National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comment.
NMFS has received an application from the U.S. Navy requesting a Letter of Authorization (LOA) for the take of small numbers of marine mammals by harassment incidental to Navy operations of the Surveillance Towed Array Sensor System (SURTASS) Low Frequency Active (LFA) Sonar. By this document, NMFS is proposing regulations to govern that take. In order to issue the LOA and issue final regulations governing the take, NMFS must determine that the taking will have a negligible impact on the affected species and stocks of marine mammals, will (if appropriate through implementation of appropriate mitigation measures) be at the lowest level practicable, and will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses. NMFS invites comment on the application, and the regulations.
Comments must be postmarked no later than May 3, 2001. A petition requesting NMFS to hold a public hearing must be submitted no later than April 3, 2001. Comments will not be accepted if submitted via e-mail or the Internet.
Comments regarding the burden-hour estimate or any other aspect of the collection of information requirement contained in this rule should be sent to the Chief, and to the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Attention: NOAA Desk Officer, Washington, DC 20503.
Comments should be addressed to Donna Wieting, Chief, Marine Mammal Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-3226. A copy of the application, a list of references used in this document and a list of principal commenters on this action, are available and may be obtained by writing to this address or by telephoning the contact listed here (see
Kenneth R. Hollingshead (301) 713–2322, ext. 128.
Section 101(a)(5)(A) of the Marine Mammal Protection Act (MMPA) (16 U.S.C. 1361 et seq.) directs the Secretary of Commerce (Secretary) to allow, upon request, the incidental, but not intentional taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and regulations are issued.
Permission may be granted for periods of 5 years or less if the Secretary finds that the taking will be small, have a negligible impact on the species or stock(s) of affected marine mammals, and will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses, and if regulations are prescribed setting forth the permissible methods of taking and the requirements pertaining to the monitoring and reporting of such taking.
On August 12, 1999, NMFS received an application from the U.S. Navy requesting a small take exemption under section 101(a)(5)(A) of the MMPA for the taking of marine mammals incidental to operation of the SURTASS LFA sonar for a period of time not to exceed 5 years, beginning in FY 2000. SURTASS LFA sonar will operate a maximum of 4 ship systems in the 10 geographic operating regions in which SURTASS LFA sonar could potentially operate. There would be a maximum of four SURTASS LFA sonar systems with a nominal maximum of two systems at sea at any one time.
The SURTASS LFA sonar system is a long-range, low frequency (between 100 and 500 Hertz) sonar that has both active and passive components. It does not rely on detection of noise generated by the target. The active component of the system is a set of low frequency (LF) acoustic transmitting source elements (called projectors) suspended from a cable from underneath a ship. The projectors are devices that produce the active sound or pulse.
The purpose of SURTASS LFA sonar is to provide the Navy with a reliable and dependable system for long-range detection of quieter, harder-to-find submarines. LF sound travels in seawater more effectively and for greater distances than higher frequency sound used by most other active sonars. The SURTASS LFA sonar system would meet the Navy’s need for improved detection and tracking of new-generation submarines at a longer range. This would maximize the opportunity for U.S. armed forces to safely react to, and defend against, potential submarine threats while remaining a safe distance beyond a submarine’s effective weapons range.
The typical SURTASS LFA sonar signal is not a constant tone, but rather a transmission of various waveforms that vary in frequency and duration. A complete sequence of sound transmissions is referred to as a “ping” and can last for as short as 6 seconds (sec) to as long as 100 sec. The time between pings is typically from 6 to 15 minutes. Average duty cycle (ratio of sound “on” time to total time) can be controlled but is less than 20 percent; typical duty cycle is between 10 and 20 percent.
The passive or listening component of the system is SURTASS, which detects returning echoes from submerged objects, such as submarines, through the use of hydrophones. The hydrophones are mounted on a horizontal array that is towed behind the ship. The SURTASS LFA sonar ship maintains a minimum speed of 3.0 knots (5.6 km/hr; 3.4 mi/hr).
The Navy anticipates that a nominal SURTASS LFA sonar deployment schedule for a single vessel would involve about 270 days/year at sea (underway). A nominal at-sea mission would occur over a 30-day period, made up of two 9-day exercise segments. Active sonar operations could be conducted up to 20 hrs during an exercise day, although the system would actually be transmitting for only a maximum of 4 hrs/day (resulting in 432 hrs of active transmission time per year for each SURTASS LFA sonar system in operation based on a maximum duty cycle of 20 percent). The remaining 12 days of the at-sea mission would be spent in transit or repositioning the vessel. In a nominal year there could be a maximum of 9 missions, six of which would involve the employment of SURTASS LFA sonar in the active mode and three of which would employ the SURTASS LFA sonar in the passive mode. Between missions, an estimated 95 days would be spent in port for upkeep and repair. With two vessels in the Pacific-Indian Ocean area and two vessels in the Atlantic Ocean-Mediterranean Sea area, there could be up to 12 operations in each of these oceanic areas per year.
At present, only one SURTASS LFA sonar system is available for deployment. A second SURTASS LFA sonar system is expected to be available in FY 2001. The third and fourth systems are tentatively planned for FY 2003 and FY 2004, but their delivery may be postponed until after FY 2005. With 4 systems, a nominal maximum of two vessels would be at sea at any one time. As a result, under 5-year regulations NMFS proposes to authorize marine mammal harassment takings for 2 SURTASS LFA sonar vessels for FY 2000 through FY 2002, 3 vessels for FY 2003, and 4 vessels for FY 2004, recognizing, however, that there may not be more than 2 vessels operating within the 5-year window of these proposed regulations.
On October 22, 1999 (64 FR 57026), NMFS published an Advance Notice of Proposed Rulemaking (ANPR) on the U.S. Navy application and invited interested persons to submit comments, information, and suggestions concerning the application and the structure and content of regulations, if the application is accepted. During the 30-day comment period on that notice, significant comments were received from several organizations and individuals. A list of organizations and individuals whose comments are analyzed in this document is available upon request. Additionally, a large number of letters, form letters, and petitions were received. Comments regarding NMFS’ responsibilities under the MMPA, the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA) are addressed in this document. Comments to the Navy regarding the Navy’s draft Overseas Environmental Impact Statement/Environmental Impact Statement (OEIS/EIS) that were attached to the comments on the ANPR, and those comments regarding the scope, content, and adequacy of the Navy draft OEIS/EIS, and the Navy’s marine mammal scientific research program have been addressed in the Navy's Final OEIS/EIS.
NMFS believes that the regions described in this proposed rule are in keeping with Congress’ legislative intent in enacting this provision. Although SURTASS LFA sonar requires fairly large geographic regions because of the Navy’s need to deploy the system on a world-wide basis, these areas have been selected so as to retain similar biological characteristics within each region. As a result, NMFS believes that these areas are large enough to accomplish the specified activity without being so large that the effects on marine mammals will not be substantially the same.
