders. 
In Final EIS (RTC 3-2.5), it is not evident why larger fish will not be 
affected by LFA. In the Final EIS (Subchapter 4.1.1.1) concerning non-
auditory injury to fish stocks, the Navy stated, ``Therefore, it is not 
expected that resonance of the swim bladder would play a significant 
role in response to LF sound (ARPA, 1995).'' This reference is for the 
ATOC system, which has a frequency of 75 Hz. This does not correspond 
to the frequency to be used by SURTASS LFA sonar of 100 to 500 Hz. 
Therefore, the Final EIS conclusions are not correct.
    Response: The potential for impacts due to resonance of cavities 
and swim bladders was discussed in the Final EIS

[[Page 46746]]

(RTCs 3-2.5, 4-4.15, and 4-6.24). RTC 3-2.5 stated that fish are not 
expected to be significantly affected by resonance because the SURTASS 
LFA signal is lower in frequency than the resonance for most fish. 
However, it did recognize that the resonance frequencies for some of 
the larger fish may be in the range of SURTASS LFA. For example, the 
cod has a resonant frequency of 400 to 560 Hz. However, in order to 
provide additional protection to marine mammals from potential injury, 
the Navy has agreed to apply interim operational restrictions that 
include a maximum frequency of 330 Hz. This will provide additional 
protection for fish as well.
    The SPL threshold for the potential for in vivo tissue damage due 
to exposure to underwater sound is on the order of 180 to 190 dB 
(Cudahy and Ellison, 2002). Because the potential for injury to marine 
mammals, sea turtle, and fish was established by the Navy at an SPL of 
180 dB, and because the permissible exposure level for humans was set 
even lower at 145 dB (a value based on aversion reactions, not injury), 
resonance from LFA sonar is even less likely to impact humans.
    The frequency of ATOC is lower than that of SURTASS LFA, and 
therefore the citing of the ATOC EIS may have been inappropriate. 
However, the conclusion remains the same.
    Comment NMMIC8: It is a matter of concern that the Final EIS makes 
no attempt to calculate and/or discuss that swimbladders (of fish) 
vibrate with the greatest amplitude at stimulation frequencies close to 
the base frequency and at frequencies corresponding to the 2nd and 3rd 
harmonic.
    Response: Resonance of fish swim bladders is discussed in the Final 
EIS Subchapter 4.1.1.1 and RTC 3-2.5. See Final EIS (RTC 4-6.42) for 
discussion on harmonics. A subsequent analysis by Cudahy and Ellison 
(2002) of the potential for resonance from SURTASS LFA signals to cause 
injury supports this conclusion that tissue damage will not occur at 
SPLs below 180 dB.

Other Concerns (OC)

    Comment OC1: What is the impact on the whale watching industry?
    Response: SURTASS LFA sonar operations are not expected to have any 
impacts on the whale watching industry. For further information, see 
the Final EIS Subchapters 3.3.2.3 and 4.3.2.1.
    Comment OC2: In RTC 4-9.18 of the Final EIS concerning swimmers and 
snorkelers at or near the surface, were surface ducts taken into 
account?
    Response: Yes.
    Comment OC3: Divers, swimmers and children in the water are at risk 
from LFA sonar.
    Response: Humans in the water are not at risk from SURTASS LFA 
sonar transmissions. The Navy sponsored research to study the potential 
effects of LF sound on humans in the water. Based on this research, in 
conjunction with guidelines developed from psychological aversion 
testing, the Navy concluded that LF sound levels at or below 145 dB 
would not have an adverse effect on recreational or commercial divers. 
See the Final EIS Subchapters 1.4.1 and 4.3.2.1 for additional details. 
As discussed in the Final EIS Subchapter 5.1.2, SURTASS LFA sonar 
operations would be constrained in the vicinity of known recreational 
and commercial dive sites to ensure that the sound field at such sites 
does not exceed 145 dB.
    Normally, swimming and snorkeling occur in areas that extend from 
the surface to depths not greater than 2 m (6.5 ft). Applying acoustic 
theory and detailed measurements to these depths, there would be 
substantial sound transmission losses occurring in the top layer of 
water (about 1.8 m (6 ft)) where swimmers would most likely be found. 
Sound fields in this layer of water would be about 20 dB less than the 
sound fields in adjacent deeper water. This is discussed in the Final 
EIS Subchapter 4.3.2. It is unlikely that a swimmer or snorkeler will 
ever hear the LFA signal.
    Comment OC4: What is the impact to coastal communities via coastal 
sound absorption? What is the impact to shore communities from invasion 
by animals (sea otters and pinnipeds), which are being driven out of 
the water to escape noise? Mitigation will not work--because LF waves 
penetrate into the shoreline.
    Response: The SURTASS LFA sonar signal should not be confused with 
LF-radio waves used in communication or biologics (e.g., the Sausalito 
humm). They do not operate similarly. Because SURTASS LFA sonar 
transmissions will be restricted to SPLs below 180 dB at a distance of 
12 nm (22.2 km) from shore and 145 dB within known dive sites, due to 
significant sound attenuation and absorption characteristics in 
shoaling and shallow water, there will be no impacts to onshore human 
coastal communities. Similarly, significant sound attenuation in 
shoaling waters would preclude the offshore sounds from SURTASS LFA 
sonar from affecting coastal marine mammals. This was illustrated 
during Phase II of the LFS-SRP when the SURTASS LFA sonar source was 
offshore California.

Habitat Concerns

    Comment HC1: One organization believes that the Navy is unaware of 
the effect that the LFA sonar system will have on cetaceans' prey, as 
indicated in section 4.7.6 of the application. Such uncertainties of 
the effects the sonar system will have on cetaceans indicate the Navy 
does not know if the system will have no effect or fatal effects on 
cetaceans; therefore, it should not be permitted to conduct (operate) 
the LFA sonar system.
    Response: Section 4.7.6 of the Navy application does not state that 
the Navy is unaware of the impacts of the system on prey species. It 
states that the potential for indirect effects (including prey 
availability) for marine mammals is very low. Information on the 
potential impacts to fish species can be found in the Navy Final EIS, 
Subchapter 4.1.1. Most benthic and pelagic invertebrate species that 
are marine mammal prey species are unlikely to be affected by LFA sonar 
since they do not have organs or tissues susceptible to acoustic sound.

Mitigation Concerns (MIC)

Geographic Restrictions
    Comment MIC1: It is not clear that the 12-nm limit (180-dB 
restriction) would result in the least practicable adverse impact on 
marine mammals in these areas. If SURTASS LFA sonar is a long-range 
system, it is not clear why the Navy would need to operate at distances 
as close as 12 nm (22 km) from shore since presumably LFA sonar has 
ocean-basin detection capabilities. As a means to have the least 
practicable effect on marine mammals, it should be restricted to waters 
further offshore than 12 nm (22 km).
    Response: The geographic restriction is for the SURTASS LFA sound 
field of 180 dB, not the location of the vessel. While the U.S. Navy 
plans to operate mainly in waters significantly greater than 12 nm (22 
km) offshore, it should not be precluded from operating in waters near 
12 nm (22 km) from shore, provided the SPL does not exceed 180-dB at a 
distance of 12 nm (22 km) from any coastline. For this reason, NMFS has 
not implemented the recommended restriction on SURTASS LFA sonar 
operations. However, because SURTASS LFA sonar transmissions will be 
restricted to SPLs below 145 dB within known dive sites, the LFA vessel 
will remain at distances greater than 12 nm (22 km) from shore in most 
situations.
    Comment MIC2: Prior to each exercise, the marine mammal safety zone 
will be measured to determine the distance from the source to the 180-
dB isopleth. Because oceanographic

[[Page 46747]]

conditions will change over the course of an exercise (up to 20 days), 
it is unlikely that these characteristics will remain constant. What 
specific model will the Navy use to determine SPLs for monitoring 
mitigation? Why does RTC 2-1.4 (in the Final EIS) state that the 180-dB 
mitigation zone was determined using standard spherical spreading 
formula?
    Response: Please refer to RTC AC12 on distances to the 180-dB 
isopleth. It is understood that oceanographic conditions change over 
time and the Navy has provided provisions for this in the SPL 
monitoring protocols. Subchapters S.4.9, 2.3.2.1, and 5.1.3 of the 
Final EIS state that the SURTASS LFA sonar sound field will be 
estimated prior to and during operations using near-real-time 
environmental data and underwater acoustic prediction models. 
Subchapter 5.1.3 in both the Draft and Final EISs state that these 
sound fields will be updated every 12 hours, or more frequently, when 
meteorological or oceanographic conditions change.
    These models are similar to the Parabolic Equation (PE) Model 
(Version 3.4), which was used in the Final EIS to predict transmission 
loss of the SURTASS LFA signal under various environmental conditions. 
For more information see the Final EIS Subchapter 4.2.2.1.
    Within 1 km (0.54 nm) of the array, transmission loss is dominated 
by spherical spreading; therefore, the use of the standard spherical 
spreading formula is warranted. This is accounted for in the PE model 
used.
    Comment MIC3: The Navy cannot predict the SPLs for the LFA 
mitigation zones and geographic restrictions at any depth and range in 
real time during operational deployment because of the complexity of 
oceanographic conditions and ``[s]ound transmission channeling is not 
predictable in the Navy's over-simplified theoretical models.''
    Response: The Navy predicts SPLs for a complete range of underwater 
acoustic regimes (such as deep-water convergence zone, surface duct, 
and bottom interaction (see Description of Acoustic Propagation in this 
document)) in extremely complex oceanographic conditions, utilizing a 
number of very sophisticated models, with the most current 
environmental data available, as part of all ASW operations. This 
information is discussed in the Final EIS Subchapters 2.3.2.1, 4.2.2.1, 
and 5.1.3 and in TR 2 (Acoustic Modeling). Additionally, the acoustic 
modeling in the Final EIS used the PE Model (Version 3.4). This is only 
one of the acoustic models integrated into the SURTASS LFA sonar 
processing system that utilize the most up-to-date environmental data 
available. Oceanographic conditions (such as temperature and salinity 
verses depth, and sound speed) are updated with real-time data at least 
every 12 hours. According to the Navy, there were and will be no 
``over-simplified theoretical models'' used either in the Final EIS 
analysis or during at sea operations.
    Comment MIC4: The Navy should continuously monitor the 180-dB RL 
and the 1-km (0.54-nm) zone, recording and making available detailed 
findings of the difference between the two.
    Response: As discussed in the Final EIS (RTC 5-1.3), SPLs will be 
calculated using onboard transmission loss models and near real-time 
environmental data before and during all SURTASS LFA active 
transmissions. Acoustic models will be updated at least every 12 hours. 
The range to the 180-dB RL will be mostly dependent upon the SURTASS 
LFA SL used, and the possibility of it exceeding 1 km (0.54 nm) is 
remote. However, any anomalous results will be recorded and reported as 
part of the LTM program in accordance with the LOA.
    Comment MIC5: One organization is not convinced that research has 
shown that SURTASS LFA does not pose a threat to humpback whales at 180 
dB. Therefore, it believes that the Navy should increase the safety 
zone to ensure that SURTASS LFA sound levels do not penetrate within 12 
nm (22 km) of coastlines at any level.
    Response: The SURTASS LFA sonar sounds will not exceed 180 dB at a 
distance of 12 nm (22 km) from any coastline. The selection of the 180-
dB criterion is discussed in detail in the Final EIS Subchapter 
1.4.2.1. A subsequent analysis by Cudahy and Ellison (2002) of the 
potential for resonance from SURTASS LFA signals to cause injury 
supports this conclusion. According to the Office of National Marine 
Sanctuaries (ONMS) consultation letter to the Navy dated May 15, 2001, 
ONMS requested that the SPLs generally not exceed 180 dB within the 
boundaries of National Marine Sanctuaries (NMS) and not exceed 145 dB 
seasonally for those NMS that are utilized by divers. Specific 
requirements for each NMS are provided in the referenced letter. To the 
extent that the recommendations by the ONMS were in regard to the 
conservation of marine mammals within Sanctuary boundaries, these 
recommendations have been adopted by NMFS and included as mitigation 
measures in this rule.

Offshore Biologically Important Areas (OBIAs)

    Comment MIC6: Sound levels must be monitored from within OBIAs and 
other protected areas. The Navy should install hydrophones at the 
borders of the LFA mitigation zone to record all acoustic signals above 
160 dB to verify the Navy's RL estimates.
    Response: OBIAs and similar areas discussed under this rulemaking 
are established to restrict SURTASS LFA sonar SPLs to below 180 dB. As 
a result, the regulations require the Navy under its LTM program to 
determine the distance to the 180-dB isopleth during all LFA operations 
(see RTC MIC4). Since the Navy will not transmit SURTASS LFA sonar 
signals at an SPL greater than 180 dB inside OBIAs, additional SPL 
monitoring is not necessary.
    Comment MIC7: The OBIAs are inadequate. The four OBIAs comprise 
only a portion of the offshore biological areas of particular 
importance to marine mammals. NMFS' system for identifying and 
designating additional OBIAs has ignored available information on 
marine mammal species collected by NMFS, Navy, and others. It is 
recommended that if such data were not examined in developing the 
proposed rule, then that should be carefully examined before proceeding 
with the final rule. Examples include: (1) NW Hawaiian Islands 50-nm 
(92.6-km) zone for monk seal foraging, (2) Pioneer Sea Mount, (3) 
Tanner Bank, (4) Santa Rosa-Cortez Ridge, (5) The (Sable) Gully off 
Nova Scotia, (6) feeding grounds of non-Bay of Fundy right whales, (7) 
200-m (656.2-ft) isobath surrounding Silver and Navidad Banks, to 
Hispaniola, and enclosing the established migration corridor of the 
North Atlantic humpback whale population, (8) major upwelling sites, 
such as off Africa, India, Gulf of Oman, South America, and US and 
continental shelf and reef-estuary systems, (9) all IWC whale 
sanctuaries, (10) all U.S. NMS, (11) marine protected areas, (12) 
Natural World Heritage sites/UNESCO Biosphere Reserves, (13) known 
migration routes, and (14) Monterey Bay NMS (60-nm (111.1-km) limit for 
sound emissions). The proposed system for designating OBIAs 
inappropriately places the burden on the public to show that offshore 
areas are important for marine mammal breeding, feeding or other 
biologically important functions.
    Response: NMFS does not consider it necessary to expand the list of 
OBIAs prior to its making the required determinations under section 
101(a)(5)(A) of the MMPA. While some

[[Page 46748]]

of the areas mentioned in the comment would qualify for nomination as 
an OBIA, a delay in the rulemaking process to implement additional 
OBIAs is not warranted, especially considering the high level of 
effectiveness of the tripartite monitoring system. Second, the notice 
of proposed rulemaking made clear that NMFS could not accept petitions 
for new OBIAs during this rulemaking since any nominations at that 
stage would not be available for public review before inclusion or 
rejection in this final rule. NMFS considers a public review and 
comment period a necessary step in establishing new OBIAs. Once this 
final rule is implemented, NMFS will accept petitions for OBIAs in 
accordance with 50 CFR 216.191 promulgated in this final rule. However, 
as stated in the preamble to the proposed rule, petitions will not 
affect authorizations for taking marine mammals within those areas 
until an OBIA is final (if that is the determination). It should be 
recognized that NMFS may also nominate areas as OBIAs, but does not 
believe that it should be the sole proponent for nominating areas and 
that was the reason for allowing it to be a public process following 
standard rulemaking practice. Additional discussion on OBIAs can be 
found elsewhere in this document.
    NMFS recommends however, that areas already subject to significant 
anthropogenic noise such as seismic and shipping, areas within 12 nm 
(22 km) of any coastline, or otherwise already excluded (Arctic, 
Antarctic oceans), areas that cannot be geographically described (e.g., 
``the unknown numbers of northern right whales in unknown areas of 
concentration''), and areas designated for non-biological reasons 
(e.g., the IWC's Indian Ocean Sanctuary) not be nominated. Areas being 
nominated must include sufficient information to indicate why that area 
warrants more protection than would be provided through the Navy's 
visual, passive acoustic and HF/M3 monitoring program and 180-dB shut-
down procedures. If petitions are received without sufficient 
information for NMFS to justify the petition, NMFS will determine 
whether the nominated area warrants further study. If it does, NMFS 
will begin a scientific review of the petition.
    Depending upon the degree of scientific information provided by the 
nominator, the number of other petitions also under consideration, and 
the number of scientifically related issues on marine mammals also 
under review in NMFS, this process may add an additional year or more 
to the petition process. For this reason, NMFS recommends not 
nominating areas that are not known areas of high concentration for 
marine mammals, especially for breeding, feeding or migrating, that 
warrant more protection than will be provided under the tripartite 
monitoring and shut-down protocols.
    Comment MIC8: The (Sable) Gully has recently been designated by the 
Department of Fisheries and Ocean, Canada, as a pilot marine protected 
area. This should be recognized.
    Response: While the Sable Gully is significant for marine mammals 
(see Hooker et al., 1999), and may be a good candidate for nomination 
as an OBIA, NMFS is concerned that continuing oil exploration, 
including intense seismic surveys, and shipping within the Sable Gully 
and in nearby waters would limit the Gully's effectiveness for marine 
mammal protection. It should be recognized that a significant portion 
of the Gully is already protected as it is within a straight-line 
projection of the 200-m (656.2-ft) isobath of OBIA1. An application for 
considering the waters outside the 200-m (656.2-ft) isobath as an OBIA 
should provide information on why marine mammals would benefit by 
exclusion of one short-term source of anthropogenic noise (SURTASS LFA 
sonar), when other sources of anthropogenic noise (commercial shipping, 
seismic) are more prevalent on a daily and yearly basis. Moreover, NMFS 
is unaware that any protective measures have been provided for the 
Gully through regulations under Canada's Oceans Act.
    Comment MIC9: Special consideration should be given to minimize 
potential impacts in the areas that have been identified as critically 
important seasonal feeding areas for the northern right whale within 
the Gulf of Maine. OBIA1 may not afford adequate protection for the 
right whales known to frequent areas along the 200-m (656.2-ft) isobath 
in the Gulf of Maine at certain times of the year. The OBIA should be 
extended to include the complete range of northern right whale. It must 
include the unknown summering ranges of females and unknown migration 
routes. OBIA1 offers little protection for deep-water species, such as 
the northern bottlenose whale.
    Response: The NMFS and Navy agree that special consideration should 
be given to minimizing potential adverse impacts from the operation of 
the Navy's SURTASS LFA sonar in those areas that have been identified 
as critically important seasonal feeding areas for the right whale 
within the Gulf of Maine and surrounding shallow water areas. As stated 
in the Navy's Final EIS (Subchapter 2.3.2 (Alternative 1; The Preferred 
Alternative)), OBIA1 encompasses the entire water area inside the 200-
meter isobath of the North American east coast. In discussions with the 
Maine Federal Consistency Coordinator, the Navy confirmed that the 
seaward limit of OBIA1 connects directly across the narrow entrance to 
the Gulf of Maine between Browns Bank to the north and Georges Bank to 
the south. Therefore, the Navy will not operate in the Gulf of Maine. 
It should be noted that the Navy will observe the geographic 
restrictions of OBIA1 during all seasons of the year, not just during 
seasonal feeding. Also OBIA1 was designed to include within its 
boundaries all North Atlantic right whale critical habitats. Therefore, 
the Navy will not operate in that part of the range of the northern 
right whale where populations are concentrated. As previously stated, 
SURTASS LFA sonar will observe geographic restrictions on operations 
within the Gully, a known deepwater area for northern bottlenose 
whales.
    Finally, any whales in other deep-water areas, such as offshore 
migration routes which are normally not areas of high concentration 
(see RTC MIC11), will be protected through the tripartite monitoring 
mitigation and the SURTASS LFA shutdown criteria.
    Comment MIC10: In sensitive areas like humpback breeding areas, as 
much as 25 percent of the population could reasonably be affected in a 
critical manner (which is beyond simply harassment). The commenter does 
not believe that this represents a legitimate attempt to minimize harm 
due to testing LFA sonar. The distance from marine mammal breeding 
areas should be at least 200 km (108 nm)(i.e., 140 dB), during the 
breeding period. NMFS should also identify other biologically important 
areas and determine the distances that LFA should be allowed to operate 
in order to keep received levels below 130-140 dB.
    Response: NMFS does not agree with the commenter that marine 
mammals will be injured or killed incidental to operating SURTASS LFA 
sonar with the implementation of the mitigation and monitoring measures 
that are required by these regulations. Equating receipt of a ping (or 
multiple pings) to a prediction in a reduction in the gene pool of 25 
percent of the males (those that stopped singing), as the commenter has 
implied in his letter, is not justified. In addition, NMFS believes the 
commenter has overestimated harassment takings by use of 10 
log10

[[Page 46749]]

(N), instead of 5 log10 (N), as noted in RTC SIC76. The AIM 
used in the Navy's Final EIS indicates that approximately 2.5 percent 
(geographic mitigation only) to 1.9 percent (with geographic mitigation 
plus monitoring mitigation) of humpback whales off Kauai, HI could be 
harassed during a mission, not 25 percent as noted by the commenter. 
This includes multiple pings as noted in detail in the Final EIS.
    The commenter advocates that sound levels not exceed 130-140 dB in 
biologically sensitive areas. In Miller et al. (2000), the commenter 
states ``As the song of these (humpback) whales is associated with 
reproduction, widespread alterations of their singing behavior might 
affect demographic parameters, or it could represent a strategy to 
compensate for interference from the sonar.'' The article stated that 
the behavioral response must be widespread. However, the independent 
scientists conducting Phase III of the LFS SRP did not conclude that 
the alterations of behavior observed in the LFS SRP Phase III were 
widespread (see RTC SIC 23 and 24). Therefore, NMFS believes that a 
SURTASS LFA sonar vessel, operating in accordance with the regulations 
and applicable LOA is not likely to have a significant (or widespread) 
impact to biologically important behaviors. This would include 
biologically important behaviors for the Hawaiian humpback whales, 
which will be additionally protected by the Navy's implementation of 
the 145-dB diver mitigation measure for Hawaii waters.
    Moreover, recognizing the propagation paths for SURTASS LFA sonar 
described in the preamble of this document and the operational 
characteristics of SURTASS LFA sonar requiring operation at close to 
full power in order to be effective, this recommendation fails the 
``practicable'' test mandated by the MMPA when NMFS prescribes the 
means of effecting the least practicable impact on marine mammals.
    Areas of critical importance to marine mammals, such as breeding 
areas, may be nominated as an OBIA under these regulations. Additional 
information on nominating areas can be found elsewhere in this 
document. By regulation, OBIAs are limited to SPLs below 180 dB.
    The reference to ``testing'' as the proposed action is not totally 
accurate. As stated in the Final EIS (page 1-1), the Navy's proposed 
action is the employment of SURTASS LFA sonar with ``employment'' 
meaning the use of LFA sonar during routine training and testing as 
well as the use of the system during military operations. Since the 
Navy must train in the same way it expects to fight in order to be 
effective, and because the Navy should not be excluded from large 
portions of the ocean, a recommendation to restrict the LFA sonar to 
levels of 130-140 dB cannot be accepted.
    Comment MIC11: One organization believes that impacts could be 
minimized by offering seasonal protection through known migration 
paths. Many of these species for which migratory paths are available 
are listed by the IUCN (International Union for the Conservation of 
Nature) as endangered or threatened species and should be considered.
    Response: NMFS believes that known migration paths for marine 
mammals that have a marine mammal density significantly greater than 
surrounding waters during a discrete period of time may qualify as an 
OBIA. NMFS recommends that such areas be the subject of a petition to 
designate an OBIA. However, to NMFS' knowledge most non-coastal 
migratory paths for marine mammals extend over broad swaths of the 
ocean with marine mammal density not much greater than other areas. 
Since operational restrictions in these broad areas could seriously 
impact the Navy's ability to carry out its mission if these areas were 
established as OBIAs (since it would essentially prohibit LFA sonar 
from operating in extensive areas in the oceans), and since marine 
mammals (and sea turtles) would be similarly protected from receiving 
an SPL greater than 180 dB through utilization of the HF/M3 sonar in 
the vicinity of the SURTASS LFA vessel, based on practicality the 
establishment of these extensive areas as OBIAs would be unlikely.
    Comment MIC12: One organization stated, ``the unknowns are so 
pervasive that * * * the Office of National Marine Sanctuaries has 
asked the Navy to avoid deploying the LFA within the Monterey Bay 
National Marine Sanctuary.''
    Response: In its consultation letter to the Navy dated May 15, 
2001, the ONMS requested that the received levels in Monterey Bay NMS 
not exceed 180 dB throughout the Sanctuary and 145 dB around active 
marine mammal research projects.
    Comment MIC13: Provide a geographic presentation to illustrate the 
physical reach of anthropogenic sounds from the system to the OBIAs.
    Response: The SPL will be restricted to below 180 dB within the 
OBIAs. The physical reach of anthropogenic sound from the array to the 
boundary of the OBIA is shown in the Final EIS Figure 2-4. However, the 
vast majority of the time the vessel will be at a much greater distance 
away from the OBIA boundaries and the SPL at the boundary will be 
correspondingly much less than 180 dB.

General Mitigation Concerns

    Comment M1C14: The proposed mitigation is fundamentally flawed 
because it only applies to the 1-km (0.54 nm) radius (180-dB zone), 
which does not include non-auditory effects (below 180 dB) as evidenced 
by the Greek and Bahamas strandings. The LFA mitigation zone should not 
exceed 120 dB. Because sound levels greater than 140 dB can be received 
at ranges of 200 km (108 nm), the 12-nm (22-km) geographic mitigation 
is ineffective.
    Response: The selection of the 180-dB criterion and the issue on 
strandings have been discussed in detail in previous RTCs in this 
document and in the Final EIS Subchapter 1.4.2.1. An analysis by Cudahy 
and Ellison (2002), subsequent to the release of the Final EIS, on the 
potential for resonance from SURTASS LFA signals to cause injury 
supports the conclusion that injury will not occur at distances greater 
than the 180-dB sound field. While the MMPA requires that take levels 
be reduced to the lowest level ``practicable,'' there is no scientific 
basis to require the Navy to mitigate to an SPL of 120 dB, and not 
practical to limit the source to such low levels that would prevent a 
marine mammal from receiving an SPL of 120 dB. Because the Navy's 
analysis indicated that marine mammals may be harassed incidental to 
SURTASS LFA sonar operations, and that this harassment could not be 
mitigated to a zero level, the Navy applied for an incidental take 
authorization.
    Comment MIC15: Commenters provided NMFS with a list of suggested 
mitigation measures that they believed should be incorporated into the 
rulemaking. These recommendations are addressed here; however, 
suggested mitigation measures that are actually monitoring or reporting 
requirements will be addressed in the appropriate sections of this 
document.
    Comment MIC15a: The Navy should reduce the maximum allowable RL 
below 180 dB.
    Response: As indicated previously, limiting SURTASS LFA sonar to 
received SPLs below 180 dB is not practical considering the requirement 
of SURTASS LFA sonar operations to detect targets at significant 
distances in order to protect fleet assets and the crew members on 
those assets. Since (1) marine mammals will be protected from injury by 
the tripartite monitoring

[[Page 46750]]

system, (2) as indicated in this document, marine mammals will not be 
injured at levels below 180 dB, and (3) the Navy has applied for an 
authorization to harass marine mammals incidental to conducting SURTASS 
LFA sonar operations, this mitigation measure is not practical and, 
therefore, is not adopted.
    Comment MIC15b: LFA sonar should operate only in marine ``desert'' 
areas.
    Response: While adoption of this mitigation measure presumably 
would result in lower marine mammal incidental harassment takes than 
operating in more nutrient-rich waters, this mitigation measure is not 
practical since the Navy needs to operate in areas with different water 
characteristics, as stated in the Navy's NEPA documents. This would not 
be available to the Navy if it were limited to biologically 
unproductive areas.
    Comment MIC15c: The Navy should reduce the source level, duty 
cycle, and annual transmission hours of LFA sonar.
    Response: Source levels, duty cycles, and transmission hours are 
all based on the need to carry out the Navy's mission successfully. 
Therefore, imposing these suggested mitigation measures is not 
considered practical.
    Comment MIC15d: NMFS should consider an extension of the safety 
zone and pre-operation surveys of the local area of operation.
    Response: In order to ensure, to the greatest extent practicable, 
that marine mammals do not receive an SPL equal to, or greater than 180 
dB, NMFS has amended the mitigation measures to incorporate an interim 
operational restriction to include a SURTASS LFA sonar system shutdown 
within a buffer zone that will extend 1 km (0.54 nm) from the outer 
limit of the 180-dB safety zone (SURTASS LFA mitigation zone). This may 
extend up to 2 km (1.1 nm) from the vessel, depending on oceanographic 
conditions. At this distance, SPLs will be significantly less intense 
than at 180 dB. Once a marine mammal is detected by the HF/M3 sonar, 
ramp-up of the HF/M3 sonar will cease or, if transmitting, the SURTASS 
LFA sonar system signal transmissions will be suspended.
    Pre-operation surveys are not practical since the SURTASS LFA sonar 
vessel normally operates independent from the fleet and too distant 
from shore to make aerial surveys practical. Observations from the 
SURTASS LFA vessel prior to operation is a requirement of the 
monitoring program. If marine mammal abundance is high in the operation 
area, NMFS expects the Navy to not operate in the area to limit the 
number of transmission delays due to marine mammal incursions into the 
safety/buffer zones and will move to another area with lower mammal 
abundance.
    Comment MIC15e: The funding of independent research on resonance 
effects and other impacts that the Navy and NMFS have not considered 
previously should be undertaken before operations begin.
    Response: Resonance effects have been discussed in RTCs MMIC33 
through MMIC38 and, as noted, do not appear to be a concern at SPLs 
below 180 dB (Cudahy and Ellison, 2002). NMFS has identified a need for 
the Navy to research the impacts of resonance on marine mammals. This 
research is already underway by ONR. However, until such research has 
been concluded, NMFS has implemented two interim operational 
restrictions to preclude the potential for injury to marine mammals by 
resonance effects; these include the previously mentioned establishment 
of the buffer zone shutdown requirement outside the safety zone and 
limiting the operating frequency of SURTASS LFA to 330 Hz and below, 
instead of 100 to 500 Hz as proposed. NMFS has determined that a 
frequency of 330 Hz, which is the upper-bound of the lowest practicable 
operating frequency for SURTASS LFA sonar, is the highest frequency 
that SURTASS LFA sonar will be authorized to operate to take marine 
mammals by harassment. This latter restriction is supported by the 
testimony of Dr. Darlene Ketten, an expert on the functional morphology 
of marine mammal hearing, before the Subcommittee on Fisheries 
Conservation, Wildlife and Oceans of the House Committee on Resources 
on October 11, 2001, that the consensus of data is that virtually all 
marine mammal species are potentially impacted by sound sources with a 
frequency of 300 Hz or higher. Both measures will ensure, to the 
greatest extent practicable, that marine mammals are not injured by the 
SURTASS LFA sonar signal. These protective measures will be retained 
until scientific documentation can be provided by the Navy which 
indicates they can be safely modified. This is explained elsewhere in 
this document.
    Comment MIC15f: The Navy should replace LFA sonar in whole or in 
part to the extent practicable with new, advanced passive sonar 
technologies, which would reduce marine mammal takings incidental to 
deployment of LFA, or conduct a transparent and thorough alternatives 
analysis of such technologies before and each year the system is 
deployed.
    Response: Please refer to RTC AC11. According to the Navy, research 
on improving passive sonar capabilities is intrinsic to the Navy since 
passive sonar would lower the detection ability by the enemy. 
Therefore, while the Navy would prefer alternative, passive 
technologies to be available for deployment, both because of the lower 
impact to marine mammals and its greater stealth ability to detect 
submarines, currently there are no feasible passive alternative systems 
available to accomplish the Navy's needs. This is explained in 
significant detail in Chapter 1 of the Navy's Final EIS. While the 
suggestion for an annual review of the availability of passive systems 
for submarine detection is a good one, NMFS doubts that technology 
would advance quickly enough that annual review would be required. 
However, NMFS has added a reporting requirement to the regulations 
requiring an unclassified review of passive technologies in the Navy's 
final comprehensive report.
    Comment MIC16: NMFS should extend the geographic restrictions to 
completely cover the range of the endangered northern right whale.
    Response: NMFS has established an OBIA for the entire known range 
for the East Coast population of the North Atlantic right whale. This 
includes areas in addition to those areas designated as critical 
habitat for this stock, such as the five areas of high use that were 
identified in the final recovery plan for right whales (NMFS, 1991; 
Perry et al., 1999). Insufficient information currently exists on high 
use areas for the other stocks of North Atlantic right whales to 
designate these areas for additional mitigation. Once scientists have 
information on the location and distribution of North Atlantic right 
whales outside this area, NMFS would consider creating OBIAs to include 
any high use areas. However, OBIAs will not be based on speculation on 
the location of animals, as that would require extending OBIAs to vast 
portions of the North Atlantic and/or North Pacific oceans, which are 
likely to contain relatively few marine mammals.
    Comment MIC17: In order to warn marine mammals of impending LFA 
sonar operations, the Navy should broadcast a distinctive, unnatural, 
relatively broadband, LF signal (e.g., a time-reversed Orca call) at 
levels loud enough to be received by whales at 5 to 10 km from the 
vessel.
    Response: There is no scientific research available suggesting that 
time-reversed orca calls would be successful

[[Page 46751]]

in deterring marine mammals from the area of the SURTASS LFA sonar. 
Tests using standard orca signals have produced mixed results with 
calls being ignored at times and causing a flight reaction at other 
times. However, broadcasting a ``distinctive, unnatural, relatively 
broadband LF signal'' that would effectively deter marine mammals 
presumes that all marine mammal species can hear the LF signal and that 
there would be a cognitive recognition that the signal means that 
another loud, and possibly annoying, LF sound might be forthcoming. 
This is unlikely unless the marine mammal can associate a cause and 
effect between the two noise sources based on earlier experience. 
Therefore, until such time as research gives some indication that this 
mitigation measure would be effective, NMFS will not require the Navy 
to intentionally harass marine mammals by broadcasting loud LF signals 
in order to deter marine mammals from an area where they might be 
exposed to the distinctive, narrowband LF signal of SURTASS LFA sonar.

