50 CFR § 217.1-217.217 - Regulations governing the take of marine mammals incidental to specified activities

90 50 CFR Ch. II (10–1–22 Edition) Pt. 217 PART 217—REGULATIONS GOV ERNING THE TAKE OF MARINE MAMMALS INCIDENTAL TO SPECIFIED ACTIVITIES Subpart A—Taking Marine Mammals Inci dental to Russian River Estuary Man agement Activities Sec. 217.1 Specified activity and specified geo graphical region. 217.2 Effective dates. 217.3 Permissible methods of taking. 217.4 Prohibitions. 217.5 Mitigation requirements. 217.6 Requirements for monitoring and re porting. 217.7 Letters of Authorization. 217.8 Renewals and modifications of Letters of Authorization. 217.9–217.10 [Reserved] Subpart B[Reserved] Subpart C—Taking Marine Mammals Inci dental to Research and Monitoring in Southern Alaska National Parks 217.20 Specified activity and specified geo graphical region. 217.21 Effective dates. 217.22 Permissible methods of taking. 217.23 Prohibitions. 217.24 Mitigation requirements. 217.25 Requirements for monitoring and re porting. 217.26 Letters of Authorization. 217.27 Renewals and modifications of Let ters of Authorization. 217.28–217.29 [Reserved] Subpart D—Taking Marine Mammals Inci dental to Construction and Operation of the Liberty Drilling and Production Island 217.30 Specified activity and specified geo graphical region. 217.31 Effective dates. 217.32 Permissible methods of taking. 217.33 Prohibitions. 217.34 Mitigation requirements. 217.35 Requirements for monitoring and re porting. 217.36 Letters of Authorization. 217.37 Renewals and modifications of Let ters of Authorization. 217.38–217.39 [Reserved] Subpart E—Taking and Importing Marine Mammals; Alaska Gasline Develop ment Corporation Liquefied Natural Gas Facilities Construction 217.40 Specified activity and specified geo graphical region. 217.41 Effective dates. 217.42 Permissible methods of taking. 217.43 Prohibitions. 217.44 Mitigation requirements. 217.45 Requirements for monitoring and re porting. 217.46 Letters of Authorization. 217.47 Renewals and modifications of Let ters of Authorization. 217.48–217.49 [Reserved] Subpart F—Taking Marine Mammals Inci dental to Lighthouse Repair and Tour Operations at Northwest Seal Rock, California 217.50 Specified activity and specified geo graphical region. 217.51 Effective dates. 217.52 Permissible methods of taking. 217.53 Prohibitions. 217.54 Mitigation requirements. 217.55 Requirements for monitoring and re porting. 217.56 Letters of Authorization. 217.57 Renewals and modifications of Let ters of Authorization. 217.58 [Reserved] 217.59 [Reserved] Subpart G—Taking and Importing Marine Mammals; Taking Marine Mammals In cidental to U.S. Air Force Launches and Operations at Vandenberg Air Force Base, California 217.60 Specified activity and specified geo graphical region. 217.61 Effective dates. 217.62 Permissible methods of taking. 217.63 Prohibitions. 217.64 Mitigation requirements. 217.65 Requirements for monitoring and re porting. 217.66 Letters of Authorization. 217.67 Renewals and modifications of Let ters of Authorization. 217.68–217.69 [Reserved] Subpart H [Reserved] Subpart I—Taking of Marine Mammals In cidental to Naval Explosive Ordnance Disposal School Training Operations 217.80 Specified activity and specified geo graphical region. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00100 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 91 National Marine Fisheries Service/NOAA, Commerce Pt. 217 217.81 Effective dates. 217.82 Permissible methods of taking. 217.83 Prohibitions. 217.84 Mitigation. 217.85 Requirements for monitoring and re porting. 217.86 Applications for Letters of Authoriza tion. 217.87 Letters of Authorization. 217.88 Renewal and review of Letters of Au thorization and adaptive management. 217.89 Modifications of Letters of Author ization. Subpart J—Taking and Importing Marine Mammals; U.S. Navy’s Submarine Base New London Pier Construction 217.90 Specified activity and specified geo graphical region. 217.91 Effective dates. 217.92 Permissible methods of taking. 217.93 Prohibitions. 217.94 Mitigation requirements. 217.95 Requirements for monitoring and re porting. 217.96 Letters of Authorization. 217.97 Renewals and modifications of Let ters of Authorization. 217.98–217.99 [Reserved] Subpart K—Taking Marine Mammals Inci dental to Rocky Intertidal Monitoring Surveys Along the Oregon and Cali fornia Coasts 217.100 Specified activity and specified geo graphical region. 217.101 Effective dates. 217.102 Permissible methods of taking. 217.103 Prohibitions. 217.104 Mitigation requirements. 217.105 Requirements for monitoring and re porting. 217.106 Letters of Authorization. 217.107 Renewals and modifications of Let ters of Authorization. 217.108—217.109 [Reserved] Subpart L—Taking Marine Mammals Inci dental to Conducting Precision Strike Weapon and Air-to-Surface Gunnery Missions at Eglin Gulf Test and Training Range (EGTTR) in the Gulf of Mexico 217.110 Specified activity and specified geo graphical region. 217.111 Effective dates. 217.112 Permissible methods of taking. 217.113 Prohibitions. 217.114 Mitigation. 217.115 Requirements for monitoring and re porting. 217.116 Applications for Letters of Author ization. 217.117 Letters of Authorization. 217.118 Renewals and Modifications of Let ters of Authorization. Subpart M—Taking Marine Mammals Inci dental to Seabird Research Activities in Central California 217.120 Specified activity and specified geo graphical region. 217.121 Effective dates. 217.122 Permissible methods of taking. 217.123 Prohibitions. 217.124 Mitigation requirements. 217.125 Requirements for monitoring and re porting. 217.126 Letters of Authorization. 217.127 Renewals and modifications of Let ters of Authorization. 217.128–217.129 [Reserved] Subpart N [Reservedb Subpart P—Taking Marine Mammals Inci dental to Ice Roads and Ice Trails Construction and Maintenance on Alaska’s North Slope 217.150 Specified activity and specified geo graphical region. 217.151 Effective dates. 217.152 Permissible methods of taking. 217.153 Prohibitions. 217.154 Mitigation requirements. 217.155 Requirements for monitoring and re porting. 217.156 Letters of Authorization. 217.157 Renewals and modifications of Let ters of Authorization. 217.158–217.159 [Reserved] Subpart Q—Taking and Importing Marine Mammals; Taking Marine Mammals In cidental to Oil and Gas Activities in Cook Inlet, Alaska. 217.160 Specified activity and specified geo graphical region. 217.161 Effective dates. 217.162 Permissible methods of taking. 217.163 Prohibitions. 217.164 Mitigation requirements. 217.165 Requirements for monitoring and re porting. 217.166 Letters of Authorization. 217.167 Renewals and modifications of Let ters of Authorization and adaptive man agement. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00101 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 92 50 CFR Ch. II (10–1–22 Edition) § 217.1 217.168–217.169 [Reserved] Subpart R—Taking and Importing Marine Mammals Incidental to U.S. Navy Bulk head Replacement/Repairs at Naval Station Newport in Newport, Rhode Is land 217.170 Specified activity and geographical region. 217.171 Effective dates. 217.172 Permissible methods of taking. 217.173 Prohibitions. 217.174 Mitigation requirements. 217.175 Requirements for monitoring and re porting. 217.176 Letters of Authorization. 217.177 Renewals and modifications of Let ters of Authorization. 217.178–217.179 [Reserved] Subpart S—Taking Marine Mammals Inci dental to Geophysical Survey Activi ties in the Gulf of Mexico 217.180 Specified activity and specified geo graphical region. 217.181 Effective dates. 217.182 Permissible methods of taking. 217.183 Prohibitions. 217.184 Mitigation requirements. 217.185 Requirements for monitoring and re porting. 217.186 Letters of Authorization. 217.187 Renewals and modifications of Let ters of Authorization. 217.188–217.189 [Reserved] Subpart T [Reserved] Subpart U—Taking Of Marine Mammals In cidental to The Port of Anchorage Ma rine Terminal Redevelopment Project 217.200 Specified activities and specified geographical region. 217.201 Effective dates. 217.202 Permissible methods of taking. 217.203 Prohibitions. 217.204 Mitigation. 217.205 Requirements for monitoring and re porting. 217.206 Applications for Letters of Author ization. 217.207 Letters of Authorization. 217.208 Renewal of Letters of Authorization. 217.209 Modifications of Letters of Author ization. Subpart W—Taking and Importing Marine Mammals Incidental to Hampton Roads Connector Partners Construc tion at Norfolk, Virginia 217.210 Specified activity and geographical region. 217.211 Effective dates. 217.212 Permissible methods of taking. 217.213 Prohibitions. 217.214 Mitigation requirements. 217.215 Requirements for monitoring and re porting. 217.216 Letters of Authorization. 217.217 Renewals and modifications of Let ters of Authorization. 217.218–217.219 [Reserved] Subpart X [Reserved] Subpart Z [Reserved] Subpart AA–[Reserved] AUTHORITY: 16 U.S.C. 1361 et seq., unless otherwise noted. SOURCE: 74 FR 35143, July 20, 2009, unless otherwise noted. Subpart A—Taking Marine Mam mals Incidental to Russian River Estuary Management Activities SOURCE: 87 FR 23120, Apr. 19, 2022, unless otherwise noted. EFFECTIVE DATE NOTE: At 87 FR 23120, Apr.19, 2022, subpart A was revised, effective Apr. 21, 2022, through Apr. 20, 2027. § 217.1 Specified activity and specified geographical region. (a) Regulations in this subpart apply only to the Sonoma County Water Agency (SCWA) and those persons it authorizes or funds to conduct activi ties on its behalf for the taking of ma rine mammals that occurs in the area outlined in paragraph (b) of this sec tion and that occurs incidental to estu ary management activities. (b) The taking of marine mammals by SCWA may be authorized in a Let ter of Authorization (LOA) only if it occurs at Goat Rock State Beach or in the Russian River estuary in Cali fornia. § 217.2 Effective dates. Regulations in this subpart are effec tive from April 21, 2022, through April 20, 2027. § 217.3 Permissible methods of taking. (a) Under LOAs issued pursuant to §§ 216.106 of this chapter and 217.7, the Holder of the LOA (hereinafter VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00102 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 93 National Marine Fisheries Service/NOAA, Commerce § 217.5 ‘‘SCWA’’) may incidentally, but not in tentionally, take marine mammals within the area described in § 217.1(b) of this chapter by Level B harassment as sociated with estuary management ac tivities, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA. (b) [Reserved] § 217.4 Prohibitions. Except for the takings contemplated in § 217.3 and authorized by an LOA issued under §§ 216.106 of this chapter and 217.7, it is unlawful for any person to do any of the following in connec tion with the activities described in § 217.1 of this chapter: (a) Violate, or fail to comply with, the terms, conditions, and require ments of this subpart or an LOA issued under §§ 216.106 of this chapter and 217.7; (b) Take any marine mammal not specified in such LOAs; (c) Take any marine mammal speci fied in such LOAs in any manner other than as specified; (d) Take a marine mammal specified in such LOAs if NMFS determines such taking results in more than a neg ligible impact on the species or stocks of such marine mammal; or (e) Take a marine mammal specified in such LOAs if NMFS determines such taking results in an unmitigable ad verse impact on the species or stock of such marine mammal for taking for subsistence uses. § 217.5 Mitigation requirements. When conducting the activities iden tified in § 217.1(a), the mitigation meas ures contained in any LOA issued under §§ 216.106 of this chapter and 217.7 must be implemented. These mitiga tion measures shall include but are not limited to: (a) General conditions: (1) A copy of any issued LOA must be in the possession of SCWA, its des ignees, and work crew personnel oper ating under the authority of the issued LOA. (2) If SCWA observes a pup that may be abandoned, it shall contact the Na tional Marine Fisheries Service (NMFS) West Coast Regional Stranding Coordinator immediately and also re port the incident to NMFS Office of Protected Resources within 48 hours. Observers shall not approach or move the pup. (b) SCWA crews shall cautiously ap proach the haul-out ahead of heavy equipment. (c) SCWA staff shall avoid walking or driving equipment through the seal haul-out. (d) Crews on foot shall make an effort to be seen by seals from a distance. (e) All work shall be completed as ef ficiently as possible and with the smallest amount of heavy equipment possible. (f) Boats operating near river haul outs during monitoring shall be kept within posted speed limits and driven as far from the haul-outs as safely pos sible. (g) SCWA shall implement the fol lowing mitigation measures during pupping season (March 15–June 30): (1) SCWA shall maintain a one week no-work period between water level management events (unless flooding is an immediate threat) to allow for an adequate disturbance recovery period. During the no-work period, equipment must be removed from the beach; (2) A water level management event may not occur for more than two con secutive days unless flooding threats cannot be controlled. (3) If a pup less than one week old is on the beach where heavy machinery will be used or on the path used to ac cess the work location, the manage ment action shall be delayed until the pup has left the site or the latest day possible to prevent flooding while still maintaining suitable fish rearing habi tat. In the event that a pup remains present on the beach in the presence of flood risk, SCWA shall consult with NMFS and the California Department of Fish and Wildlife to determine the appropriate course of action. SCWA shall determine if pups less than one week old are on the beach prior to a breaching event. (4) Physical and biological moni toring shall not be conducted if a pup less than one week old is present at the monitoring site or on a path to the site. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00103 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 94 50 CFR Ch. II (10–1–22 Edition) § 217.6 § 217.6 Requirements for monitoring and reporting. (a) Monitoring and reporting shall be conducted in accordance with the ap proved Pinniped Monitoring Plan. (b) Reporting: (1) Annual reporting: (i) SCWA shall submit an annual summary report to NMFS not later than ninety days following the end of a given calendar year. SCWA shall pro vide a final report within thirty days following resolution of comments on the draft report. (ii) These reports shall contain, at minimum, the following: (A) The number of seals taken, by species and age class (if possible); (B) Behavior prior to and during water level management events; (C) Start and end time of activity; (D) Estimated distances between source and seals when disturbance oc curs; (E) Weather conditions (e.g., tem perature, wind, etc.); (F) Haul-out reoccupation time of any seals based on post-activity moni toring; (G) Tide levels and estuary water sur face elevation; and (H) Seal census from haul-out moni toring. (2) [Reserved] (c) Reporting of injured or dead ma rine mammals: (1) In the unanticipated event that the activity defined in § 217.1(a) clearly causes the take of a marine mammal in a prohibited manner, SCWA shall im mediately cease such activity and re port the incident to the Office of Pro tected Resources (OPR), NMFS and the West Coast Regional Stranding Coordi nator, NMFS. Activities shall not re sume until NMFS is able to review the circumstances of the prohibited take. NMFS will work with SCWA to deter mine what measures are necessary to minimize the likelihood of further pro hibited take and ensure MMPA compli ance. SCWA may not resume their ac tivities until notified by NMFS. The report must include the following in formation: (i) Time and date of the incident; (ii) Description of the incident; (iii) Environmental conditions; (iv) Description of all marine mam mal observations in the 24 hours pre ceding the incident; (v) Species identification or descrip tion of the animal(s) involved; (vi) Fate of the animal(s); and (vii) Photographs or video footage of the animal(s). (2) In the event that SCWA discovers an injured or dead marine mammal and determines that the cause of the injury or death is unknown and the death is relatively recent (e.g., in less than a moderate state of decomposition), SCWA shall immediately report the in cident to OPR and the West Coast Re gional Stranding Coordinator, NMFS. The report must include the informa tion identified in paragraph (c)(1) of this section. Activities may continue while NMFS reviews the circumstances of the incident. NMFS will work with SCWA to determine whether additional mitigation measures or modifications to the activities are appropriate. (3) In the event that SCWA discovers an injured or dead marine mammal and determines that the injury or death is not associated with or related to the activities defined in § 217.1(a) (e.g., pre viously wounded animal, carcass with moderate to advanced decomposition, scavenger damage), SCWA shall report the incident to OPR and the West Coast Regional Stranding Coordinator, NMFS, within 24 hours of the dis covery. SCWA shall provide photo graphs or video footage or other docu mentation of the stranded animal sighting to NMFS. (4) Pursuant to paragraphs (c)(2–3) of this section, SCWA may use discretion in determining what injuries (i.e., na ture and severity) are appropriate for reporting. At minimum, SCWA must report those injuries considered to be serious (i.e., will likely result in death) or that are likely caused by human interaction (e.g., entanglement, gun shot). Also pursuant to sections para graphs (c)(2–3) of this section, SCWA may use discretion in determining the appropriate vantage point for obtain ing photographs of injured/dead marine mammals. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00104 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 95 National Marine Fisheries Service/NOAA, Commerce § 217.8 § 217.7 Letters of Authorization. (a) To incidentally take marine mammals pursuant to these regula tions, SCWA must apply for and obtain an LOA. (b) An LOA, unless suspended or re voked, may be effective for a period of time not to exceed the expiration date of these regulations. (c) If an LOA expires prior to the ex piration date of these regulations, SCWA may apply for and obtain a re newal of the LOA. (d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, SCWA must apply for and obtain a modification of the LOA as described in § 217.8. (e) The LOA shall set forth: (1) Permissible methods of incidental taking; (2) Means of effecting the least prac ticable adverse impact (i.e., mitigation) on the species, its habitat, and on the availability of the species for subsist ence uses; and (3) Requirements for monitoring and reporting. (f) Issuance of the LOA shall be based on a determination that the level of taking will be consistent with the find ings made for the total taking allow able under these regulations. (g) Notice of issuance or denial of an LOA shall be published in the FEDERAL REGISTER within 30 days of a deter mination. § 217.8 Renewals and modifications of Letters of Authorization. (a) An LOA issued under §§ 216.106 of this chapter and 217.7 for the activity identified in § 217.1(a) shall be renewed or modified upon request by the appli cant, provided that: (1) The proposed specified activity and mitigation, monitoring, and re porting measures, as well as the antici pated impacts, are the same as those described and analyzed for these regu lations (excluding changes made pursu ant to the adaptive management provi sion in paragraph (c)(1) of this section), and (2) NMFS determines that the miti gation, monitoring, and reporting measures required by the previous LOA under these regulations were imple mented. (b) For an LOA modification or re newal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS may publish a notice of proposed LOA in the FEDERAL REGISTER, including the associated analysis of the change, and solicit pub lic comment before issuing the LOA. (c) An LOA issued under §§ 216.106 of this chapter and 217.7 for the activity identified in § 217.1(a) may be modified by NMFS under the following cir cumstances: (1) Adaptive Management—NMFS may modify (including augment) the existing mitigation, monitoring, or re porting measures (after consulting with SCWA regarding the practica bility of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring set forth in the preamble for these regula tions. (i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or report ing measures in an LOA: (A) Results from SCWA’s monitoring from the previous year(s). (B) Results from other marine mam mal and/or sound research or studies. (C) Any information that reveals ma rine mammals may have been taken in a manner, extent or number not au thorized by these regulations or subse quent LOAs. (ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a no tice of proposed LOA in the FEDERAL REGISTER and solicit public comment. (2) Emergencies—If NMFS deter mines that an emergency exists that poses a significant risk to the well being of the species or stocks of marine mammals specified in LOAs issued pur suant to §§ 216.106 of this chapter and VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00105 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 96 50 CFR Ch. II (10–1–22 Edition) §§ 217.9–217.10 217.7, an LOA may be modified without prior notice or opportunity for public comment. Notice would be published in the FEDERAL REGISTER within thirty days of the action. §§ 217.9–217.10 [Reserved] Subpart B [Reserved] Subpart C—Taking Marine Mam mals Incidental to Research and Monitoring in Southern Alaska National Parks SOURCE: 84 FR 8274, Mar. 7, 2019, unless oth erwise noted. EFFECTIVE DATE NOTE: At 84 FR 8274, Mar. 7, 2019, subpart C was added, effective Mar. 7, 2019, through Feb. 29, 2024. § 217.20 Specified activity and speci fied geographical region. (a) Regulations in this subpart apply only to the National Park Service (NPS) and those persons it authorizes or funds to conduct activities on its be half for the taking of marine mammals that occurs in the area outlined in paragraph (b) of this section and that occurs incidental to the NPS’s research and monitoring activities listed in the Letters of Authorization (LOA). (b) The taking of marine mammals by NPS may be authorized in an LOA only if it occurs at Glacier Bay Na tional Park (GLBA NP) or in the NPS’s Southwest Alaska Inventory and Moni toring Network (SWAN) sites. § 217.21 Effective dates. Regulations in this subpart are effec tive from March 7, 2019 through Feb ruary 29, 2024. § 217.22 Permissible methods of tak ing. Under LOAs issued pursuant to §§ 216.106 of this chapter and 217.26, the Holder of the LOA (hereinafter ‘‘NPS’’) may incidentally, but not inten tionally, take marine mammals within the area described in § 217.20(b) by Level B harassment associated with re search and monitoring activities, pro vided the activity is in compliance with all terms, conditions, and require ments of the regulations in this sub part and the appropriate LOA. § 217.23 Prohibitions. Notwithstanding takings con templated in § 217.20 and authorized by an LOA issued under §§ 216.106 of this chapter and 217.26, no person in connec tion with the activities described in § 217.20 may: (a) Violate, or fail to comply with, the terms, conditions, and require ments of this subpart or an LOA issued under §§ 216.106 of this chapter and 217.26; (b) Take any marine mammal not specified in such LOAs; (c) Take any marine mammal speci fied in such LOAs in any manner other than as specified; (d) Take a marine mammal specified in such LOAs if NMFS determines such taking results in more than a neg ligible impact on the species or stocks of such marine mammal; or (e) Take a marine mammal specified in such LOAs if NMFS determines such taking results in an unmitigable ad verse impact on the species or stock of such marine mammal for taking for subsistence uses. § 217.24 Mitigation requirements. When conducting the activities iden tified in § 217.20(a), the mitigation measures contained in any LOA issued under §§ 216.106 of this chapter and 217.24 must be implemented. These mitigation measures shall include but are not limited to: (a) General conditions. (1) A copy of any issued LOA must be in the posses sion of NPS, its designees, and addi tional survey crew personnel operating under the authority of the issued LOA; (2) Before all surveys, the lead NPS biologist must instruct additional sur vey crew on appropriate conduct when in the vicinity of hauled-out marine mammals. This training must brief survey personnel on marine mammals (inclusive of identification as needed, e.g., neonates); and (3) NPS must avoid interaction with any marine mammal species for which take is not authorized (or any species for which authorized take numbers have been met). For humpback, killer, VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00106 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 97 National Marine Fisheries Service/NOAA, Commerce § 217.25 and beluga whales, NPS must avoid op eration of a motor vessel within 1⁄4 nau tical mile of these cetaceans. If acci dentally positioned within 1⁄4 nautical mile of these cetaceans, NPS must slow the vessel speed to 10 knots or less and maintain course away from the marine mammal until at least 1⁄4 nautical mile of separation exists; (b) Glacier Bay gull and climate moni toring. (1) On an annual basis, NPS may conduct a maximum of five days of gull monitoring for each survey location listed in the LOA; (2) On an annual basis, the NPS may conduct a maximum of three days of activities related to climate moni toring on Lone Island; (3) NPS is required to conduct pre survey monitoring before deciding to access a study site; (4) Prior to deciding to land onshore, NPS must use high-powered image sta bilizing binoculars before approaching at distances of greater than 500 m (1,640 ft) to determine and document the number, species, and location of hauled-out marine mammals; (5) During pre-survey monitoring, vessels must maintain a distance of 328 to 1,640 ft (100 to 500 m) from the shore line; (6) If a harbor seal pup less than one week of age (neonate) is present within or near a study site or a path to a study site, NPS must not access the site nor conduct the study at that time. In addition, if during the activ ity, a pup less than one week of age is observed, all research activities must conclude for the day; (7) NPS must maintain a distance of at least 100 m from any Steller sea lion; (8) NPS must perform controlled and slow ingress to islands where harbor seals are present; (9) NPS must monitor for offshore predators at the study sites during pre survey monitoring and must avoid re search activities when killer whales (Orcinus orca) or other predators are observed within a 1 mile radius; and (10) NPS must maintain a quiet working atmosphere, avoid loud noises, and must use hushed voices in the pres ence of hauled-out pinnipeds; and (c) SWAN marine bird surveys. (1) On an annual basis, NPS may conduct one summer survey at each location listed in the LOA; (2) On an annual basis, the NPS may conduct one winter survey at each lo cation listed in the LOA; (3) NPS must maintain a minimum vessel distance of 100 meters from the shoreline at all times while surveying; and (4) If hauled out Steller sea lions or harbor seals are observed, NPS must maintain the vessel speed and min imum distance. If survey conditions allow, the survey must be attempted from a distance greater than 150 me ters. § 217.25 Requirements for monitoring and reporting. NPS is required to conduct marine mammal monitoring during research and monitoring activities. NPS and/or its designees must record the following for the designated monitoring activity: (a) Glacier Bay gull and climate moni toring. (1) Species counts (with numbers of adults/juveniles); and numbers of disturbances, by species and age, ac cording to a three-point scale of inten sity; (2) Information on the weather, in cluding the tidal state and horizontal visibility; (3) The observer will note the pres ence of any offshore predators (date, time, number, and species); and (4) The observer must note unusual behaviors, numbers, or distributions of pinnipeds, such that any potential fol low-up research can be conducted by the appropriate personnel; marked or tag-bearing pinnipeds or carcasses, al lowing transmittal of the information to appropriate agencies; and any rare or unusual species of marine mammal for agency follow-up. The observer must report that information to NMFS’s Alaska Fisheries Science Cen ter and/or the Alaska Department of Fish and Game Marine Mammal Pro gram. (b) SWAN marine bird surveying. (1) Species counts and numbers of type 3, flushing, disturbances; (2) Information on the weather, in cluding the tidal state and horizontal visibility; and (3) The observer must note unusual behaviors, numbers, or distributions of VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00107 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 98 50 CFR Ch. II (10–1–22 Edition) § 217.25 pinnipeds, such that any potential fol low-up research can be conducted by the appropriate personnel; marked or tag-bearing pinnipeds or carcasses, al lowing transmittal of the information to appropriate agencies; and any rare or unusual species of marine mammal for agency follow-up. The observer must report that information to NMFS’s Alaska Fisheries Science Cen ter and/or the Alaska Department of Fish and Game Marine Mammal Pro gram. (c) Annual reporting. NPS must sub mit separate annual draft reports for GLBA NP and SWAN on all monitoring conducted within ninety calendar days of the completion of annual research and monitoring activities. Final re ports for both GLBA NP and SWAN must be prepared and submitted within thirty days following resolution of comments on each draft report from NMFS. This report must contain: (1) A summary and table of the dates, times, and weather during all research activities; (2) Species, number, location, and be havior of any marine mammals ob served throughout all monitoring ac tivities; (3) An estimate of the number (by species) of marine mammals exposed to acoustic or visual stimuli associated with the research activities; and (4) A description of the implementa tion and effectiveness of the moni toring and mitigation measures of the Authorization and full documentation of methods, results, and interpretation pertaining to all monitoring. (d) Comprehensive reporting. NPS must submit a comprehensive 5-year report covering all activities conducted under the incidental take regulations at least 90 days prior to expiration of these reg ulations if new regulations are sought or 90 days after expiration of regula tions. (e) Reporting of injured or dead marine mammals. (1) In the unanticipated event that the activity defined in § 219.20(a) clearly causes the take of a marine mammal in a prohibited manner such as an injury (Level A harassment), se rious injury, or mortality, NPS must immediately cease the specified activi ties and report the incident to the Of fice of Protected Resources, NMFS, and the Alaska Regional Stranding Coordi nator, NMFS. The report must include the following information: (i) Time and date of the incident; (ii) Description of the incident; (iii) Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, and visibility); (iv) Description of all marine mam mal observations and active sound source use in the 24 hours preceding the incident; (v) Species identification or descrip tion of the animal(s) involved; (vi) Fate of the animal(s); and (vii) Photographs or video footage of the animal(s); (2) Activities must not resume until NMFS is able to review the cir cumstances of the prohibited take. NMFS will work with NPS to deter mine what measures are necessary to minimize the likelihood of further pro hibited take and ensure MMPA compli ance. NPS must not resume their ac tivities until notified by NMFS; (3) In the event that NPS discovers an injured or dead marine mammal, and the lead observer determines that the cause of the injury or death is un known and the death is relatively re cent (e.g., in less than a moderate state of decomposition), NPS must imme diately report the incident to the Of fice of Protected Resources, NMFS, and the Alaska Stranding Coordinator, NMFS. The report must include the same information identified in para graph (e)(1) of this section. Activities may continue while NMFS reviews the circumstances of the incident. NMFS will work with NPS to determine whether additional mitigation meas ures or modifications to the activities are appropriate; (4) In the event that NPS discovers an injured or dead marine mammal and determines that the injury or death is not associated with or related to the activities defined in § 217.20(a) (e.g., previously wounded animal, carcass with moderate to advanced decomposi tion, scavenger damage), NPS must re port the incident to OPR and the Alas ka Stranding Coordinator, NMFS, within 24 hours of the discovery. NPS must provide photographs or video footage or other documentation of the stranded animal sighting to NMFS. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00108 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 99 National Marine Fisheries Service/NOAA, Commerce § 217.27 NPS can continue their research ac tivities; and (5) Pursuant to paragraphs (e)(2) through (4) of this section, NPS may use discretion in determining what in juries (i.e., nature and severity) are ap propriate for reporting. At minimum, NPS must report those injuries consid ered to be serious (i.e., will likely re sult in death) or that are likely caused by human interaction (e.g., entangle ment, gunshot). Also pursuant to para graphs (e)(3) and (4) of this section, NPS may use discretion in determining the appropriate vantage point for ob taining photographs of injured/dead marine mammals. § 217.26 Letters of Authorization. (a) To incidentally take marine mammals pursuant to these regula tions, NPS must apply for and obtain an LOA. (b) An LOA, unless suspended or re voked, may be effective for a period of time not to exceed the expiration date of these regulations. (c) If an LOA expires prior to the ex piration date of these regulations, NPS may apply for and obtain a renewal of the LOA. (d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, NPS must apply for and obtain a modification of the LOA as described in § 217.27. (e) The LOA shall set forth: (1) Permissible methods of incidental taking; (2) Means of effecting the least prac ticable adverse impact (i.e., mitigation) on the species, its habitat, and on the availability of the species for subsist ence uses; and (3) Requirements for monitoring and reporting. (f) Issuance of the LOA shall be based on a determination that the level of taking will be consistent with the find ings made for the total taking allow able under these regulations. (g) Notice of issuance or denial of an LOA shall be published in the FEDERAL REGISTER within 30 days of a deter mination. § 217.27 Renewals and modifications of Letters of Authorization. (a) An LOA issued under §§ 216.106 of this chapter and 217.26 for the activity identified in § 217.20(a) shall be renewed or modified upon request by the appli cant, provided that: (1) The proposed specified activity and mitigation, monitoring, and re porting measures, as well as the antici pated impacts, are the same as those described and analyzed for these regu lations (excluding changes made pursu ant to the adaptive management provi sion in paragraph (c)(1) of this section); and (2) NMFS determines that the miti gation, monitoring, and reporting measures required by the previous LOA under these regulations were imple mented. (b) For an LOA modification or re newal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS may publish a notice of proposed LOA in the FEDERAL REGISTER, including the associated analysis of the change, and solicit pub lic comment before issuing the LOA. (c) An LOA issued under §§ 216.106 of this chapter and 217.26 for the activity identified in § 217.20(a) may be modified by NMFS under the following cir cumstances: (1) Adaptive management. NMFS may modify (including augment) the exist ing mitigation, monitoring, or report ing measures (after consulting with NPS regarding the practicability of the modifications) if doing so creates a rea sonable likelihood of more effectively accomplishing the goals of the mitiga tion and monitoring set forth in the preamble for these regulations. (i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or report ing measures in an LOA: (A) Results from NPS’s monitoring from the previous year(s). VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00109 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 100 50 CFR Ch. II (10–1–22 Edition) §§ 217.28–217.29 (B) Results from other marine mam mal research or studies. (C) Any information that reveals ma rine mammals may have been taken in a manner, extent or number not au thorized by these regulations or subse quent LOAs. (ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS shall publish a no tice of proposed LOA in the FEDERAL REGISTER and solicit public comment. (2) Emergencies. If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in LOAs issued pursuant to §§ 216.106 of this chapter and 217.26, an LOA may be modified without prior no tice or opportunity for public com ment. Notice would be published in the FEDERAL REGISTER within thirty days of the action. §§ 217.28–217.29 [Reserved] Subpart D—Taking Marine Mam mals Incidental to Construc tion and Operation of the Lib erty Drilling and Production Is land SOURCE: 84 FR 70322, Dec. 20, 2019, unless otherwise noted. EFFECTIVE DATE NOTE: At 84 FR 70322, Dec. 20, 2019, subpart D was added, effective Dec. 1, 2021, through Nov. 30 2026. § 217.30 Specified activity and speci fied geographical region. (a) Regulations in this subpart apply only to Hilcorp LLC (Hilcorp) and those persons it authorizes or funds to conduct activities on its behalf for the taking of marine mammals that occurs in the areas outlined in paragraph (b) of this section and that occurs inci dental to construction, maintenance, and operation of the Liberty Drilling and Production Island (LDPI) and asso ciated infrastructure. (b) The taking of marine mammals by Hilcorp may be authorized in a Let ter of Authorization (LOA) only if it occurs within the Beaufort Sea, Alas ka. § 217.31 Effective dates. Regulations in this subpart are effec tive from December 1, 2021, through November 30, 2026. § 217.32 Permissible methods of tak ing. Under LOAs issued pursuant to §§ 216.106 of this chapter and 217.36, the Holder of the LOA (hereinafter ‘‘Hilcorp’’) may incidentally, but not intentionally, take marine mammals within the area described in § 217.30(b) by mortality, serious injury, Level A harassment, or Level B harassment as sociated with the LDPI construction and operation activities, including as sociated infrastructure, provided the activities are in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA. § 217.33 Prohibitions. Notwithstanding takings con templated in § 217.32 and authorized by an LOA issued under §§ 216.106 of this chapter and 217.36, no person in connec tion with the activities described in § 217.30 may: (a) Violate, or fail to comply with, the terms, conditions, and require ments of this subpart or an LOA issued under §§ 216.106 of this chapter and 217.36; (b) Take any marine mammal not specified in such LOAs; (c) Take any marine mammal speci fied in such LOAs in any manner other than as specified; (d) Take a marine mammal specified in such LOAs if the National Marine Fisheries Service (NMFS) determines such taking results in more than a neg ligible impact on the species or stocks of such marine mammal; or (e) Take a marine mammal specified in such LOAs if NMFS determines such taking results in an unmitigable ad verse impact on the species or stock of such marine mammal for taking for subsistence uses. § 217.34 Mitigation requirements. When conducting the activities iden tified in § 217.30(a), the mitigation measures contained in any LOA issued under § 216.106 of this chapter must be VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00110 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 101 National Marine Fisheries Service/NOAA, Commerce § 217.34 implemented. These mitigation meas ures shall include but are not limited to: (a) General conditions. (1) Hilcorp must renew, on an annual basis, the Plan of Cooperation (POC), throughout the life of the regulations in this sub part; (2) A copy of any issued LOA must be in the possession of Hilcorp, its des ignees, and work crew personnel oper ating under the authority of the issued LOA; (3) Hilcorp must conduct briefings for construction and ice road supervisors and crews, and the marine mammal and acoustic monitoring teams prior to the start of annual ice road or LDPI construction, and when new personnel join the work, in order to explain re sponsibilities, communication proce dures, the marine mammal monitoring protocol, and operational procedures; (4) Hilcorp must allow subsistence hunters to use the LDPI for safe harbor during severe storms, if requested by hunters; (5) In the unanticipated event of an oil spill during LDPI operational years, Hilcorp must notify NMFS of the spill within 48 hours, regardless of size, and implement measures contained within the Liberty Oil Spill Response Plan; and (6) Hilcorp must strive to complete pile driving and pipeline installation during the ice-covered season. (7) Except during takeoff and landing and in emergency situations, aircraft must maintain an altitude of at least 457 m (1,500 ft). If a marine mammal is observed, then a horizontal distance of 305 m (100 ft) of whales or seals will be maintained between the aircraft and the observed marine mammals. (b) Ice road construction, maintenance, and operation. (1) Hilcorp must imple ment the NMFS-approved Ice Road and Ice Trail Best Management Practices (BMPs) and the Wildlife Action Plan. These documents may be updated as needed throughout the life of the regu lations in this subpart, in consultation with NMFS. (2) Hilcorp must not approach ringed seal structures (i.e., lairs or breathing holes) within 150 m or ringed seals within 50 m. (c) Liberty Drilling Production Island construction. (1) For all pile driving and construction activities involving heavy equipment, Hilcorp must implement a minimum shutdown zone of 10 meters (m) from any marine mammal in water or seals on land. If a marine mammal comes within or is about to enter the shutdown zone, such operations must cease immediately; (2) For all pile driving activity, Hilcorp shall implement shutdown zones with radial distances as identi fied in any LOA issued under §§ 216.106 of this chapter and 217.36. If a marine mammal comes within or is about to enter the shutdown zone, such oper ations must cease immediately. NMFS may adjust the shutdown zones pend ing review and approval of an acoustic monitoring report (see § 217.35); (3) Hilcorp must employ NMFS-ap proved protected species observers (PSOs) and designate monitoring zones with radial distances as identified in any LOA issued under §§ 216.106 of this chapter and 217.36. NMFS may adjust the monitoring zones pending review and approval of an acoustic monitoring report (see § 217.35); (4) If a bowhead whale or other low frequency cetacean enters the Level A harassment zone, pile or pipe driving must be shut down immediately. If a beluga whale or pinniped enters the Level A harassment zone while pile driving is ongoing, work may continue until the pile is completed (estimated to require approximately 15–20 min utes), but additional pile driving must not be initiated until the animal has left the Level A harassment zone. Dur ing this time, PSOs must monitor the animal and record behavior; (5) If a marine mammal is approach ing a Level A harassment zone and pile driving has not commenced, pile driv ing must be delayed. Pile driving may not commence or resume until either the animal has voluntarily left and been visually confirmed beyond the shutdown zone; 15 minutes have passed without subsequent detections of small cetaceans and pinnipeds; or 30 minutes have passed without subsequent detec tions of large cetaceans; (6) If a species for which authoriza tion has not been granted, or a species for which authorization has been VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00111 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 102 50 CFR Ch. II (10–1–22 Edition) § 217.35 granted but the authorized takes are met, is observed approaching or within the monitoring zone (which equates to the Level B harassment zone), pile driving and removal activities must shut down immediately using delay and shut-down procedures. Activities must not