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(2) For launches during the harbor seal pupping season (March through June), conduct follow-up surveys within 2 weeks of the launch to ensure that there were no adverse effects on any marine mammals,
(3) Monitor haul-out sites on the Northern Channel Islands, if it is determined by modeling that a sonic boom of greater than 1 psf could occur in those areas (this determination will be made in consultation with the National Marine Fisheries Service),
(4) Investigate the potential for spontaneous abortion, disruption of effective female-neonate bonding, and other reproductive dysfunction,
(5) Supplement observations on Vandenberg and on the Northern Channel Islands with video-recording of mother-pup seal responses for daylight launches during the pupping season,
(6) Conduct acoustic measurements of those launch vehicles that have not had sound pressure level measurements made previously, and
(7) Include multiple surveys each day that record the species, number of animals, general behavior, presence of pups, age class, gender and reaction to launch noise, sonic booms or other natural or human caused disturbances, in addition to recording environmental conditions such as tide, wind speed, air temperature, and swell.
(c) Holders of Letters of Authorization must conduct additional monitoring as required under an annual Letter of Authorization.
(d) The Holder of the Letter of Authorization must submit a report to the Southwest Administrator, National Marine Fisheries Service within 90 days after each launch. This report must contain the following information:
(1) Date(s) and time(s) of the launch,
(2) Design of the monitoring program, and
(3) Results of the monitoring programs, including, but not necessarily limited to:
(i) Numbers of pinnipeds present on the haulout prior to commencement of the launch,
(ii) Numbers of pinnipeds that may have been harassed as noted by the number of pinnipeds estimated to have entered the water as a result of launch noise,
(iii) The length of time(s) pinnipeds remained off the haulout or rookery,
(iv) The numbers of pinniped adults or pups that may have been injured or killed as a result of the launch, and
(v) Behavioral modifications by pinnipeds that were likely the result of launch noise or the sonic boom.
(e) An annual report must be submitted at the time of renewal of the LOA.
(f) A final report must be submitted at least 180 days prior to expiration of these regulations. This report will:
(1) Summarize the activities undertaken and the results reported in all previous reports,
(2) Assess the impacts at each of the major rookeries,
(3) Assess the cumulative impact on pinnipeds and other marine mammals from Vandenberg activities, and
(4) State the date(s), location(s), and findings of any research activities related to monitoring the effects on launch noise and sonic booms on marine mammal populations.
§ 216.126 Applications for Letters of Authorization.
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(a) To incidentally take harbor seals and other marine mammals pursuant to these regulations, either the U.S. citizen conducting the activity or the 30th Space Wing on behalf of the U.S. citizen conducting the activity, must apply for and obtain a Letter of Authorization in accordance with §216.106.
(b) The application must be submitted to the National Marine Fisheries Service at least 30 days before the activity is scheduled to begin.
(c) Applications for Letters of Authorization and for renewals of Letters of Authorization must include the following:
(1) Name of the U.S. citizen requesting the authorization,
(2) A description of the activity, the dates of the activity, and the specific location of the activity, and
(3) Plans to monitor the behavior and effects of the activity on marine mammals.
(d) A copy of the Letter of Authorization must be in the possession of the persons conducting activities that may involve incidental takings of seals and sea lions.
§ 216.127 Renewal of Letters of Authorization.
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A Letter of Authorization issued under §216.126 for the activity identified in §216.120(a) will be renewed annually upon:
(a) Timely receipt of the reports required under §216.125(d), if determined by the Assistant Administrator to be acceptable; and
(b) A determination that the mitigation measures required under §216.124 and the Letter of Authorization have been undertaken.
§ 216.128 Modifications of Letters of Authorization.
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(a) In addition to complying with the provisions of §216.106, except as provided in paragraph (b) of this section, no substantive modification, including withdrawal or suspension, to a Letter of Authorization subject to the provisions of this subpart shall be made until after notice and an opportunity for public comment.
(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 §216.120 (b), a Letter of Authorization may be substantively modified without prior notice and opportunity for public comment. A notice will be published in the Federal Register subsequent to the action.
Subparts L–M [Reserved]
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Subpart N—Taking of Marine Mammals Incidental to Missile Launch Operations from San Nicolas Island, CA
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Source: 68 FR 52138, Sept. 2, 2003, unless otherwise noted.
Effective Date Note: At 68 FR 52138, Sept. 2, 2003, Subpart N of Part 216 was added, effective Oct. 2, 2003, through Oct. 2, 2008.
§ 216.151 Specified activity, geographical region, and incidental take levels.
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(a) Regulations in this subpart apply only to the incidental taking of marine mammals specified in paragraph (b) of this section by U.S. citizens engaged in target missile launch activities at the Naval Air Warfare Center Weapons Division facilities on San Nicolas Island, California.