It should be noted that the regions described in this proposed rule differ from those contained in the Navy’s original application and described in the ANPR. Based on a suggestion made by NMFS in the ANPR, the U.S. Navy revised its original proposal for 10 regions to one that proposes to adopt, with modification, the United Nation Food and Agriculture Organization’s (FAO) division of the world’s oceans into 16 distinct areas as shown in this document as Figure 1. (See FAO, 1971. The Fish Resources of the Ocean. Fishing News Books (Ltd). Surry England). These regions are described later in this document. Additionally, coastal areas and Arctic and Antarctic waters would be excluded from SURTASS LFA sonar operations. NMFS proposes to issue an LOA for each individual SURTASS LFA sonar system which will list the area(s) in which the deployment vessel plans to operate. As a result, NMFS believes the designated areas closely approximate the distribution of affected marine mammal species and will allow NMFS to implement appropriate mitigation and monitoring measures. One aspect of marine mammal distribution not taken into account by these areas is the shift in marine mammal distribution due to changes in oceanographic physiography. However, NMFS believes that it would be impractical to attempt to structure regulations specifying migratory corridors. While NMFS believes that little would be accomplished by further subdivision of the world’s oceans, it welcomes additional comments on this preliminary determination.
NMFS also disagrees with the commenters' suggestion that the application should not be accepted because it is world-wide in scope and thus is more extensive than any activity previously authorized. Although no world-wide authorizations have previously been granted, NMFS does accept applications, and issue authorizations, for similar activities in more than a single geographic region. For example, seismic surveys for oil and gas exploration may be conducted concurrently in the U.S. Beaufort Sea, southern California waters, and, in the Gulf of Mexico. Similar to SURTASS LFA sonar operations, each seismic survey employs a large vessel slowly towing a high-intensity, LF sound source. If warranted, small take authorizations should be available to these activities.
NMFS does not believe that Congress intended NMFS to issue separate regulations governing taking for each “specific geographic region,” as would be one alternative. While it would be possible for NMFS to do so, NMFS believes that these regulations would be redundant and unnecessary. As a result, the proposed incidental, small take regulations for SURTASS LFA sonar have been designed to be generic; LOAs issued under these regulations, would be tailored to the vessel’s specific geographic operating area and would include any appropriate prohibitions and mitigation or monitoring requirements.
Dugongs are not under the jurisdiction of NMFS. If the Navy believes that SURTASS LFA sonar may incidentally take dugongs by harassment, they should apply to the U.S. Fish and Wildlife Service for a small take authorization for this species. However, NMFS notes that the text referenced by the commenter (Jefferson et al., 1993) states that this species is found in the Indo-Pacific in coastal and inshore waters, areas where SURTASS LFA sonar will not operate.
Because of the offshore nature of SURTASS LFA sonar operations, the Navy does not believe that there is a potential for SURTASS LFA sonar to result in marine mammal stranding incidents. Under the Navy’s LTM program however, the Navy plans to coordinate with principal world-wide marine mammal stranding networks and report any correlations between SURTASS LFA sonar operations and stranding events to NMFS. However, because the Navy has not requested an incidental take by mortality (as in a stranding event), an LOA, if issued, would not authorize this form of taking. Under regulations found at § 216.106(e), an LOA may be modified, suspended or revoked if a marine mammal is taken by a method that is not authorized.
However, NMFS does not agree that the proposed incidental takings would result in more than minimal levels of serious injury. Because serious injury is unlikely to occur unless a marine mammal is well within the 180 dB SURTASS LFA sonar safety zone and close to the source, and because the closer the mammal is to the vessel, the more likely it will be detected, and the SURTASS LFA sonar operation suspended, the potential for serious injury to occur is minimal.
For mitigation effectiveness for harassment and non-serious injury, NMFS recommends reviewers study the last column of Table 4–10 of the application (Table 4.2–10 of the OEIS/EIS). The last column lists the reduction of potential for effects on marine mammals.
In its application, the Navy states that there is a remote possibility that two sources may be operating in the same geographic area at the same time. NMFS intends to base its negligible impact assessment on that scenario. If LOAs are issued, the use of more than two SURTASS LFA sonar sources operating at the same time within the same specific geographic area would be considered a violation of the LOA.
Comment 23: Several commenters questioned the use of a 180 dB criterion for suspension of transmissions, since far lower SPLs have been demonstrated to cause clear short-term behavioral impacts on cetaceans. If an LOA is issued, a much lower level of exposure for protected species should be required.
While the commenter is correct that behavioral modifications can be expected at lower SPLs, the proposed monitoring (visual, passive acoustic and active acoustic), is not likely to be as effective at the greater distances where these impacts are likely to occur. As a result, NMFS prefers to require the Navy to concentrate monitoring in an area wherein marine mammals are more
In order for NMFS to begin the rulemaking process for designating areas of biological importance for marine mammals, proponents must petition NMFS and submit the information described in § 216.191(a). If NMFS makes a preliminary determination that the petitioners have provided sufficient information that the area is of significant biological importance for marine mammals, NMFS will propose rulemaking to add the recommended area to the list of previously designated areas. Through notice in the
To extend the list of restrictions (referred to in this document as mitigation measures), found in § 216.184, an individual or organization would need to petition NMFS under the Administrative Procedure Act (APA) to add additional mitigation measures. Petitions would need to provide sufficient information for NMFS to determine that new rulemaking is warranted and practical.
Similarly, if more protection is needed for the marine mammals inhabiting the HIHWNMS than would be provided by making Penguin Bank an OBIA, interested parties can petition
Second, NMFS has stated previously in this document that, until the Navy provides documentation supporting its claim that the HFM3 is 70 percent effective, NMFS plans to calculate incidental take levels using just the geographic mitigation. The Navy has the option to provide additional information on the effectiveness of the HFM3 sonar during this rulemaking that NMFS may use during its final determination on this action.
NMFS does not believe the MMPA requires a delay in the issuance of an authorization until mitigation or alternative technology proves effective (as long as a negligible impact determination can be made), only that the taking be reduced to the lowest level practicable. However, NMFS encourages the Navy and others to undertake research into more effective passive acoustics.
In addition, as noted in the application, incidental take levels are estimated as a percentage of the population, and not as individual numbers of animals, and the monitoring proposed by the Navy is to ensure that Level A harassment is reduced to the lowest level practicable. As a result, as presently designed, NMFS does not consider it practical to establish, and enforce, a quota system.