Monitoring Concerns (MOC)

    Comment MOC1: Additional screening within the 1-km (0.54-nm) zone 
should be required to record cetacean sightings for a period of hours 
before and after operations to determine resident cetacean population 
levels.
    Response: Requiring the tripartite monitoring system to start up 
several hours prior to, and continue for several hours after the 
conclusion of, LFA sonar transmissions is neither warranted nor 
practical. First, the Navy will be operating for the most part in 
waters that are not areas known for high concentrations of marine 
mammals; therefore, few, if any, marine mammals would be within the 
SURTASS LFA mitigation zone. In addition, increasing the time for 
transmission of the HF/M3 sonar would not be consistent with the goal 
of reducing noise in the ocean. NMFS believes that this additional 
noise is simply not warranted. Also, at this time, use of the SURTASS 
LFA sonar vessel as a full-time platform of opportunity to assess 
marine mammal populations is not practical since the marine mammal 
observers aboard the SURTASS LFA sonar vessels will not have the 
expertise needed for producing scientifically acceptable line transect 
population assessments and the SURTASS LFA vessel scheduling will 
preclude conducting the type of line transect surveys required for 
adequate population assessments. However, this remains an issue that 
NMFS would like to revisit in the future.
    Comment MOC2: Monitoring will continue for a period of no less than 
15 minutes after the last SURTASS LFA sonar transmission. Will NMFS 
make it a condition that if there is observable change in marine mammal 
behavior that monitoring will continue until such behavior returns to 
normal?
    Response: The length of time that the visual observations will 
continue will be dependent upon visibility, and the speed and direction 
of both the whale(s) and the SURTASS LFA sonar vessel. Visual 
observations are required to be continued from a period 30 minutes 
prior to first transmission of the SURTASS LFA sonar, continue between 
transmission pings, and continue for at least 15 minutes after 
completion of the SURTASS LFA sonar transmission exercise. This is a 
condition contained in the final rule. However, provided conditions 
remain favorable, observations should continue as long as beneficial 
observations can be made. Therefore, a modification has been made to 
these regulations clarifying this point.
    Comment MOC3: Thirty minutes is inadequate for pre-transmission 
observations because sperm whales dive for periods in excess of 45 
minutes and northern bottlenose whales dive often for 35 to 40 minutes. 
Thus, it appears that the species at most risk are those likely to go 
undetected by the monitoring program.
    Response: Visual observations are mainly intended to alert 
operators of the HF/M3 sonar that marine mammals are in the vicinity of 
the SURTASS LFA sonar vessel. However, if a marine mammal is sighted 
within the safety zone, the observer would immediately notify the 
appropriate person that the SURTASS LFA sonar should not be powered up 
or transmissions should be suspended immediately. This is practical 
because, in clear weather, skilled observers can see distances greater 
than the HF/M3 sonar is capable of reaching. Also, while whales may 
dive for up to 45 minutes, it is unlikely that the ship's bridge watch 
would miss a large whale surfacing from its previous dive if it is 
within a mile or two of the vessel. The monitoring mitigation does not 
rely solely on visual observations. The HF/M3 sonar was developed 
specifically to detect the presence of marine mammals underwater both 
day and night under all weather conditions. Since it is the HF/M3 sonar 
that is the principal means for detecting marine mammals within the 
safety and buffer zones of the SURTASS LFA sonar vessel, it is 
unnecessary to extend the observer period to 45 minutes.
    Comment MOC4: Since 20-30 percent of the animals that may be in the 
safety zone prior to and/or during operations are apparently unlikely 
to be detected, prevention of serious injuries or mortalities may not 
be possible. The purported effectiveness of the tripartite approach 
assumed the HF/M3 sonar (70 percent effective), visual (5 percent 
effective), and passive acoustic (5 percent effective) monitoring would 
result in a combined mitigation effectiveness of 80 percent. This 
methodology is flawed because the detection efficiencies are only 
additive if they are completely non-redundant.
    Response: This comment is based on the modeling of potential 
impacts in the Draft EIS, which utilized a conservative assumption of 
70 percent for the effectiveness of the active acoustic monitoring. The 
Navy changed the methodology of calculating overall monitoring 
mitigation effectiveness for the Final EIS (see the Final EIS 
Subchapter 4.2.7.1 for the calculations) based on comments received on 
the Draft EIS. As this comment is based on reading the Draft EIS, not 
the Final EIS, it is no longer applicable. This was not an additive 
calculation.
    NMFS believes that the 66-percent effectiveness of the tripartite 
monitoring system described in the Final EIS significantly 
underestimates the capability of the monitoring program. For the 
purposes of the Final EIS analysis, a percentage of 55 percent was 
utilized based on the probability of detection of a single, small 
dolphin with a single ping from the HF/M3 sonar. This was a very 
conservative assumption. Since an animal is likely to receive several 
pings between the limits of HF/M3 detection (2 km (1.1 nm)) and the 
180-dB safety zone, detectability rises above 95 percent prior to an 
animal entering the 180-dB SURTASS LFA mitigation zone. (see Navy's 
Final EIS, 2.3.2.2 for details).
    In conclusion, due to the high level of marine mammal 
detectability, the potential for marine mammals to be injured is 
considered negligible and, moreover, marine mammal mortality is neither 
expected nor authorized.
    Comment MOC5: The methods that the Navy will use to monitor for 
marine mammals within 1 km (0.54 nm) distance are limited in their 
efficacy. Visual monitoring is limited to daylight and good weather. 
The proposed rule document and Draft EIS state that tripartite 
monitoring mitigation is only 80 percent effective. As stated in the 
Final EIS, during tests of the HF/M3 sonar only 11 of 20 small 
cetaceans traversing the sonar were detected.

[[Page 46752]]

Therefore, 45 percent of them may be exposed to injurious levels.
    Response: For the purpose of estimating impacts on marine mammals 
for the Navy application and the NEPA documents, the modeling of 
potential impacts utilized a conservative assumption of 50 percent for 
the effectiveness of the active acoustic monitoring and an overall 
effectiveness of 66 percent with passive acoustic and visual monitoring 
included. However, recent testing of the HF/M3 sonar, as documented in 
the Final EIS Subchapter 2.3.2.2, has provided empirical support for 
the conservative assumption found in this document, demonstrating a 
probability of single-ping detection within the SURTASS LFA sonar 
mitigation zone for most marine mammals above 95 percent (See Final EIS 
Figure 2-5).
    As part of the determination of the HF/M3 sonar's probability of 
detection, a dedicated experiment was conducted to verify the system's 
ability to detect bottlenose dolphins. The tests were conducted in 
shallow (300 m (984 ft)), acoustically downward-refracting waters that 
produced a high-clutter environment significantly higher than expected 
under more normal conditions (i.e., deeper water, predominantly CZ 
propagation, lower clutter). Trained dolphins were commanded to dive to 
moored objects 130 m (426.5 ft) below the surface with the HF/M3 system 
positioned 400 to 1000 m (1312 to 3281 ft) away. The predicted 
detection rate for these exercises was estimated at approximately 80 
percent (per dolphin dive cycle). Detailed analysis of 20 dolphin dives 
resulted in 11 dolphin detections. The small experimental sample size 
used here suggests that the differences in predicted and measured 
performance are reasonable. It should be emphasized that these tests 
were conducted under environmental conditions that reduce probabilities 
of detection significantly in comparison to deep-water scenarios. In 
addition, search zones will typically be at larger depths than those 
focused on during these tests, also serving to increase probabilities 
of detection via advantageous thresholding adjustments to lower clutter 
fields. It should also be noted that these tests were conducted on 
single dolphins. In the wild, small pelagic odontocetes are normally 
found in pods ranging upward in size from 7 to 1,000 individuals. 
Therefore, the probability of at least one of the animals in the pod 
being detected in at least one ``ping'' is very high. Once a marine 
mammal is detected by the HF/M3, the SURTASS LFA sonar shutdown 
protocols will be implemented. Therefore, it is unlikely that any 
marine mammals will be injured by SURTASS LFA sonar operations.

Visual Monitoring

    Comment MOC6: The Navy relies heavily on visual monitoring which is 
inadequate.
    Response: Subchapter 4.2.7.1 of the Final EIS states that visual 
monitoring is limited to daylight hours and its effectiveness declines 
during high sea states. Because of the limitations of both passive 
acoustic and visual monitoring, the Navy developed the HF/M3 sonar to 
provide 24-hour, all-weather active acoustic monitoring of an area of 
approximately 2-km (1.1 nm) radius from the array. In calculating the 
effectiveness for the various monitoring systems for purposes of the 
Final EIS, the visual monitoring component of the three-part monitoring 
system was estimated at 0.09, or 9 percent. At an effectiveness of this 
level, the Navy cannot be considered to be relying heavily on visual 
monitoring.
    Comment MOC7: When visibility is poor (night/bad weather), how will 
monitoring 30 minutes prior to LFA transmissions be accomplished? What 
will happen when visibility doesn't allow visual monitoring to start 30 
minutes prior to LFA sonar transmissions?
    Response: The 24-hour, all-weather HF/M3 sonar was developed and 
will be used specifically to address the low effectiveness of visual 
monitoring. The HF/M3 monitoring program will be above 95 percent 
effective in detecting most marine mammals prior to entering the 180-dB 
mitigation zone.
    Comment MOC8: Provide details of visual monitoring, such as, 
qualifications of observer, training, testing/evaluation by NMFS, and 
effectiveness.
    Response: Personnel trained in detecting and identifying marine 
animals will make observations from the SURTASS LFA sonar vessel. At 
least one observer, qualified by NMFS, will train, test and evaluate 
other visual observers. Visual observation effectiveness estimates will 
be provided to NMFS in accordance with LOA reporting requirements.

Passive Acoustic Monitoring

    Comment MOC9: No validation is provided for passive acoustic 
monitoring in determination of beaked whales in the mitigation zone.
    Response: The rationale for determining the effectiveness of 
passive sonar for detecting beaked whales was addressed in the Final 
EIS Subchapter 4.2.7.1 and in RTC SIC70 in this document.

Active Acoustic Monitoring

    Comment MOC10: Will the report on the testing of the effectiveness 
of the HF/M3 sonar be made public through the Federal Register?
    Response: The subject report (Ellison and Stein, 2001) is available 
to the public (http://www.surtass-lfa-eis.com/Download/ index.htm). In 
addition, a paper on this subject was presented at the 2001 Acoustical 
Society of America meeting (Stein et al., 2001).
    Comment MOC11: How can the monitoring system detect deep-diving 
whales (such as sperm and beaked whales) that approach from below the 
vessel? One organization also stated, ``We also believe that it is a 
weak argument to state that the closer an animal is to the vessel, the 
more likely they will be detected. Cetaceans spend the majority of 
their lives under the water's surface.''
    Response: Because cetaceans spend much of their time underwater, 
the HF/M3 sonar was developed, and will be used, to provide continuous, 
underwater monitoring of the SURTASS LFA mitigation zone. The scenario 
for a deep-diving whale to go undetected as it approached the vessel 
from below was taken into consideration in the analysis of the HF/M3 
sonar performance (Ellison and Stein, 2001). The probability of 
detection of a large baleen whale with a single ping within the SURTASS 
LFA mitigation zone is above 95 percent, except for a small volume 
directly under the array. This is defined as a down-ward looking 
conical volume starting at the array to a depth of 140 m (459 ft) with 
a radius of 300 m (984 ft). Animals, even those diving, will approach 
the SURTASS LFA sonar vessel laterally because of their movement and 
the movement of the SURTASS LFA vessel. The HF/M3 sonar scan rate is 
every 45 to 60 seconds. Animals closing on the SURTASS LFA vessel at 
2.5 m/s (5 knots) will remain in the 1-km to 2-km (0.54- to 1.1-nm) 
annulus surrounding the HF/M3 sonar for approximately 400 seconds, and 
will, therefore, theoretically be detectable to the sonar no less than 
8 times. For an animal to go undetected, it would have to remain in the 
small volume below the array (defined above) matching course and speed 
with the vessel. Even though marine mammals can stay submerged for long 
periods, it is highly unlikely that they would remain in the small 
volume beneath the SURTASS LFA array for the 400-second (over 6 
minutes) period necessary to avoid

[[Page 46753]]

being detected. Therefore, animals approaching the mitigation zone from 
below have an extremely high likelihood of being detected before 
entering the SURTASS LFA mitigation zone.
    Comment MOC12: NMFS should develop performance standards for the 
detection of marine mammals within the 180-dB safety zone and require 
the Navy to test and demonstrate the capability of the HF/M3 sonar or 
some other suitable detection system before finalization of the rule 
making process. Have any relevant studies of the effects of fish-finder 
type sonar on marine mammals been conducted?
    Response: The Navy has demonstrated the capability of the HF/M3 
sonar (Ellison and Stein, 2001; Stein et al., 2001). These documents 
are available upon request. Recent testing of the HF/M3 sonar, as 
documented in the Final EIS Subchapter 2.3.2.2 pages 2-17 to 2-22, has 
validated the Navy's overly conservative assumption, demonstrating a 
probability of detection within the SURTASS LFA sonar mitigation zone 
for most marine mammals above 95 percent (See Final EIS Figure 2-5). 
This is significantly higher than the 55 percent used in the Final EIS.
    Testing on marine mammals has been conducted. Schlundt et al. 
(2000) tested two species of marine mammals for TTS from exposure to 1-
second pure tones for 0.4, 3, 10, 20, and 75 kHz. The HF/M3 sonar 
frequency range is 30 to 40 kHz. In the 20 to 75 kHz band, that study 
and follow-up testing showed no masked TTS at levels of 193 dB at 75 
kHz.
    Comment MOC13: The Navy provides no estimate of the detectability 
of sea turtles and, therefore, LFA operations could encounter a 
significant portion of the population.
    Response: The Final EIS (RTC 4-2.4) provides a discussion on why 
SURTASS LFA sonar operations would not encounter a significant portion 
of any sea turtle population and the Final EIS (Subchapter 4.1.2) 
indicates, for example, that less than 3 leatherback sea turtles per 
year per ocean would be affected by SURTASS LFA sonar. However, the 
calculations in the Final EIS did not consider the diving depth of the 
leatherback (an average diving depth of 50 to 84 m (164 to 275.6 ft) 
and a duration of 9 to 15 minutes), nor the water depth of the 180-dB 
zone (87 to 157 m (285 to 515 ft)). This means that even though they 
are considered to be continuous divers and can dive to over 200 m (656 
ft), their normal dive patterns would only put them in the 180-dB 
SURTASS LFA mitigation zone for a fraction of the time that was used in 
the Final EIS calculations. Also it is unlikely that hatchlings would 
dive to a depth of over 80 m (262 ft) (i.e., the normal depth to the 
top of the 180-dB sound field), so they are unlikely to get into the 
180-dB SURTASS LFA sonar mitigation zone and thereby be harmed.
    While no mitigation effort can totally eliminate the possibility of 
impact on an individual sea turtle, the mitigation procedures, 
including the new HF/M3 sonar, would be capable of detecting sea 
turtles before animals were subject to loud LF sounds, thereby reducing 
the potential impact of SURTASS LFA sonar operations on even these 
small numbers of sea turtles. Finally, although HF/M3 testing has not 
been conducted on sea turtles, and an effectiveness percentage has not 
been provided in the Final EIS, leatherback sea turtles (i.e., the most 
probable turtle species to be encountered by SURTASS LFA sonar) are 
about the size of a dolphin (1-2 m in length). Therefore, based on 
multiple sweeps, the HF/M3 sonar should have a detection effectiveness 
for leatherback sea turtles similar to that for a small cetacean.
    Comment MOC14: NMFS states efficiency of the HF/M3 sonar is not 
certain. The HF/M3 sonar is untested. Therefore, it plans to calculate 
take based only on geographic restrictions. How can NMFS be certain 
that negligible impacts on marine mammals are at the lowest practicable 
levels?
    Response: The Navy has demonstrated the capability of the HF/M3 
sonar (Ellison and Stein, 2001; Stein et al., 2001). These reports are 
available upon request from NMFS. Recent testing of the HF/M3 sonar, as 
documented in the Final EIS Subchapter 2.3.2.2, and these reports, has 
validated the effectiveness of the HF/M3 sonar, demonstrating a single-
ping probability of detection within the 180-dB SURTASS LFA mitigation 
zone for most marine mammals above 95 percent (See Final EIS Figure 2-
5). This is substantially greater than the pre-test assumption that the 
HF/M3 sonar would be 50 percent effective (tripartite monitoring was 
believed to be 66 percent effective). Since the research on the HF/M3 
has been conducted, as suggested in the proposed rule, and as this 
research has documented the HF/M3 effectiveness at over 95 percent, 
NMFS has determined that harassment take levels can be assessed taking 
into account both the geographic mitigation and the monitoring 
mitigation measures. These take levels can be found in Table 4-10 of 
the Navy application and Table 4.2-10 of the Final EIS (final column in 
both tables), but may overestimate the level of impacts since the HF/M3 
has been empirically tested and shown to be up to 50 percent more 
effective than previously estimated. As noted elsewhere in this 
document, implementation of these mitigation measures, in addition to 
other mitigation, ensures that the takings by SURTASS LFA sonar will be 
at the lowest level practicable, without imposing additional measures 
that might compromise the effectiveness of the Navy's ability to use 
SURTASS LFA sonar to carry out its mission.
    Comment MOC15: The commenter states that ``the HF/M3 sonar could 
use frequencies above 200 kHz to impact odontocetes less.''
    Response: Because absorption losses are much higher for 200 kHz 
than at 30 kHz (about 10 times greater), 200-kHz sonar cannot 
effectively provide the required range of at least 1 km (0.54 nm). 
Also, except for auditory impacts, there is no evidence to support 200 
kHz as causing less impact to odontocetes than 30-40 kHz.
    Comment MOC16: Did the Navy have a take authorization for the 
testing of the HF/M3 sonar on dolphins?
    Response: Testing with artificial targets from October 1998 through 
May 2000 does not require a permit under the MMPA. The August 2000 
tests were conducted with bottlenose dolphins under the Navy's 
authorized Marine Mammal Program (San Diego, CA), and, therefore, did 
not require any permits.
    Comment MOC17: One commenter states that the HF/M3 sonar cannot be 
compared to a fish-finder because fish-finder sonar is typically 
focused in a narrow beam below the vessel where it is less likely to 
disturb marine mammals. One organization believes that it is 
nonsensical to rely on a monitoring system that is itself harmful to 
marine mammals as well as unproven in its effectiveness.
    Response: Fish-finder sonars are generally forward-looking active 
sonars for spotting fish schools. Fish-finder transducers have 
horizontal beamwidths from 10 to 46 degrees at ranges on the order of 1 
km (0.54 nm). The HF/M3 sonar utilizes four ITC 1032 transducers with 
8-degree horizontal and 10-degree vertical beamwidths, which sweep a 
full 360 degrees in the horizontal every 45 to 60 seconds with a 
maximum range of approximately 2 km (1.1 nm). The beamwidth for the HF/
M3 sonar is comparable to commercial fish finders.
    The HF/M3 sonar effectiveness has been discussed previously in this 
document. There is no scientific evidence that sonars, similar to the 
HF/M3, which are in common use in the fishing and maritime industries, 
harm marine life. In addition, a requirement

[[Page 46754]]

to ramp-up the HF/M3 ensures that marine mammals and sea turtles are 
detected by the HF/M3 sonar at the lowest sound level possible. Once a 
marine mammal or sea turtle is detected, further increases in power are 
not initiated until the animal is no longer detected. At that time, 
ramp-up would continue unless that animal, or another, was detected.
    Comment MOC18: The Navy did not employ the best available 
mitigation (monitoring) technology because it did not consider the use 
of Synthetic Aperture/Side Scan Sonar and Range Gated Viewers (laser 
camera) in lieu of the HF/M3 sonar.
    Response: According to the Navy, the two technologies listed are 
not the best available technology for active acoustic monitoring. 
Synthetic aperture arrays/side scan sonar does not meet the omni-
directional requirement for detection of marine animals. As discussed 
in Table 1-1 of the Final EIS, the use of laser technology in 
underwater applications is severely limited in range. For example, the 
AquaLynx underwater-gated viewing laser-camera system has a range 
measured in tens of meters, not the 2 km (1.1 nm) range of the HF/M3 
sonar.

Ramp-up

    Comment MOC19: In response to Comment 30 in the proposed rule 
regarding ramp-up of the SURTASS LFA sonar, NMFS stated, ``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.'' The commenter fails to see how ramp-up of the HF/M3 
sonar, which differs in virtually all its characteristics from SURTASS 
LFA sonar, can serve as a substitute for ramp up of the SURTASS LFA 
sonar. This commenter is concerned that if NMFS considers that the 
differing characteristics of the mid-frequency sonars used in the 
Bahamas make their impact irrelevant to an analysis of the potential 
impacts of SURTASS LFA sonar, then it is inconsistent to consider the 
sound characteristics of the HF/M3 sonar to be effective as mitigation 
for SURTASS LFA sonar. Ramp-up of the HF/M3 sonar might warn away (or 
attract) HF specialists, but it might have no effect on LF specialists, 
either to warn or to attract. Another commenter, expressing similar 
concerns, also believes that the Navy will use the HF/M3 to detect 
marine mammals and also to repel them with it.
    Response: For this action, ramp-up of the HF/M3 is designed to 
protect marine mammals from the potential to incur an injury, not from 
the potential to incur non-injurious harassment. The concept behind 
ramp-up of the HF/M3 is to ensure (presuming ramp-up is actually 
effective), that marine mammals can move out of the HF/M3's 180-dB 
safety zone (considerably smaller than the SURTASS LFA sonar's 180-dB 
zone), if it finds the noise annoying, but before it becomes harmful. 
However, more importantly, ramp-up allows acousticians monitoring the 
HF/M3 to locate marine mammals first within the HF/M3's 180-dB zone at 
the lowest SPLs possible and certainly before high SPLs from the HF/M3 
sonar are achieved and secondly, once its own safety zone is secured, 
to ensure that the SURTASS LFA sonar's 180-dB safety zone is free of 
marine mammals and sea turtles. This use of ramp-up differs from most 
uses of ramp-up, which rely solely on visual observations and shut-down 
only if surface observations detect marine mammal presence. The HF/M3 
will not be used to repel marine mammals, since once a marine mammal is 
detected, ramp-up may not proceed until, under minimal SPLs, marine 
mammals are no longer detected within the 180-dB safety zone. Once the 
SURTASS LFA sonar's 180-dB zone is determined to be clear of marine 
mammals, the SURTASS LFA sonar can be turned on without the need for 
ramp-up. In this case, once the SURTASS LFA sonar's 180-dB zone has 
been determined to be free of marine mammals, the frequency of the 
hearing of the marine mammal is not relevant.
    In addition to the reason mentioned in this response (marine 
mammals would receive no greater protection from injury from ramping up 
than will be provided under the HF/M3 ramp-up), a requirement for 
ramping-up of the SURTASS LFA sonar is not practical for several 
reasons. Of importance to NMFS is that ramping up, at a rate similar to 
that which is used in seismic (about 6 dB/minute), would likely result 
in several additional minutes of unnecessary LF sounds in the marine 
environment, creating more noise to ensure, theoretically at least, 
that marine mammals have more time to leave an area where they might be 
annoyed by the sounds. This is simply not warranted. Second, 
operational times in an area would probably increase to account for 
ramp-up times between ``pings'' (6 to 15 minutes).
    Comment MOC20: One commenter believes that the difference in power 
output of the HF/M3 sonar and the LFA sonar means that it is not 
sufficient to use the HF/M3 device as a ``ramp-up'' in order to warn 
cetaceans of the impending loud noise. LFA produces such a powerful 
output that it should be ramped up.
    Response: As stated in the Final EIS Subchapters 2.1.1 and 2.3.2.2, 
the source level of a SURTASS LFA projector is 215 dB while the source 
level for the HF/M3 sonar is 220 dB. The rationale for the ramp-up of 
the HF/M3 sonar is discussed in the previous RTCs.
    Comment MOC21: Research is needed on the ramp-up theory to 
determine if it is useful or harmful to the health of marine mammals. 
One organization suggests that the Navy conduct research on the ``ramp-
up'' theory, in order that it can be better understood whether or not 
such an activity is useful or harmful to the health of marine mammals. 
There is no evidence that ramp-up will allow fish and whales to escape.
    Response: NMFS understands that scientific research on ramp-up 
effectiveness is planned or actually underway, supported through 
funding by the Minerals Management Service (MMS).

Long-Term Monitoring (LTM)

    Comment MOC22: Visual and acoustic monitoring is neither designed 
to, nor will it, mitigate the effects of any taking of marine mammals 
that occurs. The purpose of monitoring should be to confirm that 
animals are taken only in the ways and numbers authorized and that 
there are no non-negligible population level effects.
    Response: The purpose of the visual and acoustic monitoring is to 
monitor the location of marine mammals with respect to the SURTASS LFA 
mitigation and buffer zones to ensure appropriate shutdown to avoid 
injury to marine mammals by the SURTASS LFA transmissions. While visual 
and passive acoustics are unlikely to significantly mitigate injurious 
takings by themselves, based on their ability to cue the operator of 
the HF/M3 sonar to the presence of marine mammals, the tripartite 
monitoring program and shutdown protocols are expected to be close to 
100 percent effective in avoiding injurious takes. This has been 
explained previously in this document. However, NMFS concurs that 
monitoring should be used to collect the necessary data to determine 
incidental takes. Swartz and Hofman (1991), for example, recognized 
that some forms of take may occur beyond the field of view of an 
observer at a particular site and that the monitoring program must be 
designed accordingly. This monitoring will be conducted by the Navy 
through long-term research. Moreover, the visual, passive and acoustic 
monitoring will extend beyond the 180-dB safety

[[Page 46755]]

zone, and observers will record interactions and behavioral reactions 
by marine mammals within the maximum distance possible. For more 
information see Final EIS Subchapter 5.2.
    The assessment of whether any taking of marine mammals occurred 
within the SURTASS LFA mitigation zone during SURTASS LFA sonar 
operations will be based upon data from the monitoring mitigation 
(visual, passive acoustic, active acoustic). Post-operation acoustic 
modeling will provide estimates of any taking beyond the SURTASS LFA 
mitigation zone.
    Comment MOC23: The LTM Program must have a secure budget and a 
detailed plan for research submitted to NMFS and made available to the 
public. $1.2M is not enough funding for the LTM Program.
    Response: The LTM program had been budgeted by the Navy at a level 
of $1M per year for 5 years, starting with the issuance of the first 
LOA. For additional information see the Final EIS (RTC 2-4.12).
    Vice Admiral Dennis McGinn, Deputy Chief of Naval Operations for 
Warfare Requirements and Programs testified before the Subcommittee on 
Fisheries Conservation, Wildlife and Oceans of the House Committee on 
Resources on 11 October 2001,

The Navy funds the majority of all marine mammal research in the 
world. The Navy provided approximately $7M in FY01 for research 
directly related to assessing and mitigating the effects of noise 
from Navy activities on the marine environment. The funding plan for 
FY02 calls for an increase of approximately $2M to $7M, contingent 
on final budget approval and recent events.