(b) The incidental take of marine mammals under the activity identified in paragraph (a) of this section is limited to the following species: northern elephant seals (Mirounga angustirostris), harbor seals (Phoca vitulina), and California sea lions (Zalophus californianus).
(c) This Authorization is valid only for activities associated with the launching of a total of 40 Vandal (or similar sized) vehicles from Alpha Launch Complex and smaller missiles and targets from Building 807 on San Nicolas Island, California.
§ 216.152 Effective dates.
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Regulations in this subpart are effective from October 2, 2003 through October 2, 2008.
§ 216.153 Permissible methods of taking; mitigation.
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(a) Under a Letter of Authorization issued pursuant to §216.106, the U.S. Navy may incidentally, but not intentionally, take those marine mammal species specified in §216.151(b) by Level B harassment, in the course of conducting target missile launch activities within the area described in §216.151(a), provided all terms, conditions, and requirements of these regulations and such Letter of Authorization are complied with.
(b) The activity specified in §216.151 must be conducted in a manner that minimizes, to the greatest extent possible, adverse impacts on marine mammals and their habitat. When conducting these activities, the following mitigation measures must be utilized:
(1) The holder of the Letter of Authorization must prohibit personnel from entering pinniped haul-out sites below the missile's predicted flight path for 2 hours prior to planned missile launches.
(2) The holder of the Letter of Authorization must avoid launch activities during harbor seal pupping season (February to April), when operationally practicable.
(3) The holder of this Authorization must limit launch activities during other pinniped pupping seasons, when operationally practicable.
(4) The holder of the Letter of Authorization must not launch Vandal target missiles from the Alpha Complex at low elevation (less than 1,000 feet (304.8 m) on launch azimuths that pass close to pinniped haul-out sites).
(5) The holder of the Letter of Authorization must avoid, where practicable, launching multiple target missiles in quick succession over haul-out sites, especially when young pups are present.
(6) The holder of the Letter of Authorization must limit launch activities during nighttime hours when operationally practicable.
(7) Aircraft and helicopter flight paths must maintain a minimum altitude of 1,000 feet (304.8 m) from pinniped haul-outs.
(8) If injurious or lethal take is discovered during monitoring conducted under §216.155, the holder of the Letter of Authorization must contact the Regional Administrator, Southwest Region, National Marine Fisheries Service, or his/her designee, at (562) 980–4023 within 48 hours and, in cooperation with the National Marine Fisheries Service, launch procedure, mitigation measures, and monitoring methods must be reviewed and appropriate changes made prior to the next launch.
(9) If post-test surveys determine that an injurious or lethal take of a marine mammal has occurred, the test procedure and the monitoring methods must be reviewed and appropriate changes must be made prior to conducting the next missile launch.
§ 216.154 Prohibitions.
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Notwithstanding takings authorized by §216.151(b) and by a Letter of Authorization issued under §216.106, the following activities are prohibited:
(a) The taking of a marine mammal that is other than unintentional.
(b) The violation of, or failure to comply with, the terms, conditions, and requirements of this part or a Letter of Authorization issued under §216.106.
(c) The incidental taking of any marine mammal of a species not specified, or in a manner not authorized, in this subpart.
§ 216.155 Requirements for monitoring and reporting.
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(a) The holder of the Letter of Authorization is 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.
(b) The National Marine Fisheries Service must be notified immediately of any changes or deletions to any portions of the proposed monitoring plan submitted in accordance with the Letter of Authorization.
(c) The holder of the Letter of Authorization must designate biologically trained, on-site observer(s), approved in advance by the National Marine Fisheries Service, to record the effects of the launch activities and the resulting noise on pinnipeds.
(d) The holder of the Letter of Authorization must implement the following monitoring measures:
(1) Visual Land-Based Monitoring. (i) Prior to each missile launch, an observer(s) will place 3 autonomous digital video cameras overlooking chosen haul-out sites located varying distances from the missile launch site. Each video camera will be set to record a focal subgroup within the larger haul-out aggregation for a maximum of 4 hours or as permitted by the videotape capacity.
(ii) Systematic visual observations, by observers described in paragraph (c) of this section, on pinniped presence and activity will be conducted and recorded in a field logbook a minimum of 2 hours prior to the estimated launch time and for at least 1 hour immediately following the launch of all launch vehicles.
(iii) Documentation, both via autonomous video camera and human observer, will consist of:
(A) Numbers and sexes of each age class in focal subgroups;
(B) Description and timing of launch activities or other disruptive event(s);
(C) Movements of pinnipeds, including number and proportion moving, direction and distance moved, and pace of movement;
(D) Description of reactions;
(E) Minimum distances between interacting and reacting pinnipeds;
(F) Study location;
(G) Local time;
(H) Substratum type;
(I) Substratum slope;
(J) Weather condition;
(K) Horizontal visibility; and
(L) Tide state.
