[Federal Register Volume 77, Number 161 (Monday, August 20, 2012)]
[Rules and Regulations]
[Pages 50290-50322]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-20214]



[[Page 50289]]

Vol. 77

Monday,

No. 161

August 20, 2012

Part IV





Department of Commerce





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





National Oceanic and Atmospheric Administration





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





50 CFR Part 218





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

  Federal Register / Vol. 77 , No. 161 / Monday, August 20, 2012 / 
Rules and Regulations  

[[Page 50290]]


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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 218

[Docket No. 110808485-2148-02]
RIN 0648-BB14


Taking and Importing Marine Mammals: Taking Marine Mammals 
Incidental to U.S. Navy Operations of Surveillance Towed Array Sensor 
System Low Frequency Active Sonar

AGENCY: National Marine Fisheries Service, National Oceanic and 
Atmospheric Administration, Commerce.

ACTION: Final rule.

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

SUMMARY: Upon application from the U.S. Navy (Navy), we (the National 
Marine Fisheries Service) are issuing regulations under the Marine 
Mammal Protection Act to govern the unintentional taking of marine 
mammals incidental to conducting operations of Surveillance Towed Array 
Sensor System (SURTASS) Low Frequency Active (LFA) sonar on a maximum 
of four naval surveillance vessels in areas of the Pacific, Atlantic, 
and Indian Oceans and the Mediterranean Sea, from the period of August 
15, 2012, through August 15, 2017. These regulations: allow us to issue 
Letters of Authorization (LOA) for the incidental take of marine 
mammals during the Navy's specified activities and timeframes; set 
forth the permissible methods of taking; set forth other means of 
effecting the least practicable adverse impact on marine mammal species 
and their habitat; and set forth requirements pertaining to the 
monitoring and reporting of the incidental take.

DATES: Effective August 15, 2012, through August 15, 2017.

ADDRESSES: To obtain an electronic copy of: the Navy's application 
(which contains a list of the references within this document); our 
Record of Decision; and other documents that we have cited in this 
document, write to P. Michael Payne, Chief, Permits and Conservation 
Division, Office of Protected Resources, National Marine Fisheries 
Service, 1315 East-West Highway, Silver Spring, MD 20910-3225, or 
download electronic copies at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications or telephone the contact listed here (see 
FOR FURTHER INFORMATION CONTACT).
    The Navy released a Final Supplemental Environmental Impact 
Statement/Supplemental Overseas Environmental Impact Statement (FSEIS/
SOEIS) for employment of SURTASS LFA sonar on June 8, 2012. The public 
may view the document at: http://www.surtass-lfa-eis.com. We 
participated in the development of this document as a cooperating 
agency under the Council on Environmental Quality's regulations 
implementing the National Environmental Policy Act of 1972.

FOR FURTHER INFORMATION CONTACT: Jeannine Cody, Office of Protected 
Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION:

Executive Summary

    This regulation allows us to issue Letters of Authorization to the 
Navy (upon their request) for the incidental take of marine mammals 
during SURTASS LFA sonar operations. The SURTASS LFA sonar system is a 
long-range, low frequency sonar that has both active and passive 
acoustic components. The Navy will use the system for long-range 
detection of quiet, hard-to-find submarines. The Navy's activities are 
military readiness activities under the Marine Mammal Protection Act of 
1972, as amended (MMPA; 16 U.S.C. 1631 et seq.) as defined by the 
National Defense Authorization Act for Fiscal Year 2004 (NDAA; Pub. L. 
108-136).
    This is the third rule for SURTASS LFA sonar operations under the 
Marine Mammal Protection Act. The 2007 regulations governing take 
incidental to SURTASS LFA sonar activities expire on August 15, 2012. 
We published the first rule, effective from August 2002 through August 
2007, on July 16, 2002 (67 FR 46712), and published the second rule on 
August 21, 2007 (72 FR 46846). For this five-year period (August 2012 
through August 2017), covered under this regulation, the Navy is 
proposing to conduct the same types of sonar activities as they have 
conducted over the past nine years.

Purpose and Need for This Regulatory Action

    In 2011, we received an application from the Navy requesting five-
year regulations and Letters of Authorizations to take marine mammals, 
by harassment, incidental to conducting SURTASS LFA sonar operations in 
areas of the world's oceans from August 2012 through August 2017. These 
operations, which constitute a military readiness activity, have the 
potential to cause behavioral disturbance and injury (if not mitigated) 
to marine mammals.
    Section 101(a)(5)(A) of the MMPA directs the Secretary of Commerce 
(Secretary) to authorize, upon request, the incidental, but not 
intentional, taking of marine mammals of a species or population stock, 
by U.S. citizens who engage in a specified activity (other than 
commercial fishing) within a specified geographical region if after 
notice and public comment: (1) We make certain findings; and (2) issue 
regulations.
    Under this five-year regulation, the Navy will submit an annual 
application to us for Letters of Authorizations for up to four vessels 
to take marine mammals, incidental to conducting SURTASS LFA sonar 
operations.
    This regulation establishes a framework to authorize incidental 
take through our issuing Letters of Authorizations to the Navy for 
SURTASS LFA sonar operations and contains mitigation, monitoring, and 
reporting requirements.

Legal Authority for the Regulatory Action

    Section 101(a)(5)(A) of the Marine Mammal Protection Act and our 
implementing regulations at 50 CFR part 216, subpart I provide the 
legal basis for issuing the five-year regulations and Letters of 
Authorization.

Summary of Major Provisions Within the Regulation

    The following provides a summary of some of the major provisions 
within this third rulemaking for SURTASS LFA sonar:
     Required suspension/delay of SURTASS LFA sonar 
transmissions if a marine mammal enters the 2-kilometer (km) (1.2-mile 
(mi); 1.1 nautical mile (nm)) mitigation and buffer zones around the 
vessel;
     Required geographic restrictions in designated offshore 
biologically important areas (OBIA) and within 22 km (14 mi; 12 nm) of 
any coastline, including islands, for SURTASS LFA sonar operations to 
protect marine mammals;
     Required visual, passive acoustic and active acoustic 
monitoring during routine training, testing and military operations of 
SURTASS LFA sonar to support the implementation of mitigation measures 
to protect marine mammals;
     Required monitoring of ambient noise data for 
incorporation into appropriate ocean noise budget efforts and analyses;
     Required monitoring of marine mammal stranding incidents; 
and
     Required research on how marine mammals (including harbor 
porpoises (Phocoena phocoena) and beaked whales (Mesoplodon spp.)) 
respond to

[[Page 50291]]

SURTASS LFA sonar as well as research on marine mammal vocalizations 
before, during, and after designated exercises with SURTASS LFA sonar.

Cost and Benefits

    This final rule, specific only to the Navy's SURTASS LFA sonar 
operations, is not significant under Executive Order 12866, Regulatory 
Planning and Review.

Availability of Supporting Information

    We provided extensive SUPPLEMENTARY INFORMATION in the Notice of 
the proposed rule for this activity in the Federal Register on Friday, 
January 6, 2012 (77 FR 842). We did not reprint all of that information 
here in its entirety; instead, we represent all sections from the 
proposed rule in this document and provide either a summary of the 
material presented in the proposed rule or a note referencing the 
page(s) in the proposed rule where the public can find the information. 
We address any information that has changed since the proposed rule in 
this document. Additionally, this final rule contains a section that 
responds to the public comments submitted during the 30-day public 
comment period and the 15-day extension of the comment period for the 
proposed rule.

Background

    Section 101(a)(5)(A) of the MMPA directs the Secretary to 
authorize, upon request, the incidental, but not intentional, taking of 
small numbers of marine mammals of a species or population stock, by 
U.S. citizens who engage in a specified activity (other than commercial 
fishing) within a specified geographical region if, after notice and 
public comment: (1) We make certain findings; and (2) we issue 
regulations. We are required to grant authorization for the incidental 
taking of marine mammals if we find that the total taking will have a 
negligible impact on the species or stock(s); and will not have an 
unmitigable adverse impact on the availability of the species or 
stock(s) for subsistence uses (where relevant). We must also set forth 
the permissible methods of taking; other means of effecting the least 
practicable adverse impact on the species or stock and its habitat; and 
requirements pertaining to the mitigation, monitoring, and reporting of 
the takings.
    Accordingly, this regulation, which governs our issuance of Letters 
of Authorization (LOA) to the Navy, designates: (1) The permissible 
methods of taking; (2) mitigation measures to minimize adverse impacts 
to the lowest level practicable on marine mammal species and their 
habitat; and (3) requirements for monitoring and reporting incidental 
take.
    We have defined negligible impact in 50 CFR 216.103 as ``* * * an 
impact resulting from the specified activity that cannot be reasonably 
expected to, and is not reasonably likely to, adversely affect the 
species or stock through effects on annual rates of recruitment or 
survival.''
    The National Defense Authorization Act of 2004 amended section 
101(a)(5)(A) of the MMPA by removing the small numbers and specified 
geographic region provisions; revising the definition of harassment as 
it applies to a military readiness activity; and explicitly requiring 
that our determination of ``least practicable adverse impact'' include 
consideration of: (1) Personnel safety; (2) the practicality of 
implementation; and (3) impact on the effectiveness of the military 
readiness activity.
    With respect to military readiness activities, the MMPA defines 
harassment as ``(i) any act that injures or has the significant 
potential to injure a marine mammal or marine mammal stock in the wild 
[Level A harassment]; or (ii) any act that disturbs or is likely to 
disturb a marine mammal or marine mammal stock in the wild by causing 
disruption of natural behavioral patterns, including, but not limited 
to, migration, surfacing, nursing, breeding, feeding, or sheltering, to 
a point where such behavioral patterns are abandoned or significantly 
altered [Level B harassment].''

Summary of Request

    On August 17, 2011, we received an application from the Navy 
requesting rulemaking and LOAs for the take of individuals of 94 
species of marine mammals (70 cetaceans and 24 pinnipeds), by Level A 
and Level B harassment, incidental to upcoming routine training and 
testing and use of the SURTASS LFA sonar system during military 
operations in areas of the Pacific, Atlantic, and Indian Oceans and the 
Mediterranean Sea over the course of five years (2012-2017). The Navy 
would use the sonar system on a maximum of four naval surveillance 
vessels during military operations which they have designated as 
military readiness activities.
    The Navy states and we concur, that these military readiness 
activities may incidentally take marine mammals present within the 
Navy's mission areas by exposing them to sound from low-frequency 
active sonar sources. The Navy requests authorization to take 
individuals of these marine mammals by Level A and Level B harassment. 
However, as we discuss later in this document, the Navy will likely 
avoid Level A harassment by implementing required mitigation and 
monitoring measures.
    Please refer to Tables 9-27 (pages 123-140) of the Navy's 
application for detailed information on the estimated percentages of 
marine mammal stocks potentially affected by SURTASS LFA sonar 
activities in areas of the Pacific, Atlantic, and Indian Oceans and the 
Mediterranean Sea per year. This final rule does not specify the number 
of marine mammals that may be taken in the proposed locations because 
the Navy calculates the take estimates annually through various inputs 
such as mission location, mission duration, and season of operation.
    As with the 2002 and 2007 rules, the Navy will limit operation of 
SURTASS LFA sonar to ensure that no more than 12 percent of any marine 
mammal stock would be taken by Level B harassment, annually, over the 
course of this rule. This annual, per-stock cap applies regardless of 
the number of SURTASS LFA sonar vessels operating. The Navy will use 
the 12 percent cap to guide its mission planning for selecting 
potential operational areas within each annual authorization 
application.
    As a result of the required mitigation and monitoring measures and 
standard operating procedures and the Navy's mission planning which, to 
the greatest extent feasible considering national security tasking, 
avoids conducting SURTASS LFA sonar operations in areas of high marine 
animal densities, we believe that the incidental take of marine mammals 
would likely be lower than the Navy's requested amount of incidental 
take.
    In the Navy's application, their acoustic analyses predict that 
less than 0.0001 percent of the endangered north Pacific right whale 
(Eubalaena japonica) population; less than 0.0001 of the northern 
elephant seal (Mirounga angustirostris) population; and 0.00 percent of 
the stocks of all other marine mammal species may be exposed to levels 
of sound likely to result in Level A harassment. Quantitatively, the 
Navy's request translates into take estimates of zero animals for any 
species, including north Pacific right whales. However, because the 
probability of detection by the Navy's active High-Frequency Marine 
Mammal Monitoring (HF/M3) sonar system within the SURTASS LFA sonar 
mitigation and buffer zones is not 100 percent, we will include a small 
number of Level A harassment takes for marine mammals over the course 
of the five-year regulations based on qualitative

[[Page 50292]]

analyses. These are the only quantitative adjustments that we have made 
to the Navy's requested takes from their modeled exposure results.
    Because the required mitigation measures will minimize any 
potential risk for mortality and SURTASS LFA sonar has operated under 
previous regulations for the last ten years without any reports of 
mortality, we do not expect any mortality to occur as a result of the 
Navy's SURTASS LFA sonar operations. Thus, we are not authorizing any 
mortality incidental to the Navy's routine training and testing and 
military operations of the SURTASS LFA sonar system.

Description of Specified Activities

    The proposed rule included a complete description of the Navy's 
specified activities covered by these final regulations (for which we 
would authorize the associated incidental take of marine mammals in 
annual LOAs and described the nature and levels of the use of the 
SURTASS LFA sonar system (77 FR 842; January 6, 2012; page 843-846). 
These military readiness activities for SURTASS LFA sonar consist of 
routine training and testing as well as use of the system during 
military operations which involves acoustic sources, including low 
frequency active sonar and high-frequency active sonar components. 
Below we summarize the description of the specified activities and one 
small correction from the proposed rule.

Potential SURTASS LFA Sonar Operational Areas

    Based on the Navy's current operational requirements, potential 
operations for SURTASS LFA sonar vessels from August 2012 through 
August 2017 would include areas located in the Pacific, Indian, and 
Atlantic Oceans and Mediterranean Sea. The proposed rule provided a 
list of the Navy's potential operating areas in Table 2 relevant to 
U.S. national security interests (77 FR 842; January 6, 2012; page 843-
844). Use of the SURTASS LFA sonar system could occur on a maximum of 
four naval surveillance vessels: the United States Naval Ship (USNS) 
ABLE, the USNS EFFECTIVE, the USNS IMPECCABLE, and the USNS VICTORIOUS.
    The Navy will not operate SURTASS LFA sonar in polar regions (i.e., 
Arctic and Antarctic waters) of the world. The Arctic Ocean, the Bering 
Sea (including Bristol Bay and Norton Sound), portions of the 
Norwegian, Greenland, and Barents Seas north of 72[deg] North (N) 
latitude, plus Baffin Bay, Hudson Bay, and the Gulf of St. Lawrence are 
non-operational areas for SURTASS LFA sonar. In the Antarctic, the Navy 
will not conduct SURTASS LFA sonar operations in areas south of 60[deg] 
South (S) latitude. The Navy has excluded polar waters from operational 
planning because of the inherent inclement weather conditions and the 
navigational and operational (equipment) danger that icebergs pose to 
SURTASS LFA sonar vessels. Further, the Navy would operate SURTASS LFA 
sonar such that the sound field does not exceed 180 decibels (dB) re: 1 
[micro]Pa within the coastal standoff zone (i.e., 22 km; 14mi; 12 nm 
from any coastline) or seaward of any OBIA boundary for SURTASS LFA 
sonar operations, identified later in this document.
    We have included additional operational restrictions beyond what 
the Navy proposed in their application for SURTASS LFA sonar operations 
within this rule. We are requiring: (1) An additional 1-km (0.62 mi; 
054 nm) buffer around the Navy's 1-km (0.62 mi; 054 nm) LFA sonar 
mitigation zone to protect marine mammals from entering the 180-
dBisopleth around the SURTASS LFA sonar vessel; and (2) an additional 
1-km (0.62 mi; 054 nm) buffer seaward of the outer perimeter of any 
OBIA.
    Table 1 summarizes a projected annual deployment schedule for one 
surveillance vessel using SURTASS LFA sonar.

 Table 1--Example Annual Deployment Schedule for One Surveillance Vessel
                         Using SURTASS LFA Sonar
------------------------------------------------------------------------
           On mission               Days       Off mission        Days
------------------------------------------------------------------------
Transit........................         54  In-Port Upkeep...         40
Active Transmissions...........
432 transmission hours based on        240  Regular Overhaul.         31
 a 7.5% duty cycle..
                                -----------                   ----------
    Total Days on Mission......        294  Total Days off           71.
                                             Mission.
------------------------------------------------------------------------

    In the proposed rule, we incorrectly stated that a normal SURTASS 
LFA sonar deployment schedule for a single vessel would involve 240 
days of active sonar transmissions (77 FR 842; January 6, 2012; page 
843). The correct statement is that the each vessel will perform up to 
240 days of active operations and transmit SURTASS LFA sonar up to 432 
hours.

Brief Background on Sound, Marine Mammal Hearing, and Vocalization

    An understanding of the basic properties of underwater sound, 
marine mammal hearing, and vocalization is necessary to comprehend many 
of the concepts and analyses presented in this document. The proposed 
rule contains a section that provides a brief background on the 
principles of sound that are frequently referred to in this rulemaking 
(77 FR 842; January 6, 2012; pages 857-859). This section also includes 
a discussion of the functional hearing ranges of the different groups 
of marine mammals (by frequency) as well as a discussion of the sound 
metric used in our analysis (sound pressure level and single ping 
equivalent). The information contained in the proposed rule has not 
changed.
    Acoustic stimuli (i.e., increased underwater sound) generated by 
the SURTASS LFA sonar system's low-frequency acoustic transmissions 
have the potential to cause take of marine mammals in the operational 
areas. The operation of the SURTASS LFA sonar system during at-sea 
operations would result in the generation of sound or pressure waves in 
the water at or above levels that we have determined would result in 
take. This is the principal means of marine mammal taking associated 
with these military readiness activities. At no point do we expect the 
Navy to have more than four SURTASS LFA sonar systems in use, and so 
this rule analyzes the effects on marine mammals due to the deployment 
of up to four SURTASS LFA sonar systems from 2012 through 2017.

Description of Marine Mammals in the Area of the Specified Activities

    Ninety-four (94) marine mammal species or populations/stocks have 
confirmed or possible occurrence within potential SURTASS LFA sonar 
operational areas in the Pacific, Atlantic, and Indian Oceans and the 
Mediterranean Sea. Twelve species of

[[Page 50293]]

baleen whales (mysticetes), 58 species of toothed whales, dolphins, or 
porpoises (odontocetes), and 24 species of seals or sea lions 
(pinnipeds) could be affected by SURTASS LFA sonar operations.
    Fifteen of the 94 marine mammal species are endangered and three of 
the 94 marine mammal species are threatened under the Endangered 
Species Act of 1973 (ESA; 16 U.S.C. 1531 et seq.). Marine mammal 
species under our jurisdiction that are endangered include: the blue 
whale (Balaenoptera musculus); fin whale (Balaenoptera physalus); sei 
whale (Balaenoptera borealis); humpback whale (Megaptera novaeangliae); 
bowhead whale (Balaena mysticetus); North Atlantic right whale 
(Eubalaena glacialis); North Pacific right whale (Eubalena japonica); 
southern right whale (Eubalaena australis); gray whale (Eschrichtius 
robustus); sperm whale (Physeter macrocephalus); the Cook Inlet stock 
of beluga whale (Delphinapterus leucas); the Southern Resident 
population of Killer whale (Orca orcinus); the western distinct 
population segment (DPS) of the Steller sea lion (Eumetopias jubatus); 
Mediterranean monk seal (Monachus monachus); and Hawaiian monk seal 
(Monachus schauinslandi). In addition, the Hawaiian insular distinct 
population segment of false killer whale (Pseudorca crassidens) is a 
candidate for proposed listing as endangered.
    The three threatened marine mammal species under our jurisdiction 
include: the eastern distinct population segment of the Steller sea 
lion (currently proposed for delisting); the Guadalupe fur seal 
(Arctocephalus townsendi) and the southern distinct population segment 
of the spotted seal (Phoca largha).
    The threatened and endangered marine mammal species mentioned 
previously are also depleted under the Marine Mammal Protection Act. 
Other species listed as depleted include: the western north Atlantic 
coastal stock of bottlenose dolphin (Tursiops truncatus); the 
northeastern offshore stock of the pantropical spotted dolphin 
(Stenella attenuata); and the eastern stock of the spinner dolphin 
(Stenella longirostris).
    Ringed seals (Phoca hispida), bearded seals (Erignathus barbatus), 
Chinese river dolphins (Lipotes vexillifer) and the vaquita (Phocoena 
sinus) do not occur within the Navy's potential SURTASS LFA sonar 
operational areas (see 77 FR 842; January 6, 2012; page 844).
    The U.S. Fish and Wildlife Service is responsible for managing the 
following marine mammal species: southern sea otter (Enhydra lutris), 
polar bear (Ursus maritimus), walrus (Odobenus rosmarus), west African 
manatee (Trichechus senegalensis), Amazonian manatee (Trichechus 
inunguis), west Indian manatee (Trichechus manatus), and dugong (Dugong 
dugon). None of these species occur in geographic areas that would 
overlap with potential SURTASS LFA sonar operational areas.
    The Description of Marine Mammals in the Area of the Specified 
Activities section has not changed from what was in the proposed rule 
(77 FR 842; January 6, 2012; pages 848-857). Tables 3 through 21 of the 
proposed rule provided lists of marine mammal species known to occur or 
potentially occur within the Navy's models of potential SURTASS LFA 
sonar operational areas relevant to U.S. national security interests. 
Tables 4.5 through 4.23 in the 2012 FSEIS/SOEIS also provide 
information on the percentages of stocks potentially affected by 
SURTASS LFA sonar operations. Although not repeated in this final rule, 
we have reviewed these data, determined them to be the best available 
scientific information for the purposes of the rulemaking, and consider 
this information part of the administrative record for this action.

Potential Effects of the Specified Activity on Marine Mammals

    For the purpose of MMPA authorizations, our effects assessments 
serve four primary purposes:
    (1) Identification of the permissible methods of taking, meaning 
the nature of the take (e.g., resulting from anthropogenic noise versus 
from ship strike, etc.); the regulatory level of take (i.e., mortality 
versus Level A or Level B harassment); and the estimated amount of 
take;
    (2) Informing the prescription of means of effecting the least 
practicable adverse impact on such species or stock and its habitat 
(i.e., mitigation);
    (3) Supporting the determination of whether the specified activity 
will have a negligible impact on the affected species or stocks of 
marine mammals (based on the likelihood that the activity will 
adversely affect the species or stock through effects on annual rates 
of recruitment or survival); and
    (4) Determining whether the specified activity will have an 
unmitigable adverse impact on the availability of the species or 
stock(s) for subsistence uses.
    In the Potential Effects of the Specified Activity on Marine 
Mammals section of the proposed rule, we included a qualitative 
discussion of the different ways that SURTASS LFA sonar operations may 
potentially affect marine mammals without consideration of mitigation 
and monitoring measures (see 77 FR 842; January 6, 2012; pages 860-
874). Marine mammals may experience direct physiological effects (e.g., 
threshold shift and non-acoustic injury, acoustic masking, impaired 
communication, stress responses, behavioral disturbance, stranding, 
behavioral responses from vessel movement, and injury or death from 
vessel collisions). The information contained in this section in the 
proposed rule has not changed.
    Later in the Estimated Take of Marine Mammals section in this 
document, we relate and quantify the potential effects to marine 
mammals from SURTASS LFA sonar operations discussed in this section to 
the MMPA definitions of Level A and Level B harassment.

Anticipated Effects on Marine Mammal Habitat

    We anticipate that the specified activity may result in marine 
mammals avoiding certain areas due to temporary ensonification. This 
impact is temporary and reversible, which we considered in proposed 
rule as behavioral modification. The main impact associated with the 
activity would be temporarily elevated noise levels and the associated 
direct effects on marine mammals.
    We included a detailed discussion of the potential effects of the 
Navy's SURTASS LFA sonar operations on marine mammal habitat, including 
critical habitat and marine mammal prey species (77 FR 842; January 6, 
2012; pages 874-875). The information contained in the Anticipated 
Effects on Marine Mammal Habitat section has not changed from what was 
in the proposed rule.