    Comment MOC24: The LOA should contain a condition that the ONR 
continue at current levels its research activities into the effects of 
noise on marine mammals. The LTM Program cannot be accepted as a 
substitute for performing the research to fill data gaps.
    Response: The Holder of the LOA for the SURTASS LFA sonar systems 
will be the CNO, or his duly appointed representative, not ONR. Under 
the MMPA, NMFS does not have jurisdiction to require a Federal 
component to commit to certain funding levels, especially one that is 
determined through the Congressional budget process. Applicants for a 
small take authorization are required through statements made by 
Congress when it implemented the small take program under the MMPA to 
conduct the appropriate research to address impacts and ways to 
mitigate those impacts. Provided the applicants undertake that 
research, they are considered to be in compliance with the MMPA. 
However, as noted previously, Navy funding for marine mammal research 
is expected to increase, not decrease, in the future. NMFS recommends 
those interested in marine mammal research being funded by ONR view its 
web site: http://www.onr.navy.mil/sci_tech/personnel/cnb_sci/ 
mammal_bio.htm
    Comment MOC25: The LTM Program is inadequate to fill data gaps.
    Response: It is not the purpose of the LTM Program to fill all of 
the data gaps, but to address those of the most immediate concern. NMFS 
is recommending that the Navy conduct the following research relative 
to LFA sonar over the first 5-year authorization period:
    1. Systematically observe SURTASS LFA sonar exercises for injured 
or disabled marine animals. Past correlations between military 
operations and the stranding of beaked whale, including the Bahamas 
event, call for closer observation of all sonar operations.
    2. Compare the effectiveness of the three forms of mitigation 
(visual, passive acoustic, HF/M3 sonar).
    3. Conduct research on the behavioral reactions of whales to sound 
levels that were not tested during the research phase, specifically 
between 155 dB and 180 dB. This should be done in a research format 
rather than in actual training operations.
    4. Conduct research on the responses of sperm and beaked whales to 
LF-sonar signals. These species are believed to be less sensitive to 
LF-sonar sounds than the species studied during the LFS-SRP. However, 
enough questions exist that these species should be studied during the 
five-year permit period.
    5. Conduct research on the habitat preferences of beaked whales, 
and plan future SURTASS LFA sonar exercises to avoid such areas. 
Avoidance is the most effective mitigation measure.
    6. Conduct passive acoustic monitoring using bottom mounted 
hydrophones before, during, and after SURTASS LFA sonar operations for 
the possible silencing of calls of large whales.
    7. Continue research with the HF/M3 mitigation sonar. This is the 
primary means of mitigation, and its efficacy under a range of 
conditions must continue to be demonstrated. Receiver-Operator-
Characteristic curves should be constructed if possible.
    8. To determine potential long term, cumulative effects from 
SURTASS LFA sonar, select a stock of marine mammals that is expected to 
be regularly exposed to SURTASS LFA sonar and monitor it for population 
changes throughout the 5-year period. Alternatively, look for long-term 
trends in the vocalizations of marine mammals that are exposed to 
SURTASS LFA signals (see number 6).
    Comment MOC26: A suitable monitoring and research plan/program 
should be required (provided, made public, and considered in 
rulemaking) before initial authorization is issued, and reauthorization 
should be based on a demonstration of suitable progress under the plan. 
NMFS should determine, and specify in the final regulation, the 
operational and other information that will be required to enable the 
best possible retrospective analyses if changes in demography of any 
potentially affected marine mammal populations are detected. Minimally, 
the Navy should maintain records and report dates, times, and locations 
of each exercise, including the number, duration of and times between 
transmissions, and all observations of marine mammals made incidentally 
as well as the product of the required monitoring.
    Response: The Navy provided its monitoring plan in its application 
under section 101(a)(5)(A) of the MMPA and in the Final EIS (Subchapter 
2.4). That plan was subject to public review and comment during the 
ANPR (64 FR 57026, October 22, 1999), and proposed rulemaking (66 FR 
15375, March 19, 2001) stages. Public comments on monitoring and 
research plans were addressed in the proposed rule and in this 
document.
    As noted in Secs. 216.189(a)(3) and (a)(4) of this document, NMFS 
will continue to make determinations on the adequacy of the mitigation, 
monitoring, and reporting prior to each annual renewal of an LOA. NMFS 
normally maintains the monitoring and reporting requirements in the 
LOA, not in the regulations, in order to allow flexibility in 
responding to monitoring and reporting concerns and/or opportunities. 
This flexibility would not be available under comment-and-response 
rulemaking because it could take up to a year to implement any 
modifications to the monitoring plan. NMFS notes however, that an LOA 
is as legally binding on a holder as the regulations. It should be 
noted also that this policy is not unique to the SURTASS LFA sonar, but 
is followed wherever NMFS believes it needs this flexibility. Elsewhere 
in this document, NMFS provides a detailed description of the required 
reporting under this authorization request.
    Comment MOC27: Because impacts between approximately 150 and 180 dB 
are arguably uncertain, monitoring marine mammal exposure to SPLs 
between 150 and 180 dB is not only

[[Page 46756]]

legally required but scientifically imperative. There is no requirement 
for this monitoring in the proposed rule.
    Response: Because it is not feasible to monitor marine mammal 
behavioral reactions to SURTASS LFA sonar signals from the LFA sonar 
vessel at the distances that would be expected for SPLs of 150-180 dB, 
NMFS did not consider this a practical requirement for monitoring under 
the proposed rule. However, in accordance with the findings of Swartz 
and Hofman (1991), the scientific value of obtaining this information 
is important for NMFS to ensure that its determination that the takings 
would have no more than a negligible impact on affected marine mammal 
stocks was correct. Therefore, NMFS has made this a key component of 
the recommended research under the LTM program (see number 3 in RTC 
MOC25) for the Navy to undertake over the next 5 years. NMFS encourages 
the Navy to conduct this research at its earliest opportunity.
    Comment MOC28: How will the Navy provide actual harassment and non-
serious injury estimates, verify estimates predicted from modeling, and 
verify its assumptions that no serious injury or deaths will occur 
between 120 and 180 dB? Because there is no pre-, during, or post-
transmission monitoring on marine mammals experiencing RLs less than 
180 dB, the Navy cannot assume that there will be no serious injury or 
deaths below 180 dB.
    Response: Please see RTC MOC22 regarding the possibility of injury 
below 180 dB. Visual, passive and active acoustic monitoring will 
provide information on take levels to a range of up to 3 nm (5.6 km) 
depending upon conditions. This will provide NMFS and the Navy with 
information on take levels to SPLs as low as approximately 173 dB. 
Information on takes by harassment at distances greater than 3 nm (5.6 
km) are not practical and, therefore, the Navy will conduct research to 
assess impacts, including injury. For example, in order to verify the 
Final EIS assumptions concerning potential impacts below 180 dB SPL, 
NMFS recommends that the Navy conduct research on the reactions of 
whales to sound levels that were not tested during the LFS SRP, 
specifically between 155 and 180 dB as part of its research under the 
LTM program. This follows the findings of Swartz and Hofman (1991) that 
determined that it is acceptable to substitute research on impacts to 
marine mammals in lieu of site-specific monitoring when site-specific 
monitoring is not feasible or practicable. However, until the results 
from this research are available, information discussed in detail in 
this document provides NMFS with sufficient information to determine 
that no injury to marine mammals is likely to occur at distances beyond 
the range of the tripartite monitoring.
    Cudahy and Ellison (2001) stated that the expected threshold for in 
vivo tissue damage for low frequency sound is on the order of 180 to 
190 dB and Richardson et al. (1995) speculated that for 10 elongated 
sonar pulses, the auditory damage risk criteria for marine mammals 
(based on human studies) might be 183 to 213 dB.
    Second, in order to avoid tissue damage at 180 dB, NMFS has 
incorporated a marine mammal buffer zone 1 km (0.54 nm) beyond the 
SURTASS LFA mitigation zone (180-dB sound field). This interim 
operational restriction requires the SURTASS LFA sonar to suspend 
transmissions immediately whenever a marine mammal is detected by the 
HF/M3 sonar. Depending upon the size of the animal, this may be as far 
as 2 km (1.1 nm) from the SURTASS LFA source. This should not be 
interpreted to mean that marine mammals are considered to be injured at 
that distance, only that this measure became practical for reducing 
potential impacts on marine mammals once the HF/M3 tests were conducted 
indicating its operational efficacy at these greater distances. In 
addition, NMFS is imposing an interim operational restriction on the 
frequency of the SURTASS LFA sonar sound to 330 Hz and below. This is 
based on statements made by Ketten (2001) before Congress on October 
11, 2001 (see RTC MIC15e). Both measures will ensure, to the greatest 
extent practicable, that marine mammals are not injured by the SURTASS 
LFA sonar signal. These protective measures will be retained until 
scientific documentation can be provided which indicates they can be 
modified while still providing sufficient protection for marine 
mammals.
    Comment MOC29: Is the LTM Program only to assess what occurs within 
the 180-dB zone, noting when an animal enters and the system is shut 
down? How will behavioral effects be monitored?
    Response: The LTM Program is made up of two parts. First is the 
necessary input data for NMFS-directed reports under the LOA, which has 
been elaborated upon in the Final EIS (Subchapter 2.4) and elsewhere in 
these RTCs. The second part involves long-term independent scientific 
research efforts on topics recommended by NMFS. The assessment of 
whether any taking of marine mammals occurred within the SURTASS LFA 
mitigation zone during SURTASS LFA operations will be based upon data 
from the monitoring mitigation (visual, passive acoustic, active 
acoustic). Data analysis from the LTM and post-operation acoustic 
modeling will provide estimates of any taking beyond the SURTASS LFA 
mitigation zone.
    Comment MOC30: Commenters suggested that the following elements 
should be included in the monitoring and reporting program:
    Comment MOC30a: Augment the proposed passive acoustic monitoring 
program to determine whether there are differences in the nature or 
frequency of marine mammal vocalizations following SURTASS LFS sonar 
transmissions that may be indicative of behavioral disruptions beyond 
the proposed 180-dB safety zone.
    Response: It is not practical from a technical (SURTASS is tuned to 
detect the signal characteristics of submarines, not marine mammals), 
logistical, or financial standpoint to conduct this work from the 
SURTASS LFA sonar vessel. However, it has been shown that this can be 
accomplished using the Navy's SOSUS seafloor hydrophone arrays. Thus, 
the Navy will consider this recommendation as part of their research 
program. There is good potential for partnering with NOAA's Pacific 
Marine Environmental Laboratory to address the basis of this comment in 
the northeastern Pacific during future SURTASS LFA operations.
    Comment MOC30b: Routinely examine observational data collected 
during SURTASS LFA sonar exercises to help identify additional marine 
mammal concentration areas that should be designated as OBIAs.
    Response: NMFS will review the reports to determine whether areas 
in which SURTASS LFA sonar exercises have numerous shutdowns due to 
marine mammal incursions into the monitoring zone would qualify as a 
future OBIA candidate. The public will be able to review the annual 
report for the same reason.
    Comment MOC30c: Design and conduct a series of direct experiments 
to document how representative species and age-sex classes of marine 
mammals respond to different types and levels of LF sounds.
    Response: While this recommendation is beyond the scope for 
required ship-board monitoring of the SURTASS LFA sonar because it must 
be conducted independently by scientists operating under a scientific 
research permit issued under section 104 of the MMPA, NMFS is 
recommending the Navy conduct research during this

[[Page 46757]]

authorization period on those species most likely to be impacted from 
SURTASS LFA sonar, such as sperm and beaked whales.
    Comment MOC30d: Undertake an analysis to determine the changes in 
the size, range, and productivity of potentially affected species and 
stocks that could be detected by the survey programs currently being 
conducted by NMFS, the Navy, MMS and others, and then take such steps 
as necessary to coordinate and augment the programs to provide the 
capability for detecting biologically significant changes in 
representative species and stocks.
    Response: At this time, this analysis cannot be conducted because 
NMFS is not aware of how to assess a cause-and-effect relationship for 
a short-term noise effect when population level effects to marine 
mammals from ship noise and collisions, fishery takes and increasing 
contaminant levels cannot be accurately determined. NMFS believes that 
as we gain new information from appropriate research we can determine 
cumulative impacts from all anthropogenic causes, not just one type of 
sound that is unlikely to be repeated again in the near term. For 
example, the impacts from anthropogenic noise from the several thousand 
vessels entering and leaving Los Angeles Harbor, Boston Harbor, or 
Honolulu Harbor annually should be incorporated into a cumulative 
impact assessment to determine if SURTASS LFA sonar sound is presumed 
to be cumulatively affecting marine mammals in those areas.
    Comment MOC30e: Maintain a running record of events (detections) 
occurring before, concurrent, and after LFA sonar deployment.
    Response: SURTASS LFA sonar monitoring will begin 30 minutes prior 
to start-up, continue between transmission pings, and continue for at 
least 15 minutes after completion of the SURTASS LFA sonar transmission 
exercise. During this time period all detections and behavioral 
observations by the tripartite monitoring program will be recorded.
    Comment MOC30f: Passive and active (HF and LF) acoustics should be 
recorded for later analysis; passive recordings can be analyzed outside 
the 180-dB contour for vocalizing animals at distances on the order of 
50 km (27 nm).
    Response: The passive and active sonar systems will monitor for 
marine mammals and make recordings. These classified recordings will be 
available for analysis by scientists with proper security clearances. 
These data must be requested by these scientists prior to an exercise. 
However, this will not supersede LOA reporting requirements.
    Comment MOC30g: The HF/M3 sonar recordings can be used to analyze 
animal movements relative to the LFA array.
    Response: To the extent possible, considering the mitigation 
measure to ensure that the HF/M3 sonar SPL is at the lowest level 
practicable at the tracked animal, this recommendation will be 
implemented.
    Comment MOC30h: The long-term monitoring plan should include 
monitoring and assessment of both annual assessments of the previous 
year's data, as well as long-term, retrospective analysis of cumulative 
SURTASS LFA sonar effects (such as population productivity, 
distribution, and stranding incident rates).
    Response: NMFS agrees that an analysis of the results of previous 
monitoring is needed whenever a SURTASS LFA sonar exercise takes place 
within an oceanic area that has been exposed to SURTASS LFA sonar 
signals within the period of these regulations. These analyses would 
include a review of stranding data for areas wherein SURTASS LFA sonar 
was operating at the time.
    However, since NMFS, using the best scientific information 
available, has determined that population level effects are unlikely 
since no marine mammals are expected to be injured or killed, and no 
marine mammals are likely to be subject to long-term exposures from 
SURTASS LFA sonar signals, changes in population productivity or 
distribution are unlikely to occur due to SURTASS LFA sonar operations. 
NMFS noted previously the scientific problem with assessing a 
population level cause-and-effect analysis for SURTASS LFA sonar 
without also accounting for lethal takings due to ship collisions, 
fishing mortality, and increasing anthropogenic contaminant levels and 
intentional harvesting. Therefore, NMFS will continue to monitor 
population level effects through its marine mammal status reviews 
required by section 117 of the MMPA. This formal review process would, 
if warranted, analyze the potential impacts from SURTASS LFA sonar and 
other sources of anthropogenic noise.
    Comment MOC30i: Possible cumulative effects beyond the requested 5-
year authorization should be considered in the development of the 
monitoring and reporting requirements and included as a condition of 
any authorization issued. Assessment of short- and long-term effects 
should be made.
    Response: NMFS agrees that the cumulative impacts of anthropogenic 
noise on marine mammals should be assessed, but questions whether the 
SURTASS LFA sonar LTM program (which is monitoring conducted from the 
SURTASS LFA vessel) would be capable of providing the necessary 
information to make those determinations. In one year, each of the two 
SURTASS LFA sonar ships, with each ship located in a different area, 
would make approximately six active operations totaling 108 days of 
active sonar operations or approximately 18 days/mission/year. Second, 
marine mammal breeding is seasonal, thereby further limiting the period 
when marine mammals could potentially be exposed during this critical 
period.
    To address cumulative impact, NMFS has recommended that the Navy 
select a marine mammal stock that is expected to be regularly exposed 
to SURTASS LFA sounds and monitor it for population changes throughout 
the 5-year period of these regulations, looking for long-term trends in 
vocalization patterns. NMFS would also like to work with interested 
scientists to design a research proposal (research monitoring that is 
not conducted during standard operations) that could address this 
concern in a manner that would be scientifically acceptable, humane to 
the affected marine mammals, and to determine the funding priority for 
this research in competition with the research proposed by NMFS 
(described previously).
    The LTM program, including research under the LTM, which has a 
budget of $1M for each of the 5 years, will be described in the LOA. 
Because of variable factors (such as locations of operations, times of 
year), priorities of research areas, coordination with other research 
projects, and funding, it is premature to determine exact research 
elements at this time.
    Comment MOC31: The LFA sonar should be used to monitor the position 
of baleen whales. This can be compared to the detections by the HF/M3 
sonar.
    Response: According to the Navy, the SURTASS LFA sonar is designed 
and acoustically tuned to detect and track submarines, not marine 
mammals. As the target strength of marine mammals is much less than 
that of a submarine, the ability to detect a whale is greatly 
diminished. In addition, the longer pulse lengths of SURTASS LFA 
signals mean there would be longer times when the receiver is blind due 
to the signal being transmitted. Also, as explained in the Final EIS, 
LF signals attenuate greatly in the near-surface zone, where many of 
the marine mammals usually

[[Page 46758]]

reside. Larger animals can be detected by the HF/M3 sonar at up to 2 km 
(1.1 nm), with probabilities of detection for most marine mammals above 
95 percent (Ellison and Stein, 2001) and can be tracked within the 1 km 
(0.54 nm) buffer zone and 180-dB SURTASS LFA mitigation zone, where 
SURTASS LFA transmissions would be required to be suspended if a marine 
mammal was detected. Therefore, the use of the SURTASS LFA array both 
to track baleen whales and as a comparative test for the accuracy of 
the HF/M3 sonar is not technically feasible. It is also not necessary 
because the HF/M3 system has already been successfully tested.
    Comment MOC32: The Navy should use independent or NMFS observers 
with appropriate security clearance on board SURTASS LFA sonar vessels.
    Response: Security clearance requirements for personnel onboard 
SURTASS LFA sonar vessels make this recommendation impractical. 
Considering the normally rapid turnover of marine mammal observers (as 
observed in the marine mammal/fishery observer program), the high cost 
to conduct security clearances, and the several months required for 
Department of Defense security clearances, NMFS believes that this 
recommendation is not practical as it is unlikely to be capable of 
operating efficiently. The alternative that has been accepted by NMFS 
for this action is for the Navy to hire one or more qualified marine 
mammal biologists, highly experienced in marine mammal observation 
techniques, to train appropriate Naval personnel, or Naval civilian 
personnel, for conducting these observations. The requirements for 
training and limitations on length of marine mammal watches will be 
contained in the LOAs and will be similar to LOA requirements for other 
activities. However, this does not preclude NMFS employees trained in 
marine mammal observations and holding proper security clearances from 
participating in cruises to assess the performance of the observer 
monitoring program.

Reporting Concerns (RPTC)

    Comment RPTC1: Data on marine mammals seen in and outside the 
proposed 180-dB safety zone and any overt responses to the sonar 
transmissions may provide valuable information validating or 
invalidating the assumptions upon which the proposed negligible effects 
determination is based. There is no apparent reason why such raw data 
should be classified or should not be provided to NMFS within a few 
days or weeks after conclusion of each LFA sonar training exercise 
conducted during the one-year periods of incidental taking 
authorizations.
    Response: NMFS agrees that more timely reporting requirements are 
needed to ensure that the incidental takings of marine mammals by 
SURTASS LFA sonar are within reasonable limits established by these 
regulations. As a result, NMFS has amended the regulations to require 
the Navy to submit information to NMFS on a quarterly basis with the 
report including all active-mode missions that have been completed 30 
days or more prior to the date of the deadline for the report. This is 
the standard period of time provided for all small take authorizations. 
However, this period of time is insufficient to allow the Navy to 
declassify information that might compromise national security; as a 
result the quarterly reports will be classified and the information 
will not be publically available until the annual report. The Navy 
estimates that there will be approximately 6 such exercises per vessel 
in a normal year. Therefore, NMFS will receive four quarterly 
(classified) reports annually from each of the two vessels. In the 
interim, NMFS will use these quarterly reports to monitor the SURTASS 
LFA sonar activity to ensure compliance with the terms and conditions 
of the LOA and regulations.
    A draft, unclassified, annual report will contain an analysis of 
impacts from the individual missions, which will not be possible under 
the time limitation governing quarterly reports. However, because an 
annual comprehensive analysis report must be submitted 90 days prior to 
expiration of an LOA, the number of missions being reported under the 
first year of these regulations will be limited to those that can be be 
analyzed within that time period.
    Comment RPTC2: Two commenters inquire whether the monitoring 
reports required by the LOA will be available to the public through 
publication in the Federal Register.
    Response: Within 30 days of receipt by NMFS, all annual reports 
under this action will be available to the public. Notice of 
availability will be published in the Federal Register. However, due to 
high costs for publication, NMFS does not plan to publish the annual 
reports themselves in the Federal Register.
    Comment RPTC3: Section 216.186 should be amended to require that 
the Navy provide the report required under the LOA to potentially 
affected states. Sharing this information may assist the states and 
others in the ongoing monitoring and assessment of impacts from the 
deployment of the proposed SURTASS LFA sonar.
    Response: See RPTC1 for response. NMFS does not believe that 
requiring the Navy to submit these reports to interested states is 
warranted since the Navy has met the Coastal Zone Management Act (CZMA) 
consistency requirements with respect to all coastal states (with the 
exception of California) that could be potentially affected by LFA (22 
states) and territories. However, states can make arrangements with the 
Navy or NMFS for annual reports for activities taking place in federal 
waters or an interested state's waters.

Marine Mammal Stranding Reports

    Comment RPTC4: The Navy states that it will coordinate with 
principal marine mammal stranding networks to correlate analysis of any 
whale strandings with SURTASS LFA sonar operations and with reports to 
NMFS. What would this coordination entail? Is this reporting in 
connection with the LTM Program that would be annual?
    Response: As mentioned previously, the LTM reporting requirement 
will be quarterly, as well as annually. NMFS believes that this more 
timely reporting is needed to ensure that the incidental takings of 
marine mammals by SURTASS LFA sonar are within the limits established 
by these regulations. In regard to coordinating the stranding network, 
the NMFS National Stranding Coordinator and the small take exemption 
program work closely with each other whenever a stranding occurs. 
Marine mammal strandings are required to be reported to the National 
Stranding Coordinator. NMFS makes every effort to determine the cause 
of strandings. If the cause of a stranding may be acoustical, part of 
this effort will be to determine the location of the SURTASS LFA sonar 
vessel in relation to the stranding event. If there is a potential 
relationship, NMFS will coordinate with the Navy to investigate the 
event. Because necropsies from stranding specimens take significant 
time to complete (if fresh tissues are obtained), any results from the 
investigation will be taken into consideration at the earliest 
opportunity. Summary reports on strandings are usually made available 
upon completion either through the NMFS' web site or in the MMPA Annual 
Report. If a stranding is acoustically related (such as the Bahamas 
beaked whale stranding), the results of the investigation are likely to 
be published as a NOAA Technical Memorandum.
    However, if a direct causal relationship between the stranding 
event and SURTASS LFA sonar is

[[Page 46759]]

determined, the LOA may be suspended, modified or revoked in compliance 
with the requirements of the MMPA, these regulations, and the terms and 
conditions of the LOA.
    Comment RPTC5: Reliance on stranding networks to detect impacts on 
pelagic animals will not work. It is likely that in the offshore 
environment LFA operations could cause multiple whale deaths, but this 
would not likely be observed as coastal strandings. The Navy cannot 
monitor marine mammals that receive serious injury, die, and sink.
    Response: As indicated throughout this document, serious injury or 
mortality is unlikely to occur given the high capability of the 
tripartite monitoring system to detect marine mammals prior to an 
animal incurring an injury. While NMFS does not expect stranding data 
to be an important resource for determining impacts to marine mammals 
from SURTASS LFA sonar, it is one source of information that NMFS will 
use in its analysis of impacts from SURTASS LFA sonar.
    Comment RPTC6: Following LFA exercises, real-time information 
should be provided for a period of some days to appropriate stranding 
coordinators, and the Navy should be responsible for coastline surveys 
for stranded and distressed marine mammals, especially in areas where 
networks are not well developed.
    Response: Considering the offshore nature of SURTASS LFA sonar and 
the evidence that it is highly unlikely that marine mammals will be 
injured by SURTASS LFA sonar, real-time data is neither warranted, nor 
practical. For these same reasons, NMFS believes that requiring the 
Navy to conduct shoreline surveys is not warranted. If a marine mammal 
stranding occurs that appears to be acoustically related, NMFS will 
coordinate information from the Navy, principally time and location of 
each SURTASS LFA sonar vessel, with stranding data from NMFS' stranding 
coordinators to determine whether a link might exist between the two 
events.
    Comment RPTC7: Protocols should be prepared for the eventuality 
that any marine mammal becomes injured.
    Response: The marine mammal reporting requirements will require the 
Navy to report all marine mammals located inside the 180-dB safety zone 
as an ``injury,'' recognizing that not all of these marine mammals will 
be injured. However, if a marine mammal shows acute behavioral 
reactions indicative of an injury, the LOA will require the Navy to 
follow its protocol for ship strikes and report the incident to NMFS as 
soon as possible. NMFS will review each incident to determine the 
necessary action. Additional protocols to assist injured marine mammals 
are neither warranted (because of the unlikely occurrence of an injury) 
nor practical (considering the distance from shore, the single-vessel 
nature of SURTASS LFA operations, the lack of veterinary experience in 
a typical crew, and high freeboard of the typical SURTASS LFA sonar 
vessel precluding easy access to a marine mammal).
    Comment RPTC8: Establish an extramural, independent board of 
scientists, regulators, representatives of environmental non-
governmental organization (NGOs) and citizen representatives to review 
monitoring data and relevant research and to make recommendations to 
NMFS as well as to the Navy for reducing the system's impacts.
    Response: As explained in more detail in RTC37 in the proposed 
rule, NMFS does not believe that a formal board is necessary for 
reviewing monitoring and research reports. Interested individuals could 
meet as NGOs and independently or jointly comment to NMFS, based on 
annual reports, or petition NMFS under the Administrative Procedure Act 
(APA) to amend regulations based on their interpretation of the 
reports.

Miscellaneous (Mitigation, Monitoring and Reporting) Concerns (MC)

    Comment MC1: What is the Navy's mitigation procedure when operating 
off beaches where humans swim?
    Response: Humans in the water are not at risk from SURTASS LFA 
sonar transmissions. The Navy sponsored research to study the potential 
effects of LF sound on humans in the water. Based on this research, in 
conjunction with guidelines developed from psychological aversion 
testing, the Navy concluded that LF sound levels at or below 145 dB 
would not have an adverse effect on recreational or commercial divers. 
See the Final EIS Subchapters 1.4.1 and 4.3.2.1 for additional details. 
As discussed in the Final EIS Subchapter 5.1.2, SURTASS LFA sonar 
operations would be constrained in the vicinity of known recreational 
and commercial dive sites to ensure that the sound field at such sites 
does not exceed 145 dB. Other than for very short periods of time, 
swimming and snorkeling occur in areas that extend from the surface to 
depths not greater than 2 m (6.5 ft). Applying acoustic theory and 
detailed measurements to these depths, there would be substantial sound 
transmission losses occurring in the top layer of water (about 1.8 m [6 
ft]) where swimmers would most likely be found. Sound fields in this 
layer of water would be about 20 dB less than the sound fields in 
adjacent deeper water. Because of this acoustic attenuation and the 
restriction that SURTASS LFA sound fields will not exceed 145 dB in 
known diving areas, participants in activities that may involve 
submersion below the ocean's surface, such as swimming, surfing, and 
snorkeling, would not be significantly impacted by exposure to LF 
sounds transmitted from the SURTASS LFA sonar. This topic was discussed 
in the Final EIS Subchapter 4.3.2.1 and Chapter 5.