resume until the animal has been confirmed to have left the area or the observation time period, as indi cated in paragraph (c)(5) of this sec tion, has elapsed; (7) Hilcorp must use soft start tech niques when impact pile driving. Soft start requires contractors to provide an initial set of strikes at reduced en ergy, followed by a thirty-second wait ing period, then two subsequent re duced energy strike sets. A soft start must be implemented at the start of each day’s impact pile driving and at any time following cessation of impact pile driving for a period of thirty min utes or longer; (8) All pipe- and pile-driving activi ties (impact and vibratory) and LDPI support vessel traffic outside the bar rier islands must cease by August 1, annually, and not resume until the of ficial end of the hunt or until the quota has been met, whichever occurs first. Hilcorp must coordinate annually with subsistence users on the dates of these hunts; and (9) Should an ice seal be observed on or near the LDPI by any Hilcorp per sonnel, during construction or oper ation, the sighting must be reported to Hilcorp’s Environmental Specialist. No construction activity should occur within 10 m of an ice seal and any vehi cles used should use precaution and not approach any ice seal within 10 m. (d) Vessel restrictions. When operating vessels, Hilcorp must: (1) Reduce vessel speed to 5 knots (kn) if a whale is observed within 500 m (1641 feet (ft)) of the vessel and is on a potential collision course with the ves sel, or if a vessel is within 275 m (902 ft) of whales, regardless of course relative to the vessel; (2) Avoid multiple changes in vessel direction; (3) Not approach within 800 m (2,624 ft) of a North Pacific right whale or within 5.6 km (3 nautical miles) of Steller sea lion rookeries or major haulouts; and (4) Avoid North Pacific right whale critical habitat or, if critical habitat cannot be avoided, reduce vessel speed during transit. § 217.35 Requirements for monitoring and reporting. (a) All marine mammal and acoustic monitoring must be conducted in ac cordance to Hilcorp’s Marine Mammal Mitigation and Monitoring Plan (4MP) and Acoustic Monitoring Plan, which includes acoustic monitoring during both the open-water and ice-covered seasons. These plans may be modified throughout the life of the regulations in this subpart upon NMFS review and approval. (b) Monitoring must be conducted by NMFS-approved PSOs, who must have no other assigned tasks during moni toring periods and be equipped with, at minimum, binoculars and rangefinders. At minimum, two PSOs must be placed on elevated platforms on the island during the open-water season when is land construction activities are occur ring. These observers will monitor for marine mammals and implement shut down or delay procedures when applica ble through communication with the equipment operator. (c) One PSO will be placed on the side where construction activities are tak ing place and the other placed on the opposite side of the LDPI; both observ ers will be on elevated platforms. (d) PSOs will rotate duties such that they will observe for no more than 4 hours at a time and no more than 12 hours in a 24-hour period. (e) An additional island-based PSO will work with an aviation specialist to use an unmanned aircraft system (UAS) to detect marine mammals in the monitoring zones during pile and pipe driving and slope shaping. Should UAS monitoring not be feasible or be deemed ineffective, a boat-based PSO must monitor for marine mammals during pile and pipe driving. (f) During the open-water season, ma rine mammal monitoring must take place from 30 minutes prior to initi ation of pile and pipe driving activity through 30 minutes post-completion of pile driving activity. Pile driving may VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00112 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 103 National Marine Fisheries Service/NOAA, Commerce § 217.35 commence when observers have de clared the shutdown zone clear of ma rine mammals. In the event of a delay or shutdown of activity resulting from marine mammals in the shutdown zone, animals must be allowed to re main in the shutdown zone (i.e., must leave of their own volition) and their behavior must be monitored and docu mented. (g) After island construction is com plete but drilling activities are occur ring, a PSO will be stationed on the LDPI for approximately 4 weeks during the month of August to monitor for the presence of marine mammals around the island in the monitoring zone. (1) Marine mammal monitoring dur ing pile driving and removal must be conducted by NMFS-approved PSOs in a manner consistent with the fol lowing: (i) At least one observer must have prior experience working as an ob server; (ii) Other observers may substitute education (degree in biological science or a related field) or training for expe rience; (iii) Where a team of three or more observers are required, one observer must be designated as lead observer or monitoring coordinator. The lead ob server must have prior experience working as an observer; and (iv) Hilcorp must submit PSO cur ricula vitae (CVs) for approval by NMFS prior to the onset of pile driv ing. (2) PSOs must have the following ad ditional qualifications: (i) Ability to conduct field observa tions and collect data according to as signed protocols; (ii) Experience or training in the field identification of marine mam mals, including the identification of behaviors; (iii) Sufficient training, orientation, or experience with the construction op eration to provide for personal safety during observations; (iv) Writing skills sufficient to pre pare a report of observations including, but not limited to, the number and spe cies of marine mammals observed; dates and times when in-water con struction activities were conducted; dates, times, and reason for implemen tation of mitigation (or why mitiga tion was not implemented when re quired); and marine mammal behavior; and (v) Ability to communicate orally, by radio or in person, with project per sonnel to provide real-time informa tion on marine mammals observed in the area as necessary. (h) Hilcorp must deploy autonomous sound recorders on the seabed to con duct underwater passive acoustic moni toring in the open-water season the first four years of the project such that island construction activities, includ ing pile driving, and drilling operations are recorded. Acoustic monitoring will be conducted for the purposes of sound source verification to verify distances from noise sources at which under water sound levels reach thresholds for potential marine mammal harassment. (i) Hilcorp must submit incident and monitoring reports. (1) Hilcorp must submit a draft an nual marine mammal and acoustic summary report to NMFS not later than 90 days following the end of each calendar year. Hilcorp must provide a final report within 30 days after receipt of NMFS’ comments on the draft re port. The reports must contain, at a minimum, the following: (i) Date and time that monitored ac tivity begins or ends; (ii) Description of construction ac tivities occurring during each observa tion period; (iii) Weather parameters (e.g., wind speed, percent cloud cover, visibility); (iv) Water conditions (e.g., sea state, tide state); (v) Species, numbers, and, if possible, sex and age class of marine mammals observed; (vi) Description of any observable marine mammal behavior patterns, in cluding bearing and direction of travel and distance from construction activ ity; (vii) Distance from construction ac tivities to marine mammals and dis tance from the marine mammals to the observation point; (viii) An extrapolated total take esti mate for each species based on the number of marine mammals observed and the extent of the harassment zones VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00113 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 104 50 CFR Ch. II (10–1–22 Edition) § 217.35 during the applicable construction ac tivities; (ix) Histograms of the perpendicular distance at which marine mammals were sighted by the PSOs; (x) Description of implementation of mitigation measures (e.g., shutdown or delay); (xi) Locations of all marine mammal observations; (xii) An estimate of the effective strip width of the island-based PSOs and the UAS imagery; and (xiii) Sightings and locations of ma rine mammals associated with acoustic detections. (2) Annually, Hilcorp must submit a report within 90 days of ice road de commissioning. The report must in clude the following: (i) Date, time, location of observa tion; (ii) Ringed seal characteristics (i.e., adult or pup, behavior (avoidance, rest ing, etc.)); (iii) Activities occurring during ob servation, including equipment being used and its purpose, and approximate distance to ringed seal(s); (iv) Actions taken to mitigate the ef fects of interaction, emphasizing: which BMPs were successful; which BMPs may need to be improved to re duce interactions with ringed seals; the effectiveness and practicality of imple menting BMPs; any issues or concerns regarding implementation of BMPs; and potential effects of interactions based on observation data; (v) Proposed updates (if any) to the NMFS-approved Wildlife Management Plan(s) or the ice-road BMPs; and (vi) Reports should be able to be queried for information. (3) Hilcorp must submit a final 5-year comprehensive summary report to NMFS not later than 90 days following the expiration of this subpart and LOA. (4) Hilcorp must submit acoustic monitoring reports per the Acoustic Monitoring Plan. (5) Hilcorp must report on observed injured or dead marine mammals. (i) In the unanticipated event that the activity defined in § 217.30 clearly causes the take of a marine mammal in a prohibited manner, Hilcorp must im mediately cease such activity and re port the incident to the Office of Pro tected Resources (OPR), NMFS, and to the Alaska Regional Stranding Coordi nator, NMFS. Activities must not re sume until NMFS is able to review the circumstances of the prohibited take. NMFS will work with Hilcorp to deter mine what measures are necessary to minimize the likelihood of further pro hibited take and ensure Marine Mam mal Protection Act (MMPA) compli ance. Hilcorp may not resume their ac tivities until notified by NMFS. The report must include the following in formation: (A) Time, date, and location (lati tude/longitude) of the incident; (B) Description of the incident; (C) Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, visibility); (D) Description of all marine mam mal observations in the 24 hours pre ceding the incident; (E) Species identification or descrip tion of the animal(s) involved; (F) Fate of the animal(s); and (G) Photographs or video footage of the animal(s). Photographs may be taken once the animal has been moved from the waterfront area. (H) In the event that Hilcorp dis covers an injured or dead marine mam mal and determines that the cause of the injury or death is unknown and the death is relatively recent (e.g., in less than a moderate state of decomposi tion), Hilcorp must immediately report the incident to OPR and the Alaska Regional Stranding Coordinator, NMFS. The report must include the in formation identified in paragraph (i)(5)(i) of this section. Activities may continue while NMFS reviews the cir cumstances of the incident. NMFS will work with Hilcorp to determine wheth er additional mitigation measures or modifications to the activities are ap propriate. (ii) In the event Hilcorp discovers an injured or dead marine mammal and determines that the injury or death is not associated with or related to the activities defined in § 217.30 (e.g., pre viously wounded animal, carcass with moderate to advanced decomposition, scavenger damage), Hilcorp must re port the incident to OPR and the Alas ka Regional Stranding Coordinator, VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00114 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 105 National Marine Fisheries Service/NOAA, Commerce § 217.37 NMFS, within 24 hours of the dis covery. Hilcorp must provide photo graphs or video footage or other docu mentation of the stranded animal sighting to NMFS. Photographs may be taken once the animal has been moved from the waterfront area. § 217.36 Letters of Authorization. (a) To incidentally take marine mammals pursuant to this subpart, Hilcorp must apply for and obtain an LOA. (b) An LOA, unless suspended or re voked, may be effective for a period of time not to exceed the expiration date of this subpart. (c) If an LOA expires prior to the ex piration date of this subpart, Hilcorp may apply for and obtain a renewal of the LOA. (d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, Hilcorp must apply for and ob tain a modification of the LOA as de scribed in § 217.37. (e) The LOA shall set forth: (1) Permissible methods of incidental taking; (2) Means of effecting the least prac ticable adverse impact (i.e., mitigation) on the species, its habitat, and on the availability of the species for subsist ence uses; and (3) Requirements for monitoring and reporting. (f) Issuance of the LOA shall be based on a determination that the level of taking will be consistent with the find ings made for the total taking allow able under this subpart. (g) Notice of issuance or denial of an LOA shall be published in the FEDERAL REGISTER within thirty days of a deter mination. § 217.37 Renewals and modifications of Letters of Authorization. (a) An LOA issued under §§ 216.106 of this chapter and 217.36 for the activity identified in § 217.30(a) shall be renewed or modified upon request by the appli cant, provided that: (1) The proposed specified activity and mitigation, monitoring, and re porting measures, as well as the antici pated impacts, are the same as those described and analyzed for this subpart (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section); and (2) NMFS determines that the miti gation, monitoring, and reporting measures required by the previous LOA under this subpart were implemented. (b) For LOA modification or renewal requests by the applicant that include changes to the activity or the mitiga tion, monitoring, or reporting (exclud ing changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that do not change the findings made for this subpart or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS may publish a notice of proposed LOA in the FEDERAL REGISTER, including the associated analysis of the change, and solicit pub lic comment before issuing the LOA. (c) An LOA issued under §§ 216.106 of this chapter and 217.36 for the activity identified in § 217.30(a) may be modified by NMFS under the following cir cumstances: (1) Adaptive management. NMFS may modify (including augment) the exist ing mitigation, monitoring, or report ing measures (after consulting with Hilcorp regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effec tively accomplishing the goals of the mitigation and monitoring set forth in this subpart. (i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or report ing measures in an LOA: (A) Results from Hilcorp’s moni toring from the previous year(s). (B) Results from other marine mam mal and/or sound research or studies. (C) Any information that reveals ma rine mammals may have been taken in a manner, extent, or number not au thorized by this subpart or subsequent LOAs. (ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a no tice of proposed LOA in the FEDERAL REGISTER and solicit public comment. (2) Emergencies. If NMFS determines that an emergency exists that poses a VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00115 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 106 50 CFR Ch. II (10–1–22 Edition) § § 217.38–217.39 significant risk to the well-being of the species or stocks of marine mammals specified in LOAs issued pursuant to §§ 216.106 of this chapter and 217.36, an LOA may be modified without prior no tice or opportunity for public com ment. Notice would be published in the FEDERAL REGISTER within thirty days of the action. § § 217.38–217.39 [Reserved] Subpart E—Taking and Importing Marine Mammals; Alaska Gasline Development Cor poration Liquefied Natural Gas Facilities Construction SOURCE: 85 FR 50751, Aug. 17, 2020, unless otherwise noted. EFFECTIVE DATE NOTE: At 85 FR 50751, Aug. 17, 2020, subpart E was added, effective Jan. 1, 2021, through Dec. 31, 2025. § 217.40 Specified activity and speci fied geographical region. (a) Regulations in this subpart apply only to the Alaska Gasline Develop ment Corporation (AGDC) or successor entities and those persons it authorizes or funds to conduct activities on its be half for the taking of marine mammals that occurs in the area outlined in paragraph (b) of this section and that occurs incidental to the activities de scribed in paragraph (c) of this section. (b) The taking of marine mammals by AGDC may be authorized in a Let ter of Authorization (LOA) only if it occurs within AGDC’s Alaska liquefied natural gas (LNG) facilities’ construc tion areas, which are located between the Beluga Landing shoreline crossing on the north and the Kenai River south of Nikiski on the south in Cook Inlet, Alaska. (c) The taking of marine mammals during this project is only authorized if it occurs incidental to construction ac tivities associated with the proposed LNG facilities or the Mainline crossing of Cook Inlet. § 217.41 Effective dates. Regulations in this subpart are effec tive January 1, 2021 through December 31, 2025. § 217.42 Permissible methods of tak ing. Under LOAs issued pursuant to §§ 216.106 of this chapter and 217.46, the Holder of the LOAs (hereinafter ‘‘AGDC’’) may incidentally, but not in tentionally, take marine mammals within the area described in § 217.40(b) by Level A harassment and Level B harassment associated with pile driv ing and pipe laying activities, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the applicable LOAs. § 217.43 Prohibitions. Notwithstanding takings con templated in § 217.42 and authorized by LOAs issued under §§ 216.106 of this chapter and 217.46, no person in connec tion with the activities described in § 217.40 may: (a) Violate, or fail to comply with, the terms, conditions, and require ments of this subpart or a LOA issued under §§ 216.106 of this chapter and 217.46; (b) Take any marine mammal not specified in such LOAs; and (c) Take any marine mammal speci fied in such LOAs in any manner other than as specified. § 217.44 Mitigation requirements. When conducting the activities iden tified in § 217.40(c), the mitigation measures contained in any LOAs issued under §§ 216.106 of this chapter and 217.46 must be implemented. These mitigation measures must include but are not limited to: (a) Time and area restriction. AGDC must follow the following time and area restrictions. (1) In-water pile driving must occur only during daylight hours. Times for other construction activities, such as pipe laying, anchor handling, and dredging are not restricted. (2) Pile driving associated with the Mainline Material Offloading Facility (Mainline MOF) must not occur from June 1 to September 7 (pile driving can occur from September 8 to May 31). (3) Other than in-water sheet pile driving and pile removal, anchor han dling, trenching, pipe laying, and ves sel transits related to these activities, VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00116 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 107 National Marine Fisheries Service/NOAA, Commerce § 217.44 AGDC may not engage in in-water sound-producing activities within 10 miles (16 km) of the mean higher high water (MHHW) line of the Susitna Delta (Beluga River to the Little Susitna River) between April 15 and October 15 which produce sound levels in excess of 120 dB rms re 1μPa @ 1 m. (b) Establishment of monitoring and ex clusion zones. (1) For all relevant in water construction activity, AGDC must designate Level A harassment zones with radial distances as identi fied in any LOA issued under §§ 216.106 of this chapter and 217.46. (2) For all relevant in-water con struction activity, AGDC must des ignate Level B harassment zones with radial distances as identified in any LOA issued under §§ 216.106 of this chap ter and 217.46. (3) For all in-water pile driving work, AGDC must implement an exclusion zone for each specific activity as iden tified in any LOA issued under §§ 216.106 of this chapter and 217.46. If a marine mammal comes within or enters the exclusion zone, AGDC must cease all operations. (i) For humpback whale and killer whale during in-water pile driving ac tivity, the exclusion zones must be based on the Level A harassment dis tances, but must not be less than 10 m from the pile. (ii) For harbor porpoise and harbor seal during in-water pile driving activ ity, the exclusion zones must be based on the Level A harassment distances up to 1,000 m, but must not be less than 10 m from the pile. (iii) For Cook Inlet beluga whale dur ing in-water pile driving activity, the exclusion zones must be based on the Level B harassment distances. (iv) A 2,900-m exclusion zone must be established for Cook Inlet beluga whale before pipe laying activity associated with anchor handling can occur. (v) A minimum of 10-m exclusion zone must be established for in-water construction and heavy machinery not addressed elsewhere in this paragraph (b)(3). (c) Monitoring of exclusion zones. Pile driving must only take place when the exclusion zones are visible and can be adequately monitored. If visibility de grades to where the entire exclusion zone cannot be effectively monitored during pile driving, AGDC may con tinue to drive the pile section that was being driven to its target depth, but may not drive additional sections of pile. (d) Shutdown measures. (1) AGDC must deploy protected species observ ers (PSOs) to monitor marine mam mals during in-water pile driving and pipe laying activities. (2) Monitoring must take place from 30 minutes prior to initiation of pile driving or pipe laying activities through 30 minutes post-completion of pile driving or pipe laying activities. (i) For pile driving activity, pre-ac tivity monitoring must be conducted for 30 minutes to confirm that the ex clusion zone is clear of marine mam mals, and pile driving may commence only if observers have declared the ex clusion zone clear of marine mammals for that full duration of time. Moni toring must occur throughout the time required to drive a pile. A determina tion that the exclusion zone is clear must be made during a period of good visibility (i.e., the entire exclusion zone and surrounding waters must be visible to the naked eye). (ii) If marine mammals are found within the exclusion zone, pile driving of the segment must be delayed until they move out of the area. If a marine mammal is seen above water and then dives below, the contractor must wait 30 minutes for large cetaceans (hump back whale) and 15 minutes for small cetaceans (beluga and killer whales and harbor porpoise) and pinnipeds. If no marine mammals of that species are seen by the observer in that time it can be assumed that the animal has moved beyond the exclusion zone. (iii) If pile driving of a segment ceases for 30 minutes or more and a marine mammal is sighted within the designated exclusion zone prior to com mencement of pile driving, the ob server(s) must notify the pile driving operator (or other authorized indi vidual) immediately and continue to monitor the exclusion zone. Operations may not resume until the marine mam mal has exited the exclusion zone or 30 minutes have elapsed for large cetaceans or 15 minutes have elapsed VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00117 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 108 50 CFR Ch. II (10–1–22 Edition) § 217.44 for small cetaceans and pinnipeds since the last sighting. (3) If a marine mammal authorized to be taken by Level B harassment enters or approaches the exclusion zone, if a marine mammal not specified in the LOAs enters the Level B harassment zone, or if the take of a marine mam mal species or stock has reached the take limits specified in any LOA issued under §§ 216.106 of this chapter and 217.46 and enters the Level B harass ment zone, AGDC must halt all con struction activities at that location. If construction is halted or delayed due to the presence of a marine mammal, the activity may not commence or re sume until either the animal has vol untarily left and been visually con firmed beyond the shutdown or Level B harassment zone, whichever applicable, or 30 minutes have passed without re detection of the animal if it is a larger cetacean (humpback whale), or 15 min utes have passed without re-detection of the animal if it is a small cetacean (beluga and killer whales and por poises) or pinniped. (e) Soft start. (1) AGDC must imple ment soft start techniques for impact pile driving. AGDC must conduct an initial set of three strikes from the im pact hammer at 40 percent energy, fol lowed by a 30-second waiting period, then two subsequent three strike sets with associated 30-seconds waiting pe riods at the reduced energy. (2) Soft start must be required for any impact driving, including at the beginning of the day, and at any time following a cessation of impact pile driving of 30 minutes or longer. (f) Noise attenuation device. For pile driving at the Mainline MOF near the Beluga River, and on the east side of Cook Inlet near Nikiski associated with the liquefaction facility, AGDC must deploy air bubble curtains around piles. If the sound source verification (SSV) measurements indicate that the best-performing bubble curtain con figuration provides less than a 2 dB re duction in in-water sound beyond the bubble curtain, use of the bubble cur tain may be discontinued. (g) Vessel transit. (1) Operators of ves sels must, at all times, avoid approach ing within 100 yards of marine mam mals. Operators must observe direction of travel of marine mammals and at tempt to maintain a distance of 100 yards or greater between the animal and the vessel by working to alter ves sel course or velocity. (2) The vessel operator must avoid placing the vessel between members of a group of marine mammals in a way that may cause separation of individ uals in the group from other individ uals in that group. A group is defined as being three or more whales observed within 500-m of one-another and dis playing behaviors of directed or coordi nated activity (e.g., migration or group feeding). (3) If the vessel approaches within 1.6 km (1 mi) of one or more whales, the vessel operator must take reasonable precautions to avoid potential inter action with the whales by taking one or more of the following actions, as ap propriate: (i) Steering to the rear of whale(s) to avoid causing changes in their direc tion of travel. (ii) Maintaining vessel speed of 10 knots (19 km/hr) or less when transiting to minimize the likelihood of lethal vessel strikes. (iii) Reducing vessel speed to less than 5 knots (9 km/hour) within 274 m (300 yards) of the whale(s). (4) Project vessels must remain a minimum of 2.8 km (1.5 nm) seaward of the mean lower low water (MLLW) line between the Little Susitna River and ¥150.80 degrees west longitude to mini mize the impacts of vessel sound and avoid strikes on Cook Inlet beluga whales between June 1 and September 7. The Susitna Delta Exclusion Zone is defined as the union of the areas de fined by: (i) A 16-km (10-mile) buffer of the Beluga River thalweg seaward of the mean lower low water (MLLW) line; (ii) A 16-km (10-mile) buffer of the Little Susitna River thalweg seaward of the MLLW line; and (iii) A 16-km (10-mile) seaward buffer of the MLLW line between the Beluga River and Little Susitna River. (iv) The buffer extends landward along the thalweg to include intertidal waters within rivers and streams up to their mean higher high water line (MHHW). The seaward boundary has been simplified so that it is defined by VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00118 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 109 National Marine Fisheries Service/NOAA, Commerce § 217.95 lines connecting readily discernable landmarks. (5) For vessels operating in the Susitna Delta Exclusion Zone, the fol lowing must be implemented: (i) All project vessels operating with in the designated Susitna Delta area must maintain a speed over ground below 4 knots. PSOs must note the numbers, date, time, coordinates, and proximity to vessels of all belugas ob served during operations, and report these observations to NMFS in month ly PSO reports. (ii) Vessel crew must be trained to monitor for Endangered Species Act (ESA)-listed species prior to and during all vessel movements within the Susitna Delta Exclusion Zone. The ves sel crew must report sightings to the PSO team for inclusion in the overall sighting database and reports. (iii) Vessel operators must not move their vessels when they are unable to adequately observe the 100-m zone around vessels under power (in gear) due to darkness, fog, or other condi tions, unless necessary for ensuring human safety. § 217.95 Requirements for monitoring and reporting. (a) Marine mammal visual monitoring— (1) Protected species observers. AGDC must employ trained protected species observers (PSO) to conduct marine mammal monitoring for its LNG facili ties construction projects. (i) The PSOs must observe and col lect data on marine mammals in and around the project area for 30 minutes before, during, and for 30 minutes after all construction work. PSOs must have no other assigned tasks during moni toring periods, and must be placed at appropriate and safe vantage point(s) practicable to monitor for marine mammals and implement shutdown or delay procedures, when applicable, through communication with the equipment operator. (ii) [Reserved] (2) Protected species observer qualifica tions. AGDC must adhere to the fol lowing observer qualifications: (i) Independent PSOs (i.e., not con struction personnel) who have no other assigned tasks during monitoring peri ods must be used; (ii) Where a team of three or more PSOs are required, a lead observer or monitoring coordinator must be des ignated. The lead observer must have prior experience working as a marine mammal observer during construction; (iii) Other PSOs may substitute edu cation (degree in biological science or related field) or training for experi ence; (iv) AGDC must submit PSO CVs for approval by NMFS prior to the onset of pile driving; (v) The PSOs must have the ability to conduct field observations and col lect data according to assigned proto cols; (vi) The PSOs must have the experi ence or training in the field identifica tion of marine mammals, including the identification of behaviors; (vii) The PSOs must have sufficient training, orientation, or experience with the construction operation to pro vide for personal safety during observa tions; (viii) The PSOs must have writing skills sufficient to prepare a report of observations including but not limited to the number and species of marine mammals observed; dates and times when in-water construction activities were conducted; dates, times, and rea son for implementation of mitigation (or why mitigation was not imple mented when required); and marine mammal behavior; and (ix) The PSOs must have the ability to communicate orally, by radio or in person, with project personnel to pro vide real-time information on marine mammals observed in the area as nec essary. (3) Marine mammal monitoring proto cols. AGDC must adhere to the fol lowing marine mammal monitoring protocols: (i) For pile driving activities, a min imum of two PSOs must be on duty at all times; (ii) For pile driving activities, PSOs must be stationed on a bluff with min imum height 500 feet above sea level immediately above the construction site; (iii) For marine mammal monitoring during pipe laying activities, at least one PSO must be on the barge and on watch; VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00119 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 110 50 CFR Ch. II (10–1–22 Edition) § 217.95 (iv) PSOs may not exceed 4 consecu tive watch hours; must have a min imum two-hour break between watch es; and may not exceed a combined watch schedule of more than 12 hours in a 24-hour period; (v) PSOs must have no other con struction-related tasks while con ducting monitoring; (vi) Monitoring must be conducted from 30 minutes prior to commence ment of pile driving, throughout the time required to drive a pile, and for 30 minutes following the conclusion of pile driving; (vii) Monitoring must be conducted from 30 minutes prior to commence ment of pipe laying activity, through out the time of pipe laying, and for 30 minutes following the conclusion of pipe laying for the segment; (viii) During all observation periods, PSOs must use high-magnification (25X), as well as standard handheld (7X) binoculars, and the naked eye to search continuously for marine mammals; (ix) Monitoring distances must be measured with range finders. Distances to animals must be based on the best estimate of the PSO, relative to known distances to objects in the vicinity of the PSO; and (x) Bearings to animals must be de termined using a compass. (4) Marine mammal monitoring data col lection. PSOs must collect the following information during marine mammal monitoring: (i) Date and time that monitored ac tivity begins and ends for each day conducted (monitoring period); (ii) Construction activities occurring during each daily observation period, including how many and what type of piles driven and distances covered dur ing pipe laying; (iii) Deviation from initial proposal in pile numbers, pile types, average driving times, and pipe laying dis tances, etc.; (iv) Weather parameters in each monitoring period (e.g., wind speed, percent cloud cover, visibility); (v) Water conditions in each moni toring period (e.g., sea state, tide state); (vi) For each marine mammal sight ing: (A) Species, numbers, and, if possible, sex and age class of marine mammals; (B) Description of any observable ma rine mammal behavior patterns, in cluding bearing and direction of travel and distance from pile driving and pipe laying activities, and notable changes in patterns; (C) Location and distance from pile driving and pipe laying activities to marine mammals and distance from the marine mammals to the observa tion point; and (D) Estimated amount of time that the animals remained in the Level A and/or Level B harassment zones; (vii) Description of implementation of mitigation measures within each monitoring period (e.g., shutdown or delay); and (viii) Other human activity in the area within each monitoring period. (b) Acoustic monitoring. AGDC must conduct a sound source verification (SSV) in accordance with the require ments in the LOA, at the beginning of the pile driving to characterize the sound levels associated with different pile and hammer types, as well as to establish the marine mammal moni toring and mitigation zones. (1) A minimum of 2 piles of each type and size must be measured. (2) The following data, at minimum, shall be collected during acoustic mon itoring and reported: (i) Hydrophone equipment and meth ods: Recording device, sampling rate, distance from the pile where recordings were made; depth of recording de vice(s); (ii) Type of pile being driven and method of driving during recordings; and (iii) Mean, median, and maximum sound levels (dB re: 1μPa): Cumulative sound exposure level (SELcum), peak sound pressure level (SPLpeak), root mean square sound pressure level (SPLrms), and single-strike sound expo sure level (SELs-s). (3) An SSV report must be submitted to NMFS within 72 hours after field measurements for approval of the re sults. (4) The results of the SSV report may be used to adjust the extent of Level A and Level B harassment zones in-water pile driving. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00120 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 111 National Marine Fisheries Service/NOAA, Commerce § 217.95 (c) Reporting measures—(1) Notifica tion. AGDC must notify NMFS 48 hours prior to the start of each activity in Cook Inlet that may cause harassment of marine mammals. If there is a delay in activity, AGDC must also notify NMFS as soon as practicable. (2) Monthly report. AGDC must sub mit monthly reports via email to NMFS Office of Protected Resources (OPR) and Alaska Regional Office (AKRO) for all months with project ac tivities by the 15th of the month fol lowing the monthly reporting period. The monthly report must contain and summarize the following information: (i) Dates, times, locations, heading, speed, weather, sea conditions (includ ing Beaufort sea state and wind force), and a list of all in-water sound-pro ducing activities occurring concurrent with marine mammal observations; (ii) Species, number, location, dis tance from the vessel, and behavior of all observed marine mammals, as well as associated project activity (e.g., number of power-downs and shut downs), observed throughout all moni toring activities; (iii) Observation data in paragraphs (a) and (b) of this section must be pro vided in digital spreadsheet format that can be queried; (iv) An estimate of the number of animals (by species) exposed to sound at received levels greater than or equal to either the Level A or Level B har assment thresholds, with a discussion the time spent above those received levels and of any specific behaviors those individuals exhibited; (v) If the extent of Level B harass ment zone is beyond visual observa tion, AGDC must also include an ap propriate adjustment to estimate the total numbers of marine mammals taken based on the portion of the areas that are monitored; and (vi) A description of the implementa tion and effectiveness of the terms and conditions of the Biological Opinion’s Incidental Take Statement and mitiga tion and monitoring measures of the LOA. (3) Marine mammal tally numbers. (i) AGDC must keep a tally of the esti mated number of marine mammals that are taken, based on the number of marine mammals observed within the applicable harassment zones, and alert NMFS when the authorized limit is close to being met based on prescribed monitoring measured in the final rule; and (ii) AGDC must keep a tally of the number of marine mammal that are sighted during the pile driving and pipe laying activities. (4) Beluga whale takes. AGDC must immediately notify NMFS if the num ber of Cook Inlet beluga estimated as taken (based on observed exposures above thresholds) reaches 80% of the authorized takes in any given calendar year during which take is authorized. (5) Annual report. (i) AGDC must sub mit a comprehensive annual report to NMFS within 90 calendar days of the cessation of in-water work each year for review. The report must synthesize all sighting data and effort during each activity for each year. (ii) NMFS will provide comments within 30 days after receiving annual reports, and AGDC must address the comments and submit revisions within 30 days after receiving NMFS com ments. (iii) If no comments are received from the NMFS within 30 days, the an nual report is considered completed. (iv) The report must include the fol lowing information: (A) Summaries of monitoring effort including total hours, observation rate by species and marine mammal dis tribution through the study period, ac counting for sea state and other factors affecting visibility and detectability of marine mammals. (B) Analyses of the effects of various factors that may have influenced de tectability of marine mammals (e.g., sea state, number of observers, fog/ glare, and other factors as determined by the PSOs). (C) Species composition, occurrence, and distribution of marine mammal sightings, including date, water depth, numbers, age/size/gender categories (if determinable), group sizes, and ice cover. (D) Marine mammal observation data with a digital record of observation data provided in digital spreadsheet format that can be queried. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00121 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 112 50 CFR Ch. II (10–1–22 Edition) § 217.95 (E) Summary of implemented mitiga tion measures (i.e., shutdowns and delays). (F) Number of marine mammals dur ing periods with and without project activities (and other variables that could affect detectability), such as: (1) Initial sighting distances versus project activity at the time of sighting; (2) Closest point of approach versus project activity; (3) Observed behaviors and types of movements versus project activity; (4) Numbers of sightings/individuals seen versus project activity; (5) Distribution around the source vessels versus project activity; and (6) Numbers of animals detected in the exclusion zone. (G) Analyses of the effects of project activities on listed marine mammals. (6) Final report. (i) AGDC must pro vide NMFS, within 90 days of project completion at the end of the five-year period, a report of all parameters listed in the monthly and annual report re quirements in paragraph (c) of this sec tion, noting also all operational shut downs or delays necessitated due to the proximity of marine mammals. (ii) NMFS will provide comments within 30 days after receiving this re port, and AGDC must address the com ments and submit revisions within 30 days after receiving NMFS comments. (iii) If no comments are received from the NMFS within 30 days, the final report is considered as final. (7) Reporting of injured or dead marine mammals. (i) In the unanticipated event that the construction or demolition ac tivities clearly cause the take of a ma rine mammal in a prohibited manner, such as an injury, serious injury, or mortality, AGDC must immediately cease operations with the potential to impact marine mammals in the vicin ity and immediately report the inci dent to the NMFS Office of Protected Resources, NMFS Alaska Regional Of fice, and the Alaska Region Stranding Coordinators. The report must include the following information: (A) Time, date, and location (lati tude/longitude) of the incident; (B) Description of the incident; (C) Status of all sound source use in the 24 hours preceding the incident; (D) Environmental conditions (e.g., wind speed and direction, sea state, cloud cover, visibility, and water depth); (E) Description of marine mammal observations in the 24 hours preceding the incident; (F) Species identification or descrip tion of the animal(s) involved; (G) The fate of the animal(s); and (H) Photographs or video footage of the animal (if equipment is available). (ii) Activities must not resume until NMFS is able to review the cir cumstances of the prohibited take. NMFS must work with AGDC to deter mine what is necessary to minimize the likelihood of further prohibited take and ensure Marine Mammal Pro tection Act (MMPA) compliance. AGDC may not resume its activities until notified by NMFS via letter, email, or telephone. (iii) In the event that AGDC dis covers an injured or dead marine mam mal, and the lead PSO determines that the cause of the injury or death is un known and the death is relatively re cent (i.e., in less than a moderate state of decomposition as described in para graph (c)(7)(iv) of this section), AGDC must immediately report the incident to the NMFS Office of Protected Re sources, NMFS Alaska Regional Office, and the Alaska Regional Stranding Co ordinators. The report must include the same information identified in paragraph (b)(3)(i) of this section. Ac tivities may continue while NMFS re views the circumstances of the inci dent. NMFS will work with AGDC to determine whether modifications in the activities are appropriate. (iv) In the event that AGDC discovers an injured or dead marine mammal, and the lead PSO determines that the injury or death is not associated with or related to the activities authorized in the LOA (e.g., previously wounded animal, carcass with moderate to ad vanced decomposition, or scavenger damage), AGDC must report the inci dent to the NMFS Office of Protected Resources, NMFS Alaska Regional Of fice, and the Alaska Regional Strand ing Coordinators, within 48 hours of the discovery. AGDC must provide pho tographs or video footage (if available) or other documentation of the stranded VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00122 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 113 National Marine Fisheries Service/NOAA, Commerce § 217.47 animal sighting to NMFS and the Ma rine Mammal Stranding Network. AGDC may continue its operations under such a case. § 217.46 Letters of Authorization. (a) To incidentally take marine mammals pursuant to the regulations in this subpart, AGDC must apply for and obtain (LOAs) in accordance with § 216.106 of this chapter for conducting the activity identified in § 217.40(c). (b) LOAs, unless suspended or re voked, may be effective for a period of time not to extend beyond the expira tion date of the regulations in this sub part. (c) If an LOA(s) expires prior to the expiration date of the regulations in this subpart, AGDC may apply for and obtain a renewal of the LOA(s). (d) In the event of projected changes to the activity or to mitigation, moni toring, reporting (excluding changes made pursuant to the adaptive man agement provision of § 217.47(c)(1)) re quired by an LOA, AGDC must apply for and obtain a modification of LOAs as described in § 217.47. (e) Each LOA must set forth: (1) Permissible methods of incidental taking; (2) Means of effecting the least prac ticable adverse impact (i.e., mitigation) on the species, their habitat, and the availability of the species for subsist ence uses; and (3) Requirements for monitoring and reporting. (f) Issuance of the LOA(s) must be based on a determination that the level of taking must be consistent with the findings made for the total taking al lowable under the regulations in this subpart. (g) Notice of issuance or denial of the LOA(s) must be published in the FED ERAL REGISTER within 30 days of a de termination. § 217.47 Renewals and modifications of Letters of Authorization. (a) An LOA issued under §§ 216.106 of this chapter and 217.46 for the activity identified in § 217.40(c) must be renewed or modified upon request by the appli cant, provided that: (1) The proposed specified activity and mitigation, monitoring, and re porting measures, as well as the antici pated impacts, are the same as those described and analyzed for the regula tions in this subpart (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section); and (2) NMFS determines that the miti gation, monitoring, and reporting measures required by the previous LOA(s) under the regulations in this subpart were implemented. (b) For LOA modification or renewal requests by the applicant that include changes to the activity or the mitiga tion, monitoring, or reporting meas ures (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that do not change the findings made for the regulations in this subpart or re sult in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS may publish a notice of pro posed LOA in the FEDERAL REGISTER, including the associated analysis of the change, and solicit public comment be fore issuing the LOA. (c) An LOA issued under §§ 216.106 of this chapter and 217.46 for the activity identified in § 217.40(c) may be modified by NMFS under the following cir cumstances: (1) Adaptive management. After con sulting with AGDC regarding the prac ticability of the modifications, NMFS may modify (including by adding or re moving measures) the existing mitiga tion, monitoring, or reporting meas ures if doing so creates a reasonable likelihood of more effectively accom plishing the goals of the mitigation and monitoring set forth in the regula tions in this subpart. (i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or report ing measures in an LOA: (A) Results from AGDC’s monitoring from the previous year(s); (B) Results from other marine mam mal and/or sound research or studies; or (C) Any information that reveals ma rine mammals may have been taken in a manner, extent or number not au thorized by the regulations in this sub part or subsequent LOAs. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00123 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 114 50 CFR Ch. II (10–1–22 Edition) § § 217.48–217.49 (ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS must publish a no tice of proposed LOA in the FEDERAL REGISTER and solicit public comment. (2) Emergencies. If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in LOAs issued pursuant to §§ 216.106 of this chapter and 217.46, an LOA may be modified without prior no tice or opportunity for public com ment. Notice would be published in the FEDERAL REGISTER within 30 days of the action. § § 217.48–217.49 [Reserved] Subpart F—Taking Marine Mam mals Incidental to Lighthouse Repair and Tour Operations at Northwest Seal Rock, Cali fornia SOURCE: 87 FR 22492, Apr. 15, 2022, unless otherwise noted. EFFECTIVE DATE NOTE: At 87 FR 22492, Apr. 15, 2022, subpart F was added, effective May 15, 2022, through May 14, 2027. § 217.50 Specified activity and speci fied geographical region. (a) Regulations in this subpart apply only to the St. George Reef Lighthouse Preservation Society (Society) and those persons it authorizes or funds to conduct activities on its behalf for the taking of marine mammals that occurs in the areas outlined in paragraph (b) of this section and that occurs inci dental to lighthouse repair and tour operation activities. (b) The taking of marine mammals by the Society may be authorized in a Letter of Authorization (LOA) only if it occurs within Pacific Ocean waters in the vicinity of Northwest Seal Rock near Crescent City, California. § 217.51 Effective dates. Regulations in this subpart are effec tive from May 15, 2022 through May 14, 2027. § 217.52 Permissible methods of tak ing. Under LOAs issued pursuant to § 216.106 of this chapter and § 217.56, the Holder of the LOA (hereinafter ‘‘Soci ety’’) may incidentally, but not inten tionally, take marine mammals within the area described in § 217.50(b) by Level B harassment associated with lighthouse repair and tour operation activities, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA. § 217.53 Prohibitions. Except for taking authorized by a LOA issued under §§ 216.106 and 217.56 of this chapter, it shall be unlawful for any person to do any of the following in connection with the activities de scribed in § 217.50: (a) Violate, or fail to comply with, the terms, conditions, and require ments of this subpart or a LOA issued under § 216.106 of this chapter and § 217.56; (b) Take any marine mammal not specified in such LOAs; (c) Take any marine mammal speci fied in such LOAs in any manner other than as specified; or (d) Take a marine mammal specified in such LOAs if NMFS determines such taking results in more than a neg ligible impact on the species or stocks of such marine mammal. § 217.54 Mitigation requirements. When conducting the activities iden tified in § 217.50(a), the mitigation measures contained in any LOA issued under § 216.106 of this chapter and § 217.56 must be implemented. These mitigation measures shall include but are not limited to: (a) General conditions. (1) A copy of any issued LOA must be in the posses sion of the Society, supervisory per sonnel, pilot, protected species observ ers (PSOs), and any other relevant des ignees of the Holder operating under the authority of this LOA at all times that activities subject to this LOA are being conducted. (2) The Society must conduct train ing between supervisors and crews and the marine mammal monitoring team and relevant Society staff prior to the VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00124 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 115 National Marine Fisheries Service/NOAA, Commerce § 217.55 start of all trips and when new per sonnel join the work, so that respon sibilities, communication procedures, monitoring protocols, and operational procedures are clearly understood. Visitors to the Station must be in structed to avoid unnecessary noise and not expose themselves visually to pinnipeds around the base of the light house. (3) All personnel must avoid direct physical interaction with marine mam mals during activity. If a marine mam mal comes within 10 m of such activ ity, operations must cease until the animal leaves of its own accord. (4) Loud outside activity must be halted upon observation on Northwest Seal Rock (NWSR) of either a species for which incidental take is not au thorized or a species for which inci dental take has been authorized but the authorized number of takes has been met. (5) No more than two restoration trips, or 6 days of flight operations, are permitted per month. (b) Protocols. (1) The pilot must en sure that helicopter approach patterns to the NWSR are such that the timing and techniques are least disturbing to marine mammals. To the extent pos sible, the helicopter must approach NWSR when the tide is too high for marine mammals to haul out on NWSR. The helicopter must avoid rapid and direct approaches to the sta tion by approaching NWSR at a rel atively high altitude (e.g., 800–1,000 ft; 244–305 m). Before the final approach, the helicopter must circle lower, and approach from an area where the den sity of pinnipeds is the lowest. If for any safety reasons (e.g., wind condi tions or visibility) such helicopter ap proach and timing techniques cannot be achieved, the Society must abort the restoration and maintenance ses sion for the day. (2) Monitoring must be conducted by a trained PSO, who must have no other assigned tasks during monitoring peri ods. Trained PSOs must be placed at the best vantage point(s) practicable to monitor for marine mammals and im plement mitigation procedures when applicable. The Society must adhere to the following additional PSO qualifica tions: (i) Independent PSOs are required; (ii) At least one PSO must have prior experience working as an observer; (iii) Other observers may substitute education (degree in biological science or related field) or training for experi ence; and (iv) The Society must submit PSO re sumes for approval by NMFS prior to beginning any activity subject to these regulations. (3) The PSO must monitor the project area to the maximum extent possible based on the required moni toring locations and environmental conditions. They must record all obser vations of marine mammals as de scribed in Section 5 of any LOA, re gardless of distance from the activity. A PSO with a high definition camera must be on the first flight to the sta tion each day. For 15 minutes before and after all other takeoffs and land ings a PSO must be stationed on the platform of the lantern room gallery, and a PSO must be on the last depart ing helicopter of the day. § 217.55 Requirements for monitoring and reporting. (a) PSOs must document any behav ioral reactions in concert with distance from any project activity. (b) Reporting—(1) Reporting frequency. (i) The Society must submit a quar terly summary report to NMFS not later than 90 days following the end of each work quarter; after the first three quarterly submissions, NMFS will evaluate whether it is appropriate to modify to annual reports, and modify future LOAs as appropriate to indicate annual reporting requirements if so. The Society must provide a final report within 30 days following resolution of comments on each draft report. (ii) These reports must contain, at minimum, the following: (A) Dates and times (begin and end) of all marine mammal monitoring; (B) Activities occurring during all marine mammal monitoring (e.g., heli copter takeoffs and landings, construc tion activities); (C) PSO locations during marine mammal monitoring; (D) Environmental conditions during monitoring periods (at beginning and VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00125 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 116 50 CFR Ch. II (10–1–22 Edition) § 217.56 end of PSO shift and whenever condi tions change significantly), including Beaufort sea state and any other rel evant weather conditions including cloud cover, fog, sun glare, and overall visibility to the horizon, and estimated observable distance; (E) Upon each flight, the following information: Name of PSO who sighted the animal(s) and PSO location and ac tivity at time of sighting; time of sighting; identification of the ani mal(s) (e.g., genus/species, lowest pos sible taxonomic level, or unidentified), PSO confidence in identification, and the composition of the group if there is a mix of species; distance and bearing of each marine mammal observed rel ative to the activity for each flight; es timated number of animals (min/max/ best estimate); estimated number of animals by cohort (adults, juveniles, neonates, group composition, etc.); and description of any marine mammal be havioral observations (e.g., observed behaviors such as feeding or traveling), including an assessment of behavioral responses thought to have resulted from the activity according to the 3 point scale as defined in the LOA (e.g., no response or changes in behavioral state such as changing direction or flushing); (F) Number of marine mammals de tected, by species; and (G) Detailed information about any implementation of any mitigation trig gered, a description of specific actions that ensued, and resulting changes in behavior of the animal(s), if any. (2) The Society must submit a com prehensive summary report to NMFS not later than 90 days following the conclusion of marine mammal moni toring efforts described in this subpart. (c) Reporting of injured or dead marine mammals. (1) In the event that per sonnel involved in the construction ac tivities discover an injured or dead ma rine mammal, the LOA-holder must immediately report the incident to the Office of Protected Resources (OPR) (PR.ITP.MonitoringReports@noaa.gov), NMFS and to West Coast Regional Stranding Coordinator as soon as fea sible. If the death or injury was clearly caused by activities specified at § 217.50, the Society must immediately cease the specified activities until NMFS is able to review the circumstances of the incident and determine what, if any, additional measures are appropriate to ensure compliance with the terms of these regulations and LOAs. The LOA holder must not resume their activities until notified by NMFS. The report must include the following informa tion: (i) Time, date, and location (latitude/ longitude) of the first discovery (and updated location information if known and applicable); (ii) Species identification (if known) or description of the animal(s) in volved; (iii) Condition of the animal(s) (in cluding carcass condition if the animal is dead); (iv) Observed behaviors of the ani mal(s), if alive; (v) If available, photographs or video footage of the animal(s); and (vi) General circumstances under which the animal was discovered. (2) [Reserved] § 217.56 Letters of Authorization. (a) To incidentally take marine mammals pursuant to these regula tions, the Society must apply for and obtain an LOA. (b) An LOA, unless suspended or re voked, may be effective for a period of time not to exceed the expiration date of these regulations. (c) If an LOA expires prior to the ex piration date of these regulations, the Society may apply for and obtain a re newal of the LOA. (d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, the Society must apply for and obtain a modification of the LOA as de scribed in § 217.57. (e) The LOA shall set forth: (1) Permissible methods of incidental taking; (2) Means of effecting the least prac ticable adverse impact (i.e., mitigation) on the species, its habitat, and on the availability of the species for subsist ence uses; and (3) Requirements for monitoring and reporting. (f) Issuance of the LOA shall be based on a determination that the level of VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00126 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 117 National Marine Fisheries Service/NOAA, Commerce § 217.60 taking will be consistent with the find ings made for the total taking allow able under these regulations. (g) Notice of issuance or denial of an LOA shall be published in the FEDERAL REGISTER within 30 days of a deter mination. § 217.57 Renewals and modifications of Letters of Authorization. (a) An LOA issued under § 216.106 of this chapter and § 217.56 for the activity identified in § 217.50(a) shall be renewed or modified upon request by the appli cant, provided that: (1) The proposed specified activity and mitigation, monitoring, and re porting measures, as well as the antici pated impacts, are the same as those described and analyzed for these regu lations (excluding changes made pursu ant to the adaptive management provi sion in paragraph (c)(1) of this section); and (2) NMFS determines that the miti gation, monitoring, and reporting measures required by the previous LOA under these regulations were imple mented. (b) For LOA modification or renewal requests by the applicant that include changes to the activity or the mitiga tion, monitoring, or reporting (exclud ing changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS may publish a notice of proposed LOA in the FEDERAL REGISTER, including the associated analysis of the change, and solicit pub lic comment before issuing the LOA. (c) An LOA issued under §§ 216.106 and 217.56 of this chapter for the activity identified in § 217.50(a) may be modified by NMFS under the following cir cumstances: (1) Adaptive management. NMFS may modify (including augment) the exist ing mitigation, monitoring, or report ing measures (after consulting with the Society regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effec tively accomplishing the goals of the mitigation and monitoring set forth in the preamble for these regulations. (i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or report ing measures in an LOA: (A) Results from the Society’s moni toring from the previous year(s). (B) Results from other marine mam mal and/or sound or disturbance re search or studies. (C) Any information that reveals ma rine mammals may have been taken in a manner, extent or number not au thorized by these regulations or subse quent LOAs. (ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a no tice of proposed LOA in the FEDERAL REGISTER and solicit public comment. (2) Emergencies. If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in LOAs issued pursuant to § 216.106 of this chapter and § 217.56, an LOA may be modified without prior no tice or opportunity for public com ment. Notice would be published in the FEDERAL REGISTER within 30 days of the action. §§ 217.58–217.59 [Reserved] Subpart G—Taking and Importing Marine Mammals; Taking Ma rine Mammals Incidental to U.S. Air Force Launches and Operations at Vandenberg Air Force Base, California SOURCE: 84 FR 14333, Apr. 10, 2019, unless otherwise noted. EFFECTIVE DATE NOTE: At 84 FR 14333, Apr. 10, 2019, subpart G was added, effective Apr. 10, 2019, until Apr. 10, 2024. § 217.60 Specified activity and speci fied geographical region. (a) Regulations in this subpart apply only to the 30th Space Wing, United States Air Force (USAF) and those per sons it authorizes to conduct activities on its behalf for the taking of marine mammals that occurs in the areas out lined in paragraph (b) of this section VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00127 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 118 50 CFR Ch. II (10–1–22 Edition) § 217.61 and that occurs incidental to rocket and missile launches and aircraft oper ations. (b) The taking of marine mammals by the USAF may be authorized in a Letter of Authorization (LOA) only if it occurs from activities originating at Vandenberg Air Force Base. § 217.61 Effective dates. Regulations in this subpart are effec tive from April 10, 2019, until April 10, 2024. § 217.62 Permissible methods of tak ing. (a) Under an LOA issued pursuant to §§ 216.106 and 217.60 of this chapter, the Holder of the LOA (herein after ‘‘USAF’’) may incidentally, but not in tentionally, take marine mammals by Level B harassment, within the area described in § 217.60(b), provided the ac tivity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the ap propriate LOA. § 217.63 Prohibitions. Notwithstanding takings con templated in § 217.62(c) and authorized by an LOA issued under §§ 216.106 and 217.66 of this chapter, no person in con nection with the activities described in § 217.60 may: (a) Violate, or fail to comply with, the terms, conditions, and require ments of this subpart or an LOA issued under §§ 216.106 of this chapter and 217.66; (b) Take any marine mammal not specified in such LOAs; (c) Take any marine mammal speci fied in such LOAs in any manner other than as specified; (d) Take a marine mammal specified in such LOAs if NMFS determines such taking results in more than a neg ligible impact on the species or stocks of such marine mammal; or (e) Take a marine mammal specified in such LOAs if NMFS determines such taking results in an unmitigable ad verse impact on the species or stock of such marine mammal for taking for subsistence uses. § 217.64 Mitigation requirements. When conducting the activities iden tified in § 217.60(a), the mitigation measures contained in any Letter of Authorization issued under §§ 216.106 of this chapter and 217.66 must be imple mented. These mitigation measures in clude (but are not limited to): (a) For missile and rocket launches, the USAF must avoid, whenever pos sible, launches during the harbor seal pupping season of March through June, unless constrained by factors includ ing, but not limited to, human safety, national security, or launch mission objectives. (b) For rocket launches, the USAF must avoid, whenever possible, launches which are predicted to produce a sonic boom on the Northern Channel Islands from March through June. (c) Aircraft and helicopter flight paths must maintain a minimum dis tance of 1,000 feet (ft) (305 meters (m)) from recognized pinniped haulouts and rookeries, whenever possible, except for one area near the VAFB harbor over which aircraft may be flown to within 500 ft of a haulout, and except in emergencies or for real-time security incidents, which may require approach ing pinniped haulouts and rookeries closer than 1,000 ft (305 m). (d) Except for during take-off and landing actions, the following min imum altitudes must be maintained over all known marine mammal haulouts when marine mammals are present: For Class 0–2 UAS, a minimum of 300 ft; for Class 3 UAS, a minimum of 500 ft; and for Class 4 or 5 UAS, a min imum of 1,000 ft. (e) If post-launch surveys determine that an injurious or lethal take of a marine mammal has occurred, the launch procedure and the monitoring methods must be reviewed, in coopera tion with the National Marine Fish eries Service (NMFS), and appropriate changes must be made through modi fication to a Letter of Authorization, prior to conducting the next launch under that Letter of Authorization. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00128 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 119 National Marine Fisheries Service/NOAA, Commerce ยง 217.65 ยง 217.65 Requirements for monitoring and reporting. (a) To conduct monitoring of rocket launch activities, the USAF must ei ther use video recording, or must des ignate a qualified on-site individual ap proved in advance by NMFS, with dem onstrated proficiency in the identifica tion of all age and sex classes of both common and uncommon pinniped spe cies found at VAFB and knowledge of approved count methodology and expe rience in observing pinniped behavior, as specified in the Letter of Authoriza tion, to monitor and document pinniped activity as described below: (1) For any launches of space launch vehicles or recoveries of the Falcon 9 First Stage occurring from January 1 through July 31, pinniped activity at VAFB must be monitored in the vicin ity of the haulout nearest the launch platform, or, in the absence of pinnipeds at that location, at another nearby haulout, for at least 72 hours prior to any planned launch, and con tinue for a period of time not less than 48 hours subsequent to the launch; (2) For any launches of new space launch vehicles that have not been monitored during at least 3 previous launches occurring from August 1 through December 31, pinniped activity at VAFB must be monitored in the vi cinity of the haulout nearest the launch or landing platform, or, in the absence of pinnipeds at that location, at another nearby haulout, for at least 72 hours prior to any planned launch, and continue for a period of time not less than 48 hours subsequent to launching; (3) For any launches of existing space launch vehicles that are expected to re sult in a louder launch noise or sonic boom than previous launches of the same vehicle type occurring from Au gust 1 through December 31, pinniped activity at VAFB must be monitored in the vicinity of the haulout nearest the launch or landing platform, or, in the absence of pinnipeds at that location, at another nearby haulout, for at least 72 hours prior to any planned launch, and continue for a period of time not less than 48 hours subsequent to launching; (4) For any launches of new types of missiles occurring from August 1 through December 31, pinniped activity at VAFB must be monitored in the vi cinity of the haulout nearest the launch or landing platform, or, in the absence of pinnipeds at that location, at another nearby haulout, for at least 72 hours prior to any planned launch, and continue for a period of time not less than 48 hours subsequent to launching; (5) For any recoveries of the Falcon 9 First Stage occurring from August 1 through December 31 that are predicted to result in a sonic boom of 1.0 pounds per square foot (psf) or above at VAFB, pinniped activity at VAFB must be monitored in the vicinity of the haulout nearest the launch or landing platform, or, in the absence of pinnipeds at that location, at another nearby haulout, for at least 72 hours prior to any planned launch, and con tinue for a period of time not less than 48 hours subsequent to launching; (6) For any launches or Falcon 9 First Stage recoveries occurring from January 1 through July 31, follow-up surveys must be conducted within 2 weeks of the launch; (7) For any launches or Falcon 9 First Stage recoveries, pinniped activ ity at the Northern Channel Islands must be monitored, if it is determined by modeling that a sonic boom of greater than 2.0 psf is predicted to im pact one of the islands between March 1 and July 31, greater than 3.0 psf be tween August 1 and September 30, and greater than 4.0 psf between October 1 and February 28. Monitoring will be conducted at the haulout site closest to the predicted sonic boom impact area, or, in the absence of pinnipeds at that location, at another nearby haulout; (8) For any launches or Falcon 9 First Stage recoveries for which ma rine mammal monitoring is required, acoustic measurements must be made; and (9) Marine mammal monitoring must 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 VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00129 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 120 50 CFR Ch. II (10–1–22 Edition) § 217.66 such as tide, wind speed, air tempera ture, and swell. Number of marine mammals hauled out must be recorded immediately prior to the launch, un less weather conditions prevent accu rate recording or it is technologically infeasible. When flushing behavior is observed, the amount of time for ani mals to return to the haulout must be recorded. (10) Marine mammal monitoring of activities that occur during darkness at VAFB must include night video monitoring, when feasible. (b) The USAF must submit a report to the Administrator, West Coast Re gion, NMFS, and Office of Protected Resources, NMFS, 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 pro gram; and (3) Results of the monitoring pro gram, 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 moved in response to the source of dis turbance, ranging from short with drawals at least twice the animal’s body length to longer retreats over the beach, or if already moving a change of direction of greater than 90 degree, or, entered the water as a result of launch noise; (iii) For any marine mammals that entered the water, the length of time they remained off the haulout; (iv) Description of behavioral modi fications by pinnipeds that were likely the result of launch noise or sonic boom; and (v) Results of acoustic monitoring, including the intensity of any sonic boom (psf) and sound levels in SELs, SPLpeak and SPLrms. (c) If the authorized activity identi fied in § 217.60(a) is thought to have re sulted in the mortality or injury of any marine mammals or in any take of ma rine mammals not authorized in LOAs, then the USAF must notify the Direc tor, Office of Protected Resources, NMFS, and the stranding coordinator, West Coast Region, NMFS, within 48 hours of the discovery of the injured or dead marine mammal or of the take of marine mammals not authorized in an LOA. (d) An annual report must be sub mitted on March 1 of each year to the Office of Protected Resources, NMFS. (e) A final report must be submitted at least 180 days prior to expiration of these regulations to the Office of Pro tected Resources, NMFS. This report will: (1) Summarize the activities under taken and the results reported in all previous reports; (2) Assess the impacts at each of the major rookeries; (3) Assess the cumulative impacts on pinnipeds and other marine mammals from the activities specified in § 217.60(a); and (4) State the date(s), location(s), and findings of any research activities re lated to monitoring the effects on launch noise, sonic booms, and harbor activities on marine mammal popu lations. § 217.66 Letters of Authorization. (a) To incidentally take marine mammals pursuant to these regula tions, the USAF must apply for and ob tain an LOA. (b) An LOA, unless suspended or re voked, may be effective for a period of time not to exceed the expiration date of these regulations. (c) If an LOA expires prior to the ex piration date of these regulations, the USAF may apply for and obtain a re newal of the LOA. (d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, the USAF must apply for and ob tain a modification of the LOA as de scribed in § 217.67. (e) The LOA will set forth: (1) Permissible methods of incidental taking; (2) Means of effecting the least prac ticable adverse impact (i.e., mitigation) on the species, its habitat, and on the availability of the species for subsist ence uses; and (3) Requirements for monitoring and reporting. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00130 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 121 National Marine Fisheries Service/NOAA, Commerce § 217.80 (f) Issuance of the LOA shall be based on a determination that the level of taking will be consistent with the find ings made for the total taking allow able under these regulations. (g) Notice of issuance or denial of an LOA shall be published in the FEDERAL REGISTER within 30 days of a deter mination. § 217.67 Renewals and modifications of Letters of Authorization. (a) An LOA issued under §§ 216.106 of this chapter and 217.66 for the activity identified in § 217.60(a) shall be renewed or modified upon request by the appli cant, provided that: (1) The specified activity and mitiga tion, monitoring, and reporting meas ures, as well as the anticipated im pacts, are the same as those described and analyzed for these regulations (ex cluding changes made pursuant to the adaptive management provision in § 217.67(c)(1)); and (2) NMFS determines that the miti gation, monitoring, and reporting measures required by the previous LOA under these regulations were imple mented. (b) For LOA modification or renewal requests by the applicant that include changes to the activity or the mitiga tion, monitoring, or reporting (exclud ing changes made pursuant to the adaptive management provision in § 217.67(c)(1)) that do not change the findings made for the regulations or re sult in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS may publish a notice of pro posed LOA in the FEDERAL REGISTER, including the associated analysis of the change, and solicit public comment be fore issuing the LOA. (c) An LOA issued under §§ 216.106 of this chapter and 217.66 for the activity identified in § 217.60(a) may be modified by NMFS under the following cir cumstances: (1) Adaptive Management—NMFS may modify (including augment) the existing mitigation, monitoring, or re porting measures (after consulting with the USAF regarding the practica bility of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring set forth in the preamble for these regula tions. (i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or report ing measures in an LOA: (A) Results from the USAF’s moni toring from the previous year(s). (B) Results from other marine mam mal and/or sound research or studies. (C) Any information that reveals ma rine mammals may have been taken in a manner, extent or number not au thorized by these regulations or subse quent LOAs. (ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a no tice of proposed LOA in the FEDERAL REGISTER and solicit public comment. (2) Emergencies—If NMFS deter mines that an emergency exists that poses a significant risk to the well being of the species or stocks of marine mammals specified in § 217.62(c), an LOA may be modified without prior no tice or opportunity for public com ment. Notice would be published in the FEDERAL REGISTER within 30 days of the action. §§ 217.68–217.69 [Reserved] Subpart H [Reserved] Subpart I—Taking of Marine Mam mals Incidental to Naval Ex plosive Ordnance Disposal School (NEODS) Training Op erations SOURCE: 77 FR 16736, Mar. 22, 2012, unless otherwise noted. § 217.80 Specified activity and speci fied geographical region. (a) Regulations in this subpart apply only to the incidental taking of those marine mammals specified in para graph (b) of this section by the United States Air Force, Headquarters 96th Air Base Wing, Eglin Air Force Base, and those persons who engage in activi ties described in paragraphs (a)(1) through (7) of this section and the area VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00131 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 122 50 CFR Ch. II (10–1–22 Edition) § 217.81 set forth in paragraph (b) of this sec tion. (1) NEODS missions involving under water detonations of small, live explo sive charges adjacent to inert mines in order to disable the mine function, (2) Live training events occurring eight times annually, averaging one event occurring every 6 to 7 weeks, (3) Four of the training events in volving 5-lb charges, and four events involving 10-lb charges, (4) Up to 20 5-lb detonations and twenty 10-lb detonations annually, for a total of 40 detonations, (5) The five charges occurring for each training event shall be detonated individually with a maximum separa tion time of 20 minutes between each detonation, (6) Mine shapes and debris shall be re covered and removed from the Gulf of Mexico waters when training is com pleted, and (7) Each training team has two days to complete their entire evolution (i.e., detonation of five charges). If oper ations cannot be completed on the first live demolition day, the second live demolition day shall be utilized to complete the evolution. (b) The incidental take of marine mammals at Eglin Air Force Base, within the Eglin Military Complex, in cluding three sites in the Eglin Gulf Test and Training Range at property off Santa Rosa Island, Florida, in the northern Gulf of Mexico, under the ac tivity identified in paragraph (a) of this section, is limited to the following species: Atlantic bottlenose dolphins (Tursiops truncatus). (1) The latitude/longitude of corners of W–151 in the Eglin Gulf Test and Training Range are: (i) 30.24006° North, ¥86.808838° West (ii) 29.539011° North, ¥84.995536° West (iii) 28.03949° North, ¥85.000147° West (iv) 28.027598° North, ¥85.199395° West (v) 28.505304° North, ¥86.799043° West (2) The latitude/longitude of corners of W–151A in the Eglin Gulf Test and Training Range are: (i) 30.24006° North, ¥86.808838° West (ii) 30.07499° North, ¥85.999327° West (iii) 29.179968° North, ¥85.996341° West (iv) 29.384439° North, ¥86.802579° West § 217.81 Effective dates. Regulations in this subpart are effec tive from April 23, 2012, through April 24, 2017. § 217.82 Permissible methods of tak ing. (a) Under Letters of Authorization issued pursuant to § 216.106 of this chap ter and § 217.87, the U.S. Department of the Air Force, Headquarters 96th Air Base Wing, Eglin Air Force Base (U.S. Air Force), its contractors, and clients, may incidentally, but not inten tionally, take marine mammals by Level B harassment, within the area described in § 217.80, provided the activ ity is in compliance with all terms, conditions, and requirements of these regulations and the appropriate Letter of Authorization. (b) The incidental taking of marine mammals is authorized for the species listed in § 217.80(b) and is limited to Level B harassment. (c) The incidental taking of an aver age of 10 individuals annually and 50 individuals during the 5-year rule, for Atlantic bottlenose dolphins. (d) The U.S. Air Force shall suspend NEODS training operations until it ob tains additional authorization for the take of marine mammals if: (1) A marine mammal is injured, seri ously injured, or killed during training operations; (2) The injury, serious injury, or death could be associated with the ac tivities; and (3) After coordination and concur rence with NMFS, the U.S. Air Force determines that supplementary meas ures are unlikely to reduce the risk of injury, serious injury or death to a very low level, require the U.S. Air Force to suspend its activities until an authorization for such taking has been obtained. § 217.83 Prohibitions. Notwithstanding takings con templated in § 217.80 and authorized by a Letter of Authorization issued under §§ 216.106 of this chapter and 217.87, no person in connection with the activi ties described in § 217.80 may: (a) Take any marine mammal not specified in § 217.80(b); VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00132 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 123 National Marine Fisheries Service/NOAA, Commerce § 217.84 (b) Take any marine mammal speci fied in § 217.80(b) other than by inci dental take as specified in § 217.82(a) through (d); (c) Take a marine mammal specified in § 217.80(b) if such taking results in more than a negligible impact on the species or stocks of such marine mam mal; or (d) Violate, or fail to comply with, the terms, conditions, and require ments of this subpart or a Letter of Authorization issued under §§ 216.106 of this chapter and 217.87. § 217.84 Mitigation. (a) The activity identified in § 217.80(a) must be conducted in a man ner that minimizes, to the greatest ex tent practicable, adverse impacts on marine mammals and their habitats. When conducting operations identified in § 217.80(a), the mitigation measures contained in the Letter of Authoriza tion issued under §§ 216.106 of this chap ter and 217.87 must be implemented. These mitigation measures include (but are not limited to): (1) Underwater detonations using timed delay devices will only be con ducted during daylight hours. The time of detonation shall be limited to an hour after sunrise and an hour before sunset. (2) NEODS missions shall be post poned if: (i) The Beaufort sea state is greater than scale number three. Such a delay would maximize detection of marine mammals. (ii) Large concentrations of fish, jel lyfish, and/or large Sargassum rafts are observed within the mitigation-moni toring zone. The delay would continue until the fish, jellyfish, and/or Sargassum rafts that cause the post ponement are confirmed to be outside the mitigation-monitoring zone. (3) Time delays longer than 10 min utes will not be used. Initiation of the timer device will not start until the mitigation-monitoring zone is clear of marine mammals for 30 minutes. (4) A calculated mitigation-moni toring zone will be established around each underwater detonation location based on charge weight and length of time-delay used. When conducting sur veys within the mitigation-monitoring zone radius (but always outside the detonation plume radius/human safety zone) and travel in a circular pattern around the detonation point, surveying the inner (toward the detonation site) and outer (away from the detonation site) areas. For a survey radius of 914.4 meters, the boat will be positioned at 457.2 meters from the detonation point. Similarly, for a survey radius of 1,280.2 meters, boats will be positioned at 640.1 meter distance. (5) For a survey radius of 914.4 me ters, two boats are required. For a ra dius of 1,280.2 meters, either three boats or two boats/one helicopter are required. (6) When using two boats, each boat will be positioned on opposite sides of the detonation location, separated by 180 degrees. When using three boats, each boat will be separated by 120 de grees (equidistant from each other). (7) Two observers in each boat will conduct continuous visual surveys of the mitigation-monitoring zone for the entire duration of the training event, including at least 30 minutes prior to detonation. Observers will search the mitigation-monitoring zone for the presence of marine mammals, and other marine species such as sea tur tles, diving birds, large concentrations of fish or jellyfish, and large Sargassum mats. The presence of diving birds, fish, jellyfish, and Sargassum may indi cate an increased likelihood of dolphin presence. (8) To the extent practicable, boats will maintain 18.5 kilometer per hour search speed. This search speed is ex pected to ensure adequate coverage of the buffer zone. While weather condi tions and sea state may require slower speeds in some instances, 18.5 kilo meters per hour is considered a pru dent, safe, and executable speed that will allow adequate surveillance. For a 914.4 meter survey zone, a boat trav eling at 18.5 kilometers per hour and 457.2 meters from the detonation point would circle the point approximately 3.2 times during a 30 minute survey pe riod. By using two boats, approxi mately 6.4 circles would be completed in total. Similarly, for a 1,280.2 meter radius, each boat would circle the deto nation point approximately 2.3 times VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00133 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 124 50 CFR Ch. II (10–1–22 Edition) § 217.85 within 30 minutes, and use of three boats would result in 6.9 total circles. (9) If available, a U.S. Navy heli copter can be used in lieu of one of the survey boats, so long as safety of flight is not jeopardized. U.S. Navy helicopter pilots are trained to conduct searches for relatively small objects in the water, such as a missing person. A heli copter search pattern is dictated by standard U.S. Navy protocols and ac counts for multiple variables, such as size and shape of the search area, size of the object, and environmental condi tions, among others. (10) The mitigation-monitoring zone will be surveyed for 30 minutes prior to detonation and continue for 30 minutes after detonation (concentrated on the area down current of the test site), in order to monitor for marine mammals and other protected species. It is the U.S. Air Force’s (on behalf of the U.S. Navy) intent to conduct five successive detonations with a maximum time of 20 minutes between detonations, al though a variety of factors can cause a delay of longer than 20 minutes be tween detonations, although a variety of factors can cause a delay of longer than 20 minutes, including a delay until the following day. Monitoring would continue during the 20 minutes time between detonations, and would serve as both post-detonation moni toring as well as pre-mission moni toring for the next detonation. If the time between detonations is delayed beyond 20 minutes, post-mission moni toring will be conducted for 30 minutes. At the conclusion of the final detona tion, post-monitoring will be conducted for 30 minutes. (11) Other personnel besides des ignated observers shall also maintain situational awareness of the presence of marine mammals within the mitiga tion-monitoring zone to the extent practicable given dive safety consider ations. (12) Divers placing the charges on mines will observe the immediate un derwater area around the detonation site for marine mammals and other marine species such as diving birds, sea turtles, and Gulf sturgeon, and report sightings to surface observers. (13) If a marine mammal is sighted within an established mitigation-moni toring zone or moving towards it, un derwater detonation events will be postponed or suspended until the ma rine mammal that caused the post ponement/suspension of training oper ations has voluntarily left the area and the area is clear of marine mammals for at least 30 minutes. (14) If a marine mammal is detected within or about to enter an established mitigation-monitoring zone and subse quently cannot be reacquired, the mis sion will be postponed or suspended until the last verified location is out side the mitigation-monitoring zone, the animals is moving away from the area, and the area is clear of marine mammals for at least 30 minutes. (15) Any marine mammal observed after an underwater detonation either injured or exhibiting signs of distress will be reported to Eglin Air Force Base. Eglin Air Force Base will coordi nate with other members of marine mammal stranding networks, as appro priate, and report these events to NMFS or U.S. Fish and Wildlife Serv ice. The report will contain date and time of sighting, location, species de scription, and indications of the ani mal’s status. (16) Training operations shall be sus pended if the conditions of § 217.83(a)– (d) regarding the injury, serious injury, or death of a marine mammal during NEODS training operations are met. (17) Additional mitigation measures as contained in a Letter of Authoriza tion. (b) [Reserved] § 217.85 Requirements for monitoring and