In the Navy draft OEIS/EIS analysis and small take application, the Navy excluded from take consideration those marine mammal species that either do not inhabit the areas wherein SURTASS LFA sonar would operate or do not possess sensory mechanisms that allow the mammal to perceive LF sounds. Where data were not available or were insufficient for one species, comparable data for a related species were used, if available. Because all species of baleen whales produce LF sounds, and anatomical evidence strongly suggests that their inner ears are well adapted for LF hearing, all balaenopterid species are considered sensitive to LF sound and at risk from exposure to LF sounds. The ten species of baleen whales that may be affected by SURTASS LFA sonar are blue (
The odontocetes (toothed whales) that may be affected because they inhabit the deeper, offshore waters where SURTASS LFA sonar might operate include both the pelagic (oceanic) whales and dolphins and those coastal species that also occur in deep water including harbor porpoise, beluga,
Potentially affected pinnipeds include hooded seals, harbor seals (
A description of affected marine mammal species, their biology, and the criteria used to determine those species that have the potential for taking by harassment are provided and explained in detail in the Navy application and draft OEIS/EIS and, although not be repeated here, are considered part of the record of decision on this matter.
The effects of underwater noise on marine mammals are highly variable, and can be categorized as follows (based on Richardson
The analysis of potential impacts on marine mammals from SURTASS LFA sonar was developed by the Navy based on the results of a literature review, the Navy’s LF Sound Scientific Research Program (LFS SRP), and a complex, comprehensive program of underwater acoustical modeling. To assess the potential impact on marine mammals by the SURTASS LFA sonar source operating at a given site, it was necessary for the Navy to predict the sound field that a given marine mammal species could be exposed to over time. This is a multi-part process involving (1) the ability to measure or estimate an animal’s location in space and time, (2) the ability to measure or estimate the three-dimensional sound field at these times and locations, (3) the integration of these two data sets to estimate the total acoustic exposure for each animal in the modeled population, (4) converting the resultant cumulative exposures for a modeled population into an estimate of the risk from a significant disturbance of a biologically important behavior, and (5) converting these estimates of behavioral risk into an assessment of risk in terms of the level of potential biological removal.
Next, as discussed later in this document, a relationship for converting the resultant cumulative exposures for a modeled population into an estimate of the risk to the entire population of a significant disruption of a biologically important behavior and of injury was developed. This process assessed risk in relation to received level (RL) and repeated exposure. The resultant “risk continuum” is based on the assumption that the threshold of risk is variable and occurs over a range of conditions rather than at a single threshold.
Taken together, the LFS SRP results, the acoustical modeling, and the risk assessment, provide an estimate of potential environmental impacts to marine mammals.
The acoustical modeling process was accomplished using the Navy’s standard acoustical performance prediction transmission loss model-Parabolic Equation (PE) version 3.4. The results of this model are the primary input to the Acoustic Integration Model (AIM). AIM was used to estimate marine mammal sound exposures and essentially integrates simulated movements (including dive patterns) of marine mammals, a schedule of SURTASS LFA sonar transmissions, and the predicted sound field for each transmission to estimate acoustic exposure during a hypothetical SURTASS LFA sonar operation. Description of the PE and AIM models, including AIM input parameters for animal movement, diving behavior, and marine mammal distribution, abundance, and density are described in detail in the Navy application and the draft OEIS/EIS and are not discussed further in this document. NMFS recommends reviewers read these documents if additional information is desired.
Using the AIM model, the Navy developed 31 acoustic modeling scenarios for the major ocean regions (which are described in the application and draft OEIS/EIS). Locations were carefully selected by the Navy to represent the highest potential effects for each of the three major ocean acoustic regimes where SURTASS LFA sonar would be employed. These acoustic regimes were: (1) Deep-water convergence propagation zone, (2) near surface duct propagation zone, and (3) shallow water bottom interaction propagation zone. These scenarios represent the condition under which, on average, the greatest number of animals could be exposed to the greatest number of pings at the highest RLs and were considered the most severe conditions that could be expected from operation of the SURTASS LFA sonar system. Thus, if SURTASS LFA sonar operations were conducted in an area that was not acoustically modeled, the Navy believes the potential effects would most likely be less than those obtained from the most similar scenario in the analysis. The modeled scenarios were then used by the Navy to estimate the percentages of marine mammal stocks potentially affected.
In order to determine the potential impacts that exposure to LF sound from SURTASS LFA sonar operations could have on marine mammals, biological risk standards were defined by the Navy with associated measurement parameters. Based on the MMPA, the potential for biological risk was defined as the probability for injury or behavioral harassment of marine mammals. In this analysis, behavioral harassment is defined as a significant disturbance of a biologically important behavior. The potential for biological risk is a function of an animal’s exposure to a sound that would potentially cause hearing, behavioral, psychological or physiological effects. The measurement parameters for
The Navy interprets the results of the LFS SRP to justify use of unlimited exposure during a mission to 120 dB as the lowest value for risk. Below this level, the risk of a biologically significant response from marine mammals approaches zero. It is important to note that risk varies with both level and number of exposures.
In the draft OEIS/EIS and small take application, the Navy calculated the risks for take by non-serious injury based on criteria of 180 dB, which, based on Ridgway
Because the LFS SRP failed to document any extended biologically significant response at maximum RLs up to 150 dB, the Navy determined that there was a 2.5-percent value of a risk of an animal incurring a disruption of biologically important behavior at an SPL of 150 dB, a 50-percent risk at 165 dB, and a 95-percent risk at 180 dB.
This analysis of risk is used by the Navy as an alternative to an all-or-nothing use of standard thresholds for the onset of either behavioral change or injury. The subsequent discussion of risk function emphasizes the advantages of using a smoothly varying model of biological risk in relation to sound exposure. However, for the purposes of estimating the number of individuals that could potentially be injured from SURTASS LFA sonar operations, this document uses a simpler calculation. Given the low numbers of individual marine mammals that could potentially experience high received levels, the added complexity of an “injury continuum” was not deemed necessary by the Navy.
When SURTASS LFA sonar transmits, there is a boundary which will enclose a volume in which received levels exceed 180 dB, and a volume outside this boundary which experiences received levels below 180 dB. In this analysis, the 180-dB boundary is emphasized because it represents a single-ping RL that can be considered to be a scientifically reasonable estimate for the potential onset of harm or injury. Therefore, the level of risk for marine mammals depends on their location in relation to SURTASS LFA sonar. As mentioned previously, the Navy scientific team established the threshold for risk of harm as a single ping at 180 dB (Navy, 1999b). Harm was defined in this context as onset TTS. Under the Navy proposal, a marine mammal would have to receive one ping greater than, or equal to 180 dB or many pings at a slightly lower RL to potentially incur non-serious injury. For serious injury, the animal would have to be well within the 180-dB sound field at the onset of a transmission.