Mitigation

    In order to issue regulations and LOAs under section 101(a)(5)(A) 
of the MMPA, we must set forth the ``permissible methods of taking 
pursuant to such activity, and other means of effecting the least 
practicable adverse impact on such species or stock and its habitat, 
paying particular attention to rookeries, mating grounds, and areas of 
similar significance.''
    The National Defense Authorization Act for Fiscal Year 2004 amended 
section 101(a)(5)(A) of the MMPA such that ``least practicable adverse 
impact'' shall include consideration of personnel safety, practicality 
of implementation, and impact on the effectiveness of the ``military 
readiness activity.'' The routine training and testing as well as use 
of the system during military operations described in the SURTASS

[[Page 50294]]

LFA sonar application qualify as military readiness activities.
    We have reviewed the Navy's proposed SURTASS LFA sonar activities 
and the proposed mitigation measures in the Navy's application to 
determine whether the resulting activities and mitigation measures 
would effect the least practicable adverse impact on marine mammals 
which includes a careful balancing of the likely degree to which the 
measure is expected to minimize adverse impacts to marine mammals with 
the likely effect of that measure on personnel safety, practicality of 
implementation, and impact of the effectiveness of the military 
readiness activity (i.e., minimizing adverse impacts to the lowest 
level practicable with mitigation measures).
    Any mitigation measure that we prescribe should be able to 
accomplish, have a reasonable likelihood of accomplishing (based on 
current science), or contribute to the accomplishment of one or more of 
the general goals listed here:
    Goal (a): Avoidance or minimization of injury or death of marine 
mammals wherever possible (goals b, c, and d may contribute to this 
goal).
    Goal (b): A reduction in the numbers of marine mammals (total 
number or number at biologically important time or location) exposed to 
received levels of SURTASS LFA sonar or other activities expected to 
result in the take of marine mammals (this goal may contribute to goal 
a or to reducing harassment takes only).
    Goal (c): A reduction in the number of times (total number or 
number at biologically important time or location) individuals would be 
exposed to received levels of SURTASS LFA sonar or other activities 
expected to result in the take of marine mammals (this goal may 
contribute to goal a or to reducing harassment takes only).
    Goal (d): A reduction in the intensity of exposures (either total 
number or number at biologically important time or location) to 
received levels of SURTASS LFA sonar or other activities expected to 
result in the take of marine mammals (this goal may contribute to goal 
a or to reducing the severity of harassment takes only).
    Goal (e): A reduction in adverse effects to marine mammal habitat, 
paying special attention to the food base, activities that block or 
limit passage to or from biologically important areas, permanent 
destruction of habitat, or temporary destruction/disturbance of habitat 
during a biologically important time.
    Goal (f): For monitoring directly related to mitigation--an 
increase in the probability of detecting marine mammals, thus allowing 
for more effective implementation of the mitigation.
    We described the Navy's proposed mitigation measures, as well as 
those that we added, in detail in the proposed rule (77 FR 842; January 
6, 2012; pages 875-879). These required mitigation measures, which are 
summarized below, have not changed with the exception of the addition 
of one more OBIA. Following are the mitigation and monitoring measures 
initially proposed by the Navy:
     A 180-dB re:1 [micro]Pa isopleth SURTASS LFA sonar 
mitigation zone around the vessel;
     Delay or suspension of SURTASS LFA sonar transmissions if 
the Navy detects a marine mammal entering or within the LFA sonar 
mitigation zone (i.e., the 180-dB re: 1 [micro]Pa isopleth) by any of 
the following detection methods;
    (a) Visual monitoring;
    (b) Passive acoustic monitoring; or
    (c) Active acoustic monitoring;
     Geographic and operational restrictions to avoid 
generating sound levels above 180 dB re: 1 [micro]Pa in the following 
areas:
    (a) An OBIA; or
    (b) Within coastal standoff zones (22 km; 14 mi; 12 nm of any 
coastline).
    In the proposed rule, we added the following mitigation 
requirements:
     An additional 1-km (0.62 mi; 054 nm) buffer zone around 
the 180-dB re: 1 [micro]Pa isopleth SURTASS LFA sonar mitigation zone;
     An additional 1-km (0.62 mi; 054 nm) buffer zone seaward 
of any OBIA boundary.
     Delay or suspension of SURTASS LFA sonar transmissions if 
the Navy detects a marine mammal entering the 1-km (0.62 mi; 054 nm) 
buffer zone around the SURTASS LFA sonar mitigation zone.
    Within this final rule, we have added additional mitigation 
measures based upon comments received during the public comment period 
for the proposed rule (77 FR 842; January 6, 2012) and the Navy's 2011 
Draft Supplemental Environmental Impact Statement/Overseas 
Environmental Impact Statement.
    Based on our evaluation of 367 potential areas within the Hoyt's 
(2011) 2nd Edition of Marine Protected Areas for Whales, Dolphins and 
Porpoises (see Appendix F of the Navy's 2012 FSEIS/SOEIS), we 
identified three additional areas for consideration as OBIAs for marine 
mammals. They were: (1) Abrolhos Bank in the southwest Atlantic Ocean; 
(2) an area within the Southeast Shoal, Grand Bank in the northwest 
Atlantic Ocean; and 3) an area within Dogger Bank in the North Sea.
    Abrolhos Bank: For this rule, we have added the Abrolhos Bank as an 
OBIA based on its importance for humpback whale breeding and calving. 
The specified period of this OBIA would be effective August through 
November. The Navy concurs with our recommendation to designate 
Abrolhos Bank as an OBIA.
    Southeast Shoal, Grand Bank: There is evidence from a single 1985 
line transect survey that humpback whales foraged in this area in the 
past; however, this information is almost 30 years old. We and the Navy 
are continuing to gather information to determine whether this area 
meets the OBIA criteria.
    In the 2012 application for LOAs, the Navy states that it does not 
plan to operate within the northwest Atlantic Ocean in the first year 
of this rule. Utilizing the adaptive management framework, we and the 
Navy will make a decision before issuing the second annual LOAs 
regarding whether this area meets the OBIA criteria and, if so, can be 
practicably implemented.
    Dogger Bank: There is evidence from a single 2007 line transect 
survey that minke whales aggregated on the slope of Dogger Bank to 
forage on sandeels (de Boer, 2010). However, sandeels only emerge from 
their sand burrows when oceanographic conditions are optimal (de Boer, 
2010). There is not enough information to support this area as a 
sustained and predictable foraging ground for minke whales at this 
time. We will continue to monitor and re-evaluate this area as 
researchers complete additional surveys on Dogger Bank within the next 
few years. Utilizing the adaptive management framework, we and the Navy 
will make a decision before issuing the second annual LOAs regarding 
whether this area meets the OBIA criteria and, if so, can be 
practicably implemented.

Operational Exception

    We discussed the Navy's need for an operational exception for use 
of the SURTASS LFA sonar system in the proposed rule (77 FR 842; 
January 6, 2012; page 878). The information contained in this section 
has not changed from what was in the proposed rule. Briefly, it may be 
necessary for the Navy to operate in a manner that results in SURTASS 
LFA sonar transmissions generating sound levels above 180 dB re: 1 
[micro]Pa within an OBIA, or for Navy to operate within an OBIA: (1) 
When it is operationally necessary for the Navy

[[Page 50295]]

to continue tracking an existing underwater contact; or (2) when it is 
operationally necessary for the Navy to detect a new underwater contact 
within the area. This exception does not apply to routine training and 
testing with the SURTASS LFA sonar systems.

Mitigation Conclusions

    Based on our evaluation of the proposed measures and other measures 
considered by us or recommended by the public, we have determined that 
the required mitigation measures (including the Adaptive Management 
component described later in this document) are means of effecting the 
least practicable adverse impacts on marine mammal species or stocks 
and their habitat, paying particular attention to rookeries, mating 
grounds, and areas of similar significance, while also considering 
personnel safety, practicality of implementation, and impact on the 
effectiveness of the military readiness activity. The proposed rule 
contains further support for this finding in the Mitigation Conclusion 
section (77 FR 842; January 6, 2012; pages 878-879).

Research

    We included a discussion of the Navy's proposed research that 
increases the knowledge base about marine mammals and the potential 
effects from underwater anthropogenic noise (77 FR 842; January 6, 
2012; pages 879-880). The information contained in Research has not 
changed from what was in the proposed rule.
    Briefly, the Navy sponsors significant research and monitoring 
projects for living marine resources to study the potential effects of 
its activities on marine mammals. This ongoing marine mammal research 
relates to hearing and hearing sensitivity, auditory effects, dive and 
behavioral response models, noise impacts, beaked whale global 
distribution, modeling of beaked whale hearing and response, tagging of 
free-ranging marine animals at-sea, and radar-based detection of marine 
mammals from ships. These research projects may not be specifically 
related to SURTASS LFA sonar operations; however, they are crucial to 
the overall knowledge base on marine mammals and the potential effects 
from underwater anthropogenic noise.

Monitoring

    Section 101(a)(5)(A) of the MMPA states that in order to issue an 
Incidental Take Authorization for an activity, we must set forth 
``requirements pertaining to the monitoring and reporting of such 
taking.'' Our implementing regulations at 50 CFR 216.104 (a)(13) 
indicate that requests for Letters of Authorization must include the 
suggested means of accomplishing the necessary monitoring and reporting 
that will result in increased knowledge of the species, the level of 
taking, or impacts on populations of marine mammals that we expect to 
be present.
    We provided a detailed description of the general goals of 
monitoring and the Navy's proposed monitoring measures in the proposed 
rule (77 FR 842; January 6, 2012; page 880). Within this final rule, we 
have added additional monitoring requirements for harbor porpoises and 
beaked whales based upon comments received during the public comment 
periods for the proposed rule. This additional monitoring would augment 
the Navy's proposed monitoring efforts to increase our understanding of 
how these species respond-behaviorally or physiologically-to SURTASS 
LFA sonar.

Beaked Whale and Harbor Porpoise Monitoring

    Within the first year of the five-year rule, the Navy will convene 
a Scientific Advisory Group (SAG). Its goal will be to analyze 
different types of monitoring and research that could increase the 
understanding of the potential effects of low-frequency active sonar 
transmissions on beaked whales and/or harbor porpoises.
    The Navy will work closely with the SAG to characterize likely 
available assets and resources to help them frame their analysis, in 
order to identify monitoring/research options that would be most 
feasible for the Navy to implement. SAG members will include recognized 
marine biology and marine bio-acoustic scientific subject matter 
experts. The results from the SAG meeting will be considered 
independent scientific findings, fully accessible to the public.
    The Navy's execution of any monitoring/research with beaked whales 
or harbor porpoises recommended in the SAG's findings will necessarily 
depend on the availability of scientists with the appropriate 
background and experience to execute the field research, as well as the 
availability of adequate resources to plan and conduct the research 
project and to process, analyze, and report on the collected data.
    Following the SAG's submission of findings, and assuming the SAG 
recommends going forward with beaked whale and/or harbor porpoise 
monitoring/research, the Navy will either: (1) Draft a plan of action 
outlining their strategy for implementing the SAG's recommendations, or 
(2) describe, in writing, why none of the SAG's recommendations are 
feasible and meet with us to discuss any other potential options.
    With the exception of the additional monitoring requirement for 
harbor porpoises and beaked whales, the information on monitoring in 
the proposed rule has not changed.

Adaptive Management

    Our understanding of the potential effects of SURTASS LFA sonar on 
marine mammals is continually evolving. Reflecting this, this final 
regulation governing the take of marine mammals, incidental to the 
Navy's SURTASS LFA sonar operations contains an adaptive management 
component. We provided a description of the general framework for 
adaptive management in the proposed rule (77 FR 842; January 6, 2012; 
pages 880-881). The information contained in this section has not 
changed from the proposed rule description.
    This framework provides a mechanism for NMFS and the Navy to modify 
(or add or delete) mitigation or monitoring measures, as appropriate, 
based on new information.
    The following are some of the possible sources of new data that 
could contribute to our decision to modify mitigation or monitoring 
measures:
     Results from the Navy's monitoring from the previous 
year's operation of SURTASS LFA sonar.
     Compiled results of Navy-funded research and development 
studies.
     Results from specific stranding investigations.
     Results from general marine mammal and sound research 
funded by the Navy or other sponsors.
     Any information that reveals marine mammals may have been 
taken in a manner, extent or number not authorized by this regulation 
or within subsequent Letters of Authorization.
    We would add, modify or delete mitigation or monitoring measures in 
consultation with the Navy if doing so creates a reasonable likelihood 
of accomplishing the goals of mitigation and monitoring laid out in 
this final rule. We and the Navy will meet annually (if deemed 
necessary by either agency) to discuss the monitoring reports, Navy 
research and development outcomes, current science, and determine 
whether mitigation or monitoring modifications are appropriate.

[[Page 50296]]

Reporting

    In order to issue an incidental take authorization for an activity, 
section 101(a)(5)(A) of the MMPA states that we must set forth 
requirements pertaining to the monitoring and reporting of such taking. 
Effective reporting is critical to ensure compliance with the terms and 
conditions of the Letters of Authorization, and to provide us and the 
Navy with data of the highest quality based on the required monitoring. 
A subset of the monitoring reports' information may be classified and 
thus not releasable to the public.
    We provided a detailed description of the Navy's proposed reporting 
requirements in the proposed rule (77 FR 842; January 6, 2012; pages 
881-882). The information contained in the Reporting section has not 
changed from the proposed rule description. Briefly, the reporting 
measures require the Navy to provide: notification of injured or dead 
marine mammals; notification of a ship strike; quarterly mitigation 
monitoring reports; annual reports; and a five-year comprehensive 
report.

Comments and Responses

    On January 6, 2012, we published a proposed rule (77 FR 842) in 
response to the Navy's request to take marine mammals, incidental to 
conducting SURTASS LFA sonar operations in certain areas of the world's 
oceans. We requested comments, information, and suggestions related to 
the request. During the 30-day public comment period, we received 
comments from the Marine Mammal Commission (Commission), the Natural 
Resources Defense Council (NRDC), OceanCare, the Surfrider Foundation, 
and 22 private citizens. We also received comments that appear to be 
directed solely at the Navy's draft 2011 Supplemental Environmental 
Impact Statement/Supplemental Overseas Environmental Impact Statement. 
See the Navy's 2012 FSEIS/SOEIS, which we have adopted. We address the 
comments here.

Marine Mammal Protection Act Concerns

    Comment 1: Citing the broad scope of the Navy's application, the 
complexity of the proposed rule, and the need for additional time for 
public comment, the Natural Resources Defense Council requested that we 
consider extending the public comment period for an additional 15 days.
    Response: In response to the request, we extended the public 
comment period by 15 extra days (77 FR 6771, February 9, 2012).

SURTASS LFA Sonar Activity Concerns

    Comment 2: One commenter is concerned that the Navy seems to take 
very few steps to reduce its use of sonar by using alternative 
technologies and noted that the Navy could pursue the use of other 
technologies for this action.
    Response: The comment is beyond the scope of our rulemaking for 
this action. The Navy's specified activity described in their 
application for regulations is the use of SURTASS LFA sonar, not 
alternatives to SURTASS LFA sonar.
    However, the Navy reviewed and considered the use of non-acoustic 
alternatives for underwater detection (i.e., radar, laser, magnetic, 
infrared, electronic, electric, hydrodynamic, and biologic detection 
systems) in the 2012 FSEIS/SOEIS (see subchapter 1.1.4).
    Table 1 in this Federal Register notice summarizes a projected 
annual deployment schedule for SURTASS LFA sonar which amounts to 432 
hours (18 days) of active transmissions, annually, for one surveillance 
vessel. The SURTASS LFA sonar has a relatively low duty cycle (i.e., 
the amount of time of active sonar transmissions divided by the amount 
of time that the sonar is not transmitting) of 7.5 to 10 percent. Thus, 
for an estimated 18-day mission period, SURTASS LFA sonar would be off 
(quiet) for 90 to 92.5 percent of the time and adding no sound into the 
water. On an annual basis, the Navy would limit each SURTASS LFA vessel 
to transmitting no more than 4.9 percent of the time (i.e., 432 hours 
within one year (8,760 hours)).

Threatened and Endangered Species

    Comment 3: One commenter expressed concern that the Navy had 
underestimated the full impact that sonar has on marine mammals, 
particularly ones which are also listed under the Endangered Species 
Act. They stated: ``The Navy's application for authorized use of 
SURTASS LFA sonar states that the effects of sonar use will not be 
greater on animals listed under the ESA than the effects on other 
marine mammals (LOA Application at page 114.)''
    Response: The commenter's statement is not accurate. First, the 
Navy has analyzed the effects of SURTASS LFA sonar on marine mammals, 
including those listed under the Endangered Species Act, in the 2001 
Final Environmental Impact Statement (Don, 2001), the 2007 Final 
Supplemental Environmental Impact Statement (DoN, 2007) and the 
2012FSEIS/SOEIS. Specifically, the types of potential effects on marine 
mammals from SURTASS LFA sonar operations presented include: (1) Non-
auditory injury; (2) permanent loss of hearing; (3) temporary loss of 
hearing; (4) behavioral change; and (5) masking. We refer the commenter 
to those documents for the Navy's analysis of the effects of SURTASS 
LFA sonar on marine mammals.
    Second, we also analyzed the effects of SURTASS LFA sonar on marine 
mammals in the Potential Effects of the Specified Activity on Marine 
Mammals section of the proposed rule (77 FR 842; January 6, 2012; pages 
860-874). We included a qualitative discussion of the different ways 
that unmitigated SURTASS LFA sonar operations may result in direct 
physiological effects (e.g., threshold shift and non-acoustic injury, 
acoustic masking, impaired communication, stress responses, behavioral 
disturbance, stranding, and effects from vessel movement and vessel 
collisions). We anticipate that actual effects to marine mammals 
(including threatened and endangered species) would be in the form of 
Level B harassment (behavioral), due to the required mitigation and 
monitoring measures, and geographic restrictions. While marine mammals 
could potentially be affected by the SURTASS LFA sonar sounds, we have 
determined that these effects are not reasonably likely to adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.
    Finally, previous Endangered Species Act section 7 consultations 
(NMFS, 2002, 2003, 2004, 2005, 2006, 2007, 2008, 2009, 2010, and 2011) 
and the section 7 consultation for this rule have analyzed the effects 
of SURTASS LFA sonar operations on threatened and endangered marine 
mammals and concluded that the operation of the SURTASS LFA sonar was 
not likely to jeopardize the continued existence of any endangered or 
threatened species under our jurisdiction and would not result in the 
destruction or adverse modification of critical habitat.
    Comment 4: One commenter stated: ``The LOA application states that 
the Jacksonville training would occur in the winter, yet the winter 
months are the time when this area is listed as an OBIA (LOA 
Application at 11-13). Will the Navy be conducting SURTASS LFA training 
here during calving months? If yes, what will the impact be on the 
young whales? The diminished population of North Atlantic Right Whales 
should not have to compete with the Navy for this area. The proper time 
to conduct training here would be in the summer months when the whales

[[Page 50297]]

return to the New England and Canadian coast.''
    Response: First, the Navy's application states that the Western 
Atlantic/Jacksonville Operational Area is a potential area for SURTASS 
LFA sonar operations; it does not state that training would occur in 
the area in the winter. This area is one of 19 potential sites that 
they modeled and analyzed during the winter to assess potential impacts 
to marine mammals for the rule and the Letter of Authorization 
application process.
    We have designated the U.S. Right Whale Seasonal Habitat as an OBIA 
specifically to mitigate effects on north Atlantic right whales and 
their calves during the winter months. Moreover, because we are also 
requiring the Navy to implement an additional 1-km (0.62 mi; 054 nm) 
buffer zone seaward of the outer perimeter of this OBIA, these 
mitigation measures ensure that sound levels within the area do not 
exceed approximately 175dB re: 1 [micro]Pa from November 15 through 
April 15, the calving months.
    If the Navy were to operate within the greater Jacksonville 
Operational Area outside of the U.S. Right Whale Seasonal Habitat OBIA, 
the rule requires the Navy to conduct visual, passive acoustic, and 
active acoustic monitoring and suspend/delay SURTASS LFA sonar 
transmissions if a marine mammal enters the 2-km (1.2-mi; 1.1-nm) LFA 
mitigation and buffer zones around the vessel.
    In each annual application, the Navy will include information if it 
plans to operate (or not operate) within the Western Atlantic/
Jacksonville Operational Area. Thus, at this time we cannot say if the 
Navy intends to operate in the Western Atlantic/Jacksonville 
Operational Area during the period of November through January (i.e., 
calving months) with the exception of the first year of SURTASS LFA 
sonar operations, where the Navy has stated in its application, that it 
does not intend to operate in this area.
    To clarify, Table 21 in the Navy's application presents estimates 
of the percentage of marine mammal stocks potentially affected by 
SURTASS LFA sonar in the proposed mission area of the Western Atlantic/
Jacksonville Operational Area. The Navy has modeled potential effects 
to all marine mammals in the Western Atlantic/Jacksonville Operational 
Area during the winter in the 2012 FSEIS/SOEIS (see Tables 4-17 and C-
29). If the Navy conducted SURTASS LFA operations in the winter, the 
Navy's risk estimates predict that 0.12 percent of the north Atlantic 
right whale population could be potentially exposed to sound levels 
that may lead to Level B harassment.
    Comment 5: A commenter discussed the Navy's estimates of the 
percentage of marine mammal stocks potentially affected by SURTASS LFA 
sonar in the proposed mission area of the Sea of Japan operating area. 
He stated: ``The summer feeding grounds of Western Gray [whales] is 
located in the Sea of Okhotsk and is part of an OBIA which restricts 
the Navy from training there. The migratory patterns and route of these 
whales is largely unknown but is presumed to take them south to Korea. 
If this is the case then the whales will be migrating through the Sea 
of Japan during the spring and fall, the modeled season for training.''
    Response: Based upon the best available information, we found few 
data to support designating an area within the Sea of Japan as a 
migration corridor (i.e., an OBIA for SURTASS LFA sonar). However, any 
western Pacific gray whales transiting through the Sea of Japan will be 
protected from exposure to sound pressure levels greater than 
approximately 175dB re: 1 [micro]Pa by the Navy's three-part monitoring 
protocols and required mitigation measures contained in this 
regulation.
    Comment 6: The same commenter as in Comment 5 also stated: ``There 
are many other marine mammal populations that are listed under the ESA 
that occupy areas close to proposed SURTASS LFA training areas. Due to 
the fragile nature of these populations, the Navy should afford these 
animals extra protection to maximize their chance of survival and 
recovery. The SURTASS training in this area could affect the whale's 
navigation or migration patterns and these populations will not be able 
to recover from endangered levels when human interactions affect their 
behavior. The Navy should make a concerted effort to ensure that sonar 
is not used in areas where ESA species are currently migrating, 
calving, and feeding.''
    Response: See response to Comment 3. We are unclear as to which 
area or species the commenter referred. We designated OBIAs based on 
certain criteria and the best available information we had for marine 
mammals to determine if any areas met the criteria. In some cases, we 
designated an OBIA because a species listed under the Endangered 
Species Act has designated critical habitat, breeds, calves, migrates, 
or forages in a particular area. For example, we designated four OBIAs 
for north Atlantic right whales, one OBIA each for north Pacific right 
and fin whales, 10 OBIAs for humpback whales, and six OBIAs for blue 
whales. Beyond that, the standard mitigation and monitoring measures 
that apply wherever the Navy operates SURTASS LFA sonar will ensure 
that marine mammals are not exposed to sound levels that exceed 
approximately 175 dB re: 1 [micro]Pa. Finally, the Navy will 
perform mission planning for annual Letters of Authorization 
applications and would limit operation of SURTASS LFA sonar to ensure 
that no more than 12 percent of any marine mammal stock would be taken 
by Level B harassment annually, over the course of this five-year 
regulation.
    We anticipate that effects to marine mammals (including threatened 
and endangered species) would be in the form of Level B harassment 
(behavioral), due to the required mitigation measures, geographic 
restrictions, and sporadic nature of the SURTASS LFA sonar operations. 
While marine mammals may be affected by the SURTASS LFA sonar sounds, 
we have determined that these effects are not reasonably likely to 
adversely affect the species or stock through effects on annual rates 
of recruitment or survival.
    Comment 7: One commenter stated: ``There exists significant risk to 
Southern Resident Killer Whales (SRKW), who are listed as an endangered 
distinct species population [distinct population segment] under the 
ESA, in addition to being protected under the MMPA. The critical 
habitat for these animals is near the San Juan Archipelago in 
Washington State, near the U.S.-Canadian Border. If sonar use causes 
mass strandings similar to the incident in the Bahamas in 2000, it 
could have permanent negative consequences on the long-term survival of 
this species. While the application and proposed NMFS ruling say 
harassment is the only foreseen consequence, the mass stranding event 
in the Bahamas strongly suggests at least the possibility of 
significant mortality occurring. Additionally J Pod, one of the three 
SRKW pods, has already had a brush with Navy sonar, along with multiple 
other marine mammals in the area. While the Navy claims there were no 
adverse effects from the Sonar output of the USS Shoup in May of 2003, 
local scientists disagree, and NMFS' own findings were inconclusive. 
Such uncertain or dissenting expert opinions should create enough doubt 
in any educated mind and the benefit of this doubt should be given to 
the whales, not the Navy.
    This application should be reconsidered. If an Unusual Mortality 
Event (UME) were to occur in the San Juan Islands, this would have a 
ripple effect on the entire ecosystem not just

[[Page 50298]]

the various marine mammals in the area. Furthermore, if a UME were to 
occur involving the SRKW population, this would have a serious 
detriment on the local tourism economy of the San Juan Islands, 
creating a direct harm on local citizens and the local economy in 
addition to the ecological concerns already mentioned.''
    Response: Based on the best available information, SURTASS LFA 
sonar is not associated with strandings of marine mammals. SURTASS LFA 
sonar has operated subject to our regulations for the last nine years 
without any reports of strandings since the Navy began using the system 
operationally in the early 2000s. The Stranding and Mortality section 
in the proposed rule (77 FR 842; January 6, 2012; pages 871-872) 
presented information on the potential for stranding from SURTASS LFA 
sonar as well as information on strandings associated with mid-
frequency active sonar use.
    Over the past 12 years, there have been five stranding events 
coincident with military mid-frequency active sonar use in which 
exposure to sonar is believed (by NMFS and the Navy) to have been a 
contributing factor to strandings, including the Bahamas (2000). We 
refer the reader to Cox et al. (2006) for a summary of the Bahamas 
strandings event.
    We have also provided a summary of the Navy's acoustic modeling 
scenarios and risk analysis methods in the proposed rule (77 FR 842; 
January 6, 2012; pages 859-860). Based upon the best available 
scientific information, while marine mammals may be potentially 
affected by the SURTASS LFA sonar sounds, we have determined that these 
effects are not reasonably likely to adversely affect the species or 
stock through effects on annual rates of recruitment or survival.
    Second, there are three areas designated as critical habitat for 
the Southern Resident killer whale: the Summer Core Area in Haro Strait 
and waters around the San Juan Islands; Puget Sound; and the Strait of 
Juan de Fuca (71 FR 69054, November 29, 2006). These areas are within 
22 km (14 mi; 12 nm) of the Washington coastline and thus under our 
criteria are not OBIAs, but rather fall within the coastal exclusion 
zone, where sound pressure levels will not exceed 180 dB re: 1 
[micro]Pa. We also note that sound pressure levels will not exceed 
approximately 175 dB re: 1 [micro]Pa at 1 km (0.62 mi; 054 nm) seaward 
of the boundary of the OBIA for the Olympic Coast National Marine 
Sanctuary, the Prairie, Barkley Canyon, and Nitnat Canyon.
    NMFS' final rule designating critical habitat for the Southern 
Resident killer whale (71 FR 69054, November 29, 2006) did not 
recognize any offshore areas (where the Navy could potentially operate 
SURTASS LFA sonar) that might qualify as an OBIA for the Southern 
Resident killer whales. Further, if the Navy were to operate in 
offshore areas, where individuals of this species are present, they 
would be protected from sound pressure levels in excess of 
approximately 175 dB re: 1 [micro]Pa via the Navy's three-part 
monitoring and shutdown/delay protocols.
    Finally, the reporting measures in this regulation require the Navy 
to provide us with a notification that includes reports of injured or 
dead marine mammals as well as notification of a ship strike.
    Comment 8: One commenter stated: ``The Administrative Procedure Act 
requires agencies such as NMFS to give a reasonable explanation of 
their decisions. This is to prevent agency decisions from being 
``arbitrary and capricious.'' In this case, part of the Navy's LOA 
application, and part of the reasoning of NMFS, is that: (1) ESA 
species won't be additionally affected, and (2) it is unlikely these 
effects will rise past mere harassment. However, as discussed in this 
comment, there is evidence contradicting both of those statements. We 
believe that when an agency fails to at least address contradictory 
evidence in its decision making, those decisions will likely be too 
arbitrary and capricious to satisfy the APA.''
    Response: See our responses to Comments 3, 4, and 5. While 
threatened and endangered marine mammals may be potentially affected by 
the SURTASS LFA sonar sounds, we have determined that these effects 
will be limited to Level B behavioral harassment and are not reasonably 
likely to adversely affect the species or stock through effects on 
annual rates of recruitment or survival, NMFS has also determined this 
action is not likely to jeopardize the continued existence of any 
endangered or threatened species under our jurisdiction or result in 
the destruction or adverse modification of critical habitat.
    We included a detailed discussion of the potential effects of the 
Navy's SURTASS LFA sonar operations on marine mammals (including 
threatened and endangered species), marine mammal habitat, critical 
habitat, compliance with maritime laws, marine protected areas, and 
potential physiological and behavioral effects on marine mammals in the 
Federal Register notice of the proposed rule (77 FR 842; January 6, 
2012). We have explained the basis for our findings under 16 U.S.C. 
1371(a)(5)(A) and our implementing regulations to support issuance of 
the final rule and Letters of Authorization to the Navy. We disagree 
that our findings in this rulemaking are arbitrary and capricious.