(2) Acoustic Monitoring. (i) During all target missile launches, calibrated recordings of the levels and characteristics of the received launch sounds will be obtained from 3 different locations of varying distances from the target missile's flight path. To the extent practicable, these acoustic recording locations will correspond with the haul-out sites where video and human observer monitoring is done.
(ii) Acoustic recordings will be supplemented by the use of radar and telemetry systems to obtain the trajectory of target missiles in three dimensions.
(iii) Acoustic equipment used to record launch sounds will be suitable for collecting a wide range of parameters, including the magnitude, characteristics, and duration of each target missile.
(e) The holder of the Letter of Authorization must implement the following reporting requirements:
(1) For each target missile launch, the lead contractor or lead observer for the holder of the Letter of Authorization must provide a status report on the information required under §216.155(d)(1)(iii) to the National Marine Fisheries Service, Southwest Regional Office, unless other arrangements for monitoring are agreed in writing.
(2) An initial report must be submitted to the Office of Protected Resources, and the Southwest Regional Office at least 60 days prior to the expiration of each annual Letter of Authorization. This report must contain the following information:
(i) Timing and nature of launch operations;
(ii) Summary of pinniped behavioral observations;
(iii) Estimate of the amount and nature of all takes by harassment or by other means.
(3) A draft comprehensive technical report will be submitted to the Office of Protected Resources and Southwest Regional Office, National Marine Fisheries Service, 180 days prior to the expiration of these regulations and providing full documentation of the methods, results, and interpretation of all monitoring tasks for launches to date plus preliminary information for missile launches during the first 6 months of the final Letter of Authorization.
(4) A revised final technical report, including all monitoring results during the entire period of the Letter of Authorization, will be due 90 days after the end of the period of effectiveness of these regulations.
(5) Both the 60–day and draft comprehensive technical reports will be subject to review and comment by the National Marine Fisheries Service. Any recommendations made by the National Marine Fisheries Service must be addressed in the final comprehensive report prior to acceptance by the National Marine Fisheries Service.
(f) Activities related to the monitoring described in paragraph (d) of this section, or in the Letter of Authorization issued under §216.106, may be conducted without the need for a separate scientific research permit.
(g) In coordination and compliance with appropriate Navy regulations, at its discretion, the National Marine Fisheries Service may place an observer on San Nicolas Island for any activity involved in marine mammal monitoring either prior to, during, or after a missile launch in order to monitor the impact on marine mammals.
§ 216.156 Letter of Authorization.
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(a) A Letter of Authorization, unless suspended or revoked, will be valid for a period of time specified in the Letter of Authorization but may not exceed the period of validity of this subpart.
(b) A Letter of Authorization with a period of validity less than the period of validity of this subpart may be renewed subject to renewal conditions in §216.157.
(c) A Letter of Authorization will set forth:
(1) Permissible methods of incidental taking;
(2) Specified geographic area for taking;
(3) Means of effecting the least practicable adverse impact on the species of marine mammals authorized for taking and its habitat; and
(4) Requirements for monitoring and reporting incidental takes.
(d) Issuance of a Letter of Authorization will be based on a determination that the number of marine mammals taken by the activity will be small, and that the level of taking will be consistent with the findings made for the total taking allowable under these regulations.
(e) Notice of issuance or denial of a Letter of Authorization will be published in the Federal Register within 30 days of a determination.
§ 216.157 Renewal of a Letter of Authorization.
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(a) A Letter of Authorization issued under §216.106 and §216.156 for the activity specified in §216.151 will be renewed annually upon:
(1) Notification to the National Marine Fisheries Service that the activity described in the application for a Letter of Authorization submitted under §216.156 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) Timely receipt of the monitoring reports required under §216.155, and acceptance by the National Marine Fisheries Service;
(3) A determination by the National Marine Fisheries Service that the mitigation, monitoring, and reporting measures required under §§216.153 and 216.155 and the Letter of Authorization were undertaken and will be undertaken during the upcoming period of validity of a renewed Letter of Authorization; and
(4) A determination that the number of marine mammals taken by the activity continues to be small and that the level of taking will be consistent with the findings made for the total taking allowable under these regulations.
(b) A notice of issuance or denial of a renewal of a Letter of Authorization will be published in the Federal Register within 30 days of a determination.
§ 216.158 Modifications to the Letter of Authorization.
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(a) 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 subject to the provisions of this subpart shall be made until after notice and an opportunity for public comment.
(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 §216.151(b), the Letter of Authorization issued pursuant to §216.106 may be substantively modified without prior notice and an opportunity for public comment. Notification will be published in the Federal Register subsequent to the action.
Subpart O [Reserved]
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Subpart P—Taking of Marine Mammals Incidental To Operating a Low Frequency Acoustic Source by the North Pacific Acoustic Laboratory
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Source: 66 FR 43458, Aug. 17, 2001, unless otherwise noted.