reporting. (a) Holders of Letters of Authoriza tion pursuant to § 216.106 of this chap ter and § 217.87 for activities described in § 216.80(a) are required to cooperate with NMFS, and any other Federal, state, or local agency with authority to monitor the impacts of the activity on marine mammals. Unless specified otherwise in the Letter of Authoriza tion, the Holder of the Letter of Au thorization must notify the Adminis trator, Southeast Region, NMFS, by letter or telephone, prior to activities possibly involving the taking of marine mammals. If the authorized activity identified in § 217.80(a) is thought to VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00134 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 125 National Marine Fisheries Service/NOAA, Commerce § 217.85 have resulted in the mortality or in jury of any marine mammals or in any take of marine mammals not identified in § 217.80(b), then the Holder of the Letter of Authorization must, in addi tion to complying with the require ments of § 217.82(a)–(d), notify the Di rector, Office of Protected Resources, NMFS, or designee, by telephone (301– 427–8400), within 24 hours of the dis covery of the injured or dead animal. (b) Holders of Letters of Authoriza tion must designate trained, qualified, on-site individuals approved in advance by NMFS, as specified in the Letter of Authorization, to perform the fol lowing monitoring requirements: (1) For NEODS testing, areas to be used in missions shall be visually mon itored for marine mammal presence from a surface support vessel prior to detonation of mine neutralization charges. Monitoring shall be conducted 30 minutes before missions to clear the mitigation-monitoring zone. Post-mis sion monitoring shall also be con ducted for 30 minutes after the final detonation (concentrated on the area down current of the test site). If ma rine mammals are inside the mitiga tion-monitoring zone, detonations shall be postponed until they have left the area. The observer on the vessel must be equipped with the proper opti cal equipment and lines of communica tion in order to recommend the deci sion to move forward with the mission. (2) Monitoring shall occur pre-mis sion (for 30 minutes), throughout the mission, and post-mission (for 30 min utes). Post-mission monitoring shall concentrate on the area down current of the test site. (3) Survey clearance procedures shall be conducted using best operational methods possible. After the mitigation monitoring zone is cleared, all dolphins and protected species indicators (e.g., Sargassum rafts) shall be avoided to the maximum extent possible. (4) Clearance procedures shall be re conducted if dolphins or protected spe cies indicators (e.g., Sargassum rafts) are encountered. (5) After conducting post-mission monitoring, NEODS training oper ations data as required by Eglin Air Force Base’s Natural Resources Sec tion, 96 CEG/CEVSN shall be reported. Post-mission monitoring shall com mence immediately following each det onation and shall be concentrated on the area down current of the test site. If any injured or dead marine mammals are observed, that information will be reported and coordinated with marine animals stranding networks. (6) An annual summary (coordinated through 96 CEG/CEVSN) of mission ob servations shall be submitted to: NMFS, Southeast Regional Office, Pro tected Resources Division, 9721 Execu tive Center Drive North, St. Peters burg, Florida 33702; and NMFS, Office of Protected Resources, 1315 East West Highway, Silver Spring, Maryland 20910. (c) Holders of Letters of Authoriza tion must conduct additional moni toring as required under an annual Let ter of Authorization. (d) Holders of Letters of Authoriza tion must submit an annual report summarizing the specified activity as well as monitoring and mitigation data to the Southeast Regional Adminis trator and Director of the Office of Protected Resources, NMFS, within 90 days after the conclusion of the NEODS training operations. This re port must contain the following infor mation: (1) Date(s), time(s), and location(s) of explosive activities, (2) Design of the monitoring pro gram, (3) Results of the monitoring pro gram including, but not necessarily limited to: (i) Species counts, (ii) Numbers of observed disturb ances, (iii) Descriptions of the disturbance behaviors before, during, and after ex plosive activities, (iv) Bearing and distances, (v) Observations of unusual behav iors, numbers, or distributions of ma rine mammals in the activity area shall be reported to NMFS and the U.S. Fish and Wildlife Service so that any potential follow-up observations can be conducted by the appropriate per sonnel. In addition, observations of tag-bearing marine mammals, sea tur tles, and fish carcasses as well as any rare or unusual species of marine mam mals and fish shall be reported to VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00135 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 126 50 CFR Ch. II (10–1–22 Edition) § 217.85 NMFS and U.S. Fish and Wildlife Serv ice. (e) An annual report (referred to in § 217.85(d)) must be submitted at the time of notification of the renewal of the Letter of Authorization. (f) A draft comprehensive final report must be submitted at least 180 days prior to expiration of these regula tions. This comprehensive technical re port shall provide full documentation of methods, results, and interpretation of all monitoring during the first four and a half years of the Letter of Au thorization. A revised final comprehen sive technical report, including all monitoring results during the entire period of the Letters of Authorization, must be submitted 90 days after the end of the period of effectiveness of the regulations. This report shall summa rize the activities undertaken and the results reported in all previous reports. (g)(1) In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by a Letter of Au thorization, such as an injury, serious injury, or mortality, Eglin Air Force Base will immediately cease the speci fied activities and immediately report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS at 301–427– 8401 and/or by email to Jolie.Harrison@noaa.gov and How ard.Goldstein@noaa.gov, and the NMFS Southeast Regional Marine Mammal Stranding Network at 877–433–8299 (Blair.Mase@noaa.gov and Erin.Fougeres@noaa.gov) (Florida Ma rine Mammal Stranding Hotline at 888– 404–3922). The report must include the following information: (i) Time, date, and location (latitude/ longitude) of the incident; (ii) Description of the incident; (iii) Status of all noise-generating source use in the 24 hours preceding the incident; (iv) Water depth; (v) Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, and visibility); (vi) Description of all marine mam mal observations in the 24 hours pre ceding the incident; (vii) Species identification or descrip tion of the animal(s) involved; (viii) Fate of the animal(s); and (ix) Photographs or video footage of the animal(s) (if equipment is avail able). Activities shall not resume until NMFS is able to review the cir cumstances of the prohibited take. NMFS shall work with Eglin Air Force Base to determine what is necessary to minimize the likelihood of further pro hibited take and ensure MMPA compli ance. Eglin Air Force Base may not re sume their activities until notified by NMFS via letter or email, or telephone. (2) In the event that Eglin Air Force Base discovers an injured or dead ma rine mammal, and the lead observer de termines that the cause of injury or death is unknown and the death is rel atively recent (i.e., less than a mod erate state of decomposition as de scribed in the next paragraph), Eglin Air Force Base will immediately report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, at 301–427– 8401, and/or by email to Jolie.Harrison@noaa.gov and How ard.Goldstein@noaa.gov and the NMFS Southeast Region Marine Mammal Stranding Network (877–433–8299) and/or by email to the Southeast Regional Stranding Coordinator (Blair.Mase@noaa.gov) and Southeast Regional Stranding Program Adminis trator (Erin.Fougeres@noaa.gov). The report must include the same informa tion identified in the paragraph above. Activities may continue while NMFS reviews the circumstances of the inci dent, NMFS will work with Eglin Air Force Base to determine whether modi fications in the activities are appro priate. (3) In the event that Eglin Air Force Base discovers an injured or dead ma rine mammal, and the lead observer de termines that the injury or death is not associated with or related to the activities authorized in the Letter of Authorization (e.g., previously wound ed animal, carcass with moderate to advanced decomposition, or scavenger damage), Eglin Air Force Base will re port the incident to the Chief of the Permits and Conservation Division, Of fice of Protected Resources, NMFS, at 301–427–8401, and/or by email to VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00136 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 127 National Marine Fisheries Service/NOAA, Commerce § 217.88 Jolie.Harrison@noaa.gov and How ard.Goldstein@noaa.gov, and the NMFS Southeast Regional Marine Mammal Stranding Network (877–433–8299), and/ or by email to the Southeast Regional Stranding Coordinator (Blair.Mase@noaa.gov) and Southeast Regional Stranding Program Adminis trator (Erin.Fougeres@noaa.gov), within 24 hours of discovery. Eglin Air Force Base will provide photographs or video footage (if available) or other docu mentation of the stranded animals sighting to NMFS and the Marine Mammal Stranding Network. § 217.86 Applications for Letters of Au thorization. (a) To incidentally take marine mammals pursuant to these regula tions, the U.S. citizen (as defined by § 216.103) conducting the activity iden tified in § 217.80(a) must apply for and obtain either an initial Letter of Au thorization in accordance with § 217.87 or a renewal under § 217.88. (b) The application must be sub mitted to NMFS at least 30 days before the activity is scheduled to begin. (c) Application for a Letter of Au thorization and for renewals of Letters of Authorization must include the fol lowing: (1) Name of the U.S. citizen request ing 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 mam mals. (d) A copy of the Letter of Authoriza tion must be in the possession of the persons conducting activities that may involve incidental takings of marine mammals. (e) [Reserved] § 217.87 Letters of Authorization. (a) A Letter of Authorization, unless suspended or revoked, shall be valid for a period of time not to exceed the pe riod of validity of this subpart. (b) The Letter of Authorization shall set forth: (1) Permissible methods of incidental taking; (2) Means of effecting the least prac ticable adverse impact on the species, its habitat, and on the availability of the species for subsistence uses (i.e., mitigation); and (3) Requirements for mitigation, monitoring, and reporting. (c) Issuance and renewal of the Let ter of Authorization shall be based on a determination that the total number of marine mammals taken by the activity as a whole shall have no more than a negligible impact on the affected spe cies or stock of marine mammal(s). § 217.88 Renewal of Letters of Author ization and adaptive management. (a) A Letter of Authorization issued under § 216.106 of this chapter and § 217.87 for the activity identified in § 217.80(a) shall be renewed upon a re quest by the applicant or determina tion by NMFS and the applicant that modifications are appropriate pursuant to the adaptive management compo nent of these regulations, provided that: (1) NMFS is notified that the activity described in the application submitted under § 217.86 shall be undertaken and there shall not be a substantial modi fication to the described work, mitiga tion or monitoring undertaken during the upcoming 12 months; (2) NMFS has received, reviewed, and accepted the monitoring reports re quired under § 217.85(d) and (e) and the Letter of Authorization issued under § 217.87; (3) NMFS determines that the miti gation, monitoring, and reporting measures required under §§ 217.84 and 217.85 and the Letter of Authorization issued under §§ 216.106 and 217.87 of this chapter, were undertaken and shall be undertaken during the upcoming an nual period of validity of a renewed Letter of Authorization; and (4) NMFS makes the determination required by § 217.87(c). (b) If either a request for a renewal of a Letter of Authorization issued under § 216.106 of this chapter and § 217.88, or a determination by NMFS and the appli cant that modifications are appro priate pursuant to the adaptive man agement component of these regula tions indicates that a substantial modification, as determined by NMFS, to the described work, mitigation or VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00137 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 128 50 CFR Ch. II (10–1–22 Edition) § 217.89 monitoring undertaken during the up coming season shall occur, NMFS shall publish a proposed modification to the Letter of Authorization in the FEDERAL REGISTER and provide the public a pe riod of 30 days for review and comment. Review and comment on renewals or modifications of Letters of Authoriza tion are restricted to: (1) New cited information and data indicating that the determinations made in this document are in need of reconsideration, and (2) Proposed substantive changes to the mitigation and monitoring require ments contained in these regulations or in the current Letter of Authoriza tion. (c) A notice of issuance or denial of a renewal of a Letter of Authorization shall be published in the FEDERAL REG ISTER. (d) Adaptive Management—NMFS may modify or augment the existing mitigation or monitoring measures (after consulting with the U.S. Air Force regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effec tively accomplishing the goals of miti gation and monitoring set forth in the preamble of these regulations. Below are some of the possible sources of new data that could contribute to the deci sion to modify the mitigation or moni toring measures: (1) Results from the U.S. Air Force’s monitoring from the previous year; (2) Results from marine mammal and sound research; or (3) Any information which reveals that marine mammals may have been taken in a manner, extent or number not authorized by these regulations or subsequent Letters of Authorization. § 217.89 Modifications of Letters of Au thorization. (a) Except as provided in paragraph (b) of this section, no substantive modification (including withdrawal or suspension) to the Letter of Authoriza tion by NMFS issued pursuant to § 216.106 of this chapter and § 217.87 of this chapter and subject to the provi sions of this subpart shall be made until after notification and an oppor tunity for public comment has been provided. For purposes of this para graph, a renewal of a Letter of Author ization under § 217.88, without modifica tion (except for the period of validity), is not considered a substantive modi fication. (b) If the Assistant Administrator de termines that an emergency exists that poses a significant risk to the well being of the species or stocks of marine mammals specified in § 217.80(b), a Let ter of Authorization issued pursuant to § 216.106 of this chapter and § 217.87 of this chapter may be substantively modified without prior notification and an opportunity for public comment. Notification shall be published in the FEDERAL REGISTER within 30 days sub sequent to the action. Subpart J—Taking and Importing Marine Mammals; U.S. Navy’s Submarine Base New London Pier Construction SOURCE: 83 FR 36788, July 31, 2018, unless otherwise noted. EFFECTIVE DATE NOTE: At 83 FR 36788, July 31, 2018, subpart J was added, effective Mar. 1, 2020, until Feb. 28, 2025. § 217.90 Specified activity and speci fied geographical region. (a) Regulations in this subpart apply only to the U.S. Navy (Navy) and those persons it authorizes or funds to con duct activities on its behalf for the taking of marine mammals that occurs in the area outlined in paragraph (b) of this section and that occurs incidental to the activities described in paragraph (c) of this section. (b) The taking of marine mammals by the Navy may be authorized in Let ters of Authorization (LOAs) only if it occurs within the Navy Submarine Base New London Study Area, which is located in the towns of Groton and Ledyard in New London County, Con necticut. (c) The taking of marine mammals by the Navy is only authorized if it oc curs incidental to the Navy’s con ducting in-water pier construction or demolition activities. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00138 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 129 National Marine Fisheries Service/NOAA, Commerce § 217.94 § 217.91 Effective dates and defini tions. Regulations in this subpart are effec tive March 1, 2020 through February 28, 2025. § 217.92 Permissible methods of tak ing. Under LOAs issued pursuant to § 216.106 of this chapter and § 217.96, the Holder of the LOAs (hereinafter ‘‘Navy’’) may incidentally, but not in tentionally, take marine mammals within the area described in § 217.90(b) by Level A harassment and Level B harassment associated with in-water pile driving and pile removal activities, provided the activity is in compliance with all terms, conditions, and require ments of the regulations in this sub part and the applicable LOAs. § 217.93 Prohibitions. Notwithstanding takings con templated in § 217.92 and authorized by LOAs issued under § 216.106 of this chap ter and § 217.96, no person in connection with the activities described in § 217.90 may: (a) Violate, or fail to comply with, the terms, conditions, and require ments of this subpart or a LOA issued under § 216.106 of this chapter and § 217.96; (b) Take any marine mammal not specified in such LOAs; (c) Take any marine mammal speci fied in such LOAs in any manner other than as specified; (d) Take a marine mammal specified in such LOAs if NMFS determines such taking results in more than a neg ligible impact on the species or stocks of such marine mammal; or (e) Take a marine mammal specified in such LOAs if NMFS determines such taking results in an unmitigable ad verse impact on the availability of such species or stock of marine mam mal for taking for subsistence uses. § 217.94 Mitigation requirements. When conducting the activities iden tified in § 217.90(c), the mitigation measures contained in any LOAs issued under § 216.106 of this chapter and § 217.96 must be implemented. These mitigation measures shall include but are not limited to: (a) Time restriction. In-water construc tion and demolition work shall occur only during daylight hours. (b) Establishment of monitoring and shutdown zones. (1) For all relevant in water construction and demolition ac tivity, the Navy shall designate Level A harassment zones with radial dis tances as identified in any LOA issued under § 216.106 of this chapter and § 217.96. (2) For all relevant in-water con struction and demolition activity, the Navy shall designate Level B harass ment zones with radial distances as identified in any LOA issued under § 216.106 of this chapter and § 217.96. (3) For all in-water construction and demolition activity, the Navy shall im plement a minimum shutdown zone of a 10-m radius around the pile. If a ma rine mammal comes within or ap proaches the shutdown zone, such oper ations shall cease. (c) Monitoring visibility. Pile driving shall only take place when the shut down and Level A zones are visible and can be adequately monitored. If condi tions (e.g., fog) prevent the visual de tection of marine mammals, activities with the potential to result in Level A harassment shall not be initiated. If such conditions arise after the activity has begun, pile driving or pile removal activities shall be halted if the 10-m shutdown zone is not visible. (d) Shutdown measures. (1) The Navy shall deploy three protected species ob servers (PSOs) to monitor marine mammals during in-water pile driving and pile removal. One PSO shall be lo cated on land and two shall be located in a boat to monitor the farther loca tions. (2) Monitoring shall take place from 15 minutes prior to initiation of pile driving or removal activity through 30 minutes post-completion of pile driving or removal activity. Pre-activity moni toring shall be conducted for 15 min utes to ensure that the shutdown zone is clear of marine mammals, and pile driving or removal may commence when observers have declared the shut down zone clear of marine mammals. In the event of a delay or shutdown of activity resulting from marine mam mals in the shutdown zone, animals VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00139 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 130 50 CFR Ch. II (10–1–22 Edition) § 217.95 shall be allowed to remain in the shut down zone (i.e., must leave of their own volition) and their behavior shall be monitored and documented. Moni toring shall occur throughout the time required to drive or remove a pile. A determination that the shutdown zone is clear must be made during a period of good visibility (i.e., the entire shut down zone and surrounding waters must be visible to the naked eye). (3) If a marine mammal approaches or enters the shutdown zone, or if a marine mammal not specified in the LOAs enters the Level B harassment zone, or if the take of a marine mam mal species or stock has reached the take limits specified in any LOA issued under § 216.106 of this chapter and § 217.96 and enters the Level B harass ment zone, all pile driving or removal activities at that location shall be halted. If pile driving or removal is halted or delayed due to the presence of a marine mammal, the activity may not commence or resume until either the animal has voluntarily left and been visually confirmed beyond the shutdown zone or fifteen minutes have passed without re-detection of the ani mal. (4) The Navy shall implement shut down measures if the number of au thorized takes for any particular spe cies reaches the limit under the appli cable LOA and if such marine mam mals are sighted within the vicinity of the project area and are approaching the Level B harassment zone during in water construction or demolition ac tivities. (e) Soft start. (1) The Navy shall im plement soft start techniques for im pact pile driving. The Navy shall con duct an initial set of three strikes from the impact hammer at 40 percent en ergy, followed by a 1-minute waiting period, then two subsequent three strike sets. (2) Soft start shall be required for any impact driving, including at the beginning of the day, and at any time following a cessation of impact pile driving of 30 minutes or longer. § 217.95 Requirements for monitoring and reporting. (a) Marine mammal monitoring—(1) General requirements. The Navy shall employ trained protected species ob servers (PSOs) to conduct marine mammal monitoring for its Submarine Base New London pier construction project. The PSOs shall observe and collect data on marine mammals in and around the project area for 15 min utes before, during, and for 30 minutes after all pile removal and pile installa tion work. PSOs shall have no other as signed tasks during monitoring peri ods, and shall be placed at the best vantage point(s) practicable to monitor for marine mammals and implement shutdown or delay procedures when ap plicable through communication with the equipment operator. (2) Protected species observer qualifica tions. NMFS-approved PSOs shall meet the following requirements: (i) Independent observers (i.e., not construction personnel) are required; (ii) At least one observer must have prior experience working as an ob server; (iii) Other observers may substitute education (undergraduate degree in bi ological science or related field) or training for experience; (iv) Where a team of three or more observers are required, one observer should be designated as lead observer or monitoring coordinator. The lead observer must have prior experience working as an observer; and (v) NMFS will require submission and approval of observer CVs. (3) Marine mammal monitoring proto cols. (i) The Navy shall conduct brief ings between construction supervisors and crews and the PSO team prior to the start of all pile driving activities, and when new personnel join the work, in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures. All personnel working in the project area shall watch the Navy’s Marine Species Awareness Training video. An informal guide shall be included with the monitoring plan to aid in identifying species if they are observed in the vicinity of the project area. (ii) The Navy shall monitor the Level A and Level B harassment zones before, during, and after pile driving activities VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00140 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 131 National Marine Fisheries Service/NOAA, Commerce § 217.95 for all in-water constructions. The Ma rine Mammal Monitoring Plan shall in clude the following procedures: (A) PSO location. PSOs will be pri marily located on boats, docks, and piers at the best vantage point(s) in order to properly see the entire shut down zone(s). (B) PSO vantage point. PSOs will be located at the best vantage point(s) to observe the zone associated with be havioral impact thresholds. (C) Observation equipment. During all observation periods, PSOs will use high-magnification (25X), as well as standard handheld (7X) binoculars, and the naked eye to search continuously for marine mammals. (D) Ranging equipment. Monitoring distances will be measured with range finders. Distances to animals will be based on the best estimate of the PSO, relative to known distances to objects in the vicinity of the PSO. (E) Bearing. Bearings to animals will be determined using a compass. (F) Pre-activity monitoring. The shut down zone will be monitored for 15 minutes prior to in-water construction/ demolition activities. If a marine mammal is present within the 10-m shutdown zone, the activity will be de layed until the animal(s) leaves the shutdown zone. Activity will resume only after the PSO has determined that, through sighting or by waiting 15 minutes, the animal(s) has moved out side the shutdown zone. If a marine mammal is observed approaching the shutdown zone, the PSO who sighted that animal will notify all other PSOs of its presence. (G) During activity monitoring. If a marine mammal is observed entering the Level A or Level B harassment zones outside the 10-m shutdown zone, the pile segment being worked on will be completed without cessation, unless the animal enters or approaches the shutdown zone, at which point all pile driving activities will be halted. If an animal is observed within the shut down zone during pile driving, then pile driving will be stopped as soon as it is safe to do so. Pile driving can only re sume once the animal has left the shut down zone of its own volition or has not been re-sighted for a period of 15 minutes. (H) Post-activity monitoring. Moni toring of all zones will continue for 30 minutes following the completion of the activity. (b) Acoustic monitoring—(1) Sound source verification. (i) The Navy shall conduct pile driving sound source verification for the following types and sizes of piles: (A) Vibratory and impact installa tion of at least 5 16-in fiberglass rein forced plastic piles; and (B) Rock socket drilling of at least 3 30-in and 3 16-in piles. (ii) Sound source measurements of these piles sound shall be conducted at distances approximately 10 m from the source. (iii) For vibratory pile driving/re moval source level measurements, re ports shall include 1-s sound exposure level (SEL), source spectrum, duration of recordings used to derived the SEL, and 24-hour cumulative SEL extrapo lated from measurements. (iv) For impact pile driving source level measurements, report should in clude peak sound pressure level (SPLpk), root-mean-square SPL (SPLrms), single strike SEL (SELss), in tegration time for SPLrms, SELss spec trum, and 24-hour cumulative SEL ex trapolated from measurements. (2) Level B harassment distance verification. (i) The Navy shall empiri cally determine the Level B harass ment distance either by extrapolating from in situ measurements conducted at several points between 10 and 500 m from the source, or by direct measure ments to locate the distance where the received levels reach 120 dB or below, or at the ambient noise level. (ii) Level B harassment zones to be empirically verified include: (A) Rock socket drilling of at least 3 30-in and 3 16-in piles; (B) Vibratory installation of at least 3 36-in steel piles; and (C) Vibratory removal of at least 3 24 in concrete and 3 33-in concrete piles. (iii) For extent of Level B harass ment zone verification, the Navy shall report the measured or extrapolated distances where the received levels SPLrms decay to 120-dB or to the ambi ent noise level, whichever is higher, as well as integration time for such SPLrms. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00141 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 132 50 CFR Ch. II (10–1–22 Edition) § 217.95 (3) Source level calculation. The sound levels reported should be in median and linear average (i.e., taking averages of sound intensity before converting to dB). (4) Sediment type. The passive acous tic monitoring reports shall also in clude sediment type where measure ments are made. (c) Reporting measures—(1) Annual re ports. (i) The Navy shall submit an an nual report within 90 days after each activity year, starting from the date when the LOA is issued (for the first annual report) or from the date when the previous annual report ended. (ii) Annual reports shall detail the monitoring protocol, summarize the data recorded during monitoring, and estimate the number of marine mam mals that may have been harassed dur ing the period of the report. (iii) Annual reports shall also include results from acoustic monitoring de tailed in paragraph (b) of this section. (iv) NMFS shall provide comments within 30 days after receiving annual reports, and the Navy shall address the comments and submit revisions within 30 days after receiving NMFS com ments. If no comment is received from the NMFS within 30 days, the annual report is considered completed. (2) Final report. (i) The Navy shall submit a comprehensive summary re port to NMFS not later than 90 days following the conclusion of marine mammal monitoring efforts described in this subpart. (ii) The final report shall synthesize all data recorded during marine mam mal monitoring, and estimate the num ber of marine mammals that may have been harassed through the entire project. (iii) NMFS would provide comments within 30 days after receiving this re port, and the Navy shall address the comments and submit revisions within 30 days after receiving NMFS com ments. If no comment is received from the NMFS within 30 days, the final re port is considered as final. (3) Reporting of injured or dead marine mammals. (i) In the unanticipated event that the construction or demolition ac tivities clearly cause the take of a ma rine mammal in a prohibited manner, such as an injury, serious injury, or mortality, the Navy shall immediately cease all operations and immediately report the incident to the NMFS Office of Protected Resources, NMFS, and the Greater Atlantic Region Stranding Co ordinators. The report must include the following information: (A) Time, date, and location (lati tude/longitude) of the incident; (B) Description of the incident; (C) Status of all sound source use in the 24 hours preceding the incident; (D) Environmental conditions (e.g., wind speed and direction, sea state, cloud cover, visibility, and water depth); (E) Description of marine mammal observations in the 24 hours preceding the incident; (F) Species identification or descrip tion of the animal(s) involved; (G) The fate of the animal(s); and (H) Photographs or video footage of the animal (if equipment is available). (ii) Activities shall not resume until NMFS is able to review the cir cumstances of the prohibited take. NMFS shall work with the Navy to de termine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The Navy may not resume their activi ties until notified by NMFS via letter, email, or telephone. (iii) In the event that the Navy dis covers an injured or dead marine mam mal, and the lead PSO determines that the cause of the injury or death is un known and the death is relatively re cent (i.e., in less than a moderate state of decomposition as described in the next paragraph), the Navy will imme diately report the incident to the NMFS Office of Protected Resources, NMFS, and the Greater Atlantic Re gional Stranding Coordinators. The re port must include the same informa tion identified in paragraph (c)(3)(i)(A) of this section. Activities may con tinue while NMFS reviews the cir cumstances of the incident. NMFS will work with the Navy to determine whether modifications in the activities are appropriate. (iv) In the event that the Navy dis covers an injured or dead marine mam mal, and the lead protected species ob server determines that the injury or death is not associated with or related VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00142 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 133 National Marine Fisheries Service/NOAA, Commerce § 217.97 to the activities authorized in the IHA (e.g., previously wounded animal, car cass with moderate to advanced decom position, or scavenger damage), the Navy shall report the incident to the NMFS Office of Protected Resources, NMFS, and the Greater Atlantic Re gional Stranding Coordinators, within 24 hours of the discovery. The Navy shall provide photographs or video footage (if available) or other docu mentation of the stranded animal sighting to NMFS and the Marine Mammal Stranding Network. The Navy can continue its operations under such a case. § 217.96 Letters of Authorization. (a) To incidentally take marine mammals pursuant to these regula tions, the Navy must apply for and ob tain LOAs in accordance with § 216.106 of this chapter for conducting the ac tivity identified in § 217.90(c). (b) LOAs, unless suspended or re voked, may be effective for a period of time not to extend beyond the expira tion date of these regulations. (c) If an LOAs expires prior to the ex piration date of these regulations, the Navy may apply for and obtain a re newal of the LOAs. (d) In the event of projected changes to the activity or to mitigation, moni toring, reporting (excluding changes made pursuant to the adaptive man agement provision of § 217.97(c)(1)) re quired by an LOA, the Navy must apply for and obtain a modification of LOAs as described in § 217.97. (e) Each LOA shall set forth: (1) Permissible methods of incidental taking; (2) Means of effecting the least prac ticable adverse impact (i.e., mitigation) on the species, their habitat, and the availability of the species for subsist ence uses; and (3) Requirements for monitoring and reporting. (f) Issuance of the LOAs shall be based on a determination that the level of taking shall be consistent with the findings made for the total taking al lowable under these regulations. (g) Notice of issuance or denial of the LOAs shall be published in the FED ERAL REGISTER within 30 days of a de termination. § 217.97 Renewals and modifications of Letters of Authorization. (a) An LOA issued under § 216.106 of this chapter and § 217.96 for the activity identified in § 217.90(c) shall be renewed or modified upon request by the appli cant, provided that: (1) The proposed specified activity and mitigation, monitoring, and re porting measures, as well as the antici pated impacts, are the same as those described and analyzed for these regu lations (excluding changes made pursu ant to the adaptive management provi sion in paragraph (c)(1) of this section); and (2) NMFS determines that the miti gation, monitoring, and reporting measures required by the previous LOAs under these regulations were im plemented. (b) For LOA modification or renewal requests by the applicant that include changes to the activity or the mitiga tion, monitoring, or reporting meas ures (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that do not change the findings made for the regulations or result in no more than a minor change in the total esti mated number of takes (or distribution by species or years), NMFS may pub lish a notice of proposed LOA in the FEDERAL REGISTER, including the asso ciated analysis of the change, and so licit public comment before issuing the LOA. (c) An LOA issued under § 216.106 of this chapter and § 217.96 for the activity identified in § 217.90(c) may be modified by NMFS under the following cir cumstances: (1) Adaptive management. After con sulting with the Navy regarding the practicability of the modifications, NMFS may modify (including by add ing or removing measures) the existing mitigation, monitoring, or reporting measures if doing so creates a reason able likelihood of more effectively ac complishing the goals of the mitiga tion and monitoring set forth in the preamble for these regulations. (i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or report ing measures in an LOA: VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00143 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 134 50 CFR Ch. II (10–1–22 Edition) §§ 217.98–217.99 (A) Results from the Navy’s moni toring from the previous year(s); (B) Results from other marine mam mal and/or sound research or studies; or (C) Any information that reveals ma rine mammals may have been taken in a manner, extent or number not au thorized by these regulations or subse quent LOAs. (ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS shall publish a no tice of proposed LOA in the FEDERAL REGISTER and solicit public comment. (2) Emergencies. If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in LOAs issued pursuant to § 216.106 of this chapter and § 217.96, an LOA may be modified without prior no tice or opportunity for public com ment. Notice would be published in the FEDERAL REGISTER within thirty days of the action. §§ 217.98–217.99 [Reserved] Subpart K—Taking Marine Mam mals Incidental to Rocky Intertidal Monitoring Surveys Along the Oregon and Cali fornia Coasts SOURCE: 85 FR 18467, Apr. 2, 2020, unless otherwise noted. EFFECTIVE DATE NOTE: At 85 FR 18467, Apr. 2, 2020, subpart K was added, effective Apr. 12, 2020, through Apr. 11, 2021. At 85 FR 20201, Apr. 10, 2020, the end date was corrected to Apr. 11, 2025. § 217.100 Specified activity and speci fied geographical region. (a) Regulations in this subpart apply only to the University of California Santa Cruz’s Partnership for Inter disciplinary Studies of Coastal Oceans (UCSC/PISCO) and those persons it au thorizes or funds to conduct activities on its behalf for the taking of marine mammals that occurs in the areas out lined in paragraph (b) of this section and that occur incidental to rocky intertidal monitoring research surveys. (b) The taking of marine mammals by UCSC/PISCO may be authorized in a Letter of Authorization (LOA) only if it occurs on the coasts of Oregon or California. § 217.101 Effective dates. Regulations in this subpart are effec tive from April 12, 2020 through April 11, 2025. § 217.102 Permissible methods of tak ing. Under LOAs issued pursuant to §§ 216.106 of this chapter and 217.106, the Holder of the LOA (hereinafter ‘‘UCSC/ PISCO’’) may incidentally, but not in tentionally, take marine mammals within the area described in § 217.100(b) by Level B harassment associated with rocky intertidal monitoring activities, provided the activity is in compliance with all terms, conditions, and require ments of the regulations in this sub part and the appropriate LOA. § 217.103 Prohibitions. Notwithstanding takings con templated in § 217.100 and authorized by a LOA issued under §§ 216.106 of this chapter and 217.106, no person in con nection with the activities described in § 217.100 may: (a) Violate, or fail to comply with, the terms, conditions, and require ments of this subpart or a LOA issued under §§ 216.106 of this chapter and 217.106; (b) Take any marine mammal not specified in such LOA; (c) Take any marine mammal speci fied in such LOA in any manner other than as specified in § 217.102; (d) Take a marine mammal specified in such LOA if NMFS determines such taking results in more than a neg ligible impact on the species or stocks of such marine mammal; or (e) Take a marine mammal specified in such LOA if NMFS determines such taking results in an unmitigable ad verse impact on the species or stock of such marine mammal for taking for subsistence uses. § 217.104 Mitigation requirements. When conducting the activities iden tified in § 217.100(a), the mitigation measures contained in any LOA issued under §§ 216.106 of this chapter and 217.106 must be implemented. These VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00144 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 135 National Marine Fisheries Service/NOAA, Commerce § 217.105 mitigation measures shall include but are not limited to: (a) General conditions. (1) Researchers must observe a site from a distance for at least five minutes, using binoculars if necessary, to detect any marine mammals prior to approach to deter mine if mitigation is required (i.e., site surveys will not be conducted if other species of pinnipeds are present, re searchers will approach with caution, walking slowly, quietly, and close to the ground to avoid surprising any hauled-out individuals and to reduce flushing/stampeding of individuals). (2) Researchers must avoid pinnipeds along access ways to sites by locating and taking a different access way. Re searchers must keep a safe distance from and not approach any marine mammal while conducting research, unless it is absolutely necessary to ap proach a marine mammal in order to continue conducting research (i.e., if a site cannot be accessed or sampled due to the presence of pinnipeds). (3) Researchers must avoid making loud noises (i.e., using hushed voices) and keep bodies low to the ground in the visual presence of pinnipeds. (4) Researchers must monitor the off shore area for predators (such as killer whales and white sharks) and avoid flushing of pinnipeds when predators are observed in nearshore waters. (5) Researchers must promptly va cate sites at the conclusion of sam pling. (b) Pup protection measure. Inten tional approach must not occur if de pendent pups are present to avoid mother/pup separation and trampling of pups. Staff shall reschedule work at sites where pups are present, unless other means of accomplishing the work can be done without causing disturb ance to mothers and dependent pups. § 217.105 Requirements for monitoring and reporting. (a) Visual monitoring program. (1) Standard information recorded must include species counts (with numbers of pups/juveniles when possible) of ani mals present before approaching, num bers of observed disturbances, and de scriptions of the disturbance behaviors during the monitoring surveys, includ ing location, date, and time of the event. (2) UCSC/PISCO must note observa tions of: (i) Unusual behaviors, numbers, or distributions of pinnipeds, such that any potential follow-up research can be conducted by the appropriate per sonnel; (ii) Tag-bearing carcasses of pinnipeds, allowing transmittal of the information to appropriate agencies and personnel; and (iii) Rare or unusual species of ma rine mammals for agency follow-up. (3) For consistency, any reactions by pinnipeds to researchers will be re corded according to a three-point scale shown in Table 1 to this paragraph (a)(3). Only observations of disturbance Levels 2 and 3 should be recorded as takes. TABLE 1 TO PARAGRAPH (a)(3)—LEVELS OF PINNIPED BEHAVIORAL DISTURBANCE Level Type of response Definition 1 ................................. Alert ...................................... Seal head orientation or brief movement in response to disturbance, which may include turning head towards the disturbance, craning head and neck while holding the body rigid in a u-shaped position, changing from a lying to a sitting position, or brief movement of less than twice the animal’s body length. 2 ................................. Movement ............................. Movements in response to the source of disturbance, ranging from short withdrawals at least twice the animal’s body length to longer retreats over the beach, or if already moving a change of direction of greater than 90 degrees. 