Free Response ( Non Motion ) - District Court of California - California

Case 3:07-cv-04771-EDL

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UNITED STATES DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration
NATIONAL MARINE FISHERIES SERVICE Silver Spring, M D 209 10

AUG 1 4 2007

MEMORANDUM FOR: William T. Hogarth, Ph.D. Assistant Administrator

, ,

FROM: mirector Office of Protected Resources SUBJECT: Final Rulemaking for the Taking, by Harassment, of Marine Mammals Incidental To Navy Operations of Surveillance Towed Array Sensor System Low Frequency Active (SURTASS LFA) SonarDECISION MEMORANDUM

Attached for your review and clearance is the subject final rule governing the taking, by harassment, of marine mammals incidental to Navy SURTASS LFA sonar operations, pursuant to section 101 (a)(5)(A) of the Marine Mammal Protection Act (MMPA). This rule lays the necessary groundwork for the National Marine Fisheries Service (NMFS) to authsrize the taking of marine mammals in annual Letters of Authorization (LOAs) under 50 CFR 2 16.4 06 for a five-year period. Because it involves sonar and the harassment of marine mammals, this action is controversial and will generate significant public, Congressional, and media interest upon its release. Under Section 101(a)(5)(A) of the MMPA, the Secretary shall allow, for periods of not more than 5 years, the incidental taking of marine mammals if the Secretary finds that the total of such taking will have a negligible impact on the species or stock and will not have an unrnitigable adverse impact on the availability of the species or stock for subsistence uses. The Secretary is further required to prescribe regulations on the permissible methods of taking and means of effecting the least practicable adverse impact on the species or stock and its habitat (i.e., mitigation) and to set forth requirements pertaining to monitoring and reporting such taking. Background On May 12,2006, NMFS received an application from the U.S. Navy requesting an authorization under section 101(a)(5)(A) of the MMPA for the taking of marine mammals incidental to deploying the SURTASS LFA sonar system for military readiness activities to include training, testing and routine military operations anywhere within the world's oceans (except for Arctic and Antarctic waters) for a period of time not to exceed 5 years. According to the Navy application,
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SURTASS LFA sonar would operate a maximum of 4 ship systems in the Pacific, Atlantic, and Indian oceans and the Mediterranean Sea in which SURTASS LFA sonar could potentially operate. Ultimately there would be a maximum of four SURTASS LFA sonar systems (only two are currently operating). NMFS' current regulations and LOAs for this activity expire on August 16,2007. The purpose of SURTASS LFA sonar is to provide the Navy with a reliable and dependable system for long-range detection of quieter, harder-to-find submarines. Low-frequency (LF) sound travels in seawater more effectively and for greater distances than higher frequency sound used by most other active sonars. According to the Navy, the SURTASS LFA sonar system would meet the Navy's need for improved detection and tracking of new-generation submarines at a longer range. This would maximize the opportunity for U.S. armed forces to safely react to, and defend against, potential submarine threats while remaining a safe distance beyond a submarine's effective weapons range. Description of LFA Sonar The SURTASS LFA sonar system is a long-range, LF sonar (between 100 and 500 Hertz) that has both active and passive components. It does not rely on detection of noise generated by the target. The active component of the system is a set of up to 18 LF acoustic transmitting source elements (called projectors) suspended from a cable from underneath a ship. The projectors are devices that transform electrical energy to mechanical energy by setting up vibrations, or pressure disturbances with the water, to produce the pulse or ping. The SURTASS LFA sonar acoustic transmission is an omnidirectional (full 360 degrees) beam in the horizontal. The expected water depth of the center of the array is 400 ft (122 m), with a narrow vertical beamwidth that can be steered above or below the horizontal. The source level (SL) of an individual projector in the SURTASS LFA sonar array is approximately 21 5 dB, and because of the physics involved in beam forming and transmission loss processes, the array can never have a sound pressure level (SPL) higher than the SPL of an individual projector. The expected minimum water depth at which the SURTASS LFA sonar vessel will operate is 200 m (656.2 ft). Normally, the shallowest depth that it can operate is 100 m (328.1 ft). To meet future undersea warfare requirements, the Navy is developing a compact system known as Compact LFA, or CLFA sonar. CLFA sonar consists of smaller, lighter-weight source elements than the current LFA sonar system, and will be compact enough to be installed on the existing SURTASS vessels. The Navy indicates that the operational characteristics of the compact system are comparable to the existing LFA sonar systems. Consequently, the potential impacts from CLFA sonar will be similar to the effects from the existing SURTASS LFA sonar systems. The typical SURTASS LFA sonar signal is not a constant tone, but rather a transmission of various signal types that vary in frequency and duration (including continuous wave (CW) and frequency-modulated (FM) signals). A complete sequence of sound transmissions is referred to
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by the Navy as a "ping" and can last as short as 6 seconds (sec) to as long as 100 sec, normally with no more than 10 seconds at any single frequency. The time between pings is typically from 6 to 15 minutes. Average duty cycle (ratio of sound "on" time to total time) is less than 20 percent; typical duty cycle, based on historical operating parameters, is normally 7.5 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 in order to keep the array deployed. Public Review On September 28,2006 (71 FR 56965), NMFS published a Notice of Receipt of Application on the U.S. Navy SURTASS LFA sonar MMPA application and invited interested persons to submit comments, information, and suggestions concerning the application and the structure and contents of regulations. Those comments were considered in the development of the proposed rule. A proposed rule for renewal of the regulations governing SURTASS LFA sonar MMPA authorization was published on July 9,2007 (72 FR 37404) with a 15-day public comment period. During the two comment periods, comments were received from a large number of organizations and individuals. These organizations included the Marine Mammal Commission, the Natural Resources Defense Council, Earth Island Institute, and the Animal Welfare Society. The comments and our responses to the public concerns are in the preamble to the final rule (attached). Several important issues raised by the public are addressed in this memorandum. One significant issue with the public was that the comment period for the proposed rule was limited to 15 days. As mentioned, the 2002-2007 rule will expire on August 16,2007. The Navy advised NMFS that a gap in SURTASS LFA sonar operations would be detrimental to national security and reduce protection of U.S. and Allied naval forces from submarine threats. Although the proposed rule was controversial, it is substantially similar to the 2002-2007 rule, which underwent extensive public comment (75 days total). The 2002-2007 final rule addresses all public comments. There have been no significant scientific advancements or other developments since the previous rule that would necessitate a longer period for public comment. In addition, the public comment period for the Navy's Supplemental Environmental Impact Statement (EIS) on SURTASS LFA sonar, which contains much of the underlying analysis for this proposed rule, was 92 days (including three public hearings), affording significant opportunity for public participation. Therefore, a fifteen-day public comment period for the proposed rule provided an adequate opportunity for public comment.