Acoustic Thresholds for Threshold Shift

    Comment 9: One commenter noted that although the Navy is restricted 
from testing sonar within 22 kilometers of shore and within any 
Offshore Biologically Important Area, the Navy estimates that sonar 
waves can retain an intensity of 140 decibels from as far away as 300 
miles (NRDC, Lethal Sounds).
    Response: We refer the commenter to Appendix C of the 2012 FSEIS/
SOEIS for more detailed information on the Navy's modeling of sonar 
sound waves.
    Richardson et al. (1995) stated that it would be unlikely that any 
marine mammal would remain for long in areas where there was continuous 
underwater noise exceeding 140 dB re: 1 [mu]Pa. In fact, the Navy's Low 
Frequency Sonar Scientific Research Program, which assessed the 
potential impacts of SURTASS LFA sonar on the behavior of low-frequency 
hearing specialists, noted no reduction in sighting rates and no 
reduction in acoustic detection within the vicinity of the SURTASS LFA 
sonar source vessel during the studies which lasted for several weeks 
(DoN, 2001). In all three phases of the Program (Clark et al., 2001), 
most animals showed little to no response to SURTASS LFA sonar signals 
at received levels up to 155 dB re: 1 [mu]Pa, and those individuals 
that did show a response resumed normal activities within tens of 
minutes. Thus, avoidance of the greater than 140 dB re: 1 [mu]Pa zone 
of exposure occurred much less than expected. At this received level of 
sound, the Navy's model for SURTASS LFA sonar estimates that the risk 
of significant change in a biologically important behavioral is low 
(less than one percent).

Behavioral Harassment Threshold

    Comment 10: One commenter stated that the MMPA itself states: 
``[T]here is inadequate knowledge of the ecology and population 
dynamics of such marine mammals and of the factors which bear upon 
their ability to reproduce themselves successfully.'' 16 U.S.C. 
1361(2)(3). Broadly, this inadequacy seems to be most exposed in our 
understanding of Level B harassment of these creatures by LFA sonar, 
which involves such a vast and as-yet-unknown spectrum of possible

[[Page 50299]]

behavioral responses by the animals to the technology.''
    Response: We don't have a perfect understanding of marine mammal 
behavioral responses, but we have sufficient information (based on 
multiple LFA sonar-specific studies, marine mammal hearing/physiology/
anatomy, and an extensive body of studies that address impacts from 
exposure to other anthropogenic sources) to be able to assess potential 
impacts and design mitigation and monitoring measures to ensure that 
the Navy's action will avoid the worst effects and have a negligible 
impact on the affected species and stocks. With this information, we 
can make the necessary findings under 16 U.S.C. 1371(a)(5)(A) and our 
implementing regulations and can say with confidence that the Navy's 
level of effort, including its mission planning, adequately offset the 
unknowns.
    For example, the Navy's Low Frequency Sonar Scientific Research 
Program (1997-98) assessed the potential impacts of SURTASS LFA sonar 
on the behavior of low-frequency hearing specialists accounting for 
three important behavioral contexts for baleen whales: foraging, 
concentrated migrations, and breeding. The sonar playback experiments 
focused on baleen species: (1) Blue and fin whales feeding in the 
southern California Bight, (2) gray whales migrating past the central 
California coast, and (3) humpback whales breeding off Hawaii. Over the 
course of the sonar playback experiments, the researchers exposed the 
marine mammals to received levels ranging from approximately 120 to 155 
dB re: 1 [micro]Pa. They detected only minor, short-term, behavioral 
responses by changing their vocal activity, moving away from the source 
vessel (Clark et al., 2001). Post-playback, the whales (in each case) 
resumed normal activities within tens of minutes after the initial 
exposure to the SURTASS LFA signal (Clark et al., 2001).
    In the Potential Effects of the Specified Activity on Marine 
Mammals section of the proposed rule (77 FR 842; January 6, 2012; pages 
860-874), we included a qualitative discussion of the different ways 
that SURTASS LFA sonar operations may potentially affect marine 
mammals, which was based on the LFA sonar-specific study above as well 
as many other studies addressing the impacts of other anthropogenic 
sources.

Strandings and Mortality

    Comment 11: Mass strandings of marine mammals should haunt this 
program, for although direct causal relationships are difficult to 
establish between the sonar and the strandings, evidence is not 
entirely lacking.
    Response: See Response to Comment 7.

Offshore Biologically Important Areas

    Comment 12: One commenter (who was also a subject matter expert on 
the panel that helped identify OBIAs) felt that the review process to 
determine OBIAs was limited, creating poor precedent for identifying 
and protecting marine mammal habitat. The commenter described 
difficulty in determining how representative the selected areas for 
marine mammals were or how well they reflected the collective knowledge 
of a limited number of solicited individuals.
    The NRDC also commented that some regions had no experts assigned 
to them (e.g., Australia); some had only one (e.g., offshore Africa and 
South America) and suggested that the subject matter experts nominated 
only those areas they had particular knowledge of rather than attempt a 
systematic review of an entire oceanic basin or region.
    Response: We appreciate the first commenter's efforts in assisting 
us with identifying OBIAs for SURTASS LFA sonar and we believe that we 
have used the best available information (including but not limited to 
input from subject matter experts) to identify OBIAs globally.
    We designate OBIAs (based upon qualifying criteria) to protect 
marine mammals in areas that are biologically important for them. For 
this process we used the best available data to assess ocean areas 
greater than 22 km (14 mi; 12 nm) from any shoreline with: (1) High 
densities of marine mammals; (2) known/defined breeding/calving 
grounds, foraging grounds, migration routes; or (3) small, distinct 
populations of marine mammals with limited distributions.
    To eliminate the potential for geographic bias in the OBIA 
selection process, our initial scoping of potential OBIAs encompassed a 
review of 16 marine regions as designated by the World Commission on 
Protected Areas (IUCN World Commission on Protected Areas--WCPA): 
Region 3--Mediterranean; Region 4--northwest Atlantic; Region 5--
Northeast Atlantic; Region 6--Baltic; Region 7--Wider Caribbean; Region 
8--West Africa; Region 9--south Atlantic; Region 10--central Indian 
Ocean; Region 11--Arabian Sea; Region 12--East Africa; Region 13--east 
Asian Sea; Region 14--south Pacific; Region 15--northeast Pacific; 
Region 16--northwest Pacific; Region 17--southeast Pacific; and Region 
18--Australia/New Zealand. We did not include the polar regions (i.e., 
Regions 1 and 2) in our scoping process because they are non-
operational areas for SURTASS LFA sonar.
    Initially, we reviewed 403 existing and potential marine protected 
areas based on the World Database on Protected Areas (WDPA) (IUCN and 
UNEP, 2009), the Whale and Dolphin Society's online Directory of 
Cetacean Protected Areas around the World (2009) based upon Hoyt 
(2005), and prior SURTASS LFA sonar OBIAs. Within that initial review, 
over 80 percent (340) of the areas were within 22 km (14 mi; 12 nm) of 
the coastline and are already included in the coastal standoff zone, so 
they did not qualify for further OBIA consideration. We screened the 
remaining areas under our OBIA criteria and produced a preliminary list 
of 27 OBIAs for the subject matter experts to review.
    The subject matter experts with expertise in geographic regions 
including the Atlantic, Pacific, and Indian Oceans, and the 
Mediterranean Sea, provided their individual analyses of our 
preliminary list of OBIA nominees and provided additional 
recommendations for additional OBIAs, resulting in a total number of 73 
potential OBIAs. We solicited subject matter experts for Australia and 
New Zealand but were unsuccessful in finding any volunteers willing to 
participate in our process. However, we independently reviewed the 
waters around Australia and New Zealand (Region 18--Australia/New 
Zealand) and suggested two OBIAs: OBIA  18--Great Barrier Reef 
16[deg] S to 21[deg] S; and OBIA  19--Bonney Upwelling/
Southwestern Australia.
    To ensure that we ranked the 73 nominated areas consistently, we 
screened the nominations for sufficient scientific support, assigning a 
rank of zero (lowest) to four (highest) depending upon the robustness 
of the supporting documentation for the selection criteria. Our 
classification methodology appears on page D-104 of the FSEIS/SOEIS. 
This framework we developed ensures that the information available for 
each potential OBIA supports the presence of the relevant OBIA 
criteria. Briefly, the scores are:
     Level 0, Not applicable: Information does not meet our 
definition of the corresponding OBIA criteria or the OBIA criteria are 
not applicable.
     Level 1, Not eligible: Insufficient detail for criteria 
evaluation or insufficient detail for high density specifically.
     Level 2, Eligible: Supporting information derived from 
habitat suitability models (non-peer reviewed),

[[Page 50300]]

expert opinion, regional expertise, or gray (non-peer reviewed) 
literature, but requires more justification.
     Level 3, Eligible: Supporting information derived from 
peer-reviewed analysis, habitat suitability models (peer-reviewed), or 
a survey specifically aimed at investigating and supporting the 
corresponding OBIA criteria provides adequate justification.
     Level 4, Eligible: Supporting information derived from 
peer-reviewed analysis, habitat suitability models (peer-reviewed), or 
a survey specifically aimed at investigating and supporting the 
corresponding OBIA criteria provides strong justification.
    In cases where the subject matter expert did not provide enough 
support, we contacted them for additional supporting information and 
also conducted our own re-analysis and continued review of peer-
reviewed literature to supplement nominations with little supporting 
documentation.
    Areas that received a score of two or higher were eligible for 
further consideration, which resulted in 45 potential OBIAs. Further 
consideration of marine mammal hearing frequency sensitivity led us to 
screen out additional areas that qualified solely on the basis of their 
importance for mid- or high-frequency hearing specialists (e.g., 
dolphins, toothed whales, and beaked whales that hear best in the mid-
frequency (150 Hertz to 160 kilohertz) and high-frequency (200 Hz to 
180 kHz) ranges; low frequency hearing specialists, such as large 
baleen whales, hear best in the low-frequency range of 7 Hz to 22 kHz 
(Southall, 2007)), resulting in a list of 22 OBIA nominees for the 
Navy's consideration under a practicability standard.
    The list of 22 OBIAs reflects the collective knowledge of not only 
the subject matter experts but of our own research, before and after 
their input, which consisted of reading: peer-reviewed scientific 
literature; reports prepared by natural resource agencies in other 
countries; reports from non-governmental organizations involved in 
marine conservation issues; and doctoral dissertations and master's 
theses.
    Table 2 presents the geographic scope of the selected areas in the 
Proposed Rule. We also note that some OBIAs consist of multiple areas 
within a single OBIA. Seven of the eight OBIAs for South America, 
Australia, and the Indian Ocean are newly-designated areas for SURTASS 
LFA sonar compared to the previous two rulemakings.

     Table 2--Geographic Scope of the 22 Areas in the Proposed Rule
------------------------------------------------------------------------
                                                                Number
                        Marine area                            selected
------------------------------------------------------------------------
Antarctic Convergence Zone.................................            1
Atlantic Ocean--Northwest..................................            4
Atlantic Ocean--Southeast..................................            1
Atlantic Ocean--Southwest..................................            2
Caribbean Sea..............................................            1
Indian Ocean...............................................            2
Mediterranean Sea..........................................            1
Pacific Ocean--Central/Eastern Tropical....................            2
Pacific Ocean--Northeast...................................            4
Pacific Ocean--Northwest...................................            1
Pacific Ocean--Southeast...................................            1
Pacific Ocean--Southwest...................................            2
                                                            ------------
    Total..................................................           22
------------------------------------------------------------------------

    The commenter's assertion that we did not conduct a systematic 
review of an oceanic basin or region is not accurate. Hoyt (2005) is 
recognized as a comprehensive global reference for identifying marine 
protected areas for whales, dolphins, and porpoises, and it is only 
logical to use it as a starting point for our identification of OBIAs 
before asking subject matter experts for additional recommendations. To 
date, 106 journal articles have cited Hoyt's 1st edition. Additionally, 
several marine and biological experts have positively reviewed Hoyt's 
efforts as authoritative, comprehensive, and up-to-date (e.g., Sylvia 
Earle; Edward O. Wilson; Carl Gustaf Lundin, Head, IUCN Global Marine 
and Polar Programme; William Rossiter, Director, Cetacean Society 
International; and one of the subject matter experts we consulted for 
the OBIA process). See http://www.cetaceanhabitat.org/reviews.php for a 
fuller list of reviews.
    We compared the 1st and 2nd editions of Hoyt (2005 and 2011) to 
ensure that we did not overlook any additional areas for consideration. 
Appendix F of the 2012 FSEIS/SOEIS includes the results of our re-
analysis of 367 additional areas within the Hoyt's (2011) 2nd Edition 
of Marine Protected Areas for Whales, Dolphins and Porpoises for this 
final rule.
    Based on our evaluation of the 367 potential areas within the 
Hoyt's (2011) 2nd Edition of Marine Protected Areas for Whales, 
Dolphins and Porpoises (see Appendix F of the Navy's 2012 FSEIS/SOEIS), 
we have added one additional OBIA, the Abrolhos Bank in the southwest 
Atlantic Ocean which is a breeding/calving area for endangered humpback 
whales. The specified period of this OBIA would be effective August 
through November.
    We also identified two additional areas for further consideration 
as OBIAs for marine mammals--an area within the Southeast Shoal, Grand 
Bank in the northwest Atlantic Ocean and an area within Dogger Bank in 
the North Sea. However, because the supporting information for these 
specific areas is limited, we and the Navy are continuing to gather 
information to determine whether these areas meet the OBIA criteria 
(see Mitigation section in this document).
    Finally, this final regulation governing the take of marine mammals 
incidental to the Navy's SURTASS LFA sonar operations contains an 
adaptive management component. This provides a mechanism for NMFS and 
the Navy to modify (or add or delete) mitigation or monitoring 
measures, as appropriate, based on new information. We would add, 
modify or delete mitigation or monitoring measures in consultation with 
the Navy if doing so creates a reasonable likelihood of accomplishing 
the goals of mitigation and monitoring laid out in this final rule. 
This includes our continued analysis of the Southeast Shoal on the 
Grand Bank and an area within Dogger Bank in the North Sea within the 
first year of this rule.
    Comment 13: One commenter suggested that the expert panel did not 
have a role in establishing the screening criteria (determined in 
advance by us) to select potential areas and following the submission 
of potential areas by the subject matter experts. They also suggested 
that we unilaterally weighed the scientific merits of each proposal and 
did not afford the expert panel an opportunity to participate in a 
group discussion or decision-making process.
    Response: The commenter correctly noted that the expert panel did 
not have a role in either establishing the screening criteria for OBIAs 
or the final decision-making process. The Process Summary for Expert 
Input (Appendix D-3 in the 2012 FSEIS/SOEIS), Stage 1 (c) specifically 
states that ``NMFS will incorporate expert input, as appropriate, to 
produce the final OBIA nominees, which will be included for 
consideration in the Navy's 2009 [2011] draft supplemental 
environmental impact statement (DSEIS) for SURTASS LFA sonar.''
    The purpose of the panel was to provide scientific information and 
make additional, scientifically supportable, OBIA recommendations based 
on the criteria and within the process we set up after careful 
consideration of the U.S. District Court's opinion and order granting 
in part plaintiffs' motion for preliminary injunction in NRDC et al. v. 
Gutierrez et al., 2008 WL 360852 (N.D.Cal.).

[[Page 50301]]

    Comment 14: NRDC and one other commenter suggested that the OBIA 
process failed to include habitat suitability or density modeling for 
marine mammals to confirm or, crucially, augment the information 
acquired from the subject matter experts.
    Response: We recognize that baseline data on the distribution and 
behavior of marine animals are limited for certain areas of the world's 
oceans. During our OBIA designation process, we instructed the subject 
matter experts to use predictive habitat or density models in their 
review process if appropriate. Regarding our use of habitat suitability 
or density modeling, we have used results from habitat-based density 
modeling to supplement information provided by the subject matter 
experts. For example, we considered habitat-based density modeling from 
Barlow et al. (2009) in determining whether an area within the Southern 
California Bight, including Tanner and Cortes Banks, met our OBIA 
criteria as an area of blue whale concentration.
    For offshore areas (those not associated with coastal areas or 
within a particular countries' exclusive economic zone) we agree that 
the data are lacking. In these data-poor scenarios there is debate 
about whether decision makers should use predictive models to forecast 
patterns in distribution or density in wide-ranging and heterogeneous 
areas (Praca et al., 2009). Most models that relate cetacean 
distribution or population density to environmental factors are based 
on easily measured environmental proxies that substitute for the 
ultimate physical, biological, historical, or behavioral factors that 
interact to produce the observed patterns in cetacean habitat use. The 
relationship between a given proxy and the underlying ecological 
mechanism that it represents is likely to be region-specific and might 
vary among species in a given region. Furthermore, the functional 
relationship defined by a proxy is likely to depend upon the spatial 
and temporal scale of the ecological phenomenon that it represents. 
Therefore, we should use caution when extrapolating relationships 
between a proxy and cetacean distribution or density from one study 
area to another that differs in size or geographic location (Ferguson 
et al., 2010).
    Model validation (defined as comparing model fit or predictions to 
the data upon which the model was built or to a novel data set) is a 
critical component of cetacean-habitat modeling. If the model's fitted 
or predicted values are largely biased or imprecise, the model cannot 
reliably inform a question that it is designed to address. For 
scenarios in which cetacean distribution or density data are scarce or 
completely lacking, such as in open ocean areas outside of the United 
States, our ability to quantitatively or qualitatively validate 
cetacean-habitat model predictions may be limited or biased. In these 
situations, model validation must rely on multiple sources of 
scientific knowledge (including, but not limited to: Personal 
observations of distribution and density; known migration routes; 
ecosystem dynamics, such as inter-specific competition; seasonality and 
environmental regime shifts; live strandings; range expansions or 
contractions due to changes in population size; and historic whaling 
data) or indigenous/local knowledge (Ferguson et al., 2010).
    While predictive models can indicate regions with physical 
properties that might have relatively high probabilities of species 
occurrence, the actual abundance/density estimates for the region are 
often not known. Predictive models are only as good as the input data 
and the relationships between animal abundance/density and physical 
properties. Thus, they must have robust data to accurately predict 
relationships between animal abundance and/or density and physical 
properties. Outside of U.S. waters, some available models may not be 
robust enough to predict a species' true niche due to inter-specific 
and intra-specific dynamics and interactions with the physical 
environment.
    Regarding the second point, we did not rely solely on the subject 
matter experts (see our responses to Comments 12 and 13). The subject 
matter experts' inputs were a crucial component of our selection 
processes; however, they were only one component. We as the action 
agency are responsible for the final selection of the SURTASS LFA sonar 
OBIAs. Because we independently evaluated the subject matter expert's 
input as well as available data/information for each recommended OBIA, 
we do not believe that effort bias on the part of the subject matter 
experts was a factor in our determinations.
    In areas not designated as an OBIA (either because they did not 
meet the criteria or because there weren't sufficient data to support 
the designation), the regulation provides mitigation and monitoring 
measures that protect marine mammals nevertheless. The regulation 
requires the Navy to: (1) Restrict operations of SURTASS LFA sonar such 
that the sound field does not exceed 180 dB re: 1 [mu]Pa within 22 km 
(14 mi; 12 nm) of any coastline; (2) Conduct visual, passive acoustic, 
and active acoustic monitoring; and (3) Perform delays/shutdown 
protocols of active LFA sonar transmissions when monitoring detects a 
marine mammal effectively ensuring that marine mammals are not exposed 
to sound levels that exceed approximately 175 dB re: 1 [mu]Pa.
    In addition to the Navy's required mitigation and monitoring 
protocols, their annual application to us for LOAs will use a 
sensitivity/risk assessment process to assess potential impacts to 
marine mammals (DoN, 2002; 2003; 2004; 2005; 2006). This process starts 
with the Navy reviewing the proposed mission areas and includes: (1) 
Data collection and analyses for marine mammal abundances/densities; 
(2) spatial/temporal analyses for potential geographic restrictions/
migration corridors/habitat preferences; (3) mission area changes/
refinements as required; (4) risk analysis/estimates; and (5) 
determination on the viability of a mission area based on potential 
marine mammal impacts. As with the 2002 and 2007 rules, the Navy will 
limit operation of SURTASS LFA sonar to ensure that no more than 12 
percent of any marine mammal stock would be taken by Level B harassment 
annually, over the course of this five-year regulation. This annual 
per-stock cap applies regardless of the number of SURTASS LFA sonar 
vessels operating. The Navy will use the 12 percent cap to guide its 
mission planning and annual authorization applications to the greatest 
extent feasible considering national security tasking.
    We and the Navy recognize that available information regarding 
marine areas will evolve over the next five years and these regulations 
include an adaptive management component to account for new data. This 
provides a mechanism for NMFS and the Navy to modify (or add or delete) 
mitigation or monitoring measures, as appropriate, based on new 
information. We would add, modify or delete mitigation or monitoring 
measures in consultation with the Navy if doing so creates a reasonable 
likelihood of accomplishing the goals of mitigation and monitoring laid 
out in this final rule. We and the Navy will meet annually (if deemed 
necessary by either agency) to discuss the monitoring reports, Navy 
research and development outcomes, current science, and to determine 
whether mitigation or monitoring modifications are appropriate.
    Comment 15: The NRDC and one other commenter suggested that NMFS 
had established an unreasonably high bar for further consideration of 
OBIAS,