However, NMFS scientists and other scientists are in general agreement that TTS is not an injury (i.e., does not result in tissue damage) but is an impairment to hearing (resulting in an increased elevation in hearing sensitivity) that may last for a few minutes to a few days, depending upon the level and duration of exposure. In addition, there is no evidence that TTS would occur in marine mammals at an SPL of 180 dB, and, in fact, Schlundt
While, the Navy believes that the probability of a marine mammal occurring within the 180-dB sound field at the onset of a transmission is nearly zero because of the proposed monitoring program (described later in this document), because the monitoring is not 100 percent effective, some Level A harassment takings still need to be considered possible.
Before the biological risk standards could be applied to realistic SURTASS LFA sonar operational scenarios, two factors had to be considered by the Navy which resulted in the development of the risk continuum approach: (1) How does risk vary with repeated sound exposure? and (2) how does risk vary with RL? These questions have been addressed by the Navy by developing a function that translates the history of repeated exposures (as calculated in the AIM) into an equivalent RL for a single exposure with a comparable risk. This approach is similar to those adopted by previous studies of risk to human hearing (Richardson
It is intuitive to assume that effects would be greater for repeated exposures than for a single ping. However, because no published data on repeated exposures of LF sound on marine mammals exist, the Navy turned to the most applicable human data. Based on the analysis of Richardson
The potential effects on marine mammals from operation of SURTASS LFA sonar will not cause the direct removal of animals, but may result in a small reduction of an affected individual animal’s overall reproductive
To estimate the percentage of marine mammal stocks affected on a yearly basis, the typical annual operating schedule for SURTASS LFA sonar was correlated by the Navy to the modeled site scenarios. Even though the Navy may not have the maximum number of systems operating during the next 5 years, its analysis incorporated four systems with six operations each annually. With two vessels in the Pacific/Indian Ocean area and two vessels in the Atlantic/Mediterranean area, the Navy estimates there could be up to 12 operations in each of these oceanic basin areas. Using a total of 12 operations in each large geographic area (e.g., Eastern North Pacific, Western North Atlantic), the Navy calculated take estimates based on a 20-day exercise (actually under the nominal schedule mentioned previously in this document the Navy proposes two 9-day exercises or a total of 18 days, not 20 days of exercise). NMFS concurs with this approach but notes that because only 2 SURTASS LFA sonar vessels will be available through 2002, possibly 3 vessels during 2003, and possibly 4 vessels during 2004 and 2005, the Navy’s projected incidental harassment levels found in the draft OEIS/EIS and application are overestimates of potential harassment levels during the early period of these regulations. NMFS estimates, therefore, that there would be a total of 12 active missions annually during the first two years of these regulations (6 in each ocean basin), 18 during the third year (6 in one ocean basin, 12 in the other), and the maximum of 24 active missions during the last 2 years of these regulations (12 in each of the two ocean basins).
AIM Modeling in Table 4–10 in the application (Table 4.2–10 in the draft OEIS/EIS) provides estimates of the percentage of stocks potentially affected for single SURTASS LFA sonar operations. Tables 4–12 and 4–13 in the application (Tables 4.2–12 and 4.2–13 in the draft OEIS/EIS) provide an example of annual total estimates of percentages of marine mammal stocks potentially affected by a total of 24 operations (12 in each of the two ocean basins). As mentioned previously however, this number of operations are unlikely until the latter part of the effectiveness period of these regulations. Also, because each oceanic area is assumed to contain one or more discrete stocks of each affected species, these estimates are not additive when determining effects on marine mammal stocks. It should also be recognized that the scenarios chosen by the Navy are not the only possible combinations of where the SURTASS LFA sonar will operate. The potential effects from other scenarios can be estimated by those so wishing to do so by presupposing the areas in which the Navy would conduct SURTASS LFA sonar operations annually in each oceanic basin area, determining from Table 4–10 the percentage of each stock that may potentially be affected, and adding those percentages together for each affected stock. This is what NMFS proposes to do annually for each LOA issued. Also, as pertinent new information becomes available that would improve the Navy model, NMFS anticipates that the Navy could rerun the AIM models and recalculate take estimates. For this document however, NMFS is preliminarily adopting the Navy estimates shown in Tables 4–12 and 4–13 as the best information available in that they are based on the most likely scenario with two systems operating in each of the two oceanic areas. As indicated either by using these two tables, or by choosing a different combination of potential geographic areas for SURTASS LFA sonar operations derived from Table 4–10, NMFS believes that the potential effect by SURTASS LFA sonar operations will be limited to only small percentages of the affected stocks of marine mammals and that potential effect will be limited to incidental harassment that will not adversely affecting the stock through annual rates of recruitment or survival.
This document preliminarily adopts the Navy proposal to use visual, passive acoustic, and active acoustic monitoring of the area surrounding the SURTASS LFA sonar array to prevent the incidental injury of marine mammals that might enter the 1 km (0.54 nm) safety zone. The three monitoring systems are described in the following section of this document. If a marine mammal (or sea turtle) was detected within the 1 km (0.54 nm) safety zone SURTASS LFA sonar transmissions would be immediately delayed or suspended. Transmissions could commence/resume 15 minutes after the marine mammal/sea turtle had left the area of the 180 dB sound field or there was no further detection of the animal within the 180 dB sound field. The protocol established by the Navy for implementing this temporary shut-down is described in the application (pages 10–11). SURTASS LFA sonar operators would be required to estimate SPLs prior to and during each operation to provide the information necessary to modify the operation, including delay or suspension of transmissions, in order not to exceed the mitigation sound field criteria.
The Navy has proposed that the SURTASS LFA sonar operations would be conducted to ensure that the sound field does not exceed 180 dB (i.e., the zone of potential for injury to marine mammals) within 12 nm (22 km) of any coastline, including islands, nor in OBIAs that are outside the 12 nm (22 km) zone during the biologically important season(s) for that particular area. It should be noted that the 12 nm (22 km) safety zone restriction includes almost all marine-related critical habitats and National Marine Sanctuaries. Areas critical for marine mammals that are outside this safety zone can be nominated as an OBIA. This process was described earlier in this document.
In addition, to establishing a safety zone at 180 dB to protect marine mammals and other noise sensitive marine animals, the Navy has proposed to establish a safety zone for human divers at 145 dB re 1 microPa(rms) around all known human commercial and recreational diving sites. Although this geographic restriction is intended to protect human divers, its imposition will also reduce the LF sound levels received by marine mammals that are located in the vicinity of known dive sites.