MMPA Concerns

Scope
    Comment MMPAC1: One organization states that the Navy has failed to 
meet the legal standard of the MMPA, as determined in Kokechik 
Fishermen's Association v. Secretary of Commerce, 839 F.2d 795 (D.C. 
Circ. 1988). They note that the Court stated that the Secretary has no 
authority to disregard incidental takings of certain species or stocks 
without first determining whether or not the population of each species 
was the optimum sustainable population (OSP) level, even if the impact 
is negligible, before issuing a permit that authorizes the take of 
another species or stock. According to this commenter this meant that 
NMFS could not issue general permits in the absence of definitive 
findings that the take of all marine mammals expected to occur in a 
particular fishery would pass the ``will not disadvantage the species'' 
and ``consistency with MMPA policies'' tests of section 103 of the 
MMPA. The proposed issuance of an LOA for the SURTASS LFA system is a 
similar situation. Here NMFS is proposing to allow the incidental take 
of some species of known status and information at the same time as it 
would authorize the take of other species for which, due to a lack of 
information, it can not truly make a negligible impact finding. They 
oppose this action because they believe that it is contrary to both the 
court's findings and the MMPA requirements.
    Response: The decision in Kokechik Fishermen's Association v. 
Secretary of Commerce, 839 F.2d 795 (D.C. Circ. 1988), does not apply 
to this case because it is factually and legally distinguishable. The 
incidental take permit challenged in Kokechik was for commercial 
fishing operations, governed by section 101(a)(2) of the MMPA, whereas 
the incidental authorization that is the subject of this final rule is 
for an activity other than commercial fishing. As such, it is

[[Page 46760]]

governed by section 101(a)(5). Unlike incidental take permits for 
commercial fishing, incidental take permits for activities other than 
commercial fishing are expressly exempt from the requirements of 
section 103. (See Sec. 101(a)(5)(C)(ii).) The determinations required 
under section 101(a)(5)(A) of the MMPA are discussed in this document.
    Comment MMPAC2: One organization notes that section 101(a)(3)(A) of 
the MMPA requires the Secretary to make his decision ``with due regard 
to the distribution, abundance, breeding habits, and times and lines of 
migratory movements of such marine mammals.'' They state that the 
Navy's application specifies that ``no two individuals will react to 
SURTASS LFA sonar exposure in the same way'' indicating that regardless 
of any scientific research conducted it may detrimentally affect one 
mammal, but not another and thus will have at best unpredictable 
effects on cetacean populations.
    Response: The comment refers to the requirements of section 
101(a)(3)(A) governing waiver of the moratorium in section 101(a). 
Small take authorizations under section 101(a)(5) of the MMPA are not a 
``waiver''; therefore, section 101(a)(3)(A) is not applicable to this 
action. Section 101(a)(5)(A) sets forth the particular criteria and 
procedures that apply to the authorization of incidental takes of 
marine mammals pursuant to an otherwise lawful activity other than 
commercial fishing. See also Animal Protection Institute of America v. 
Mosbacher, 799 F. Supp. 173 (D.D.C. 1992), in which the court 
determined that the Secretary of Commerce, in issuing a permit under 
section 101(a)(1), was not required to follow the more elaborate 
administrative proceedings required for issuance of a waiver under 
section 101(a)(3)(A) of the MMPA.
    Second, the quoted statement from the Navy's application was taken 
out of context. The full text is:

    It is important to recall that risk varies with both level and 
duration. In terms of biological risk, it is important to note that 
individuals will vary in their pre-exposure hearing sensitivity, in 
their actual PTS responses, and in the severity of the consequent 
biological effects (survivorship and reproduction). No two 
individuals will react to SURTASS LFA sonar exposure in the same 
way. The risk continuum estimates that 95 percent of the marine 
mammals exposed to a single ping at 180 dB could suffer a risk of 
non-injurious harassment. Based on the above discussion, this is a 
conservative estimate.

Furthermore, the application did not imply that SURTASS LFA sonar 
exposure will have, at best, unpredictable effects on cetacean 
populations. What the application stated was that the risk continuum 
was developed to account for the variability of reactions among 
individuals and that the values utilized to determine significant 
modification to biologically important behavior were conservative.
    Finally, NMFS is charged by section 101(a)(5) of the MMPA to make 
the appropriate determinations based on whether impacts are negligible 
at the species and stock level, not at the level of the individual 
animal. This, NMFS has done.
    Comment MMPAC3: One organization notes that section 101(a)(3)(A) of 
the MMPA requires NMFS' decision ``in accord with sound principles of 
resource protection and conservation as provided in the purpose and 
policies of this Act.'' In that regard, the Navy application specifies 
that ``[t]he percentage of animals that pass unseen is difficult to 
determine * * *'' This is not in accord with sound principles of 
resource protection.
    Response: See RTC MMPAC 2. However, the quoted statement from the 
Navy application was taken out of context. The subject of discussion 
there was the limitation of a visual marine mammal monitoring system 
that applies to all maritime activities, from marine mammal population 
assessment surveys to implementing effective shutdown criteria for 
anthropogenic noise sources. It noted however, that because of the slow 
speed of the SURTASS LFA sonar vessel, the effective marine mammal 
survey strip width should be greater than possible for standard 
biological surveys allowing a greater percentage of animals to be seen 
than that of typical marine mammal assessment surveys. In that regard, 
the Navy has proposed, and NMFS has adopted, the tripartite monitoring 
system that will ensure, to the greatest extent practicable, that 
marine mammals will be detected prior to incurring an injury. No other 
maritime activity currently employs this level of mitigation.
    Comment MMPAC4: This organization notes that under section 
103(b)(1-4) of the MMPA, the Secretary is required to consider the 
effects harassment will have on the population levels, domestic and 
international treaty agreements, marine ecosystem health and the 
conservation of fishery resources. Also, under section 103(c)(2) of the 
MMPA, permit restrictions apply to the size, sex or age of the animal, 
and, section 104(b)(2)(A) requires that the issued permit specify the 
number and kind of animal. It is not possible to determine the size, 
sex, or age of the cetacean being harassed; thus making it impossible 
to determine the effect of LFA sonar on cetacean populations.
    Response: See RTC MMPAC 2. Authorizations, such as the subject of 
this final rule, for small takes of marine mammals incidental to 
otherwise lawful activities (other than commercial fishing) under 
section 101(a)(5)(A) are not subject to the requirements of section 103 
or 104 of the MMPA. See Sec. 101(a)(5)(C)(ii) of the MMPA.
    Even so, this action has been determined to be in compliance with 
all domestic laws and international treaties for which the United 
States is a signatory. For further information, please refer to Chapter 
6 and RTC 6-1.5 of the Navy's Final EIS. Since takings by SURTASS LFA 
sonar will not result in the death or serious injury of marine mammals, 
age, sex, and size parameters are not necessary for assessing impacts 
on populations; all segments of the population are assumed to be 
affected equally. These regulations, however, specify the number (by 
percentage) and kind (by species) of marine mammals that might 
potentially be affected.
    Comment MMPAC5: Commenters believe that, under the MMPA, NMFS must 
give more weight to the interests of marine mammals than the interests 
of the Navy. One commenter states that the precautionary principle and 
the conservative bias incorporated into the MMPA, which require the 
Federal government to give leeway to wildlife when the effects of a 
proposed action are unknown. The possible effects of LFA are unknown.
    Response: In their joint final rule to implement the 1986 
amendments to the MMPA and ESA to allow for small takes of depleted 
species of marine mammals (which includes endangered and threatened 
species) under section 101(a)(5) of the MMPA (54 FR 40338, September 
29, 1989), NMFS and the USFWS addressed how they would make negligible 
impact determinations under section 101(a)(5) where the potential 
impacts of an activity are conjectural, speculative, uncertain, or 
unlikely. Relying on statements in the Congressional Record, the two 
agencies explained that they would apply a balancing test that weighs 
the likelihood of occurrence against the severity of the potential 
impact. NMFS continues to believe that this approach properly 
implements Congressional intent and has followed this guidance in 
making its determinations under section 101(a)(5) of the MMPA in this 
document. The precautionary principle is addressed in RTC MMPAC8.
    Comment MMPAC6: LFA sonar is global in scope and impact. Therefore, 
it is illegal for NMFS to use the ``small

[[Page 46761]]

take'' exemption for a system of this size, potential damage, and 
geographic (global) scope and no rational interpretation of the MMPA 
supports the availability of a small take permit. The system ``self-
admittedly'' will cover 80 percent of the world's oceans when fully 
deployed.
    Response: The Navy has not stated that the SURTASS LFA system will 
cover 80 percent of the world's oceans when fully deployed. The total 
area that would be available for SURTASS LFA sonar to operate includes 
about 70-75 percent of the world's oceans. However, this in no way 
equates to affecting 70-75 percent of the world's ocean area. The 
current authorization is for only two SURTASS LFA sonar vessels--
normally one in the Atlantic Ocean/Mediterranean Sea and the other in 
the Pacific/Indian Ocean. Therefore, SURTASS LFA sonar sound will not 
simultaneously affect this entire portion of the world's ocean.
    The SPL that is capable of potentially causing injury to an animal 
is within approximately 1 km (0.54 nm) of the ship. For the purposes of 
analyses using the AIM and the risk continuum, there is a 50 percent 
risk of significant change in a biologically important behavior for a 
marine mammal exposed to 165 dB received level. The range from the 
SURTASS LFA sonar vessel for this received level, which could cause 
behavioral disruption but not injury, could extend to 25 to 65 km (13.5 
to 35.1 nm). The received level at the surface along any straight path 
away from the ship would not decline logarithmically over distance, as 
would be expected if the sound spread by spherical spreading alone. The 
reason is that, for CZ propagation, the sound moves in an undulating 
path with turning points near the surface and near the bottom. Turning 
points near the surface, termed caustics, occur approximately every 30 
nm. The received level at the surface would be high at the caustics but 
low in between them because most of the sound energy there would be 
found at great depth. While the SURTASS LFA sonar ships can operate in 
much of the world's oceans and their sound can be detected at several 
hundred miles using sophisticated listening gear, their potential to 
cause injury or affect behavior is limited to relatively close to the 
ship. Thus, the impact of SURTASS LFA sonar is not global in scope.
    Comment MMPAC7: One organization notes that NMFS has never issued a 
small take exemption, let alone proposed rules, for an activity that is 
so global in its impact, and so uncertain in its impact. Others 
criticized the drafting of one set of regulations for a global program 
as not being in compliance with the MMPA.
    Response: Provided the activity meets the requirements and criteria 
established by the MMPA, NMFS does not consider the fact that the Navy 
needs to be able to deploy the system for training, testing and routine 
military operations anywhere within the world's oceans (except for 
Arctic and Antarctic waters) should be the sole reason for denial of a 
small take authorization. Denial of an authorization is not warranted 
simply because an activity may be global in its area of operations, so 
long as the activity is confined to a specified geographic region at 
any one time. A contrary interpretation of the MMPA would require NMFS 
to deny future authorizations to other ``global'' activities, such as 
oil and gas seismic operations, commercial shipping, other military 
activities, oceanographic research, and future commercial supersonic 
transportation. All these activities have the potential to cause at 
least some form of behavioral harassment in marine mammals, and, 
similar to SURTASS LFA sonar (if there were more than one SURTASS LFA 
sonar ship at sea at the same time), have the potential to affect 
several geographic areas at the same time.
    Implementing up to 54 sets of regulations, one for each of the 
designated biogeographic regions (called ``provinces'' in this 
document), would be unduly costly, unnecessarily cumbersome and 
potentially lead to fragmentation. Instead, NMFS has made the 
regulations generic for operation of SURTASS LFA sonar, and the LOAs, 
which are effective under the generic regulations, specific, to the 
extent necessary, for the specified province covered. This approach 
will accommodate the Navy's requirement to operate SURTASS LFA sonar on 
a global basis during the 5-year period of authorization (but within a 
specified geographic region during any single exercise) while meeting 
the MMPA's requirements and allowing NMFS to conduct a broad-scale 
analysis of the overall program.

Harm/Injury/Harassment Concerns

    Comment MMPAC8: One organization states that since NMFS is moving 
to adopt the ``precautionary principle,'' the burden of proof is on the 
Navy to prove that LFA sonar is not harmful.
    Response: NMFS has adopted the precautionary approach for the 
management of living marine resources, not the precautionary principle 
(NMFS, 1999). NMFS believes that the precautionary approach is at the 
core of the MMPA because the MMPA prohibits the taking of marine 
mammals unless exempted or permitted. Moreover, because the MMPA also 
authorizes the taking of marine mammals under section 101(a)(5), 
provided certain conditions and requirements are met, NMFS applies the 
precautionary approach through a careful analysis of impacts and 
implementation of measures that will reduce impacts to marine mammals 
to the lowest level practicable. As described in this document, NMFS 
believes that it has applied the precautionary approach to the greatest 
extent possible for this action through a requirement for a fully 
effective monitoring and mitigation program that will protect marine 
mammals to the greatest extent practicable. These mitigation and 
monitoring programs are discussed elsewhere in this document. In 
addition, the Navy met its obligation to perform reasonable research 
into the potential for SURTASS LFA sonar to affect marine animals 
through the LFS SRP and the diver studies. As required by section 
101(a)(5) of the MMPA, the Navy has provided documentation that SURTASS 
LFA sonar will not have more than a negligible impact on affected 
marine mammal species and stocks. NMFS believes that the information 
provided by the Navy is the best scientific information currently 
available. Where certain information is not complete, NMFS has added 
additional safeguards to protect marine mammals and required additional 
research on marine mammals for the Navy to conduct; this is consistent 
with the precautionary approach. New research will include research on 
behavioral reactions between 155 and 180 dB, response of sperm and 
beaked whales to LFA signals; and passive acoustic monitoring on whale-
call silencing. For additional information see the Final EIS Subchapter 
1.4 and RTC MOC25 in this document.
    Finally, it should be recognized that the Navy does not have the 
burden to prove that LFA is not harmful. Its burden is to establish 
that the activity meets the requirements of section 101(a)(5)(A) of the 
MMPA, that is, negligible impact is the standard, not ``no harm.'' It 
is NMFS position that the Navy has met this burden, and that is why 
NMFS issued these regulations for the small take authorization.
    Comment MMPAC9: One commenter states that removing TTS from Level A 
harassment means that it is also removed from consideration of 
``harm.''
    Response: Under the MMPA, taking means to harass, hunt, capture, or 
kill, or attempt to harass, hunt, capture or

[[Page 46762]]

kill any marine mammal. ``Harm'' is in the definition of take under the 
ESA, but not in the ``take'' definition under the MMPA. ``Harm'' has 
been used by the Navy in its SURTASS LFA sonar NEPA documents, and 
elsewhere, in part because of its responsibilities under section 7 of 
the ESA. TTS is a taking under the definition of harassment, defined 
under the MMPA as Level B harassment, as explained elsewhere in this 
document. However, the Navy throughout its documents, has 
conservatively considered TTS to be ``harm,'' thereby making the 
commenter's statement inaccurate.
    Comment MMPAC10: One organization notes that NMFS states that its 
scientists and other scientists are in general agreement that TTS is 
not an injury (i.e., Level A harassment) and that only PTS is 
considered injury. This assertion directly conflicts with the National 
Research Council's (NRC) recommendation that ``The definition of Level 
A acoustic harassment should be related to the likelihood that a sound 
will produce temporary threshold shift (TTS), as well as to the 
magnitude of the TTS'' (NRC, 2000). Because scientists have noted that 
a range of only 15 to 20 dB exists between the onset of TTS and the 
onset of PTS (66 FR 15386), NMFS should both modify the definition of 
Level A acoustic harassment to include TTS and reduce the intensity of 
the sound field to something less than 180 dB.
    Response: The NRC (2000) also stated in the same paragraph as the 
above quote, ``Animals that experience only low levels of TTS are not 
going to be injured, suggesting TTS as a conservative standard for 
prevention of injury.'' This action conforms with this statement by 
establishing a safety zone at an SPL lower than where TTS would be 
anticipated to occur.
    Without commenters providing scientific data to support the 
argument that TTS is an injury, NMFS' determination, which is supported 
by research, provided in response to similar concerns for taking marine 
mammals incidental to the USS WINSTON S. CHURCHILL (66 FR 22450, May 4, 
2001), and the North Pacific Acoustic Laboratory (NPAL) (66 FR 43442, 
August 17, 2001) remain valid for this action as it is the best science 
available. Reviewers interested in NMFS' response to this concern 
should review those documents, in particular RTC MMIC4 and MMPAC5 in 
the cited NPAL document. In the latter document, NMFS stated that it is 
precautionary to define the onset of PTS for marine mammals to be 20 dB 
of TTS. This should not be interpreted to mean that the onset of PTS 
results when you add 20 dB to the dB level found to cause the onset of 
TTS in an animal, but instead means that the onset of PTS is the sound 
exposure level (SEL), in dB, that would cause 20 dB of TTS.
    Comment MMPAC11: Will NMFS confirm that this rule would establish 
Level A harassment at the theoretical onset of PTS, which for lack of 
more data might be construed to be 10-15 dB above 192 dB in bottlenose 
dolphins and belugas, thus Level A would not be considered before RL of 
207 dB?
    Response: At 192 dB, Schlundt et al. (2000) found about 6 dB of 
TTS, the lowest measurable level for TTS. However, the 15-20 dB (not 
10-15 dB) difference, mentioned in the proposed rulemaking document, 
refers to the difference between the SELs that cause the slightest TTS 
and the onset of PTS. As explained in more detail in RTC PRC6 in the 
NPAL final rule (66 FR 43442, August 17, 2001) and in RTC 29 in the 
final rulemaking document for the USS WINSTON S. CHURCHILL (66 FR 
22450, May 4, 2001), experiments on chinchillas have shown that this 
species experiences full recovery from up to 40 dB of TTS (Ahroon et 
al., 1996) from impulsive noise. However, in the absence of comparable 
data for marine mammals, NMFS believes it is precautionary to define 
the onset of PTS for marine mammals to be 20 dB of TTS. This 20 dB 
level would be considered conservative for chinchillas, and would 
likely be conservative for marine mammals. For several reasons, 
scientists have been reluctant to conduct research on captive marine 
mammals to determine the SEL that would cause PTS.
    Comment MMPAC12: A Federal agency notes that the Navy has defined 
``harm'' as the onset of TTS, and that this implies ``injury,'' while 
NMFS believes that TTS is not an injury, but rather an impairment, and 
therefore constitutes only Level B harassment. This distinction seems 
ill-founded.
    Response: The biological basis for considering TTS as only Level B 
harassment has been discussed or referenced previously in this 
document. The U.S. Navy released the Draft EIS to the public on July 
30, 1999 (64 FR 41420) and NMFS published an ANPR on October 22, 1999 
(64 FR 57026). When the Navy was writing the Draft EIS, NMFS considered 
TTS to be both Level A and Level B harassment (63 FR 66069, December 1, 
1998). It was not until the period between the release of the Navy's 
Draft EIS for the shock trial of the USS WINSTON S. CHURCHILL (64 FR 
69267, December 10, 1999) and NMFS' independent evaluation of the 
Navy's TTS proposal as noted in the CHURCHILL proposed rule on December 
12, 2000 (65 FR 77546), that the issue came to general attention. 
During that time, the issue of TTS being categorized as only Level B 
harassment was still a proposal by NMFS and open to public comment 
until January 26, 2001. A final decision on TTS being limited to Level 
B harassment was not made by NMFS until May 4, 2001 (66 FR 22450). 
While the Navy was aware of the scientific debate, because the comment 
period on the Navy's Draft EIS ended on October 28, 1999, and no 
comments were submitted that directly addressed this issue (comments 
were focused on the validity of terms such as non-injurious harassment 
and non-serious injury), the Navy's ability to amend the Final EIS on 
this issue was limited. Additionally, the Navy's Final EIS was released 
in January, 2001, well prior to NMFS' final determination that TTS was 
limited to Level B harassment on May 4, 2001 (66 FR 22450). As a 
result, the Navy retained the more conservative approach and considers 
TTS to be Level A harassment. Therefore, while TTS is not an injury 
biologically, NMFS accepts the Navy's conservative determination to 
consider TTS as a potential injury for this action and will consider 
all incidental harassment takings that occur within the 180-dB 
isopleth, under this action, as Level A harassment.
    Comment MMPAC13: A number of commenters believe that NMFS has 
redefined the definition of ``harassment.'' Some are concerned that 
NMFS' definition of Level B harassment as an action that causes a 
significant disturbance in a biologically important behavior is not 
consistent with the MMPA, which states that Level B is the ``potential 
to disturb marine mammals or marine mammals stocks in the wild by 
causing disruption of behavioral patterns, including, but not limited 
to, migration, breathing, nursing, breeding, feeding, or sheltering.'' 
Other commenters are concerned that NMFS and the Navy underestimate the 
potential for behavioral impacts by narrowing the definition of what 
behavioral impact is. This new definition narrows the Congressional 
harassment definition from ``disruption'' to an unclearly defined 
``significant disturbance'' and ``behavioral patterns'' to unspecified 
group of behaviors.
    Response: First, for those species of marine mammals capable of 
hearing sounds from the SURTASS LFA sonar signal, simply hearing the 
acoustic signal without reacting to that noise is not considered by 
NMFS to be a

[[Page 46763]]

disruption of biologically important behavior. Second, as NMFS has 
noted previously (66 FR 43442, August 17, 2001; 66 FR 22450, May 4, 
2001; and 66 FR 9291, February 7, 2001), for small take authorizations, 
NMFS considers a Level B harassment taking to have occurred if the 
marine mammal has a significant behavioral response in a biologically 
important activity. Under an interpretation of ``harassment,'' as broad 
as some have suggested the MMPA requires, an incidental taking could be 
presumed to occur for even a single pinniped lifting or turning its 
head to look at a passing pedestrian, offshore watercraft, aircraft or 
dolphins riding a boat's bow wave. For those takings that are clearly 
incidental to an otherwise lawful activity, NMFS believes that such a 
strict interpretation was not intended by Congress, when it amended the 
MMPA in 1994 and added a definition for harassment.
    The term ``Level B harassment'' is defined in the MMPA as ``any act 
of pursuit, torment, or annoyance which * * * has the potential to 
disturb a marine mammal or marine mammal stock in the wild by causing 
disruption of behavioral patterns, including, but not limited to, 
migration, breathing, nursing, breeding, feeding, or sheltering.'' In 
this context, a behavioral pattern means a composite of biological 
traits characteristic of an individual or of a species. Therefore, to 
disrupt a behavioral pattern, the activity would need to disrupt an 
animal's normal pattern of biological traits or behavior, not just 
cause a momentary reaction on the part of a marine mammal. Furthermore, 
if the only reaction to an activity on the part of the marine mammal is 
within the normal repertoire of actions that are required to carry out 
the behavioral pattern for that species of marine mammal, NMFS 
considers the activity not to have caused an incidental disruption of 
the behavioral pattern, provided the animal's reaction is not otherwise 
significant enough to be considered disruptive due to length or 
severity. For example, if there is a short-term change in breathing 
rates or a somewhat shortened or lengthened diving sequence that is 
within the animal's normal range of breathing patterns and diving 
cycles but there is not a disruption to the animal's overall behavioral 
pattern (i.e., the changes are not biologically significant), then 
these responses do not rise to a level requiring a small take 
authorization or, if under a small take authorization, does not 
constitute an incidental take. Similarly, bow-riding dolphins are 
within their normal behavioral patterns and, therefore, are not being 
``taken'' for purposes of the MMPA.
    Examples of significantly disrupted behavior would be where 
pinnipeds flee a haulout beach or rookery en masse due to a 
disturbance, or animals either leave an area of habitation for a period 
of time, or diverge significantly from their migratory path to avoid 
either an acoustic or a visual interference. Non-significant behavioral 
responses would be when only a few pinnipeds leave the haulout or mill-
about, but many pinnipeds are alert to the disruption; or when marine 
mammals make minor course corrections that are not discernable either 
to observers or directional plotting, and which require statistical 
manipulation in order to determine that a course correction has taken 
place. For the action under consideration in this document, it is the 
behavioral response of marine mammals to the SURTASS LFA sonar signal 
(such as an overt avoidance behavior, a more than momentary 
modification or disruption in communication or feeding patterns through 
masking, or behavioral response due to an impairment to hearing) that 
is the biological response that is considered to be a taking by Level B 
harassment.
    Comment MMPAC14: Commenters believe that NMFS' calculation of 
species ``take'' is based on a fundamental misinterpretation of law.
    Response: See RTC MMPAC 13. The risk continuum developed by the 
Navy for this activity makes the distinction of whether the response is 
behaviorally significant, and whether the animal is involved in a 
biologically important activity at the time, through implementation of 
the ``B,'' ``A,'' and ``K'' parameters, which is based on the best 
science currently available (please refer to the Navy Final EIS 
(Subchapters 4.2.3.2 and 4.2.5) for definitions and application). 
Therefore, the estimates of Level B harassment found in Table 4.2-10 of 
the Final EIS and Table 4-10 of the Navy's application provides the 
best scientific estimate for Level B harassment takings in accordance 
with the definition of ``harassment.''
    Comment MMPAC15: A Federal agency interprets the proposed rule as 
establishing TTS as the lower level for harassment, and thus, take. 
This interpretation could undermine meaningful consideration of 
behavioral effects that occur at sound levels below those that may 
result in TTS.
    Response: The preamble to the proposed rule makes clear that NMFS 
considers all significant behavioral reactions, not just TTS-related 
reactions by marine mammals that result from SURTASS LFA sonar, to be a 
Level B harassment taking under these regulations.
    Comment MMPAC16: LFS SRP information conducted on humpback whales 
demonstrates that LFA sonar operations have the potential to disturb 
the behavior of humpback whales, and, therefore, meet the MMPA's 
definition of Level B harassment. Navy modeling also demonstrated the 
potential for level B harassment.
    Response: Phase III of the LFS SRP did not demonstrate any 
significant changes to biologically important humpback whale behavior 
(see TR1). Also, see RTC MMPAC13 on NMFS' response regarding Level B 
harassment. However, because there is a potential for incidental 
harassment, the Navy is seeking authorization for the incidental taking 
of marine mammals under the MMPA.
    Comment MMPAC17: One organization states that any conclusion based 
on there being no takings that are significant below RLs of 180 dB may 
be misleading. LFA sonar should be disallowed until this can be proven. 
Another commenter states that scientific evidence suggests that a level 
of about 120 dB is a reasonable assumption for serious impact. However, 
this would include a very large area and is not ``relatively small.''
    Response: There is no requirement in section 101(a)(5)(A) of the 
MMPA that the area be small, only that there be a specified geographic 
region.
    Both the proposed rule document and the Navy's Final EIS address 
the potential for significant change in biologically important behavior 
below 180 dB RL. While there have been several studies that have 
demonstrated responses of marine mammals to exposure levels ranging 
from detection threshold to 120 dB (See the Final EIS at 4.2-26 and 
4.2-27), NMFS is unaware of any scientific research that suggests that 
a level of 120 dB is a reasonable assumption for ``serious impact.''
    Comment MMPAC18: The Navy should consider SPL under 150 dB as a 
more appropriate standard to ensure that the LFA sonar will have a 
negligible impact on marine mammals and their stocks. This is supported 
by Tyack (1998) and Tyack and Clark (1998).
    Response: It is not clear what was meant by ``appropriate 
standard.'' However, imposing mitigation to the 150 dB isopleth is 
neither practicable nor necessary. Based on the LFS SRP, at 150 dB only 
2.5 percent of the marine mammals exposed to the LFA sonar sound would 
likely show a significant behavioral response. Effective mitigation to 
this distance would have eliminated the need for a small take

[[Page 46764]]

authorization. Since that is not possible, the Navy applied for a small 
take authorization, and, to reduce impacts to the lowest level 
practicable, designed the HF/M3 sonar to protect marine mammals from 
injury (i.e., down to the 180 dB isopleth). Based on the risk 
continuum, NMFS considers a Level B harassment taking will occur at 
levels between 119 dB and 180 dB and takes that number into 
consideration in making the negligible impact determinations later in 
this document.

Small Numbers

    Comment MMPAC19: Several commenters believe that fifty percent of 
the animals within the 165 dB RL zone will be ``biologically 
affected.'' This hardly constitutes a ``small take,'' and could result 
in large numbers of marine mammals being harassed or non-seriously 
injured.
    Response: The risk continuum states that at a ``single ping 
equivalent'' SPL of 165 dB the risk of a significant change in a 
biologically important behavior is 50 percent. Thus, for each animal 
that is exposed to an SPL of 165 dB, it has a 50-percent chance of 
having a significant change in a biologically important behavior. This 
is fully explained in Subchapters 4.2.3 through 4.2.5 of the Navy's 
Final EIS.
    This does not mean that 50 percent of the total marine mammal 
population or stock is potentially affected biologically under the 
calculations for the risk continuum, but only that portion of the 
population that is within the acoustic ray path of SURTASS LFA sonar at 
those times and locations where the SURTASS LFA sonar ray path 
intersects the portion of the water column wherein marine mammals may 
reside. Refer to the discussion on acoustic ducting earlier in this 
document and to either Figure 1 of this document or Figure B-3 of the 
Navy's Final EIS for a diagram of the ray path expected in 
approximately 80 percent of SURTASS LFA sonar transmissions.
    Comment MMPAC20: One Federal agency believes that NMFS has melded 
the small numbers criterion and the negligible impact criterion into a 
single criterion, contrary to Congressional intent. It states that NMFS 
needs to make separate findings that only small numbers of marine 
mammals will be taken incidental to the activity in question and that 
the effects will be negligible.
    Response: The regulations at 50 CFR 216.103 define ``small 
numbers'' to mean ``a portion of a marine mammal species or stock whose 
taking would have a negligible impact on that species or stock.'' That 
definition was first proposed on March 3, 1982 (47 FR 9027). During the 
public comment period on the proposed definition, NMFS received and 
considered a similar comment. NMFS' response (47 FR 21248, May 18, 
1982) was as follows:

    In discussing the term ``small numbers,'' the House Report 
recognizes ``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. The Committee intends that 
these provisions be available for persons whose taking of marine 
mammals is infrequent, unavoidable, or accidental.'' The NMFS does 
not believe that the term can be expressed as an absolute number or 
percentage or be defined in any absolute terms. However, NMFS feels 
that by defining ``small numbers'' to mean a portion of a marine 
mammal species or stock whose taking would have a negligible impact, 
an upper limit is placed on the term, and the phrase effectively 
implements the Congressional intent underlining the new section 
101(a)(5) of the MMPA.