[[Page 50302]]

rather than a precautionary approach, even for areas where very little 
survey data are available. They also took issue with the proposed rule 
establishing only 21 discrete OBIAs within an area of operations that 
includes nearly all of the Atlantic, Pacific, and Indian Oceans and the 
Mediterranean Sea and suggested that we: did not advance most of the 
recommended areas to the Navy for discussion regardless of 
practicability; gave little weight to expert opinion; reviewed the 
first edition of Hoyt's (2005) Marine Protected Areas for Whales, 
Dolphins, and Porpoises and relied heavily upon the experts to supply 
additional information; and did not consider areas with rankings of 
``two'' even if they featured baleen whale habitat.
    Response: See our response to Comment 12 for a description of our 
evaluation process and pages 877-878 in the Federal Register notice of 
the proposed rule (77 FR 842; January 6, 2012). Table 2 (in Response to 
Comment 12) presents information on the geographic scope of the OBIAs. 
For this rulemaking, we have designated more than double the number of 
OBIAs in previous rulemakings for SURTASS LFA sonar, and more than 60 
percent of these OBIAs are outside of U.S. waters.
    Contrary to NRDC's assertion, we forwarded all of the subject 
matter experts' recommended areas (including those that did not qualify 
under the selection criteria) to the Navy for discussion. During each 
phase of the OBIA scoping process, the Navy had access to the 
following: Our initial screening matrix of 403 potential areas in the 
world; the potential 27 areas that we presented to the subject matter 
experts for review; the 73 potential OBIAs recommended by us, the 
experts and the Navy; the 45 areas resulting after we screened them for 
adequate scientific support (i.e., areas with a score of 2 or higher 
for at least one eligibility criteria); and the 22 areas that remained 
after screening for hearing specialization. The ``bar for further 
consideration'' the commenter refers to was our requirement that the 
description of the area recommended by an expert contain enough 
information for us to verify that it met our criteria. In cases where 
justification from subject matter experts was limited, we and the Navy 
conducted additional literature reviews to search for further support 
for those potential OBIA nominees. The practicability inquiry is 
immaterial if the area does not meet our standards for an OBIA in the 
first place.
    In fact, based upon our continued re-analysis of the world's 
oceans, we have designated one additional OBIA (Abrolhos Bank in the 
southwest Atlantic Ocean) in addition to the 22 that we proposed.
    We disagree that our process set an unreasonably high bar for 
further consideration and we recognize that many areas throughout the 
world's oceans have little data to support an OBIA designation at this 
time. The regulation's adaptive management provision allows us and the 
Navy to re-evaluate areas during the annual request for LOAs as new 
information becomes available. We will continue to conduct literature 
reviews and use robust habitat modeling results to support our 
reconsideration of these data-poor areas; and would consider modifying 
geographic restrictions as appropriate. In the meantime, the other 
protective measures in this regulation will be in effect.
    Although habitat is a contributing factor to supporting our 
biological criteria for OBIAs, we did not base our recommendations on 
areas that solely feature baleen whale habitat. For areas based on 
habitat suitability models (non-peer reviewed), expert opinion, 
regional expertise, or gray literature (i.e., non-peer reviewed 
studies), we ranked these areas as a two (Eligible: Requires More 
Justification). Contrary to the commenter's assertion, under our 
classification methodology, we considered areas with a rank of two or 
higher as eligible for consideration as an OBIA for SURTASS LFA sonar 
operations. Thus, we included the subject matter expert's submitted 
areas within the initial screening for OBIA candidates. Many of these 
recommended areas did not meet our additional screening criterion for 
low-frequency hearing specialization.
    The commenter's assertion that we did not conduct a systematic 
review of an oceanic basin or region is not accurate. Hoyt (2005) is 
recognized as a comprehensive global reference for identifying marine 
protected areas for whales, dolphins, and porpoises. It was a logical 
starting point for our identification of OBIAs. Later, we compared the 
1st and 2nd editions of Hoyt (2005 and 2011) to ensure that we did not 
overlook any additional areas for consideration. We provide the results 
in Appendix F of the 2012 FSEIS/SOEIS. Based on that review, we have 
designated the following additional OBIA: Abrolhos Bank off the 
Brazilian Coast in the southwest Atlantic Ocean for humpback whales 
effective August through November.
    Further, we and the Navy are continuing to gather current 
supporting information to continue to review the Southeast Shoal area, 
Grand Bank in the northwest Atlantic Ocean and Dogger Bank in the North 
Sea under the OBIA criteria. Because the Navy does not intend to 
operate within the northwest Atlantic Ocean or North Sea this year, we 
and the Navy will make a decision on this area as a potential OBIA 
within the first year of this rule under the adaptive management 
framework.
    To reiterate, we incorporated expert input, as appropriate, to 
produce the proposed OBIAs (see Comment 12). The commenter's statement 
about ``heavy reliance on experts'' disregards the extensive analysis 
that we and the Navy conducted during the initial phase of the 
identification process as well as our continual efforts to update 
information on potential OBIAs during the rule making for this 
regulation.
    Comment 16: The NRDC stated that for at least one major area that 
remained, we failed to consider more limited forms of mitigation when a 
complete exclusion was deemed impracticable, a failure that led to a 
complete lack of additional protection for the Southern California 
Bight.
    Response: We designate OBIAs to protect marine mammals. OBIAs are 
not intended to protect areas per se. Also, the comment ignores the 
required mitigation and monitoring measures for any Navy SURTASS LFA 
sonar activities within the area, which will provide protection for 
marine mammals.
    We note that within the Southern California Bight, we require the 
Navy to limit the SURTASS LFA sonar sound field so that it does not 
exceed 180 dB re: 1 [mu]Pa within 22 km (14 mi; 12 nm) of any 
coastline, including offshore islands such as San Clemente and San 
Nicolas Islands, and the Channel Islands National Marine Sanctuary. 
This would include additional protections for smaller areas within the 
Southern California Bight such as the San Clemente and San Nicholas 
Islands. Also, the Navy will restrict SURTASS LFA sonar operations in 
the vicinity of known recreational and commercial dive sites to ensure 
that the sound field at such sites does not exceed received levels of 
145 dB re: 1 [mu]Pa. Within the Southern California Bight, the Navy has 
designated Tanner and Cortes Banks and the Channel Islands National 
Marine Sanctuary, as recreational dive sites.
    Since the publication of the proposed rule, we have consulted with 
the Navy on the practicability of finding other means of limiting 
SURTASS LFA sonar activities within the Southern California Bight to 
reduce adverse effects to marine mammals without impacting operations. 
The Navy is not currently planning to use the SURTASS LFA sonar system 
in

[[Page 50303]]

the Southern California Bight. If the Navy were to plan use of SURTASS 
LFA sonar per the 2012 FSEIS/SOEIS, the Navy would include the details 
of that plan in their LOA application for the applicable year. At that 
time, we and the Navy would discuss what, if any, other measures are 
appropriate in light of the projected use of SURTASS LFA sonar and 
relevant current information available for the species potentially 
affected by that use.
    Comment 17: The NRDC stated: ``The result of all this is to 
establish only 21 offshore biologically important areas--21 areas 
within an MMPA application that encompasses 70-75 percent of the 
world's oceans, including almost the entirety of the Atlantic, Pacific, 
and Indian Oceans and the Mediterranean Sea. In its 2002, 2003, and 
2008 opinions on SURTASS LFA, the District Court repeatedly emphasized 
the importance of geographic mitigation to reduce impacts from the LFA 
system, the need to ensure meaningful inclusion of OBIAs throughout the 
LFA operating area, and the agencies' obligation to affirmatively 
identify and protect marine mammal habitat. The agencies' draft 
approach to designating OBIAs--which leaves most of the Navy's 
operating area unrepresented and shifts much of the burden for 
justifying individual areas to experts--does not satisfy the 
requirements of NEPA and MMPA or the Court's concerns.
    Response: Under the regulation, the total area that would be 
available for SURTASS LFA sonar operations over the five-year period is 
about 70-75 percent of the world's oceans. This in no way equates to 
SURTASS LFA sonar operations affecting even close to 70-75 percent of 
the world's ocean areas during any given annual period for the LOAs. 
Based on its annual projected operational needs, the Navy will identify 
the particular geographic areas in which it intends to operate its four 
SURTASS LFA sonar vessels. In doing so, the Navy considers marine 
mammal habitats, seasonal activities, and behavioral activities during 
the process of determining potential mission areas and, to the greatest 
extent feasible considering national security tasking, avoids planning 
and conducting SURTASS LFA sonar operations in areas of known high 
marine animal densities (i.e., hot spots). Also, in performing mission 
planning for its annual LOA applications the Navy would limit operation 
of SURTASS LFA sonar to ensure that no more that 12 percent of any 
marine mammal stock would be taken by Level B harassment annually, over 
the course of this rule.
    We believe that our OBIA analysis was comprehensive (see Comments 
12 and 14). We and the Navy conducted separate bibliographic research 
to look for OBIA candidates in all potential operating areas, even 
before involving the subject matter experts in our process. And in all 
cases, we not only applied biologically-based criteria but also 
required a minimum level of supporting scientific documentation to 
designate an area as an OBIA.
    In designing the OBIA selection process for this rulemaking, we 
carefully considered and took into account the articulated concerns of 
the U.S. district court and believe the process addresses those 
concerns. Recognizing that many areas throughout the world's oceans 
currently have few data to support an OBIA designation at this time, we 
and the Navy will continue to conduct literature reviews under the 
adaptive management provision of this regulation.
    Comment 18: The NRDC stated: ``Offshore biologically important 
areas (OBIAs) lie at the core of the proposed rule, representing the 
sole difference between the new preferred alternative and the one 
selected by the agencies during the 2007 SEIS and rulemaking processes, 
and ultimately rejected by the Court. DSEIS at 2-11 to 2-13. Obtaining 
sufficient data on potential OBIAs throughout the Navy's entire 
proposed operating area is therefore critical. NRDC v. Gutierrez, Case 
No. 07-4771-EDL, 2008 WL 360852 at *7 (N.D. Cal. 2008) (``* * * having 
chosen not to confine operations to relatively sterile areas of the 
ocean and seasons of the year and to reduce the coastal exclusion zone, 
the Secretary must make a serious effort to investigate plausible 
candidates for OBIAs'').''
    Response: See Comments 12 and 14. We conducted a detailed, global 
evaluation for OBIA candidates. Our responsibility under 16 U.S.C. 
1371(a)(5)(A) and our implementing regulations is to prescribe the 
means of effecting the least practicable adverse impact, which involves 
consideration of impacts on military readiness training and operations. 
To that end, we, in coordination with the Navy, developed a suite of 
mitigation measures for this and previous rulemakings. OBIAs are an 
important component, but they are by no means the only one or the 
``core'' mitigation measure. The U.S. district court, in litigation 
over our previous rule, took issue with our process for identifying and 
designating OBIAs. We have remedied the identified deficiency.
    Comment 19: The NRDC stated that despite the lack of available 
density information for most locations and regions, we did not provide 
density modeling for any area beyond the United States. They also 
advocated the use of existing habitat suitability and/or density 
models, such as the one licensed by St. Andrews University's Sea Mammal 
Research Unit (SMRU).
    Response: As the NRDC letter notes, the Navy, under license 
agreements with St. Andrews University's Sea Mammal Research Unit and 
Dr. Kristin Kaschner, developed a preliminary database of marine mammal 
density estimations for the Navy's areas of responsibility that are the 
result of habitat suitability predictive modeling. For their 
environmental compliance efforts for mid-frequency active sonar 
training, the Navy uses a hierarchy of desired methods to estimate 
marine mammal density in the areas where they plan to train. The St. 
Andrews/Kaschner methodology is the least preferred method (used only 
when nothing else is available), with habitat-based density estimates 
and stratified density estimates being the first and second method of 
choice. However, for helping to estimate density, it is better than 
simply spreading an abundance estimate across the entire ocean since it 
considers species extent and attempts to characterize relative 
occurrence. As noted in our response to Comment 14, methods that 
extrapolate significantly past the areas where marine mammal surveys 
have actually been conducted and into ecologically different regions 
are far less likely to be accurate. While the Navy's groundtruthing 
exercises have shown the model to be relatively accurate for predicting 
most Atlantic species within a few hundred miles of the Atlantic Coast, 
they found the model inaccurate off the Pacific Coast and have not been 
able to validate the model in any other areas.
    Density estimates are necessary for the Navy to estimate take. The 
St. Andrews estimates serve as the least preferred option for 
calculating take for the Navy's mid-frequency active sonar training 
activities. However, for the reasons noted above, this method for 
estimating density does not produce estimates that are considered 
robust or accurate enough to support the designation of OBIAs under our 
criteria and requirements.
    Comment 20: The NRDC and several other commenters recommended that 
we consider the approach of using proxies such as: persistent 
oceanographic features (e.g., high primary productivity and nutrient 
enrichment processes); relative densities of non-marine mammal species 
(i.e., apex predators and fish); all continental shelf waters and 
waters 100 km (62 mi)

[[Page 50304]]

seaward of the continental slope; waters within 100 km (62 mi) of all 
islands and seamounts that rise within 500 meters (1,640 feet) to 
identify marine mammal hotspots or supplement our OBIA analysis in 
data-poor regions.
    Response: OBIAs are but one component of a suite of required 
mitigation and related monitoring measures designed to effect the least 
practicable adverse impact on marine mammals. The regulation prescribes 
mitigation and monitoring measures for SURTASS LFA sonar operations in 
areas that have persistent oceanographic features and seamounts and 
island chains that did not meet our OBIA criteria or fall within the 22 
km (14 mi; 12 nm) coastal exclusion zone. The Navy is to delay/shutdown 
active SURTASS LFA sonar transmissions when they detect a marine mammal 
within the 2-km (1.2-mi; 1.1-nm) LFA sonar mitigation and buffer zones 
around the vessel by visual, passive acoustic, and active acoustic 
monitoring protocols, effectively ensuring that marine mammals are not 
exposed to sound levels that exceed 175 dB re: 1 [mu]Pa.
    Our process for selecting, assessing, and designating OBIAs for 
SURTASS LFA sonar relies on three specific screening criteria for 
biological importance for marine mammals. These include areas with: (a) 
High densities of marine mammals; or (b) known/defined breeding/calving 
grounds, foraging grounds, migration routes; or (c) small, distinct 
populations of marine mammals with limited distributions. Additionally, 
the area must be 22 km (14 mi; 12 nm) seaward of any coastline. The 
commenters' recommendations do not meet the criteria we established.
    That said, we recognize that the ecological processes recommended 
by the commenters support cetacean habitats and have considered their 
guidance in reviewing and designating OBIAs. Information regarding data 
poor areas is likely to evolve over the five-year course of the final 
rule and beyond, and NMFS will consider new information to continue 
identifying OBIAs for SURTASS LFA sonar operations. Under our adaptive 
management framework, we will consider these factors along with our 
selection criteria to consider future modifications to the OBIA list. 
This provides a mechanism for NMFS and the Navy to modify (or add or 
delete) mitigation or monitoring measures, as appropriate, based on new 
information. We would add, modify or delete mitigation or monitoring 
measures in consultation with the Navy if doing so creates a reasonable 
likelihood of accomplishing the goals of mitigation and monitoring laid 
out in this final rule.
    As a part of our global OBIA selection process, we reviewed 
continental shelf and slope areas and have designated OBIAs located on 
the northeast U.S. continental, northwest U.S. continental, Patagonian, 
Bahamian, Madagascar, east Brazilian, the northeast Australian, the 
southeast Australian, the Sakhalin Island, and the southeast U.S. 
continental shelves or slopes.
    In our review of areas with enhanced productivity associated with 
seamounts, we have designated seven OBIAs which meet the commenters' 
recommendations. These areas include the Silver and Navidad Banks and 
the Abrolhos Bank in the Atlantic Ocean; the Costa Rica Dome; the 
Prairie, Barkley, and Nitnat Canyons; Davidson Seamount within the 
Monterey Bay National Marine Sanctuary; and Penguin Bank in the Pacific 
Ocean; and Walters Shoal in the Indian Ocean.
    Finally, over half of the OBIAs are located in areas categorized as 
Class I, highly productive or Class II, moderately productive 
ecosystems based on SeaWiFS global primary productivity estimates 
(NOAA, 2012).
    In areas that are not designated an OBIA, the standard operational 
mitigation and monitoring measures will apply wherever the Navy 
operates SURTASS LFA sonar. These required mitigation and monitoring 
measures and delay/shutdown protocols will ensure that marine mammals 
are not exposed to sound levels that exceed approximately 175 dB re: 1 
[mu]Pa.
    Comment 21: The NRDC recommended the Transition Zone Chlorophyll 
Front north of the Hawaiian Islands as an example likely to represent 
important habitat for cetacean species based upon persistent 
oceanographic features and relative densities of non-marine mammal 
species. They also stated that the size of some of these areas is not 
in itself a reasonable bar against designating them as an OBIA.
    Response: See response to Comment 20.
    With regard to the Transition Zone Chlorophyll Front north of the 
Hawaiian Islands, several studies have reported that northern fur 
seals, Dall's porpoises, northern right whale dolphins, and Pacific 
white-sided dolphins occur as bycatch in squid driftnets in the region 
(Baba et al., 1993; Buckland et al., 1993; Yatsu et al., 1993). 
Applying our OBIA criteria, we found no supporting information that 
these species are present in high densities or that they use this area 
in concentrated numbers for foraging, breeding/calving, or migration. 
Nor are these species a small distinct population within the area. 
Furthermore, these species are not categorized as low frequency hearing 
specialists. At this time, the data are not sufficient to consider the 
Transition Zone Chlorophyll Front as an OBIA.
    With regards to the second point related to the size of a potential 
OBIA, see our Response to Comment 17. We note that several of the OBIAs 
including the Costa Rica Dome (year-round restriction), Georges Bank 
(year-round), and the Antarctic Convergence Zone (October through 
March), and the Bonney Upwelling (December through May), have 
persistent oceanographic features and are quite large in size.
    Comment 22: The NRDC stated: ``the DSEIS explicitly rejects 
Challenger Bank, an area that has repeatedly been shown to seasonally 
host humpback whales on their northward migration, on the grounds that 
``the available sighting data and information are insufficient to 
clearly demonstrate that the Challenger Bank individually is the most 
significant biologically important area in Bermudian waters for 
humpback whales DSEIS at D-81.''
    Response: DSEIS subchapter 4.5.2.3 on the Challenger Bank (Bermuda) 
OBIA did not adequately describe the justifications for excluding this 
area as an OBIA. The Navy has revised this section of the 2012 FSEIS/
SOEIS based upon re-analysis of this area.
    Briefly, Challenger Bank did not qualify under the foraging 
criterion for humpback whales. Also, the waters off the Bank did not 
qualify as a defined migration route even though there are anecdotal 
observations of whales transiting near the Bank. As noted in our 
original analysis of the area, Stone et al. (1987) hypothesized that 
humpback whales may feed in Bermudian waters and suggested the 
possibility that humpback whales feed at Bermuda while transiting 
northward. Other peer-reviewed articles (Clapham and Mattila, 1990; 
Baraff et al., 1991) repeated Stone et al.'s (1987) hypothesis but did 
not provide additional specific and sufficient scientific justification 
to support our selection of this area as an OBIA at this time.
    Comment 23: The NRDC stated: ``The proposed Dogger Bank OBIA was 
shown in a survey of the German exclusive economic zone to contain 
``fairly high'' densities of harbor porpoises, is associated with 
several oceanographic features relevant to marine mammal distribution 
(e.g., a submerged sandbar), and has been proposed by the German 
government as an MPA, yet is unaccountably accorded a ``one'' on NMFS' 
scale. DSEIS at D-286. NMFS

[[Page 50305]]

should review its low ranking of areas such as Dogger Bank.''
    Response: We have re-analyzed our ranking for the Dogger Bank area 
for harbor porpoises. To clarify, this is an area that we independently 
evaluated and considered as a potential OBIA for harbor porpoises. 
Further consideration of marine mammal hearing frequency sensitivity 
led us to screen out Dogger Bank as an OBIA for SURTASS LFA sonar 
because harbor porpoises are mid-frequency hearing specialists.
    Germany's Federal Agency for Nature Conservation conducted aerial 
surveys within the German exclusive economic zone and 12 nautical mile 
zone to assess proposed Sites of Community Importance under the 
European Union Habitats Directive. They reported that the north-east 
survey area of the Dogger Bank Special Area of Concern (SAC), off the 
North Friesian islands of Sylt and Amrum, showed the highest mean 
summer densities (2.75 individuals per square kilometer (indiv./km\2\) 
in 2002 and 3.7 indiv./km\2\) of harbor porpoises (Gilles, Herr, 
Lehnert, Scheidat, & Siebert, 2008). These areas fall under this 
regulation's coastal standoff restriction that requires the Navy to 
restrict operation of SURTASS LFA sonar such that the sound field does 
not exceed 180 dB re: 1 [mu]Pa within 22 km (14 mi; 12 nm) of any 
coastline and as a result we did not consider these areas for OBIA 
status.
    In 2010, the Joint Nature Conservation Committee (JNCC) re-
evaluated the Dogger Bank SAC according to the European Habitats 
Directive selection criteria and guiding principles in response to 
scientific questions on the site's justification for harbor porpoises. 
They concluded that the data indicated that there is no difference in 
occurrence of harbor porpoise within the Dogger Bank SAC (identified 
for its sandbank habitat) compared to outside the SAC (JNCC, 2010). 
They also concluded that there is not ``good population density (in 
relation to neighboring areas) and that the Dogger Bank SAC cannot be 
considered a ``clearly identifiable area essential to the life and 
reproduction'' of harbor porpoise, and that therefore the species 
should not be a qualifying feature for the site (JNCC, 2010).
    Based on the best available information, we arrived at similar 
conclusions that the area is not eligible as an OBIA for harbor 
porpoises under the high density criterion at this time. Moreover, 
there is not enough information at this time to support designation of 
this area as an OBIA for low-frequency hearing specialists. We will 
continue to monitor and re-evaluate this area under the adaptive 
management framework as researchers complete additional surveys on 
Dogger Bank within the next few years. We and the Navy will make a 
decision before issuing the second annual LOAs regarding whether this 
area meets the OBIA criteria and, if so, can be practicably implemented
    Comment 24: The NRDC stated: ``Given the extent of the area 
available for LFA operations, the lack of comparative density data in 
most parts of the world, and NMFS' express reliance on experts, it is 
reasonable for the agencies to consider the practicability of 
recommended OBIAs that score a ``one'' or above on NMFS' scale.''
    Response: See Comment 12. The description of the area should 
contain enough information for us to verify that it met our defining 
criteria, because in our view it is not appropriate to designate OBIAs 
without sufficient scientific justification. Also, we discuss the 
classification methodology for all OBIA rankings in the 2012 FSEIS/
SOEIS subchapter 4.5.2 and pages D-104 and D-225.
    Comment 25: The NRDC stated: ``Yet NMFS has effectively shifted the 
burden of identifying OBIA to its volunteer experts, appearing to have 
screened out areas where its experts did not supply ``sufficient'' 
information even though additional information might be available. For 
the Gulf of Mexico, where NMFS' expert recommended the inclusion of 
slope waters between the 200 m and 1000 m depth contours, the agency 
merely listed the ``background'' information that the expert provided, 
and without explanation gave the area two disqualifying ``ones'' for 
``high density'' and ``foraging'' and ``zeroes'' in every other habitat 
category. SDEIS at D-290. Even supposing arguendo that these rankings 
were reasonable, the agency apparently did not compile other 
information that might support the recommendation, even though such 
information was readily available, nor did it consider on its own any 
alternative areas in the Gulf, including parts of the recommended OBIA, 
that might have additional support. Cf., e.g., Appendix B to this 
letter. Instead, NMFS appears to have relied entirely on its expert to 
define the OBIA boundary and justify it. That form of burden-shifting 
is not acceptable.''
    Response: See Comments 12 and 15. We, along with the Navy, again 
reviewed the latest and best available scientific information and could 
not locate adequate information to support designation of an OBIA for 
SURTASS LFA sonar between the 200- and 1,000-m depth contours in the 
Gulf of Mexico (see Appendix F of the 2012 FSEIS/SOEIS). At this time, 
we believe that assigning a rank of one (Not Eligible: Insufficient 
Information) for the 200- and 1,000-m (656 and 3,281 feet) depth 
contours in the Gulf of Mexico is reasonable and based on the best 
available science.
    Several papers noted that most marine mammal species had a wide 
spatial distribution along the slope as well as a wide temporal 
distribution (Mullin et al., 1991; Davis et al., 1998; Baumgartner et 
al., 2001). Also, the inter-annual variability of the Mississippi River 
discharge itself may also have significant impact on sperm whale 
distributions along the 1,000-m isobath between Mississippi Canyon and 
De Soto Canyon (Jochens et al., 2008).
    The basic unit of sperm whale social organization is the breeding 
or mixed herd consisting of mature females, juveniles of both sexes, 
and calves. Studies have reported aggregations of female and mixed 
juvenile/calf groups commonly sighted around the Mississippi Canyon in 
summer 2004 (Thomsen et al., 2011). Conversely, in summer 2005, Jochens 
et al. (2008) observed only lone/bachelor males around the Mississippi 
Canyon and did not observe any mixed herds (Thomsen, et al., 2011). 
Regarding the inter-annual differences in sighting between the two 
surveys, Jochens et al. (2008) noted that they observed no members of 
the mixed groups ``core population'', which could be caused by changing 
oceanographic conditions between the two surveys as the Mississippi 
River's 2005 discharge level was 59 percent of the average summer 
monthly outflow.
    Until such time that more robust information becomes available that 
supports the biological criteria (i.e., marine mammals present in high 
densities or an area on the slope with known/defined breeding/calving 
grounds, foraging grounds, migration routes, or an area with small, 
distinct populations of marine mammals with limited distributions) on 
the continental slope of the northern Gulf of Mexico, we do not 
designate this area as an OBIA for SURTASS LFA sonar operations. 
However, within our adaptive management framework, we will consider new 
information during the five-year period of this regulation to consider 
future modifications to the OBIA list. This provides a mechanism for 
NMFS and the Navy to modify (or add or delete) mitigation or monitoring 
measures, as appropriate, based on new information. We would add, 
modify or delete mitigation or monitoring measures in consultation with 
the Navy