The Navy has proposed establishing OBIAs for marine mammal protection. These areas are defined as those areas of the world’s oceans where marine mammals congregate in high densities to carry out biologically important activities such as feeding, migration, breeding, and calving. To date, the U.S. Navy has proposed three sites as OBIAs for SURTASS LFA sonar under these regulations. These areas are: (1) the North American East Coast between 30° N and 50°N from west of 40°W to the 200–m (656 ft) isobath; (2) the Antarctic Convergence Zone, from 20°E to 120°E, south of 55°S, from October through March; and (3) the Costa Rica Dome, centered at 9°N and 88°W, year-round. Also, an area included in this document, at the request of NOAA’s National Ocean Service, is Penguin Bank off the Island of Kauai, Hawaii, inside the HIHWNMS. In addition, the Navy in its application, and NMFS in this document, is proposing a system for expanding the list of OBIAs. This process is described in more detail in NMFS’ response to comment 25 earlier in this document.
It should be recognized however, that the establishment of OBIAs is not
In order to minimize risks to potentially affected marine mammals that may be present in waters surrounding SURTASS LFA sonar, the Navy has proposed to: (1) Conduct visual monitoring from the ship’s bridge during daylight hours, (2) use passive SURTASS LFA sonar to listen for vocalizing marine mammals; and (3) use high frequency active sonar (i.e., similar to a commercial fish finder) to monitor/locate/track marine mammals in relation to the SURTASS LFA sonar vessel and the sound field produced by the SURTASS LFA sonar source array.
Through observation, acoustic tracking and establishment of shut-down criteria, the Navy will ensure, to the greatest extent practicable, that no marine mammals approach the SURTASS LFA sonar source closely enough to be subjected to potentially harmful sound levels (inside the 180 dB sound field; approximately 1 km (0.54 nm) from the source). The Navy estimates that the probability of detecting a marine mammal within the 180 dB sound field of the source array by at least one of these monitoring methods is between 70 and 99 percent. However, nominally, an effectiveness of 80 percent is used in the take calculations. The Navy’s assumption incorporates the 70-percent effectiveness of the HFM3 sonar, and an additional conservative 5-percent contribution each for visual and passive monitoring. In general, the Navy believes that small, solitary marine mammals would be the most difficult to detect, while large whales and dolphin schools would be much easier to detect. However, as stated previously in this document, NMFS will not consider the effectiveness of the HFM3 sonar in reducing the incidental take of marine mammals by the SURTASS LFA sonar until such time as the Navy has demonstrated its effectiveness. In the meantime, NMFS will adopt only the geographic mitigation as being effective in reducing takes.
NMFS has reviewed this Navy proposal and believes that the proposal can be modified to provide additional protection for marine mammals. Because the HFM3 has the capability to detect marine mammals, and track them, to a distance of 2 km (1.1 nm) from the source, NMFS is proposing to require the Navy to terminate transmissions whenever a marine mammal can receive a calculated SPE of 180 dB within the zone of detectability. This will require, however, both that the marine mammal remains within the zone of detectability between “pings” while the vessel is underway, and for the Navy to continue to monitor the 2 km (1.1 nm) zone between pings. Because the time between “pings” is 6–15 minutes, and the Navy has already committed to visual and acoustic monitoring for no less than 30 minutes prior to a “ping,” monitoring will continue during the interim period and marine mammals will continue to be tracked.
During routine operations of SURTASS LFA sonar, technical and environmental data would be collected and recorded. These would include data from visual and acoustic monitoring, ocean environmental measurements, and technical operational inputs. This information would become part of the data required from the LTM Program.
The Navy proposes to provide a LTM program to conduct annual assessments of the potential cumulative impact of SURTASS LFA sonar operations on the marine environment, provide the necessary reporting to increase knowledge of the species, and to coordinate research opportunities and activities. This would include cumulative impact analyses of the annually tabulated injuries (if any) and harassments over the next 5 years. The purpose of the LTM program would be to continue scientific data collection once SURTASS LFA sonar is deployed.
While NMFS believes that research conducted to date is sufficient to assess impacts on those species of marine mammals that were identified in public meetings as most susceptible to LF noise, it believes that it would be prudent to continue research over the course of the period of effectiveness of these regulations.
The proposed regulations have been designed to allow many of the mitigation, monitoring and reporting requirements to be detailed in the LOA, rather than in these regulations. This has been done to provide NMFS the ability to change these protective measures in a prompt manner to changing conditions. While public comment will be provided for substantial modifications to LOA requirements before being made effective, modifications can be implemented in a shorter period of time if contained in LOAs than would be possible if rulemaking were required for each modification. It should be understood that the public would be provided a comparable length of time for commenting on LOA modifications (except when NMFS determines that an emergency exists which impacts on the health and welfare of the marine mammal), whether or not those requirements were contained in regulations. However, for security reasons, locations and times for certain operations may need to be classified and not provided to the public.
In the past, NMFS has promulgated rulemakings for small take authorizations that did not clearly describe LOA conditions. For this activity NMFS plans the following conditions (in addition to, or in clarification of, those found in these regulations).
(1) Prior to each exercise, the marine mammal safety zone will be measured to determine the distance from the source to the 180-dB isobleth. That distance will be the established safety zone for that exercise; and
(2) The Navy must test the effectiveness of HFM3 at detecting marine mammals within 0.5 km (0.3 nm), 1 km (0.54 nm) and 2 km (1.1 nm) of the source. A report must be provided to NMFS not later than 120 days prior to the expiration of the first LOA.
NMFS is proposing to establish a system under this proposed rule for the public to be able to propose areas for NMFS to consider adding to the list of biologically important areas for marine mammals. NMFS emphasizes that, in order for designation, an area must be of particular importance for marine mammals as an area for primary feeding, breeding, or migration, and not simply an area occupied by marine mammals. The proposed area should also not be within a previously designated area. In order for NMFS to begin the rulemaking process for designating areas of biological importance for marine mammals, proponents must petition NMFS and submit the information described in § 216.191(a). If NMFS makes a preliminary determination that the area is biologically important for marine mammals, NMFS will propose rulemaking to add the recommended area to the list of previously designated areas. Through notice in the
Based on the scientific analyses detailed in the Navy application and further supported by information and data contained in the Navy’s draft OEIS/EIS for SURTASS LFA sonar operations, NMFS concurs with the Navy that the incidental taking of marine mammals resulting from SURTASS LFA sonar operations would result in only small numbers (as the term is defined in § 216.103) of marine mammals being taken, have no more than a negligible impact on the affected marine mammal stocks or habitats and not have an unmitigable adverse impact on Arctic subsistence uses of marine mammals. These conclusions are particularly supported by the proposed mitigation measures that would be implemented for all SURTASS LFA sonar operations and the proposed LTM program. This includes geographic operation restrictions, mitigation measures to prevent injury to any marine mammals, monitoring and reporting and supplemental research that will result in increased knowledge of marine mammal species, and the potential impacts of LF sound on these species. The latter measures offer the means of learning of, encouraging, and coordinating research opportunities, plans, and activities relating to reducing the incidental taking of marine mammals from anthropogenic underwater sound, and evaluating the possible long-term effects from exposing marine mammals to anthropogenic underwater sound.