Effective Date Note: At 66 FR 43458, Aug. 17, 2001, subpart P was added, effective Sept. 17, 2001, to Sept. 17, 2006.
§ 216.170 Specified activity and specified geographical region.
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(a) Regulations in this subpart apply only to the incidental taking of small numbers of marine mammals specified in paragraph (b) of this section by U.S. citizens engaged in conducting acoustic research using a moored, low-frequency acoustic source by the North Pacific Acoustic Laboratory off Kauai, Hawaii.
(b) The incidental harassment of marine mammals under the activity identified in paragraph (a) of this section is limited to small numbers of the following species: humpback whales (Megaptera novaengliae), fin whales (Balaenoptera physalus), blue whales (B. musculus), Bryde's whales (B. edeni), minke whales (B. acutorostrata), North Pacific right whales (Balaena japonicus), sperm whales (Physeter macrocephalus), short-finned pilot whales (Globicephala macrorhynchus), beaked whales (Ziphius cavirostris, Berardius bairdi, and Mesoplodon spp.), spinner dolphins (Stenella longirostris), spotted dolphins (Stenella attenuata), striped dolphins (Stenella coeruleoalba), bottlenose dolphins (Tursiops truncatus), rough-toothed dolphins (Steno bredanensis), pygmy sperm whales (Kogia breviceps), dwarf sperm whales (Kogia simus), killer whales (Orcinus orca), false killer whales (Pseudorca crassidens), pygmy killer whales (Feresa attenuata), and melon-headed whales (Peponocephala electra). and Hawaiian monk seals (Monachus schauinslandi).
§ 216.171 Effective dates.
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Regulations in this subpart are effective from September 17, 2001, through September 17, 2006.
§ 216.172 Permissible methods of taking.
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(a) Under a Letter of Authorization issued pursuant to §§216.106 and 216.176, the Holder of this Letter of Authorization may incidentally, but not intentionally, take marine mammals by harassment within the area described in §216.170(a), provided the activity is in compliance with all terms, conditions, and requirements of these regulations and the Letter of Authorization.
(b) The activities identified in §216.170(a) must be conducted in a manner that minimizes, to the greatest extent practicable, any adverse impacts on marine mammals and their habitat.
§ 216.173 Prohibitions.
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Notwithstanding takings authorized by §216.170(b) and by a Letter of Authorization issued under §§216.106 and 216.176, no person in connection with the activities described in §216.170(a) shall:
(a) Take any marine mammal not specified in §216.170(b);
(b) Take any marine mammal specified in §216.170(b) other than by incidental, unintentional harassment;
(c) Take any marine mammal specified in §216.170(b) if such take results in more than a negligible impact on the species or stocks of such marine mammal; or
(d) Violate, or fail to comply with, the terms, conditions, and requirements of these regulations or a Letter of Authorization issued under §§216.106 and 216.176.
§ 216.174 Mitigation.
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As described in the Letter of Authorization issued under §§216.106 and 216.176., the North Pacific Acoustic Laboratory acoustic source must:
(a) Operate at the minimum duty cycle necessary for conducting large-scale acoustic thermometry and long-range propagation objectives.
(b) Not increase the duty cycle during the months of January through April.
(c) Operate at the minimum power level necessary for conducting large-scale acoustic thermometry and long-range propagation objectives, but no more than 260 Watts.
(d) Precede all transmissions from the acoustic source by a 5-minute ramp-up of the acoustic source's power.
§ 216.175 Requirements for monitoring and reporting.
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(a) The holder of the Letter of Authorization is 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. The holder must notify the Southwest Regional Administrator at least 2 weeks prior to commencing monitoring activities.
(b) The Holder of this Authorization must conduct a minimum of eight surveys each year from February through early April in the area off the north shore of Kauai, Hawaii, as specified in the Letter of Authorization issued under §§216.106 and 216.176.
(c) The Holder of this Authorization must, through coordination with marine mammal stranding networks in Hawaii, monitor strandings of marine mammals to detect long-term trends in stranding and the potential relationship to the North Pacific Acoustic Laboratory acoustic source.
(d) Activities related to the monitoring described in paragraphs (b) and (c) of this section, or in the Letter of Authorization issued under §§216.106 and 216.176 may be conducted without the need for a separate scientific research permit.
(e) In coordination and compliance with marine mammal researchers operating under this subpart, at its discretion, the National Marine Fisheries Service may place an observer on any aircraft involved in marine mammal surveys in order to monitor the impact on marine mammals.
(f) The holder of a Letter of Authorization must annually submit a report to the Director, Office of Protected Resources, National Marine Fisheries Service, no later than 120 days after the conclusion of the humpback whale aerial survey monitoring program. This report must contain all the information required by the Letter of Authorization, including the results, if any, of coordination with coastal marine mammal stranding networks.