[[Page 50306]]

if doing so creates a reasonable likelihood of accomplishing the goals 
of mitigation and monitoring laid out in this final rule.
    If SURTASS LFA sonar operations were to occur on the continental 
slope of the northern Gulf of Mexico, marine mammals present in the 
operational area are protected by the Navy's mitigation protocols, 
including: (1) Restricting operations of SURTASS LFA sonar such that 
the sound field does not exceed 180 dB re: 1 [mu]Pa within 22 km (14 
mi; 12 nm) of any coastline; (2) Conducting visual, passive acoustic, 
and active acoustic monitoring; (3) Performing delays/shutdown 
protocols of active LFA sonar transmissions when monitoring detects a 
marine mammal, which effectively ensures marine mammals will not be 
exposed to sound pressure levels greater than approximately 175 dB; and 
(4) Performing mission planning for annual Letters of Authorization 
applications.
    Comment 26: The NRDC stated: ``The agency incorrectly assumes that 
certain established or proposed MPAs and recommended OBIAs are located 
entirely within 12 nm of shore. For example, the Papahanaumokuakea 
Marine National Monument was apparently excluded early in the OBIA 
process on the assumption that it does not extend seaward of that 
distance, which is incorrect.''
    Response: We concur that the Papahanaumokuakea (Northwestern 
Hawaiian Islands) Marine National Monument boundaries extend seaward of 
the 22-km (12-nm) coastal standoff zone. However, areas noted for 
breeding or wintering of low-frequency hearing specialists are within 
the coastal standoff zone and are not located outside of any portion of 
the Monument seaward of the coastal standoff zone. Thus, there is not 
enough information to support designation around any islands outside 
the 22 km (14 mi; 12 nm) coastal standoff zone at this time.
    Johnston et al. (2007) modeled the extent and spatial location of 
humpback whale wintering habitat across the Hawaiian Archipelago, using 
bathymetry and averaged sea surface temperature data. Using the data, 
they produced polygons identifying areas shallower than 200 m and 
warmer than 21.1[deg]C as potential wintering habitat. To ground-truth 
their data, they also conducted a pilot survey across the Northwest 
Hawaiian Islands and reported nine sightings of humpback whales (n = 
19) during the 15-day cruise, including three groups with small calves 
or exhibiting breeding behaviors. All of the sightings occurred in 
warm, shallow water at or within their predicted habitat regions. They 
detected humpback whales on the shallow banks surrounding Nihoa Island, 
Necker Island, Gardner Pinnacles, Maro Reef, and Lisianski Island 
(Johnston et al., 2007). Based on the best available information, this 
area that extends seaward of the 22-km (14-mi; 12-nm) coastal standoff 
zone does not qualify as an OBIA for SURTASS LFA sonar.
    Comment 27: The NRDC stated that we did not consider the following 
areas in our OBIA analysis: (1) Areas of Increased Awareness designated 
by the Navy in the Atlantic Fleet Active Sonar Training EIS; (2) areas 
identified in Hoyt (2011); (3) areas referenced in the previous LFA 
sonar rulemakings; (4) important habitats in the Northwest Pacific 
Ocean and in the Gulf of Mexico; (5) areas off the main Hawaiian 
Islands; (6) areas in southeast Alaska that the SPLASH project 
identified as seasonal habitat or migration corridors for humpback 
whales; and (7) the North Atlantic right whale migration corridor.
    Response: Following is a summary of our consideration of the areas 
identified by the commenter. See responses to comments in Chapter 7 of 
the Navy's 2012 FSEIS/SOEIS for detailed information on our analyses.
     Areas of Increased Awareness: The commenter's assertion is 
inaccurate. First, several of the Areas of Increased Awareness are 
protected by the coastal standoff restriction where we require the Navy 
to limit the SURTASS LFA sonar sound field so that it does not exceed 
180 dB re: 1 [mu]Pa within 22 km (14 mi; 12 nm) of any coastline. 
Second, several of these areas are within OBIAs 1, 3, and 4, which 
include the North Atlantic right whale critical habitat areas as well 
as areas in the Gulf of Maine, the Great South Channel, Georges Bank, 
and the southeastern U.S. right whale seasonal habitat.
     Hoyt (2011): We compared the 1st and 2nd editions of Hoyt 
(2005 and 2011) to ensure that we have not overlooked any additional 
areas for consideration. The results are in Appendix F of the Navy's 
2012 FSEIS/SOEIS. Based on that review and after discussion with the 
Navy, we have designated an additional OBIA: the Abrolhos Bank off the 
Brazilian Coast in the Southwest Atlantic Ocean.
     Habitat in the Northwest Pacific Ocean: Even though there 
is evidence of baleen whale activity in waters around the Emperor 
Seamount Chain, Oyashio/Kuroshio Currents, Ogasawara and Mariana 
Archipelagos, and Shatsky Rise, they do not meet the selection criteria 
for an OBIA as we did not find scientific evidence that these whales 
occur in these waters in densities higher than any other similar 
location or use these areas in concentrated numbers for breeding/
calving, foraging, or migration. See responses to comments in Chapter 7 
of the Navy's 2012 FSEIS/SOEIS for detailed information on our 
analyses.
     Gulf of Mexico: See Comment 25.
     Hawaiian Islands: See Comment 26.
     Southeast Alaska: The commenters have mischaracterized 
what the SPLASH report states regarding migration corridors for 
humpback whales in the North Pacific Ocean. The SPLASH report neither 
delineates nor depicts migration corridors, but instead describes and 
depicts movements of individually tagged whales between the winter and 
summer grounds (Calambokidis et al., 2008). The SPLASH report details 
the complexity of humpback whale movements in the North Pacific, which 
encompass much of the North Pacific Ocean between the Hawaiian and 
Japanese Islands and the Gulf of Alaska and waters of northeastern 
Russia. We did not exclude this area from the selection process. For 
example, we considered Fairweather Grounds, although not specifically 
mentioned in the SPLASH report (Calambokidis et al., 2008), but 
ultimately did not select the area as a potential OBIA for foraging in 
southeastern Alaska waters based on a lack of supporting information. 
Additionally, we also reviewed the Glacier Bay National Park and 
Preserve, southeastern Alaska.
     North Atlantic Right Whale: The commenter notes the 
existence of ``the North Atlantic right whale migration corridor'' in 
waters less than 200 meters in depth off the U.S. Atlantic coast. The 
available sighting data, collected over several decades, are 
insufficient to represent a specific migration corridor for the North 
Atlantic right whale off the U.S. Atlantic coast or elsewhere in the 
North Atlantic Ocean (Kenney, 2012 personal communication). The winter 
locations and movements of much of the North Atlantic right whale 
population are currently unknown (Waring, et al., 2010).
     Areas Referenced in Previous LFA sonar Rules: We have re-
evaluated all areas referenced in the previous LFA sonar rulemakings. 
For additional information see the 2012 FSEIS/SOEIS, Appendices D and F 
and the Navy's response to public comments.

Monitoring

    Comment 28: The Commission recommends that we issue the final rule, 
provided that we require the Navy to monitor for 60 minutes before 
resuming SURTASS LFA sonar transmissions

[[Page 50307]]

after a delay or suspension related to the sighting of a marine mammal 
in the LFA sonar mitigation or buffer zones unless the Navy observes 
the animal leaving those zones.
    Response: In this rulemaking, as in our past regulations for 
SURTASS LFA sonar, we require the Navy to immediately delay or suspend 
SURTASS LFA sonar transmissions if they detect a marine mammal within 
or about to enter the SURTASS LFA sonar mitigation and buffer zones. 
During the delay/suspension, the Navy would still operate the HF/M3 
active sonar system to monitor for the presence of marine mammals as 
well as conducting visual and passive acoustic monitoring. The Navy may 
resume operations no sooner than 15 minutes after:
    (1) All marine mammals have left the SURTASS LFA sonar mitigation 
and buffer zones; and
    (2) Visual, passive acoustic, and active acoustic monitoring have 
determined that there are no further detections of marine mammals 
within the SURTASS LFA sonar mitigation and buffer zones.
    We believe that requiring the extension of the post-contact 
monitoring for an additional 45 minutes is not warranted due to the 
proven effectiveness of the HF/M3 active sonar system. The HF/M3 active 
sonar system provides 24-hour, all-weather, active acoustic monitoring 
of the 180-dB SURTASS LFA sonar mitigation zone and the 1-km (0.62 mi; 
0.54 nm) buffer zone around the LFA sonar mitigation zone. In all, the 
Navy can effectively monitor for marine mammals for approximately 2-km 
(1.2 mi; 1.1 nm) around the vessel. The HF/M3 active sonar system's 
effective detection probability for marine mammals within the SURTASS 
LFA sonar mitigation zone approaches 100 percent, based on multiple 
pings. Combined with the passive acoustic (estimated 25 percent 
detection probability) and visual monitoring (estimated nine percent 
detection probability) requirements, all three systems together have an 
effective detection probability of at least 99 percent at 1 km (0.62 
mi; 0.54 nm) from the vessel. Based upon our review of nine years of 
data from monitoring reports on previous SURTASS LFA sonar activities 
(i.e., the best available information), we consider the likelihood of 
the Navy not detecting a marine mammal within the SURTASS LFA sonar 
mitigation zone to be extremely small (less than one percent).
    The Navy has evaluated the effectiveness of the monitoring measures 
in the 2007 Final Comprehensive Report (DoN, 2007) and the 2011 Final 
Comprehensive Report (DoN, 2011) submitted under 50 CFR 216.186(c). 
These reports are available to the public (see ADDRESSES).
    Comment 29: The Commission recommends that we issue the final rule, 
provided that we require the Navy to monitor (i.e., visually, passive 
and active acoustically) for a minimum of 30 minutes after SURTASS LFA 
sonar transmissions cease, using visual observation (if during daylight 
hours as defined in the proposed regulations), passive acoustics, and 
the active sonar system.
    Response: In this rulemaking, as in our past regulations for 
SURTASS LFA sonar, we require the Navy to continue the three-part 
monitoring program for at least 15 minutes after completing a SURTASS 
LFA sonar transmission exercise. We decline to extend the post-
operational monitoring by an additional 15 minutes.
    Per the MMPA, our prescription of the Navy's mitigation measures 
reflects a careful balancing of the likely benefit of any particular 
measure for marine mammals with the likely effect of that measure on 
personnel safety, practicality of implementation, and impact on the 
effectiveness of the military readiness activity. Over the last nine 
years, there have been few marine mammal detections, either by visual 
observation, passive acoustic or active acoustic monitoring, during the 
15-minute post-transmission period. Imposing additional data collection 
requirements, such as extending post-transmission monitoring to 30 
minutes, would not meaningfully increase our knowledge of the species 
or SURTASS LFA sonar impacts to warrant the additional time and cost 
expenditures. Moreover, the Navy must balance the small benefits gained 
by obtaining this incremental amount of additional data against the 
impact on fleet operations that the additional delay would necessarily 
entail. Waiting an additional 15 minutes before recovering the towed 
SURTASS horizontal line array and the SURTASS LFA sonar vertical line 
array would delay the ship's ability to depart the area at the normal 
transiting speed of 10 knots (kts) (11.5 miles per hour (mph); 18.5 km 
per hour (kph)) (rather than the slower operating speed with deployed 
arrays of three kts (3.5 mph; 5.5 kph).
    This regulation also requires the Navy to conduct visual monitoring 
from the ship's bridge during daylight hours (30 minutes before sunrise 
and until 30 minutes before sunset) for marine mammals during active 
SURTASS LFA sonar operations. Although not required by the regulation, 
the ship's lookouts are monitoring the area at all times, including 
during array retrieval and non-transmission periods. The Navy will 
report marine mammal detections noted by the lookouts during non-
transmission periods in the quarterly, annual, and five-year 
comprehensive reports.

Research

    Comment 30: One commenter noted that the research conducted by both 
environmental advocacy groups and government entities such as the Navy 
were useful; encouraged all parties to maintain reasonable efforts and 
resources reserved for continued research; and asked that we should 
remain vigilant and responsive to the results.
    Response: We agree and require the Navy to conduct monitoring and 
research that will result in increased knowledge of the species, the 
level of taking, or impacts on populations of marine mammals that we 
expect to be present during SURTASS LFA sonar operations. Also, this 
final regulation governing the take of marine mammals incidental to 
Navy's SURTASS LFA sonar operations contains an adaptive management 
component. This provides a mechanism for NMFS and the Navy to modify 
(or add or delete) mitigation or monitoring measures, as appropriate, 
based on new information. We would add, modify or delete mitigation or 
monitoring measures in consultation with the Navy if doing so creates a 
reasonable likelihood of accomplishing the goals of mitigation and 
monitoring laid out in this final rule. We and the Navy will meet 
annually (if deemed necessary by either agency) to discuss the 
monitoring reports, Navy research and development outcomes, current 
science, and determine whether mitigation or monitoring modifications 
are appropriate.

NEPA Concerns

    Comment 31: The NRDC stated that the proposed rule fails to 
consider single dual criteria alternative for coastal protection, 
despite the Court's recognition of the importance of the continental 
shelf.
    Response: In light of the comprehensive efforts to identify and 
analyze areas of biological importance outside of the 22 km (14 mi; 12 
nm) coastal standoff zone and the need for broad operational 
flexibility, the Navy considered the dual criteria for coastal 
exclusion zones within the overall OBIA analysis process (see 
Subchapter 4.5.6 of the Navy's 2012 FSEIS/SOEIS). Subchapter 4.8.1 
(Alternatives Previously Considered) in the Navy's

[[Page 50308]]

2012 FSEIS/SOEIS and subchapter 2.6.4 in the Navy's 2007 FEIS provide a 
summary of the results of the detailed analysis of the differences in 
potential impacts if the coastal standoff were increased from 22 km (14 
mi; 12 nm) to 46 km (29 mi; 25 nm).
    Of the 21 OBIAs in the proposed rule, 17 included continental 
shelf/slope areas and similar coastal areas. We reviewed the 
continental shelf area in the northwest Atlantic Ocean (with input from 
the Navy and subject matter experts) and determined that designating 
the entire eastern seaboard out to the 200-m (656-ft) isobath did not 
meet the criteria for a single OBIA. However, several scientifically-
supported areas over the continental shelf met the criteria for an 
OBIA. They are:
     Georges Bank (OBIA 1);
     Roseway Basin Right Whale Conservation Area (OBIA 
2);
     Great South Channel (OBIA 3) including North 
Atlantic right whale critical habitat, Stellwagen Bank National Marine 
Sanctuary, and areas within the Gulf of Maine; and
     Southeastern U.S. Right Whale Seasonal Habitat (North 
Atlantic right whale critical habitat) (OBIA 4).
    In addition to our review of the continental shelf area in the 
northwest Atlantic Ocean, the final rule designates OBIAs in the 
northwest U.S. continental, Patagonian, Bahamian, Madagascar, east 
Brazilian, the northeast Australian, the southeast Australian, and 
Sakhalin Island shelves or slopes.
    Comment 32: In October 2011, the NRDC requested a meet and confer 
with the parties to the 2008 SURTASS LFA sonar litigation. Their 
comment on our proposed rule states that we did not make any 
modifications to the proposed rule based on their concerns with the 
proposed mitigation measures (as noted in the Navy's 2011 Draft 
Supplemental Environmental Impact Statement/Supplemental Overseas 
Environmental Impact Statement) nor was there an effort to meet and 
confer. They further state that they seek mitigation that 
conservatively identifies and protects important habitat, reflects the 
global scope of the Navy's action, and addresses the Court's concerns.
    Response: See our Responses to Comments 12, 14, 17 and 20. The 
``meet-and-confer'' provision contained in the 2008 Stipulated 
Settlement Agreement Order (Civ. Action No. 07-4771-EDL) relates to 
altering the agreed-upon operating areas contained in that specific 
agreement for the five-year period of the 2007 Rule.
    Comment 33: The NRDC states: ``The fundamental purpose of an EIS is 
to compel decision-makers to take a ``hard look'' at a particular 
action--both at the environmental impacts it will have and at the 
alternatives and mitigation measures available to reduce those 
impacts--before a decision to proceed is made 40 CFR 1500.1(b), 1502.1; 
Baltimore Gas & Electric v. NRDC, 462 U.S. 87, 97 (1983). To that end, 
NEPA requires agencies to make every attempt to obtain and disclose 
data necessary to analyze environmental effects and make a reasoned 
choice among alternatives. See 40 CFR 1502.22(a). The simple assertion 
that ``no information exists'' does not suffice; unless the costs of 
securing the information are exorbitant or the means to obtain it are 
not known, NEPA requires that it be obtained. Id.; see, e.g., Cabinet 
Resource Group v. U.S. Fish and Wildlife Service, 465 F.Supp.2d 1067, 
1100 (D. Mont. 2006). Additionally, the alternatives analysis to 
support NMFS' rulemaking requires a full consideration of available 
mitigation measures.
    Response: See the Navy's response to Comment NRDC-04 in the Navy's 
2012 FSEIS/SOEIS and our Response to Comment 20.
    With regard to taking a hard look at data poor areas, the adaptive 
management component of our regulation provides a mechanism for us and 
the Navy to modify (or add or delete) mitigation or monitoring 
measures, as appropriate, based on new information. We would add, 
modify or delete mitigation or monitoring measures in consultation with 
the Navy if doing so creates a reasonable likelihood of accomplishing 
the goals of mitigation and monitoring laid out in this final rule. We 
and the Navy will meet annually (if deemed necessary by either agency) 
to discuss the monitoring reports, Navy research and development 
outcomes, current science, and determine whether mitigation or 
monitoring modifications are appropriate (see the 2012 FSEIS/SOEIS 
Subchapter 1.4.5).
    Comment 34: The NRDC stated that the proposed rule and DSEIS 
screened out more than 20 recommended OBIAs that otherwise received 
habitat rankings of ``two'' or greater, on the grounds that they are 
not of high importance for non-baleen whales including areas in the 
Northeast Atlantic, the Mediterranean Sea, and the Gully. They believe 
this approach to be non-precautionary and inappropriate for the marine 
mammal species on which the SURTASS LFA sonar system has not been 
tested. They cite that certain species other than baleen whales, such 
as sperm whales and pinnipeds, have greater acoustic sensitivity in the 
low frequencies than do odontocetes as a group; and a number of other 
species, such as beaked whales and harbor porpoises, have demonstrated 
sensitivity to a variety of sounds at relatively low acoustic 
thresholds. NRDC further stated: ``Originally, NMFS intended to treat 
frequency specialization as one factor among several in determining the 
relative importance of a would-be OBIA. Including such areas in 
practicability discussions with the Navy, and addressing them on a 
case-by-case basis, is required under the MMPA, and is a reasonable 
alternative that should be considered, and adopted, in the SEIS.''
    Response: In the Federal Register publication of the proposed rule 
for our initial determination, we explained that it was appropriate to 
consider marine mammal OBIAs only for those species whose best hearing 
sensitivity is in the low frequency range and screen out areas that 
qualified solely on the basis of their importance for mid- or high-
frequency hearing specialist species such as sperm whales, beaked 
whales, and harbor porpoises (77 FR 842; January 6, 2012; page 877). We 
have carefully considered the commenter's recommendations, and 
following is a more detailed explanation of how we plan to proceed with 
a modification to our plan for these species.
    We and the Navy both acknowledge the evidence showing that beaked 
whales and harbor porpoises have responded to a variety of sources (but 
not SURTASS LFA sonar) at lower received levels than other species 
respond to those same sources. Even if one assumed that beaked whales 
or harbor porpoises similarly also respond to SURTASS LFA sonar at 
lower received levels than other taxa, in light of their very decreased 
sensitivity to this frequency, the distances at which beaked whales and 
harbor porpoises can hear LFA sonar sounds (and therefore be expected 
to respond) are still significantly less than those for low-frequency 
hearing specialist species.
    Additionally, (which is the difference between the animal's hearing 
threshold for a particular frequency and the received sound level) for 
beaked whales and harbor porpoises at the LFA sonar frequency is 
significantly lower than the sensation level for low-frequency hearing 
specialists. In addition, the sensation level for beaked whales and 
harbor porpoises at the LFA sonar frequency is also smaller than their 
sensation level when exposed to higher frequencies. These facts may 
lessen the likelihood of a response. So-whereas the extensive distances 
at which low

[[Page 50309]]

frequency specialist species might hear and potentially respond to the 
SURTASS LFA sonar source support the designation of large areas as 
OBIAs to, where practicable, limit operation and reduce impacts to 
mysticetes in areas of high densities or important behaviors, the far 
shorter distances from the LFA sonar source at which beaked whales or 
harbor porpoises might potentially respond would not support 
operational limitations across large areas in the form of OBIAs. The 
SURTASS LFA sonar mitigation and buffer zones and the coastal standoff 
zones will offer significant protection for beaked whales and harbor 
porpoises from a sound source that they are less physically equipped to 
hear than are mysticetes.
    Further, regarding the original assumption that beaked whales or 
harbor porpoises might respond to SURTASS LFA sonar in the same manner 
and at the same lower received levels (than other taxa) that they 
respond to other sound sources, some scientists suggest that the 
ecological context of LFA sonar sweeps (which are similar to mysticete 
vocalizations) for beaked whales and harbor porpoises is such that one 
should not expect them to negatively respond. However, we, and the 
scientists we consulted, are unaware of targeted data to support this 
hypothesis (though there were opportunistic observations of these 
species during the Low Frequency Sound Scientific Research Program (LFA 
SRP)), which is why we recommended that the Navy augment their 
monitoring plan to address whether and how these species respond to LFA 
sonar, which they did (see the Beaked Whale and Harbor Porpoise 
Monitoring Section).
    Regarding the inclusion of OBIAs for pinnipeds and sperm whales 
because they are more sensitive to lower frequency sounds than other 
odontocetes: we have included OBIAs for pinnipeds where warranted (OBIA 
8--Patagonian Shelf Break), and we have not identified any areas that 
meet the OBIA criteria based solely on sperm whales. We, in 
consultation with the Navy, will consider designating OBIAs for sperm 
whales if, through the adaptive management process, areas that meet the 
OBIA criteria are identified. Based on vocalizations, anatomy, and 
other information, sperm whales are likely to be more sensitive in the 
LFA sonar frequency range than other odontocetes and therefore the 
distance at which they would hear and potentially respond to the source 
is likely more similar to mysticetes. Accordingly, we will consider the 
designation of OBIAs for that species should supporting information 
become available.
    Comment 35: The NRDC stated: ``Both LFA I and LFA II [litigation] 
recognize that the burden to identify OBIAs rests squarely with the 
agencies. As the Court has noted, ``it is improper for NMFS, the 
government agency tasked by the MMPA with requiring measures to ensure 
the least practicable impact on marine mammals when authorizing takes, 
to shift the burden to members of the public to prove that additional 
exclusion areas are warranted.'' NRDC v. Gutierrez, 2008 WL 360852 at 
*8. It is equally improper for the agencies to shift that same burden 
to other agencies or experts. Id. (observing that NMFS had `improperly 
shifted the burden to its own parent agency to provide detailed 
information regarding the marine life there').''
    Response: See Comments 12 and 13. We did not shift the burden of 
identifying OBIAs to other agencies or to the subject matter experts.
    Comment 36: The NRDC stated: ``The agencies have improperly 
rejected numerous [OBIA] areas on the grounds that they occur entirely 
within the Navy's 22-km (12 nm) coastal exclusion zone. First, NMFS 
failed to consider the relevance of identifying important near-coastal 
habitat to establishing meaningful buffer zones for these areas. 
Instead, it summarily ruled out the vast majority of established and 
proposed MPAs as ineligible for additional protection because they fall 
within the coastal zone (see DSEIS at D-39 to D-101), and instructed 
its experts to nominate only areas extending at least partly beyond the 
12 nm limit (DSEIS at D-4). (This problem is soluble by generally 
enlarging the coastal stand-off zone.).'' Citing Navy's the behavioral 
risk function, the NRDC suggested that the agencies should consider and 
adopt wider buffer zones around their OBIAs.
    Response: The Navy has stated in their request for regulations and 
Letters of Authorization that they will not operate SURTASS LFA sonar 
vessels within 22 km (14 mi; 12 nm) of any coastline, including 
islands. Therefore, focusing our efforts to nominate areas outside of 
this zone is logical and appropriate.
    Regarding the commenter's suggestion that the Navy adopt a wider 
buffer zone around OBIAs, we refer the commenter to Response to Comment 
NRDC-17 of the Navy's 2012 FSEIS/SOEIS.
    Comment 37: The NRDC stated: ``Under the various settlement 
agreements and orders that have helped govern use of the LFA system 
since 2002, the Navy has practicably avoided several biologically 
important areas in the western Pacific, particularly off the coast of 
Asia and in the Philippine Sea. It is not entirely clear how NMFS 
considered these areas in the present process, since the DSEIS suggests 
that its regional experts proposed somewhat different (and generally 
more expansive) boundaries than the ones adopted in the course of 
negotiation in LFA I and LFA II; in any case, however, all but one of 
these candidate OBIAs were rejected, most receiving scores of ``zero'' 
(or at best ``one'') on the agency`s scale. NMFS' evaluation of these 
areas is highly problematic. Even though they occur in a region where 
little comparative density information is available and thus require 
the use of alternative sources to assess; even though they are 
supported by expert recommendation; even though additional sources 
suggest the occurrence there of small, localized populations and 
endemism in some species; and even though avoidance of at least part of 
these areas appears practicable, at least on a seasonal basis--none of 
these potential avoidance areas was assessed for its practicability. 
See, e.g., DSEIS at D-338 (scoring as ``zero'' a resident population of 
fin whales in the Yellow Sea and East China Sea that exhibits 
morphological differences from other fin whales). Nor, apparently, did 
NMFS attempt to obtain additional data on these areas beyond what its 
regional experts proposed.''
    Response: See Comments 12, 13, and 14 regarding the scope of our 
analyses. These areas cited in the comment do not meet the biological 
criteria for designation as an OBIA so there was no need for a 
practicability assessment by the Navy. Moreover, the Stipulated 
Settlement Agreement Order setting forth those areas explicitly stated 
it was not intended to serve as precedent for future rulemaking.
    Regarding fin whales in the north Pacific Ocean, we found no new 
data to clarify the population structure of the species. Mizroch et al. 
(2009) reviewed the distribution and movement data available for the 
region and cited literature from the late 1950s and early 1960s, noting 
the possibility of a non-migratory stock of fin whales in the East 
China Sea. We note that these are the same citations provided by the 
subject matter expert. Fujino (1960) suggested that whales caught in 
the East China Sea were part of a local population that did not migrate 
to northern waters. In addition to Fujino's immunogenetic findings, he 
analyzed unpublished data that indicated fin whales from the East China 
Sea were different from other North Pacific fin whales in terms of 
growth rate, length at sexual maturity,