In addition to the mitigation measures described previously, the following factors need to be considered when determining whether a taking would be negligible: (1) The small number of SURTASS LFA sonar systems that will be operating world-wide; (2) the vessel must be underway while transmitting (in order to keep the receiver array deployed); (3) the low duty cycle and short mission periods; and (4) the possibility of a marine mammal being within the 180-dB sound field during sonar transmissions is unlikely.
NMFS requests interested persons and organizations to submit comments, information, and suggestions concerning the content of the proposed regulations to authorize the taking. All commenters are requested to review the application prior to submitting comments and not submit comments solely on this
On July 30, 1999 (64 FR 41420), the Environmental Protection Agency (EPA) announced receipt of a draft OEIS/EIS from the U.S. Navy on the deployment of SURTASS LFA sonar. The public comment period on the Draft EIS ended on October 28, 1999. On February 2, 2001 (65 FR 8788), EPA announced receipt of a final OEIS/EIS from the U.S. Navy on the deployment of SURTASS LFA sonar. NMFS is a cooperating agency, as defined by the Council on Environmental Quality (40 CFR 1501.6), in the preparation of these documents.
NMFS will be consulting with the U.S. Navy under section 7 of the ESA on this action. In that regard, on October 19, 1999, the Navy has submitted to NMFS a Biological Assessment under the ESA. This consultation will be concluded prior to a determination on issuance of a final rule and exemption.
This action has been determined to be significant for purposes of E.O. 12866. NMFS has preliminarily determined that this rule, if implemented, will provide NMFS and the public, through the Navy’s monitoring and research program, with information on the SURTASS LFA sonar system’s effect on the marine environment, especially on marine mammals. Without an authorization under the MMPA, NMFS and the public are unlikely to receive this information. NMFS believes that obtaining this information is extremely important because SURTASS LFA sonar is not the only LF noise source in the world’s oceans, and the scientific findings resulting from monitoring and research is likely to be directly applicable to other activities. In addition, this rule, if implemented, and any LOAs issued thereunder, would impose appropriate mitigation measures for protecting marine mammals, sea turtles and other marine life. Without these regulations and LOAs, mitigation measures could not be required to be undertaken by the U.S. Navy.
While a determination to eventually deploy the SURTASS LFA sonar system will be made by the Navy, NMFS notes that additional benefits for implementing this proposed rule is an increased level of national defense, and improved survivability of U.S. armed forces at sea, and the Navy’s associated multi-billion dollar naval assets. The cost to the Navy cannot be fully determined at this time but these costs would be incurred through implementation of the LTM and LTR programs that will be required under this proposed rule. Preliminarily, NMFS believes that this cost would be approximately $ 1 million annually.
The Assistant General Counsel for Legislation and Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act. If implemented, this proposed rule would affect only the U.S. Navy which, by definition, is not a small business. It will also affect a small number of contractors providing services related to reporting the impact of SURTASS LFA sonar on marine mammals. Some of the affected contractors may be small businesses, but the number involved would not be substantial. Further, since the research and reporting requirements are what would lead to the need for their services, the economic impact on them would be beneficial. Because of this certification, a regulatory flexibility analysis is not required.
Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act (PRA) unless that collection of information displays a currently valid OMB control number. This proposed rule contains collection-of-information requirements subject to the provisions of the PRA. These requirements have been approved by OMB under control number 0648-0151, and include applications for LOAs, and an annual report. Other information requirements in the rule are not subject to the PRA since they apply only to a single entity and therefore are not contained in a rule of general applicability.
The reporting burden for the approved collections-of-information are preliminarily estimated to be approximately 80 hours for each annual application for a LOA (total of 2 in FY2001-FY2002, 3 in FY 2003, and 4 in FY 2004), and 80 hours each for interim and final reports. These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection-of-information. Send comments regarding these burden estimates, or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS and OMB (see
Exports, Fish, Imports, Indians, Labeling, Marine mammals, Penalties, Reporting and recordkeeping requirements, Seafood, Transportation.
1. The authority citation for part 216 continues to read as follows:
16 U.S.C. 1361
Regulations in this subpart apply only to the incidental taking of those marine mammal species specified in paragraph (b) of this section by the U.S. Navy, Department of Defense, engaged in the operation of SURTASS LFA sonar operations, in areas specified in paragraph (a) of this section. The authorized activities, as specified in a Letter of Authorization issued under §§ 216.106 and 216.188, include the transmission of low frequency sounds from the SURTASS LFA sonar, and the transmission of high frequency sounds from the mitigation sonar, described in § 216.185 during training, testing, and routine military operations of SURTASS LFA sonar.
(a) With the exception of those areas specified in § 216.183(d), the incidental taking by harassment may be authorized in the following areas as specified in a Letter of Authorization:
(1) North Atlantic Ocean,
(i) Western North Atlantic, from 35° N. lat. north to a line between Cape Chidley, Labrador northeast to Nuuk, Greenland, and from the North American continent east to 41° W. long. (Area A),
(ii) Eastern North Atlantic, from 35° N. lat. north to 72° N. lat. and 41° W. long. east to the European continent (Area B),
(2) Mediterranean Sea (Area C),
(3) North Pacific Ocean,
(i) Western North Pacific, from 20° N. lat. north to the Aleutian Island chain and the Sea of Okhotsk, and from the Asian continent east to 175° W. long. (Area D),
(ii) Eastern North Pacific, from 42° N. lat. north to Alaska and the south side of the Aleutian Islands and from the North American continent west to 175° W. long. (Area E),
(4) Central Atlantic Ocean,
(i) Eastern Central Atlantic, from 7° S. lat. north to 35° N. lat. and from the African continent west to 40° W. long. between 5° N. lat. and 35° N. lat., to 30° W. long. between 0° lat. and 5° N. lat., and to 20° W. long. between 7° S. lat. and 0° lat. (Area F),
(ii) Western Central Atlantic, from 5° N. lat. north to 35° N. lat., and from the American continent, east to 40° W. long. (Area G),
(5) Indian Ocean,
(i) Eastern Indian Ocean, from 60° S. lat. north to the Bay of Bengal, and Asian continent, and from 80° E. long. east to the Asian continent, the Sunda Islands and Australia and to 150° E. long. (Area H1),
(ii) Western Indian Ocean, from 60° S. lat. north to the Arabian Sea, and from 30° E. long. east to 80° E. long. (Area H2),
(6) Central Pacific Ocean,
(i) Western Central Pacific, from 175° W. long., east to the Asian continent and Indonesia, and from 10° S. lat., north to 20° N. lat. (Area I),
(ii) Central Pacific, from 10° S. lat., north to 42° N. lat. between 175° W. long. and 130° W. long. (Area J1),
(iii) Eastern Central Pacific, from 5° S. lat. north along the American coastline to 42° N. lat., from 130° W. long. along 10° S. lat. to 105° W. long., from 10° S. lat. along 105° W. long. to 5° S. lat., from 105° W. long. along 5° S. lat. to the South American coastline, from 130° W. long. along 42° N. lat. to the North American coastline and from 42° N. lat. to 10° S. lat. along the 130° W. long. line (Area J2),
(7) South Pacific Ocean,
(i) Western South Pacific from 60° S. lat. north to 10° S. lat. and from the east coast of Australia in the north and 150° E. long. south of Australia east to 105° W. long. (Area K),
(ii) Eastern South Pacific from 60° S. lat. north to 5° S. lat. and from the 105° W. long. east to the South American coastline in the north and 70° W. long. in the south (Area L),
(8) South Atlantic Ocean,
(i) Western South Atlantic, from 60° S. lat. north to 5° N. lat. in the area west of 30° W. long., and from 60° S. lat. north to 0° lat. in the area east of 30° W. long. and from the South American continent east to 30° W. long. between 0° and 5° N. lat. and east to 20° W. long. between 0° and 60° S. lat. (Area M), and
(ii) East South Atlantic from 50° S. lat. north to 7° S. lat. and from 20° W. long. east to the African coastline in the north and 30° E. long. south of the continent (Area N).