3 ................................. Flush ..................................... All retreats (flushes) to the water. (4) Information regarding physical and biological conditions pertaining to a site, as well as the date and time that research was conducted are also noted. (b) Prohibited take. (1) If at any time the specified activity clearly causes the take of a marine mammal in a manner prohibited by this subpart or VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00145 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 136 50 CFR Ch. II (10–1–22 Edition) § 217.106 LOA, such as an injury (Level A har assment), serious injury, or mortality, UCSC/PISCO shall immediately cease the specified activities and report the incident to the Office of Protected Re sources, NMFS, and the West Coast Re gional Stranding Coordinator, NMFS. The report must include the following information: (i) Time and date of the incident; (ii) Description of the incident; (iii) Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, and visibility); (iv) Description of all marine mam mal observations in the 24 hours pre ceding the incident; (v) Species identification or descrip tion of the animal(s) involved; (vi) Fate of the animal(s); and (vii) Photographs or video footage of the animal(s) (if equipment is avail able). (2) Activities shall not resume until NMFS is able to review the cir cumstances of the prohibited take. NMFS will work with UCSC/PISCO to determine what measures are nec essary to minimize the likelihood of further prohibited take and ensure MMPA compliance. UCSC/PISCO may not resume the activities until notified by NMFS via letter, email, or tele phone. (c) Notification of dead or injured ma rine mammals. (1) In the event that UCSC/PISCO discovers an injured or dead marine mammal and determines that the cause of the injury or death is unknown and the death is relatively re cent (e.g., in less than a moderate state of decomposition), UCSC/PISCO shall immediately report the incident to the Office of Protected Resources, NMFS, and the West Coast Regional Stranding Coordinator, NMFS. The report must include the information identified in paragraph (b)(1) of this section. Activi ties may continue while NMFS reviews the circumstances of the incident. NMFS will work with UCSC/PISCO to determine whether additional mitiga tion measures or modifications to the activities are appropriate. (2) In the event that an injured or dead marine mammal is discovered and it is determined that the injury or death is not associated with or related to the activities authorized in this sub part and LOA (e.g., previously wounded animal, carcass with moderate to ad vanced decomposition, or scavenger damage), UCSC/PISCO shall report the incident to the Office of Protected Re sources, NMFS, and the West Coast Re gional Stranding Coordinator, NMFS, within 24 hours of the discovery. UCSC/ PISCO shall provide photographs, video footage (if available), or other docu mentation of the stranded animal sighting to NMFS and the Marine Mammal Stranding Network. Activi ties may continue while NMFS reviews the circumstances of the incident. (d) Annual report. (1) A draft annual report shall be submitted to NMFS Of fice of Protected Resources within 90 days after the conclusion of each an nual field season. The final annual re port after year five may be included as part of the final report (see paragraph (e) of this section). The report must in clude a summary of the information gathered pursuant to the monitoring requirements set forth in paragraph (a) of this section and in the LOA. (2) A final annual report shall be sub mitted to the Director of the NMFS Of fice of Protected Resources within 30 days after receiving comments from NMFS on the draft annual report. If no comments are received from NMFS, the draft annual report will be consid ered the final report. (e) Final report. A draft final report shall be submitted to NMFS Office of Protected Resources within 60 days after the conclusion of the fifth year. A final report shall be submitted to the Director of the NMFS Office of Pro tected Resources and to the NMFS West Coast Regional Administrator within 30 days after receiving com ments from NMFS on the draft final re port. If no comments are received from NMFS, the draft final report will be considered the final report. § 217.106 Letters of Authorization. (a) To incidentally take marine mammals pursuant to this subpart, UCSC/PISCO must apply for and obtain an LOA. (b) An LOA, unless suspended or re voked, may be effective for a period of time not to exceed the expiration date of this subpart. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00146 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 137 National Marine Fisheries Service/NOAA, Commerce § 217.107 (c) If an LOA expires prior to the ex piration date of this subpart, UCSC/ PISCO may apply for and obtain a re newal of the LOA. (d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, UCSC/PISCO must apply for and obtain a modification of the LOA as de scribed in § 217.107. (e) The LOA shall set forth: (1) Permissible methods and numbers of incidental taking; (2) Means of effecting the least prac ticable adverse impact (i.e., mitigation) on the species, its habitat, and on the availability of the species for subsist ence uses; and (3) Requirements for monitoring and reporting. (f) Issuance of the LOA shall be based on a determination that the level of taking will be consistent with the find ings made for the total taking allow able under this subpart. (g) Notice of issuance or denial of an LOA shall be published in the FEDERAL REGISTER within 30 days of a deter mination. § 217.107 Renewals and modifications of Letters of Authorization. (a) An LOA issued under §§ 216.106 of this chapter and 217.106 for the activity identified in § 217.100(a) shall be re newed or modified upon request by the applicant, provided that: (1) The proposed specified activity and mitigation, monitoring, and re porting measures, as well as the antici pated impacts, are the same as those described and analyzed for this subpart (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section); and (2) NMFS’ Office of Protected Re sources determines that the mitiga tion, monitoring, and reporting meas ures required by the previous LOA under this subpart were implemented. (b) For an LOA modification or re newal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that do not change the findings made for this subpart or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS’ Office of Pro tected Resources may publish a notice of proposed LOA in the FEDERAL REG ISTER, including the associated anal ysis of the change, and solicit public comment before issuing the LOA. (c) An LOA issued under §§ 216.106 of this chapter and 217.106 for the activity identified in § 217.100(a) may be modi fied by NMFS’ Office of Protected Re sources under the following cir cumstances: (1) Adaptive management. NMFS’ Of fice of Protected Resources may mod ify (including augment) the existing mitigation, monitoring, or reporting measures (after consulting with UCSC/ PISCO regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effec tively accomplishing the goals of the mitigation and monitoring set forth in this subpart. (i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or report ing measures in an LOA: (A) Results from UCSC/PISCO’s mon itoring from the previous year(s). (B) Results from other marine mam mal and/or sound research or studies. (C) Any information that reveals ma rine mammals may have been taken in a manner, extent, or number not au thorized by this subpart or subsequent LOAs. (ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS’ Office of Protected Resources will publish a notice of pro posed LOA in the FEDERAL REGISTER and solicit public comment. (2) Emergencies. If NMFS’ Office of Protected Resources determines that an emergency exists that poses a sig nificant risk to the well-being of the species or stocks of marine mammals specified in LOAs issued pursuant to §§ 216.106 of this chapter and 217.106, an LOA may be modified without prior no tice or opportunity for public com ment. Notice would be published in the FEDERAL REGISTER within thirty days of the action. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00147 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 138 50 CFR Ch. II (10–1–22 Edition) §§ 217.108—217.109 §§ 217.108—217.109 [Reserved] Subpart L—Taking Marine Mam mals Incidental to Conducting Precision Strike Weapon and Air-to-Surface Gunnery Mis sions at Eglin Gulf Test and Training Range (EGTTR) in the Gulf of Mexico SOURCE: 79 FR 13588, Mar. 11, 2014, unless otherwise noted. § 217.110 Specified activity and speci fied geographical region. (a) Regulations in this subpart apply only to the U.S. Air Force for the inci dental taking of marine mammals that occurs in the area outlined in para graph (b) of this section and that occur incidental to the activities described in paragraph (c) of this section. (b) The taking of marine mammals by the Air Force is only authorized if it occurs within the Eglin Air Force Base Gulf Test and Training Range (as de picted in Figure 1–9 of the Air Force’s Request for a Letter of Authorization). The EGTTR is the airspace over the Gulf of Mexico beyond 3 nm from shore that is controlled by Eglin Air Force Base. The specified activities will take place within the boundaries of Warning Area W–151. The inshore and offshore boundaries of W–151 are roughly par allel to the shoreline contour. The shoreward boundary is 3 nm from shore, while the seaward boundary ex tends approximately 85 to 100 nm off shore, depending on the specific loca tion. W–151 has a surface area of ap proximately 10,247 nm2 (35,145 km2), and includes water depths ranging from approximately 20 to 700 m. (c) The taking of marine mammals by the Air Force is only authorized of it occurs incidental to the following activities within the designated amounts of use: (1) The use of the following Precision Strike Weapons (PSWs) for PSW train ing activities, in the amounts indicated below: (i) Joint Air-to-Surface Stand-Off Missile (JASSM) AGM–158 A and B— two live shots (single) and 4 inert shots (single) per year; (ii) Small-diameter bomb (SDB) GBU–39/B—six live shots per year, with two of the shots occurring simulta neously, and 12 inert shots per year, with up to two occurring simulta neously. (2) The use of the following ordnance for daytime Air-to-Surface (AS) Gun nery training activities, in the amounts indicated below: (i) 105 mm HE Full Up (FU)—25 mis sions per year with 30 rounds per mis sion; (ii) 40 mm HE—25 missions per year with 64 rounds per mission; (iii) 25 mm HE—25 mission per year with 560 rounds per mission. (3) The use of the following ordnance for nighttime Air-to-Surface (AS) Gun nery training activities, in the amounts indicated below: (i) 105 mm HE Training Round (TR)— 45 missions per year with 30 rounds per mission; (ii) 40 mm HE—45 missions per year with 64 rounds per mission; (iii) 25 mm HE—45 mission per year with 560 rounds per mission. § 217.111 Effective dates. Regulations in this subpart are effec tive March 11, 2014 and applicable to Eglin AFB March 5, 2014, through March 4, 2019. § 217.112 Permissible methods of tak ing. (a) Under a Letter of Authorization issued pursuant to §§ 216.106 and 217.117 of this chapter, the Holder of the Let ter of Authorization may incidentally, but not intentionally, take marine mammals by Level A and Level B har assment within the area described in § 217.110(b) of this chapter, provided the activity is in compliance with all terms, conditions, and requirements of this subpart and the appropriate Letter of Authorization. (b) The activities identified in § 217.110(c) of this chapter must be con ducted in a manner that minimizes, to the greatest extent practicable, any ad verse impact on marine mammals and their habitat. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00148 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 139 National Marine Fisheries Service/NOAA, Commerce § 217.114 (c) The incidental take of marine mammals under the activities identi fied in § 217.110(c) is limited to the fol lowing species, by the indicated meth od of take and the indicated number: (1) Level B Harassment: (i) Atlantic bottlenose dolphin (Tursiops truncatus)—2,200 (an average of 444 annually); (ii) Atlantic spotted dolphin (Stenella frontalis)—1,765 (an average of 353 annu ally); (iii) Pantropical spotted dolphin (S. attenuate)—15 (an average of 3 annu ally); (iv) Spinner dolphin (S. longirostris)— 15 (an average of 3 annually); (v) Dwarf or pygmy sperm whale (Kogia simus or Kogia breviceps)—10 (an average of 2 annually). (2) Level A Harassment: (i) Atlantic bottlenose dolphin (Tursiops truncatus)—25 (an average of 5 annually); (ii) Atlantic spotted dolphin (Stenella frontalis)—20 (an average of 4 annually). § 217.113 Prohibitions. No person in connection with the ac tivities described in § 217.110 shall: (a) Take any marine mammal not specified in § 217.112(c); (b) Take any marine mammal speci fied in § 217.112(c) other than by inci dental take as specified in § 217.112(c)(1) and (c)(2); (c) Take a marine mammal specified in § 217.112(c) if such taking results in more than a negligible impact on the species or stocks of such marine mam mal; or (d) Violate, or fail to comply with, the terms, conditions, and require ments of this subpart or a Letter of Authorization issued under §§ 216.106 and 217.117 of this chapter. § 217.114 Mitigation. (a) The activities identified in § 217.110(c) must be conducted in a man ner that minimizes, to the greatest ex tent practicable, adverse impacts on marine mammals and their habitats. When conducting operations identified in § 217.110(c), the mitigation measures contained in the Letter of Authoriza tion issued under §§ 216.106 and 217.117 of this chapter must be implemented. (b) Precision Strike Weapon Mis sions: (1) Safety Zones; (i) For the JASSM, the Air Force must establish and monitor a safety zone for marine mammals with a ra dius of 2.0 nm (3.7 km) from the center of the detonation and a buffer zone with a radius of 1.0 nm (1.85 km) radius from the outer edge of the safety zone., (ii) For the SDB, the holder of the Letter of Authorization must establish and monitor a safety zone for marine mammals with a radius of no less than 5 nm (9.3 km) for single bombs and 10 nm (18.5 km) for double bombs and a buffer zone from the outer edge of the safety zone with a radius of at least 2.5 nm (4.6 km) for single bombs and 5 nm (18.5 km) for double bombs. (2) For PSW missions, the holder of the Letter of Authorization must com ply with the monitoring requirements, including pre-mission monitoring, set forth in § 217.115(c). (3) When detonating explosives: (i) If any marine mammals or sea turtles are observed within the des ignated safety zone or the buffer zone prescribed in the condition in para graph (b)(1) of this section or that are on a course that will put them within the safety zone prior to JASSM or SDB launch, the launching must be delayed until all marine mammals are no longer within the designated safety zone. (ii) If any marine mammals are de tected in the buffer zone and subse quently cannot be reacquired, the mis sion launch will not continue until the next verified location is outside of the safety zone and the animal is moving away from the mission area. (iii) If large Sargassum rafts or large concentrations of jellyfish are observed within the safety zone, the mission launch will not continue until the Sargassum rafts or jellyfish that caused the postponement are con firmed to be outside of the safety zone due to the current and/or wind moving them out of the mission area. (iv) If weather and/or sea conditions preclude adequate aerial surveillance for detecting marine mammals or sea turtles, detonation must be delayed until adequate sea conditions exist for aerial surveillance to be undertaken. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00149 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 140 50 CFR Ch. II (10–1–22 Edition) § 217.114 Adequate sea conditions means the sea state does not exceed Beaufort sea state 3.5 (i.e., whitecaps on 33 to 50 per cent of surface; 0.6 m (2 ft) to 0.9 m (3 ft) waves), the visibility is 5.6 km (3 nm) or greater, and the ceiling is 305 m (1,000 ft) or greater. (v) To ensure adequate daylight for pre- and post-detonation monitoring, mission launches may not take place earlier than 2 hours after sunrise, and detonations may not take place later than 2 hours prior to sunset, or when ever darkness or weather conditions will preclude completion of the post test survey effort described in § 217.115. (vi) If post-detonation surveys deter mine that a serious injury or lethal take of a marine mammal has oc curred, the test procedure and the monitoring methods must be reviewed with the National Marine Fisheries Service and appropriate changes to avoid unauthorized take must be made prior to conducting the next mission detonation. (vii) Mission launches must be de layed if aerial or vessel monitoring programs described under § 217.115 can not be fully carried out. (c) Air-to-Surface Gunnery Missions: (1) Sea State Restrictions: (i) If daytime weather and/or sea con ditions preclude adequate aerial sur veillance for detecting marine mam mals and other marine life, air-to-sur face gunnery exercises must be delayed until adequate sea conditions exist for aerial surveillance to be undertaken. Daytime air-to-surface gunnery exer cises will be conducted only when sea surface conditions do not exceed Beau fort sea state 4 (i.e., wind speed 13–18 mph (11–16 knots); wave height 1 m (3.3 ft)), the visibility is 5.6 km (3 nm) or greater, and the ceiling is 305 m (1,000 ft) or greater. (ii) [Reserved] (2) Pre-mission and Mission Moni toring: (i) The aircrews of the air-to-surface gunnery missions will initiate location and surveillance of a suitable firing site immediately after exiting U.S. ter ritorial waters (>12 nm). (ii) Prior to each firing event, the aircraft crew will conduct a visual and/ or instrument survey of the 5-nm (9.3 km) wide prospective target area to lo cate any marine mammals that may be present. (A) The AC–130 gunship will conduct at least two complete orbits at a min imum safe airspeed around a prospec tive target area at an altitude of ap proximately 6,000 ft (1,829 m). (B) If marine mammals are not de tected, the AC–130 can then continue orbiting the selected target point as it climbs to the mission testing altitude. (C) During the low altitude orbits and the climb to testing altitude, air craft crew will scan the sea surface within the aircraft’s orbit circle for the presence of marine mammals. (D) The AC–130’s optical and elec tronic sensors must be employed for target detection, especially at night when visibility will be poor. (E) If any marine mammals are de tected within the AC–130’s orbit circle, either during initial clearance or after commencement of live firing, the mis sion will be immediately halted and re located as necessary or suspended until the marine mammal has left the area. If relocated to another target area, the clearance procedures described in para graph (c)(2)(ii) of this section must be repeated. (F) If multiple firing events occur within the same flight, these clearance procedures must precede each event. (iii) If no marine mammals are de tected, gunnery exercises may begin with the deployment of MK–25 flares into the center of the designated 5-nm target area. (3) Operational Mitigation Measures: (i) Ramp-up air-to-surface gunnery firing activities by beginning with the lowest caliber monition and proceeding to the highest, which means the muni tions would be fired in the following order: 25 mm; 40 mm; and 105 mm. (ii) Air-to-surface gunnery exercises conducted after sunset must use the 105-mm training round instead of the 105-mm full up round. (iii) One mission per year may be conducted beyond the 200 m isobaths, which is south of a line delineating the shelf break with coordinates of 29°42.73′ N, 86°48.27′ W and 29°12.73′ N, 85°59.88′ W (Figure 1–12 in Eglin AFB’s LOA appli cation). The single mission beyond the shelf break will occur during daylight hours only. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00150 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 141 National Marine Fisheries Service/NOAA, Commerce § 217.115 (4) Post-mission Monitoring: (i) Aircrews will initiate the post mission clearance procedures begin ning at the operational altitude of ap proximately 15,000 to 20,000 ft (4572 to 6096 m) elevation, and then initiate a spiraling descent down to an observa tion altitude of approximately 6,000 ft (1,829 m) elevation. Rates of descent will occur over a 3- to 5-minute time frame. (ii) If post-detonation surveys deter mine that an injury or lethal take of a marine mammal has occurred, the test procedure and the monitoring methods must be reviewed with the National Marine Fisheries Service and appro priate changes to avoid unauthorized take must be made, prior to conducting the next air-to-surface gunnery exer cise. § 217.115 Requirements for monitoring and reporting. (a) The Holder of the Letter of Au thorization issued pursuant to §§ 216.106 and 217.117 of this chapter for activities described in § 217.110(c) is required to conduct the monitoring and reporting measures specified in this section and § 217.114 and any additional monitoring measures contained in the Letter of Authorization. (b) The Holder of the Letter of Au thorization 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. Unless specified otherwise in the Let ter of Authorization, the Holder of the Letter of Authorization must notify the Director, Office of Protected Re sources, National Marine Fisheries Service, or designee, by letter or tele phone (301–427–8401), at least 2 weeks prior to any modification to the activ ity identified in § 217.110(c) that has the potential to result in the serious in jury, mortality or Level A or Level B harassment of a marine mammal that was not identified and addressed pre viously. (c) Monitoring Procedures for PSW Missions: (1) The Holder of this Authorization must: (i) Designate qualified on-site indi vidual(s) to record the effects of mis sion launches on marine mammals that inhabit the northern Gulf of Mexico; (ii) Have on-site individuals, ap proved in advance by the National Ma rine Fisheries Service, to conduct the mitigation, monitoring and reporting activities specified in this subpart and in the Letter of Authorization issued pursuant to §§ 216.106 and 217.117 of this chapter. (iii) Conduct aerial surveys to reduce impacts on protected species. The aer ial survey/monitoring team will consist of two experienced marine mammal ob servers, approved in advance by the Southeast Region, National Marine Fisheries Service. The aircraft will also have a data recorder who would be responsible for relaying the location, the species if possible, the direction of movement, and the number of animals sighted. (iv) Conduct shipboard monitoring to reduce impacts to protected species. Trained observers will conduct moni toring from the highest point possible on each mission or support vessel(s). The observer on the vessel must be equipped with optical equipment with sufficient magnification (e.g., 25x power ‘‘Big-Eye’’ binoculars). (2) The aerial and shipboard moni toring teams will maintain proper lines of communication to avoid commu nication deficiencies. The observers from the aerial team and operations vessel will have direct communication with the lead scientist aboard the oper ations vessel. (3) Pre-mission Monitoring: Approxi mately 5 hours prior to the mission, or at daybreak, the appropriate vessel(s) would be on-site in the primary test site near the location of the earliest planned mission point. Observers on board the vessel will assess the suit ability of the test site, based on visual observation of marine mammals and sea turtles, the presence of large Sargassum mats, seabirds and jellyfish aggregations and overall environ mental conditions (visibility, sea state, etc.). This information will be relayed to the lead scientist. (4) Three Hours Prior to Mission: (i) Approximately three hours prior to the mission launch, aerial moni toring will commence within the test VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00151 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 142 50 CFR Ch. II (10–1–22 Edition) § 217.115 site to evaluate the test site for envi ronmental suitability. Evaluation of the entire test site would take approxi mately 1 to 1.5 hours. The aerial moni toring team will begin monitoring the safety zone and buffer zone around the target area. (ii) Shipboard observers will monitor the safety and buffer zone, and the lead scientist will enter all marine mam mals and sea turtle sightings, includ ing the time of sighting and the direc tion of travel, into a marine animal tracking and sighting database. (5) One to 1.5 Hours Prior to Mission Launch: (i) Depending upon the mission, aer ial and shipboard viewers will be in structed to leave the area and remain outside the safety area. The aerial team will report all marine animals spotted and their directions of travel to the lead scientist onboard the ves sel. (ii) The shipboard monitoring team will continue searching the buffer zone for protected species as it leaves the safety zone. The surface vessels will continue to monitor from outside of the safety area until after impact. (6) Post-mission monitoring: (i) The vessels will move into the safety zone from outside the safety zone and continue monitoring for at least two hours, concentrating on the area down current of the test site. (ii) The holder of the Letter of Au thorization will closely coordinate mis sion launches with marine animal stranding networks. (iii) The monitoring team will docu ment any dead or injured marine mam mals or turtles and, if practicable, re cover and examine any dead animals. (d) Monitoring Procedures for A–S Gunnery Missions: (1) In addition to the monitoring re quirements in 217.114(c), the holder of the Letter of Authorization must: (i) Cooperate with the National Ma rine Fisheries Service and any other Federal, state or local agency moni toring the impacts of the activity on marine mammals. (ii) Require aircrews to initiate the post-mission clearance procedures be ginning at the operational altitude of approximately 15,000 to 20,000 ft (4572 to 6096 m) elevation, and then initiate a spiraling descent down to an observa tion altitude of approximately 6,000 ft (1,829 m) elevation. Rates of descent will occur over a 3- to 5-minute time frame. (iii) Track their use of the EGTTR for test firing missions and marine mammal observations, through the use of mission reporting forms. (iv) Coordinate air-to-surface gun nery exercises with future flight activi ties to provide supplemental post-mis sion observations of marine mammals in the operations area of the exercise. (2) [Reserved] (e) In accordance with provisions in § 217.118(b)(2), the Holder of the Letter of Authorization must conduct the re search required under the Letter of Au thorization. (f) Reporting: (1) Unless specified otherwise in the Letter of Authorization, the Holder of the Letter of Authorization must con duct all of the monitoring and report ing required under the LOA and submit an annual report to the Director, Office of Protected Resources, National Ma rine Fisheries Service by a date certain specified in the LOA. This report must include the following information: (i) Date and time of each PSW/air-to surface gunnery exercise; (ii) A complete description of the pre exercise and post-exercise activities re lated to mitigating and monitoring the effects of PSW/air-to-surface gunnery exercises on marine mammal popu lations; (iii) Results of the monitoring pro gram, including numbers by species/ stock of any marine mammals noted injured or killed as a result of the training exercises and number of ma rine mammals (by species if possible) that may have been harassed due to presence within the applicable safety zone; (iv) A detailed assessment of the ef fectiveness of sensor-based monitoring in detecting marine mammals in the area of air-to-surface gunnery oper ations; and (v) Results of coordination with coastal marine mammal stranding net works. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00152 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 143 National Marine Fisheries Service/NOAA, Commerce § 217.118 (2) The final comprehensive report on all marine mammal monitoring and re search conducted during the applica bility period of this subpart must be submitted to the Director, Office of Protected Resources, National Marine Fisheries Service at least 240 days prior to expiration of applicability of this subpart or 240 days after the expiration of applicability of this subpart if new regulations will not be requested. § 217.116 Applications for Letters of Authorization. To incidentally take marine mam mals pursuant to this subpart, the U.S. citizen (as defined at § 216.103 of this chapter) conducting the activities identified in § 217.110(c) must apply for and obtain either an initial Letter of Authorization in accordance with §§ 216.106 and 217.117 of this chapter or a renewal under § 217.118. § 217.117 Letters of Authorization. (a) A Letter of Authorization, unless suspended or revoked, will be valid for a period of time not to exceed the pe riod of validity of this subpart. (b) Each Letter of Authorization will set forth: (1) Permissible methods of incidental taking; (2) Means of effecting the least prac ticable adverse impact on the species, its habitat, and on the availability of the species for subsistence uses; and (3) Requirements for monitoring and reporting. (c) Issuance and renewal of the Let ter of Authorization will be based on a determination that the total 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 mammals. § 217.118 Renewals and Modifications of Letters of Authorization. (a) A Letter of Authorization issued under § 216.106 and § 217.117 of this chap ter for the activities identified in § 217.110(c) will be renewed or modified upon request of the applicant, provided that: (1) The proposed specified activity and mitigation, monitoring, and re porting measures, as well as the antici pated impacts, are the same as those described and analyzed for this subpart (excluding changes made pursuant to adaptive management) and (2) NMFS determines that the miti gation, monitoring, and reporting measures required by the previous Let ter of Authorization under this subpart were implemented. (b) For Letter of Authorization modi fications or renewal requests by the ap plicant that include changes to the ac tivity or the mitigation, monitoring, or reporting (excluding changes made pursuant to adaptive management) that do not change the findings made for the regulations or result in no more than a minor change in the total esti mated number of takes (or distribution by species or years), NMFS may pub lish a notice of a proposed Letter of Authorization in the FEDERAL REG ISTER, including the associate analysis illustrating the change, and solicit public comment before issuing the Let ter of Authorization. (c) A Letter of Authorization issued under §§ 216.106 and 217.117 of this chap ter for the activity identified in § 217.110(c) may be modified by NMFS under the following circumstances: (1) Adaptive Management—NMFS may modify or augment the existing mitigation or monitoring measures (after consulting with the U.S. Air Force regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effec tively accomplishing the goals of miti gation and monitoring. Below are some of the possible sources of new data that could contribute to the decision to modify the mitigation or monitoring measures: (i) Results from the U.S. Air Force’s monitoring from the previous year; (ii) Results from marine mammal and sound research; or (iii) Any information which reveals that marine mammals may have been taken in a manner, extent or number not authorized by this subpart or sub sequent Letters of Authorization. (2) Emergencies. If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in § 217.112(c), a Letter of Au thorization issued pursuant to §§ 216.106 VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00153 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 144 50 CFR Ch. II (10–1–22 Edition) § 217.120 and 217.117 of this chapter may be sub stantively modified without prior noti fication and an opportunity for public comment. Notification will be pub lished in the FEDERAL REGISTER within 30 days subsequent to the action. Subpart M—Taking Marine Mam mals Incidental to Seabird Re search Activities in Central California SOURCE: 86 FR 27998, May 25, 2021, unless otherwise noted. EFFECTIVE DATE NOTE: At 86 FR 27998, May 25, 2021, subpart M was added, effective July 1, 2021, through June 30, 2026. § 217.120 Specified activity and speci fied geographical region. (a) Regulations in this subpart apply only to the incidental taking of marine mammals during seabird research ac tivities by Point Blue Conservation Science (Point Blue) and those persons it authorizes or funds to conduct ac tivities on its behalf in the areas out lined in paragraph (b) of this section. (b) The incidental taking of marine mammals by Point Blue may only occur in California on Southeast Farallon Island, Año Nuevo Island, and Point Reyes National Seashore in ac cordance with a Letter of Authoriza tion (LOA) issued under §§ 216.106 of this chapter and 217.126. § 217.121 Effective dates. Regulations in this subpart are effec tive from July 1, 2021, through June 30, 2026. § 217.122 Permissible methods of tak ing. Under LOAs issued pursuant to §§ 216.106 of this chapter and 217.126, the Holder of the LOA (hereinafter ‘‘Point Blue’’) may incidentally, but not inten tionally, take marine mammals within the area described in § 217.120(b) by Level B harassment associated with seabird research activities, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA. § 217.123 Prohibitions. Except for the takings contemplated in § 217.120 and authorized by a LOA issued under §§ 216.106 of this chapter and 217.126, it is unlawful for any per son to do any of the following in con nection with the activities described in § 217.120 may: (a) Violate, or fail to comply with, the terms, conditions, and require ments of this subpart or a LOA issued under §§ 216.106 of this chapter and 217.126; (b) Take any marine mammal not specified in such LOA; (c) Take any marine mammal speci fied in such LOA in any manner other than as specified in § 217.122; (d) Take a marine mammal specified in such LOA if NMFS determines such taking results in more than a neg ligible impact on the species or stocks of such marine mammal; or (e) Take a marine mammal specified in such LOA if NMFS determines such taking results in an unmitigable ad verse impact on the species or stock of such marine mammal for taking for subsistence uses. § 217.124 Mitigation requirements. When conducting the activities iden tified in § 217.120(a), the mitigation measures contained in any LOA issued under §§ 216.106 of this chapter and 217.126 must be implemented. These mitigation measures shall include but are not limited to the following gen eral conditions: (a) All persons must slowly approach beaches for boat landings. Boat land ings must avoid causing stampede and provide marine mammals with an op portunity to safely enter the water. Vessel strikes are prohibited. (b) All persons must observe a site from a distance, using binoculars if necessary, to detect any marine mam mals prior to approach to determine if mitigation is required (i.e., if pinnipeds are present, researchers must approach with caution, walking slowly, quietly, and close to the ground to avoid sur prising any hauled-out marine mam mals and to reduce flushing/stampeding of individuals). (c) All persons must avoid pinnipeds along access ways to sites by locating VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00154 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 145 National Marine Fisheries Service/NOAA, Commerce § 217.125 and taking a different access way. Re searchers must keep a safe distance from and not approach any marine mammal while conducting research, unless it is absolutely necessary to flush a marine mammal in order to continue conducting research (i.e., if a site cannot be accessed or sampled due to the presence of pinnipeds). (d) All persons must avoid visits to sites when pups are present, if the number of takes that have been au thorized are met, or if species for which authorization has not been granted are present. (e) All persons must monitor for off shore predators and must not approach hauled out pinnipeds if great white sharks (Carcharodon carcharias) or kill er whales (Orcinus orca) are observed to be present. If Point Blue and/or its des ignees see pinniped predators in the area, they must not disturb the pinnipeds until the lead biologist de termines the area is free of predators based on best professional judgment. (f) All persons must keep voices hushed and bodies low to the ground in the visual presence of pinnipeds. (g) All persons must conduct seabird observations at North Landing on Southeast Farallon Island in an obser vation blind, shielded from the view of hauled out pinnipeds. (h) All persons must crawl slowly to access seabird nest boxes on Año Nuevo Island if pinnipeds are within view. (i) Researchers must coordinate re search visits to intertidal areas of Southeast Farallon Island and coordi nate research activities for Año Nuevo Island to minimize the number of trips to these areas. § 217.125 Requirements for monitoring and reporting. (a) Visual monitoring. When con ducting activities under an LOA, Point Blue must conduct a visual monitoring program and record information as re quired by the LOA and this subpart. (1) Standard information recorded must include species counts (with age/ sex classes noted when possible) of ani mals present before approaching, num bers of observed disturbances, and de scriptions of the disturbance behaviors during the monitoring surveys, includ ing location, date, and time of the event. (2) The lead biologist must serve as an observer to record incidental take. (3) The lead biologist must record the following: (i) The date, time, and location (or closest point of ingress) of each visit to the research site; (ii) Composition of the marine mam mals sighted, such as species, sex, and life history stage (e.g., adult, sub-adult, pup); (iii) The number (by species) of ma rine mammals observed during the ac tivities; (iv) Estimated number of marine mammals (by species) that may have been disturbed during the activities, using a three-point scale of disturbance contained in an LOA issued under §§ 216.106 of this chapter and 217.126. Disturbance Levels 2 and 3 must be re corded as takes; (v) Behavioral responses or modifica tions in behaviors that may be attrib uted to the specific activities and a de scription of the specific activities oc curring during that time (e.g., pedes trian approach, vessel approach); (vi) Information on the weather, in cluding the tidal state and horizontal visibility; and (vii) If applicable, note the presence of any offshore predators (date, time, number, and species). (4) Point Blue must report observa tions of unusual behaviors, numbers, or distributions of pinnipeds, or of tag bearing carcasses, to the NMFS West Coast Regional Office. (b) Prohibited take. (1) In the event that personnel discovers an injured or dead marine mammal, Point Blue shall report the incident to the Office of Pro tected Resources, NMFS, and the West Coast Regional Stranding Coordinator, NMFS as soon as feasible. If the death or injury was caused by Point Blue’s activities, Point Blue must imme diately cease activities conducted under its LOA until NMFS is able to review the circumstances of the inci dent and determine what, if any, addi tional measures are appropriate to en sure compliance with the terms of the LOA. Point Blue must not resume their activities until notified by NMFS. The VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00155 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 146 50 CFR Ch. II (10–1–22 Edition) § 217.126 report must include the following in formation: (i) Time, date, and location (latitude/ longitude) of the first discovery (and updated location information if known and applicable); (ii) Species identification (if known) or description of the animal(s) in volved; (iii) Condition of the animal(s) (in cluding carcass condition if the animal is dead); (iv) Observed behaviors of the ani mal(s), if alive; (v) If available, photographs or video footage of the animal(s); and (vi) General circumstances under which the animal was discovered. (c) Annual report. (1) A draft annual report covering the period of January 1 through December 31 of each year must be submitted to NMFS Office of Pro tected Resources by April 1 of each year. The final annual report after year five may be included as part of the final report (see below). The report must include the information gathered pursuant to the monitoring require ments set forth above and in the LOA at minimum, and must also include raw sightings data. (2) A final annual report must be sub mitted to the Director of the NMFS Of fice of Protected Resources within 30 days after receiving comments from NMFS on the draft annual report. If no comments are received from NMFS, the draft annual report will be consid ered the final report. (d) Final report. A draft final report must be submitted to NMFS Office of Protected Resources within 60 days after the conclusion of the fifth year. A final report must be submitted to the Director of the NMFS Office of Pro tected Resources within 30 days after receiving comments from NMFS on the draft final report. If no comments are received from NMFS, the draft final re port will be considered the final report. § 217.126 Letters of Authorization. (a) To incidentally take marine mammals pursuant to these regula tions, Point Blue must apply for and obtain an LOA. (b) An LOA, unless suspended or re voked, may be effective for a period of time not to exceed the expiration date of these regulations. (c) If an LOA expires prior to the ex piration date of these regulations, Point Blue may apply for and obtain a renewal of the LOA. (d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, Point Blue must apply for and obtain a modification of the LOA as de scribed in § 217.127. (e) The LOA shall set forth: (1) Permissible methods and numbers of incidental taking; (2) Means of effecting the least prac ticable adverse impact (i.e., mitigation) on the species, its habitat, and on the availability of the species for subsist ence uses; and (3) Requirements for monitoring and reporting. (f) Issuance of the LOA shall be based on a determination that the level of taking will be consistent with the find ings made for the total taking allow able under these regulations. (g) Notice of issuance or denial of an LOA shall be published in the FEDERAL REGISTER within thirty days of a deter mination. § 217.127 Renewals and modifications of Letters of Authorization. (a) An LOA issued under §§ 216.106 of this chapter and 217.126 for the activity identified in § 217.120(a) shall be re newed or modified upon request by the applicant, provided that: (1) The proposed specified activity and mitigation, monitoring, and re porting measures, as well as the antici pated impacts, are the same as those described and analyzed for these regu lations (excluding changes made pursu ant to the adaptive management provi sion in paragraph (c)(1) of this section), and (2) NMFS’ Office of Protected Re sources determines that the mitiga tion, monitoring, and reporting meas ures required by the previous LOA under these regulations were imple mented. (b) For an LOA modification or re newal requests by the applicant that includes changes to the activity or the mitigation, monitoring, or reporting (excluding changes made pursuant to VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00156 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 147 National Marine Fisheries Service/NOAA, Commerce § 217.152 the adaptive management provision in paragraph (c)(1) of this section) that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS’ Office of Pro tected Resources may publish a notice of proposed LOA in the FEDERAL REG ISTER, including the associated anal ysis of the change, and solicit public comment before issuing the LOA. (c) An LOA issued under §§ 216.106 of this chapter and 217.126 for the activity identified in § 217.120(a) may be modi fied by NMFS’ Office of Protected Re sources under the following cir cumstances: (1) Adaptive management—NMFS’ Of fice of Protected Resources may mod ify (including augment) the existing mitigation, monitoring, or reporting measures (after consulting with Point Blue regarding the practicability of the modifications) if doing so creates a rea sonable likelihood of more effectively accomplishing the goals of the mitiga tion and monitoring set forth in the preamble for these regulations. (i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or report ing measures in an LOA include: (A) Results from Point Blue’s moni toring from the previous year(s); (B) Results from other marine mam mal and/or sound research or studies; and (C) Any information that reveals ma rine mammals may have been taken in a