Impacts on Marine Mammals Based on an extensive evaluation in the Navy's 2001 Final EIS and the Navy's 2006 Final Supplemental EIS, NMFS believes that impacts from SURTASS LFA sonar will be limited to Level B (behavioral) harassment, due in part to the mitigation measures mentioned later in this
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memorandum. The potential for LFA sonar to cause masking of sounds important to marine mammals is limited since marine mammals normally use a wider frequency range for communication than LFA sonar and LFA sonar is "off' from 80-92.5 percent of the time. The operation of SURTASS LFA sonar is not expected to result in lethal takes or serious injury, and no lethal takes are being authorized by NMFS either under this rule or the LOAs issued under the final rule. A slow ship speed means that it is unlikely that the LFA sonar vessel will strike marine mammals. These findings are also supported by the fact that SURTASS LFA sonar has been operating since 2003 in the northwestern Pacific Ocean with no reported Level A (injury) harassment takes or strandings associated with its operations. Moreover, there has been no new information or data that contradict NMFS' finding that the potential impacts from SURTASS LFA sonar operation on any stock of marine mammal will be negligible. Regarding marine mammal strandings, NMFS notes that, to date, some strandings have been t associated with mid-frequency (MF) sonar, but not LF sonar. For example, Cox g al. (2006) stated that gas-bubble disease (a probable debilitation leading to beaked whale strandings) induced in supersaturated tissues by a behavioral response to acoustic exposure, is a plausible pathologic mechanism for the morbidity and mortality seen in cetaceans associated with MF sonar exposure. They also stated that it is premature to judge acoustically mediated bubble growth as a potential mechanism and recommended further studies to investigate the possibility. Therefore, the best available scientific evidence supports a conclusion that beaked whales are the primary species of concern, and that MF-active sonar, not LFA sonar, when combined with other factors, is the sonar most likely implicated. Also, if a cetacean cannot hear a sound or hears it poorly, the sound is unlikely to have a significant behavioral impact (Ketten, 2001). Most odontocetes have relatively sharply decreasing hearing sensitivity below 2 kHz. Therefore, it is unlikely that LF transmissions from LFA sonar would induce behavioral reactions from animals that have poor LF hearing, such as beaked whales. While it is highly unlikely, the sounds could damage tissues even if the animal does not hear the sound, but this would have to be occur within the 180 dB sound field (within 1 krn (0.54 nm)) of the transmit array. The likelihood of a marine mammal entering the 180-dB sound field is considered highly unlikely due to the detection effectiveness of the Navy's monitoring program (discussed next). Therefore, NMFS believes that the monitoring program has a high probability of detecting the presence of marine mammals prior to potential injury. Mitigation and Monitoring To prevent injury or the significant potential for injury (Level A harassment), NMFS requires the following mitigation and monitoring by the Navy: (1) conduct visual monitoring from the ship's bridge during daylight hours, (2) use passive SURTASS sonar to listen for vocalizing marine mammals; and (3) use high frequency marine mammal monitoring (HFlM3) active sonar (i.e., similar to a commercial fish finder) to locate/track/monitor marine mammals in relation to the SURTASS LFA sonar vessel and the sound field produced by the SURTASS LFA sonar source array. This combination of visual, passive acoustic, and active acoustic monitoring of the area surrounding the SURTASS LFA sonar array provides a greater than 95 percent probability of
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detecting a marine mammal before it enters an area ensonified by sound pressure levels (SPLs) greater than 180-dB, NMFS' conservative threshold for estimating onset of injury. If a marine mammal is detected within or approaching a "mitigation zone" consisting of the 180-dB isopleth plus a 1-krn (0.54-nm) buffer zone extending beyond the 180-dB isopleth, SURTASS LFA sonar transmissions will be immediately delayed or suspended. Transmissions may commence/resume 15 minutes after the marine mammal has left the mitigation zone or there is no further detection of the animal within the mitigation zone. In addition to shut-down in the mitigation zone, this final rule requires the Navy to ensure SPLs do not exceed 180 dB within 12 nm of any shoreline and do not exceed 180 dB at a distance of 1 km seaward of the outer boundary of any area designated in this rule as an offshore biologically important area (OBIA) for marine mammals. This final rule contains ten OBIAs, including OBIAs for NOAA's National Marine Sanctuaries (NMSs) and The Gully, an area off Canada. Proposals by the NMS Program to the Navy as part of its sanctuaries consultation, included recommendations for new OBIA designations for the Northwestern Hawaiian Islands (NWHI) and Davidson Seamount. NMFS' proposed rule solicited comment on whether certain parts of the NWHI should be designated as an OBIA. No comments were received on this subject. Any future designation would need to be through separate rulemaking. Davidson Seamount was recommended by the NMSP based on a statement that sperm whales are around the seamount. The top of the Seamount is 4000 ft below the water surface and we have no information that this seamount is any different than the thousands of others across the Pacific. More recently, we were informed that the NMSP