Taking and Importing Marine Mammals: Taking Marine Mammals Incidental to U.S. Navy Operations of Surveillance Towed Array Sensor System Low Frequency Active Sonar, 50289-50322 [2012-20214]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 77, Number 161 (Monday, August 20, 2012)]
[Rules and Regulations]
[Pages 50289-50322]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-20214]



[[Page 50289]]

Vol. 77

Monday,

No. 161

August 20, 2012

Part IV





Department of Commerce





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National Oceanic and Atmospheric Administration





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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]]


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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.

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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: https://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: https://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

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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

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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

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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

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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, av