(g) A final comprehensive report must be submitted to the Director, Office of Protected Resources, National Marine Fisheries Service no later than 240 days after completion of the final year of humpback whale aerial survey monitoring conducted under §216.175. This report must contain all the information required by the Letter of Authorization.
§ 216.176 Letter of authorization.
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(a) A Letter of Authorization, unless suspended or revoked, will be valid for a period of time specified in the Letter of Authorization but may not exceed the period of validity of this subpart.
(b) A Letter of Authorization with a period of validity less than the period of validity of this subpart may be renewed subject to renewal conditions in §216.177.
(c) A Letter of Authorization will set forth:
(1) Permissible methods of incidental taking;
(2) Authorized geographic area for taking;
(3) Means of effecting the least practicable adverse impact on the species of marine mammals authorized for taking and its habitat; and
(4) Requirements for monitoring and reporting incidental takes.
(d) Issuance of a Letter of Authorization will be based on a determination that the number of marine mammals taken by the activity will be small, and that the number of marine mammals taken by the activity, specified in §216.170(b), as a whole, will have no more than a negligible impact on the species or stocks of affected marine mammal(s).
(e) Notice of issuance or denial of a Letter of Authorization will be published in the Federal Register within 30 days of a determination.
§ 216.177 Renewal of a letter of authorization.
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(a) A Letter of Authorization issued under §216.106 and §216.176 for the activity identified in §216.170(a) will be renewed annually upon:
(1) Notification to the National Marine Fisheries Service that the activity described in the application for a Letter of Authorization submitted under §216.176 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) Timely receipt of the monitoring reports required under §216.175, which have been reviewed by the National Marine Fisheries Service and determined to be acceptable;
(3) A determination by the National Marine Fisheries Service that the mitigation, monitoring, and reporting measures required under §§216.174 and 216.175 and the Letter of Authorization were undertaken and will be undertaken during the upcoming period of validity of a renewed Letter of Authorization; and
(4) 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 and that the number of marine mammals taken by the activity, specified in §216.170(b), will have no more than a negligible impact on the species or stock of affected marine mammal(s).
(b) A notice of issuance or denial of a renewal of a Letter of Authorization will be published in the Federal Register within 30 days of a determination.
§ 216.178 Modifications to a letter of authorization.
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(a) In addition to complying with the provisions of §§216.106 and 216.176, 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 216.176 and subject to the provisions of this subpart shall be made by the National Marine Fisheries Service until after a notification and an opportunity for public comment has been provided. For purposes of this paragraph, a renewal of a Letter of Authorization under §216.177 without modification, except for the period of validity, is not considered a substantive modification.
(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 §216.170(b), a Letter of Authorization issued pursuant to §§216.106 and 216.176 may be substantively modified without prior notification and an opportunity for public comment. Notification will be published in the Federal Register within 30 days subsequent to the action.
Subpart Q—Taking of Marine Mammals Incidental to Navy Operations of Surveillance Towed Array Sensor System Low Frequency Active (SURTASS LFA) Sonar
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Source: 67 FR 46785, July 16, 2002, unless otherwise noted.
Effective Date Note: At 67 FR 46785, July 16, 2002, subpart Q was added, effective Aug. 15, 2002, through Aug. 15, 2007.
§ 216.180 Specified activity and specified geographical region.
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Regulations in this subpart apply only to the incidental taking of those marine mammal species specified in paragraph (b) of this section by the U.S. Navy, Department of Defense, while engaged in the operation of no more than two SURTASS LFA sonar systems conducting active sonar operations, in areas specified in paragraph (a) of this section. The authorized activities, as specified in a Letter of Authorization issued under §§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) Atlantic Polar Biome:
