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

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URL: https://www.frixlaw.com/law-library/documents/fr%3A2012-20214

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** August 20, 2012
- **Citation:** 77 FR 50290

## Text

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

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

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° 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° 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 µPa 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 a 7.5% duty cycle.
240
Regular Overhaul
31

Total Days on Mission
294
Total Days off Mission
71.

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

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

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 µPa 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 µPa 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 µPa 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 µPa 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 µPa within an OBIA, or for Navy to operate within an OBIA: (1) When it is operationally necessary for the Navy

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.

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

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 µPa 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 µPa 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 µPa
.
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

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 µPa. We also note that sound pressure levels will not exceed approximately 175 dB re: 1 µPa 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 µPa 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 μPa. 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 μPa, 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 μPa 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

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 µPa. 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° S to 21° 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),

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

Marine area

Number
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.).

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 μPa 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 μPa.

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,

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 μPa 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 μPa. 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

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)

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 μPa.

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 μPa.

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

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 μPa 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

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 μPa 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°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 μPa 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 Me

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2012-20214. Public record. Not legal advice.