[[Page 50310]]

external body proportions, shape of skull and shape and growth rate of 
baleen.
    Comment 38: The NRDC stated: ``According to the DSEIS, the Navy 
eliminated the Southern California Bight from the list of ``eligible'' 
OBIAs because it determined that ``avoiding this area is 
impracticable.'' DSEIS at 4-80. The Navy does not provide any specific 
information on LFA training in the SOCAL Range Complex, making a full 
assessment difficult; but even assuming that its determination is well-
founded, more analysis is required. As it stands, the DSEIS appears to 
consider the practicability only of a complete, year-round LFA sonar 
exclusion. It does not consider any procedural requirements (e.g., 
requiring Fleet-level approval for use), substantive standards (e.g., 
allowing use only when certain criteria are met), or targeted 
restrictions (e.g., limiting the number of activities per annum or 
avoiding biologically important periods such as the blue whale foraging 
season), or any other mitigation methods that would protect this vital 
habitat while allowing the Navy use for training purposes. The Southern 
California Bight is an area of high importance to multiple marine 
mammal species, including several species of endangered baleen whales, 
and maintains, despite some apparent shifts in habitat, what is 
certainly one of the largest concentrations of blue whales on the 
planet. Reconsideration of this area is essential. NMFS should confirm 
that no other areas have been rejected thus far for reasons of 
practicability.''
    Response: See Comment 16 regarding our discussions with the Navy on 
the practicality of more limited time/area closures for this area. The 
Navy's 2012 FSEIS/SOEIS (Subchapter 4.5.2.3) provided specific and 
sufficient information to support the Navy's determination that 
avoiding this area is operationally impracticable. Because of the year-
round training that occurs on this range, the Southern California Range 
Complex was the only OBIA candidate that the Navy considered to be 
operationally impracticable to avoid.
    The Navy is not currently planning to use SURTASS LFA sonar in the 
Southern California Bight. If the Navy were to plan use of SURTASS LFA 
pursuant to the FSEIS/SOEIS, the Navy would include the details of that 
plan in the Letter of Authorization application for the applicable 
year. At that time, we and the Navy will discuss what, if any, other 
measures are practicable in light of the projected use of SURTASS LFA 
sonar and best information available for the species potentially 
affected by that use.
    Regarding consideration of other areas by the Navy, we confirm that 
the Navy has not eliminated other areas from consideration based upon 
practicability.
    Comment 39: The NRDC stated: ``Finally, the Navy may be able to 
affirmatively define its operating area, in some regions, in a way that 
avoids high-value habitat and most if not all OBIAs. As the Court has 
observed, confining LFA operations to areas and seasons of lesser 
concern would be an effective means of mitigation. See NRDC v. 
Gutierrez, 2008 WL 360852 at *6. While the Navy has indicated that it 
cannot, as a general rule, practicably site its activities in low-value 
habitat for marine mammals, that option may be available in some 
regions. The Navy's current operating area off Hawaii, for example, 
which was established through the 2008 settlement agreement in LFA II, 
effectively avoids most if not all of the areas of greatest importance 
to small, localized populations of marine mammals around the main 
Hawaiian Islands, as well as the Papahanaumokuakea Marine National 
Monument. The agencies should consider using this reasonable 
alternative in specific places, like Hawaii, where it may be viable.''
    Response: The Navy's annual Letters of Authorization application 
process (2011 DSEIS/SOEIS Sub-chapter 2.4.2) includes the goal `` * * * 
to identify marine areas for SURTASS LFA sonar routine testing, 
training and military operations that would have the least practicable 
adverse impacts on marine mammals, while meeting National Security 
objectives.'' This entails, as part of the SURTASS LFA sonar 
sensitivity/risk assessment approach, the evaluation of operating areas 
with minimal marine mammal/animal activities, as portrayed in Figure 2-
3 and discussed in Subchapter 4.4 of the 2012 FSEIS/SOEIS. As to the 
commenter's proposal for the Navy to adopt the 2008 settlement 
agreement's coastal standoff distance in specific places, like Hawaii, 
we refer the commenter to the comprehensive OBIA analysis process that 
was detailed in the 2012 FSEIS/SOEIS Appendix D and in Appendix F of 
the final document. We believe that the OBIA analysis process 
incorporated the prospect of the Navy avoiding areas of importance to 
small, distinct populations of marine mammals with limited 
distributions including around the main Hawaiian Islands and elsewhere 
to the greatest extent feasible considering national security tasking.
    Comment 40: The NRDC stated: ``Finally, the Navy's summary 
analysis, as the Court recognized, does not take into account the 
shelf's particular environmental importance and vulnerability. NRDC v. 
Gutierrez, 2008 WL 360852 at *23 (``the importance of the location of 
the continental shelf to the environmental impact''). The LFA II Court 
agreed that the Navy need not necessarily analyze the specific dual-
criteria exclusion [i.e., a 22-km versus a 46-km coastal standoff zone] 
established in the previous years' injunction for the Philippine Sea; 
however, it also found that this did not excuse the Navy `from 
evaluating a dual criteria alternative that would meet the stated 
purpose and need, such as a dual criteria alternative used in some 
areas, but not others, with an exception for non-routine military 
tracking operations. NRDC v. Gutierrez, 2008 WL 360852 at *23. The 
Court based its conclusion particularly on the importance of the 
location of the continental shelf to the environmental impact and the 
fact that the Navy has been operating under a dual criteria for five 
years. The Court's point is all the more salient to the present DSEIS, 
given that the Navy has been operating with dual criteria throughout 
the western Pacific (i.e., its entire effective operating area) for 
almost ten years now.''
    NRDC further stated: ``The Court observed in LFA II that NMFS' 
failure to properly designate OBIAs rendered more serious' its failure 
to consider dual-criteria alternatives for the continental shelf. SDEIS 
at *13. The Court did not say that an OBIA analysis could render a 
dual-criteria analysis completely unnecessary--but even if it could, 
the agencies' analysis in the DSEIS simply does not fill the need that 
the Court identified.''
    Response: All SURTASS LFA sonar operations must occur under the 
geographic restriction of a coastal standoff range of at least 22 km 
(14 mi; 12 nm).
    We, along with the Navy, considered the biological importance of 
the continental shelf outside the current coastal standoff range within 
the OBIA analysis (see Response to Comment 31).
    Comment 41: The NRDC stated: ``The Court, in 2008, observed that 
the Navy's impact analysis did not reflect the latest abundance data, 
particularly for `small localized' populations of marine mammals. NRDC 
v. Gutierrez, 2008 WL 360852 at *16-17. Unfortunately, in the present 
DSEIS, the Navy appears again to have used basin-wide or pelagic 
abundance estimates in determining the size of some more discrete 
marine mammal populations, as, for example, around Hawaii. DSEIS at 4-
61 to 4-62. The Navy should use the latest, most precautionary data, to 
properly reflect

[[Page 50311]]

new information on marine mammal population structuring.
    Response: The Navy used pelagic data because the Navy intends to 
operate in offshore, pelagic waters. However, they have included 
modeled estimates for the false killer whale insular stock around 
Hawaii in addition to information on the pelagic stock in the 2012 
FSEIS/SOEIS.
    Also, the Navy has revised the 2012 FSEIS/SOEIS to include modeled 
data on the coastal bottlenose dolphin stocks off U.S. east coast 
(southern migratory coastal stock, northern Florida coastal stock, and 
central Florida coastal stock). We refer the reader to Tables 4-14, 4-
15, 4-17, C-26, C-27, and C-29 in the Navy's 2012 FSEIS/SOEIS.
    We also note that one of our qualifying criteria for designating 
OBIAs is small, distinct populations of marine mammals with limited 
distributions.
    Comment 42: The NRDC stated that the proposed rule and DSEIS 
heavily relied on the LFA Scientific Research Program (SRP) in 
establishing risk parameters for the LFA sonar system. They also noted 
that the new DSEIS appears to put even more reliance on the SRP, 
applying it directly to non-focal species and suggested that the SRP's 
focal follow technique could not detect more complex changes in 
responses. Finally, the NRDC advocated that we take a more conservative 
approach in extrapolating from the SRP.
    Response: We agree that technologies that produce finer resolution 
data have advanced since conclusion of the LFA LFS SRP. However, very 
few active underwater systems/sensors have the benefit of such a 
directed and extensive research effort as have the LFS SRP. The results 
of the LFS SRP are still sound (See Response to Comment 9). Moreover, 
there has never been evidence of SURTASS LFA sonar causing injury, and 
all analysis and modeling results support the conclusion that no more 
than 12 percent of any marine mammal species or stock has been taken by 
Level B harassment from SURTASS LFA sonar on an annual basis. In fact 
the percentages have been much lower for the majority of marine mammal 
stocks.
    Comment 43: ``The Navy's preferred alternative would allow LFA 
training to proceed within the Navy's existing U.S. ranges (among many 
other locations), particularly the Hawaii Range Complex and SOCAL Range 
Complex. Within these ranges, the Navy has greater opportunity to apply 
additional monitoring measures. While the 2007 SEIS evaluated and 
rejected a number of supplemental measures, it did not consider the use 
of passive gliders or other passive acoustic systems to monitor the 
potential on-range operating area in advance of LFA activity, whether 
to ensure that densities of target species are sufficiently low before 
exercises begin, to relocate or adjust the timing of an LFA exercise, 
or for another planning purpose. Nor of course could the earlier SEIS 
evaluate the various new marine mammal monitoring techniques developed 
by the Office of Naval Research and other bodies over the last four 
years. The Navy should consider additional monitoring measures when 
operating LFA close to shore or in established Navy ranges.''
    Response: We authorize Navy Range Complex mitigation and monitoring 
requirements under separate regulations. When SURTASS LFA sonar 
operates on a Navy range complex, it does so under its current final 
rule and Letter of Authorization
    The commenter also refers to various new marine mammal monitoring 
techniques developed by the Office of Naval Research (ONR) and other 
bodies over the last four years. We understand that the Navy's Deputy 
for Undersea Surveillance, under the Chief of Naval Operations, 
maintains a cooperative relationship with ONR's Marine Mammals Program 
and, as such, will be aware of any new marine mammal monitoring systems 
or techniques that could potentially be used with SURTASS LFA sonar, 
depending on its safety, efficacy, cost-effectiveness, and 
practicability.

Miscellaneous Issues

    Comment 44: Several individuals, OceanCare, and the Surfrider 
Foundation, expressed general opposition to SURTASS LFA sonar 
activities and to our issuance of a Marine Mammal Protection Act 
authorization because of the danger of killing or harassing marine 
life. Another individual protested our decision to allow continued 
harassment of marine mammals by the United States Navy and stated: 
``NMFS' responsibility is to act as such a steward, not to rubber stamp 
proposals which have the potential to cause significant harm to the 
majestic marine mammals which roam the oceans of the world.''
    Response: We appreciate the commenters' concerns for the marine 
life in the areas of the proposed activities. We note that over the 
course of the previous two rules, the Navy has reported no incidents of 
injury to or mortality of any marine mammal. However, because the 
probability of detection by the active sonar system within the SURTASS 
LFA sonar mitigation zone is not 100 percent, we will include a small 
number of Level A harassment takes for marine mammals over the course 
of the five-year rule.
    The activities, described in detail in the Proposed Rule (77 FR 
842; January 6, 2012), include the use of active acoustic sources 
incidental to upcoming routine training and testing and use of the 
SURTASS LFA sonar system during military operations. It is our 
responsibility to determine whether the activities will have a 
negligible impact on the affected species or stocks; will have an 
unmitigable adverse impact on the availability of the species or 
stock(s) for subsistence uses, where relevant; and to prescribe the 
means of effecting the least practicable adverse impact on the affected 
species or stocks and their habitat, as well as monitoring and 
reporting requirements.
    Regarding authorizing harassment, the Marine Mammal Protection Act 
allows U.S. citizens (which includes the Navy) to request take of 
marine mammals incidental to specified activities, and requires us to 
authorize such taking if we can make the necessary findings required by 
law and if we set forth the appropriate prescriptions. As explained 
throughout this rulemaking, we have made the necessary findings under 
16 U.S.C. 1371(a)(5)(A) to support issuance of this final rule and 
Letters of Authorization to the Navy.
    Comment 45: One commenter stated: ``In Winter v. Natural Resources 
Defense Council, 555 U.S. 7, 12 (2008), the court strongly suggested 
that even if irreparable harm to the marine mammals could be found due 
to the Navy's activities, `any such injury is outweighed by the public 
interest and the Navy's interest in effective, realistic training of 
its soldiers.' The court, in weighing the Navy's interests against the 
perceived environmental impact, went so far as to state: `[T]he proper 
determination of where the public interest lies does not strike us as a 
close question.' Accordingly, the record fails to show environmental 
impact projections that outweigh the public interest in national 
defense here. First, the proposal itself indicates that no mortalities 
of protected marine mammals are anticipated (77 FR 842-01, 846). 
Second, projected Level A Harassment seems practically non-existent as 
well (0.0001% of north Pacific right whale stocks and 0.00% of all 
other species) (77 FR 842-01, 884).''
    Response: This comment is beyond the scope of this rulemaking.

Estimated Take of Marine Mammals

    In the Estimated Take of Marine Mammals section of the proposed 
rule, we related the potential effects to

[[Page 50312]]

marine mammals from SURTASS LFA sonar operations to the Marine Mammal 
Protection Act's definitions of Level A and Level B harassment and 
attempted to quantify the effects that might occur from the specific 
activities that the Navy intends to conduct (77 FR 842; January 6, 
2012; pages 882-884).
    In the Estimates of Potential Marine Mammal Exposure section of the 
proposed rule, we described in detail how the Navy calculated its take 
estimates through modeling (77 FR 842; January 6, 2012; pages 883-884). 
Briefly, the Navy must predict the sound field to which a given marine 
mammal species could be exposed over time to assess the potential 
effects on marine mammals by the SURTASS LFA sonar source operating at 
a given site. This is a multi-part process involving:
    (1) The ability to predict or estimate an animal's location in 
space and time;
    (2) The ability to predict or estimate the three-dimensional sound 
field at these times and locations;
    (3) The integration of these two data sets into the Acoustic 
Integration Model (AIM) to estimate the total acoustic exposure for 
each animal in the modeled population; and
    (4) Converting the resultant cumulative exposures (within the post-
AIM analysis) for a modeled population into an estimate of the risk of 
a significant disturbance of a biologically important behavior (i.e., a 
take estimate for Level B harassment of marine mammals based upon an 
estimated percentage of each stock affected by SURTASS LFA sonar 
operations) or an assessment of risk in terms of injury of marine 
mammals (i.e., a take estimate for Level A harassment of marine mammals 
based on a cumulative exposure of greater than or equal to 180-dB re: 1 
[micro]Pa single ping equivalent).
    Because it is infeasible to model enough representative sites to 
cover all potential SURTASS LFA operating areas, the Navy's application 
presented 19 modeled sites as examples to provide take estimates for 
potential operating areas based on the current political climate. These 
data are examples of areas where the Navy could request Letters of 
Authorization under the 5-year rule because they are in areas of 
potential strategic importance and/or areas of possible naval fleet 
exercises. Thus the proposed rule did not specify the number of marine 
mammals that may be taken in the proposed locations because these are 
determined annually through various inputs such as mission location, 
mission duration, and season of operation.
    For this final rule, we are adopting the Navy's estimates shown in 
the 2012 Final Supplemental Environmental Impact Statement/Supplemental 
Overseas Environmental Impact Statement (Tables 4.4 through 4.23) as 
the best scientific information currently available. The Navy 
continuously updates the analyses with new marine mammal biological 
data (e.g., behavior, distribution, abundance, and density) whenever 
new information becomes available.
    For the annual applications for Letters of Authorization, the Navy 
proposes to present both the estimated percentage of a stock and the 
corresponding estimated numbers of individual animals of a stock that 
may be potentially harassed by SURTASS LFA sonar.
    We do not expect that marine mammals would be injured by SURTASS 
LFA sonar because a marine mammal should be detected through the three-
part monitoring program (visual, passive acoustic and active acoustic 
monitoring) and the Navy would suspend or delay active transmissions. 
The probability of detection of a marine mammal by the HF/M3 active 
sonar system within the SURTASS LFA sonar mitigation zone approaches 
100 percent based on multiple pings (see the 2001 FOEIS/EIS, 
Subchapters 2.3.2.2 and 4.2.7.1 for the system's sonar testing 
results). The Navy's acoustic analyses predict that less than 0.0001 
percent of the endangered north Pacific right whale stock and 0.00 
percent of the stocks of all other marine mammal species may be exposed 
to levels of sound that could potentially result in Level A harassment 
(i.e., exposures at 180 dB re: 1 [micro]Pa or greater). Quantitatively, 
the Navy's request translates into take estimates of zero animals for 
any species including the endangered north Pacific right whale. 
However, because the probability of detection by the active sonar 
system within the SURTASS LFA sonar mitigation zone is not 100 percent, 
we will include a small number of Level A harassment takes for marine 
mammals over the course of the five-year regulations based on 
qualitative analyses.
    Reviewing the Navy's historical data on visual alerts that have 
triggered a suspension of SURTASS LFA sonar transmissions, the data 
indicate that the largest grouping of mysticetes or odontocetes that 
triggered a shutdown outside of the SURTASS LFA sonar mitigation zone 
and within the buffer zone is three and two respectively. Based on 
this, we analyzed the take of no more than six mysticetes (total), 
across all species requested in the Navy's application by Level A 
harassment; no more than 25 odontocetes (across all species) by Level A 
harassment; and no more than 25 pinnipeds (across all species) by Level 
A harassment over the course of the 5-year regulations. These are the 
only quantitative adjustments that we have made to the requested takes 
from the Navy's modeled exposure results. Again, we note that over the 
course of the previous two rulemakings, the Navy has reported no 
incidents of injury to or mortality of any marine mammal. As with the 
2002 and 2007 Rules, the Navy will limit operation of SURTASS LFA sonar 
to ensure that no more than 12 percent of any marine mammal stock would 
be taken by Level B harassment annually, over the course of the five-
year regulations. This annual per-stock cap applies regardless of the 
number of SURTASS LFA sonar vessels operating. Also, the Navy will use 
the 12 percent cap to guide its mission planning and annual LOA 
applications. We have made no other changes to this section in the 
final rule.

Analysis and Negligible Impact Determination

    Our proposed rule for SURTASS LFA sonar operations included a 
section that addressed the analysis and negligible impact determination 
of the Navy's activities on the affected species or stocks (77 FR 842; 
January 6, 2012; pages 884-887). The Navy has described its specified 
activities based on best estimates of the number of hours that the Navy 
will conduct SURTASS LFA sonar operations. The exact number of 
transmission hours may vary from year to year, but will not exceed 432 
hours (18 days) annually for each vessel.
    Taking all of the previous discussions into account, including the 
following:
     We anticipate no mortalities and very few or more likely 
no injuries to result from the action;
     We require the Navy to implement mitigation and monitoring 
measures including performing delay/shutdown protocols of active 
SURTASS LFA sonar transmissions when monitoring detects a marine 
mammal; geographic operational restrictions in coastal areas and 
offshore areas of biological importance for marine mammals;
     We anticipate a relatively small number of SURTASS LFA 
sonar systems deployed as well as a low number of annual transmission 
hours;
     We anticipate no adverse effects on annual rates of 
recruitment or survival of the affected species or stock; and
     Our consideration of the following sections discussed 
later in this document.
    We have determined that Navy training, testing, and military 
operations

[[Page 50313]]

utilizing SURTASS LFA sonar will have a negligible impact on the marine 
mammal species and stocks present in operational areas in areas of the 
Pacific, Atlantic, and Indian Oceans and the Mediterranean Sea.

Behavioral Harassment

    As discussed in the Potential Effects of Exposure to SURTASS LFA 
Sonar Operations section in the proposed rule (77 FR 842; January 6, 
2012; page 865-871), marine mammals may respond to SURTASS LFA sonar 
operations in many different ways, a subset of which qualifies as 
behavioral harassment. One thing that the take estimates do not take 
into account is the fact that marine mammals will most likely avoid 
strong sound sources to one extent or another. Although an animal that 
avoids the sound source will still be taken in some instances (such as 
if the avoidance results in a missed opportunity to feed, interruption 
of reproductive behaviors, etc.) in other cases avoidance may result in 
fewer instances of take than were estimated or in the takes resulting 
from exposure to a lower received level than was estimated, which could 
result in a less severe response.
    For SURTASS LFA sonar operations, the Navy provided information 
(Tables 24-42 of the Navy's application) estimating numbers of total 
takes that could occur within the proposed operational areas. For 
reasons stated previously in this document, the specified activities 
associated with the proposed SURTASS LFA sonar operations will most 
likely fall within the realm of Level B behavioral harassment. We base 
this assessment on a number of factors from the Navy's 1997-98 Low 
Frequency Sound Scientific Research Program.
    The Navy designed the two-year study to assess the potential 
impacts of SURTASS LFA sonar on the behavior of low-frequency hearing 
specialists, those species believed to be at (potentially) greatest 
risk. This field research addressed three important behavioral contexts 
for baleen whales: (1) Blue and fin whales feeding in the southern 
California Bight, (2) gray whales migrating past the central California 
coast, and (3) humpback whales breeding off Hawaii. Taken together, the 
results from the three phases of the LFS SRP do not support the 
hypothesis that most baleen whales exposed to received levels near 140 
dB re: 1 [mu]Pa would exhibit disturbance behavior and avoid the area. 
These experiments, which exposed baleen whales to received levels 
ranging from 120 to about 155 dB re: 1 [mu]Pa, detected only minor, 
short-term behavioral responses. However, short-term behavioral 
responses do not necessarily constitute significant changes in 
biologically important behaviors.

Temporary Threshold Shift

    Schlundt et al. (2000) documented temporary threshold shift in 
trained bottlenose dolphins and belugas after exposure to intense 1-
second signal duration tones at 400 Hertz (Hz), and 3, 10, 20, and 75 
kilohertz. We note that at the low frequency band tones of 400 Hz, the 
researchers were unable to induce temporary threshold shift in any 
animal at levels up to 193 dB re: 1 [mu]Pa at 1 m (the maximum level 
associated with the experiment's equipment). The researchers implied 
that the temporary threshold shift for a 100-second signal would be 
approximately 184 dB (DoN, 2001; Table 1).
    When SURTASS LFA sonar transmits, there is a boundary that encloses 
a volume of water where received levels equal or exceed 180 dB re: 1 
[mu]Pa (the 180-dB isopleth LFA sonar mitigation zone) and a volume of 
water outside this boundary where received levels are below 180 dB re: 
1 [micro]Pa. The level of risk for temporary threshold shift for marine 
mammals depends on their location in relation to SURTASS LFA sonar. 
However, the Navy's standard protective measures, captured in our 
regulation, would ensure delay or suspension of SURTASS LFA sonar 
transmissions if any of the three monitoring measures detect a marine 
mammal within 2 km (1.2 mi; 1.1 nm) of the vessel. Thus, the mitigation 
measures would allow the Navy to reduce the number of marine mammals 
exposed to received levels of SURTASS LFA sonar or HF/M3 active sonar 
sound that could result in temporary threshold shift. For transient 
sounds, the sound level necessary to cause temporary threshold shift is 
inversely related to the duration of the sound. Again, in the case of 
SURTASS LFA sonar, we do not expect animals to be exposed to levels 
high enough or durations long enough to result in temporary threshold 
shift. In order to receive more than one ``ping'' during a normal 
vessel leg, an animal would need to match the ship in speed and course 
direction between pings.
    Also, the Navy will conduct SURTASS LFA sonar operations to ensure 
that the sound field does not exceed 180 dB re: 1 [micro]Pa within 22 
km (14 mi; 12 nm) of any coastline or within 1-km (0.62 mi; 0.54 nm) of 
the perimeter of any OBIA. These measures offer protection to areas 
with higher densities of marine mammals. Because the Navy will operate 
for the most part in waters that are not areas known for high 
concentrations of marine mammals, few, if any, marine mammals would be 
within the SURTASS LFA sonar mitigation and buffer zones.
    Because of the relatively short duty cycle, the water depth of the 
convergence zone ray path, the movement of marine mammals in 
relationship to the SURTASS LFA sonar vessel, and the effectiveness of 
the three-part mitigation program, few marine mammals are likely to be 
affected by temporary threshold shift.

Permanent Threshold Shift

    In our 2002 and 2007 rules, we, along with the Navy, based their 
estimate of take by injury or the significant potential for such take 
(Level A harassment) on the criterion of 180-dB. We continue to believe 
this is a scientifically supportable and conservative value for 
preventing auditory injury or the significant potential for such injury 
(Level A harassment), as it represents a value less than where the 
potential onset of a minor temporary threshold shift in hearing might 
occur based on Schlundt et al.'s (2000) research (see the Navy's 2007 
Final Comprehensive Report Tables 5 through 8).
    This regulation requires the Navy to ensure delay or suspension of 
SURTASS LFA sonar transmissions if any of the three monitoring 
protocols detect a marine mammal either entering the LFA sonar 
mitigation or buffer zone; (i.e., within approximately two km (1.2 mi; 
1.1 nm)) of the SURTASS LFA sonar transmit array or vessel. The 
mitigation protocols would avoid exposing marine mammals to received 
levels of SURTASS LFA sonar or HF/M3 active sonar sound that would 
result in injury (Level A harassment). The sound pressure level that is 
capable of potentially causing injury to an animal is within less than 
1 km (0.62 mi; 0.54 nm) of the vessel. Implementing a shutdown zone of 
approximately 2 km (1.2 mi; 1.1 nm) around the SURTASS LFA sonar array 
and vessel will ensure that no marine mammals are exposed to a sound 
pressure level greater than approximately 175 dB re: 1 [mu]Pa (received 
level). This is significantly lower than the 180-dB re: 1 [mu]Pa 
(received level) used for other acoustic projects for protecting marine 
mammals from injury. Serious injury is unlikely to occur unless a 
marine mammal is well within the 180-dB LFA sonar mitigation zone and 
close to the source. The closer the mammal is to the SURTASS LFA sonar 
transmit array or the vessel, the more likely that the Navy will detect 
the animal with the three-part monitoring protocols leading to the 
immediate

[[Page 50314]]

delay or suspension of SURTASS LFA sonar transmissions.
    From 2003 to 2011, the Navy reported a total of 12 visual sightings 
(including two sightings during non-operational periods and one sea 
turtle sighting), four passive acoustic detections, and 130 HF/M3 
active sonar system detections of marine mammals, all leading to 139 
suspensions/delays of transmissions in accordance with mitigation 
protocols. Because the HF/M3 active sonar system is able to monitor 
large and medium marine mammals out to an effective range of 2 to 2.5 
km (1.2 to 1.5 mi; 1.1 to 1.3 nm) from the vessel, it is unlikely that 
the SURTASS LFA sonar operations would expose marine mammals to a sound 
pressure level greater than approximately 175 dB re: 1 [mu]Pa. The area 
between the 180-dB LFA sonar mitigation zone and the additional 1-km 
(0.62 mi; 0.54 nm) buffer zone proposed by us (estimated to extend to 
approximately the 175-dB re: 1 [mu]Pa isopleth from the vessel) is an 
area where marine mammals would experience Level B harassment if 
exposed to SURTASS LFA sonar transmissions, in accordance with the 
Navy's risk analysis and acoustic modeling (DoN, 2001; Subchapter 
4.2.3). Past results of the HF/M3 sonar system tests provide 
confirmation that the system has a demonstrated probability of single-
ping detection of 95 percent or greater for single marine mammals, 10 m 
(32.8 ft) in length or larger, and a probability approaching 100 
percent for multiple pings for any sized marine mammal. Further, 
implementing a shutdown zone of approximately 2 km (1.2 mi; 1.1 nm) 
around the vessel will ensure that no marine mammals are exposed to a 
sound pressure level greater than approximately 175 dB re: 1 [mu]Pa.
    With three types of mitigation monitoring for detecting marine 
mammals, we believe it is unlikely that any marine mammal would be 
exposed to received levels of 180 dB re: 1 [mu]Pa before detection and 
the resulting SURTASS LFA sonar shutdown. However, because the 
probability is not zero, the Navy has requested and we considered Level 
A harassment takes incidental to SURTASS LFA sonar operations.