(i) Boreal Polar Province (1/BPLR)(i.e., LFA sonar 180-dB exclusion zone);
(ii) Atlantic Arctic Province (2/ARCT);
(iii) Atlantic Subarctic Province (3/SARC);
(2) North Atlantic Coastal Biome:
(i) Northeast Atlantic Shelves Province (11/NECS),
(A) North/Irish Sea Subprovince,
(B) English Channel Subprovince,
(C) Southern Outer Shelf Subprovince,
(D) Northern Outer Shelf Subprovince, and
(E) Baltic Subprovince; and
(ii) Northwest Atlantic Shelves Province (15/NWCS),
(A) Newfoundland/Nova Scotia Shelf Subprovince,
(B) Gulf of St. Lawrence Coastal Subprovince,
(C) Gulf of Maine/Bay of Fundy Coastal Subprovince,
(D) Georges Bank/New York Bight Coastal Subprovince,
(E) Middle Atlantic Bight Coastal Subprovince,
(F) South Atlantic Bight Coastal Subprovince;
(3) South Atlantic Coastal Biome:
(i) Benguela Current Coastal Province (22/BENG);
(ii) Brazil Current Coastal Province (20/BRAZ);
(iii) Eastern (Canary) Coastal Province (12/CNRY);
(iv) Southwest Atlantic Shelves Province (21/FKLD);
(v) Guianas Coastal Province (14/GUIA);
(vi) Guinea Current Coastal Province (13/GUIN),
(A) Guiana Coastal Subprovince, and
(B) Central African Coastal Subprovince;
(4) Atlantic Westerly Winds Biome:
(i) Gulf Stream Province (5/GFST);
(ii) North Atlantic Drift Province (4/NADR);
(iii) North Atlantic Subtropical Gyral East Province (18/NASTE); and
(iv) North Atlantic Subtropical Gyral West Province (6/NASTW);
(5) Atlantic Trade Wind Biome:
(i) Caribbean Province (17/CARB);
(A) Gulf of Mexico Subprovince;
(B) Caribbean Sea Subprovince;
(ii) Eastern Tropical Atlantic Province (9/ETRA);
(iii) North Atlantic Tropical Gyral Province (7/NATR);
(iv) South Atlantic Gyral Province (10/SATL);
(v) Western Tropical Atlantic Province (8/WTRA);
(6) Mediterranean/Black Sea Biome:
(i) Mediterranean Sea Province (16A/MEDI);
(ii) Black Sea Province (16B/BLSE);
(7) Indian Ocean Coastal Biome:
(i) Australia/Indonesia Coastal Province (37/AUSW);
(ii) Eastern India Coastal Province (35/INDE);
(iii) Northwestern Arabian Upwelling Province (34/ARAB);
(iv) Eastern Africa Coastal Province (32/EAFR);
(v) Western India Coastal Province (36/INDW);
(vi) Red Sea, Persian Gulf Province (33/REDS);
(8) Indian Ocean Trade Wind Biome:
(i) Indian South Subtropical Gyre Province (31/ISSG);
(ii) Indian Monsoon Gyres Province (30/MONS);
(9) North Pacific Coastal Biome:
(i) Alaska Downwelling Coastal Province (65/ALSK),
(A) Canadian/Alaskan Coastal Subprovince,
(B) Aleutian Stream Coastal Subprovince,
(ii) California Current Province (66/CALC),
(A) Oregon-British Columbia Coastal Subprovince,
(B) Point Conception/Cape Mendicino Coastal Subprovince,
(C) Southern California Bight Subprovince, and
(D) Baja California Subprovince;
(iii) Central American Coastal Province (67/CAMR);
(iv) China Sea Coastal Province (69/CHIN);
(10) South Pacific Coastal Biome:
(i) East Australian Coastal Province (71/AUSE);
(ii) Humboldt Current Coastal Province (68/HUMB);
(A) Chilean Coastal Subprovince and
(B) Peruvian Coastal Subprovince;
(iii) New Zealand Coastal Province (72/NEWZ);
(iv) Sunda/Arafura Shelves Province (70/SUND);
(11) Pacific Polar Biome:
(i) North Pacific Epicontinental Sea Province (50/BERS);
(A) Bering Sea Subprovince;
(B) Okhotsk Sea Subprovince;
(ii) Reserved;
(12) Pacific Trade Wind Biome:
(i) Archipelagic Deep Basins Province (64/ARCH);
(ii) North Pacific Tropical Gyre West Province (56/NPTGW);
(iii) North Pacific Tropical Gyre East Province (60/NPTGE);
(iv) Pacific Equatorial Divergence Province (62/PEQD);
(v) North Pacific Equatorial Countercurrent Province (61/PNEC);
(vi) South Pacific Subtropical Gyre Province (59/SPGS);
(vii) Western Pacific Warm Pool Province (63/WARM);
(13) Pacific Westerly Winds Biome:
(i) Kuroshio Current Province (53/KURO);
(ii) North Pacific Transition Zone Province (54/NPPF);
(iii) Pacific Subarctic Gyres (East) Province (51/PSAGE);
(iv) Pacific Subarctic Gyres (West) Province (52/PSAGW);
(14) Antarctic Westerly Winds Biome:
(i) Subantarctic Water Ring Province (81/SANT),
(A) Atlantic Subantarctic Ring Subprovince;
(B) Indian Ocean Subantarctic Ring Subprovince;
(C) Pacific Ocean Subantarctic Water Ring Subprovince;
(ii) Subtropical Convergence Province (80/SSTC),
(A) Atlantic South Subtropical Convergence Subprovince;
(B) Indian Ocean South Subtropical Convergence Subprovince;
(C) Pacific Ocean South Subtropical Convergence Subprovince;
(iii) Tasman Sea Province (58/TASM);
(15) Antarctic Polar Biome: (SURTASS LFA sonar exclusion zone);
(i) Antarctic Province (82/ANTA)
(ii) Austral Polar Province (83/APLR).