manner, extent or number not au thorized by these regulations or subse quent LOAs. (ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS’ Office of Protected Resources will publish a notice of pro posed LOA in the FEDERAL REGISTER and solicit public comment. (2) Emergencies. If NMFS’ Office of Protected Resources determines that an emergency exists that poses a sig nificant risk to the well-being of the species or stocks of marine mammals specified in LOAs issued pursuant to §§ 216.106 of this chapter and 217.126, an LOA may be modified without prior no tice or opportunity for public com ment. Notice would be published in the FEDERAL REGISTER within thirty days of the action. §§ 217.128–217.129 [Reserved] Subpart N [Reservedb Subpart P—Taking Marine Mam mals Incidental to Ice Roads and Ice Trails Construction and Maintenance on Alaska’s North Slope SOURCE: 85 FR 83471, Dec. 22, 2020, unless otherwise noted. EFFECTIVE DATE NOTE: At 85 FR 83471, Dec. 22, 2020, subpart P was added, effective Dec. 22, 2020, through Nov. 30, 2025 § 217.150 Specified activity and speci fied geographical region. (a) Regulations in this subpart apply only to Hilcorp Alaska, LLC (Hilcorp) and Eni US Operating Co. Inc. (Eni) and those persons they authorize or fund to conduct activities on their be half for the taking of marine mammals that occurs in the areas outlined in paragraph (b) of this section and that occurs incidental to construction and maintenance of ice roads and ice trails. (b) The taking of marine mammals by Hilcorp and Eni may be authorized in two Letters of Authorization (LOAs) only if it occurs on Alaska’s North Slope. § 217.151 Effective dates. Regulations in this subpart are effec tive from December 22, 2020 through November 30, 2025. § 217.152 Permissible methods of tak ing. Under LOAs issued pursuant to §§ 216.106 of this chapter and 217.156, the Holders of the LOAs (hereinafter ‘‘Hilcorp’’ and ‘‘Eni’’) may inciden tally, but not intentionally, take ma rine mammals within the area de scribed in § 217.150(b) by mortality, seri ous injury, Level A harassment, or Level B harassment associated with ice road and ice trail construction and maintenance activities, provided the activities are in compliance with all terms, conditions, and requirements of VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00157 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 148 50 CFR Ch. II (10–1–22 Edition) § 217.153 the regulations in this subpart and the appropriate LOAs. § 217.153 Prohibitions. Notwithstanding takings con templated in § 217.152 and authorized by the LOAs issued under §§ 216.106 of this chapter and 217.156, no person in con nection with the activities described in § 217.150 may: (a) Violate, or fail to comply with, the terms, conditions, and require ments of this subpart or an LOA issued under §§ 216.106 of this chapter and 217.156; (b) Take any marine mammal not specified in such LOAs; (c) Take any marine mammal speci fied in such LOAs in any manner other than as specified; (d) Take a marine mammal specified in such LOAs if NMFS determines such taking results in more than a neg ligible impact on the species or stocks of such marine mammal; or (e) Take a marine mammal specified in such LOAs if NMFS determines such taking results in an unmitigable ad verse impact on the species or stock of such marine mammal for taking for subsistence uses. § 217.154 Mitigation requirements. When conducting the activities iden tified in § 217.150(a), the mitigation measures contained in any LOA issued under §§ 216.106 of this chapter and 217.156 must be implemented. These mitigation measures shall include but are not limited to: (a) General conditions. (1) Hilcorp and Eni must renew, on an annual basis, the Plans of Cooperation (POCs), throughout the life of the regulations; (2) Copies of any issued LOAs must be in the possession of Hilcorp and Eni, their designees, and work crew per sonnel operating under the authority of the issued LOAs; and (3) Prior to initiation of sea ice road and ice trail-related activities, project personnel associated with ice road con struction, maintenance, use or decom missioning must receive annual train ing on implementing mitigation and monitoring measures: (i) Personnel must be advised that interactions with, or approaching, any wildlife is prohibited; (ii) Annual training must also in clude reviewing Hilcorp and Eni’s Wild life Management Plan; and (iii) In addition to the mitigation and monitoring plans, other topics in the training must include: (A) Ringed seal identification and brief life history; (B) Physical environment (habitat characteristics and how to potentially identify habitat); (C) Ringed seal use in the ice road re gion (timing, location, habitat use, birthing lairs, breathing holes, bask ing, etc.); (D) Potential effects of disturbance; and (E) Importance of lairs, breathing holes and basking to ringed seals. (b) General mitigation measures throughout the Ice Road/Trail Season (December through May). (1) Ice road/ trail speed limits must be no greater than 72.4 km (45 miles) per hour (mph); speed limits must be determined on a case-by-case basis based on environ mental, road conditions and ice road/ trail longevity considerations; (2) Following existing safety meas ures, delineators must mark the road way in a minimum of 0.4 km (1⁄4-mile) increments on both sides of the ice road to delineate the path of vehicle travel and areas of planned on-ice ac tivities (e.g., emergency response exer cises). Following existing safety meas ures currently used for ice trails, delin eators must mark one side of an ice trail a minimum of every 0.4 km (1⁄4 mile). Delineators must be color-coded, following existing safety protocol, to indicate the direction of travel and lo cation of the ice road or trail; (3) Corners of rig mats, steel plates, and other materials used to bridge sec tions of hazardous ice, must be clearly marked or mapped using GPS coordi nates of the locations; and (4) Personnel must be instructed to remain in the vehicle and safely con tinue, if they encounter a ringed seal while driving on the road. (c) Additional mitigation measures after March 1st. In addition to the general mitigation measures listed in § 217.154(b), the following measures must also be implemented after March 1st: VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00158 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 149 National Marine Fisheries Service/NOAA, Commerce § 217.155 (1) Ice road/trail construction, main tenance and decommissioning must be performed within the boundaries of the road/trail and shoulders, with most work occurring within the driving lane. To the extent practicable and when safety of personnel is ensured, equip ment must travel within the driving lane and shoulder areas. (2) Blading and snow blowing of ice roads must be limited to the previously disturbed ice road/shoulder areas to the extent safe and practicable. Snow must be plowed or blown from the ice road surface. (3) In the event snow is accumulating on a road within a 50 m (164 ft) radius of an identified downwind seal or seal lair, operational measures must be used to avoid seal impacts, such as pushing snow further down the road be fore blowing it off the roadway. Vehi cles must not stop within 50 m (164 ft) of identified seals or within 150 m (500 ft) of known seal lairs. (4) To the extent practicable and when safety of personnel is ensured, tracked vehicle operation must be lim ited to the previously disturbed ice trail areas. When safety requires a new ice trail to be constructed after March 1st, construction activities such as drilling holes in the ice to determine ice quality and thickness, must be con ducted only during daylight hours with good visibility. (5) Ringed seal structures must be avoided by a minimum of 50 m (164 ft) during ice testing and new trail con struction. (6) Once the new ice trail is estab lished, tracked vehicle operation must be limited to the disturbed area to the extent practicable and when safety of personnel is ensured. (7) If a seal is observed on ice within 50 m (164 ft) of the centerline of the ice road/trail, the following mitigation measures must be implemented: (i) Construction, maintenance or de commissioning activities associated with ice roads and trails must not occur within 50 m (164 ft) of the ob served ringed seal, but may proceed as soon as the ringed seal, of its own ac cord, moves farther than 50 m (164 ft) distance away from the activities or has not been observed within that area for at least 24 hours; and (ii) Transport vehicles (i.e., vehicles not associated with construction, maintenance or decommissioning) may continue their route within the des ignated road/trail without stopping. § 217.155 Requirements for monitoring and reporting. (a) All marine mammal monitoring must be conducted in accordance with Hilcorp and Eni’s Marine Mammal Mitigation and Monitoring Plan (4MP). This plan may be modified throughout the life of the regulations upon NMFS review and approval. (b) General monitoring measures will be implemented through the entire ice road/trail season including during con struction, maintenance, use and de commissioning. (1) If a ringed seal is observed within 50 m (164 ft) of the center of an ice road or trail, the operator’s Environmental Specialist must be immediately noti fied with the information provided in paragraph (e) of this section. (i) The Environmental Specialist must relay the seal sighting location information to all ice road personnel and the company’s office personnel re sponsible for wildlife interaction, fol lowing notification protocols described in the company-specific Wildlife Man agement Plan. All other data will be recorded and logged. (ii) The Environmental Specialist or designated person must monitor the ringed seal to document the animal’s location relative to the road/trail. All work that is occurring when the ringed seal is observed and the behavior of the seal during those activities must be documented until the animal is at least 50 m (150 ft) away from the center of the road/trail or is no longer observed. (2) [Reserved] (c) Additional monitoring measures after March 1st. In addition to the gen eral monitoring measures listed in § 217.155(b), the following measures must also be implemented after March 1st: (1) If an ice road or trail is being ac tively used, under daylight conditions with good visibility, a dedicated ob server (not the vehicle operator) must conduct a survey along the sea ice road/trail to observe if any ringed seals are within 150 m (500 ft) of the roadway VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00159 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 150 50 CFR Ch. II (10–1–22 Edition) § 217.155 corridor. The following survey protocol must be implemented: (i) Surveys must be conducted every other day during daylight hours; (ii) Observers for ice road activities must have received the training de scribed in § 217.154(a) and understand the applicable sections of the Wildlife Interaction Plan; (iii) Observers for ice road activities must be capable of detecting, observing and monitoring ringed seal presence and behaviors, and accurately and com pletely recording data; (iv) Observers must have no other primary duty than to watch for and re port observations related to ringed seals during this survey; and (v) If weather conditions become un safe, the observer may be removed from the monitoring activity. (2) If a ringed seal structure (i.e., breathing hole or lair) is observed within 50 m (150 ft) of the ice road/trail, the location of the structure must be reported to the Environmental Spe cialist and: (i) An observer must monitor the structure every 6 hours on the day of the initial sighting to determine whether a ringed seal is present. (ii) Monitoring for the seal must occur every other day the ice road is being used unless it is determined the structure is not actively being used (i.e., a seal is not sighted at that loca tion during monitoring). (d) Engaging with subsistence hunt ers for monitoring recommendations. (1) Hilcorp and Eni must engage local hunters through the Ice Seal Com mittee point of contact to gather rec ommendations on methods for ringed seal detection along sea ice roads/trails within the exposure areas. (2) Hilcorp and Eni must incorporate these recommendations into Hilcorp and Eni’s training materials provided to personnel responsible for monitoring for ringed seals along sea ice roads/ trails. (e) Reporting requirement at the end of-season. (1) A final end-of-season report com piling all ringed seal observations must be submitted to NMFS Office of Pro tected Resources within 90 days of de commissioning the ice roads/trails an nually. The report must include: (i) Date, time, location of observa tion; (ii) Ringed seal characteristics (i.e., adult or pup, behavior (avoidance, rest ing, etc.)); (iii) Activities occurring during ob servation including equipment being used and its purpose, and approximate distance to ringed seal(s); (iv) Actions taken to mitigate effects of interaction emphasizing: (A) Which mitigation and/or moni toring measures were successful; (B) Which mitigation and/or moni toring measures may need to be im proved to reduce interactions with ringed seals; (C) The effectiveness and practicality of implementing mitigation and moni toring measures; (D) Any issues or concerns regarding implementation of mitigation and/or monitoring measures; and (E) Potential effects of interactions based on observation data; (v) Proposed updates (if any) to Wild life Interaction Plan(s) or Mitigation and Monitoring Measures; and (vi) The methods used for detection of seals and seal structures with an as sessment of their effectiveness. (2) In the event a seal is killed or se riously injured by ice road/trail activi ties, Hilcorp or Eni must immediately cease the specified activities and re port the incident to the NMFS Office of Protected Resources (301–427–8401) and Alaska Region Stranding Coordinator (877–925–7773). The report must include the following information: (i) Time and date of the incident; (ii) Description of the incident; (iii) Environmental conditions (e.g., cloud over, and visibility); (iv) Description of all marine mam mal observations in the 24 hours pre ceding the incident; (v) Species identification or descrip tion of the animal(s) involved; (vi) Fate of the animal(s); and (vii) Photographs or video footage of the animal(s). (3) In the event ice road/trail per sonnel discover a dead or injured seal but the cause of injury or death is un known or believed not to be related to ice road/trail activities, Hilcorp or Eni must report the incident to the NMFS Office of Protected Resources (301–427– VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00160 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 151 National Marine Fisheries Service/NOAA, Commerce § 217.157 8401) and Alaska Region Stranding Co ordinator (877–925–7773) within 48 hours of discovery. § 217.156 Letters of Authorization. (a) To incidentally take marine mammals pursuant to these regula tions, Hilcorp and Eni must apply for and obtain an LOA. (b) An LOA, unless suspended or re voked, may be effective for a period of time not to exceed the expiration date of these regulations. (c) If an LOA expires prior to the ex piration date of these regulations, Hilcorp or Eni may apply for and ob tain a renewal of the LOA. (d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, Hilcorp and Eni must apply for and obtain a modification of the LOA as described in § 217.57. (e) The LOAs shall set forth: (1) Permissible methods of incidental taking; (2) Means of effecting the least prac ticable adverse impact (i.e., mitigation) on the species, its habitat, and on the availability of the species for subsist ence uses; and (3) Requirements for monitoring and reporting. (f) Issuance of the LOAs shall be based on a determination that the level of taking will be consistent with the findings made for the total taking al lowable under these regulations. (g) Notice of issuance or denial of an LOA shall be published in the FEDERAL REGISTER within 30 days of a deter mination. § 217.157 Renewals and modifications of Letters of Authorization. (a) An LOA issued under §§ 216.106 of this chapter and 217.156 for the activity identified in § 217.150(a) shall be re newed or modified upon request by the applicant, provided that: (1) The proposed specified activity and mitigation, monitoring, and re porting measures, as well as the antici pated impacts, are the same as those described and analyzed for these regu lations (excluding changes made pursu ant to the adaptive management provi sion in paragraph (c)(1) of this section); and (2) NMFS determines that the miti gation, monitoring, and reporting measures required by the previous LOAs under these regulations were im plemented. (b) For LOAs modification or renewal requests by the applicants that include changes to the activity or the mitiga tion, monitoring, or reporting (exclud ing changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS may publish a notice of proposed LOAs in the FED ERAL REGISTER, including the associ ated analysis of the change, and solicit public comment before issuing the LOA. (c) The LOAs issued under §§ 216.106 of this chapter and 217.156 for the activity identified in § 217.150(a) may be modi fied by NMFS under the following cir cumstances: (1) Adaptive management. NMFS may modify (including augment) the exist ing mitigation, monitoring, or report ing measures (after consulting with Hilcorp or Eni regarding the practica bility of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring set forth in the preamble for these regula tions. (i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or report ing measures in an LOA: (A) Results from Hilcorp or Eni’s monitoring from the previous year(s). (B) Results from other marine mam mal and/or sound research or studies. (C) Any information that reveals ma rine mammals may have been taken in a manner, extent or number not au thorized by these regulations or subse quent LOAs. (ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a no tice of proposed LOA in the FEDERAL REGISTER and solicit public comment. (2) Emergencies. If NMFS determines that an emergency exists that poses a VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00161 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 152 50 CFR Ch. II (10–1–22 Edition) §§ 217.158—217.159 significant risk to the well-being of the species or stocks of marine mammals specified in LOAs issued pursuant to §§ 216.106 of this chapter and 217.156, an LOA may be modified without prior no tice or opportunity for public com ment. Notice would be published in the FEDERAL REGISTER within 30 days of the action. §§ 217.158—217.159 [Reserved] Subpart Q—Taking and Importing Marine Mammals; Taking Ma rine Mammals Incidental to Oil and Gas Activities in Cook Inlet, Alaska. SOURCE: 84 FR 37502, July 31, 2019, unless otherwise noted. EFFECTIVE DATE NOTE: At 84 FR 37502, July 31, 2019, subpart Q was added, effective from July 30, 2019, to July 30, 2024. § 217.160 Specified activity and speci fied geographical region. (a) Regulations in this subpart apply only to Hilcorp Alaska LLC (Hilcorp) and those persons it authorizes or funds to conduct activities on its be half for the taking of marine mammals that occurs in the area outlined in paragraph (b) of this section and that occurs incidental to the activities de scribed in paragraph (c) of this section. (b) The taking of marine mammals by Hilcorp may be authorized in Let ters of Authorization (LOAs) only if it occurs within the action area defined in Cook Inlet, Alaska. (c) The taking of marine mammals by Hilcorp is only authorized if it oc curs incidental to Hilcorp’s oil and gas activities including use of seismic airguns, sub-bottom profiler, vertical seismic profiling, pile driving, con ductor pipe driving, and water jets. § 217.161 Effective dates. Regulations in this subpart are effec tive July 30, 2019, through July 30, 2024. § 217.162 Permissible methods of tak ing. Under LOAs issued pursuant to §§ 216.106 of this chapter and 217.166, the Holder of the LOAs (hereinafter ‘‘Hilcorp’’) may incidentally, but not intentionally, take marine mammals within the area described in § 217.160(b) by Level A harassment and Level B harassment associated with oil and gas activities, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the applicable LOAs. § 217.163 Prohibitions. Notwithstanding takings con templated in § 217.162 and authorized by LOAs issued under §§ 216.106 of this chapter and 217.166, no person in con nection with the activities described in § 217.160 may: (a) Violate, or fail to comply with, the terms, conditions, and require ments of this subpart or a LOA issued under §§ 216.106 of this chapter and 217.166; (b) Take any marine mammal not specified in such LOAs; (c) Take any marine mammal speci fied in such LOAs in any manner other than as specified; (d) Take a marine mammal specified in such LOAs if NMFS determines such taking results in more than a neg ligible impact on the species or stocks of such marine mammal; or (e) Take a marine mammal specified in such LOAs if NMFS determines such taking results in an unmitigable ad verse impact on the availability of such species or stock of marine mam mal for taking for subsistence uses. § 217.164 Mitigation requirements. When conducting the activities iden tified in § 217.160(c), the mitigation measures contained in any LOAs issued under §§ 216.106 of this chapter and 217.166 must be implemented. These mitigation measures must include but are not limited to: (a) Hilcorp must conduct a sound source verification (SSV) for 3D seis mic and sub-bottom profiler use. Re sults of this SSV must be sent to NMFS and mitigation and monitoring zones may be adjusted based on the re sults of the SSV. (b) If any marine mammal species for which take is not authorized are sight ed within or entering the relevant zones within which they are be exposed to sound above the 120 dB re 1 μPa VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00162 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 153 National Marine Fisheries Service/NOAA, Commerce § 217.164 (rms) threshold for continuous (e.g., vi bratory pile-driving, drilling) sources or the 160 dB re 1 μPa (rms) threshold for non-explosive impulsive (e.g., seis mic airguns) or intermittent (e.g., sci entific sonar) sources, Hilcorp must take appropriate action to avoid such exposure (e.g., by altering speed or course or by shutdown of the sound source). (c) If the allowable number of takes in an LOA listed for any marine mam mal species is met or exceeded, Hilcorp must immediately cease survey oper ations involving the use of active sound source(s), record the observa tion, and notify NMFS Office of Pro tected Resources. (d) Hilcorp must notify NMFS Office of Protected Resources at least 48 hours prior to the start of oil and gas activities each year. (e) Hilcorp must conduct briefings as necessary between vessel crews, marine mammal monitoring team, and other relevant personnel prior to the start of all survey activity, and when new per sonnel join the work, in order to ex plain responsibilities, communication procedures, marine mammal moni toring protocol, and operational proce dures. (f) Hilcorp must establish monitoring and exclusion zones. (1) For all relevant in-water activity, Hilcorp must implement shutdown zones/exclusion zones (EZs) with radial distances as identified in any LOA issued under §§ 216.106 of this chapter and 217.166. If a marine mammal is sighted within or entering the EZ, such operations must cease. (2) For all relevant in-water activity, Hilcorp must designate safety zones for monitoring (SZ) with radial distances as identified in any LOA issued under §§ 216.106 of this chapter and 217.166 and record and report occurrence of marine mammals within these zones. (3) For all relevant in-water activity, Hilcorp must implement a minimum EZ of a 10 m radius around the source. (g) Hilcorp must implement shut down measures. (1) Hilcorp must deploy protected species observers (PSO) and PSOs must be posted to monitor marine mammals within the monitoring zones during use of active acoustic sources and pile driv ing in water. (2) Monitoring must begin 15 minutes prior to initiation of stationary source activity and 30 minutes prior to initi ation of mobile source activity, occur throughout the time required to com plete the activity, and continue through 30 minutes post-completion of the activity. Pre-activity monitoring must be conducted to ensure that the EZ is clear of marine mammals, and activities may only commence once ob servers have declared the EZ clear of marine mammals. In the event of a delay or shutdown of activity resulting from marine mammals in the EZ, the marine mammals’ behavior must be monitored and documented. (3) A determination that the EZ is clear must be made during a period of good visibility (i.e., the entire EZ must be visible to the naked eye). (4) If a marine mammal is observed within or entering the EZ, Hilcorp must halt all noise producing activities for which take is authorized at that lo cation. If activity is delayed due to the presence of a marine mammal, the ac tivity may not commence or resume until either the animal has voluntarily left and been visually confirmed out side the EZ or the required amount of time (15 for porpoises and pinnipeds, 30 minutes for cetaceans) have passed without re-detection of the animal. (5) Monitoring must be conducted by trained observers, who must have no other assigned tasks during monitoring periods. Trained observers must be placed at the best vantage point(s) practicable to monitor for marine mammals and implement shutdown or delay procedures when applicable through communication with the equipment operator. Hilcorp must ad here to the following additional ob server qualifications: (i) Hilcorp must use independent, dedicated, trained visual PSOs, mean ing that the PSOs must be employed by a third-party observer provider, must not have tasks other than to conduct observational effort, collect data, and communicate with and instruct rel evant vessel crew with regard to the presence of protected species and miti gation requirements (including brief alerts regarding maritime hazards), VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00163 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 154 50 CFR Ch. II (10–1–22 Edition) § 217.165 and must have successfully completed an approved PSO training course ap propriate for their designated task. (ii) Hilcorp must submit PSO re sumes for NMFS review and approval. Resumes must be accompanied by a relevant training course information packet that includes the name and qualifications (i.e., experience, training completed, or educational background) of the instructor(s), the course outline or syllabus, and course reference mate rial as well as a document stating suc cessful completion of the course. NMFS will approve or disapprove PSOs within one week from the time that the necessary information is received by NMFS, after which PSOs meeting the minimum requirements will auto matically be considered approved. (iii) To the maximum extent prac ticable, the lead PSO must devise the duty schedule such that experienced PSOs are on duty with those PSOs with appropriate training but who have not yet gained relevant experience. (6) Operations must shut down com pletely if a beluga whale is sighted within the relevant Level B harass ment isopleth. (h) Hilcorp must implement soft start techniques for impact pile driv ing. (1) Hilcorp must conduct an initial set of three strikes from the impact hammer 30 seconds apart, at 40 percent energy, followed by a 1-minute waiting period, then two subsequent three strike sets. (2) Soft start is required for any im pact driving, including at the begin ning of the day, after 30 minutes of pre activity monitoring, and at any time following a cessation of impact pile driving of 30 minutes or longer. (i) Hilcorp must implement ramp ups for seismic airgun use. (1) Ramp up must be used at the start of airgun operations, including after a shutdown, and after any period greater than 30 minutes in duration without airgun operations. (2) The rate of ramp up must be no more than 6 dB per 5-minute period. (3) Ramp up must begin with the smallest gun in the array that is being used for all airgun array configura tions. (4) During the ramp up, the EZ for the full airgun array must be imple mented. (5) If the complete EZ has not been visible for at least 30 minutes prior to the start of operations, ramp up must not commence. (6) Ramp up of the airguns must not be initiated if a marine mammal is sighted within or entering the EZ at any time. (j) Hilcorp must use aircraft for miti gation. (1) Hilcorp must use aircraft daily to survey the planned seismic survey area prior to the start of seismic surveying. Surveying must not begin unless the aerial flights confirm the planned sur vey area for that day is clear of beluga whales. If weather conditions make fly ing before the start of seismic in day light unsafe, Hilcorp may delay the aerial survey until weather conditions improve and it is safe to fly. (2) If beluga whales are sighted dur ing flights, start of seismic surveying must be delayed until it is confirmed the area is free of beluga whales. (k) Hilcorp must implement exclu sion zones for beluga whales. (1) Hilcorp must not operate with noise producing activity within 10 miles (16 km) of the mean higher high water (MHHW) line of the Susitna Delta (Beluga River to the Little Susitna River) between April 15 and October 15. Hilcorp must not conduct seismic activity within the Level B isopleth distance of the mouth of the Kasilof River between January 1 and May 31. (m) Hilcorp must abide by all mitiga tion measures described in the Biologi cal Opinion for Hilcorp Alaska and Harvest Alaska Oil and Gas Activities, Cook Inlet, Alaska. § 217.165 Requirements for monitoring and reporting. (a) Marine mammal monitoring proto cols. Hilcorp must conduct briefings be tween construction supervisors and crews and the observer team prior to the start of all pile driving and re moval activities, and when new per sonnel join the work. Trained observers must receive a general environmental awareness briefing conducted by Hilcorp staff. At minimum, training VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00164 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 155 National Marine Fisheries Service/NOAA, Commerce § 217.165 must include identification of marine mammals that may occur in the project vicinity and relevant mitiga tion and monitoring requirements. All observers must have no other construc tion-related tasks while conducting monitoring. (b) Visibility. Activities must only commence when the entire exclusion zone (EZ) is visible to the naked eye and can be adequately monitored. If conditions (e.g., fog) prevent the visual detection of marine mammals, activi ties must not be initiated. For activi ties other than seismic surveying, ac tivity must be halted in low visibility but vibratory pile driving or removal will be allowed to continue if started in good visibility. (c) Monitoring periods. Monitoring must begin 15 minutes prior to initi ation of stationary source activity and 30 minutes prior to initiation of mobile source activity, occur throughout the time required to complete the activity, and continue through 30 minutes post completion of the activity. Pre-activ ity monitoring must be conducted to ensure that the EZ is clear of marine mammals, and activities may only commence once observers have de clared the EZ clear of marine mam mals. In the event of a delay or shut down of activity resulting from marine mammals in the EZ, the animals’ be havior must be monitored and docu mented. (d) Placement of PSOs. (1) At least one on-duty PSO must be placed on the source vessel (for seismic and geohazard surveys) or drill rig (for pipe driving and VSP). (2) During seismic surveys a mitiga tion vessel must be used with at least one on-duty PSO aboard the vessel monitoring for marine mammal occur rence. (e) Reporting measures—(1) Take limits. Hilcorp must contact NMFS when they have reached the limit of authorized takes of beluga whale within a year. (2) Monthly reports. Monthly reports must be submitted to NMFS for all months during which in-water seismic activities take place. The monthly re port must contain and summarize the following information: Dates, times, locations, heading, speed, weather, sea conditions (including Beaufort sea state and wind force), and associated activities during all seismic operations and marine mammal sightings; Spe cies, number, location, distance from the vessel, and behavior of any sighted marine mammals, as well as associated seismic activity (number of power downs and shutdowns), observed throughout all monitoring activities; An estimate of the number (by species) exposed to the seismic activity (based on visual observation) at received lev els greater than or equal to the NMFS thresholds discussed above with a dis cussion of any specific behaviors those individuals exhibited; A description of the implementation and effectiveness of the terms and conditions of the Bio logical Opinion’s Incidental Take Statement (ITS) and mitigation meas ures of the LOA. (3) Annual reports. (i) Hilcorp must submit an annual report within 90 days after each activity year, starting from the date when the LOA is issued (for the first annual report) or from the date when the previous annual report ended. (ii) Annual reports will detail the monitoring protocol, summarize the data recorded during monitoring, and estimate the number of marine mam mals that may have been harassed dur ing the period of the report. (iii) NMFS will provide comments within 30 days after receiving annual reports, and Hilcorp must address the comments and submit revisions within 30 days after receiving NMFS com ments. If no comment is received from the NMFS within 30 days, the annual report will be considered completed. (4) Final report. (i) Hilcorp must sub mit a comprehensive summary report to NMFS not later than 90 days fol lowing the conclusion of marine mam mal monitoring efforts described in this subpart. (ii) The final report must synthesize all data recorded during marine mam mal monitoring, and estimate the num ber of marine mammals that may have been harassed through the entire project. (iii) NMFS will provide comments within 30 days after receiving this re port, and Hilcorp must address the comments and submit revisions within VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00165 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 156 50 CFR Ch. II (10–1–22 Edition) § 217.165 30 days after receiving NMFS com ments. If no comment is received from the NMFS within 30 days, the final re port will be considered as final. (5) Reporting of injured or dead marine mammals. (i) In the event that per sonnel involved in the survey activities discover an injured or dead marine mammal, Hilcorp must report the inci dent to the Office of Protected Re sources (OPR), NMFS (301–427–8401) and to regional stranding network (877– 925–7773) as soon as feasible. The report must include the following informa tion: (A) Time, date, and location (lati tude/longitude) of the first discovery (and updated location information if known and applicable); (B) Species identification (if known) or description of the animal(s) in volved; (C) Condition of the animal(s) (in cluding carcass condition if the animal is dead); (D) Observed behaviors of the ani mal(s), if alive; (E) If available, photographs or video footage of the animal(s); and (F) General circumstances under which the animal was discovered. (ii) In the event of a ship strike of a marine mammal by any vessel involved in the survey activities, Hilcorp must report the incident to OPR, NMFS and to regional stranding networks as soon as feasible. The report must include the following information: (A) Time, date, and location (lati tude/longitude) of the incident; (B) Species identification (if known) or description of the animal(s) in volved; (C) Vessel’s speed during and leading up to the incident; (D) Vessel’s course/heading and what operations were being conducted (if ap plicable); (E) Status of all sound sources in use; (F) Description of avoidance meas ures/requirements that were in place at the time of the strike and what addi tional measures were taken, if any, to avoid strike; (G) Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, visibility) imme diately preceding the strike; (H) Estimated size and length of ani mal that was struck; (I) Description of the behavior of the marine mammal immediately pre ceding and following the strike; (J) If available, description of the presence and behavior of any other ma rine mammals immediately preceding the strike; (K) Estimated fate of the animal (e.g., dead, injured but alive, injured and moving, blood or tissue observed in the water, status unknown, dis appeared); and (L) To the extent practicable, photo graphs or video footage of the ani mal(s). (iii) In the event of a live stranding (or near-shore atypical milling) event within 50 km of the survey operations, where the NMFS stranding network is engaged in herding or other interven tions to return animals to the water, the Director of OPR, NMFS (or des ignee) will advise Hilcorp of the need to implement shutdown procedures for all active acoustic sources operating within 50 km of the stranding. Shut down procedures for live stranding or milling marine mammals include the following: (A) If at any time, the marine mam mal(s) die or are euthanized, or if herding/intervention efforts are stopped, the Director of OPR, NMFS (or designee) will advise Hilcorp that the shutdown around the animals’ loca tion is no longer needed. (B) Otherwise, shutdown procedures must remain in effect until the Direc tor of OPR, NMFS (or designee) deter mines and advises Hilcorp that all live animals involved have left the area (ei ther of their own volition or following an intervention). (C) If further observations of the ma rine mammals indicate the potential for re-stranding, additional coordina tion with Hilcorp must occur to deter mine what measures are necessary to minimize that likelihood (e.g., extend ing the shutdown or moving operations farther away) and Hilcorp must imple ment those measures as appropriate. (iv) If NMFS determines that the cir cumstances of any marine mammal stranding found in the vicinity of the activity suggest investigation of the association with survey activities is VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00166 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 157 National Marine Fisheries Service/NOAA, Commerce § 217.167 warranted, and an investigation into the stranding is being pursued, NMFS will submit a written request to Hilcorp indicating that the following initial available information must be provided as soon as possible, but no later than 7 business days after the re quest for information. (A) Status of all sound source use in the 48 hours preceding the estimated time of stranding and within 50 km of the discovery/notification of the stranding by NMFS; and (B) If available, description of the be havior of any marine mammal(s) ob served preceding (i.e., within 48 hours and 50 km) and immediately after the discovery of the stranding. (C) In the event that the investiga tion is still inconclusive, the investiga tion of the association of the survey activities is still warranted, and the in vestigation is still being pursued, NMFS may provide additional informa tion requests, in writing, regarding the nature and location of survey oper ations prior to the time period above. § 217.166 Letters of Authorization. (a) To incidentally take marine mammals pursuant to these regula tions, Hilcorp must apply for and ob tain (LOAs) in accordance with § 216.106 of this chapter for conducting the ac tivity identified in § 217.160(c). (b) LOAs, unless suspended or re voked, may be effective for a period of time not to extend beyond the expira tion date of these regulations. (c) An LOA application must be sub mitted to the Director, Office of Pro tected Resources, NMFS, by March 1st of the year preceding the desired start date. (d) An LOA application must include the following information: (1) \The date(s), duration, and the area(s) where the activity will occur; (2) The species and/or stock(s) of ma rine mammals likely to be found with in each area; (3) The estimated number of takes for each marine mammal stock potentially affected in each area for the period of effectiveness of the Letter of Author ization. (4) An updated Stakeholder Engage ment Plan detailing Hilcorp’s meetings with stakeholders and any concerns raised that relate to marine mammals or subsistence activities. (e) In the event of projected changes to the activity or to mitigation, moni toring, reporting (excluding changes made pursuant to the adaptive man agement provision of § 217.97(c)(1)) re quired by an LOA, Hilcorp must apply for and obtain a modification of LOAs as described in § 217.167. (f) Each LOA must set forth: (1) Permissible methods of incidental taking; (2) Means of effecting the least prac ticable adverse impact (i.e., mitigation) on the species, their habitat, and the availability of the species for subsist ence uses; and (3) Requirements for monitoring and reporting. (g) Issuance of the LOA(s) must be based on a determination that the level of taking must be consistent with the findings made for the total taking al lowable under these regulations. (h) If NMFS determines that the level of taking is resulting or may re sult in more than a negligible impact on the species or stocks of such marine mammal, the LOA may be modified or suspended after notice and a public comment period. (i) Notice of issuance or denial of the LOA(s) must be published in the FED ERAL REGISTER within 30 days of a de termination. § 217.167 Renewals and modifications of Letters of Authorization and adaptive management. (a) An LOA issued under §§ 216.106 of this chapter and 217.166 for the activity identified in § 217.160(c) may be renewed or modified upon request by the appli cant, provided that the following are met: (1) Notification to NMFS that the ac tivity described in the application sub mitted under § 217.160(a) will be under taken and that there will not be a sub stantial modification to the described work, mitigation or monitoring under taken during the upcoming or remain ing LOA period; (2) Timely receipt (by the dates indi cated) of monitoring reports, as re quired under § 217.165(C)(3); (3) A determination by the NMFS that the mitigation, monitoring and VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00167 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 158 50 CFR Ch. II (10–1–22 Edition) §§ 217.168—217.169 reporting measures required under § 217.165(c) and the LOA issued under §§ 216.106 of this chapter and 217.166, were undertaken and are expected to be undertaken during the period of valid ity of the LOA. (b) If a request for a renewal of a Let ter of Authorization indicates that a substantial modification, as deter mined by NMFS, to the described work, mitigation or monitoring undertaken during the upcoming season will occur, NMFS will provide the public a period of 30 days for review and comment on the request as well as the proposed modification to the LOA. Review and comment on renewals of Letters of Au thorization are restricted to: (1) New cited information and data indicating that the original determina tions made for the regulations are in need of reconsideration; and (2) Proposed changes to the mitiga tion and monitoring requirements con tained in these regulations or in the current Letter of Authorization. (c) A notice of issuance or denial of a renewal of a Letter of Authorization will be published in the FEDERAL REG ISTER within 30 days of a determina tion. (d) An LOA issued under §§ 216.16 of this chapter and 217.166 for the activity identified in § 217.160 may be modified by NMFS under the following cir cumstances: (1) Adaptive management. NMFS, in response to new information and in consultation with Hilcorp, may modify the mitigation or monitoring measures in subsequent LOAs if doing so creates a reasonable likelihood of more effec tively accomplishing the goals of miti gation and monitoring set forth in the preamble of these regulations. (i) Possible sources of new data that could contribute to the decision to modify the mitigation or monitoring measures include: (A) Results from Hilcorp’s moni toring from the previous year(s). (B) Results from marine mammal and/or sound research or studies. (C) Any information that reveals ma rine mammals may have been taken in a manner, extent or number not au thorized by these regulations or subse quent LOAs. (ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a no tice of proposed LOA in the FEDERAL REGISTER and solicit public