Mortality

    There is no empirical evidence of strandings of marine mammals 
associated with the employment of SURTASS LFA sonar. Moreover, the 
system acoustic characteristics differ between low-frequency active 
sonar addressed here and the mid-frequency active sonars associated 
with strandings: Low frequency active sonars use frequencies generally 
below 1,000 Hz, with relatively long signals (pulses) on the order of 
60 seconds; while mid-frequency active sonars use frequencies greater 
than 1,000 Hz, with relatively short signals on the order of 1 second.
    We provided a summary of common features shared by the strandings 
events in Greece (1996), Bahamas (2000), Madeira (2000), Canary Islands 
(2002), Hanalei Bay (2004), and Spain (2006) in the proposed rule (77 
FR 842; January 6, 2012; pages 871-872). These included operation of 
mid-frequency active sonar, deep water close to land (such as offshore 
canyons), presence of an acoustic waveguide (surface duct conditions), 
and periodic sequences of transient pulses (i.e., rapid onset and decay 
times) generated at depths less than 32.8 ft (10 m) by sound sources 
moving at speeds of 2.6 m/s (5.1 knots) or more during sonar operations 
(D'Spain, et al., 2006). None of these features relate to SURTASS LFA 
sonar operations.
    In summary, based on these analyses, the past nine years of SURTASS 
LFA sonar operations, and results from the LFS Scientific Research 
Program, we do not anticipate that SURTASS LFA sonar operations will 
likely have adverse effects on annual rates of recruitment or survival 
(i.e., population-level effects). Further, in consideration of the fact 
that the 22-km (14mi; 12 nm) coastal standoff zone and designated OBIAs 
restrict the use of SURTASS LFA sonar in known areas of feeding, 
calving, and breeding for marine mammals, we do not expect the activity 
to have the sort of energetic impacts on individuals that would be 
likely to result in reduced survivorship or reproductive success.
    Accordingly we have determined that the total taking over the 5-
year period of the regulations and related Letters of Authorization for 
the Navy's SURTASS LFA sonar activities will have a negligible impact 
on the affected species or stocks in the Navy's SURTASS LFA sonar 
mission areas.

Subsistence Harvest of Marine Mammals

    We included a detailed discussion of the potential effects of the 
Navy's SURTASS LFA sonar operations on subsistence harvest (77 FR 842; 
January 6, 2012; pages 886-887). The information contained in this 
section has not changed from what was in the proposed rule.
    We have determined that the possible future employment of SURTASS 
LFA sonar will not lead to unmitigable adverse impacts on the 
availability of marine mammal species or stocks for subsistence uses in 
the Gulf of Alaska.
    Should the Navy operate SURTASS LFA sonar in the Gulf of Alaska, 
sonar operation would adhere to the shutdown in the mitigation and 
buffer zones, as well as established geographic restrictions, which 
include the coastal standoff range (which dictates that the sound field 
produced by the sonar must be below 180 dB re: 1 [mu]Pa within 22 km 
(14 mi; 12 nm) of any coastline) and at 1 km (0.62 mi; 054 nm) seaward 
of any OBIA outer perimeter which includes north Pacific right whale 
critical habitat. Additionally, the Navy will continue to keep Indian 
Tribal Governments informed of the timeframes of any future SURTASS LFA 
sonar exercises planned for the Gulf of Alaska or offshore the 
Washington or Oregon coasts.

Endangered Species Act

    There are 15 marine mammal species under our jurisdiction that are 
listed as endangered or threatened under this Act with confirmed or 
possible occurrence in potential operational areas for SURTASS LFA 
sonar: The blue, fin, sei humpback, bowhead, north Atlantic right, 
north Pacific right, southern right, gray, and sperm whales as well as 
the western and eastern distinct population segments of the Steller sea 
lion, Mediterranean monk seal, Hawaiian monk seal, the eastern distinct 
population segments of the Steller sea lion; the Guadalupe fur seal and 
the southern distinct population segments of the spotted seal.
    Pursuant to Section 7 of the Endangered Species Act, the Navy has 
consulted with NOAA Fisheries' Office of Protected Resources, 
Endangered Species Act Interagency Cooperation Division, on this 
action. We have also consulted internally on the issuance of 
regulations and annual LOAs under section 101(a)(5)(A) of the Marine 
Mammal Protection Act for this activity. NMFS' August 2012 Biological 
Opinion concludes that the proposed SURTASS LFA sonar operations and 
NMFS' issuance of regulations and subsequent LOAs to authorize 
incidental take of marine mammals are not likely to jeopardize the 
continued existence of the threatened and endangered species under 
NMFS' jurisdiction and are not likely to result in the destruction or 
adverse modification of critical habitat.

National Environmental Policy Act

    We have participated as a cooperating agency on the Navy's 2012 
FSEIS/SOEIS for employment of SURTASS LFA sonar, published on June, 8, 
2012. The Navy has posted this document at http://www.surtass-lfa-eis.com. We have

[[Page 50315]]

adopted the Navy's 2012 FSEIS/SOEIS in connection with this Marine 
Mammal Protection Act rulemaking and prepared a Record of Decision.

Determination

    Based on the analyses contained here and in the proposed rule (and 
other related documents) of the likely effects of the specified 
activity on marine mammals and their habitat and dependent upon the 
implementation of the mitigation and monitoring measures, we find that 
the Navy's SURTASS LFA sonar operations using active acoustic sources 
(including the HF/M3 active sonar system) over the five-year period 
will have a negligible impact on the affected species or stocks and 
will not result in an unmitigable adverse impact on the availability of 
marine mammal species or stocks for taking for subsistence uses. We 
have issued regulations for these activities that prescribe the means 
of effecting the least practicable adverse impact on marine mammals and 
their habitat and set forth requirements pertaining to the monitoring 
and reporting of that taking.

Classification

    This action does not contain any collection of information 
requirements for purposes of the Paperwork Reduction Act of 1980 (44 
U.S.C. 3501 et seq.).
    The Office of Management and Budget has determined that this final 
rule is not significant for purposes of Executive Order 12866.
    Pursuant to the Regulatory Flexibility Act, the Chief Counsel for 
Regulation of the Department of Commerce certified to the Chief Counsel 
for Advocacy of the Small Business Administration at the proposed rule 
stage, that this rule, if adopted, would not have a significant 
economic impact on a substantial number of small entities. We published 
the certification in the Federal Register notice of the proposed 
rulemaking on January 6, 2012. We received no comments about the 
certification. Accordingly, a final regulatory flexibility analysis is 
not required and none has been prepared.
    The Assistant Administrator for Fisheries has determined that there 
is good cause under the Administrative Procedure Act (5 U.S.C. 
553(d)(3)) to waive the 30-day delay in effective date of the measures 
contained in the final rule. The Navy has a compelling national policy 
reason to continue military readiness activities without interruption 
to the routine training and testing as well as use of the SURTASS LFA 
sonar system during military operations.
    This rule making began shortly after our receipt of the Navy's 
application for take authorization in August 2011. During that year, 
Navy, with our participation as a cooperating agency, was preparing its 
FSEIS/SOEIS for SURTASS LFA sonar. Both agencies seriously considered 
all public comments and worked together to ensure an outcome that 
satisfied both the Navy's purpose and need and our statutory 
responsibilities. In addition, after the proposed rule was published in 
the Federal Register in January 2012, we undertook a review of Hoyt 
(2011), a new edition of our key reference document to identify OBIAs 
in the world's oceans, to ensure we had not overlooked any other areas 
as potential OBIAs. In addition to the considerable time it took to 
review over 300 new areas identified in Hoyt (2011), the outcome of our 
review required us to engage in additional analyses and discussions 
both internally and with the Navy to determine if any other areas 
warranted OBIA consideration and designation.
    The current regulation expires on August 15, 2012. The Navy has a 
compelling national policy reason to continue military readiness 
activities without interruption to the routine training and testing, 
and use of the SURTASS LFA sonar system. Under these circumstances, it 
was not possible to finalize the MMPA rule making and the NEPA 
obligations with sufficient time to allow for the 30-day delay in 
effectiveness date.
    As discussed below, suspension/interruption of the Navy's ability 
to conduct routine training and testing as well as use of SURTASS LFA 
sonar during military operations disrupts adequate and realistic 
testing of military equipment, weapons, and sensors for proper 
operation and suitability for combat essential to national security.
    In order to meet its national security objectives, the Navy must 
continually maintain its ability to operate in a challenging at-sea 
environment, conduct military operations, control strategic maritime 
transit routes and international straits, and protect sea lines of 
communications that support international commerce. To meet these 
objectives, the Navy must identify, develop, and procure defense 
systems by continually integrating test and evaluation support 
throughout the defense acquisition process and providing essential 
information to decision-makers. Such testing and evaluation is critical 
in determining that defense systems perform as expected and whether 
these systems are operationally effective, suitable, survivable, and 
safe for their intended use.
    In order to effectively fulfill its national security mission, the 
Navy has a need to conduct routine training and testing as well as use 
of the SURTASS LFA sonar system during military operations covered by 
this final rule as soon as possible. The defense acquisition process is 
structured to be responsive and acquire quality products that satisfy 
user needs with measurable improvements on mission capability and 
operational support in a timely manner. Test and evaluation confirms 
performance of platforms and systems against documented capability 
needs and adversary capabilities. Delays in acquisition test and 
evaluation affect the Navy's need to meet its statutory mission to 
deploy worldwide naval forces equipped to meet existing and emergent 
threats. The Navy would be unable to plan to conduct activities covered 
by this final rule in the immediate future due to the uncertainties in 
the planning process and the fiscal and other consequences of planning 
for, preparing for, and then cancelling a major testing event. A 30-day 
delay furthers the amount of time the Navy is unable to plan for and 
execute an activity covered by this rule. Further, should an immediate 
national security issue arise; the 30-day delay would prevent the Navy 
from meeting its mission, which would have adverse national security 
consequences.
    Waiver of the 30-day delay of the effective date of the final rule 
will allow the Navy to continue put SURTASS LFA sonar capability into 
the hands of U.S. Sailors quickly, while also ensuring compliance with 
the MMPA.

List of Subjects in 50 CFR Part 218

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

    Dated: August 13, 2012.
 Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs.

    For reasons set forth in the preamble, 50 CFR part 218 is amended 
as follows:

PART 218-REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE 
MAMMALS

0
1. The authority citation for part 218 continues to read as follows:

    Authority:  16 U.S.C. 1361 et seq.

[[Page 50316]]

Subparts T through W [Added and Reserved]

0
2. Reserved subparts T through W are added.

0
3. Subpart X is added to read as follows:
Subpart X--Taking and Importing of Marine Mammals; Navy Operations of 
Surveillance Towed Array Sensor System Low Frequency Active (SURTASS 
LFA) Sonar
Sec.
218.230 Specified activity, level of taking, and species.
218.231 Effective dates.
218.232 Permissible methods of taking.
218.233 Prohibitions.
218.234 Mitigation.
218.235 Requirements for monitoring.
218.236 Requirements for reporting.
218.237 Applications for Letters of Authorization.
218.238 Letters of Authorization.
218.239 Renewal of Letters of Authorization.
218.240 Modifications to Letters of Authorization.
218.241 Adaptive Management.

Subpart X--Taking and Importing of Marine Mammals; Navy Operations 
of Surveillance Towed Array Sensor System Low Frequency Active 
(SURTASS LFA) Sonar


Sec.  218.230  Specified activity, level of taking, and species.

    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 four 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 Sec. Sec.  216.106 and 218.238, include the transmission of low 
frequency sounds from the SURTASS LFA sonar system and the transmission 
of high frequency sounds from the mitigation sonar described in Sec.  
218.234 during routine training and testing as well as during military 
operations.
    (a) The incidental take, by Level A and Level B harassment, of 
marine mammals from the activity identified in this section may be 
authorized in certain areas of the Pacific, Atlantic, and Indian Oceans 
and the Mediterranean Sea, as specified in a Letter of Authorization.
    (b) The incidental take, by Level A and Level B harassment, of 
marine mammals from the activity identified in this section is limited 
to the following species and species groups:
    (1) Mysticetes-blue whale (Balaenoptera musculus), bowhead whale 
(Balaena mysticetus), Bryde's whale (Balaenoptera edeni), fin whale 
(Balaenoptera physalus), gray whale (Eschrichtius robustus), humpback 
whale (Megaptera novaeangliae), minke whale (Balaenoptera 
acutorostrata), North Atlantic right whale (Eubalaena glacialis), North 
Pacific right whale (Eubalena japonica), pygmy right whale 
(Caperamarginata), sei whale (Balaenoptera borealis), southern right 
whale (Eubalaena australis),
    (2) Odontocetes-Andrew's beaked whale (Mesoplodon bowdoini), 
Arnoux's beaked whale (Berardius arnuxii), Atlantic spotted dolphin 
(Stenella frontalis), Atlantic white-sided dolphin (Lagenorhynchus 
acutus), Baird's beaked whale (Berardius bairdii), Beluga whale 
(Dephinapterus leucas), Blainville's beaked whale (Mesoplodon 
densirostris), Chilean dolphin (Cephalorhynchus eutropia), Clymene 
dolphin (Stenella clymene), Commerson's dolphin (Cephalorhynchus 
commersonii), common bottlenose dolphin (Tursiops truncatus), Cuvier's 
beaked whale (Ziphiuscavirostris), Dall's porpoise (Phocoenoides 
dalli), Dusky dolphin (Lagenorhynchus obscurus), dwarf sperm and pygmy 
sperm whales (Kogia simus and K. breviceps), false killer whale 
(Pseudorca crassidens), Fraser's dolphin (Lagenodelphis hosei), 
Gervais' beaked whale (Mesoplodon europaeus), ginkgo-toothed beaked 
whale (Mesoplodon ginkgodens), Gray's beaked whale (Mesoplodon grayi), 
Heaviside's dolphin (Cephalorhynchus heavisidii), Hector's beaked whale 
(Mesoplodon hectori), Hector's dolphin (Cephalorhynchus hectori); 
Hourglass dolphin (Lagenorhynchus cruciger), Hubbs' beaked whale 
(Mesoplodon carhubbsi), harbor porpoise (Phocoena phocoena); Indo-
Pacific bottlenose dolphin (Tursiops aduncus), killer whale (Orca 
orcinus), long-beaked common dolphin (Delphinuscapensis), long-finned 
pilot whale (Globicephalamelas), Longman's beaked whale (Indopacetus 
pacificus), melon-headed whale (Peponocephala electra), northern 
bottlenose whale (Hyperodon ampullatus), northern right whale dolphin 
(Lissodelphis borealis), Pacific white-sided dolphin (Lagenorhynchus 
obliquidens), pantropical spotted dolphin (Stenella attenuata), Peale's 
dolphin (Lagenorhynchus australis), Perrin's beaked whale (Mesoplodon 
perrini), pygmy beaked whale (Mesoplodon peruvianus), pygmy killer 
whale (Feresa attenuata), Risso's dolphin (Grampus griseus), rough-
toothed dolphin (Steno bredanensis), Shepherd's beaked whale 
(Tasmacetus sheperdii), short-beaked common dolphin (Delphinus 
delphis), short-finned pilot whale (Globicephala macrorhynchus), 
southern bottlenose whale (Hyperodon planifrons), southern right whale 
dolphin (Lissodelphis peronii), Sowerby's beaked whale (Mesoplodon 
bidens), spade-toothed beaked whale (Mesoplodon traversii), spectacled 
porpoise (Phocoena dioptrica), sperm whale (Physeter macrocephalus), 
spinner dolphin (Stenella longirostris), Stejneger's beaked whale 
(Mesoplodon stejnegeri), strap-toothed beaked whale (Mesoplodon 
layardii), striped dolphin (Stenella coeruleoalba), True's beaked whale 
(Mesoplodon mirus), white-beaked dolphin (Lagenorhynchus albirostris),
    (3) Pinnipeds-Australian sea lion (Neophoca cinerea), California 
sea lion (Zalophus californianus), Galapagos fur seal (Arctocephalus 
galapagoensis), Galapagos sea lion (Zalophus wollebaeki), gray seal 
(Halichoerus grypus), Guadalupe fur seal (Arctocephalus townsendi), 
harbor seal (Phoca vitulina), harp seal (Pagophilus groenlandicus), 
Hawaiian monk seal (Monachus schauinslandi), hooded seal (Cystophora 
cristata), Juan Fernadez fur seal (Arctocephalus philippi), 
Mediterranean monk seal (Monachus monachus), New Zealand fur seal 
(Arctocephalus forsteri), New Zealand fur seal (Phocarctos hookeri), 
northern elephant seal (Mirounga angustirostris), northern fur seal 
(Callorhinus ursinus), ribbon seal (Phoca fasciata), South African and 
Australian fur seals (Arctocephalus pusillus), South American fur seal 
(Arctocephalus australis), South American sea lion (Otaria flavescens), 
southern elephant seal (Mirounga leonina), spotted seal (Phoca largha), 
Steller sea lion (Eumetopias jubatus), subantarctic fur seal 
(Arctocephalus tropicalis).


Sec.  218.231  Effective dates.

    Regulations are effective August 15, 2012 through August 15, 2017.


Sec.  218.232  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec. Sec.  
216.106 and 218.238 of this chapter, 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.  218.230(a), provided that the activity is in compliance with all 
terms, conditions, and requirements of these regulations and the 
appropriate Letter of Authorization.
    (b) The Holder of the Letter of Authorization must conduct the

[[Page 50317]]

activities identified in Sec.  218.230 in a manner that minimizes, to 
the greatest extent practicable, any adverse impacts on marine mammals 
and their habitat.
    (c) The incidental take of marine mammals under the activities 
identified in Sec.  218.230 is limited to the species listed in Sec.  
218.230(b) by the method of take indicated in paragraphs (c)(2) through 
(5) of this section.
    (1) The Navy must maintain a running calculation/estimation of 
takes of each species over the effective period of these regulations.
    (2) Level B harassment will not exceed 12 percent of any marine 
mammal stock listed in Sec.  218.230(b)(1) through (3) annually over 
the course of the five-year regulations. This annual per-stock cap of 
12 percent applies regardless of the number of SURTASS LFA sonar 
vessels operating.
    (3) Level A harassment of no more than six mysticetes (total), of 
any of the species listed in Sec.  218.230(b)(1) over the course of the 
five-year regulations.
    (4) Level A harassment of no more than 25 odontocetes (total), of 
any of the species listed in Sec.  218.230(b)(2) over the course of the 
five-year regulations.
    (5) Level A harassment of no more than 25 pinnipeds (total), of any 
of the species listed in Sec.  218.230(b)(3) over the course of the 
five-year regulations.


Sec.  218.233  Prohibitions.

    No person in connection with the activities described in Sec.  
218.230 may:
    (a) Take any marine mammal not specified in Sec.  218.230(b);
    (b) Take any marine mammal specified in Sec.  218.230 other than by 
incidental take as specified in Sec.  218.232(c)(2) through (5);
    (c) Take any marine mammal specified in Sec.  218.230 if NMFS makes 
a determination that such taking results in more than a negligible 
impact on the species or stocks of such marine mammal; or
    (d) Violate, or fail to comply with, any of the terms, conditions, 
or requirements of these regulations or a Letter of Authorization 
issued under Sec. Sec.  216.106 and 218.238 of this chapter.


Sec.  218.234  Mitigation.

    When conducting operations identified in Sec.  218.230, the 
mitigation measures described in this section and in any Letter of 
Authorization issued under Sec. Sec.  216.106 and 218.238 must be 
implemented.
    (a) Personnel Training--Lookouts: (1) The Navy shall train the 
lookouts in the most effective means to ensure quick and effective 
communication within the command structure in order to facilitate 
implementation of protective measures if they spot marine mammals.
    (2) The Navy will hire one or more marine mammal biologists 
qualified in conducting at-sea marine mammal visual monitoring from 
surface vessels to train and qualify designated ship personnel to 
conduct at-sea visual monitoring.
    (b) General Operating Procedures: (1) Prior to SURTASS LFA sonar 
operations, the Navy will promulgate executive guidance for the 
administration, execution, and compliance with these regulations and 
any Letters of Authorization issued.
    (2) The Holder of a Letter of Authorization will not transmit the 
SURTASS LFA sonar signal at a frequency greater than 500 Hertz (Hz).
    (c) LFA Sonar Mitigation Zone and 1-km Buffer Zone; Suspension and 
Delay: (1) Prior to commencing and during SURTASS LFA sonar 
transmissions, the Holder of a Letter of Authorization will determine 
the propagation of LFA sonar signals in the ocean and the distance from 
the SURTASS LFA sonar source to the 180-decibel (dB) re: 1 [mu]Pa 
isopleth.
    (2) The Holder of a Letter of Authorization will establish a 180-dB 
LFA sonar mitigation zone around the surveillance vessel that is equal 
in size to the 180-dB re: 1 [mu]Pa isopleth (i.e., the volume subjected 
to sound pressure levels of 180 dB or greater) as well as a one-
kilometer (1-km) buffer zone around the LFA sonar mitigation zone.
    (3) If a marine mammal is detected, through monitoring required 
under Sec.  218.235, within or about to enter the LFA sonar mitigation 
zone plus the 1-km buffer zone, the Holder of the Letter of 
Authorization will immediately delay or suspend SURTASS LFA sonar 
transmissions.
    (d) Resumption of SURTASS LFA sonar transmissions: (1) The Holder 
of a Letter of Authorization will not resume SURTASS LFA sonar 
transmissions earlier than 15 minutes after:
    (i) All marine mammals have left the area of the SURTASS LFA sonar 
mitigation and buffer zones; and
    (ii) There is no further detection of any marine mammal within the 
LFA sonar mitigation and buffer zones as determined by the visual, 
passive, and high frequency monitoring described in Sec.  218.235.
    (e) Ramp-up Procedures for the high-frequency marine mammal 
monitoring (HF/M3) sonar required under Sec.  218.235: (1) The Holder 
of a Letter of Authorization will ramp up the HF/M3 sonar power level 
beginning at a maximum source sound pressure level of 180 dB re: 1 
[mu]Pa at 1 meter in 10-dB increments to operating levels over a period 
of no less than five minutes:
    (i) At least 30 minutes prior to any SURTASS LFA sonar 
transmissions;
    (ii) Prior to any SURTASS LFA sonar calibrations or testing that 
are not part of regular SURTASS LFA sonar transmissions described in 
Sec.  218.230; and
    (iii) Anytime after the HF/M3 active sonar source has been powered 
down for more than two minutes.
    (2) The Holder of a Letter of Authorization will not increase the 
HF/M3 active sonar system's sound pressure level once a marine mammal 
is detected; ramp-up may resume once marine mammals are no longer 
detected.
    (f) Geographic Restrictions on the SURTASS LFA Sonar Sound Field: 
(1) The Holder of a Letter of Authorization will not operate the 
SURTASS LFA sonar such that:
    (i) The SURTASS LFA sonar sound field exceeds 180 dB re: 1 [mu]Pa 
(rms) at a distance less than 12 nautical miles (nm) (22 kilometers 
(km)) from any coastline, including offshore islands;
    (ii) The SURTASS LFA sonar sound field exceeds 180 dB re: 1 [mu]Pa 
(rms) at a distance less than 1 km (0.5 nm) seaward of the outer 
perimeter of any offshore biologically important area designated in 
Sec.  218.234(f)(2) during the period specified.
    (2) The Offshore Biologically Important Areas (OBIAs) for marine 
mammals (with specified periods) for SURTASS LFA sonar operations are 
the following:

----------------------------------------------------------------------------------------------------------------
               Name of area                          Location of area                 Months of importance
----------------------------------------------------------------------------------------------------------------
(i) Georges Bank.........................  40[deg]00' N, 72[deg]30' W;          Year-round.
                                            39[deg]37' N, 72[deg]09' W;
                                            39[deg]54' N, 71[deg]43' W;
                                            40[deg]02' N, 71[deg]20' W;
                                            40[deg]08' N, 71[deg]01' W;
                                            40[deg]04' N, 70[deg]44' W;
                                            40[deg]00' N, 69[deg]24' W;
                                            40[deg]16' N, 68[deg]27' W;
                                            40[deg]34' N, 67[deg]13' W;
                                            41[deg]00' N, 66[deg]24' W;
                                            41[deg]52' N, 65[deg]47' W;
                                            42[deg]20' N, 66[deg]06' W;
                                            42[deg]18' N, 67[deg]23' W.