NMFS continues to believe that its regulatory definition is consistent 
with Congressional intent.
    Comment MMPAC21: Two commenters recommend that NMFS revise its 
regulatory definition of ``small numbers'' to reflect the language of, 
and the intent behind, the statutory provision.
    Response: See RTC MMPAC20. NMFS invites interested persons to 
submit any information regarding an alternative workable interpretation 
of the term ``small numbers'' for consideration. This may also be in 
conjunction with a petition for rulemaking.
    Comment MMPAC22a: Several commenters believe that the takings do 
not meet the MMPA's definition of ``small''; and several noted that the 
abundance of marine mammals within identified species and stocks that 
may be ``taken'' by LFA exceeds any reasonable interpretation of the 
statute's ``small number'' provision. Takes are not ``negligible.'' For 
example, during each year of operation and with all of the mitigation 
and monitoring that the Navy has proposed, more than 16 percent of the 
blue whales in the eastern North Atlantic, more than 10 percent of the 
beaked whales in the Mediterranean Sea, and more than 12 percent of the 
elephant seals in the eastern North Pacific will be affected.
    Response: The commenters have focused on three of the four highest 
modeled levels of take and ignored statements that the AIM accounted 
for the ``worst case'' analysis, not the situation that will most 
likely take place by scheduling SURTASS LFA sonar missions to avoid 
areas and times of increased marine mammal abundance. Also, the 
commenters have misinterpreted the modeling in the Final EIS, and thus 
overstate the effects.
    The annual percentages shown in the Final EIS Tables 4.2-11 and 
4.2-12 were provided as example scenarios if the Navy were to operate 
12 annual operations in the sites listed in row two of the tables. 
These locations were randomly selected; other site selections can be 
made by readers by taking a similar number (12) of modeled sites from 
table 4.2-10. This may result in higher or lower estimates depending 
upon whether the Navy will operate off the west coast of North America 
or, for example, the North Korea Strait. Thus, using the example from 
the commenter, 12.4 percent of the elephant seals will be affected only 
if SURTASS LFA sonar operated in both offshore central California for 
one mission (10.76-percent impact) and offshore Washington (1.65 
percent impact) on another mission. If one mission operated offshore 
central California (10.76 percent) while a later mission operated 
offshore San Nicolas Island (7.90 percent impacted), 18.6 percent of 
the northern elephant seals would be impacted. However, this scenario 
would occur only if both missions took place during the two relatively 
short periods that northern elephant seals are concentrated in 
California waters for either molting or breeding. Most of the time much 
smaller percentages would be affected as the northern elephant seal is 
widely scattered across the North Pacific Ocean during the remainder of 
the year.
    Second, the ``acoustic modeling sites'' used in the AIM were chosen 
to represent conditions that would model the highest potential for 
effects from the use of SURTASS LFA sonar (See Final EIS Subchapter 
4.2.1). These ``worst case scenarios'' included areas close to land 
(where biological densities are higher and where the Navy would not be 
authorized to take marine mammals at SPLs greater than 180 dB), best 
sound propagation conditions for the area (which would not always 
occur), and season of highest marine mammal density (areas the Navy 
would routinely avoid because of the potential for excessive 
shutdowns). Moreover, because the Navy will operate no more than two 
SURTASS LFA sonar vessels during the next five-year period under this 
authorization, the percentages of marine mammal stocks depicted as 
examples in Table 4.2-11 and 4.2-12 of the Final EIS are overestimates 
since they provide an example of take estimates for a hypothetical 12 
missions per ocean area, not the now-projected 6 missions per vessel. 
Given that it is

[[Page 46765]]

more likely that SURTASS LFA sonar missions will occur in the open 
ocean, and that the Navy will rerun AIM when planning missions for new 
or different areas to avoid certain areas during biologically sensitive 
seasons, NMFS believes that the estimates of taking by harassment 
incidental to SURTASS LFA sonar provided in the Final EIS are 
significantly higher than the more realistic 1 to 2 percent (or less) 
of affected stocks during a single 20-day mission. The negligible 
impact determination is discussed in later comments.
    Comment MMPAC22b: One organization states that although abundance 
data has not been provided, the magnitude of the numbers involved in 
such percentages can be grasped considering that there are 
approximately 40,000 elephant seals in the NMFS' Pacific region, a 
small sliver of the total area designated here as the ``eastern North 
Pacific.'' Add to this number the elephant seal numbers projected for 
each of the other areas, add these to the aggregate numbers for every 
other marine mammal species, multiply by five (for the number of years 
of operation authorized by NMFS' rule), and one has the total number of 
marine mammals that the Navy believes are potentially affected by LFA 
deployment. Since each animal may be taken a number of times, the 
number of takes would presumably be even higher.
    Response: Abundance data for marine mammals, used in the AIM, was 
provided by the Navy in Table 4.2-4 of the Final EIS. Also, the 
commenter has misinterpreted the exercise conducted in that part of the 
Navy's Final EIS and also the definition of ``Eastern North Pacific'' 
in Table 4.2-11, thereby exaggerating the impacts. Furthermore, the 
Eastern North Pacific is not a ``small sliver of the Pacific region 
designated by NMFS,'' but instead represents the entire Eastern North 
Pacific Ocean and encompasses the entire geographic region inhabited by 
northern elephant seals. This is apparent by noting that the modeled 
sites randomly selected for this example (as explained in the Final 
EIS) were: (1) North Kauai, (2) offshore Washington, (3) Gulf of 
Alaska, and (4) offshore California. Combining the offshore California 
(10.76 percent of elephant seals) and offshore Washington (1.65 percent 
of the elephant seals) site models indicates that 12.4 percent (10.76 + 
1.65 percent) of the northern elephant seal population might be 
harassed, if the Navy conducted two missions in the Eastern North 
Pacific during the period of time when elephant seals are in abundance 
in offshore California and in Washington waters. Therefore, only if a 
SURTASS LFA sonar mission took place offshore California when elephant 
seals were concentrated in that area would 10.76 percent of that 
portion of the elephant seal population inhabiting that area be subject 
to a significant behavioral response. At other times, impacts would be 
limited to lower levels such as 1 to 2 percent (as noted for offshore 
Washington).
    While it is proper to add the aggregate of other species to the 
total taking expected, a proper analysis would need to take the 
aggregate for the normal maximum of six missions per vessel per year. 
Table 4.2-11 and 4.2-12 have provided representative examples, but for 
12 missions, not six, in each ocean basin.
    Finally, as explained several times in the Navy's Final EIS, the 
AIM calculates for the probability of animals receiving multiple pings. 
Therefore, these are not additive to the results found in Tables 4.2-11 
and 4.2-12 as the commenter suggests.
    Comment MMPAC23: A Federal agency recommends that NMFS estimate the 
number of marine mammals that potentially could be taken in the course 
of the proposed 5-year authorization and provide its rationale for 
concluding that this constitutes a ``small number.'' Another commenter 
asks what levels NMFS is using to define ``small take.'' They note that 
on page 15387 the preamble to the proposed rule (66 FR 15375, March 19, 
2001) states, ``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 * * .'' Define ``small percentage'' 
and the rationale for considering the Final EIS results to constitute 
``small numbers.''
    Response: The requirement under the MMPA is to determine that the 
activity is resulting in the take of ``small numbers'' of marine 
mammals; there is no requirement to define ``small take.'' See RTC 
MMPAC20 regarding how NMFS applies its definition of ``small numbers'' 
in 50 CFR Sec. 216.103 under section 101(a)(5)(A) of the MMPA.
    The AIM inputs for each species were provided in Table 4.2-4 of the 
Navy Final EIS and Table 4-4 of the Navy application. These tables 
provide an estimate of the stock size for each species group and the 
size of the seasonally resident marine mammals near each AIM site that 
was used in the modeling. Modeling by the AIM then provides estimates 
of the percentage of the portion of the marine mammal population(s) 
that might sustain a biologically significant response to the SURTASS 
LFA sonar signal. These percentages are provided in Table 4.2-10 in the 
Final EIS and Table 4-10 of the application and used by NMFS to 
estimate incidental harassment levels.
    While NMFS presently does not know which areas the Navy plans to 
conduct its missions in the upcoming year, the Navy will be responsible 
for incorporating this type of analysis for each biogeographic province 
in which it is planning to conduct missions in order to estimate Level 
B harassment percentages. This will be done by the Navy in each annual 
mission intention letter the Navy submits to NMFS using AIM.

Negligible Impact

    Comment MMPAC24: Because of lack of information, the Navy cannot 
prove ``no impact'' from LFA.
    Response: The Final EIS and the Navy's application do not state 
there would be no impact. If there was no impact, an LOA for the 
incidental taking of marine mammals would not be required.
    Comment MMPAC25: The Navy's request for a ``small take'' 
authorization is based on their conclusion that below 180 dB the 
proposed action will have a negligible effect on the survival and 
productivity of marine mammals (that is, have no biologically 
significant effect).
    Response: That is correct. In the Final EIS at ES-25, the Navy 
states,

In summary, under Alternative 1, the potential impact on any stock 
of marine mammals from injury is considered negligible, and the 
effect on the stock of any marine mammal from significant change in 
a biologically important behavior is considered minimal. However, 
because there is some potential for incidental takes, the Navy is 
requesting a Letter of Authorization (LOA) from NMFS for the taking 
of marine mammals incidental to the employment of SURTASS LFA sonar 
during training, testing and routine military operations under the 
Marine Mammal Protection Act (MMPA), and is consulting with NMFS 
under Section 7 of the Endangered Species Act (ESA).

    Comment MMPAC26: A number of commenters believe that the impact of 
takings on the species or stocks of marine mammals does not meet the 
MMPA's definition of ``negligible.''
    Response: In order to allow a taking under section 101(a)(5) of the 
MMPA, NMFS must find that the total taking by the activity will have a 
negligible impact on the species or stock. The Navy, as the party 
seeking an authorization under this section, has the burden to 
demonstrate, through the best scientific information available, that 
only a negligible impact is reasonably likely to occur. This, NMFS 
believes,

[[Page 46766]]

the Navy, has met, in part, through the LFS SRP, which is discussed 
elsewhere in this document.
    NMFS defines ``negligible impact'' as the impact resulting from the 
specified activity that cannot reasonably be expected to, and is not 
reasonably likely to, adversely affect the species or stock(s) through 
effects on annual rates of recruitment or survival (50 CFR 216.103). 
This finding is made in reference to the marine mammal species or stock 
(as defined in section 3(11) of the MMPA), and not with reference to 
the effects on individual animals.
    If mitigating measures would render the impacts of a specified 
activity negligible, when it might not otherwise satisfy that 
requirement, NMFS may make a negligible impact finding subject to such 
mitigating measures being successfully implemented (53 FR 8473, March 
15, 1988; 54 FR 40338, September 29, 1989).
    The analysis of any adverse effects to recruitment or survival must 
be conducted within the framework of the management goal of the MMPA, 
(i.e., the maintenance or attainment of an OSP level for each 
population stock of marine mammals (see section 2(2) and 2(6) of the 
MMPA and 53 FR 8473, March 15, 1988). As a result, since 1989 (54 FR 
40338, September 29, 1989), NMFS has, with later minor modification, 
applied the definition of ``negligible impact'' in the following 
manner: if a request under section 101(a)(5) of the MMPA involves 
potential impacts to a ``depleted'' population, then a determination of 
negligible impact can be made only if the permitted activity is not 
likely to significantly reduce the increase of that population or 
prevent it from ultimately achieving its OSP. On the other hand, if a 
nondepleted population is involved, then a determination of negligible 
impact can be made only if the permitted activity is not likely to 
reduce that population below its OSP.
    However, this does not mean that an OSP determination is required 
to make a negligible impact determination, as section 101(a)(5)(C)(ii) 
clearly exempts issuance of specific regulations from compliance with 
the formal rulemaking requirements of section 103 of the MMPA. 
Recognizing the complex and controversial nature of the OSP concept, 
NMFS has modified this policy so that a determination of negligible 
impact can be made only if the permitted activity is not likely to 
significantly reduce the numerical increase of that population or 
prevent it from ultimately achieving its maximum net productivity level 
(MNPL)(NMFS, 1995). If a ``nondepleted'' marine mammal population is 
involved, then a determination of negligible impact can be made only if 
the permitted activities are not likely to reduce that population below 
its MNPL (NMFS, 1995). The determination of negligible impact, 
therefore, even when the taking is limited to incidental harassment, 
will take into account the status and the particular biological 
requirements of the species or stock, as well as the effects of the 
incidental taking on the rate of recruitment (NMFS, 1995). That said, 
however, NMFS qualified that by stating that ``Qualitative judgments 
will be made on a case-by-case basis on how the anticipated incidental 
taking will affect the status and population trends of the species or 
stocks concerned.''
    Many factors are used in making a negligible impact determination, 
including, but not limited to, the status of the species or stock 
relative to its MNPL (if known), whether the recruitment rate for the 
species or stock is increasing, decreasing, stable or unknown, the size 
and distribution of the population, and existing impacts and 
environmental conditions.
    Finally, the MMPA clearly indicates that some level of adverse 
effects involving the taking of marine mammals (both depleted and non-
depleted) can be authorized as long as the impact is negligible. This 
guidance has been followed by NMFS in making its determination on 
whether takings by harassment incidental to SURTASS LFA sonar 
operations are negligible.
    Comment MMPAC27: Two commenters stated that NMFS cannot make a 
negligible impact determination since the population stock sizes and 
other information on many species is lacking. How can NMFS estimate 
takes, or impact of takes, when stock size, composition, status, 
trends, and distribution cannot be defined? It is impossible to 
determine the size, sex or age of the cetaceans harassed; thus making 
it impossible to determine the effects of the LFA sonar on the cetacean 
population.
    Response: There is no requirement in the MMPA to determine the 
size, sex or age of impacted marine mammals prior to authorizing an 
incidental take. While this information is valuable to NMFS scientists 
when takings involve significant mortality (as in whaling), when 
takings are limited to incidental harassment that will be limited in 
both time and scope, this information is not critical. Since takings by 
SURTASS LFA sonar are not expected to result in the death or injury of 
marine mammals, age, sex, and size parameters are not necessary for 
assessing impacts on populations; all segments of the population are 
assumed to be affected equally.
    When information is lacking to define a particular population or 
stock of marine mammals then impacts are to be assessed with respect to 
the species as a whole (132 Cong. Rec. S16304-05, October 15, 1986; 54 
FR 40338, September 29, 1989). As shown in this document and in the 
Navy Final EIS, NMFS and the Navy have followed this Congressional 
instruction when necessary in this action.
    Comment MMPAC28: Some commenters note that the scientific results 
are ``speculative'' as they are based on research on only 3 species; 
there are information gaps on many species.
    Response: Please refer to the appropriate RTCs in this document 
regarding data gaps. The Navy's LFS SRP studies filled in data gaps on 
the potential effects of LF sound on marine life, and the ongoing 
monitoring and research programs instituted by the Navy will continue 
to reduce areas of incomplete information and provide invaluable data 
that are presently unavailable.
    Congress (see 132 Cong. Rec. S16304-5, October 15, 1986) noted that

    If the potential effects of a specified activity are conjectural 
or speculative, a finding of negligible impact may be appropriate. 
In such a case, the probability of occurrence of impacts must be 
balanced with the potential severity of harm to the species or stock 
when determining negligible impact.

When applying this balancing test, NMFS thoroughly evaluates the risks 
involved and the potential impacts on marine mammal populations (54 FR 
40338, September 29, 1989). Determinations are made based on the best 
available scientific information and later supported or negated through 
the required monitoring program (NMFS, 1995).
    Comment MMPAC29: The response to Comment 46 in the preamble to the 
proposed rule (66 FR 15375, March 19, 2001)) stated: ``NMFS must make 
its determination under section 101(a)(5)(A) of the MMPA based on the 
best scientific information available.'' However, NMFS held the non-
peer reviewed LFS SRP results in higher regard than published peer-
reviewed work (Simmonds and Lopez-Jurado, 1991; Frantzis, 1998; and 
Balcomb, 2001).
    Response: While NMFS must make its determinations under the MMPA 
and ESA based on the best scientific information available, the 
response to the comment cited here was in regard to the Navy meeting 
its NEPA requirements, not on the validity of the

[[Page 46767]]

data used by NMFS. In that regard, NMFS uses all valid data and 
information that are available. However, NMFS also notes that Balcomb 
(2001) is a letter submitted to the Navy, dated February 23, 2001, 
concerning his untested hypothesis of the cause of the mass stranding 
of beaked whales in the Bahamas. This letter has not been published or 
formally peer reviewed. Simmonds and Lopez-Jurado (1991) and Frantzis 
(1998) were published scientific correspondences based solely on 
observations. The three phases of the LFS SRP were based on field 
research, conducted by independent scientists, which was designed 
simply to test a specific hypothesis. Some of the results have been 
peer-reviewed prior to publication (Miller et al. (2000) and Croll et 
al. (2001)). See RTC 4-5.18 and 4-5.19 of the Final EIS for more 
information. However, NMFS reviewed all data available to it when 
making the decisions found in this document.
    Comment MMPAC30: A Federal agency is concerned about the basis for 
a negligible impact determination because information available clearly 
indicates that the potential effects of SURTASS LFA sonar operations 
cannot be described with certainty. NMFS needs to make separate 
findings that only small numbers of marine mammals will be taken 
incidental to the activity and (not or) that the effects on the 
distribution, size, and productivity of the affected species and 
populations will be negligible. NMFS has not examined all of the ``best 
information available'' and sufficient gaps in knowledge exist to 
prevent NMFS from a determination of ``negligible impact.''
    Response: Please refer to the RTCs MMPAC 27 and 28 regarding 
appropriate action that NMFS needs to take when making negligible 
impact determinations when faced with unavailable, uncertain or 
speculative information. In addition, concerns regarding data gaps and 
alleged ignored evidence have been addressed previously in this 
document (see RTCs SIC1 though SIC3 for example). RTC MMPAC29 discusses 
another set of information. NMFS believes that it has used all relevant 
information and data in making its determinations under this action. 
Therefore, NMFS is unaware of what relevant ``best information 
available'' was not utilized in this action. For the RTCs regarding 
separate determinations for ``small numbers'' and ``negligible 
impact,'' please refer to RTC MMPAC20.
    Comment MMPAC31: The Navy failed to meet the legal standard and 
adequately demonstrate that the take will have a negligible impact on 
the affected species and stocks of marine mammals because: (1) Only 
three of more than 48 proposed affected marine mammals were tested; (2) 
lack of data on abundance, natural history, geographic distribution, 
migration routes and calving and breeding grounds; (3) specific numbers 
by type of taking not provided; (4) all marine mammals potentially 
taken must be considered; and (5) effects of underwater noise on marine 
mammals are variable and largely unknown for many species.
    Response: The information that was necessary for NMFS to agree or 
disagree with the determinations made by the U.S. Navy that the 
deployment of SURTASS LFA sonar will have no more than a negligible 
impact on marine mammals was provided in the Navy's Draft and Final 
EISs. In particular, the information cited above as lacking can be 
found in Chapter 3 (specifically refer to Tables 3.2-3 (mysticetes), 
3.2-4 (odontocetes), 3.2-5 (otariids) and 3.2-6 (phocids), and Chapter 
4 (specifically refer to Tables 4.2-3 (diving behavior), 4.2-4 
(distribution, abundance and density) and 4.2-10 (stock percentage 
affected)). In its Final EIS, the Navy provided estimates of the 
percentage of marine mammal stocks that might sustain a biologically 
significant response rather than the number of animals. NMFS concurred 
in this approach for the Draft and Final EIS because it believes that 
this is appropriate considering the global nature of SURTASS LFA sonar 
operations.
    In addition, the Final EIS provides a clear explanation of the 
assumptions made in the AIM and in the Final EIS to account for 
variability in marine mammal response (both on a species basis and on 
an individual basis) for all species and stocks of marine mammals. 
Since the Navy has taken a highly conservative approach at all stages 
in estimating impacts on marine mammals from LF sounds, complete data 
on each and every species of marine mammal is not necessary for NMFS to 
make a negligible impact determination. The fact that the Navy will 
collect additional data, and conduct more research, over the next 5 
years and that NMFS can suspend an authorization if information or data 
indicates that the takings are having more than a negligible impact, 
provides assurance that marine mammal species and stocks will not be 
significantly impacted.

Lowest Level Practicable

    Comment MMPAC32: Several commenters believe that NMFS has not 
ensured that the taking was at the lowest level practicable.
    Response: Section 101(a)(5)(A)(ii) of the MMPA requires NMFS to 
``prescribe regulations setting forth permissible methods of taking 
pursuant to such activity, and other means of effecting the least 
practicable adverse impacts on species or stocks and its habitat, 
paying particular attention to rookeries, mating grounds, and areas of 
similar significance * * *.'' NMFS believes that the mitigation 
measures and additional interim operational restrictions required by 
these regulations on the Navy's operation of SURTASS LFA sonar ensures 
that the takings will be at the lowest level practicable. Mitigation 
measures include maintaining SURTASS LFA sonar generated sound field 
below 180-dB at a distance of 12 nm (22 km) miles from any coastline, 
including islands, OBIAs and other protected areas, designating OBIAs 
and a process for nominating new OBIAs, establishment of a shutdown 
protocol to protect marine mammals in the vicinity of the SURTASS LFA 
source, and the tripartite marine mammal monitoring system ensuring 
above 95-percent detection capability for marine mammals prior to entry 
into the 180-dB safety zone. Additional operational restrictions will 
be included in annual LOAs as an interim requirement pending the 
results of the Navy's LTM, reporting and research programs. These 
interim measures include establishment of shut-down criteria of the 
SURTASS LFA sonar whenever a marine mammal is detected within the 1-km 
(0.54-nm) buffer zone beyond the SURTASS LFA mitigation zone (180-dB 
sound field), a requirement not to broadcast the SURTASS LFA sonar 
signal at a frequency greater than 330 Hz to minimize the possibility 
of resonance; and planning missions to ensure no greater than 12 
percent of any marine mammal stock is incidentally harassed during the 
period of each LOA's effectiveness (1 year). Additional protection will 
be afforded marine mammals by the Navy's mandate that SURTASS LFA sonar 
operations would be constrained in the vicinity of known recreational 
and commercial dive sites to ensure that the sound field at such sites 
does not exceed 145 dB.
    Mitigation measures suggested by commenters that NMFS believes to 
be impractical have been addressed in RTCs MIC15 through MIC17 in this 
document.

Total Taking

    Comment MMPAC33: The multiple deployments of LFA sonar in 
conjunction with potential deployment

[[Page 46768]]

of other nations' LF sonar has not been addressed and may have a 
devastating cumulative effect on marine mammals.
    Response: The Navy analyzed the potential impacts from operating 
two SURTASS LFA sonars within a representative area (Gulf of Oman). 
This was described in both the Navy's application and in the Navy's 
Draft and Final EISs. Table 4-14 of the application assesses the 
percentage of marine mammal stocks within that area that could 
potentially be affected. Since this take authorization covers the use 
of no more than two SURTASS LFA sources, no further analyses are 
required by NMFS.
    Moreover, NMFS is unaware of the use by other nations of SURTASS 
LFA sonar, or other systems that use an LF source (i.e., 1 kHz or 
below), except for the SACLANTCEN/NATO TVDS system. The cumulative 
impacts of the use of this system in addition to a single SURTASS LFA 
sonar system operating in the same ocean basin was analyzed as 
described in RTC SIC79.
    In addition, under section 101(a)(5)(A) of the MMPA, it is NMFS' 
responsibility to assess the total taking by the specified activity 
during the specified time period for making a negligible impact 
assessment (see 50 CFR 216.102(a)), not the total taking by all low 
frequency noise sources. Finally, cumulative effects that are 
reasonably foreseeable were considered in the Navy's Final EIS (see 
Chapter 4.4) and cumulative effects that are reasonably certain to 
occur have been considered in the consultation for this activity under 
section 7 of the ESA.

Other MMPA Concerns

    Comment MMPAC34: What are the consequences for LFA sonar 
transmissions if behavioral changes are observed? At what point is the 
action considered a ``take''?
    Response: If a significant behavioral response is observed, NMFS 
considers a ``taking'' to have occurred. If behavioral changes are 
observed, observations are noted and reported to NMFS as required by 
the regulations and LOA. Because Level B harassment takings are 
authorized by the regulations and LOA, there would not be any short-
term consequences, such as suspension of transmissions.
    Comment MMPAC35: There are numerous other sources of noise in the 
oceans that have not received the level of scrutiny that this sonar has 
received (i.e., ocean shipping), and the commenter believes that NMFS 
is obligated under the MMPA to identify such noise sources to review 
their potential impact on marine mammals. A coherent noise criteria 
policy is needed for use in all oceans involving all sources of 
anthropogenic noise.
    Response: NMFS recognizes that there are many sources of 
anthropogenic noise in the ocean, including commercial shipping, 
recreational boating, offshore seismic, maritime construction, and 
oceanographic/fishery research. When necessary, NMFS works with those 
who create noise in the marine environment to ensure that marine 
mammals are not taken in violation of the MMPA. However, NMFS also 
recognizes that many sources of maritime noise are by activities that 
either are not subject to the MMPA (e.g., non-U.S. shipping outside the 
U.S. EEZ), or do not qualify for authorizations under the MMPA (e.g., 
non-U.S. shipping within the U.S. Exclusive Economic Zone (EEZ)). For 
those activities, a new approach may be necessary, either through 
international bodies, or additional U.S. legislation. In this regard, 
NMFS expects to complete a draft acoustic policy in the near future and 
is also planning to convene a workshop on commercial shipping noise and 
impacts on marine mammals.
    Comment MMPAC36: Regulations from this issue (SURTASS LFA sonar 
deployment) will become the standard for ocean noise management in the 
U.S., and, by default, worldwide. Giving LFA the ``green light'' will 
completely open up the LF noise band to international commercial, 
industrial, and military exploitation.
    Response: Issuance of an LOA to the Navy for this activity will 
have no effect on activities world-wide that produce low-mid-or high-
frequency sounds incidental to conducting its activity. More 
persistent, anthropogenic noise sources including international 
commercial shipping (e.g., 6,000 large vessels entering Los Angeles/
Long Beach, CA harbor annually), U.S. naval activities, seismic surveys 
for oil and gas deposits (150 vessels world-wide), international 
offshore construction, oceanographic research (including mapping ocean 
and harbor features), and, in certain areas, recreational boating would 
continue in any case. Positive effects of this activity will be to 
refine our understanding of appropriate mitigation measures that could 
be used for other acoustic sources.

Proposed Rule Concerns

    Comment MMPAC37: Several commenters believe that the proposed 
action has not met the requirement of the MMPA for a ``specific 
geographical region.'' The MMC states that the rationale for concluding 
that the 16 areas constitute specific geographic regions is too 
general--it glosses over biogeographic variation that is essential to 
understand (1) the distribution and life history features of the many 
and varied species that may be affected by SURTASS LFA sonar operations 
and (2) the nature and extent of the resulting effects. A Federal 
agency believes a more narrow geographic scale would be likely to 
enhance the assessment of effects. One organization notes that while 
NMFS has divided the world's oceans into 16 areas, each one enormous in 
size, the MMPA Legislative History specifically rules out this sweeping 
approach.
    Response: NMFS defines ``specified geographical region'' as ``an 
area within which a specified activity is conducted and which has 
certain biogeographic characteristics'' (50 CFR 216.103). NMFS agrees 
that the 16 areas designated in the proposed rule document were not 
based on biogeographic characteristics as specified in the definition, 
but were based on other considerations by the U.N. Food and 
Agricultural Organization. In the proposed rule, NMFS invited 
additional comments on its preliminary determination. No comments were 
received that provided information or data on an alternative approach; 
the only comments received were that the proposed designations did not 
meet the statements made by Congress when the MMPA was amended in 1981. 
NMFS has reviewed the proposed specified geographic regions and has 
determined that a better approach is to adopt the biogeographic 
characteristics of biomes and provinces designed by Longhurst (1998), 
but with some modifications that were suggested by Longhurst (1998) in 
order to ensure that the specified geographic regions were in 
conformance with the MMPA and NMFS' definition found in 50 CFR 216.103. 
As revised by this final rule, there will be 15 biomes and 54 specific 
geographic regions under those 15 biomes, called provinces, in which 
the Navy may potentially operate. In addition, this rule creates 
several subprovinces for most of the designated provinces that are in 
coastal areas. Designations smaller than provinces in the offshore 
biomes are not biologically justified.
    NMFS believes that adoption of the Longhurst approach meets the 
statutory mandate that the taking by the activity be within a 
``specified geographical region'' since a biome is the most likely 
geographic region to contain the majority of a specific marine mammal 
stock, especially those that are migratory. While admittedly, the 
Longhurst schematic was designed for

[[Page 46769]]

plankton, it is the best scientific application available for 
designating specified geographic regions because no biogeographic 
concept has been designed for marine mammals and, in general, the 
distribution of marine organisms at higher trophic levels resembles the 
general geographic patterns of primary productivity, with the largest 
aggregations concentrated in coastal areas and zones of upwelling 
(Longhurst, 1998).
    What this means for this authorization is that the Navy will be 
required to notify NMFS annually as to which provinces or subprovinces 
it intends to operate SURTASS LFA sonar system in the upcoming year, 
and the extent of take (by harassment) it expects to encounter during a 
mission. These calculations will be based on new modeling using AIM.
    Comment MMPAC38: The conditions and effects within the broad 
geographic regions proposed by NMFS cannot be considered 
``substantially the same.'' Congress clearly intended a more precise 
and smaller scale.
    Response: In 1982, House Report 97-228 stated:

    The specified geographic 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 specified 
geographical regions.