(b) The incidental take by Level A and Level B harassment of marine mammals under the activity identified in this section is limited to the following species and species groups:
(1) Mysticete whales—blue whale (Balaenoptera musculus), fin whale (Balaenoptera physalus), minke whale (Balaenoptera acutorostrata), Bryde's whale (Balaenoptera edeni), sei whale (Balaenoptera borealis), humpback whale (Megaptera novaeangliae), northern right whale (Eubalaena glacialis), southern right whale (Eubalaena australis), pygmy right whale (Capera marginata), bowhead whale (Balaena mysticetus), and gray whales (Eschrichtius robustus).
(2) Odontocete whales—Risso's dolphin (Grampus griseus), rough-toothed dolphin (Steno bredanensis), Fraser's dolphin (Lagenodelphis hosei), right-whale dolphin (Lissodelphis spp.), bottlenose dolphin (Tursiops truncatus), common dolphin (Delphinus delphis), Dall's porpoise (Phocoenoides dalli), harbor porpoise (Phocoena phocoena), beluga whale (Delphinapterus leucas), Stenella spp. Lagenorhynchus spp., Cephalorhynchus spp. melon-headed whale (Peponocephala spp.), beaked whales (Berardius spp., Hyperoodon spp., Mesoplodon spp.), Cuvier's beaked whale (Ziphius cavirostris), Shepard's beaked whale (Tasmacetus shepherdi), Longman's beaked whale (Indopacetus pacificus), killer whale (Orcinus orca), false killer whale (Pseudorca crassidens), pygmy killer whale (Feresa attenuata), sperm whale (Physeter macrocephalus), dwarf and pygmy sperm whales (Kogia simus and K. breviceps), and short-finned and long-finned pilot whales (Globicephala macrorhynchus and G. melas).
(3) Pinnipeds—harbor seals (Phoca vitulina), spotted seals (P. largha), ribbon seals (P. fasciata), gray seals (Halichoerus grypus), hooded seal (Cystophora cristata), elephant seals (Mirounga angustirostris and M. leonina). Hawaiian monk seals (Monachus schauinslandi), Mediterranean monk seals (Monachus monachus), northern fur seals (Callorhinus ursinus); southern fur seals (Arctocephalus spp.), Steller sea lions (Eumetopias jubatus), California sea lions (Zalophus californianus), Australian sea lions (Neophoca cinerea), New Zealand sea lions (Phocarctos hookeri), and South American sea lions (Otaria flavescens).
§ 216.181 Effective dates.
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Regulations in this subpart are effective from August 15, 2002 through August 15, 2007.
§ 216.182 Permissible methods of taking.
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(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 Level A and Level B harassment within the areas 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 the availability of marine mammals for subsistence uses.
§ 216.183 Prohibitions.
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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 Level A and Level B harassment;
(c) Take any marine mammal by receiving a sound pressure level greater than 180 dB while operating under a Letter of Authorization in any geographic area for which a Letter of Authorization has not been issued;
(d) 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
(e) Violate, or fail to comply with, the terms, conditions, and requirements of the regulations in this subpart or any Letter of Authorization issued under §§216.106 and 216.188.
§ 216.184 Mitigation.
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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 section and in any 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 sound pressure level of 180 dB or greater.
(b) If a marine mammal is detected within the area subjected to sound pressure levels of 180 dB or greater (safety zone) or within the 1 km (0.5 nm) (buffer) zone extending beyond the 180-dB safety zone, SURTASS LFA sonar transmissions will be immediately delayed or suspended. Transmissions will not resume earlier than 15 minutes after:
(1) All marine mammals have left the area of the safety and buffer zones; and
(2) There is no further detection of any marine mammal within the safety and buffer zones as determined by the visual and/or passive or active acoustic monitoring described in §216.185.
(c) The high-frequency marine mammal monitoring sonar (HF/M3) described in §216.185 will be ramped-up slowly to operating levels over a period of no less than 5 minutes:
(1) At least 30 minutes prior to any SURTASS LFA sonar transmissions;
(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 HF/M3 source has been powered down for more than 2 minutes.
(d) The HF/M3 source will not increase its sound pressure level once a marine mammal is detected; ramp-up may proceed once marine mammals are no longer detected.
(e) The Holder of a Letter of Authorization will not operate the SURTASS LFA sonar while under a Letter of Authorization, such that the SURTASS LFA sonar sound field exceeds 180 dB (re 1 µPa(rms)):
(1) At a distance of 12 nautical miles (nm) (22 kilometers (km)) from any coastline, including offshore islands;
(2) Within any offshore area that has been designated as biologically important for marine mammals under §216.183(f), during the biologically important season for that particular area;
(3) Within the offshore boundaries that extend beyond 12 nm (22 km) of the following National Marine Sanctuaries:
(i) Monterey Bay,
(ii) Gulf of the Farallones, and
(iii) Cordell Bank;
(4) Within 23 nm (37.4 km) during the months of December, January, March, and May of each year in the Olympic Coast National Marine Sanctuary.