[[Page 50318]]

 
(ii) Roseway Basin Right Whale             43[deg]05' N, 65[deg]40' W;          June through December, annually.
 Conservation Area.                         43[deg]05' N, 65[deg]03' W;
                                            42[deg]45' N, 65[deg]40' W;
                                            42[deg]45' N, 65[deg]03' W.
(iii) Great South Channel, U.S. Gulf of    41[deg]00.000' N, 69[deg]05.000' W;  January 1 to November 14,
 Maine, and Stellwagen Bank National        42[deg]09.000' N, 67[deg]08.400'     annually.
 Marine Sanctuary (NMS).                    W; 42[deg]53.436' N,
                                            67[deg]43.873' W; 44[deg]12.541'
                                            N, 67[deg]16.847' W;
                                            44[deg]14.911' N, 67[deg]08.936'
                                            W; 44[deg]21.538' N,
                                            67[deg]03.663' W; 44[deg]26.736'
                                            N, 67[deg]09.596' W;
                                            44[deg]16.805' N, 67[deg]27.394'
                                            W; 44[deg]11.118' N,
                                            67[deg]56.398' W; 43[deg]59.240'
                                            N, 68[deg]08.263' W;
                                            43[deg]36.800' N, 68[deg]46.496'
                                            W; 43[deg]33.925' N,
                                            69[deg]19.455' W; 43[deg]32.008'
                                            N, 69[deg]44.504' W;
                                            43[deg]21.922' N, 70[deg]06.257'
                                            W; 43[deg]04.084' N,
                                            70[deg]21.418' W; 42[deg]51.982'
                                            N, 70[deg]31.965' W;
                                            42[deg]45.187' N, 70[deg]23.396'
                                            W; 42[deg]39.068' N,
                                            70[deg]30.188' W; 42[deg]32.892'
                                            N, 70[deg]35.873' W;
                                            42[deg]07.748' N, 70[deg]28.257'
                                            W; 42[deg]05.592' N,
                                            70[deg]02.136' W; 42[deg]03.664'
                                            N, 69[deg]44.000' W;
                                            41[deg]40.000' N, 69[deg]45.000' W.
(iv) Southeastern U.S. Right Whale         Critical Habitat Boundaries are      November 15 to April 15,
 Seasonal Habitat.                          coastal waters between 31[deg]15'    annually.
                                            N and 30[deg]15' N from the coast
                                            out 15 nautical miles (nmi); and
                                            the coastal waters between
                                            30[deg]15' N and 28[deg]00'' N
                                            from the coast out 5 nmi. (50 CFR
                                            Sec.   226.13(c));
                                           OBIA Boundaries are coastal waters
                                            between 31[deg]15'' N and
                                            30[deg]15'' N from 12 to 15 nmi..
(v) North Pacific Right Whale Critical     57[deg]03' N, 153[deg]00' W;         March through August, annually.
 Habitat.                                   57[deg]18' N, 151[deg]30' W;
                                            57[deg]00' N, 151[deg]30' W;
                                            56[deg]45' N, 153[deg]00' W.
                                           (50 CFR Sec.   226.215)............
(vi) Silver Bank and Navidad Bank........  Silver Bank:.......................  December through April,
                                                                                 annually.
                                           20[deg]38.899' N, 69[deg]23.640' W;
                                            20[deg]55.706' N, 69[deg]57.984'
                                            W; 20[deg]25.221' N,
                                            70[deg]00.387' W; 20[deg]12.833'
                                            N, 69[deg]40.604' W;
                                            20[deg]13.918' N, 69[deg]31.518'
                                            W; 20[deg]28.680' N,
                                            69[deg]31.900' W
                                           Navidad Bank:
                                             20[deg]15.596' N, 68[deg]47.967'
                                           W; 20[deg]11.971' N, 68[deg]54.810'
                                           W; 19[deg]52.514' N, 69[deg]00.443'
                                           W; 19[deg]54.957' N, 68[deg]51.430'
                                           W; 19[deg]51.513' N, 68[deg]41.399'
                                           W
(vii) Coastal waters of Gabon, Congo and   An exclusion zone following the 500- June through October, annually.
 Equatorial Guinea.                         m isobath extending from
                                            3[deg]31.055' N, 9[deg]12.226'' E
                                            in the north offshore of Malabo
                                            southward to 8[deg]57.470'' S,
                                            12[deg]55.873'' E offshore of
                                            Luanda
(viii) Patagonian Shelf Break............  Between 200- and 2000-m isobaths     Year-round.
                                            and the following latitudes:
                                            35[deg]00'' S, 39[deg]00'' S,
                                            40[deg]40'' S, 42[deg]30'' S,
                                            46[deg]00'' S, 48[deg]50'' S..
(ix) Southern Right Whale Seasonal         Coastal waters between 42[deg]00''   May through December, annually.
 Habitat.                                   S and 43[deg]00'' S from 12 to 15
                                            nm including the enclosed bays of
                                            Golfo Nuevo, Golfo San Jose, and
                                            San Matias. Golfos San Jose and
                                            San Nuevo are within 22 km (14 mi;
                                            12 nm) coastal exclusion zone
(x) Central California National Marine     Single stratum boundary created      June through November, annually.
 Sanctuaries.                               from the Cordell Bank (15 CFR
                                            922.10), Gulf of the Farallones
                                            (15 CFR 922.80), and Monterey Bay
                                            (15 CFR 922.30) NMS legal
                                            boundaries. Monterey Bay NMS
                                            includes the Davidson Seamount
                                            Management Zone
(xi) Antarctic Convergence Zone..........  30[deg] E to 80[deg] E, 45[deg] S;   October through March, annually.
                                            80[deg] E to 150[deg] E, 55[deg]
                                            S; 150[deg] E to 50[deg] W,
                                            60[deg] S; 50[deg] W to 30[deg] E,
                                            50[deg] S.

[[Page 50319]]

 
(xii) Piltun and Chayvo offshore feeding   54[deg]09.436' N, 143[deg]47.408'    June through November, annually.
 grounds in the Sea of Okhotsk.             W; 54[deg]09.436' N,
                                            143[deg]17.354' W; 54[deg]01.161'
                                            N, 143[deg]17.354' W;
                                            53[deg]53.580' N, 143[deg]13.398'
                                            W; 53[deg]26.963' N,
                                            143[deg]28.230' W; 53[deg]07.013'
                                            N, 143[deg]35.481' W;
                                            52[deg]48.705' N, 143[deg]38.447'
                                            W; 52[deg]32.077' N,
                                            143[deg]37.788' W; 52[deg]21.605'
                                            N, 143[deg]34.163' W;
                                            52[deg]09.470' N, 143[deg]26.582'
                                            W; 51[deg]57.686' N,
                                            143[deg]30.208' W; 51[deg]36.033'
                                            N, 143[deg]42.794' W;
                                            51[deg]08.082' N, 143[deg]51.301'
                                            W; 51[deg]08.082' N,
                                            144[deg]16.742' W; 51[deg]24.514'
                                            N, 144[deg]11.139' W;
                                            51[deg]48.116' N, 144[deg]10.809'
                                            W; 52[deg]03.194' N,
                                            144[deg]20.363' W; 52[deg]23.235'
                                            N, 144[deg]10.150' W;
                                            52[deg]28.674' N, 144[deg]12.787'
                                            W; 52[deg]42.523' N,
                                            144[deg]10.150' W; 53[deg]12.972'
                                            N, 143[deg]55.648' W;
                                            53[deg]18.505' N, 143[deg]56.637'
                                            W; 53[deg]23.041' N,
                                            143[deg]53.011' W; 53[deg]28.250'
                                            N, 143[deg]53.341' W;
                                            53[deg]44.039' N, 143[deg]49.056'
                                            W; 53[deg]53.207' N,
                                            143[deg]50.045' W; 53[deg]59.819'
                                            N, 143[deg]48.067' W.
(xiii) Coastal waters off Madagascar.....  16[deg]03'55.04'' S,                 July through September, annually
                                            50[deg]27'12.59'' E;                 for humpback whale breeding and
                                            16[deg]12'23.03'' S,                 November through December,
                                            51[deg]03'37.38'' E;                 annually for migrating blue
                                            24[deg]30'45.06'' S,                 whales.
                                            48[deg]26'00.94'' E;
                                            24[deg]15'28.07'' S,
                                            47[deg]46'51.16'' E;
                                            22[deg]18'00.74'' S,
                                            48[deg]14'13.52'' E;
                                            20[deg]52'24.12'' S,
                                            48[deg]43'13.49'' E;
                                            19[deg]22'33.24'' S,
                                            49[deg]15'45.47'' E;
                                            18[deg]29'46.08'' S,
                                            49[deg]37'32.25'' E;
                                            17[deg]38'27.89'' S,
                                            49[deg]44'27.17'' E;
                                            17[deg]24'39.12'' S,
                                            49[deg]39'17.03'' E;
                                            17[deg]19'35.34'' S,
                                            49[deg]54'23.82'' E;
                                            16[deg]45'41.71'' S,
                                            50[deg]15'56.35'' E.
(xiv) Madagascar Plateau, Madagascar       25[deg]55'20.00'' S,                 November through December,
 Ridge, and Walters Shoal.                  44[deg]05'15.45'' E;                 annually.
                                            25[deg]46'31.36'' S,
                                            47[deg]22'35.90'' E;
                                            27[deg]02'37.71'' S,
                                            48[deg]03'31.08'' E;
                                            35[deg]13'51.37'' S,
                                            46[deg]26'19.98'' E;
                                            35[deg]14'28.59'' S,
                                            42[deg]35'49.20'' E;
                                            31[deg]36'57.96'' S,
                                            42[deg]37'49.35'' E;
                                            27[deg]41'11.21'' S,
                                            44[deg]30'11.01'' E.
(xv) Ligurian-Corsican-Provencal Basin     42[deg]50.271' N, 06[deg]31.883''    July to August, annually.
 and Western Pelagos Sanctuary in the       E; 42[deg]55.603' N,
 Mediterranean Sea.                         06[deg]43.418'' E; 43[deg]04.374'
                                            N, 06[deg]52.165'' E;
                                            43[deg]12.600' N, 07[deg]10.440''
                                            E; 43[deg]21.720' N,
                                            07[deg]19.380'' E; 43[deg]30.600'
                                            N, 07[deg]32.220'' E;
                                            43[deg]33.900' N, 07[deg]49.920''
                                            E; 43[deg]36.420' N,
                                            08[deg]05.580'' E; 43[deg]42.600'
                                            N, 08[deg]22.140'' E;
                                            43[deg]50.880' N, 08[deg]34.500''
                                            E; 43[deg]58.560' N,
                                            08[deg]47.700'' E; 43[deg]59.040'
                                            N, 08[deg]56.040'' E;
                                            43[deg]57.047' N, 09[deg]03.540''
                                            E; 43[deg]52.260' N,
                                            09[deg]08.520'' E; 43[deg]47.580'
                                            N, 09[deg]13.500'' E;
                                            43[deg]36.060' N, 09[deg]16.620''
                                            E; 43[deg]28.440' N,
                                            09[deg]05.820'' E; 43[deg]21.360'
                                            N, 09[deg]02.100'' E;
                                            43[deg]16.020' N, 08[deg]57.240''
                                            E; 43[deg]04.440' N,
                                            08[deg]47.580'' E; 42[deg]54.900'
                                            N, 08[deg]35.400'' E;
                                            42[deg]45.900' N, 08[deg]27.540''
                                            E; 42[deg]36.060' N,
                                            08[deg]22.020'' E; 42[deg]22.620'
                                            N, 08[deg]15.849'' E;
                                            42[deg]07.202' N, 08[deg]17.174''
                                            E; 41[deg]52.800' N,
                                            08[deg]15.720'' E; 41[deg]39.780'
                                            N, 08[deg]05.280'' E;
                                            41[deg]28.200' N, 08[deg]51.600''
                                            E; 42[deg]57.060' N,
                                            06[deg]19.860'' E.
(xvi) Hawaiian Islands Humpback Whale NMS  21[deg]10'02.179'' N,                November through April,
 and Penguin Bank.                          157[deg]30'58.217'' W;               annually.
                                            21[deg]09'46.815'' N,
                                            157[deg]30'22.367'' W;
                                            21[deg]06'39.882'' N,
                                            157[deg]31'00.778'' W;
                                            21[deg]02'51.976'' N,
                                            157[deg]30'30.049'' W;
                                            20[deg]59'52.725'' N,
                                            157[deg]29'28.591'' W;
                                            20[deg]58'05.174'' N,
                                            157[deg]27'35.919'' W;
                                            20[deg]55'49.456'' N,
                                            157[deg]30'58.217'' W;
                                            20[deg]50'44.729'' N,
                                            157[deg]42'42.418'' W;
                                            20[deg]51'02.654'' N,
                                            157[deg]44'45.333'' W;
                                            20[deg]53'56.784'' N,
                                            157[deg]46'04.716'' W;
                                            20[deg]56'32.988'' N,
                                            157[deg]45'33.987'' W;
                                            21[deg]01'27.472'' N,
                                            157[deg]43'10.586'' W;
                                            21[deg]05'20.499'' N,
                                            157[deg]39'27.802'' W;
                                            21[deg]10'02.179'' N,
                                            157[deg]30'58.217'' W.
(xvii) Costa Rica Dome...................  Centered at 9[deg]N and 88[deg]W...  Year-round.

[[Page 50320]]

 
(xviii) Great Barrier Reef Between         16[deg]01.829'' S, 145[deg]38.783''  May through September, annually.
 16[deg] S and 21[deg] S.                   E; 15[deg]52.215'' S,
                                            146[deg]20.936'' E;
                                            17[deg]28.354'' S,
                                            146[deg]59.392'' E;
                                            20[deg]16.228'' S,
                                            151[deg]39.674'' E;
                                            20[deg]58.381'' S,
                                            150[deg]30.897'' E;
                                            20[deg]17.007'' S,
                                            149[deg]38.247'' E;
                                            20[deg]10.941'' S,
                                            149[deg]18.247'' E;
                                            20[deg]02.403'' S,
                                            149[deg]12.623'' E;
                                            19[deg]53.287'' S,
                                            149[deg]03.986'' E;
                                            19[deg]49.866'' S,
                                            148[deg]52.135'' E;
                                            19[deg]53.287'' S,
                                            148[deg]44.302'' E;
                                            19[deg]47.965'' S,
                                            148[deg]36.870'' E;
                                            19[deg]47.205'' S,
                                            148[deg]26.024'' E;
                                            19[deg]19.978'' S,
                                            147[deg]39.626'' E;
                                            19[deg]14.065'' S,
                                            147[deg]37.014'' E;
                                            19[deg]08.913'' S,
                                            147[deg]31.993'' E;
                                            19[deg]05.667'' S,
                                            147[deg]24.160'' E;
                                            19[deg]07.576'' S,
                                            147[deg]18.134'' E;
                                            18[deg]51.718'' S,
                                            146[deg]51.219'' E;
                                            18[deg]44.258'' S,
                                            146[deg]54.031'' E;
                                            18[deg]37.175'' S,
                                            146[deg]51.420'' E;
                                            18[deg]31.620'' S,
                                            146[deg]43.385'' E;
                                            18[deg]27.595'' S,
                                            146[deg]40.573'' E;
                                            17[deg]36.676'' S,
                                            146[deg]20.488'' E;
                                            17[deg]20.484'' S,
                                            146[deg]16.671'' E;
                                            17[deg]07.745'' S,
                                            146[deg]13.056'' E;
                                            16[deg]49.769'' S,
                                            146[deg]11.047'' E;
                                            16[deg]41.835'' S,
                                            146[deg]03.817'' E;
                                            16[deg]39.706'' S,
                                            145[deg]54.979'' E.
(xix) Bonney Upwelling on the south coast  37[deg]12'20.036'' S,                December through May, annually.
 of Australia.                              139[deg]31'17.703'' E;
                                            37[deg]37'33.815'' S,
                                            139[deg]42'42.508'' E;
                                            38[deg]10'36.144'' S,
                                            140[deg]22'57.345'' E;
                                            38[deg]44'50.558'' S,
                                            141[deg]33'50.342'' E;
                                            39[deg]07'04.125'' S,
                                            141[deg]11'00.733'' E;
                                            37[deg]28'33.179'' S,
                                            139[deg]10'52.263'' E.
(xx) Northern Bay of Bengal and Head of    20[deg]59.735' N, 89[deg]07.675''    Year-round.
 Swatch-of-No-Ground.                       E; 20[deg]55.494' N,
                                            89[deg]09.484'' E; 20[deg]52.883'
                                            N, 89[deg]12.704'' E;
                                            20[deg]55.275' N, 89[deg]18.133''
                                            E; 21[deg]04.558' N,
                                            89[deg]25.294'' E; 21[deg]12.655'
                                            N, 89[deg]25.354'' E;
                                            21[deg]13.279' N, 89[deg]16.833''
                                            E; 21[deg]06.347' N,
                                            89[deg]15.011'' E.
(xxi) Olympic Coast NMS and Prairie,       Boundaries within 23 nm (26.5 m;     Olympic NMS: December, January,
 Barkley Canyon, and Nitnat Canyon.         42.6 km) of the coast from           March, and May, annually.
                                            47[deg]07' N to 48[deg]30' N
                                            latitude.
                                           48[deg]30'01.995'' N,                The Prairie, Barkley Canyon, and
                                            125[deg]58'38.786'' W;               Nitnat Canyon: June through
                                            48[deg]16'55.605'' N,                September, annually.
                                            125[deg]38'52.052'' W;
                                            48[deg]23'07.353'' N,
                                            125[deg]17'10.935'' W;
                                            48[deg]12'38.241'' N,
                                            125[deg]16'42.339'' W;
                                            47[deg]58'20.361'' N,
                                            125[deg]31'14.517'' W;
                                            47[deg]58'20.361'' N,
                                            126[deg]06'16.322'' W;
                                            48[deg]09'46.665'' N,
                                            126[deg]25'48.758'' W.
(xxii) Abrolhos Bank.....................  16[deg]35'34.909''                   August through November,
                                            38[deg]52'30.455'';                  annually.
                                            16[deg]35'31.619''
                                            38[deg]43'41.069'';
                                            16[deg]40'00.131''
                                            37[deg]23'52.492'';
                                            19[deg]30'59.069''
                                            37[deg]23'52.446'';
                                            19[deg]30'59.974''
                                            39[deg]33'38.351'';
                                            19[deg]20'24.752''
                                            39[deg]30'33.03'';
                                            18[deg]52'16.884''
                                            39[deg]32'31.789'';
                                            18[deg]45'09.937''
                                            39[deg]32'27.709'';
                                            18[deg]30'59.345''
                                            39[deg]30'59.669'';
                                            18[deg]27'28.985''
                                            39[deg]30'13.453'';
                                            18[deg]17'30.429''
                                            39[deg]26'21.073'';
                                            18[deg]07'43.518''
                                            39[deg]19'52.924'';
                                            18[deg]09'24.931''
                                            39[deg]16'24.913'';
                                            18[deg]10'04.585''
                                            39[deg]12'30.425'';
                                            18[deg]10'20.682''
                                            38[deg]39'06.185'';
                                            18[deg]08'50.404''
                                            38[deg]35'00.059'';
                                            18[deg]06'05.466''
                                            38[deg]31'41.385'';
                                            18[deg]02'09.399''
                                            38[deg]29'26.179'';
                                            17[deg]58'01.372''
                                            38[deg]28'45.409'';
                                            17[deg]53'58.883''
                                            38[deg]29'34.612'';
                                            16[deg]48'58.768''
                                            38[deg]55'23.768'';
                                            16[deg]43'15.682''
                                            38[deg]53'40.007''.
----------------------------------------------------------------------------------------------------------------

     (g) Operational Exception for the SURTASS LFA Sonar Sound Field. 
During military operations SURTASS LFA sonar transmissions may exceed 
180 dB re: 1 [mu]Pa (rms) within the boundaries of a SURTASS LFA sonar 
OBIA when: operationally necessary to continue tracking an existing 
underwater contact; or operationally necessary to detect a new 
underwater contact within the OBIA. This exception does not apply to 
routine training and testing with the SURTASS LFA sonar systems.


Sec.  218.235  Requirements for monitoring.

    (a) The Holder of a Letter of Authorization issued pursuant to 
Sec. Sec.  216.106 and 218.238 must:
    (1) Conduct visual monitoring from the ship's bridge during 
daylight hours (30 minutes before sunrise until 30 minutes after 
sunset) during operations that employ SURTASS LFA sonar in the active 
mode. The SURTASS vessels shall have lookouts to maintain a topside 
watch with standard binoculars (7x) and with the naked eye.
    (2) Use low frequency passive SURTASS sonar to listen for 
vocalizing marine mammals; and
    (3) Use the HF/M3 active sonar to locate and track marine mammals 
in relation to the SURTASS LFA sonar vessel and the sound field 
produced by the SURTASS LFA sonar source array, subject to the ramp-up 
requirements in Sec.  216.234(e).

[[Page 50321]]

    (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 changes in 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.  218.230 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 will continue to assess 
data from the Marine Mammal Monitoring Program and work toward making 
some portion of that data, after appropriate security reviews, 
available to scientists with appropriate clearances. Any portions of 
the analyses conducted by these scientists based on these data that are 
determined to be unclassified after appropriate security reviews will 
be made publically available.
    (f) Holders of Letters of Authorization will continue to explore 
the feasibility of coordinating with other fleet assets and/or range 
monitoring programs to include the use of SURTASS towed horizontal line 
arrays to augment the collection of marine mammal vocalizations before, 
during, and after designated exercises.
    (g) Holders of Letters of Authorization will collect ambient noise 
data and will explore the feasibility of declassifying and archiving 
the ambient noise data for incorporation into appropriate ocean noise 
budget efforts.
    (h) Holders of Letters of Authorization will convene a Scientific 
Advisory Group (SAG) to analyze different types of monitoring/research 
that could increase the understanding of the potential effects of low-
frequency active sonar transmissions on beaked whales and/or harbor 
porpoises.
    (i) Holders of Letters of Authorization must conduct all monitoring 
required under the Letter of Authorization.


Sec.  218.236  Requirements for reporting.

    (a) The Holder of the Letter of Authorization must submit 
classified and unclassified quarterly mission reports to the Director, 
Office of Protected Resources, NMFS, no later than 30 days after the 
end of each 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 each vessel during each mission;
    (2) Information on sonar transmissions during each mission;
    (3) Results of the marine mammal monitoring program specified in 
the Letter of Authorization; and
    (4) Estimates of the percentages of marine mammal species and 
stocks affected (both for the quarter and cumulatively for the year) 
covered by the Letter of Authorization.
    (b) The Holder of a Letter of Authorization must submit an 
unclassified annual report to the Director, Office of Protected 
Resources, NMFS, no later than 45 days after the expiration of a Letter 
of Authorization. The reports 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 unclassified analysis of new passive sonar 
technologies and an assessment of whether such a system is feasible as 
an alternative to SURTASS LFA sonar.
    (d) The Navy will continue to assess the data collected by its 
undersea arrays and work toward making some portion of that data, after 
appropriate security reviews, available to scientists with appropriate 
clearances. Any portions of the analyses conducted by these scientists 
based on these data that are determined to be unclassified after 
appropriate security reviews will be made publically available. The 
Navy will provide a status update to NMFS when they submit their annual 
application.
    (e) Following the Scientific Advisory Group's (SAG) submission of 
findings, and assuming the SAG recommends going forward with beaked 
whale and/or harbor porpoise monitoring/research, the Navy will either:
    (1) Draft a plan of action outlining their strategy for 
implementing the SAG's recommendations; or
    (2) Describe in writing why none of the SAG's recommendations are 
feasible and meet with NMFS to discuss any other potential options.


Sec.  218.237  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.  218.230 must apply for and obtain a Letter of Authorization in 
accordance with Sec.  216.106.
    (b) The application for 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 area(s) where the vessel's 
activity will occur;
    (2) The species and/or stock(s) of marine mammals likely to be 
found within each area;
    (3) The type of incidental taking authorization requested (i.e., 
take by Level A and/or Level B harassment);
    (4) The estimated percentage and numbers of marine mammal species/
stocks potentially affected in each area for the 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.  218.238  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 renewal conditions in Sec.  218.239.
    (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

[[Page 50322]]

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 take.
    (c) Issuance of a letter of authorization will be based on a 
determination that the level of taking will be consistent with the 
findings made for the total taking allowable under these regulations.
    (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.  218.239  Renewal of Letters of Authorization.

    (a) A Letter of Authorization issued for the activity identified in 
Sec.  218.230 may be renewed upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec.  218.237 will be undertaken and that 
there will not be a substantial modification to the described activity, 
mitigation or monitoring undertaken during the upcoming period;
    (2) Notification to NMFS of the information identified in Sec.  
218.237(c);
    (3) Timely receipt of the monitoring reports required under Sec.  
218.236, 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 Sec. Sec.  218.234, 218.235, and 
218.236 and the previous Letter of Authorization were undertaken and 
will be undertaken during the upcoming period of validity of a renewed 
Letter of Authorization; and
    (5) A determination by NMFS that the level of taking will be 
consistent with the findings made for the total taking allowable under 
these regulations.
    (b) If a request for a renewal of a Letter of Authorization 
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 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.  218.240  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 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, without modification, except for the period 
of validity and a listing of planned operating areas, or for moving the 
authorized SURTASS LFA sonar system from one ship to another, is not 
considered a substantial modification.
    (b) If NMFS 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.  218.230(b)(1), (2), or (3), NMFS may modify 
a Letter of Authorization without prior notice and opportunity for 
public comment. Notification will be published in the Federal Register 
within 30 days of the action.


Sec.  218.241  Adaptive Management.

    NMFS may modify (including through addition or deletion) or augment 
the existing mitigation or monitoring measures (after consulting with 
the Navy regarding the practicability of the modifications) if doing so 
creates a reasonable likelihood of more effectively accomplishing the 
goals of mitigation and monitoring set forth in the preamble of these 
regulations. NMFS will provide a period of 30 days for public review 
and comment if such modifications are substantial. NMFS and the Navy 
will meet annually (if deemed necessary by either agency) to discuss 
the monitoring reports, Navy research and development outcomes, current 
science, and determine whether mitigation or monitoring modifications 
are appropriate. Below are some of the possible sources of new data 
that could contribute to the decision to modify the mitigation or 
monitoring measures:
    (a) Results from the Navy's monitoring from the previous year's 
operation of SURTASS LFA sonar.
    (b) Compiled results of Navy-funded research and development 
studies.
    (c) Results from specific stranding investigations.
    (d) Results from general marine mammal and sound research funded by 
the Navy or other sponsors.
    (e) Any information that reveals marine mammals may have been taken 
in a manner, extent or number not anticipated by these regulations or 
subsequent Letters of Authorization.
[FR Doc. 2012-20214 Filed 8-14-12; 4:15 pm]
BILLING CODE 3510-22-P