Therefore, NMFS believes that it has met this Congressional intent by 
its present designations of 15 biomes and 54 provinces as specified 
geographic regions. These provinces and biomes effectively delineate 
the area wherein discrete population units reside thereby allowing NMFS 
to analyze impacts from SURTASS LFA sonar on a species and/or stock 
basis.
    Comment MMPAC39: Several organizations believe that NMFS should 
establish the specified geographic regions based on physiographic 
characteristics such as undersea canyons, seamounts and other 
structures that might attract marine mammals.
    Response: NMFS does not believe that the MMPA requires NMFS to 
designate specific, but minor, geographic regions based on 
physiographic characteristics such as undersea canyons, seamounts and 
other structures that might attract marine mammals. NMFS believes that 
this recommendation ignores the Congressional statement, cited in RTC 
MMPAC38, that specified geographic regions should not be larger than is 
necessary to accomplish the specified activity. Considering that the 
second and third, 5 to 10 km-wide (2.7 to 5.4 nm-wide), CZ ``ring'' for 
LFA sonar sounds can be upwards of 100 km (54 nm) and 150 km (81 nm), 
respectively from the vessel, small specific geographic regions as 
recommended would be functionally inappropriate.
    Comment MMPAC40: A Federal agency recommends that NMFS describe in 
the final rule the species assemblages, their biogeography, and 
important life history characteristics of each of the proposed regions 
in sufficient detail to ascertain whether the effects on the diverse 
marine mammal assemblages throughout each region would be substantially 
similar.
    Response: NMFS does not believe that this recommendation is 
warranted for this rulemaking document. Detailed information on the 
life history characteristics of the marine mammal populations in each 
of the biogeographic areas is presently unavailable, and is likely to 
be unavailable for decades to come. However, there is no scientific 
evidence to indicate that marine mammals in one area would react to the 
noise substantially differently from the same species in another area. 
Therefore, the best scientific information currently available on a 
species' life history parameters, that is relevant to the action, has 
been provided in the Navy's Final EIS (see in particular Subchapter 
3.2.4--3.2.6). In addition, this information has been incorporated into 
the AIM which makes very conservative estimates of impacts on marine 
mammal species and stocks (see the Final EIS for details). For example, 
NMFS has no scientific information to indicate that mid- and high-
frequency marine mammal hearing specialists would be affected to the 
same extent as low-frequency hearing specialists by the LF sounds of 
the SURTASS LFA sonar. However, the Navy has conservatively presumed, 
for this action, that these species could have a significant behavioral 
reaction to LF sounds, similar to those species most likely to be 
affected (i.e., LF-hearing specialists such as the large whales that 
were studied during the LFS SRP). Therefore, if one considers all 
species and stocks to be affected (i.e., taken by harassment), there is 
no need to describe in detail, in this document, all life history 
parameters of all species within each geographic region.
    The Navy, in its application and in both the Draft and Final EIS, 
provided significant information on each of the 31 areas modeled by the 
Navy. These modeled areas were provided in Table 4-1 of the application 
and 4.2-1 in the Final EIS. Additional areas will be modeled when 
information becomes available and all models will be rerun with the 
latest information prior to the Navy operating nearby. As mentioned in 
RTC MMPAC31, information on the biological parameters used in the 
modeling was provided in the text and numerous tables. Since NMFS has 
adopted the Navy's Final EIS as its own statement under NEPA as 
permitted by CEQ regulations (40 CFR 1506.3), it is not necessary to 
repeat that information here.
    Comment MMPAC41: The rule should be in keeping with the 
requirements of section 101(a)(5)(B) of the MMPA, that LFA sonar 
operations should be suspended in and near (nominated OBIA) areas until 
it has been determined that such operations will not have more than a 
negligible impact on those species and stocks of marine mammals within 
the OBIA.
    Response: OBIAs are mitigation measures that would reduce the 
potential level of impact on marine mammals to the lowest level 
practicable, not areas wherein NMFS has not made negligible impact 
determinations, or that takings would be more than negligible if the 
Navy were to operate within those areas. Since NMFS has made the 
necessary determinations under section 101(a)(5)(A) of the MMPA, 
designation of an OBIA is simply a mitigation measure designed to 
reduce marine mammal impacts to the lowest level practicable. However, 
it is highly unlikely that the Navy would conduct SURTASS LFA sonar 
operations within areas that might qualify in the future as OBIA areas 
simply because the abundance of marine mammals would increase the 
likelihood for SURTASS LFA sonar shutdowns due to marine mammal 
incursions into the safety zone. The Navy would likely find it 
preferable to move the SURTASS LFA sonar vessel to an area with a 
lesser density of marine mammals, than to continue incurring delays or 
suspensions of sonar transmissions.
    Suspending operations in nominated OBIAs could be an incentive for 
opponents to the Navy SURTASS LFA sonar operations to render the small 
take authorization ineffective simply by nominating large numbers of 
areas as potential OBIAs, whether or not they might warrant inclusion 
as an OBIA. NMFS' process for designating OBIAs will prevent this.

[[Page 46770]]

    Comment MMPAC42: A Federal agency believes that NMFS has not 
adequately addressed the requirement under the MMPA that a taking not 
have an unmitigable adverse impact on the availability of stocks of 
marine mammals for taking for subsistence uses. They note that while 
the bowhead whale is unlikely to be affected, other species taken by 
Alaska Natives for subsistence, including beluga whales and several 
pinniped species, occur within the area where operations could be 
conducted and are included in the list of species that could be covered 
by the authorization. They believe LFA sonar could cause localized 
shifts in the distributions of some stocks, and thus their availability 
to subsistence hunters.
    Response: NMFS did not go into detail on this issue in the preamble 
to the proposed rule, or in this document, because an analysis of 
impacts on subsistence uses of marine mammals indicated an impact close 
to zero. In order to have an unmitigable adverse impact on subsistence 
hunting, an action must result in a reduction in availability of marine 
mammals to a level insufficient to meet the subsistence needs of 
Alaskan Arctic communities for marine mammals by: (1) Causing 
sufficient numbers of the marine mammal population subject to 
subsistence use to vacate subsistence hunting areas; or (2) directly 
displacing subsistence users; or (3) erecting physical barriers between 
the marine mammals and the subsistence hunters. SURTASS LFA sonar will 
not be deployed in Arctic waters so it will not impact subsistence 
hunting in the Bering, Chukchi or Beaufort seas. Beluga whale hunting 
is restricted to a single animal per year which is taken in northern 
Cook Inlet, Alaska, and therefore unlikely to be subject to SURTASS LFA 
sonar sounds, considering significant coastal sound attenuation prior 
to reaching Cook Inlet, in addition to other LF noise from nearby 
shipping and oil industry activities masking offshore noises. Sea lions 
and seals are harvested by natives on Kodiak Island and on the south 
side of the Aleutian Island Chain. These animals are usually shot at 
haul-outs or in nearshore areas. Therefore, considering the offshore 
location of SURTASS LFA sonar operations, it is likely that these 
nearshore animals would not be affected at all by any SURTASS LFA sonar 
sound.
    Comment MMPAC43: A Federal agency recommends that NMFS consider 
ways to include the required information on mitigation, monitoring, and 
reporting requirements into the rule, rather than into the LOA. They 
state that the MMPA is clear that at least some of these information 
requirements are to be addressed in regulations rather than LOAs.
    Response: The MMPA requires that regulations set forth requirements 
pertaining to the monitoring and reporting of the taking. These 
requirements, which were identified in the proposed rule's regulatory 
text, are found in the regulatory text of this final rule document. 
Specifically, monitoring requirements include the tripartite monitoring 
system and the conditions for conducting that monitoring. However, LOAs 
are issued and authorized under activity-specific regulations, 
therefore, they carry the same weight under the MMPA as the regulations 
for ensuring compliance with conditions. If detailed conditions are 
specified in regulations, modifications to conditions, for example 
improvements in monitoring and reporting, would require long lead times 
to implement, considering the lengthy process required for approval of 
regulations. Having detailed monitoring conditions in regulations would 
therefore hinder prompt remedial action if NMFS determined that it 
needed to amend conditions to improve the information being obtained 
under monitoring and reporting. Delaying the ability to obtain this 
information for a significant time simply is not warranted. For that 
reason, the LOA will contain specific conditions and instructions on 
mitigation, monitoring, and reporting, while the regulations will 
contain general requirements to comply with the MMPA.
    Comment MMPAC44: The Navy cannot measure incidental takes over 
large ocean areas. There is no means to monitor Level B takes. Neither 
the proposed rule nor the Final EIS provide data or analyses to support 
the assumption that intermittent and relatively short-term behavioral 
disruptions will not affect the survival or productivity of individual 
marine mammals or the populations they comprise. Before issuing the 
proposed incidental take authorization, NMFS: (1) Needs to provide an 
adequate rationale to support this assumption, and/or (2) needs to 
augment the monitoring program to ensure that the information necessary 
to confirm the validity of this assumption is obtained.
    Response: While the Navy is unable to directly measure or observe 
effects on marine mammals at ranges much greater than the 180-dB sound 
field due to inability to observe much farther from the vessel, such 
monitoring can be conducted under a research monitoring protocol. This 
is one of the highest priority research topics to be conducted over the 
next 5 years. NMFS expects the Navy will undertake a long term study in 
an area where it expects to conduct missions on a more frequent basis 
than normal. This will provide the Navy and NMFS with information on 
long-term trends. Being unable to prove a negative, that is, that there 
is no long-term impact on marine mammal stocks due to SURTASS LFA 
sonar, this research is the best alternative available and is supported 
by the findings of Swartz and Hofman (1991).
    Not having direct evidence to date, NMFS must rely on supplemental 
information to support its findings of negligible impact. For example, 
In Jasny (1998), the author states:

    A modern-day supertanker cruising at seventeen knots * * * fills 
the frequency band below 500 Hz with a steady sonic blare, reaching 
levels of 190 dB or more; mid-sized ships such as tugboats and 
ferries produce sounds of 160 to 170 decibels in the same range. The 
cumulative output of all these vessels-container ships and tankers, 
oceanliners and dayboats, icebreakers and barges-is an incessant 
noise of near-constant loudness, outdone in the lower register only 
by the occasional earthquake or storm, or by the chance passing of 
some closer source.

With a single exception (icebreakers), the author has described 
southern California waters. With approximately 6,000 large vessels 
entering the Los Angeles-Long Beach harbors annually, long term effects 
from general LF noise should be evident at this (and similar) locations 
long before long-term effects could be detected from a short-term (72 
hours out of 720 hours (30-day mission)) single source of low frequency 
noise operating in up to six different oceanic regions and affecting 
different marine mammal populations annually. Since marine mammal 
populations have not indicated survival or productivity difficulties in 
southern California--on the contrary increasing stock sizes of blue and 
gray whales and pinnipeds have taken place in that area--NMFS has 
determined that there will not be a more than negligible impact to 
those marine mammal stocks that are affected by SURTASS LFA sonar 
sound.
    As mentioned elsewhere, NMFS presumes that animals would be 
affected by LFA sonar for a maximum of 72 hours out of each 30-day 
mission (presuming maximum 20-percent duty cycle) and that no marine 
mammal stock would incur an incidental harassment greater than 10 to 12 
percent of that stock's size over the course of each LOA's period of 
effectiveness (1 year). In addition, the sound characteristics of 
SURTASS LFA sonar are such that marine mammals outside the sonar ray

[[Page 46771]]

path of SURTASS LFA sonar will not be subject to high levels of sounds 
(outside the sonar ray path, intensity will immediately diminish by 30 
dB, or by 1,000 times that inside the ray path). Moreover, for a 
significant portion of the distance between the edge of the safety zone 
and when the first or second CZ deflects towards surface waters, the 
CZ, with its higher SPLs, will be below the area of the water column 
inhabited by marine mammals. All these facts support NMFS findings that 
there will not be more than a negligible impact on marine mammal 
stocks.
    Comment MMPAC45: A Federal agency notes that in the Preliminary 
Conclusions of the Proposed Rule (March 19, 2001 (66 FR 15375) page 
15389 first column), the term ``* * * mitigation measures to prevent 
injury * * *'' should be changed to read ``* * * mitigation measures to 
minimize injury (Level A harassment) * * *''
    Response: NMFS concurs.
    Comment MMPAC46: NMFS indicated that it would provide opportunity 
for public comment for ``substantial modifications'' to LOA 
requirements before such modifications are made, but provides no 
indication as to what would be viewed as a ``substantial 
modification.'' The final rule document should specify the nature of 
non-substantial modifications that could be made without public 
comment.
    Response: This final rule document contains a discussion of the 
conditions of the LOA including prohibitions, requirements for 
mitigation, monitoring and reporting. Changes to these conditions would 
require a public comment period prior to implementation, unless NMFS 
determines that an emergency exists that poses a significant risk to 
the well-being of the species/stocks of marine mammals affected (see 50 
CFR 216.106(e) and (f)). Non-substantial modifications were identified 
in the proposed rule and in this final rule. Essentially, non-
substantial modifications include: (1) Renewing an LOA for an 
additional year, (2) listing of planned SURTASS LFA sonar operating 
areas, or (3) moving the authorized SURTASS LFA sonar system from one 
ship to another. They would also include amendments to the LOA that 
NMFS believes would clarify (but not change) the LOA conditions.
    Comment MMPAC47: A state agency recommends that section 216.187 of 
the proposed rule should be amended to provide potentially affected 
states with timely notice of the Navy's application for an approval 
letter.
    Response: NMFS does not consider it necessary to have an annual 
public review for each LOA. NMFS believes that the determinations made 
in this document provide the necessary findings required under the 
MMPA. Once these findings have been made, it is unnecessary for NMFS to 
reconsider them annually during the 5-year authorization process unless 
new scientific information becomes available that is significantly 
contrary to the science used by NMFS during this rulemaking. As noted 
in the regulations, NMFS will notify the public within 30 days of 
issuance of an LOA. That notification would provide notice if the Navy 
had requested a taking authorization for an area of concern to a State.
    However, a state can petition NMFS for a modification whenever it 
has documentary evidence that the determinations made by NMFS are no 
longer valid. NMFS notes that procedures are established under the CZMA 
to address this issue. NMFS recommends that those coastal states with 
Federally-approved CZMA programs that have concerns over SURTASS LFA 
sonar, follow the procedures outlined in the regulations (15 CFR part 
930). NMFS notes that for states along the U.S. Eastern Seaboard, the 
OBIA1 restriction for SURTASS LFA sonar operations inside the 200-m 
(656.2-ft) isobath limits sound levels inside state waters to levels 
significantly less than other sources for which states have not imposed 
restrictions on noise under their CZMA authority as required under 15 
CFR part 930. However, the regulations note that a state is required to 
apply its policies uniformly and consistently and not apply policies 
differently (e.g., holding a Federal agency to a higher standard than a 
local government or private citizen) and NMFS will give careful 
consideration to the CZMA regulations whenever it is in receipt of a 
petition under this subpart.
    Comment MMPAC48: Only a 45-day period was provided for the public 
to comment on the proposed rule and Final EIS. An extension is required 
to June 17, 2001.
    Response: The comment period for the proposed rule was extended 
from the original date of May 3, 2001 to May 31, 2001; a total period 
of 73 days. The Navy's Final EIS has been available to the public since 
January 2001.
    Comment MMPAC49: The LOA and regulations are inadequate to protect 
the North Atlantic right whale per NMFS' mandate. Right whale ship 
strike data alone suggest that the LFA vessel could transmit while 
sailing right over a right whale. They simply do not react to ships and 
other danger. As the potential for biological removal for this stock 
under the MMPA is zero, the take by LFA transmissions of even one 
individual could constitute jeopardy under the ESA. What are the take 
levels for the North Atlantic right whale?
    Response: NMFS has completed consultation under section 7 of the 
ESA. The finding of that consultation was that operation of the SURTASS 
LFA sonar is not likely to jeopardize the continued existence of any 
endangered or threatened species under the jurisdiction of NMFS. A copy 
of the Biological Opinion issued as a result of that consultation is 
available upon request (see ADDRESSES). NMFS believes that through 
establishment of OBIA1, and implementation of the tripartite monitoring 
and mitigation program, it is very unlikely that North Atlantic right 
whales will be affected by SURTASS LFA sonar. Figure 2 illustrates the 
extent of protection offered by OBIA1 in relation to right whale 
critical habitat. The potential for even a single right whale to be 
seriously injured is, therefore, exceedingly remote. Considering the 
number of other activities, such as commercial shipping and oil and gas 
exploration (off the east coast of Canada), SURTASS LFA sonar operating 
off the East Coast of the United States would add an insignificant 
amount of noise to the already high levels of noise along the coast, if 
it were to operate in the Northwest Atlantic.

BILLING CODE 3810-FF-P

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[GRAPHIC] [TIFF OMITTED] TR16JY02.001

BILLING CODE 3810-FF-C
    The potential for a ship strike by the SURTASS LFA vessel is 
minimal because it will not operate in right whale critical habitats 
and migration

[[Page 46773]]

corridors and its maximum speed is 3 knots. This is well below the 
maximum allowable speed of 7 knots for whale watch vessels when within 
one-half mile of a large whale. When not operating SURTASS LFA sonar, 
the ship will follow standard procedures for avoiding collisions with 
whales.
    Comment MMPAC50: Section 216.191 appears to provide for additional 
protection through the addition of areas that would be subject to 
protection under Sec. 216.183(d), but does not expressly provide for 
``additional protection'' (e.g., received levels less than 180 db). 
Section 216.191 should also provide a process for additional protection 
within areas designated under 216.183(e).
    Response: Paragraph 216.191 (in 50 CFR) provides a process for 
nominating areas as OBIAs, not for adding additional mitigation 
measures either inside or outside existing or nominated OBIAs. To add 
additional mitigation measures either inside or outside an OBIA, 
applicants would need to petition NMFS under the APA as described 
elsewhere in this document. However, NMFS has amended Sec. 216.183(d) 
to make it more clear that operating SURTASS LFA sonar with sound 
levels in excess of 180 dB inside a designated OBIA is prohibited.
    Comment MMPAC51: The deferral of action to identify additional 
OBIAs for up to 8 to 12 months as part of this rulemaking 
inappropriately increases the possibility that NMFS will authorize 
SURTASS LFA sonar operations in biologically important areas thus 
making a finding of negligible impact questionable. The addition of new 
areas appears to be contingent on NMFS and Navy approval. What will the 
status of candidate OBIAs be during this period? Will LFA operations be 
halted?
    Response: Please see RTC MMPAC41, especially in regard to making a 
negligible impact determination. As noted there and in the proposed 
rulemaking, NMFS is following established rulemaking procedures for 
designating OBIAs under this action. The establishment of new OBIAs is 
contingent upon notice-and-comment rulemaking and will not be effective 
until an amendment to 50 CFR 216.183(e). NMFS will make a preliminary 
and final determination of establishment of new OBIAs on the best 
science available. Any interested party or organization, including the 
Navy, will have the opportunity to comment on any OBIA petition. One 
criterion to consider will be any national security concerns.
    Comment MMPAC52: NMFS's proposed procedure for designation of 
additional OBIAs places the burden of proof on the public to show that 
offshore areas are important for marine mammals breeding, feeding, or 
migration. This appears to be contrary to the section 101(a)(5)(B) of 
the MMPA. Sonar operations should be suspended or prohibited in any 
area where marine mammals occur in above average densities until it is 
determined that such operations will not have more than a negligible 
impact on those species or stocks.
    Response: NMFS has made a negligible impact determination for the 
Navy's operation of SURTASS LFA sonar for routine training and testing 
as well as the use of the system during military operations. OBIAs, on 
the other hand, are established in order to reduce the potential for 
taking marine mammals to the lowest level practicable as required by 
Sec. 101(a)(5)(A)(ii)(I). SURTASS LFA sonar operations will be 
suspended whenever a marine mammal enters the 180 dB safety zone or is 
detected within 1 km (0.54 nm) of the 180-dB safety zone, independent 
of the density of marine mammals in that area. It should be recognized 
that suspension of sonar transmissions due to marine mammal presence 
interferes with training or other military operations; therefore, it is 
unlikely that the Navy would intentionally operate in areas of high 
marine mammal abundance or remain within such an area if it expected 
significant shutdowns.
    Comment MMPAC53: NMFS should describe the procedures to be followed 
if data become available suggesting that continued operations in an 
area is having, or may have, more than a negligible impact on marine 
mammal species or stocks.
    Response: The procedure is described in 50 CFR 216.106. If, as a 
result of information obtained through the LTM requirements, new 
scientific research under the LTM program, or from other credible 
sources that becomes available, NMFS determines that the taking either 
in a single province, several provinces, or in a biome is having more 
than a negligible impact on affected species or stocks, 50 CFR 
216.106(e) requires that LOAs will be withdrawn or suspended, after 
notice and opportunity for public comment. The requirement for notice 
and opportunity for public review shall not apply if NMFS determines 
that an emergency exists that poses a significant risk to the well 
being of the species or stocks of marine mammals concerned.

LOA Concerns

    Comment MMPAC53: Who will be the holder of an LOA?
    Response: The holder for the LOA for the SURTASS LFA sonar systems 
will be the Chief of Naval Operations, or his duly appointed 
representative.
    Comment MMPAC54: One organization states that the proposed LOA is 
for incidental taking by harassment and non-serious injury only, which 
is Level B Harassment. They believe that, because NMFS has stated that 
some Level A harassment still needs to be considered possible, the Navy 
would need a Level A harassment permit as well.
    Response: Separate authorizations are not required under the 
rulemaking. The Navy has applied for an authorization to take marine 
mammals by harassment (as that term is defined in the MMPA), which 
means that marine mammals may be injured (Level A Harassment), but not 
killed, or they may experience disruptions in behavioral patterns 
(Level B Harassment). The MMPA does not distinguish between serious and 
non-serious injury. However, for reasons stated elsewhere in this 
document, NMFS believes that the potential for any marine mammals to be 
injured is negligible.

Public Hearing Concerns

    Comment MMPAC55: Commenters expressed concern that Navy proponents 
were at the same table with the NMFS hearing officer at the proposed 
rule's public hearing.
    Response: The NMFS hearing officer at the public hearing explained 
that responses to public comments and questions would be provided 
during the hearing if time allowed. Since most questions were expected 
to be in regard to the SURTASS LFA sonar system and the scientific 
research program, NMFS believed it would facilitate the hearing process 
to have the Navy available at the table microphone for reply. No intent 
should be presumed other than one to facilitate the hearing procedure.
    Comment MMPAC56: Commenters questioned why the hearing panel 
consisted of only one person and why others, who would be expected to 
be in the decision-making for the final rule, were not in attendance.
    Response: NMFS did not state that it would convene a hearing panel, 
and planned only to have a hearing officer, mainly to ensure that as 
many people that wished to testify had the opportunity to do so. Since 
court reporters were contracted to obtain transcripts of the hearings, 
and because these transcripts are part of NMFS' Record of Decision on 
this matter, and may be reviewed by decision-makers, attendance by 
decision-makers at the hearing was not necessary.

[[Page 46774]]

    Comment MMPAC57: Discuss the validity of the audio demonstration at 
the public hearing. NMFS tried to stop this acoustic demo at the public 
hearing.
    Response: To allow as many people as possible to speak in the 
allotted hearing time, NMFS limited the time each individual or group 
had to present their comments. There were no cases during the public 
hearings in Los Angeles, Honolulu, or Silver Spring where speakers were 
not allowed to speak or were deterred by NMFS personnel for other 
reasons. One individual was questioned prior to the Los Angeles hearing 
when, without introducing himself to the NMFS Hearing Officer, he began 
to set up speakers and amplification devices. After questioning, and 
once it was determined that the Federal Government would not be liable 
for any illnesses resulting from the broadcasts, (illness had been 
alleged at previous hearings when transmissions were broadcast by the 
Navy), NMFS allowed the individual to broadcast his demonstration, 
which was composed of two LF oscillators, one at 250 Hz and the other 
at 250 to 270 Hz, creating a beat frequency oscillation.
    According to the Navy, it is difficult to evaluate the validity of 
the audio demonstrations presented at the Los Angeles and Silver 
Spring, MD hearings without specific technical information, which was 
not provided. It should be noted, however, that these demonstrations 
were conducted by different people using the same or similar equipment. 
Both demonstrations reportedly broadcast sound levels in air of 85 dB 
and 100 dB (re 20 Pa @ 1 m) (actual measurements were not made 
at the demonstration) which were claimed to be equivalent to the 
underwater SPL of the SURTASS LFA sonar source at about 10 to 40 mi (16 
to 64.4 km). However, according to witnesses to both demonstrations, 
the levels at the Los Angeles hearing were markedly louder. The 
validity of the demonstrations is, therefore, unknown.

Other MMPA Concerns

    Comment MMPAC 58: Causing short-term behavioral responses in whales 
is a violation of the MMPA when applied to whale-watching, as 
determined by NMFS guidelines, and in the case of Hawaii, regulations.
    Response: NMFS clarifies that the whale watching industry is not 
authorized to ``take'' marine mammals, either intentionally or 
incidentally, therefore, harassment takings are illegal.
    Comment MMPAC59: There are international implications of SURTASS 
LFA sonar outside the U.S. EEZ and non-U.S. parties were not given an 
opportunity to comment. Also, an international panel comprised of 
political, scientific, and military experts from all countries with 
maritime interests regarding this type of technology should be convened 
by NMFS prior to issuing an LOA.
    Response: NMFS received comments from citizens around the world, 
during the 75-day rulemaking comment period. However, there is no 
requirement in U.S. law that requires Federal Government agencies to 
solicit comments internationally prior to making determinations that 
affect U.S. actions, especially U.S. military activities. NMFS presumes 
that if there is sufficient interest in anthropogenic noise sources in 
the marine environment, appropriate international bodies will convene 
such a panel.
    Comment MMPAC60: A Federal agency notes that the proposed rule on 
page 15376, column 1, paragraph 1 (66 FR 15375, March 19, 2001) 
indicates that the Navy has applied for an incidental take 
authorization to operate the SURTASS LFA sonar for a period of time not 
to exceed 5 years. Presumably, the Navy plans to use the sonar for an 
indefinite period of time and the 5-year period is the maximum 
authorization period under the MMPA. This should be made clear. Also, 
possible cumulative effects beyond the requested 5-year authorization 
should be considered in the development of monitoring and reporting 
requirements for any authorization issue.
    Response: In the Final EIS (RTC 4-10.7), the Navy states that the 
expected life span of each SURTASS LFA sonar is approximately 20 years. 
NMFS expects that the Navy will apply for consecutive 5-year 
authorizations as provided under the MMPA and implementing regulations. 
This will require the Navy to resubmit a new petition for regulations 
every 5 years. While NMFS can only legally require the Navy to perform 
monitoring and research during each of the 5-year authorization 
periods, as part of any reauthorization process, NMFS will review the 
required reports and research undertaken during the first 5-year 
authorization and apply this new information to subsequent rulemaking 
determinations.

ESA Concerns (ESAC)

    Comment ESAC1: Did ESA section 7 consultation begin on August 1999 
or May 1998? The Final EIS stated that consultation began in August 
1999. NMFS letter of 27 January 1999 stated that the Navy requested 
consultation with the NMFS under Section 7 of the ESA in its letter of 
18 May 1998.
    Response: In its letter of 18 May 1998, the Navy requested 
assistance from NMFS pursuant to Section 7 of the ESA in providing 
compilations of listed, proposed, and candidate threatened and 
endangered species under the jurisdiction of the NMFS. This letter 
initiated informal consultation with the NMFS under section 7 of the 
ESA. This letter is included in Appendix A of the both the Draft EIS 
and Final EIS. Formal consultation commenced on October 4, 1999.

NEPA Concerns (NEPAC)

    Comment NEPAC1: Under NEPA regulations the Navy should prepare a 
Supplemental EIS (SEIS) based on significant new information (letter 
from Natural Resources Defense Council dated May 31, 2001 and Earth 
Island Institute letter dated September 27, 2001). This information 
includes: (1) The potential for non-auditory physiological impacts on 
marine mammals induced by acoustic resonance of the LFA sonar signal in 
the bodies of the animals; (2) Dr. Tepley's document which addresses 
the issue of resonance effects in air spaces within the sinus and 
middle ear cavity of marine mammals; (3) correlation between naval 
maneuvers and other mass strandings and multi-species strandings of 
beaked whales; (4) the ability of present and future passive sonar 
technologies to meet the long-range detection requirements; and (5) the 
operation of LFA sonar with other active sonar systems by domestic and 
foreign navies including LFA sonar currently being developed by other 
nations.
    Response: CEQ's regulations governing NEPA require Federal agencies 
to prepare an SEIS if there are significant new circumstances or 
information relevant to environmental concerns and bearing on the 
proposed action or its impacts (40 CFR 1502.9(c)(1)). NMFS has reviewed 
the above information and believes that this information does not 
constitute significant new information that would require the 
development of an SEIS in accordance with 40 CFR 1502.9(c)(1)(ii). The 
rationale for this determination is supported by information provided 
elsewhere in this document and summarized here.
    (1 and 2): As discussed previously in several RTCs in this 
document, the potential impacts of non-auditory physiological impacts, 
such as tissue damage potentially caused by resonance, will occur at an 
SPL of 180 dB or higher (Cudahy and Ellison, 2002). Therefore, because 
the Draft and Final EISs used 180 dB as the criterion

[[Page 46775]]

for the determination for the potential for injury and for the 
implementation of geographic and monitoring mitigation measures, non-
auditory physiological impacts were analyzed in these documents. 
Because SURTASS LFA sonar will use extensive mitigation measures 
(passive acoustic, visual observers, and a new HF/M3 sonar), injury is 
unlikely.
    (3) As noted in RTCs MMIC24a and MMIC25, the data show that 5 of 49 
beaked whale stranding events that occurred possibly were related to 
military maneuvers (Potter, 2001). Two of these were definitely not 
related to sonar activity: (a) April 3, 1974, four Cuvier's beaked 
whales at Bonaire, Lesser Antilles, in the area where a naval vessel 
was dumping ammunition which caused an underwater explosion; and (b) 
December 17-22, 1974, three Cuvier's beaked whales and one striped 
dolphin stranded in Corsica. The striped dolphin had bullet wounds. 
Simmonds and Lopez-Jurado (1991) state that between 1982 and 1989 there 
were 22 strandings of cetaceans in the Canary Islands, with three being 
related to military activity. Therefore, the data do not necessarily 
suggest a high correlation between naval activities and beaked whale 
strandings, nor do they provide evidence of causation. Strandings were 
discussed in the Final EIS on pages 3.2-45 to 3.2-47.
    (4) As stated in the Final EIS at page 2-2, LFA ``is an 
augmentation to the passive (SURTASS) detection system, and is planned 
for use when passive performance is inadequate.'' In many instances 
passive sonar can provide the detection required. However, under 
certain conditions, such as areas of high ambient (background) noise 
(e.g., high shipping density), passive sonar cannot detect quiet 
targets. Therefore, passive systems alone cannot meet the Navy's 
requirement to detect quiet, hard-to-find submarines during all 
conditions, particularly at long ranges. Additional discussion of 
passive sonar technologies can be found in the Final EIS (RTCs 1-2.1, 
1-2.2, and 1-2.3 and RTC AC11).
    (5) As stated in RTC SIC79 and MMPAC33 in this document, neither 
the Navy nor NMFS is aware of the use by other nations of SURTASS LFA 
sonar, or other systems that use a LF source (i.e., 1 kHz or below), 
except for the SACLANTCEN (NATO) TVDS system. While the U.S. Navy does 
not intend to operate SURTASS LFA sonar with this NATO system, an 
analysis of cumulative impacts was conducted in the Navy's Final EIS. 
Please see RTC SIC79 for more information. Since this is not a 
reasonably foreseeable future action, additional assessments of the 
potential impacts to the marine environment would, at best, be 
speculative at this time.
    Comment NEPAC2: The Final EIS, with its official responses, is 
inadequate to defend the program as presented by NMFS. NMFS must not 
rely upon the Final EIS for any management standards or rulemaking for 
human noise in the oceans. By accepting the Final EIS, NMFS has 
accepted responsibility for all the Final EIS inadequacies.
    Response: NMFS believes that the Final EIS document meets the 
requirements under NEPA and its implementing regulations (40 CFR parts 
1500-1508). As a result, NMFS has determined that, in accordance with 
CEQ regulation at 40 CFR 1506.3(a), the Navy's NEPA statement meets the 
requirements of the CEQ regulations and has, therefore, adopted the 
Navy Final EIS as its own NEPA document for this action.
    Comment NEPAC3: The EIS, especially the modeling, should be peer-
reviewed.
    Response: The EIS, and thus its analyses, have met or exceeded all 
of the review and comment periods required by law. NMFS notes that 
there is no requirement under NEPA for an EIS to be peer-reviewed. The 
Navy's Draft EIS was available for review and comment by all, including 
independent scientists, the comment period was sufficiently long to 
allow review by scientists, and a number of scientists provided 
comments to the Navy and/or NMFS. NMFS considers these public review 
periods to more than satisfy the commenter's concern that scientists 
provide input into the Navy's proposal, including the AIM. Moreover, as 
an alternative model has not been suggested, NMFS adopts the Navy's AIM 
as the best model available for its determination of negligible impact.
    Comment NEPAC4: The Final EIS responses to comments demonstrate a 
range of denials, dismissals, deflections, misstatements, and 
inaccuracies, with occasionally an objective and factual response. Many 
comments/questions were ignored. The answers to comments were glib and 
perfunctory. Examples include Comment 4-4.13, 4-4.14.
    Response: Because the commenters failed to identify the specific 
comments/questions that they claim have been ignored (except RTC 4-4.13 
and 4-4.14), no response is possible. RTC 4-4.13 and 4-4.14 were based 
on scientific input from recognized marine biologists and underwater 
acousticians. NMFS recognizes that there is often disagreement about a 
response; however, this is different from being non-responsive. RTCs 4-
4.13 and 4-4.14 are examples of this difference of opinion.
    Comment NEPAC5: The comments of the MMC, pertaining to the Navy's 
SURTASS LFA sonar, and NMFS authority in the matter, are contained in a 
letter to Joseph Johnson (i.e., NEPA program manager for the SURTASS 
LFA sonar program) dated October 27, 1999. Their comments, though 
delivered in a low-key style, are damning in the extreme. See the list 
from Animal Welfare Institute letter of May 29, 2001 to NMFS, page 2, 
comments of the MMC pertaining to the Navy's SURTASS LFA Sonar Draft 
EIS.
    Response: The MMC's comments on the Draft EIS were addressed by the 
Navy in the Final EIS Response to Comments. Some of those issues are 
repeated in this document. NMFS believes the MMC's concerns have been 
adequately addressed in either the Final EIS or this document.
    Comment NEPAC6: Whereas the Final EIS was written by the 
contractor, eager to sell LFA, and the Navy, anxious to use it, the 
first responsibility of NMFS is the conservation of ocean resources, 
not military needs.
    Response: CEQ regulations (40 CFR 1506.5(a)) state, ``Contractors 
shall execute a disclosure statement prepared by the lead agency, or 
where appropriate by the cooperating agency, specifying that they have 
no financial or other interest in the outcome of the project.'' This 
disclosure statement has been executed. The contractor assisted in the 
preparation of the EIS; however, Navy representatives made all 
decisions for the Navy. Marine Acoustics Incorporated, the contractor 
who provided support to the Navy for the SURTASS LFA sonar NEPA process 
is not affiliated with the manufacturer of the SURTASS LFA sonar.
    Knowing that the Navy's SURTASS LFA sonar had the potential to take 
marine mammals incidental to its operation, and, that there was 
consideration being given at the time that an incidental, small take 
application would be submitted by the Navy, NMFS agreed to be a 
cooperating agency on the preparation of the EIS to meet its NEPA 
obligation required because of rulemaking under the MMPA, not the 
``military needs'' of the Navy. See Comment 45 in the SURTASS LFA sonar 
proposed rule for a more detailed discussion.
    Comment NEPAC7: The Navy has already cut contracts for 23 more LFAS 
vessels. By limiting the Final EIS to just four test ships while fully 
intending to use 27 ships or more of the same type, the Navy is guilty 
of ``segmentation.''