(b) The incidental take by harassment and non-serious injury of marine
(i) Mysticete whales, including, blue whale (
(ii) Odontocete whales, including Risso’s dolphin (
(iii) Pinnipeds, including harbor seals (
Regulations in this subpart are effective from May 1, 2001, through April 30, 2006.
(a) Under Letters of Authorization issued pursuant to §§ 216.106 and 216.188, the Holder of the Letter of Authorization may incidentally, but not intentionally, take marine mammals by harassment and non-serious injury within the area described in § 216.180(a), provided the activity is in compliance with all terms, conditions, and requirements of these regulations and the appropriate Letter of Authorization.
(b) The activities identified in § 216.180 must be conducted in a manner that minimizes, to the greatest extent practicable, any adverse impacts on marine mammals, their habitat, and on the availability of marine mammals for subsistence uses.
Notwithstanding takings authorized by § 216.180 and by a Letter of Authorization issued under §§ 216.106 and 216.188, no person in connection with the activities described in § 216.180 shall:
(a) Take any marine mammal not specified in § 216.180(b);
(b) Take any marine mammal specified in § 216.180(b) other than by incidental, unintentional harassment or non-serious injury;
(c) Take any marine mammal while operating under a Letter of Authorization in either a non-operating area, indicated in Figure 1, or in a geographic operating area for which an authorization for taking has not been issued under a Letter of Authorization;
(d) Operate the SURTASS LFA sonar while under a Letter of Authorization, such that the SURTASS LFA sonar sound field exceeds 180 dB (re 1 micro Pa(rms)) within 12 nautical miles (22 kilometers) of any coastline, including offshore islands, or any designated offshore area that is biologically important for marine mammals that exist outside the 12 nautical miles (22 kilometers) zone during the biologically important season for that particular area.
(e) The following areas have been designated by NMFS as offshore areas of critical biological importance for marine mammals (by season if appropriate):
(f) Take a marine mammal specified in § 216.180(b) if such taking results in more than a negligible impact on the species or stocks of such marine mammal; or
(g) Violate, or fail to comply with, the terms, conditions, and requirements of these regulations or a Letter of Authorization issued under §§ 216.106 and 216.188.
The activity identified in § 216.180(a) must be conducted in a manner that minimizes, to the greatest extent practicable, adverse impacts on marine mammals and their habitats. When conducting operations identified in § 216.180, the mitigation measures described in this paragraph and in the Letter of Authorization issued under §§ 216.106 and 216.188 must be implemented.
(a) Through monitoring described under § 216.185, the Holder of a Letter of Authorization will ensure, to the greatest extent practicable, that no marine mammal is subjected to a single ping equivalent of 180-dB within the 180-dB re 1 micro Pa(rms) sound field.
(b) If a marine mammal is detected within the 180-dB safety zone, SURTASS LFA sonar transmissions will be immediately suspended. Transmissions will not resume earlier than 15 minutes after:
(1) All marine mammals have left the area of the 180-dB re 1 micro Pa(rms) sound field; and
(2) There is no further detection of the animal within the 180-dB re 1 micro Pa(rms) sound field as determined by the visual and/or passive or active acoustic monitoring described in § 216.185.
(c) The HFM3 source, described in § 216.185 will be ramped-up slowly to operating levels over a period of no less than 5 minutes:
(1) No later than 30 minutes before the first SURTASS LFA sonar transmission;
(2) Prior to any SURTASS LFA sonar calibrations or testings that are not part of regular SURTASS LFA sonar transmissions described in paragraph (c)(1) of this section; and
(3) Anytime after the HFM3 source has been powered down for a period of time greater than 2 minutes.
(a) In order to mitigate the taking of marine mammals by SURTASS LFA sonar to the greatest extent practicable, the Holder of a Letter of Authorization must:
(1) Conduct visual monitoring from the ship’s bridge during daylight hours;
(2) Use low frequency passive SURTASS LFA sonar to listen for vocalizing marine mammals; and
(3) Use high frequency active sonar to locate and track marine mammals in relation to the SURTASS LFA sonar vessel and the sound field produced by the SURTASS LFA sonar source array.
(b) Pursuant to (a)(1)-(3) of this section monitoring must:
(1) Commence no later than 30 minutes before the first SURTASS LFA sonar transmission;
(2) Continue between transmission pings; and
(3) Continue for at least 15 minutes after completion of the SURTASS LFA sonar transmission exercise;
(c) Holders of Letters of Authorization issued pursuant to §§ 216.106 and 216.188 for activities described in § 216.180 are required to cooperate with the National Marine Fisheries Service, and any other Federal, state or local agency monitoring the impacts of the activity on marine mammals.
(d) Holders of Letters of Authorization must designate qualified on-site individuals to conduct the mitigation, monitoring and reporting activities specified in the Letter of Authorization issued pursuant to § 216.106 and § 216.188.
(e) Holders of Letters of Authorization must conduct all monitoring and/or research required under the Letter of Authorization.
(a) The Holder of a Letter of Authorization must submit an interim report to the Director, Office of Protected Resources, National Marine Fisheries Service, no later than 90 days prior to expiration of the Letter of Authorization. This report must contain all the information required by the Letter of Authorization.