intends to propose to expand the Monterey Bay NMS to include Davidson Seamount. If this occurs, we will change the coordinates of the Monterey Bay NMS OBIA in these regulations. Additionally, the Navy will not expose known dive sites to SPLs greater than 145 dB, an incidental protection for marine mammals. Finally, NMFS also requires the Navy to continue researching the effects of LF sonar on marine mammals. Estimated Take The Navy's EIS for the first five years of operation (incorporated by reference into its Supplemental EIS) contained an analysis of LFA sonar's effects on marine mammals based on a literature review, the results of the Navy's low frequency sonar scientific research program (SRP), and acoustical modeling. The Navy developed an acoustic integration model (AIM) to estimate the total acoustic exposure for each animal in a modeled population, and developed a risk continuum to estimate the probability that a marine mammal will have a significant disturbance in a biologically important behavior (the equivalent to Level B harassment for military readiness activities). The same analysis was used for the current final rule, with updated data for the AIM. The attached Federal Register notice describes in greater detail the analytical process. Taking into account the required mitigation and monitoring, we believe the Navy's analysis shows that LFA sonar will result in Level B harassment of marine mammals, but is not likely to result in Level A harassment (injury or significant potential of injury) of marine mammals.
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However, because the possibility cannot be completely eliminated, the Navy's take authorization request includes Level A harassment. The attached Federal Register notice describes in some detail the range of potential impacts from LFA sonar and the scientific basis for concluding that takes will be limited to Level B harassment. The take estimates based on Navy's past operation reports indicate that for most marine mammals stocks, between 0 and 6 percent annually will be harassed, while for others, more than 6 percent (and rising to just over 11 percent) will be harassed. These values are less than what was estimated for the 2002-2007 rule. However, the Navy is still required to plan missions such that the total Level B harassment take on a stock of marine mammals does not exceed 12 percent annually. If based on AIM, higher levels are predicted, the Navy will modify the mission locations or seasons to ensure takings remain below 12 percent. Determinations Based on the scientific analyses detailed in the Navy application and further supported by information and data contained in the Navy's Final EIS and Supplemental EIS for SURTASS LFA sonar and the attached Federal Register notice, NMFS has determined the incidental taking of marine mammals resulting from SURTASS LFA sonar operations would have a negligible impact on the affected marine mammal stocks or habitats. This determination is based on a number of factors: (1) the best information available indicates that effects from SPLs less than 180 dB will be limited to short-term Level B behavioral harassment averaging less than 12 percent annually for all affected species or stocks; (2) the mitigation and monitoring are highly effective in preventing exposures of 174 dB or greater (HFlM3 zone of detection); (3) the results of monitoring as described in the Navy's Comprehensive Report supports the conclusion that takings will be limited to Level B harassment and have a negligible impact on affected species or stocks of marine mammals; (4) the small number of SURTASS LFA sonar systems (two systems in FY 2008 and FY 2009 (totaling 664 hours of operation annually), 3 in FY 20 10 (totaling 1296 hours of operation annually), and 4 systems in FY 20 11 and FY 200 12 (totaling 1728 hours of operation annually)) that would be operating world-wide; (5) that the LFA sonar vessel must be underway while transmitting (in order to keep the receiver array deployed), limiting the duration of exposure for marine mammals to those few minutes when the SURTASS LFA sound energy is moving through that part of the water column inhabited by marine mammals; (6) for convergence zone (CZ) propagation, the characteristics of the acoustic sound path, which deflect the sound below the water depth inhabited by marine mammals for much of the sound propagation (see illustration 67 FR page 4671 5 (July 16,2002); (7) the findings of the SRP indicated no significant change in biologically important behavior from exposure to sound levels up to 155 dB; and (8) during the 40 LFA sonar missions between 2002 and 2006, there were only three visual observations of marine mammals and only 71 detections by the HFlM3 sonar, which all resulted in mitigation protocol suspensions in operations. These measures all indicate that while marine mammals will potentially be affected by the SURTASS LFA sonar sounds, these impacts will be short-term behavioral effects and are not likely to adversely affect marine mammal species or stocks through effects on annual rates of reproduction or survival.
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Finally, because SURTASS LFA sonar operations will not take place in Arctic waters, it would not have an unrnitigable adverse impact on the availability of marine mammals for subsistence uses identified in MMPA section 101(a)(S)(A)(i). Recommendation Based on these findings and determinations, I recommend that you sign the attached memoranda to NOAA General Counsel and to the Chief Counsel for Regulations, Department of Commerce (DOC), forwarding the attached Federal Register notice, and request the concurrence of NOAA and DOC to publish the Federal Register final rule.