[[Page 46776]]

    Response: According to the Navy, it has no plans, nor have any 
contracts been awarded, for the construction of 23 additional SURTASS 
LFA sonar vessels.
    Comment NEPAC8: Why wasn't the NEPA process commenced in the late 
1980s? Why weren't LOAs requested for these tests?
    Response: Early LF acoustic research testing was not considered a 
major Federal action significantly affecting the quality of the human 
environment under NEPA and was not considered to involve the taking of 
marine mammals under the MMPA. As the program developed and the 
building blocks of the operational system were put in place, the 
project moved out of the classified phase and into a mostly 
unclassified phase, while it became increasingly apparent that SURTASS 
LFA operations could possibly affect the marine environment. As 
additional testing was conducted, appropriate analysis under NEPA was 
conducted and the potential for MMPA impacts assessed. On several 
occasions, under proper procedures for handling classified material, 
the Navy consulted with NMFS under section 7 of the ESA on these 
activities. Also, the Navy prepared Environmental Assessments for the 
LFS SRP in June, 1997 (Phase I), November, 1997 (Phase II), and 
February, 1998 (Phase III). Scientific research permits were issued 
under section 104 of the MMPA for the LFS SRP.
    Comment NEPAC9: The EIS is inadequate for the following reasons:
    Comment NEPAC9a: The EIS is less than objective because of the 
irreversible and irretrievable commitment of hundreds of millions of 
dollars.
    Response: Irreversible and irretrievable commitment of funds is 
addressed in the Final EIS Chapter 9 and RTC 1-3.5. As stated in the 
Final EIS, money spent to date related to the SURTASS LFA sonar program 
falls into several different categories. SURTASS LFA sonar itself was 
the result of a lengthy research and development program that 
represented a substantial expenditure of funds. In addition, the Navy 
contracted for refit/construction of vessels that were capable of 
carrying the equipment for the passive (listening only) component 
(SURTASS) as well as the active component (LFA). Also, the LFS SRP was 
expensive, but it contributed significantly and directly to the EIS 
process. In any event, the monies expended on the SURTASS LFA sonar 
program do not bind the Navy to deploy the SURTASS LFA sonar as 
proposed.
    Comment NEPAC9b: The Navy failed to investigate the use of the 
system during ``heightened threat conditions.''
    Response: Use of the system during ``heightened threat conditions'' 
is addressed in the Final EIS (RTC 1-1.8 and 1-1.9) and in this 
document (see RTC AC2).
    Comment NEPAC9c: A failure to consider alternatives to the LFA 
sonar that might achieve the same purpose with less impact to the 
environment, such as passive sonar.
    Response: Alternatives to SURTASS LFA sonar, including passive 
sonar, are covered in the Final EIS Subchapters 1.1.3 and 1.2.2 and 
RTCs 1-2.1, 1-2.2, 1-2.3, and 2-3.3a.
    Comment NEPAC9d: Large data gaps exist.
    Response: Data gaps are discussed in detail in the Final EIS (RTCs 
1-3.6, 2-3.4, 2-3.7, 2-4.2, 3-8.1, 3-8.3, and 4-4.1). In the Final EIS 
Subchapter 1.4.4, the Navy discusses scientific data gaps regarding the 
potential for effects of LF sound on marine life. In addition data gap 
concerns have been addressed in this document.
    Comment NEPAC9e: The Final EIS relies on the limited LFS SRP.
    Response: The Final EIS did not rely solely on the results of the 
LFS SRP. This is discussed in detail in Subchapter 1.4 of the Final 
EIS.
    Comment NEPAC9f: The analysis did not consider the increasing 
stress levels in the oceans.
    Response: In the Final EIS Subchapter 4.4 potential cumulative 
impacts are analyzed in the context of recent changes to ambient sound 
levels in the world's oceans.
    Comment NEPAC9g: The integrity of the Navy's independent 
researchers is questioned because the Navy funded their time to do the 
research. There is a conflict of interest because the Navy funded the 
research.
    Response: Recognized experts in the fields of marine biology and 
bioacoustics independently planned and executed a series of Navy-
sponsored scientific field research projects to address the most 
critical data gaps on the effects of LF sound on the behavioral 
responses of free-ranging marine mammals. NMFS believes the integrity 
of the LFS SRP independent researchers is sound.
    CEQ regulation 40 CFR 1502.22(a) states that if there is incomplete 
information relevant to the impact analysis and the choice among 
alternatives and the cost to obtain it is not exorbitant, the agency 
(in this case the Navy) shall include this information in the EIS. 
Because of the concerns of the scientific community and environmental 
groups, the Navy conducted the LFS SRP and diver's studies despite the 
cost of over $10M. Finally, the funding of the research by the Navy is 
authorized by federal regulations.
    Comment NEPAC10: A conflict of interest exists because two 
employees of NMFS were involved in the preparation and review of the 
EIS.
    Response: See Final EIS RTC 14-1.1 and Comment 45 of NMFS' proposed 
rule document.

CZMA Concerns

    Comment CZMA1: Why has NMFS failed to consider the Navy's lack of 
compliance with the CZMA as an issue in preparing the rule?
    Response: Under the CZMA Federal Consistency Regulations, Federal 
agencies shall review their proposed activities to determine: (1) That 
there will be no coastal effects, or (2) that Federal activities which 
affect any coastal use or resources are undertaken in a manner 
consistent to the maximum extent practicable with the enforceable 
policies of state's approved management programs. At the Draft EIS 
stage, which is the document NMFS had for use when drafting the 
proposed rule, the Navy submitted that document to 23 states and 5 
territories that could potentially be affected by SURTASS LFA sonar 
operations and had approved CZMA programs. Since that time, the Navy 
has completed the consistency process for all coastal states that could 
be potentially affected by LFA (22 states) and territories, with the 
exception of California. The Navy will apply to California prior to 
planned exercises in their waters. On August 7, 2001, the Maine Coastal 
Program requested supplemental coordination based on potential effects 
of the SURTASS LFA sonar operations on the northern right whale and 
other resources of Maine's coastal zone prior to the Navy's deployment 
of the system in the Gulf of Maine. The Navy replied on October 2, 2001 
stating that SURTASS LFA sonar would not be operated in the Gulf of 
Maine or in any critical habitats of the northern right whale. The 
system would not be operated within the 200-meter (656.2-ft) isobath as 
per the geographic restrictions of OBIA#1 for the eastern seaboard. 
Therefore, the Navy determined that supplemental consultation is 
premature.

Magnuson-Stevens Fisheries Conservation and Management Act (Magnuson-
Stevens Act) Concerns

    Comment MAC1: What is the effect of LFA on essential fish habitats 
(EFH)? A

[[Page 46777]]

commenter wants to know why the Navy did not follow the Draft EIS 
comments of NMFS Office of Protected Resources and Office of Habitat 
Conservation that the Navy initiate consultation under the Magnuson-
Stevens Act, or explain in the Final EIS the basis for their conclusion 
that the proposed action would not adversely affect EFH.
    Response: The Navy has determined that the proposed action would 
have no adverse effects on EFHs (Navy letter, Serial 01C/069 of 
February 28, 2000) (See the Final EIS, Appendix A (Correspondence)). 
The potential impacts of the proposed action on fish stocks are 
discussed in the Final EIS Subchapter 4.1.1 and RTC 4-1.2. The Navy 
responded to the subject comment by NMFS in the Final EIS (RTC 6-1.4).

Miscellaneous Concerns (MC)

    Comment MC1: The link between funding and the LFA invites 
investigation. One immediate example is the recent adjustment of funds 
from NMFS in support of right whales. NMFS has recently changed funding 
priorities, removing support from the disentanglement program, 
population studies, and a related scarification project, while 
allocating a very large sum to at least one other scientist closely 
related to the LFA.
    Response: NMFS does not know the identity of the scientist referred 
to in the comment. Without knowing more, NMFS cannot respond fully to 
this comment. NMFS funding has been used for a broad spectrum of 
contract work and internal work on right whales, including the New 
England Aquarium, Oregon State University, and Woods Hole (including 
economists). These are for research tasks, specifically for right whale 
research and recovery actions. Other scientists studying right whales 
have received funding from the North East Consortium. The Consortium 
funding is from an independent peer-review, not from NMFS.
    Comment MC2: NMFS has made several preliminary determinations 
relating to the LFA based on impracticality, for example, specifically 
migration corridors. By definition, it will always be impractical to 
establish management rules or constraints on anthropogenic noise 
because all solutions will be impractical to someone. Also, one 
organization would like NMFS to better address protection measures to 
minimize potential impacts to humpback whales along their migratory 
corridors.
    Response: What NMFS stated in the preamble to the proposed rule was 
that it would be impractical to structure regulations specifying 
migratory corridors. As indicated in this document, because the 
tripartite mitigation will be above 95-percent effective, it is 
unnecessary to prohibit Navy SURTASS LFA sonar operations from wide 
swaths of ocean simply because it is used by a whale stock that is 
widely dispersed in space and time within that corridor. There is 
little information available on open ocean whale migration; for 
example, the actual migration routes of North Pacific humpback whales 
are generally unknown. Recent research has shown that between Hawaii 
and Alaska humpback whales tend to follow a migratory corridor that is 
within 1 degree of magnetic north (Mate et al., 1998). Furthermore, 
Norris et al. (1999) and Abileah et al. (1996) have determined 
``loosely defined'' migration corridors are bounded by longitudes 150/
155 degrees W. and 160 degrees W. and latitudes 30 degrees N. and 40 
degrees N. Migrating humpback whales observed in the Atlantic are 
usually alone or in small pods of 4 to 5 individuals. Based on this 
information, it can be estimated that this humpback whale migration 
route is between approximately 300 to 600 nm (555.6 to 1111.2 km) wide 
in the Pacific Ocean. Therefore, the density of humpback whales would 
be expected to be low, and with the proposed mitigation these open 
ocean migration corridors will not be affected any differently than any 
other open ocean area.
    Comment MC3: NOAA and the Woods Hole Oceanographic Institute (WHOI) 
have LFA technology on their research ships.
    Response: NMFS does not know the commenter's meaning of ``LFA 
technology'' however, SURTASS LFA sonar is not onboard NOAA or WHOI 
vessels. These vessels do, however, have research capabilities using 
various types of sonar for sea bottom mapping, acoustical measurements 
of ocean parameters, and living marine resource assessments.

Affected Marine Mammal Species

    In the Navy Draft and Final EIS analysis and its small take 
application, the Navy excluded from take consideration those marine 
mammal species that either do not inhabit the areas in which SURTASS 
LFA sonar would operate, do not possess sensory mechanisms that allow 
the mammal to perceive LF sounds, or are not physically affected by 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 eleven 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), bowhead (Balaena mysticetus), 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 (Phocoena phocoena), 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 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 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 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).

[[Page 46778]]

    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 and Final EISs and, although not repeated 
here, are considered part of the record of decision on this matter. 
Additional information is available at the following URL: http://www.nmfs.noaa.gov/prot_res/PR2/Stock_Assessment_Program/sars.html 
Please refer to these documents for specific information on marine 
mammal species.

Impacts to Marine Mammals

    To understand the effects of LF noise on marine mammals, one must 
understand the fundamentals of underwater sound and how the SURTASS LFA 
sonar operates in the marine environment. This description was provided 
earlier in this document and also by the Navy in Appendix B to the 
Draft and Final EISs.
    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. In addition, intense acoustic or 
explosive events may cause trauma to tissues associated with organs 
vital for hearing, sound production, respiration and other functions. 
This trauma may include minor to severe hemorrhage.
    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 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, 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 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 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 Final EIS and are not discussed further in 
this document.
    Using the AIM model, the Navy developed 31 acoustic modeling 
scenarios for the major ocean regions (which are described in the 
application and Final 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 zone 
propagation, (2) near surface duct propagation, and (3) shallow water 
bottom interaction propagation. 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

    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 in 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 determining 
exposure were RLs in dB, the pulse repetition interval (time between 
pings), and the number of pings received.
    The Navy interprets the results of the LFS SRP to justify use of 
unlimited exposure to 119 dB during a mission as the lowest value for 
risk. Below this level, the risk of a biologically significant response 
from marine mammals approaches zero. It is

[[Page 46779]]

important to note that risk varies with both level and number of 
exposures.
    In the Final EIS and small take application, the Navy calculated 
the risks for take by injury based on the criterion of 180 dB, which, 
based on Schlundt et al. (2000), is a conservative value for the onset 
of a minor TTS in hearing. Schlundt et al.'s (2000) measurement with 
bottlenose dolphins and belugas at 1-second duration implies that the 
TTS threshold for a 100-second signal would be approximately 184 dB 
(Table 1-4, Final EIS). In addition, for the 400-Hz signal, Schlundt et 
al. (2000), found no TTS at 193 dB, the highest level of exposure. As a 
result, the Navy believes that the 180-dB SPL criterion can be 
considered conservative. With three levels of mitigation monitoring for 
detecting marine mammals (described elsewhere in this document), it is 
unlikely that any marine mammal would get that close before 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 did not document any extended biologically 
significant response at maximum RLs up to 150 dB, the Navy determined 
that there was a 2.5-percent 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. These results are analogous to dose-
response curves used in toxicology that are accepted as the best 
practice in disciplines ranging from epidemiology, toxicology, and 
pharmacology.
    An ``injury continuum'' is not necessary because of the very low 
numbers of individual marine mammals that could potentially experience 
high received sound levels, and the high level of effectiveness of the 
monitoring and shutdown protocols. For this action, all marine mammals 
exposed to an SPL of 180 dB or above are considered to be injured, even 
though, as demonstrated in this document, a mammal would need to 
receive an SPL significantly higher than 180 dB in order to be injured.
    When SURTASS LFA sonar transmits, there is a boundary which will 
enclose a volume of water in which received levels equal or exceed 180 
dB, and a volume of water outside this boundary which experiences 
received levels below 180 dB. In this analysis, the 180-dB SPL boundary 
is emphasized because it represents a single-ping RL that can be 
considered to be a scientifically conservative estimate for the 
potential onset of 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 the onset of potential injury as a single ping at 
180 dB (Navy, 1999b). Under the Navy proposal, a marine mammal would 
have to receive one ping greater than or equal to 180 dB to potentially 
incur an injury.
    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 (i.e., results in an increased 
elevation (i.e., decreased sensitivity) in hearing) 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. 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 the onset of PTS for marine mammals may be 
15-20 dB of TTS (i.e., the difference between the SELs that cause the 
slightest 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, establishing mitigation measures, such as safety zones, as is 
done here, 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 tripartite monitoring mitigation program 
(described later in this document), because the monitoring may not be 
100 percent effective at all times and situations, 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: (1) How does risk vary with repeated sound 
exposure? and (2) how does risk vary with RL? The Navy addressed these 
questions 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 dual-question method 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) and for 
reasons explained in RTC SIC76, the Navy determined that the best 
scientific information available is based on human models and, 
therefore, the formula L + 5 log10 (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.
    Since the release of the Final EIS, an investigation by Cudahy and 
Ellison (2002) noted that the expected threshold for in vivo tissue 
damage (including lung damage and hemorrhaging) for LF sound can be on 
the order of 180 to 190 dB. Vestibular effects could affect balance and 
equilibrium, but may not result in injury. However, these effects are 
based on humans. Measurable performance decrements in vestibular 
function were observed for guinea pigs using 160 dB SPL signals at lung 
resonance and 190 dB SPL signals at 500 Hz. It should be kept in mind 
that guinea pigs are not aquatic species and, as such, are not as 
robust to pressure changes as marine mammals. Finally, as stated in 
Crum and Mao (1996) and as discussed in the Final EIS (page 10-

[[Page 46780]]

137), researchers hypothesized that the received level would have to 
exceed 190 dB in order for there to be the possibility of significant 
bubble growth due to supersaturation of gases in the blood. However, 
``non-auditory traumas'' are not expected to occur from sound exposure 
below SPLs of 180 dB. In light of the high detection rate of the HF/M3 
sonar ensuring required SURTASS LFA sonar shutdown when any marine 
mammal approaches or enters the 180-dB LFA mitigation zone, the risks 
of these traumas to a marine mammal approach zero.

Estimation of Potential Effects to Marine Mammal Stocks

    The potential effects on marine mammals from operation of SURTASS 
LFA sonar will not be the direct removal of animals. Based on AIM 
modeling results, the primary effects are from the potential for a 
significant change in 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 to the modeled site scenarios. Even though the 
Navy will not have more than 2 SURTASS LFA systems operating during the 
next 5 years, its NEPA analysis incorporated four systems with six 
missions 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 normal 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 2007, the Navy's 
projected incidental harassment levels found in the Final EIS and 
application are overestimates of potential harassment levels during 
these regulations. NMFS estimates, therefore, that there would be a 
total of only 6 active SURTASS LFA sonar missions annually per vessel 
(or equivalent shorter missions totaling no more than 432 hours of 
transmission/vessel/year)) during the period of effectiveness of these 
regulations.
    AIM Modeling in Table 4-10 in the application (Table 4.2-10 in the 
Final 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 Final 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 during the effectiveness period of these 
regulations. It should also be recognized that the scenarios chosen by 
the Navy are not the only possible combinations of areas where the 
SURTASS LFA sonar will operate. The potential effects from other 
scenarios can be estimated 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 in the Navy application the 
percentage of each stock that may potentially be affected, and adding 
those percentages together for each affected stock. Using updated 
modeling where appropriate, this is what the Navy will do annually for 
each LOA requested.
    Also, the Navy will rerun AIM when planning missions for new or 
different areas and, if necessary, modify annual LOA authorization 
requests with an analysis of take estimates prior to any mission in a 
new/different area. For this document however, NMFS is adopting the 
Navy estimates shown in Final EIS Tables 4-12 and 4-13 as the best 
scientific information currently available. Thus, even though there 
will be a total of only two systems deployed under this rulemaking, by 
using these two tables, or by choosing a different combination of 
potential geographic areas for SURTASS LFA sonar operations derived 
from Final EIS Table 4-10, any potential scenario of operations can be 
addressed using the two systems (i.e., each in different oceanic areas, 
both in same oceanic area, etc.).
    As stated previously however, given that it is more likely that 
SURTASS LFA sonar missions will occur in the open ocean rather than the 
modeled sites, and that the Navy will rerun AIM when planning missions 
for new or different areas to avoid certain areas during biologically 
sensitive seasons, NMFS believes that the estimates of taking by 
harassment incidental to SURTASS LFA sonar provided in the Final EIS 
are significantly higher than the more realistic 1 to 2 percent (or 
less) of affected stocks during a single 30-day mission. Short-term 
incidental harassment levels between 1 and 12 percent and below are 
considered by NMFS to comply with the MMPA as Level B harassment at 
this level is unlikely to result in significant effects on any species' 
or stock's reproduction or survival. Therefore, in order for incidental 
takings by SURTASS LFA sonar under this regulation to be negligible, 
takings by SURTASS LFA sonar operations during the effective time 
period (1 year) of any LOA issued for such Navy operations must not 
exceed 12 percent of any marine mammal stock (2 percent  x  six 30-day 
missions = 12 percent). However, this 12 percent level should not be 
interpreted to mean that the Navy will take up to 12 percent of all 
affected marine mammal stocks. In most cases, with carefully planned 
SURTASS LFA sonar missions (e.g., to avoid certain biogeographic 
provinces during seasons of increased marine mammal abundance), the 
total annual Level B takes are expected to be significantly less than 
this level. Therefore, NMFS believes that the potential effect by 
SURTASS LFA sonar operations will be limited to only small numbers of 
the affected stocks of marine mammals that will have no more than a 
negligible impact on affected species and stocks of marine mammals. 
Moreover, the potential effect will be limited to incidental harassment 
that will not adversely affect the stock through annual rates of 
recruitment or survival.

Mitigation for Marine Mammals

    This document adopts, with modification, 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 180-dB SURTASS LFA 
mitigation zone. The three monitoring systems are described in the 
following section of this document. If a marine mammal (or ESA-listed 
sea turtle) is detected within the 180-dB SURTASS LFA sonar mitigation 
zone, SURTASS LFA sonar transmissions will be immediately delayed or 
suspended. Transmissions may commence/resume 15 minutes after the 
marine mammal/sea turtle has left the area of the 180-dB sound field or 
there is 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). 
However, NMFS has concluded that the 180-dB safety zone needs to be 
augmented to ensure to the greatest extent practicable that marine 
mammals are not subject to potential injury. In that regard, as an 
added safety measure, NMFS has established an interim ``buffer zone'' 
extending an additional 1 km (0.54 nm) beyond the 180-dB LFA

[[Page 46781]]

mitigation zone. Therefore, as soon as a marine mammal (or ESA-listed 
sea turtle) is detected by the HF/M3 sonar, the SURTASS LFA sonar will 
either be turned off or not turned on. This is a feasible mitigation 
measure since recent testing of the HF/M3 sonar indicates effective 
levels of detection up to 2 km (1.1 nm). At 2 km (1.1 nm), the SPL from 
the SURTASS LFA sonar will be approximately 173 dB. 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.
    NMFS recognizes that there are areas of insufficient knowledge that 
must be accounted for when estimating the potential effects on marine 
mammals (e.g., the impacts of resonance on marine mammals, where 
research is already underway). NMFS also believes the present level of 
understanding is adequate to place reasonable bounds on potential 
impacts and provide a logical basis for the decision that safe and 
proper employment of SURTASS LFA sonar can be managed.
    The Navy 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) at a distance of 12 
nm (22 km) from 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. The 12-nm (22-km) restriction 
includes almost all marine-related critical habitats and National 
Marine Sanctuaries (NMSs). However, some parts of NMSs, that are 
recognized to be important for marine mammals, are outside 12 nm (22 
km). For purposes of this rulemaking, and because of their importance 
for marine mammals, NOAA's Office of National Marine Sanctuaries (ONMS) 
has recommended the following protective measures for operating SURTASS 
LFA sonar: (1) For the Monterey Bay NMS, received levels should not 
exceed 180 dB throughout the NMS; (2) in the Gulf of the Farallones and 
Cordell Bank NMSs, received levels should not exceed 180 dB, including 
those areas of the NMSs that extend beyond 12 nm (22 km); (3) for the 
Olympic Coast NMS, received levels in the NMS should not exceed 180 dB 
in the area from shore to 23 nm (37.4 km) in the months of December, 
January, March, and May of each year; and (4) for the Hawaiian Islands 
Humpback Whale NMS (HIHWNMS), received levels should not exceed 180 dB 
from December through May of each year. However, some of these NMSs, 
and others not listed here, will have additional mitigation for marine 
mammals because they are also human dive sites. As such, SPLs will not 
exceed more than 145 dB in those areas. Other than HIHWNMS, which is 
fully protected because of the addition of Penguin Bank as an OBIA 
under this action, the remaining three areas are limited to receiving 
an SPL no greater than 180 dB in order to protect marine mammals in 
those areas.
    In addition to establishing a safety zone at 180 dB to protect 
marine mammals and other noise sensitive marine animals, the Navy will 
establish a safety zone for human divers at 145 dB re 1 
Pa(rms) around all known human commercial and recreational 
diving sites. Although this geographic restriction is intended to 
protect human divers, it 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 in its Draft and Final EISs. 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. 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 28 deg. N. 
and 50 deg. N. from west of 40 deg. W. to the 200-m (656-ft) isobath 
year-round; (2) the Antarctic Convergence Zone, from 30 deg. E. to 
80 deg. E to 45 deg. S., from 80 deg. E. to 150 deg. E. to 55 deg. S., 
from 150 deg. E. to 50 deg. W. to 60 deg. S., from 50 deg. W to 30 deg. 
E. to 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, NMFS has established a system for expanding the 
list of OBIAs. The establishment of OBIAs is not intended to apply to 
other Navy activities and sonar operations, but has been established in 
this rule as a mitigation measure to reduce incidental takings by 
SURTASS LFA sonar.

Monitoring

    In order to minimize risks to potentially affected marine mammals 
that may be present in waters surrounding SURTASS LFA sonar, the Navy 
will: (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 approaching the 180-dB sound field of the source array 
by at least one of these monitoring methods is above 95 percent. 
However, an effectiveness of 66 percent has been used in the Final EIS 
take calculations. The Navy's assumption incorporates the 50-percent 
effectiveness of the HF/M3 sonar (although testing the HF/M3 sonar 
indicates that it is over 95 percent effective), and an additional 
conservative 9-percent contribution for visual and 25 percent for 
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.
    NMFS has reviewed this Navy proposal and believes that the proposal 
can be modified to provide additional protection for marine mammals. 
Because the HF/M3 has the capability to detect marine mammals, and 
track them, to a distance of 2 km (1.1 nm) from the source, NMFS is 
requiring the Navy to delay or suspend transmissions whenever a marine 
mammal is detected by the HF/M3 within the SURTASS LFA safety zone and 
the 1-km (0.54 nm) buffer zone. Also, NMFS is requiring the Navy to 
delay transmissions whenever a marine mammal has the potential to 
receive a calculated SPL 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 that the Navy continue to monitor the SURTASS LFA sonar 
mitigation and buffer zones between successive pings. Because the time 
between SURTASS LFA sonar ``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

[[Page 46782]]

interim period and tracking of marine mammals will continue.

Reporting

    During routine operations of SURTASS LFA sonar, technical and 
environmental data will be collected and recorded. These would include 
data from visual and acoustic monitoring, ocean environmental 
measurements, and technical operational inputs.
    The LTM Program reporting requirements are two-fold. First, a 
mission report will be provided to NMFS on a quarterly basis with the 
report including all active-mode missions that have been completed 30 
days or more prior to the date of the deadline for the report. This is 
the standard period of time provided for all small take authorizations. 
Second, the Navy will submit an annual report no later than 90 days 
prior to expiration of an LOA. These reports are summarized here.
    Quarterly Report--On a quarterly basis, the Navy will provide NMFS 
with a report that includes all active-mode missions that have been 
completed 30 days or more prior to the date of the deadline for the 
report. Specifically, these data will include dates/times of exercises, 
dates/times of LFA transmissions, locations of vessel, LOA area(s), 
marine mammal observations (see below for specifics), and records of 
all delays or suspensions of operations. Marine mammal observations 
will include animal type and/or species, number of animals sighted, 
date and time of observations, type of detection (visual, passive 
acoustic, HF/M3 sonar), bearing from vessel, range from vessel, 
abnormal behavior (if any), and remarks/narrative (as necessary). 
Because this period of time is insufficient to allow the Navy to 
declassify information that might compromise national security, 
quarterly reports will be classified and the information will not be 
publically available until the annual report. The Navy will declassify 
the quarterly information based on national security concerns and 
provide it in its annual, unclassified report. In the interim, NMFS 
will use these quarterly reports to monitor the SURTASS LFA sonar 
activity to ensure compliance with the terms and conditions of the LOA 
and regulations.
    Annual Report--The annual report will provide NMFS with an 
unclassified summary of the year's quarterly reports and will include 
the Navy's assessment of whether any taking occurred within the SURTASS 
LFA mitigation and buffer zones and estimates of the percentage of 
marine mammal stocks affected by SURTASS LFA sonar operations, using 
predictive modeling based on operating locations, dates/times of 
operations, system characteristics, oceanographic environmental 
conditions, and animal demographics.
    The annual report will also include: (1) Analysis of the 
effectiveness of the mitigation measures with recommendations for 
improvements where applicable; (2) assessment of any long-term effects 
from SURTASS LFA sonar operations; and (3) any discernible or estimated 
cumulative impacts from SURTASS LFA sonar operations.
    A notice of availability of the annual report(s) will be published 
in the Federal Register within 30 days of receipt of the annual report.

