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72 FR 46890, Aug. 21, 2007, unless otherwise noted. Effective Date Note:
At 72 FR 46890, Aug. 21, 2007, subpart Q, consisting of §§216.180 through 216.191 were added, effective Aug. 16, 2007 through Aug. 15, 2012. 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 four 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 areas (biomes, provinces, and subprovinces) described in Longhurst (1998), as specified in a Letter of Authorization. (b) The incidental take, by Level A and Level B harassment, of marine mammals from the activity identified in this section is limited to the following species and species groups: (1) Mysticete whales—blue ( Balaenoptera musculus ), fin ( Balaenoptera physalus ), minke ( Balaenoptera acutorostrata ), Bryde's ( Balaenoptera edeni ), sei ( Balaenoptera borealis ), humpback ( Megaptera novaeangliae ), North Atlantic right ( Eubalaena glacialis ), North Pacific right ( Eubalena japonica ) southern right ( Eubalaena australis ), pygmy right ( Capera marginata ), bowhead ( Balaena mysticetus ), and gray ( Eschrichtius robustus ) whales. (2) Odontocete whales—harbor porpoise ( Phocoena phocoena ), spectacled porpoise ( Phocoena dioptrica ), beluga ( Dephinapterus leucas ), Stenella spp. , Risso's dolphin ( Grampus griseus ), rough-toothed dolphin ( Steno bredanensis ), Fraser's dolphin ( Lagenodelphis hosei ), northern right-whale dolphin ( Lissodelphis borealis ), southern right whale dolphin ( Lissodelphis peronii ), short-beaked common dolphin ( Delphius delphis ), long-beaked common dolphin ( Delphinus capensis ), very long-beaked common dolphin ( Delphinus tropicalis ), Lagenorhynchus spp. , Cephalorhynchus spp. , bottlenose dolphin ( Tursiops truncatus ), Dall's porpoise ( Phocoenoides dalli ), 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—hooded seal ( Cystophora cristata ), harbor seal ( Phoca vitulina ), spotted seal ( P. largha ), ribbon seal ( P. fasciata ), gray seal ( Halichoerus grypus ), elephant seal ( Mirounga angustirostris and M. leonina ), Hawaiian monk seal ( Monachus schauinslandi ), Mediterranean monk seal ( Monachus monachus ), northern fur seal ( Callorhinus ursinus ), southern fur seal ( Arctocephalus spp. ), harp seal ( Phoca groenlandica ), Galapagos sea lion ( Zalophus californianus wollebaeki ), Japanese sea lion ( Zalophus californianus japonicus ), Steller sea lion ( Eumetopias jubatus ), California sea lion ( Zalophus californianus ), Australian sea lion ( Neophoca cinerea ), New Zealand sea lion ( Phocarctos hookeri ), and South American sea lion ( Otaria flavescens ). § 216.181 Effective dates.Regulations in this subpart are effective from August 16, 2007 through August 15, 2012. § 216.182 Permissible methods of taking.(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 and their habitat. § 216.183 Prohibitions.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 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 (d) 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.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 must act to 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 or about to enter the mitigation zone (the area subjected to sound pressure levels of 180 dB or greater plus the 1 km (0.54 nm) buffer zone extending beyond the 180-dB 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 mitigation and buffer zones; and (2) There is no further detection of any marine mammal within the mitigation 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 sound pressure level will not be increased once a marine mammal is detected; ramp-up may resume once marine mammals are no longer detected. (e) The Holder of a Letter of Authorization will not operate the SURTASS LFA sonar, such that: (1) the SURTASS LFA sonar sound field exceeds 180 dB (re 1 microPa(rms)) at a distance less than 12 nautical miles (nm) (22 kilometers (km)) from any coastline, including offshore islands; (2) the SURTASS LFA sonar sound field exceeds 180 db (re 1 microPa(rms)) at a distance of 1 km (0.5 nm) seaward of the outer perimeter of any offshore biologically important area designated in 216.184(f) during the biologically important period specified. (f) The following areas have been designated by NMFS as Offshore Biologically Important Areas (OBIAs) for marine mammals (by season if appropriate):
§ 216.185 Requirements for monitoring.(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 (30 minutes before sunrise until 30 minutes after sunset); (2) Use low frequency passive SURTASS sonar to listen for vocalizing marine mammals; and (3) Use the HF/M3 (high frequency) sonar developed 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 changes in 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 required under the Letter of Authorization. § 216.186 Requirements for reporting.(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 each vessel during each mission; (2) Information on sonar transmissions during each mission; (3) Results of the marine mammal monitoring program specified in the Letter of Authorization; and (4) Estimates of the percentages of marine mammal species and stocks affected (both for the quarter and cumulatively for the year) covered by 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 45 days after the 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 unclassified analysis of new passive sonar 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.(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 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 area(s) where the vessel's activity will occur; (2) The species and/or stock(s) of marine mammals likely to be found within each area; (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 area 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.(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 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 stocks 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 § 216.189 Renewal of Letters of Authorization.(a) A Letter of Authorization issued for the activity identified in §216.180 may 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 activity, 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 previous Letter of Authorization were undertaken and will be undertaken during the upcoming annual period of validity of a renewed Letter of Authorization; and (5) A determination by NMFS that the number of marine mammals taken by the activity 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 indicates that a substantial modification to the described work, mitigation or monitoring will occur, or if NMFS proposes a substantial modification to the Letter of Authorization, NMFS will provide a period of 30 days for public review and comment on the proposed modification. Amending the 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 § 216.190 Modifications to Letters of Authorization.(a) Except as provided in paragraph (b) of this section, no substantial modification (including withdrawal or suspension) to a Letter of Authorization subject to the provisions of this subpart shall be made by NMFS until after notification and an opportunity for public comment has been provided. For purposes of this paragraph, a renewal of a Letter of Authorization, 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, is not considered a substantial modification. (b) If the National Marine Fisheries Service 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 may be substantially modified without prior notice and opportunity for public comment. Notification will be published in the § 216.191 Designation of Offshore Biologically Important Marine Mammal Areas.(a) Offshore biologically important areas for marine mammals may be nominated under this paragraph by the National Marine Fisheries Service or by members of the public. (b) Proponents must petition NMFS by requesting an area be added to the list of offshore biologically important areas in §216.184(f) and submitting the following information: (1) Geographic region proposed for consideration (including geographic boundaries); (2) A list of marine mammal species or stocks within the proposed geographic region; (3) Whether the proposal is for year-round designation or seasonal, and if seasonal, months of years for proposed designation; (4) Detailed information on the biology of marine mammals within the area, including estimated population size, distribution, density, status, and the principal biological activity during the proposed period of designation sufficient for NMFS to make a preliminary determination that the area is biologically important for marine mammals; and (5) Detailed information on the area with regard to its importance for feeding, breeding, or migration for those species of marine mammals that have the potential to be affected by low frequency sounds; (c) Areas within 12 nm (22 km) of any coastline, including offshore islands, or within non-operating areas for SURTASS LFA sonar are not eligible for consideration. (d) If a petition does not contain sufficient information for the National Marine Fisheries Service to proceed, NMFS will determine whether the nominated area warrants further study. If so, NMFS will begin a scientific review of the area. (e)(1) If through a petition or independently, NMFS makes a preliminary determination that an offshore area is biologically important for marine mammals and is not located within a previously designated area, NMFS will publish a (2) The National Marine Fisheries Service will publish its final determination in the
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