(b) A final comprehensive report must be submitted to the Director, Office of Protected Resources, National Marine Fisheries Service at least 240 days prior to expiration of these regulations. This report must contain all the information required by any final year Letter of Authorization.
(a) To incidentally take marine mammals pursuant to these regulations, the U.S. Navy authority that is conducting the activity identified in § 216.180, must apply for and obtain a Letter of Authorization in accordance with §§ 216.106 and 216.188.
(b) The application for an initial, or a renewal of, a Letter of Authorization must be submitted to the Director, Office of Protected Resources, National Marine Fisheries Service, at least 90 days before the date that either the vessel is scheduled to begin conducting SURTASS LFA sonar operations or the previous Letter of Authorization is scheduled to expire.
(c) All applications for a Letter of Authorization must include the following information:
(1) The date(s), duration, and the specified geographical region where the vessel’s activity described in § 216.180 will occur;
(2) The species and/or stock(s) of marine mammals likely to be found within each specified geographical region;
(3) The type of incidental taking authorization that is being requested (i.e., take by Level A and/or Level B harassment);
(4) The estimated percentage of marine mammal species/stocks potentially affected in each specified geographic region and for the 12-month period of effectiveness of the Letter of Authorization; and
(5) The means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species, the level of taking or impacts on populations of marine mammals.
(d) NMFS will review an application for a Letter of Authorization in accordance with § 216.104(b) and, if adequate and complete, issue a Letter of Authorization for a period of time not to exceed 1 year.
(a) A Letter of Authorization, unless suspended or revoked will be valid for a period of time not to exceed one year, but may be renewed annually subject to annual renewal conditions in § 216.189.
(b) Each Letter of Authorization will set forth:
(1) Permissible methods of incidental taking;
(2) Authorized geographic areas for taking;
(3) Means of effecting the least practicable adverse impact on the species of marine mammals authorized for taking, its habitat, and on the availability of the species for subsistence uses; and
(4) Requirements for monitoring and reporting incidental takes.
(c) Issuance of each Letter of Authorization will be based on a determination that the number of marine mammals taken by the activity will be small, that the total number of marine mammals taken by the activity, specified in § 216.180, as a whole will have no more than a negligible impact on the species or stock of affected marine mammal(s), and that the total taking will not have an unmitigable adverse impact on the availability of species or stocks of marine mammals for taking for subsistence uses.
(d) Notice of issuance or denial of a Letter of Authorization will be published in the
(a) A Letter of Authorization issued under § 216.106 and § 216.188 for the activity identified in § 216.180 will be renewed annually upon:
(1) Notification to the National Marine Fisheries Service that the activity described in the application submitted under § 216.187 will be undertaken and that there will not be a substantial modification to the described work, mitigation or monitoring undertaken during the upcoming season;
(2) Notification to the National Marine Fisheries Service of the information items identified in § 216.187(c), including the planned geographic area(s), and anticipated duration of each SURTASS LFA sonar operation;
(3) Timely receipt of the monitoring reports required under § 216.185, which have been reviewed by the National Marine Fisheries Service and determined to be acceptable;
(4) A determination by the National Marine Fisheries Service that the mitigation, monitoring and reporting measures required under §§ 216.184 and 216.185 and the Letter of Authorization were undertaken and will be undertaken during the upcoming annual period of validity of a renewed Letter of Authorization; and
(5) Renewal of a Letter of Authorization will be based on a determination that the number of marine mammals taken by the activity continues to be small, that the total number of marine mammals taken by the activity, specified in § 216.180, as a whole will have no more than a negligible impact on the species or stock of affected marine mammal(s), and that the total taking will not have an unmitigable adverse impact on the availability of species or stocks of marine mammals for taking for subsistence uses.
(b) If a request for a renewal of a Letter of Authorization issued under §§ 216.106 and 216.188 indicates that a substantial modification to the described work, mitigation or monitoring will occur during the upcoming season, or if the National Marine Fisheries Service proposes a substantial modification to the Letter of Authorization, the National Marine Fisheries Service will provide the public a period of 30 days for review and comment on the requested modification. Amending the list of areas for upcoming SURTASS LFA sonar operations is not considered a substantial modification to the Letter of Authorization.
(c) A notice of issuance or denial of a renewal of a Letter of Authorization will be published in the
(a) In addition to complying with the provisions of §§ 216.106 and 216.188, except as provided in paragraph (b) of this section, no substantive modification (including withdrawal or suspension) to the Letter of Authorization issued pursuant to §§ 216.106 and 216.188 and subject to the provisions of this subpart shall be made by the National Marine Fisheries Service until after notification and an opportunity for public comment has been provided. For purposes of this paragraph, a renewal of a Letter of Authorization under § 216.189, without modification, except for the period of validity and a listing of planned operating areas, or for moving the authorized SURTASS LFA sonar system from one ship to another, are not considered substantive modifications.
(b) If the Assistant Administrator determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in § 216.180(b), a Letter of Authorization issued pursuant to §§ 216.106 and 216.188 may be substantively modified without prior notification and an opportunity for public comment. Notification will be published in the
In order for the National Marine Fisheries Service to designate areas that are considered of biological importance for marine mammals under this rule, proponents must petition the Agency by requesting an area be added to the list of biologically important areas in § 216.183(d) and submitting the following information:
(a) Geographic region proposed for consideration (including geographic boundaries) as an area of importance,
(b) A list of marine mammals, within the proposed geographic region,
(c) Whether the proposal is for year-round designation or seasonal, and if seasonal, months of years for proposed designation, and
(d) Detailed information on the biology of marine mammals within the area including estimated population size, distribution, density, status; and principal biological activity during the proposed period of designation of the area sufficient for the National Marine Fisheries Service to make a preliminary determination that the area is biologically important for marine mammals.
(e) In order for the National Marine Fisheries Service to designate an area as an offshore area of biological importance for marine mammals under this subpart, the petitioner will need to provide detailed information on the area in regards to its importance for marine mammals for either primary feeding, breeding, or migration for those species of marine mammals that have the potential to be affected by low frequency sounds;
(f) Proposed areas that are within 12 nautical miles (22 kilometers) of any coastline including offshore islands, or within non-operating areas for SURTASS LFA sonar shown in Figure 1 will not be eligible for consideration under this section;
(g) If the National Marine Fisheries Service makes a preliminary determination that the area is biologically important for marine mammals and, that area is not located within a previously designated area, the National Marine Fisheries Service will propose rulemaking to add the recommended area to § 216.183(d).
(h) Through notice in the
(i) After review of the comments and information, the National Marine Fisheries Service will make a final decision on whether or not to add the recommended area to the list found in § 216.183(d). The National Marine Fisheries Service will either issue a final rulemaking on the proposal or provide notice in the