Comprehensive Report

    The Navy is required by these regulations to provide NMFS and the 
public with a final comprehensive report analyzing the impacts of 
SURTASS LFA sonar on marine mammal stocks. This report will include an 
in-depth analysis of all monitoring and research conducted during the 
5-year period of these regulations, a scientific assessment of 
cumulative impacts on marine mammal stocks, and an analysis on the 
advancement of alternative (passive) technologies as a replacement for 
LFA sonar. This report will be a key document for NMFS' review and 
assessment of impacts for any renewal of these regulations.

Research

    The Navy will, through a LTM program, provide annual assessments of 
the potential cumulative impact of SURTASS LFA sonar operations on 
marine mammals, fund research on impacts of LF sounds on marine 
mammals, conduct monitoring and reporting to increase knowledge of the 
species, and coordinate with others on additional 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 will 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 marine mammals, it believes that it would be 
prudent to continue research over the course of the period of 
effectiveness of these regulations. Accordingly, NMFS recommends that 
the Navy conduct the following research regarding SURTASS LFA sonar 
over the first 5-year authorization period:
    1. Systematically observe SURTASS LFA sonar training exercises for 
injured or disabled marine animals. Past correlations between military 
operations and the stranding of beaked whales, including the Bahamas 
event, call for closer observation of all sonar operations.
    2. Compare the effectiveness of the three forms of mitigation 
(visual, passive acoustic, HF/M3 sonar).
    3. Conduct research on the behavioral reactions of whales to sound 
levels that were not tested during the research phase, specifically 
between 155 dB and 180 dB. This should be done in a research format 
rather than in actual training operations.
    4. Conduct research on the responses of sperm and beaked whales to 
LF-sonar signals. These species are believed to be less sensitive to 
LF-sonar sounds than the species studied prior to the LFS-SRP. However, 
enough questions exist that these species should be studied during the 
five-year permit period.
    5. Conduct research on the habitat preferences of beaked whales, 
and plan future SURTASS LFA training exercises to avoid such areas. 
Avoidance is the most effective mitigation measure.
    6. Conduct passive acoustic monitoring using bottom-mounted 
hydrophones before, during, and after SURTASS LFA sonar operations for 
the possible silencing of calls of large whales.
    7. Continue research with the HF/M3 mitigation sonar. This is the 
primary means of mitigation, and its efficacy must continue to be 
demonstrated. ROC curves should be constructed if possible.
    8. To determine potential long term, cumulative effects from 
SURTASS LFA sonar, select a stock of marine mammals that is expected to 
be regularly exposed to SURTASS LFA sonar and monitor it for population 
changes throughout the 5-year period. Alternatively, look for long-term 
trends in the vocalizations of marine mammals that are exposed to 
SURTASS LFA signals (see item number 6).

LOA Conditions

    The 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 will 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 they are made effective (see RTC MMPAC46), 
modifications can be implemented in a

[[Page 46783]]

shorter period of time if contained in LOAs than would be possible if 
rulemaking were required for each modification. The public would be 
provided a comparable length of time for commenting on proposed LOA 
modifications (except when NMFS determines that an emergency exists 
that 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 would not be provided to the public in advance.
    In the past, NMFS has promulgated regulations for small take 
authorizations that did not clearly describe LOA conditions. For this 
activity the following conditions will be in the LOA (in addition to, 
or in clarification of, those found in these regulations):
    (1) Prior to each exercise, the distance from the SURTASS LFA sonar 
source to the 180-dB isopleth will be determined. That distance will be 
the established safety zone for that exercise; and
    (2) Until research on the effects of resonance and tissue damage on 
marine mammals from underwater noise has been conducted, NMFS has 
included two interim operational restrictions to preclude the potential 
for injury to marine mammals by resonance effects: (a) Establishment of 
a 1-km (0.5-nm) HF/M3 buffer shutdown zone outside the 180-dB zone and 
(b) limiting the operating frequency of SURTASS LFA to 330 Hz and 
below.
    These interim operational restrictions will be part of all LOAs 
issued under this rulemaking and a 30-day public comment period will 
occur before either one is removed. In order to lift the restriction, 
the Navy would need to provide empirical and/or documentary evidence 
that resonance and/or tissue damage from SURTASS LFA sonar 
transmissions is unlikely to occur in marine mammals at levels less 
than 190 dB.

Designation of Biologically Important Marine Mammal Areas

    This final rule establishes a system for the public to petition 
NMFS to consider adding an area 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 OBIA or other 180-dB 
exclusion 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 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 of 
its determination. 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.

Determinations

    At present, only two SURTASS LFA sonar systems are available for 
deployment. According to the Navy, delivery of the third and fourth 
systems have been postponed until after FY 2007. As a result, under the 
5-year window of these regulations, NMFS is authorizing marine mammal 
harassment takings for only 2 SURTASS LFA sonar systems. An 
authorization for additional SURTASS LFA sonar systems would require an 
amendment to these regulations.
    With the normal scenario of one vessel operating in the Pacific-
Indian Ocean area and one vessel in the Atlantic Ocean-Mediterranean 
Sea area, there could be up to 9 operations in each of these oceanic 
areas per year, normally six 30-day active missions using SURTASS LFA 
sonar (or equivalent shorter missions totaling no more than 432 hours 
of transmission/vessel/year), and three 30-day passive missions using 
only SURTASS sonar. The remaining 95 days would probably be spent in 
port. During a normal 30-day mission, it is estimated there would be 
two 9-day exercise periods, with up to 20 hours of sonar operations 
during an exercise day. Based on a 20-percent maximum duty cycle, the 
system would actually be transmitting for a maximum of 4 hours per day, 
resulting in 72 hours per 30-day mission and 432 hours per year of 
active transmission for each system. (There are 8,760 hours in a 
standard year).
    Based on the scientific analyses detailed in the Navy application 
and further supported by information and data contained in the Navy's 
Final EIS for SURTASS LFA sonar operations and previously in this 
document, NMFS concurs with the Navy that the incidental taking of 
marine mammals resulting from SURTASS LFA sonar operations would result 
in the take of only small numbers of marine mammals, 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. This determination is supported by the highly 
effective mitigation measures and interim operating restrictions 
implemented for all SURTASS LFA sonar operations and the LTM program, 
including the research to be conducted therein. This includes 
geographic operation restrictions, mitigation measures to minimize 
injury to any marine mammals, monitoring and reporting impacts to 
marine mammals and supplemental research that will result in increased 
knowledge of marine mammal species, and the potential impacts of LF 
sound on these species. In addition to ONR-funded marine mammal 
research (approximately $7M), the Navy intends to spend $1 million 
annually to fund the LTM program. These 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 summary, the following factors support NMFS' determination that 
the takings by harassment as a result of the Navy's use of SURTASS LFA 
sonar would have no more than a negligible impact on any species or 
stock of marine mammal: (1) The findings of the scientific research 
program on LF sounds on marine mammals indicated no significant change 
in biologically important behavior from exposure to sound levels up to 
155 dB; (2) the small number of SURTASS LFA sonar systems that would be 
operating world-wide; (3) the relatively low duty cycle, short mission 
periods and offshore nature of the SURTASS LFA sonar (where there is 
lower marine mammal abundance); (4) for convergence zone (CZ) 
propagation, the characteristics of the acoustic sound path, which 
deflect the sound below the water depth inhabited by marine

[[Page 46784]]

mammals for approximately 75 percent of the distance between the source 
and the first CZ and between the first CZ and the second CZ 
(approximately 45 km); (5) that the vessel must be underway while 
transmitting (in order to keep the receiver array deployed), limiting 
the duration of exposure for marine mammals to those few minutes when 
the SURTASS LFA sound energy is moving through that part of the water 
column inhabited by marine mammals; (6) for CZ propagation, the narrow 
width of the CZ ray path and up to a 1,000-fold decrease in the 
intensity of the sound immediately outside the ray path, further 
limiting exposure to marine mammals; and (7) implementation of the 
mitigation measures and interim operating restrictions that make it 
unlikely for a marine mammal to be undetected within the 180-dB sound 
field (and thereby potentially injured) during sonar transmissions. 
These measures all indicate that while marine mammals will potentially 
be affected by the SURTASS LFA sonar sounds, these impacts will be 
short-term and will not affect the survival or reproductive potential 
for marine mammals on a species or stock basis.

Substantial Changes to the Proposed Rule

    The following modifications have been made to the proposed rule.
    A paragraph has been added limiting these regulations to a maximum 
of two SURTASS LFA sonar systems.
    The 16 geographic regions have been replaced with a new 
biogeographic system with 15 biomes and 54 provinces under the 15 
biomes.
    A paragraph has been added to note that if petitions for OBIAs are 
received without sufficient information for NMFS to justify proceeding 
with the petition, NMFS will determine whether the nominated area 
warrants further study. If it does, NMFS will begin a scientific review 
of the petition.
    A paragraph has been added to prohibit SPLs from exceeding 180 dB 
within those portions of the Monterey Bay NMS and the Gulf of the 
Farallones and Cordell Bank NMSs that extend beyond 12 nm (22 km); 
also, at the Olympic Coast NMS received levels in the NMS should not 
exceed 180 dB in the area from shore to 23 nm (37.4 km) offshore in the 
months of December, January, March, and May of each year.
    A modification has been made to Sec. 216.183(e) to extend the East 
Coast OBIA south to 28 deg. N. in order to include the entire 
southeastern United States critical habitat for the northern right 
whale.
    For consistency, certain protective measures that were listed under 
Sec. 216.183 Prohibitions have been relocated to Sec. 216.184 
Mitigation. In new Sec. 216.184, Sec. 216.184(d) has been revised to 
(1) clarify that operating the SURTASS LFA sonar source at an SPL 
greater than 180 dB at a distance of 12 nm (22 km) from any coastline 
is not authorized, and (2) correct the coordinates for the center of 
the Penguin Bank OBIA.
    A sentence has been added establishing a ``buffer zone'' extending 
an additional 1 km (0.5 nm) beyond the 180-dB safety zone. As soon as a 
marine mammal (or sea turtle) is detected by the HF/M3 sonar within the 
buffer zone, the LFA sonar will either be turned off or not turned on.
    A sentence has been added requiring the HF/M3 to cease ramp-up once 
a marine mammal is detected by the HF/M3.
    A modification has been made to require monitoring to continue 
either for 15 minutes after the last transmission of an exercise, or 
until marine mammal behavior has returned to normal (based upon the 
observer's determination), whichever is later. If aberrant marine 
mammal behavior has not been observed before, during, or after the last 
series of transmissions, observations do not need to continue after 15 
minutes.
    A paragraph has been added requiring quarterly mission reports with 
the report including all active-mode SURTASS LFA sonar missions that 
have been completed 30 days or more prior to the date of the deadline 
for the report.
    A sentence has been added to Sec. 216.186(c) requiring an analysis 
of passive sonar systems (not previously analyzed) and an assessment of 
whether any system is feasible as an alternative to SURTASS LFA sonar 
to be provided at least 240 days prior to expiration of these 
regulations.
    The proposed definition of ``single-ping equivalent'' has not been 
implemented and the term ``single-ping equivalent'' or ``SPE'' has been 
replaced by the term ``SPL.'' This change is warranted because the 
implementation of a 1-km (0.54-nm) buffer zone wherein SURTASS LFA 
sonar transmissions will be delayed or suspended for marine mammals 
makes the tracking of marine mammals between ``pings'' unnecessary.
    Paragraph 216.185(c) has been amended by limiting the authority to 
board U.S. Naval vessels to Federal agencies with jurisdiction, such as 
NMFS, USFWS and the Coast Guard. As the SURTASS LFA sonar vessel will 
remain outside 12 nm (22 km) of U.S. coastal waters, state and local 
agencies do not have jurisdiction to board these vessels, unless under 
an existing cooperative enforcement agreement with NMFS.
    As a result of consultation under section 7 of the ESA, paragraph 
216.180(b) has been amended to include the Spitzbergen stock of bowhead 
whales.

NEPA

    On July 30, 1999 (64 FR 41420), the Environmental Protection Agency 
(EPA) announced receipt of a Draft 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 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. NMFS has reviewed the Navy's Final EIS and does not 
have any significant concerns with the findings contained therein. As a 
result, NMFS hereby adopts the Navy Final EIS as its own as provided by 
40 CFR 1506.3 and finds that it is unnecessary to either prepare its 
own NEPA documentation on the issuance of these regulations nor to 
recirculate the Navy Final EIS for additional comments. The Navy's 
Final EIS is available at: http://www.surtass-lfa-eis.com.

ESA

    On October 4, 1999, the Navy submitted a Biological Assessment to 
NMFS to initiate consultation under section 7 of the ESA. NMFS 
concluded consultation with the Navy on this action on May 30, 2002. 
The conclusion of that consultation was that operation of the SURTASS 
LFA sonar system for testing, training and military operations and the 
issuance by NMFS of a small take authorization for this activity are 
not likely to jeopardize the continued existence of any endangered or 
threatened species under the jurisdiction of NMFS. A copy of the 
Biological Opinion issued as a result of that consultation is available 
at: http://www.nmfs.noaa.gov/prot_res/overview/publicat.html.

Classification

    This action has been determined to be significant for purposes of 
Executive Order 12866. NMFS has determined that this final rule 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

[[Page 46785]]

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 final rule, 
and 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 of the U.S. Navy. The cost to the Navy to implement the 
mitigation and monitoring measures cannot be fully determined at this 
time but these costs would be incurred through implementation of the 
LTM program that will be required under this final rule. NMFS believes 
that this cost would be approximately $ 1 million annually.
    The Chief Counsel for Regulation of the Department of Commerce has 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this action would not have a significant economic 
impact on a substantial number of small entities. As a result no 
regulatory flexibility analysis was prepared. The factual basis for the 
certification was published in the proposed rule. No comments were 
received regarding the economic impacts of this action.
    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 final 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 reports. Other 
information requirements in the final rule are not subject to the PRA 
since they apply only to a single entity and therefore are not 
contained in a rule of general applicability.
    The reporting burden for the approved collections-of-information is 
estimated to be approximately 120 hours for the annual applications for 
an LOA, and a total of 120 hours for the quarterly and annual 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: July 1, 2002.
Rebecca Lent,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For reasons set forth in the preamble, 50 CFR part 216 is amended 
as follows:

PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE 
MAMMALS

    1. The authority citation for part 216 continues to read as 
follows:

    Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.


    2. 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 (SURTASS 
LFA) 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 
(SURTASS LFA) 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, while engaged in the operation 
of no more than two SURTASS LFA sonar systems conducting active 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) Atlantic Polar Biome:
    (i) Boreal Polar Province (1/BPLR)(i.e., LFA sonar 180-dB exclusion 
zone);
    (ii) Atlantic Arctic Province (2/ARCT);
    (iii) Atlantic Subarctic Province (3/SARC);
    (2) North Atlantic Coastal Biome:
    (i) Northeast Atlantic Shelves Province (11/NECS),
    (A) North/Irish Sea Subprovince,
    (B) English Channel Subprovince,
    (C) Southern Outer Shelf Subprovince,
    (D) Northern Outer Shelf Subprovince, and
    (E) Baltic Subprovince; and
    (ii) Northwest Atlantic Shelves Province (15/NWCS),
    (A) Newfoundland/Nova Scotia Shelf Subprovince,
    (B) Gulf of St. Lawrence Coastal Subprovince,
    (C) Gulf of Maine/Bay of Fundy Coastal Subprovince,
    (D) Georges Bank/New York Bight Coastal Subprovince,
    (E) Middle Atlantic Bight Coastal Subprovince,
    (F) South Atlantic Bight Coastal Subprovince;
    (3) South Atlantic Coastal Biome:
    (i) Benguela Current Coastal Province (22/BENG);
    (ii) Brazil Current Coastal Province (20/BRAZ);
    (iii) Eastern (Canary) Coastal Province (12/CNRY);
    (iv) Southwest Atlantic Shelves Province (21/FKLD);
    (v) Guianas Coastal Province (14/GUIA);
    (vi) Guinea Current Coastal Province (13/GUIN),
    (A) Guiana Coastal Subprovince, and
    (B) Central African Coastal Subprovince;
    (4) Atlantic Westerly Winds Biome:
    (i) Gulf Stream Province (5/GFST);
    (ii) North Atlantic Drift Province (4/NADR);
    (iii) North Atlantic Subtropical Gyral East Province (18/NASTE); 
and

[[Page 46786]]

    (iv) North Atlantic Subtropical Gyral West Province (6/NASTW);
    (5) Atlantic Trade Wind Biome:
    (i) Caribbean Province (17/CARB);
    (A) Gulf of Mexico Subprovince;
    (B) Caribbean Sea Subprovince;
    (ii) Eastern Tropical Atlantic Province (9/ETRA);
    (iii) North Atlantic Tropical Gyral Province (7/NATR);
    (iv) South Atlantic Gyral Province (10/SATL);
    (v) Western Tropical Atlantic Province (8/WTRA);
    (6) Mediterranean/Black Sea Biome:
    (i) Mediterranean Sea Province (16A/MEDI);
    (ii) Black Sea Province (16B/BLSE);
    (7) Indian Ocean Coastal Biome:
    (i) Australia/Indonesia Coastal Province (37/AUSW);
    (ii) Eastern India Coastal Province (35/INDE);
    (iii) Northwestern Arabian Upwelling Province (34/ARAB);
    (iv) Eastern Africa Coastal Province (32/EAFR);
    (v) Western India Coastal Province (36/INDW);
    (vi) Red Sea, Persian Gulf Province (33/REDS);
    (8) Indian Ocean Trade Wind Biome:
    (i) Indian South Subtropical Gyre Province (31/ISSG);
    (ii) Indian Monsoon Gyres Province (30/MONS);
    (9) North Pacific Coastal Biome:
    (i) Alaska Downwelling Coastal Province (65/ALSK),
    (A) Canadian/Alaskan Coastal Subprovince,
    (B) Aleutian Stream Coastal Subprovince,
    (ii) California Current Province (66/CALC),
    (A) Oregon-British Columbia Coastal Subprovince,
    (B) Point Conception/Cape Mendicino Coastal Subprovince,
    (C) Southern California Bight Subprovince, and
    (D) Baja California Subprovince;
    (iii) Central American Coastal Province (67/CAMR);
    (iv) China Sea Coastal Province (69/CHIN);
    (10) South Pacific Coastal Biome:
    (i) East Australian Coastal Province (71/AUSE);
    (ii) Humboldt Current Coastal Province (68/HUMB);
    (A) Chilean Coastal Subprovince and
    (B) Peruvian Coastal Subprovince;
    (iii) New Zealand Coastal Province (72/NEWZ);
    (iv) Sunda/Arafura Shelves Province (70/SUND);
    (11) Pacific Polar Biome:
    (i) North Pacific Epicontinental Sea Province (50/BERS);
    (A) Bering Sea Subprovince;
    (B) Okhotsk Sea Subprovince;
    (ii) Reserved;
    (12) Pacific Trade Wind Biome:
    (i) Archipelagic Deep Basins Province (64/ARCH);
    (ii) North Pacific Tropical Gyre West Province (56/NPTGW);
    (iii) North Pacific Tropical Gyre East Province (60/NPTGE);
    (iv) Pacific Equatorial Divergence Province (62/PEQD);
    (v) North Pacific Equatorial Countercurrent Province (61/PNEC);
    (vi) South Pacific Subtropical Gyre Province (59/SPGS);
    (vii) Western Pacific Warm Pool Province (63/WARM);
    (13) Pacific Westerly Winds Biome:
    (i) Kuroshio Current Province (53/KURO);
    (ii) North Pacific Transition Zone Province (54/NPPF);
    (iii) Pacific Subarctic Gyres (East) Province (51/PSAGE);
    (iv) Pacific Subarctic Gyres (West) Province (52/PSAGW);
    (14) Antarctic Westerly Winds Biome:
    (i) Subantarctic Water Ring Province (81/SANT),
    (A) Atlantic Subantarctic Ring Subprovince;
    (B) Indian Ocean Subantarctic Ring Subprovince;
    (C) Pacific Ocean Subantarctic Water Ring Subprovince;
    (ii) Subtropical Convergence Province (80/SSTC),
    (A) Atlantic South Subtropical Convergence Subprovince;
    (B) Indian Ocean South Subtropical Convergence Subprovince;
    (C) Pacific Ocean South Subtropical Convergence Subprovince;
    (iii) Tasman Sea Province (58/TASM);
    (15) Antarctic Polar Biome: (SURTASS LFA sonar exclusion zone);
    (i) Antarctic Province (82/ANTA)
    (ii) Austral Polar Province (83/APLR).
    (b) The incidental take by Level A and Level B harassment of marine 
mammals under the activity identified in this section is limited to the 
following species and species groups:
    (1) Mysticete whales--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), bowhead whale (Balaena 
mysticetus), and gray whales (Eschrichtius robustus).
    (2) Odontocete whales--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).
    (3) Pinnipeds--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 August 15, 2002 
through August 15, 2007.


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 Level A and 
Level B harassment within the areas 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

[[Page 46787]]

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 Level A and Level B harassment;
    (c) Take any marine mammal by receiving a sound pressure level 
greater than 180 dB while operating under a Letter of Authorization in 
any geographic area for which a Letter of Authorization has not been 
issued;
    (d) 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
    (e) Violate, or fail to comply with, the terms, conditions, and 
requirements of the regulations in this subpart or any 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 section and in any 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 sound pressure 
level of 180 dB or greater.
    (b) If a marine mammal is detected within the area subjected to 
sound pressure levels of 180 dB or greater (safety zone) or within the 
1 km (0.5 nm) (buffer) zone extending beyond the 180-dB safety zone, 
SURTASS LFA sonar transmissions will be immediately delayed or 
suspended. Transmissions will not resume earlier than 15 minutes after:
    (1) All marine mammals have left the area of the safety and buffer 
zones; and
    (2) There is no further detection of any marine mammal within the 
safety and buffer zones as determined by the visual and/or passive or 
active acoustic monitoring described in Sec. 216.185.
    (c) The high-frequency marine mammal monitoring sonar (HF/M3) 
described in Sec. 216.185 will be ramped-up slowly to operating levels 
over a period of no less than 5 minutes:
    (1) At least 30 minutes prior to any SURTASS LFA sonar 
transmissions;
    (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 HF/M3 source has been powered down for more 
than 2 minutes.
    (d) The HF/M3 source will not increase its sound pressure level 
once a marine mammal is detected; ramp-up may proceed once marine 
mammals are no longer detected.
    (e) The Holder of a Letter of Authorization will not operate the 
SURTASS LFA sonar while under a Letter of Authorization, such that the 
SURTASS LFA sonar sound field exceeds 180 dB (re 1 Pa(rms)):
    (1) At a distance of 12 nautical miles (nm) (22 kilometers (km)) 
from any coastline, including offshore islands;
    (2) Within any offshore area that has been designated as 
biologically important for marine mammals under Sec. 216.183(f), during 
the biologically important season for that particular area;
    (3) Within the offshore boundaries that extend beyond 12 nm (22 km) 
of the following National Marine Sanctuaries:
    (i) Monterey Bay,
    (ii) Gulf of the Farallones, and
    (iii) Cordell Bank;
    (4) Within 23 nm (37.4 km) during the months of December, January, 
March, and May of each year in the Olympic Coast National Marine 
Sanctuary.
    (f) The following areas have been designated by NMFS as offshore 
areas of critical biological importance for marine mammals (by season 
if appropriate):

------------------------------------------------------------------------
                                                           Months of
          Name of area             Location of area       importance
------------------------------------------------------------------------
(1) 200-m isobath North American  From 28 deg. N. to  Year-Round.
 East Coast.                       50 deg. N. west
                                   of 40 deg. W.
(2) Antarctic Convergence Zone..  30 deg. E. to 80    October 1 through
                                   deg. E to 45 deg.   March 31.
                                   S. 80 deg. E. to
                                   150 deg. E. to 55
                                   deg. S. 150 deg.
                                   E. to 50 deg. W.
                                   to 60 deg. S. 50
                                   deg. W to 30 deg.
                                   E. to 50 deg. S.
(3) Costa Rica Dome.............  Centered at 9 deg.  Year-Round.
                                   N. and 88 deg. W.
(4) Penguin Bank................  Centered at 21      November 1 through
                                   deg. N. and 157     May 1.
                                   deg. 30'W.
------------------------------------------------------------------------

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 issued pursuant to Secs. 216.106 and 216.188 must:
    (1) Conduct visual monitoring from the ship's bridge during all 
daylight hours;
    (2) Use low frequency passive SURTASS LFA sonar to listen for 
vocalizing marine mammals; and
    (3) Use the HF/M3 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) Monitoring under paragraph (a) of this section must:
    (1) Commence at least 30 minutes before the first SURTASS LFA sonar 
transmission;
    (2) Continue between transmission pings; and
    (3) Continue either for at least 15 minutes after completion of the 
SURTASS LFA sonar transmission exercise, or, if marine mammals are 
exhibiting unusual behavioral patterns, for a period of time until 
behavior patterns return to normal or conditions prevent continued 
observations;
    (c) Holders of Letters of Authorization for activities described in 
Sec. 216.180 are required to cooperate with the National Marine 
Fisheries Service and any other federal agency for 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.
    (e) Holders of Letters of Authorization must conduct all monitoring 
and research required under the Letter of Authorization.


Sec. 216.186  Requirements for reporting.

    (a) The Holder of the Letter of Authorization must submit quarterly 
mission reports to the Director, Office of Protected Resources, NMFS, 
no later than 30 days after the end of each

[[Page 46788]]

quarter beginning on the date of effectiveness of a Letter of 
Authorization or as specified in the appropriate Letter of 
Authorization. Each quarterly mission report will include all active-
mode missions completed during that quarter. At a minimum, each 
classified mission report must contain the following information:
    (1) Dates, times, and location of the vessel during the mission;
    (2) Information on sonar transmissions as detailed in the Letter of 
Authorization; and
    (3) Results of the marine mammal monitoring program specified in 
the Letter of Authorization.
    (b) The Holder of a Letter of Authorization must submit an annual 
report to the Director, Office of Protected Resources, NMFS, no later 
than 90 days prior to expiration of a Letter of Authorization. This 
report must contain all the information required by the Letter of 
Authorization.
    (c) A final comprehensive report must be submitted to the Director, 
Office of Protected Resources, NMFS at least 240 days prior to 
expiration of these regulations. In addition to containing all the 
information required by any final year Letter of Authorization, this 
report must contain an analysis of new passive technologies and an 
assessment of whether such a system is feasible as an alternative to 
SURTASS LFA sonar.


Sec. 216.187  Applications for Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, the U.S. Navy authority conducting the activity identified 
in Sec. 216.180 must apply for and obtain a Letter of Authorization in 
accordance with Sec. 216.106.
    (b) The application for an initial or a renewal of a Letter of 
Authorization must be submitted to the Director, Office of Protected 
Resources, NMFS, at least 60 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 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 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 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 and 
the level of taking or impacts on marine mammal populations.
    (d) The National Marine Fisheries Service 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.


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 incidental takings;
    (3) Means of effecting the least practicable adverse impact on the 
species of marine mammals authorized for taking, their habitat, and 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 an application for 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 NMFS 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 NMFS of the information 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 NMFS and determined to be 
acceptable;
    (4) A determination by NMFS 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
    (5) A determination by NMFS 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, or if NMFS proposes a substantial modification to the Letter of 
Authorization, NMFS will provide a period of 30 days for public review 
and comment on the proposed 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) Except as provided in paragraph (b) of this section, no 
substantial modification (including withdrawal or suspension) to a 
Letter of Authorization issued pursuant to Secs. 216.106 and 216.188 
and subject to the provisions of this subpart shall be made by NMFS 
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

[[Page 46789]]

operating areas, or for moving the authorized SURTASS LFA sonar system 
from one ship to another, is not considered a substantial modification.
    (b) If the National Marine Fisheries Service 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 substantially modified without prior notice and 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.

    (a) Biologically important areas for marine mammals may be 
nominated under this paragraph by the National Marine Fisheries Service 
or by the public.
    (b) In order for the National Marine Fisheries Service to designate 
offshore areas of biological importance for marine mammals under this 
rule, proponents must petition NMFS by requesting an area be added to 
the list of biologically important areas in Sec. 216.184(f) and 
submitting the following information:
    (1) Geographic region proposed for consideration (including 
geographic boundaries);
    (2) A list of marine mammals within the proposed geographic region;
    (3) Whether the proposal is for year-round designation or seasonal, 
and if seasonal, months of years for proposed designation;
    (4) Detailed information on the biology of marine mammals within 
the area, including estimated population size, distribution, density, 
status, and the principal biological activity during the proposed 
period of designation sufficient for NMFS to make a preliminary 
determination that the area is biologically important for marine 
mammals; and
    (5) Detailed information on the area with regard to its importance 
for either primary feeding, breeding, or migration for those species of 
marine mammals that have the potential to be affected by low frequency 
sounds;
    (c) Areas within 12 nm (22 km) of any coastline, including offshore 
islands, or within non-operating areas for SURTASS LFA sonar are not 
eligible for consideration;
    (d) If a petition is received without sufficient information for 
the National Marine Fisheries Service to proceed, NMFS will determine 
whether the nominated area warrants further study. If so, NMFS will 
begin a scientific review of the area.
    (e)(1) If through a petition or independently, NMFS makes a 
preliminary determination that an area is biologically important for 
marine mammals and is not located within a previously designated area, 
NMFS will propose to add the area to Sec. 216.184(f) and provide a 
public comment period of at least 45 days from the date of publication 
in the Federal Register.
    (2) The National Marine Fisheries Service will publish its final 
determination in the Federal Register.

[FR Doc. 02-16853 Filed 7-15-02; 8:45 am]
BILLING CODE 3810-FF-P