.Concur Attachments

q//?/',7
Date

Concur

Do Not

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Determinations Marine Mammal Protection Act (MMPA) As described in the preceding decision memo, NMFS has determined, in accordance with MMPA section 101(a)(5)(A), that the incidental taking of marine mammals from SURTASS LFA sonar operations would have a negligible impact on the affected marine mammal stocks or habitats. SURTASS LFA sonar operations will not have an unmitigable adverse impact on the availability of marine mammals for subsistence uses as described in section lOl(a)(S)(A)(i). Endangered Species Act (ESA) On June 9,2006, the Navy submitted a Biological Assessment to NMFS to initiate consultation under section 7 of the ESA for the 2007-2012 SURTASS LFA sonar activities and NMFS' authorization for incidental take under the MMPA. NMFS concluded consultation with the Navy on this action on August 14,2007. The conclusion of that consultation was that operation of the SURTASS LFA sonar system for testing, training and military operations and the issuance by NMFS of MMPA incidental take authorizations for this activity are not likely to jeopardize the continued existence of any endangered or threatened species under the jurisdiction of NMFS or result in the destruction or adverse modification of critical habitat. National Environmental Policy Act (NEPA) On November 10,2005 (70 FR 68443), the Environmental Protection Agency (EPA) announced receipt of a Draft SEIS from the U.S. Navy on the deployment of SURTASS LFA sonar. This Final SEIS incorporated by reference the Navy's Final EIS on SURTASS LFA sonar deployment. The public comment period on the Draft SEIS ended on February 10,2006. On May 4,2007 (72 FR 25302), EPA announced receipt of a Final SEIS from the U.S. Navy on the deployment of SURTASS LFA sonar. NMFS was a cooperating agency, as defined by the Council on Environmental Quality (40 CFR 1501.6), in the preparation of these documents. NMFS reviewed the Navy's Final SEIS, adopted the Navy Final EIS, as provided for in 40 CFR 1506.3, and has determined it is unnecessary to prepare additional NEPA analyses. Administrative Procedure Act For the reasons explained in the preceding decision memo, the fifteen-day public comment period for this final rule provides an adequate opportunity for public comment. E.O. 12866 This final rule has been determined to be significant for purposes of Executive Order 12866.

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