(f) The following areas have been designated by NMFS as offshore areas of critical biological importance for marine mammals (by season if appropriate):
------------------------------------------------------------------------
Months of
Name of area Location of area importance
------------------------------------------------------------------------
(1) 200-m isobath North American From 28° N. to Year-Round.
East Coast. 50° N. west
of 40° W.
(2) Antarctic Convergence Zone.. 30° E. to October 1 through
80° E to March 31.
45° S.
80° E. to
150° E. to
55° S.
150° E. to
50° W. to
60° S.
50° W to
30° E. to
50° S.
(3) Costa Rica Dome............. Centered at 9° Year-Round.
N. and 88° W.
(4) Penguin Bank................ Centered at November 1 through
21° N. and May 1.
157°30[min] W.
------------------------------------------------------------------------
§ 216.185 Requirements for monitoring.
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(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 issued pursuant to §§216.106 and 216.188 must:
(1) Conduct visual monitoring from the ship's bridge during all daylight hours;
(2) Use low frequency passive SURTASS LFA sonar to listen for vocalizing marine mammals; and
(3) Use the HF/M3 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) Monitoring under paragraph (a) of this section must:
(1) Commence at least 30 minutes before the first SURTASS LFA sonar transmission;
(2) Continue between transmission pings; and
(3) Continue either for at least 15 minutes after completion of the SURTASS LFA sonar transmission exercise, or, if marine mammals are exhibiting unusual behavioral patterns, for a period of time until behavior patterns return to normal or conditions prevent continued observations;
(c) Holders of Letters of Authorization for activities described in §216.180 are required to cooperate with the National Marine Fisheries Service and any other federal agency for monitoring the impacts of the activity on marine mammals.
(d) Holders of Letters of Authorization must designate qualified on-site individuals to conduct the mitigation, monitoring and reporting activities specified in the Letter of Authorization.
(e) Holders of Letters of Authorization must conduct all monitoring and research required under the Letter of Authorization.
§ 216.186 Requirements for reporting.
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(a) The Holder of the Letter of Authorization must submit quarterly mission reports to the Director, Office of Protected Resources, NMFS, no later than 30 days after the end of each quarter beginning on the date of effectiveness of a Letter of Authorization or as specified in the appropriate Letter of Authorization. Each quarterly mission report will include all active-mode missions completed during that quarter. At a minimum, each classified mission report must contain the following information:
(1) Dates, times, and location of the vessel during the mission;
(2) Information on sonar transmissions as detailed in the Letter of Authorization; and
(3) Results of the marine mammal monitoring program specified in the Letter of Authorization.
(b) The Holder of a Letter of Authorization must submit an annual report to the Director, Office of Protected Resources, NMFS, no later than 90 days prior to expiration of a Letter of Authorization. This report must contain all the information required by the Letter of Authorization.
(c) A final comprehensive report must be submitted to the Director, Office of Protected Resources, NMFS at least 240 days prior to expiration of these regulations. In addition to containing all the information required by any final year Letter of Authorization, this report must contain an analysis of new passive technologies and an assessment of whether such a system is feasible as an alternative to SURTASS LFA sonar.
§ 216.187 Applications for Letters of Authorization.
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(a) To incidentally take marine mammals pursuant to these regulations, the U.S. Navy authority conducting the activity identified in §216.180 must apply for and obtain a Letter of Authorization in accordance with §216.106.
(b) The application for an initial or a renewal of a Letter of Authorization must be submitted to the Director, Office of Protected Resources, NMFS, at least 60 days before the date that either the vessel is scheduled to begin conducting SURTASS LFA sonar operations or the previous Letter of Authorization is scheduled to expire.
(c) All applications for a Letter of Authorization must include the following information:
(1) The date(s), duration, and the specified geographical region where the vessel's activity 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 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 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 and the level of taking or impacts on marine mammal populations.
(d) The National Marine Fisheries Service will review an application for a Letter of Authorization in accordance with §216.104(b) and, if adequate and complete, issue a Letter of Authorization.
§ 216.188 Letters of Authorization.
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(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 incidental takings;
(3) Means of effecting the least practicable adverse impact on the species of marine mammals authorized for taking, their habitat, and the availability of the species for subsistence uses; and
(4) Requirements for monitoring and reporting incidental 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 an application for a Letter of Authorization will be published in the Federal Register within 30 days of a determination.
§ 216.189 Renewal of Letters of Authorization.
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(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 NMFS 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 NMFS of the information 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 NMFS and determined to be acceptable;
(4) A determination by NMFS 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 (continued)