comment. (2) Withdrawal or suspension. NMFS will withdraw or suspend an LOA if, after notice and opportunity for public comment, NMFS determines these reg ulations are not being substantially complied with or that the taking al lowed is or may be having more than a negligible impact on an affected spe cies or stock specified in § 217.162(b) or an unmitigable adverse impact on the availability of the species or stock for subsistence uses. The requirement for notice and comment will not apply if NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals. Notice will be published in the FEDERAL REGISTER within 30 days of such action. §§ 217.168—217.169 [Reserved] Subpart R—Taking and Importing Marine Mammals Incidental to U.S. Navy Bulkhead Re placement/Repairs at Naval Station Newport in Newport, Rhode Island SOURCE: 86 FR 71178, Dec. 15, 2021; 87 FR 885, Jan. 7, 2022, unless otherwise noted. EFFECTIVE DATE NOTE: At 86 FR 71178, Dec. 15, 2021, subpart R was added, effective May 15, 2022, through May 14, 2027. At 87 FR 885, Jan. 7, 2022, subpart R was corrected, effec tive May 15, 2022, through May 14, 2027. § 217.170 Specified activity and geo graphical region. (a) Regulations in this subpart apply only to the U.S. Navy (Navy) and those persons it authorizes or funds to con duct activities on its behalf for the taking of marine mammals that occurs in the areas outlined in paragraph (b) of this section and that occurs inci dental to construction activities in cluding for bulkhead replacement and repairs at Naval Station (NAVSTA) Newport, Rhode Island. (b) The taking of marine mammals by the Navy may be authorized in a Letter of Authorization (LOA) only if VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00168 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 159 National Marine Fisheries Service/NOAA, Commerce § 217.174 it occurs at NAVSTA Newport, Rhode Island. § 217.171 Effective dates. Regulations in this subpart are effec tive from May 15, 2022, through May 14, 2027. § 217.172 Permissible methods of tak ing. Under an LOA issued pursuant to §§ 216.106 of this chapter and 217.176, the Holder of the LOA (hereinafter ‘‘Navy’’) may incidentally, but not in tentionally, take marine mammals within the area described in § 217.170(b) by harassment associated with bulk head replacement and repairs construc tion activities, provided the activity is in compliance with all terms, condi tions, and requirements of the regula tions in this subpart and the applicable LOA. § 217.173 Prohibitions. (a) Except for the takings con templated in § 217.172 and authorized by a LOA issued under §§ 216.106 of this chapter and217.176, it is unlawful for any person to do any of the following in connection with the activities de scribed in § 217.170: (1) Violate, or fail to comply with, the terms, conditions, and require ments of this subpart or a LOA issued under §§ 216.106 of this chapter and 217.176; (2) Take any marine mammal not specified in such LOA; (3) Take any marine mammal speci fied in such LOA in any manner other than as specified; (4) Take a marine mammal specified in such LOA if NMFS determines such taking results in more than a neg ligible impact on the species or stocks of such marine mammal; or (b) [Reserved] § 217.174 Mitigation requirements. (a) When conducting the activities identified in § 217.171(a), the mitigation measures contained in any LOA issued under §§ 216.106 of this chapter and217.176 must be implemented. These mitigation measures must include but are not limited to: (1) A copy of any issued LOA must be in the possession of the Navy, super visory construction personnel, lead protected species observers (PSOs), and any other relevant designees of the Holder operating under the authority of this LOA at all times that activities subject to this LOA are being con ducted. (2) The Navy will follow mitigation procedures as described in this section. Should environmental conditions dete riorate such that marine mammals within the entire shutdown zone would not be visible (e.g., fog, heavy rain, night), the Holder shall delay pile driv ing and removal until observers are confident marine mammals within the shutdown zone could be detected. (3) The Navy will ensure that con struction supervisors and crews, the monitoring team, and relevant Navy staff are trained prior to the start of all activities subject to this rule, so that responsibilities, communication procedures, monitoring protocols, and operational procedures are clearly un derstood. New personnel joining during the project will be trained prior to commencing work. (4) The Navy, construction super visors and crews, PSOs, and relevant Navy staff will avoid direct physical interaction with marine mammals dur ing construction activity. If a marine mammal comes within 10 m of such ac tivity, operations will cease and vessels will reduce speed to the minimum level required to maintain steerage and safe working conditions, as necessary, to avoid direct physical interaction. (5) The Navy will employ PSOs and establish monitoring locations as de scribed in this rule and the Marine Mammal Monitoring Plan. The Navy will monitor the project area to the maximum extent possible based on the required number of PSOs, required monitoring locations, and environ mental conditions. (6) Monitoring will take place from 30 minutes prior to initiation of pile driv ing activity (i.e., pre-start clearance monitoring) through 30 minutes post completion of pile driving activity. (7) If a marine mammal is observed entering or within the shutdown zones indicated in this rule, pile driving ac tivity must be delayed or halted. If pile driving is delayed or halted due to the VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00169 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 160 50 CFR Ch. II (10–1–22 Edition) § 217.175 presence of a marine mammal, the ac tivity may not commence or resume until either the animal has voluntarily exited and been visually confirmed be yond the shutdown zone or 15 minutes have passed without re-detection of the animal. (8) The Navy will establish shutdown zones for all pile driving activities. Shutdown zones are limited to 150 m from the point of noise generation. Any remaining area within estimated Level A harassment zones shall be considered part of the ‘‘disturbance zone,’’ i.e., the Level B harassment zone and, where present, the Level A harassment zone (PTS onset) beyond 150 m from the point of noise generation. For activi ties where the estimated Level A (PTS onset) harassment zones are smaller than 150 m, the disturbance zone shall include the entire region of influence (ROI), i.e., estimated Level A and Level B harassment zones). Work may pro ceed without cessation while marine mammals are in the disturbance zone and marine mammal behavior within the disturbance zone will be monitored and documented. (9) The Navy will conduct monitoring to include the area within the Level B harassment zones (areas where SPLs are equal to or exceed the 160 dB rms threshold for impact driving and the 120 dB rms threshold during vibratory pile driving (disturbance zone). (10) Pre-start clearance monitoring will be conducted during periods of vis ibility sufficient for the lead PSO to determine that the shutdown zones are clear of marine mammals. Pile driving may commence following 30 minutes of observation when the determination is made that the shutdown zones are clear of marine mammals. (11) If pile driving is delayed or halt ed due to the presence of a marine mammal, the activity may not com mence or resume until either the ani mal has voluntarily exited and been visually confirmed beyond the shut down zone indicated or 15 minutes have passed without re-detection of the ani mal. (12) The Navy will use soft start tech niques when impact pile driving. Soft start requires contractors to provide an initial set of three strikes from the hammer at reduced energy, followed by a 30-second waiting period. Then two subsequent reduced-energy strike sets would occur. A soft start will be imple mented at the start of each day’s im pact pile driving and at any time fol lowing cessation of impact pile driving for a period of 30 minutes or longer. Soft start is not required during vibra tory pile driving activities. (13) Pile driving activity must be halted upon observation of either a spe cies entering or within the harassment zone, for which incidental take is not authorized, or a species for which inci dental take has been authorized but the authorized number of takes has been met. (b) [Reserved] § 217.175 Requirements for monitoring and reporting. (a) Marine Mammal monitoring must be conducted in accordance with the conditions in this section and the Ma rine Mammal Monitoring Plan. The Navy must submit a Marine Mammal Monitoring Plan to NMFS for approval in advance of construction. (b) Monitoring must be conducted by qualified, NMFS-approved PSOs, in ac cordance with the following conditions: (1) PSOs must be independent (i.e., not construction personnel) and have no other assigned tasks during moni toring periods. (2) At least one PSO must have prior experience performing the duties of a PSO during construction activity pur suant to a NMFS-issued incidental take authorization. (3) Other PSOs may substitute other relevant experience, education (degree in biological science or related field), or training for prior experience per forming the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take author ization. (4) Where a team of three or more PSOs is required, a lead observer or monitoring coordinator must be des ignated. The lead observer must have prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization. (5) PSOs must be approved by NMFS prior to beginning any activity subject to this LOA. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00170 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 161 National Marine Fisheries Service/NOAA, Commerce § 217.175 (c) The Navy will establish the fol lowing monitoring locations. For all pile driving activities, a minimum of one PSO will be assigned to each active pile driving location to monitor the shutdown zones. Trained PSOs will be placed at the best vantage point(s) practicable such as on nearby break waters, Gould Island, Coddington Point, or Taylor Point. Visual moni toring will be conducted by, at a min imum, by two PSOs. It is assumed that two to three PSOs would be sufficient to monitor the respective ROIs given the abundance of suitable vantage points. Any activity that would result in threshold exceedance at or more than 1,000 m would require a minimum of three PSOs to effectively monitor the entire ROI. However, additional monitors may be added if warranted by site conditions and/or the level of ma rine mammal activity in the area. (d) PSOs must record all observations of marine mammals, regardless of dis tance from the pile being driven, as well as the additional data indicated in the reporting requirements. (e) Acoustic monitoring will be con ducted in accordance with the Acoustic Monitoring Plan. The Navy will con duct hydroacoustic data collection (sound source verification and propaga tion loss) in accordance with a hydroacoustic monitoring plan that must be approved by NMFS in advance of construction. (f) The shutdown/disturbances zones may be modified with NMFS’ approval following NMFS’ acceptance of an acoustic monitoring report. (g) The Navy will submit a draft monitoring report to NMFS within 90 calendar days of the completion of re quired monitoring for each portion of the project as well as a comprehensive summary report at the end of the project. The report will detail the mon itoring protocol and summarize the data recorded during monitoring. Final annual reports (each portion of the project and comprehensive) must be prepared and submitted within 30 days following resolution of any NMFS com ments on the draft report. If no com ments are received from NMFS within 30 days of receipt of the draft report, the report must be considered final. If comments are received, a final report addressing NMFS comments must be submitted within 30 days after receipt of comments. (h) All draft and final monitoring re ports must be submitted to PR.ITP.MonitoringReports@noaa.gov and ITP.Egger@noaa.gov. (i) The marine mammal report must contain the informational elements de scribed ed in the Marine Mammal Mon itoring Plan and, at minimum, include: (1) Dates and times (begin and end) of all marine mammal monitoring; (2) Construction activities occurring during each daily observation period, including: the number and types of piles were driven or removed and by what method (i.e., impact or vibratory) and the total duration of driving time for each pile (vibratory driving) and number of strikes for each pile (impact driving); and (3) PSO locations during marine mammal monitoring; (4) Environmental conditions during monitoring periods (at beginning and end of PSO shift and whenever condi tions change significantly), including Beaufort sea state and any other rel evant weather conditions including cloud cover, fog, sun glare, and overall visibility to the horizon, and estimated observable distance; (5) Upon observation of a marine mammal, the following information: (i) Name of PSO who sighted the ani mal(s) and PSO location and activity at time of sighting. (ii) Time of sighting; and (iii) Identification of the animal (e.g., genus/species, lowest possible taxo nomic level, or unidentified), PSO con fidence in identification, and the com position of the group if there is a mix of species; (iv) Distances and location of each marine mammal observed relative to the pile being driven or removed; (v) Estimated number of animals (min/max/best); (vi) Estimated number of animals by cohort (adults, juveniles, neonates, group composition etc.); (vii) Animal’s closest point of ap proach and estimated time spent with in the harassment zone; and (viii) Description of any marine mammal behavioral observations (e.g., observed behaviors such as feeding or VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00171 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 162 50 CFR Ch. II (10–1–22 Edition) § 217.176 traveling), including an assessment of behavioral responses thought to have resulted from the activity (e.g., no re sponse or changes in behavioral state such as ceasing feeding, changing di rection, flushing, or breaching); (6) Number of marine mammals de tected within the harassment zones, by species; (7) Detailed information about any implementation of any mitigation trig gered (e.g., shutdowns and delays), a description of specific actions that en sued, and resulting of the behavior of the animal, if any; (8) The Navy will submit all PSO datasheets and/or raw sightings data with the draft reports. (j) The Navy must report the hydroacoustic data collected as re quired by a LOA issued under §§ 216.106 of this chapter and217.176 and as de scribed in the Acoustic Monitoring Plan, and at a minimum, must include: (1) Hydrophone equipment and meth ods: recording device, sampling rate, distance (m) from the pile where re cordings were made; depth of water and recording device(s); (2) Type and size of pile being driven, substrate type, method of driving dur ing recordings (e.g., hammer model and energy), and total pile driving dura tion; (i) Whether a sound attenuation de vice is used and, if so, a detailed de scription of the device used and the du ration of its use per pile; (ii) For impact pile driving (per pile): Number of strikes and strike rate; depth of substrate to penetrate; pulse duration and mean, median, and max imum sound levels (dB re: 1 μPa): Root mean square sound pressure level (SPLrms); cumulative sound exposure level (SELcum), peak sound pressure level (SPLpeak), and single-strike sound exposure level (SELs-s); (iii) For vibratory driving/removal (per pile): Duration of driving per pile; mean, median, and maximum sound levels (dB re: 1 μPa): Root mean square sound pressure level (SPLrms), cumu lative sound exposure level (SELcum) (and timeframe over which the sound is averaged); and (iv) One-third octave band spectrum and power spectral density plot. (k) In the event that personnel in volved in the construction activities discover an injured or dead marine mammal, the Navy must report the in cident to NMFS Office of Protected Re sources (OPR), NMFS (PR.ITP.MonitoringReports@noaa.gov and ITP.Egger@noaa.gov) Monitoring) and to the Greater Atlantic Region New England/Mid-Atlantic Stranding Coordinator, as soon as feasible. If the death or injury was clearly caused by the specified activity, the Navy must immediately cease the specified activi ties until NMFS OPR is able to review the circumstances of the incident and determine what, if any, additional measures are appropriate to ensure compliance with the terms of this rule and the LOA issued under §§ 216.106 of this chapter and 217.176. The Navy will not resume their activities until noti fied by NMFS. The report must include the following information: (1) Time, date, and location (latitude/ longitude) of the first discovery (and updated location information if known and applicable); (2) Species identification (if known) or description of the animal(s) in volved; (3) Condition of the animal(s) (includ ing carcass condition if the animal is dead); (4) Observed behaviors of the ani mal(s), if alive; (5) If available, photographs or video footage of the animal(s); and (6) General circumstances under which the animal was discovered. § 217.176 Letters of Authorization. (a) To incidentally take marine mammals pursuant to these regula tions, the Navy must apply for and ob tain an LOA. (b) An LOA, unless suspended or re voked, may be effective for a period of time not to exceed the expiration date of these regulations. (c) If an LOA expires prior to the ex piration date of these regulations, the Navy may apply for and obtain a re newal of the LOA. (d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00172 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 163 National Marine Fisheries Service/NOAA, Commerce § 217.180 LOA, the Navy must apply for and ob tain a modification of the LOA as de scribed in § 217.177. (e) The LOA will set forth the fol lowing information: (1) Permissible methods of incidental taking; (2) Means of effecting the least prac ticable adverse impact (i.e., mitigation) on the species, its habitat, and on the availability of the species for subsist ence uses; and (3) Requirements for monitoring and reporting. (f) Issuance of the LOA will be based on a determination that the level of taking will be consistent with the find ings made for the total taking allow able under these regulations. (g) Notice of issuance or denial of an LOA will be published in the FEDERAL REGISTER within 30 days of a deter mination. § 217.177 Renewals and modifications of Letters of Authorization. (a) An LOA issued under §§ 216.106 of this chapter and 217.176 for the activity identified in § 217.170(a) may be renewed or modified upon request by the appli cant, provided that: (1) The specified activity and mitiga tion, monitoring, and reporting meas ures, as well as the anticipated im pacts, are the same as those described and analyzed for these regulations; and (2) NMFS determines that the miti gation, monitoring, and reporting measures required by the previous LOA under these regulations were imple mented. (b) For LOA modification or renewal requests by the applicant that include changes to the activity or the mitiga tion, monitoring, or reporting that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS may publish a notice of proposed LOA in the FEDERAL REGISTER, including the associated analysis of the change, and solicit pub lic comment before issuing the LOA. (c) A LOA issued under §§ 216.106 of this chapter and 217.176 for the activity identified in § 217.170(a) may be modi fied by NMFS under the following cir cumstances: (1) NMFS may modify (including aug ment) the existing mitigation, moni toring, or reporting measures (after consulting with Navy regarding the practicability of the modifications) if doing so creates a reasonable likeli hood of more effectively accomplishing the goals of the mitigation and moni toring set forth in the preamble for these regulations; (i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or report ing measures in a LOA: (A) Results from Navy’s monitoring from previous years; (B) Results from other marine mam mal and/or sound research or studies; and (C) Any information that reveals ma rine mammals may have been taken in a manner, extent or number not au thorized by these regulations or subse quent LOAs; and (ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a no tice of proposed LOA in the FEDERAL REGISTER and solicit public comment; (2) If NMFS determines that an emer gency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in a LOA issued pursuant to §§ 216.106 of this chapter and 217.176, a LOA may be modified without prior notice or oppor tunity for public comment. Notifica tion would be published in the FEDERAL REGISTER within 30 days of the action. §§ 217.178–217.179 [Reserved] Subpart S—Taking Marine Mam mals Incidental to Geo physical Survey Activities in the Gulf of Mexico SOURCE: 86 FR 5444, Jan. 19, 2021, unless otherwise noted. EFFECTIVE DATE NOTE: At 86 FR 5444, Jan. 19, 2021, subprt S was added, effective Apr. 19, 2021, through Apr. 19, 2026. § 217.180 Specified activity and speci fied geographical region. (a) Regulations in this subpart apply only to oil and gas industry operators VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00173 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 164 50 CFR Ch. II (10–1–22 Edition) § 217.181 (LOA-holders), and those persons au thorized to conduct activities on their behalf, for the taking of marine mam mals that occurs in the area outlined in paragraph (b) of this section and that occurs incidental to geophysical survey activities. (b) The taking of marine mammals by oil and gas industry operators may be authorized in a Letter of Authoriza tion (LOA) only if it occurs within U.S. waters in the Gulf of Mexico, outside the area subject to a Congressional leasing moratorium under the Gulf of Mexico Energy Security Act (GOMESA) (Pub L. 109–432, § 104) as of the effective date of these regulations. § 217.181 Effective dates. Regulations in this subpart are effec tive from April 19, 2021 through April 19, 2026. § 217.182 Permissible methods of tak ing. Under LOAs issued pursuant to §§ 216.106 of this chapter and 217.186, LOA-holders may incidentally, but not intentionally, take marine mammals within the area described in § 217.180(b) by Level A and Level B harassment as sociated with geophysical survey ac tivities, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA. § 217.183 Prohibitions. Notwithstanding takings con templated in §§ 217.180 and 217.182, and authorized by a LOA issued under §§ 216.106 of this chapter and 217.186, no person in connection with the activi ties described in § 217.180 may: (a) Violate, or fail to comply with, the terms, conditions, and require ments of this subpart or a LOA issued under §§ 216.106 of this chapter and 217.186; (b) Take any marine mammal not specified in such LOAs; (c) Take any marine mammal speci fied in such LOAs in any manner other than as specified; or (d) Take a marine mammal specified in such LOAs if NMFS determines such taking results in more than a neg ligible impact on the species or stocks of such marine mammal. § 217.184 Mitigation requirements. When conducting the activities iden tified in § 217.180, the mitigation meas ures contained in any LOA issued under §§ 216.106 of this chapter and 217.186 must be implemented. These mitigation measures shall include but are not limited to: (a) General conditions. (1) A copy of any issued LOA must be in the posses sion of the LOA-holder, vessel oper ator, other relevant personnel, the lead protected species observer (PSO), and any other relevant designees operating under the authority of the LOA. (2) The LOA-holder must instruct rel evant vessel personnel with regard to the authority of the protected species monitoring team (PSO team), and must ensure that relevant vessel personnel and PSO team participate in a joint on board briefing, led by the vessel oper ator and lead PSO, prior to beginning work to ensure that responsibilities, communication procedures, protected species monitoring protocols, oper ational procedures, and LOA require ments are clearly understood. This briefing must be repeated when rel evant new personnel join the survey operations before work involving those personnel commences. (3) The acoustic source must be de activated when not acquiring data or preparing to acquire data, except as necessary for testing. Unnecessary use of the acoustic source must be avoided. For surveys using airgun arrays as the acoustic source, notified operational capacity (i.e., total array volume) (not including redundant backup airguns) must not be exceeded during the sur vey, except where unavoidable for source testing and calibration pur poses. All occasions where activated source volume exceeds notified oper ational capacity must be commu nicated to the PSO(s) on duty and fully documented. The lead PSO must be granted access to relevant instrumen tation documenting acoustic source power and/or operational volume. (4) PSOs must be used as specified in this paragraph (a)(4). (i) LOA-holders must use inde pendent, dedicated, qualified PSOs, meaning that the PSOs must be em ployed by a third-party observer pro vider, must have no tasks other than to VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00174 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 165 National Marine Fisheries Service/NOAA, Commerce § 217.184 conduct observational effort, collect data, and communicate with and in struct relevant vessel crew with regard to the presence of protected species and mitigation requirements (including brief alerts regarding maritime haz ards), and must be qualified pursuant to § 217.185(a) (except as specified at § 217.184(d)(2)(iii–iv)). Acoustic PSOs are required to complete specialized train ing for operating passive acoustic mon itoring (PAM) systems and are encour aged to have familiarity with the ves sel on which they will be working. PSOs may act as both acoustic and vis ual observers (but not simultaneously), so long as they demonstrate that their training and experience are sufficient to perform each task. (ii) The LOA-holder must submit PSO resumes for NMFS review and ap proval prior to commencement of the survey (except as specified at § 217.184(d)(2)(iii)). Resumes should in clude dates of training and any prior NMFS approval, as well as dates and description of last experience, and must be accompanied by information documenting successful completion of an acceptable training course. NMFS is allowed one week to approve PSOs from the time that the necessary infor mation is received by NMFS, after which PSOs meeting the minimum re quirements will automatically be con sidered approved. (iii) At least one visual PSO and two acoustic PSOs (when required) aboard each acoustic source vessel must have a minimum of 90 days at-sea experience working in those roles, respectively, with no more than eighteen months elapsed since the conclusion of the at sea experience (except as specified at § 217.184(d)(2)(iii)). One visual PSO with such experience must be designated as the lead for the entire PSO team. The lead must coordinate duty schedules and roles for the PSO team and serve as the primary point of contact for the vessel operator. (Note that the respon sibility of coordinating duty schedules and roles may instead be assigned to a shore-based, third-party monitoring co ordinator.) To the maximum extent practicable, the lead PSO must devise the duty schedule such that experi enced PSOs are on duty with those PSOs with appropriate training but who have not yet gained relevant expe rience. (b) Deep penetration surveys. (1) Deep penetration surveys are defined as sur veys using airgun arrays with total volume greater than 1,500 in3. (2) Visual monitoring must be con ducted as specified in this paragraph (b)(2). (i) During survey operations (i.e., any day on which use of the acoustic source is planned to occur, and whenever the acoustic source is in the water, wheth er activated or not), a minimum of two PSOs must be on duty and conducting visual observations at all times during daylight hours (i.e., from 30 minutes prior to sunrise through 30 minutes fol lowing sunset). (ii) Visual monitoring must begin not less than 30 minutes prior to ramp-up and must continue until one hour after use of the acoustic source ceases or until 30 minutes past sunset. (iii) Visual PSOs must coordinate to ensure 360° visual coverage around the vessel from the most appropriate obser vation posts, and must conduct visual observations using binoculars and the naked eye while free from distractions and in a consistent, systematic, and diligent manner. (iv) Visual PSOs must immediately communicate all observations of ma rine mammals to the on-duty acoustic PSO, including any determination by the PSO regarding species identifica tion, distance, and bearing and the de gree of confidence in the determina tion. (v) Any observations of marine mam mals by crew members aboard any ves sel associated with the survey must be relayed to the PSO team. (vi) During good conditions (e.g., day light hours; Beaufort sea state (BSS) 3 or less), visual PSOs must conduct ob servations when the acoustic source is not operating for comparison of sight ing rates and behavior with and with out use of the acoustic source and be tween acquisition periods, to the max imum extent practicable. (vii) Visual PSOs may be on watch for a maximum of two consecutive hours followed by a break of at least one hour between watches and may conduct a maximum of 12 hours of ob servation per 24-hour period. NMFS VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00175 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 166 50 CFR Ch. II (10–1–22 Edition) § 217.184 may grant an exception for LOA appli cations that demonstrate such a ‘‘two hours on/one hour off’’ duty cycle is not practicable, in which case visual PSOs will be subject to a maximum of four consecutive hours on watch fol lowed by a break of at least two hours between watches. Combined observa tional duties (visual and acoustic but not at the same time) must not exceed 12 hours per 24-hour period for any in dividual PSO. (3) Acoustic monitoring must be con ducted as specified in this paragraph (b)(3). (i) All source vessels must use a towed PAM system at all times when operating in waters deeper than 100 m, which must be monitored by a min imum of one acoustic PSO beginning at least 30 minutes prior to ramp-up, at all times during use of the acoustic source, and until one hour after use of the acoustic source ceases. ‘‘PAM sys tem’’ refers to calibrated hydrophone arrays with full system redundancy to detect, identify, and estimate distance and bearing to vocalizing cetaceans, coupled with appropriate software to aid monitoring and listening by a PAM operator skilled in bioacoustics anal ysis and computer system specifica tions capable of running appropriate software. The PAM system must have at least one calibrated hydrophone (per each deployed hydrophone type and/or set) sufficient for determining whether background noise levels on the towed PAM system are sufficiently low to meet performance expectations. Appli cants must provide a PAM plan includ ing description of the hardware and software proposed for use prior to pro ceeding with any survey where PAM is required. (ii) Acoustic PSOs must immediately communicate all detections of marine mammals to visual PSOs (when visual PSOs are on duty), including any deter mination by the PSO regarding species identification, distance, and bearing, and the degree of confidence in the de termination. (iii) Acoustic PSOs may be on watch for a maximum of four consecutive hours followed by a break of at least two hours between watches, and may conduct a maximum of 12 hours of ob servation per 24-hour period. Combined observational duties (visual and acous tic but not at the same time) must not exceed 12 hours per 24-hour period for any individual PSO. (iv) Survey activity may continue for 30 minutes when the PAM system mal functions or is damaged, while the PAM operator diagnoses the issue. If the diagnosis indicates that the PAM system must be repaired to solve the problem, operations may continue for an additional two hours without acous tic monitoring during daylight hours only under the following conditions: (A) Sea state is less than or equal to BSS 4; (B) No marine mammals (excluding delphinids) detected solely by PAM in the applicable exclusion zone in the previous two hours; (C) NMFS is notified via email as soon as practicable with the time and location in which operations began oc curring without an active PAM system; and (D) Operations with an active acous tic source, but without an operating PAM system, do not exceed a cumu lative total of four hours in any 24 hour period. (4) PSOs must establish and monitor applicable exclusion and buffer zones. These zones must be based upon the ra dial distance from the edges of the airgun array (rather than being based on the center of the array or around the vessel itself). During use of the acoustic source (i.e., anytime the acoustic source is active, including ramp-up), occurrence of marine mam mals within the relevant buffer zone (but outside the exclusion zone) should be communicated to the operator to prepare for the potential shutdown of the acoustic source. (i) Two exclusion zones are defined, depending on the species and context. A standard exclusion zone encom passing the area at and below the sea surface out to a radius of 500 meters from the edges of the airgun array (0– 500 m) is defined. For special cir cumstances (defined at § 217.184(b)(9)(v)), the exclusion zone en compasses an extended distance of 1,500 meters (0–1,500 m). (ii) During pre-start clearance moni toring (i.e., before ramp-up begins), the buffer zone acts as an extension of the VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00176 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 167 National Marine Fisheries Service/NOAA, Commerce § 217.184 exclusion zone in that observations of marine mammals within the buffer zone would also preclude airgun oper ations from beginning (i.e., ramp-up). For all marine mammals (except where superseded by the extended 1,500-m ex clusion zone), the buffer zone encom passes the area at and below the sea surface from the edge of the 0–500 meter exclusion zone out to a radius of 1,000 meters from the edges of the airgun array (500–1,000 m). The buffer zone is not applicable when the exclu sion zone is greater than 500 meters, i.e., the observational focal zone is not increased beyond 1,500 meters. (5) A ramp-up procedure, involving a step-wise increase in the number of airguns firing and total active array volume until all operational airguns are activated and the full volume is achieved, is required at all times as part of the activation of the acoustic source. A 30-minute pre-start clearance observation period must occur prior to the start of ramp-up. The LOA-holder must adhere to the following pre-start clearance and ramp-up requirements: (i) The operator must notify a des ignated PSO of the planned start of ramp-up as agreed upon with the lead PSO; the notification time should not be less than 60 minutes prior to the planned ramp-up. (ii) Ramp-ups must be scheduled so as to minimize the time spent with source activated prior to reaching the designated run-in. (iii) A designated PSO must be noti fied again immediately prior to initi ating ramp-up procedures and the oper ator must receive confirmation from the PSO to proceed. (iv) Ramp-up must not be initiated if any marine mammal is within the ap plicable exclusion or buffer zone. If a marine mammal is observed within the exclusion zone or the buffer zone dur ing the 30-minute pre-start clearance period, ramp-up must not begin until the animal(s) has been observed exiting the zones or until an additional time period has elapsed with no further sightings (15 minutes for small delphinids and 30 minutes for all other species). (v) Ramp-up must begin by acti vating a single airgun of the smallest volume in the array and shall continue in stages by doubling the number of ac tive elements at the commencement of each stage, with each stage of approxi mately the same duration. Total dura tion must not be less than 20 minutes. The operator must provide information to the PSO documenting that appro priate procedures were followed. (vi) Ramp-up must cease and the source shut down upon observation of marine mammals within the applicable exclusion zone. Once ramp-up has begun, observations of marine mam mals within the buffer zone do not re quire shutdown. (vii) Ramp-up may occur at times of poor visibility, including nighttime, if appropriate acoustic monitoring has occurred with no detections of a ma rine mammal other than delphinids in the 30 minutes prior to beginning ramp-up. Acoustic source activation may only occur at night where oper ational planning cannot reasonably avoid such circumstances. (viii) If the acoustic source is shut down for brief periods (i.e., less than 30 minutes) for reasons other than imple mentation of prescribed mitigation (e.g., mechanical difficulty), it may be activated again without ramp-up if PSOs have maintained constant visual and/or acoustic observation and no vis ual or acoustic detections of any ma rine mammal have occurred within the applicable exclusion zone. For any longer shutdown, pre-start clearance observation and ramp-up are required. For any shutdown at night or in peri ods of poor visibility (e.g., BSS 4 or greater), ramp-up is required, but if the shutdown period was brief and constant observation maintained, pre-start clearance watch is not required. (ix) Testing of the acoustic source in volving all elements requires ramp-up. Testing limited to individual source elements or strings does not require ramp-up but does require the pre-start clearance observation period. (6) Shutdowns must be implemented as specified in this paragraph (b)(6). (i) Any PSO on duty has the author ity to delay the start of survey oper ations or to call for shutdown of the acoustic source pursuant to the re quirements of this subpart. (ii) The operator must establish and maintain clear lines of communication VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00177 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 168 50 CFR Ch. II (10–1–22 Edition) § 217.184 directly between PSOs on duty and crew controlling the acoustic source to ensure that shutdown commands are conveyed swiftly while allowing PSOs to maintain watch. (iii) When both visual and acoustic PSOs are on duty, all detections must be immediately communicated to the remainder of the on-duty PSO team for potential verification of visual obser vations by the acoustic PSO or of acoustic detections by visual PSOs. (iv) When the airgun array is active (i.e., anytime one or more airguns is active, including during ramp-up) and (1) a marine mammal appears within or enters the applicable exclusion zone and/or (2) a marine mammal (excluding delphinids) is detected acoustically and localized within the applicable exclu sion zone, the acoustic source must be shut down. When shutdown is called for by a PSO, the acoustic source must be immediately deactivated and any dis pute resolved only following deactiva tion. (v) The extended 1,500-m exclusion zone must be applied upon detection (visual or acoustic) of a baleen whale, sperm whale, beaked whale, or Kogia spp. within the zone. (vi) Shutdown requirements are waived for dolphins of the following genera: Tursiops, Stenella, Steno, and Lagenodelphis. If a delphinid is visually detected within the exclusion zone, no shutdown is required unless the PSO confirms the individual to be of a genus other than those listed above, in which case a shutdown is required. Acoustic detection of delphinids does not require shutdown. (vii) If there is uncertainty regarding identification or localization, PSOs may use best professional judgment in making the decision to call for a shut down. (viii) Upon implementation of shut down, the source may be reactivated after the marine mammal(s) has been observed exiting the applicable exclu sion zone or following a 30-minute clearance period with no further detec tion of the marine mammal(s). (c) Shallow penetration surveys. (1) Shallow penetration surveys are de fined as surveys using airgun arrays with total volume equal to or less than 1,500 in3, single airguns, boomers, or equivalent sources. (2) LOA-holders conducting shallow penetration surveys must follow the re quirements defined for deep penetra tion surveys at § 217.184(b), with the fol lowing exceptions: (i) Acoustic monitoring is not re quired for shallow penetration surveys. (ii) Ramp-up for small airgun arrays must follow the procedure described above for large airgun arrays, but may occur over an abbreviated period of time. Ramp-up is not required for sur veys using only a single airgun. For non-airgun sources, power should be in creased as feasible to effect a ramp-up. (iii) Two exclusion zones are defined, depending on the species and context. A standard exclusion zone encom passing the area at and below the sea surface out to a radius of 100 meters from the edges of the airgun array (if used) or from the acoustic source (0–100 m) is defined. For special cir cumstances (§ 217.184(b)(6)(v)), the ex clusion zone encompasses an extended distance of 500 meters (0–500 m). (iv) The buffer zone encompasses the area at and below the sea surface from the edge of the 0–100 meter exclusion zone out to a radius of 200 meters from the edges of the airgun array (if used) or from the acoustic source (100–200 meters). The buffer zone is not applica ble when the exclusion zone is greater than 100 meters. (d) High-resolution geophysical (HRG) surveys. (1) HRG surveys are defined as surveys using an electromechanical source that operates at frequencies less than 180 kHz, other than those defined at § 217.184(c)(1) (e.g., side-scan sonar, multibeam echosounder, or chirp sub bottom profiler). (2) LOA-holders conducting HRG sur veys must follow the requirements de fined for shallow penetration surveys at § 217.184(c), with the following excep tions: (i) No shutdowns are required for HRG surveys. Pre-start clearance watch is required as defined at § 217.184(c), i.e., for a period of 30 min utes and over a 200-m radius from the acoustic source. (ii) During survey operations (e.g., any day on which use of the acoustic VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00178 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 169 National Marine Fisheries Service/NOAA, Commerce § 217.185 source is planned to occur, and when ever the acoustic source is in the water, whether activated or not), a minimum of one trained and experi enced independent PSO must be on duty and conducting visual observa tions at all times during daylight hours (i.e., from 30 minutes prior to sunrise through 30 minutes following sunset) when operating in waters deep er than 100 m. (iii) When operating in waters shallower than 100 m, LOA-holders must employ one trained visual PSO, who may be a crew member, only for purposes of conducting pre-start clear ance monitoring. If PSOs are crew members, i.e., are not independent PSOs, the PSOs are not subject to NMFS’ approval. In these cir cumstances, LOA requests must de scribe the training that will be pro vided to crew members filling the role of PSO. (iv) PSOs are not required during sur vey operations in which the active acoustic source(s) are deployed on an autonomous underwater vehicle. (e) Time-area closure. From January 1 through May 31, no use of airguns may occur shoreward of the 20-m isobath and between 90–84° W. (f) Entanglement avoidance. To avoid the risk of entanglement, LOA-holders conducting surveys using ocean-bottom nodes or similar gear must: (1) Use negatively buoyant coated wire-core tether cable; (2) Retrieve all lines immediately fol lowing completion of the survey; and (3) Attach acoustic pingers directly to the coated tether cable; acoustic re leases should not be used. (g) Vessel strike avoidance. LOA-hold ers must adhere to the following re quirements: (1) Vessel operators and crews must maintain a vigilant watch for all ma rine mammals and must slow down, stop their vessel, or alter course, as ap propriate and regardless of vessel size, to avoid striking any marine mammal. A visual observer aboard the vessel must monitor a vessel strike avoidance zone around the vessel, which shall be defined according to the parameters stated in this subsection. Visual ob servers monitoring the vessel strike avoidance zone may be third-party ob servers (i.e., PSOs) or crew members, but crew members responsible for these duties must be provided sufficient training to distinguish marine mam mals from other phenomena and broad ly to identify a marine mammal as a baleen whale, sperm whale, or other marine mammal; (2) Vessel speeds must be reduced to 10 kn or less when mother/calf pairs, pods, or large assemblages of marine mammals are observed near a vessel; (3) All vessels must maintain a min imum separation distance of 500 m from baleen whales; (4) All vessels must maintain a min imum separation distance of 100 m from sperm whales; (5) All vessels must, to the maximum extent practicable, attempt to main tain a minimum separation distance of 50 m from all other marine mammals, with an exception made for those ani mals that approach the vessel; and (6) When marine mammals are sight ed while a vessel is underway, the ves sel must take action as necessary to avoid violating the relevant separation distance, e.g., attempt to remain par allel to the animal’s course, avoid ex cessive speed or abrupt changes in di rection until the animal has left the area. If marine mammals are sighted within the relevant separation dis tance, the vessel must reduce speed and shift the engine to neutral, not engag ing the engines until animals are clear of the area. This does not apply to any vessel towing gear or any vessel that is navigationally constrained. (7) These requirements do not apply in any case where compliance would create an imminent and serious threat to a person or vessel or to the extent that a vessel is restricted in its ability to maneuver and, because of the re striction, cannot comply. § 217.185 Requirements for monitoring and reporting. (a) PSO qualifications. (1) PSOs must successfully complete relevant, accept able training, including completion of all required coursework and passing (80 percent or greater) a written and/or oral examination developed for the training program. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00179 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 170 50 CFR Ch. II (10–1–22 Edition) § 217.185 (2) PSOs must have successfully at tained a bachelor’s degree from an ac credited college or university with a major in one of the natural sciences, a minimum of 30 semester hours or equivalent in the biological sciences, and at least one undergraduate course in math or statistics. The educational requirements may be waived if the PSO has acquired the relevant skills through alternate experience. Requests for such a waiver must be submitted to NMFS and shall include written jus tification. Requests will be granted or denied (with justification) by NMFS within one week of receipt of sub mitted information. Alternate experi ence that may be considered includes, but is not limited to: (i) Secondary education and/or expe rience comparable to PSO duties; (ii) Previous work experience con ducting academic, commercial, or gov ernment-sponsored marine mammal surveys; or (iii) Previous work experience as a PSO; the PSO should demonstrate good standing and consistently good per formance of PSO duties. (b) Equipment. LOA-holders are re quired to: (i) Provide PSOs with bigeye bin oculars (e.g., 25 x 150; 2.7 view angle; in dividual ocular focus; height control) of appropriate quality solely for PSO use. These must be pedestal-mounted on the deck at the most appropriate vantage point that provides for optimal sea surface observation, PSO safety, and safe operation of the vessel. (ii) For each vessel required to use a PAM system, provide a PAM system that has been verified and tested by an experienced acoustic PSO who will be using it during the trip for which moni toring is required; (iii) Work with the selected third party observer provider to ensure PSOs have all equipment (including backup equipment) needed to adequately per form necessary tasks, including accu rate determination of distance and bearing to observed marine mammals. (Equipment specified in A. through G. below may be provided by an individual PSO, the third-party observer provider, or the LOA-holder, but the LOA-holder is responsible for ensuring PSOs have the proper equipment required to per form the duties specified herein.) Such equipment, at a minimum, must in clude: (A) Reticle binoculars (e.g., 7 x 50) of appropriate quality (at least one per PSO, plus backups); (B) Global Positioning Unit (GPS) (plus backup); (C) Digital camera with a telephoto lens (the camera or lens should also have an image stabilization system) that is at least 300 mm or equivalent on a full-frame single lens reflex (SLR) (plus backup); (D) Compass (plus backup); (E) Radios for communication among vessel crew and PSOs (at least one per PSO, plus backups); and (F) Any other tools necessary to ade quately perform necessary PSO tasks. (c) Data collection. PSOs must use standardized electronic data forms. PSOs must record detailed information about any implementation of mitiga tion requirements, including the dis tance of marine mammals to the acoustic source and description of spe cific actions that ensued, the behavior of the animal(s), any observed changes in behavior before and after implemen tation of mitigation, and if shutdown was implemented, the length of time before any subsequent ramp-up or acti vation of the acoustic source. If re quired mitigation was not imple mented, PSOs must record a descrip tion of the circumstances. At a min imum, the following information should be recorded: (1) Vessel names (source vessel and other vessels associated with survey), vessel size and type, maximum speed capability of vessel, port of origin, and call signs; (2) PSO names and affiliations; (3) Dates of departures and returns to port with port name; (4) Dates of and participants in PSO briefings; (5) Dates and times (Greenwich Mean Time) of survey effort and times cor responding with PSO effort; (6) Vessel location (latitude/lon gitude) when survey effort began and ended and vessel location at beginning and end of visual PSO duty shifts; (7) Vessel location at 30-second inter vals (if software capability allows) or 5 VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00180 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 171 National Marine Fisheries Service/NOAA, Commerce § 217.185 minute intervals (if location must be manually recorded); (8) Vessel heading and speed at begin ning and end of visual PSO duty shifts and upon any line change; (9) Environmental conditions while on visual survey (at beginning and end of PSO shift and whenever conditions changed significantly), including Beau fort sea state and any other relevant weather conditions including cloud cover, fog, sun glare, and overall visi bility to the horizon; (10) Vessel location when environ mental conditions change signifi cantly; (11) Factors that may have contrib uted to impaired observations during each PSO shift change or as needed as environmental conditions change (e.g., vessel traffic, equipment malfunc tions); (12) Survey activity information, such as acoustic source power output while in operation, number and volume of airguns operating in an array, tow depth of an acoustic source, and any other notes of significance (i.e., pre start clearance, ramp-up, shutdown, testing, shooting, ramp-up completion, end of operations, streamers, etc.); and (13) Upon visual observation of a ma rine mammal, the following informa tion: (i) Watch status (sighting made by PSO on/off effort, opportunistic, crew, alternate vessel/platform); (ii) PSO who sighted the animal and PSO location (including height above water) at time of sighting; (iii) Time of sighting; (iv) Vessel coordinates at time of sighting; (v) Water depth; (vi) Direction of vessel’s travel (com pass direction); (vii) Speed of the vessel(s) from which the observation was made; (viii) Direction of animal’s travel rel ative to the vessel; (ix) Pace of the animal; (x) Estimated distance to the animal (and method of estimating distance) and its heading relative to vessel at initial sighting; (xi) Identification of the animal (e.g., genus/species, lowest possible taxo nomic level, or unidentified), PSO con fidence in identification, and the com position of the group if there is a mix of species; (xii) Estimated number of animals (high/low/best); (xiii) Estimated number of animals by cohort (adults, juveniles, group composition, etc.); (xiv) Description (as many distin guishing features as possible of each in dividual seen, including length, shape, color, pattern, scars or markings, shape and size of dorsal fin, shape of head, and blow characteristics); (xv) Detailed behavior observations (e.g., number of blows/breaths, number of surfaces, breaching, spyhopping, div ing, feeding, traveling; as explicit and detailed as possible; note any observed changes in behavior), including an as sessment of behavioral responses to survey activity; (xvi) Animal’s closest point of ap proach (CPA) and/or closest distance from any element of the acoustic source; (xvii) Platform activity at time of sighting (e.g., deploying, recovering, testing, shooting, data acquisition, other); and (xviii) Description of any actions im plemented in response to the sighting (e.g., delays, shutdown, ramp-up) and time and location of the action. (14) Upon acoustic detection of a ma rine mammal using a PAM system, the following information: (i) An acoustic encounter identifica tion number, and whether the detec tion was linked with a visual sighting; (ii) Date and time when first and last heard; (iii) Types and nature of sounds heard (e.g., clicks, whistles, creaks, burst pulses, continuous, sporadic, strength of signal); and (iv) Any additional information re corded such as water depth of the hy drophone array, bearing of the animal to the vessel (if determinable), species or taxonomic group (if determinable), spectrogram screenshot, and any other notable information. (d) Reporting. (1) Annual reporting must be submitted as specified in this paragraph. (i) LOA-holders must submit a sum mary report to NMFS on all activities and monitoring results within 90 days VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00181 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 172 50 CFR Ch. II (10–1–22 Edition) § 217.185 of the completion of the survey or expi ration of the LOA, whichever comes sooner, and must include all informa tion described above under § 217.185(c). If an issued LOA is valid for greater than one year, the summary report must be submitted on an annual basis. (ii) The report must describe activi ties conducted and sightings of marine mammals, must provide full docu mentation of methods, results, and in terpretation pertaining to all moni toring, and must summarize the dates and locations of survey operations and all marine mammal sightings (dates, times, locations, activities, associated survey activities, and information re garding locations where the acoustic source was used). In addition to the re port, all raw observational data must be made available to NMFS. (iii) For operations requiring the use of PAM, the report must include a vali dation document concerning the use of PAM, which should include necessary noise validation diagrams and dem onstrate whether background noise lev els on the PAM deployment limited achievement of the planned detection goals. Copies of any vessel self-noise assessment reports must be included with the report. (iv) The LOA-holder must provide geo-referenced time-stamped vessel tracklines for all time periods in which airguns (full array or single) were oper ating. Tracklines must include points recording any change in airgun status (e.g., when the airguns began oper ating, when they were turned off). GIS files must be provided in ESRI shapefile format and include the UTC date and time, latitude in decimal de grees, and longitude in decimal de grees. All coordinates must be ref erenced to the WGS84 geographic co ordinate system. (v) The draft report must be accom panied by a certification from the lead PSO as to the accuracy of the report, and the lead PSO may submit directly to NMFS a statement concerning im plementation and effectiveness of the required mitigation and monitoring. (vi) A final report must be submitted within 30 days following resolution of any comments on the draft report. (2) Comprehensive reporting must be submitted as specified in this para graph. LOA-holders must contribute to the compilation and analysis of data for inclusion in an annual synthesis re port addressing all data collected and reported through annual reporting in each calendar year. The synthesis pe riod shall include all annual reports deemed to be final by NMFS in a given one-year reporting period. The report must be submitted to NMFS within 90 days following the end of a given one year reporting period. (e) Reporting of injured or dead marine mammals. (1) In the event that per sonnel involved in the survey activities discover an injured or dead marine mammal, the LOA-holder must report the incident to the Office of Protected Resources (OPR), NMFS and to the Southeast Regional Stranding Network as soon as feasible. The report must in clude the following information: (i) Time, date, and location (latitude/ longitude) of the first discovery (and updated location information if known and applicable); (ii) Species identification (if known) or description of the animal(s) in volved; (iii) Condition of the animal(s) (in cluding carcass condition if the animal is dead); (iv) Observed behaviors of the ani mal(s), if alive; (v) If available, photographs or video footage of the animal(s); and (vi) General circumstances under which the animal was discovered. (2) In the event of a ship strike of a marine mammal by any vessel involved in the survey activities, the LOA-hold er must report the incident to OPR, NMFS and to the Southeast Regional Stranding Network as soon as feasible. The report must include the following information: (i) Time, date, and location (latitude/ longitude) of the incident; (ii) Species identification (if known) or description of the animal(s) in volved; (iii) Vessel’s speed during and leading up to the incident; (iv) Vessel’s course/heading and what operations were being conducted (if ap plicable); (v) Status of all sound sources in use; (vi) Description of avoidance meas ures/requirements that were in place at VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00182 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 173 National Marine Fisheries Service/NOAA, Commerce § 217.186 the time of the strike and what addi tional measures were taken, if any, to avoid strike; (vii) Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, visibility) imme diately preceding the strike; (viii) Estimated size and length of animal that was struck; (ix) Description of the behavior of the marine mammal immediately pre ceding and following the strike; (x) If available, description of the presence and behavior of any other ma rine mammals immediately preceding the strike; (xi) Estimated fate of the animal (e.g., dead, injured but alive, injured and moving, blood or tissue observed in the water, status unknown, dis appeared); and (xii) To the extent practicable, pho tographs or video footage of the ani mal(s). (3) For deep penetration surveys, in the event of a live stranding (or near shore atypical milling) event within 50 km of the survey operations, where the NMFS stranding network is engaged in herding or other interventions to re turn animals to the water, the Director of OPR, NMFS (or designee) will advise the LOA-holder of the need to imple ment shutdown procedures for all ac tive acoustic sources operating within 50 km of the stranding. Shutdown pro cedures for live stranding or milling marine mammals include the fol lowing: (i) If at any time, the marine mam mal(s) die or are euthanized, or if herding/intervention efforts are stopped, the Director of OPR, NMFS (or designee) will advise the LOA-hold er that the shutdown around the ani mals’ location is no longer needed. (ii) Otherwise, shutdown procedures will remain in effect until the Director of OPR, NMFS (or designee) determines and advises the LOA-holder that all live animals involved have left the area (either of their own volition or fol lowing an intervention). (iii) If further observations of the marine mammals indicate the poten tial for re-stranding, additional coordi nation with the LOA-holder will be re quired to determine what measures are necessary to minimize that likelihood (e.g., extending the shutdown or mov ing operations farther away) and to im plement those measures as appropriate. (4) If NMFS determines that the cir cumstances of any marine mammal stranding found in the vicinity of the activity suggest investigation of the association with survey activities is warranted, and an investigation into the stranding is being pursued, NMFS will submit a written request to the LOA-holder indicating that the fol lowing initial available information must be provided as soon as possible, but no later than 7 business days after the request for information. In the event that the investigation is still in conclusive, the investigation of the as sociation of the survey activities is still warranted, and the investigation is still being pursued, NMFS may pro vide additional information requests, in writing, regarding the nature and lo cation of survey operations prior to the time period above. (i) Status of all sound source use in the 48 hours preceding the estimated time of stranding and within 50 km of the discovery/notification of the stranding by NMFS; and (ii) If available, description of the be havior of any marine mammal(s) ob served preceding (i.e., within 48 hours and 50 km) and immediately after the discovery of the stranding. [86 FR 5444, Jan. 19, 2021; 86 FR 18476, Apr. 9, 2021] § 217.186 Letters of Authorization. (a) To incidentally take marine mammals pursuant to these regula tions, prospective LOA-holders must apply for and obtain an LOA. (b) An LOA, unless suspended or re voked, may be effective for a period not to exceed the expiration date of these regulations. (c) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, the LOA-holder must apply for and obtain a modification of the LOA as described in § 217.187. (d) The LOA shall set forth: (1) Permissible methods of incidental taking; (2) Means of effecting the least prac ticable adverse impact (i.e., mitigation) VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00183 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 174 50 CFR Ch. II (10–1–22 Edition) § 217.187 on the species or stock and its habitat; and (3) Requirements for monitoring and reporting. (e) Issuance of the LOA shall be based on a determination that the level of taking will be consistent with the find ings made for the total taking allow able under these regulations and a de termination that the amount of take authorized under the LOA is of no more than small numbers. (f) For LOA issuance, where either (1) the conclusions put forth in an applica tion (e.g., take estimates) are based on analytical methods that differ sub stantively from those used in the de velopment of the rule, or (2) the pro posed activity or anticipated impacts vary substantively in scope or nature from those analyzed for the rule, NMFS may publish a notice of pro posed LOA in the FEDERAL REGISTER, including the associated analysis of the differences, and solicit public comment before making a decision regarding issuance of the LOA. (g) Notice of issuance or denial of an LOA shall be published in the FEDERAL REGISTER within thirty days of a deter mination. § 217.187 Renewals and modifications of Letters of Authorization (LOA). (a) An LOA issued under § 216.106 of this chapter and § 217.186 for the activ ity identified in § 217.180 shall be modi fied upon request by the applicant, pro vided that: (1) The proposed specified activity and mitigation, monitoring, and re porting measures, as well as the antici pated impacts, are the same as those described and analyzed for these regu lations (excluding changes made pursu ant to the adaptive management provi sion in paragraph (c)(1) of this section); and (2) NMFS determines that the miti gation, monitoring, and reporting measures required by the previous LOA under these regulations were imple mented. (b) For LOA modification requests by the applicant that include changes to the activity or the mitigation, moni toring, or reporting (excluding changes made pursuant to the adaptive man agement provision in paragraph (c)(1) of this section) that result in more than a minor change in the total esti mated number of takes (or distribution by species or years), NMFS may pub lish a notice of proposed LOA in the FEDERAL REGISTER, including the asso ciated analysis of the change, and so licit public comment before issuing the LOA. (c) An LOA issued under § 216.106 of this chapter and § 217.186 for the activ ity identified in § 217.180 may be modi fied by NMFS under the following cir cumstances: (1) NMFS may modify (including add ing or removing measures) the existing mitigation, monitoring, or reporting measures (after consulting with the LOA-holder regarding the practica bility of the modifications) if doing so is practicable and creates a reasonable likelihood of more effectively accom plishing the goals of the mitigation and monitoring set forth in the pre amble for these regulations; (i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or report ing measures in an LOA: (A) Results from monitoring from previous years; (B) Results from other marine mam mal and/or sound research or studies; and (C) Any information that reveals ma rine mammals may have been taken in a manner, extent or number not au thorized by these regulations or subse quent LOAs. (ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a no tice of proposed LOA in the FEDERAL REGISTER and solicit public comment. (2) If NMFS determines that an emer gency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in an LOA issued pursuant to § 216.106 of this chapter and § 217.186, an LOA may be modified without prior notice or op portunity for public comment. Notice would be published in the FEDERAL REGISTER within thirty days of the ac tion. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00184 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 175 National Marine Fisheries Service/NOAA, Commerce § 217.204 §§ 217.188–217.189 [Reserved] Subpart T [Reserved] Subpart U—Taking Of Marine Mammals Incidental To The Port of Anchorage Marine Ter minal Redevelopment Project § 217.200 Specified activities and speci fied geographical region. (a) Regulations in this subpart apply only to the incidental taking of those marine mammals specified in § 217.202(b) by the Port of Anchorage and the U.S. Department of Transpor tation Maritime Administration (MARAD), and those persons it author izes to engage in construction activi ties associated with the Port of An chorage Marine Terminal Redevelop ment Project, specifically in-water pile driving, at the Port of Anchorage, Alaska. (b) [Reserved] § 217.201 Effective dates. Regulations in this subpart are effec tive from July 15, 2009, through July 14, 2014. § 217.202 Permissible methods of tak ing. (a) Under Letters of Authorization issued pursuant to § 216.106 of this chap ter and § 217.207, the Port of Anchorage and MARAD, and persons under their authority, may incidentally, but not intentionally, take marine mammals by harassment, within the area de scribed in § 217.200, provided the activ ity is in compliance with all terms, conditions, and requirements of these regulations and the appropriate Letter of Authorization. (b) The taking of marine mammals under a Letter of Authorization is lim ited to the incidental take, by Level B harassment only, of the following spe cies under the activities identified in § 217.200(a): Cook Inlet beluga whales (Delphinapterus leucas), harbor seals (Phoca vitulina), harbor porpoises (Phocoena phocoena), and killer whales (Orcinus orca). (c) The taking by injury or death of the species listed in paragraph (b) of this section or the taking by Level B harassment, injury or death of any other marine mammal species is pro hibited and may result in the modifica tion, suspension, or revocation of a Letter of Authorization. § 217.203 Prohibitions. Notwithstanding takings con templated in § 217.202(b) and authorized by a Letter of Authorization issued under § 216.106 of this chapter and § 217.207, no person in connection with the activities described in § 217.200 may: (a) Take any marine mammal not specified in § 217.202(b); (b) Take any marine mammal speci fied in § 217.202(b) other than by inci dental, unintentional Level B harass ment; (c) Take a marine mammal specified in § 217.202(b) if such taking results in more than a negligible impact on the species or stocks of such marine mam mal; or (d) Violate, or fail to comply with, the terms, conditions, and require ments of this subpart or a Letter of Authorization issued under § 216.106 of this chapter and § 217.207. § 217.204 Mitigation. (a) When conducting operations iden tified in § 217.200(a), the mitigation measures contained in the Letter of Authorization, issued under § 216.106 of this chapter and § 217.207, must be im plemented. These mitigation measures are: (1) Through monitoring described under § 217.205, the Holder of a Letter of Authorization will ensure that no ma rine mammal is subjected to a sound pressure levels of 190 or 180 dB re: 1 microPa or greater for pinnipeds and cetaceans, respectively. If a marine mammal is detected within or ap proaching a distance 200 m from in water pile driving or in-water chipping, operations shall be immediately de layed or suspended until the marine mammal moves outside these des ignated zones or the animal is not de tected within 15 minutes of the last sighting. (2) If a marine mammal is detected within or approaching the Level B har assment zone designated for impact pile driving (350 m) prior to in-water impact pile driving, operations shall VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00185 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 176 50 CFR Ch. II (10–1–22 Edition) § 217.205 not commence until the animal moves outside this zone or it is not detected within 15 minutes of the last sighting. (3) If a marine mammal is detected within or approaching the Level B har assment zone designated for vibratory pile driving (1,300 m) prior to in-water vibratory pile driving, operations shall not commence until the marine mam mal moves outside this zone or it is not detected within 15 minutes of the last sighting. (4) A start’’ technique shall be used at the beginning of each day’s in-water pile driving activities or if pile driving has ceased for more than one hour to allow any marine mammal that may be in the immediate area to leave before piling driving reaches full energy. For vibratory hammers, the soft start re quires the holder of the Letter of Au thorization to initiate noise from the hammers for 15 seconds at reduced en ergy followed by 1-minute waiting pe riod and repeat the procedure two addi tional times. If an impact hammer is used, the soft start requires an initial set of three strikes from the impact hammer at 40 percent energy, followed by a one minute waiting period, then two subsequent 3 strike sets. (5) In-water pile driving or chipping shall not occur when conditions re strict clear, visible detection of all waters within the appropriate harass ment zones or the 200 m safety zone. Such conditions that can impair sightibility include, but are not lim ited to, fog and rough sea state. (6) In-water piles will be driven with a vibratory hammer to the maximum extent possible (i.e., until a desired depth is achieved or to refusal) prior to using an impact hammer. (7) In-water impact pile driving shall not occur during the period from two hours before low tide until two hours after low tide. (8) The following measures apply to all in-water pile driving, except during the ‘‘stabbing’’ phase, and all in-water chipping associated with demolition of the existing dock: (i) No in-water pile driving (impact or vibratory) or chipping shall occur if any marine mammal is located within 200m of the hammer in any direction. If any marine mammal is sighted within or approaching this 200m safety zone, pile-driving or chipping must be sus pended until the animal has moved outside the 200m safety zone or the ani mal is not resighted within 15 minutes. (ii) If a group of more than 5 beluga whales is sighted within the Level B harassment isopleths, in-water pile driving shall be suspended. If the group is not re-sighted within 15 minutes, pile driving may resume. (iii) If a beluga whale calf or group with a calf is sighted within or ap proaching a harassment zone, in-water pile driving shall cease and shall not be resumed until the calf or group is con firmed to be outside of the harassment zone and moving along a trajectory away from such zone. If the calf or group with a calf is not re-sighted within 15 minutes, pile driving may re sume. (9) If maximum authorized take is reached or exceeded for a particular species, any marine mammal of that species entering into the harassment or safety isopleths will trigger mandatory in-water pile driving shut down. (10) For Port of Anchorage operated in-water heavy machinery work other than pile driving or chipping (i.e., dredging, dump scowles, tug boats used to move barges, barge mounted hydrau lic excavators, or clamshell equipment used to place or remove material), if a marine mammal comes within 50 m, those operations will cease and vessels will reduce to the slowest speed prac ticable while still maintaining control of the vessel and safe working condi tions. (11) In the event the Port of Anchor age conducts out-of-water blasting, detonation of charges will be delayed if a marine mammal is detected any where within a visible distance from the detonation site. (12) Additional mitigation measures as contained in a Letter of Authoriza tion. (b) [Reserved] § 217.205 Requirements for monitoring and reporting. (a) The Holder of a Letter of Author ization issued pursuant to § 216.106 of this chapter and § 217.207, for activities described in § 217.200(a) is required to cooperate with NMFS, and any other VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00186 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 177 National Marine Fisheries Service/NOAA, Commerce § 217.206 Federal, state or local agency with au thority to monitor the impacts of the activity on marine mammals. Unless specified otherwise in the Letter of Au thorization, the Holder of the Letter of Authorization must notify the Admin istrator, Alaska Region, NMFS, by let ter, e-mail, or telephone, at least 2 weeks prior to commencement of sea sonal activities and dock demolition possibly involving the taking of marine mammals. If the activity identified in § 217.200(a) is thought to have resulted in the mortality or injury of any ma rine mammals or in any take of marine mammals not identified in § 217.202(b), the Holder of the Letter of Authoriza tion must notify the Director, Office of Protected Resources, NMFS, or des ignee, by e-mail or telephone (301–713– 2289), within 24 hours of the discovery of the injured or dead animal. (b) The Holder of a Letters of Author ization must designate qualified, on site marine mammal observers (MMOs), approved in advance by NMFS, as specified in the Letter of Au thorization, to: (1) Conduct visual marine mammal monitoring at the Port of Anchorage beginning 30 minutes prior to and dur ing all in-water pile driving or chipping and out-of-water blasting. (2) Record the following information on NMFS-approved marine mammal sighting sheets whenever a marine mammal is detected: (i) Date and time of initial sighting to end of sighting, tidal stage, and weather conditions (including Beaufort Sea State); (ii) Species, number, group composi tion, initial and closest distance to pile driving hammer, and behavior (e.g., ac tivity, group cohesiveness, direction and speed of travel, etc.) of animals throughout duration of sighting; (iii) Any discrete behavioral reac tions to in-water work; (iv) The number (by species) of ma rine mammals that have been taken; (v) Pile driving, chipping, or out of water blasting activities occurring at the time of sighting and if and why shut down was or was not imple mented. (3) Employ a scientific marine mam mal monitoring team separate from the on-site MMOs to characterize beluga whale abundance, movements, behavior, and habitat use around the Port of Anchorage and observe, ana lyze, and document potential changes in behavior in response to in-water construction work. This monitoring team is not required to be present dur ing all in-water pile driving operations but will continue monitoring one-year post in-water construction. The on-site MMOs and this marine mammal moni toring team shall remain in contact to alert each other to marine mammal presence when both teams are working. (c) The Holder of a Letter of Author ization must conduct additional moni toring as required under an annual Let ter of Authorization. (d) The Holder of a Letter of Author ization shall submit a monthly report to NMFS’ Headquarters Permits, Edu cation and Conservation Division and the Alaska Region, Anchorage for all months in-water pile driving or chip ping takes place. This report must con tain the information listed in para graph (b)(2) of this section. (e) An annual report must be sub mitted at the time of application for renewal of a Letter of Authorization. This report will summarize all in-water construction activities and marine mammal monitoring from January 1 December 31, annually, and any discernable short or long term impacts from the Marine Terminal Expansion Project. (f) A final report must be submitted to NMFS upon application for a subse quent incidental take authorization or, if no future authorization is requested, no later than 90 days post expiration of these regulations. This report will: (1) Summarize the activities under taken and the results reported in all previous reports; (2) Assess the impacts to marine mammals from the port expansion project; and (3) Assess the cumulative impacts on marine mammals. § 217.206 Applications for Letters of Authorization. (a) To incidentally take marine mammals pursuant to these regula tions, the U.S. citizen (as defined by § 216.103 of this chapter) conducting the activity identified in § 217.200(a) (the VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00187 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 178 50 CFR Ch. II (10–1–22 Edition) § 217.207 Port of Anchorage and MARAD) must apply for and obtain either an initial Letter of Authorization in accordance with § 217.207 or a renewal under § 217.208. (b) The application must be sub mitted to NMFS at least 60 days before the expiration of the initial or current Letter of Authorization. (c) Applications for a Letter of Au thorization and for renewals of Letters of Authorization must include the fol lowing: (1) Name of the U.S. citizen request ing the authorization, (2) The date(s), duration, and the specified geographic region where the activities specified in § 217.200 will occur; and (3) The most current population esti mate of Cook Inlet beluga whales and the estimated percentage of marine mammal populations potentially af fected for the 12-month period of effec tiveness of the Letter of Authorization; (4) A summary of take levels, moni toring efforts and findings at the Port of Anchorage to date. (d) The National Marine Fisheries Service will review an application for a Letter of Authorization in accordance with this section and, if adequate and complete, issue a Letter of Authoriza tion. § 217.207 Letters of Authorization. (a) A Letter of Authorization, unless suspended or revoked, will be valid for a period of time not to exceed the pe riod of validity of this subpart, but must be renewed annually subject to annual renewal conditions in § 217.208. (b) Each Letter of Authorization will set forth: (1) Permissible methods of incidental taking; and (2) Requirements for mitigation, monitoring and reporting, including, but not limited to, means of effecting the least practicable adverse impact on the species, its habitat, and on the availability of the species for subsist ence uses. (c) Issuance of a Letter of Authoriza tion will be based on the determination that the number of marine mammals taken during the period the Letter of Authorization is valid will be small, that the total taking of marine mam mals by the activities specified in § 217.200(a) 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 ma rine mammals for subsistence uses. (d) Notice of issuance or denial of an application for a Letter of Authoriza tion will be published in the FEDERAL REGISTER within 30 days of a deter mination. § 217.208 Renewal of Letters of Author ization. (a) A Letter of Authorization issued under § 216.106 of this chapter and § 217.207 for the activity identified in § 217.200(a) will be renewed annually upon: (1) Notification to NMFS that the ac tivity described in the application sub mitted under § 217.206 will be under taken and that there will not be a sub stantial modification to the described work, mitigation or monitoring under taken during the upcoming 12 months; (2) Timely receipt of the monitoring reports required under § 217.205(d) and (e), and the Letter of Authorization issued under § 217.207, which has been reviewed and accepted by NMFS; and (3) A determination by NMFS that the mitigation, monitoring and report ing measures required under §§ 217.204 and 217.205 and the Letter of Authoriza tion issued under § 216.106 of this chap ter and § 217.207, were undertaken and will be undertaken during the upcom ing annual period of validity of a re newed Letter of Authorization; and (4) A determination by NMFS that the number of marine mammals taken during the period of the Letter of Au thorization will be small, that the total taking of marine mammals by the activities specified in § 217.200(a) will have no more than a negligible im pact 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 subsistence uses. (b) If a request for a renewal of a Let ter of Authorization issued under § 216.106 of this chapter and this section VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00188 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 179 National Marine Fisheries Service/NOAA, Commerce § 217.213 indicates that a substantial modifica tion to the described work, mitigation or monitoring undertaken during the upcoming season will occur, NMFS will provide the public a period of 30 days for review and comment on the re quest. (c) Notice of issuance or denial of a renewal of a Letter of Authorization will be published in the FEDERAL REG ISTER within 30 days of a determina tion. § 217.209 Modifications of Letters of Authorization. (a) Except as provided in paragraph (b) of this section, no substantive modification (including withdrawal or suspension) to the Letter of Authoriza tion by NMFS, issued pursuant to § 216.106 of this chapter and § 217.207 and subject to the provisions of this sub part, shall be made until after notifica tion and an opportunity for public comment has been provided. For pur poses of this paragraph, a renewal of a Letter of Authorization under § 217.208, without modification (except for the period of validity), is not considered a substantive modification. (b) If the Assistant Administrator de termines that an emergency exists that poses a significant risk to the well being of the species or stocks of marine mammals specified in § 217.202(b), a Letter of Authorization issued pursu ant to § 216.106 of this chapter and § 217.207 may be substantively modified without prior notification and an op portunity for public comment. Notifi cation will be published in the FED ERAL REGISTER within 30 days subse quent to the action. Subpart W—Taking and Importing Marine Mammals Incidental to Hampton Roads Connector Partners Construction at Nor folk, Virginia SOURCE: 86 FR 17490, Apr. 2, 2021, unless otherwise noted. EFFECTIVE DATE NOTE: At86 FR 17490, Apr. 2, 2021, subpart W was added, effective Apr. 2, 2021, through Apr. 1, 2026. § 217.210 Specified activity and geo graphical region. (a) Regulations in this subpart apply only to the Hampton Roads Connector Partners (HRCP) and those persons it authorizes or funds to conduct activi ties on its behalf for the taking of ma rine mammals that occurs in the areas outlined in paragraph (b) of this sec tion and that occurs incidental to con struction activities including marine structure maintenance, pile replace ment, and select waterfront improve ments at the Hampton Roads Bridge Tunnel Expansion Project (HRBT). (b) The taking of marine mammals by HRCP may be authorized in a Letter of Authorization (LOA) only if it oc curs at the Hampton Roads Bridge Tunnel Expansion project location in the James River between Norfolk, VA and Hampton, VA. § 217.211 Effective dates. Regulations in this subpart are effec tive from April 2, 2021 through April 2, 2026. § 217.212 Permissible methods of tak ing. (a) Under an LOA issued pursuant to §§ 216.106 of this chapter and217.216, the Holder of the LOA (hereinafter ‘‘HRCP’’) may incidentally, but not in tentionally, take marine mammals within the area described in § 217.210(b) by Level A and Level B harassment as sociated with construction activities, provided the activity is in compliance with all terms, conditions, and require ments of the regulations in this sub part and the applicable LOA. (b) [Reserved] § 217.213 Prohibitions. (a) Except for the takings con templated in § 217.22 and authorized by an LOA issued under §§ 216.106 of this chapter and217.216, it is unlawful for any person to do any of the following in connection with the activities de scribed in § 217.210: (1) Violate, or fail to comply with, the terms, conditions, and require ments of this subpart or a LOA issued under §§ 216.106 of this chapter and 217.216; (2) Take any marine mammal not specified in such LOA; VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00189 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 180 50 CFR Ch. II (10–1–22 Edition) § 217.214 (3) Take any marine mammal speci fied in such LOA in any manner that is not authorized by the LOA; or (4) Take a marine mammal specified in such LOA if NMFS determines such taking results in more than a neg ligible impact on the species or stocks of such marine mammal. (b) [Reserved] § 217.214 Mitigation requirements. (a) When conducting the activities identified in § 217.210(a), the mitigation measures contained in any LOA issued under §§ 216.106 of this chapter and 217.216 must be implemented. These mitigation measures shall include but are not limited to: (1) A copy of any issued LOA must be in the possession of HRCP, its des ignees, and work crew personnel oper ating under the authority of the issued LOA. (2) HRCP shall conduct briefings for construction supervisors and crews, the monitoring team, and HRCP staff prior to the start of all pile driving activity, and when new personnel join the work, in order to explain responsibilities, communication procedures, the marine mammal monitoring protocol, and operational procedures. (3) For in-water heavy machinery work other than pile driving, if a ma rine mammal comes within 10 meters (m), HRCP shall cease operations and reduce vessel speed to the minimum level required to maintain steerage and safe working conditions. (4) For all pile driving activity, HRCP shall implement a minimum shutdown zone of a 10 m radius around the pile. If a marine mammal comes within or approaches the shutdown zone, such operations shall cease. (5) For all pile driving activity, HRCP shall implement shutdown zones with radial distances as identified in a LOA issued under §§ 216.106 of this chapter and 217.216. If a marine mam mal comes within or approaches the shutdown zone, such operations shall cease. (6) HRCP shall deploy protected spe cies observers (observers) as indicated in its Marine Mammal Monitoring Plan approved by NMFS. (7) For all pile driving activities, be tween one and four observers shall be stationed at the best vantage points practicable to monitor for marine mammals and implement shutdown/ delay procedures. (8) Monitoring shall take place from 30 minutes prior to initiation of pile driving activity through 30 minutes post-completion of pile driving activ ity. Pre-activity monitoring shall be conducted for 30 minutes to ensure that the shutdown zone is clear of ma rine mammals, and pile driving may commence when observers have de clared the shutdown zone clear of ma rine mammals. In the event of a delay or shutdown of activity resulting from marine mammals in the shutdown zone, animals shall be allowed to re main in the shutdown zone (i.e., must leave of their own volition) and their behavior shall be monitored and docu mented. If a marine mammal is ob served within the shutdown zone, a soft-start cannot proceed until the ani mal has left the zone or has not been observed for 15 minutes. Monitoring shall occur throughout the time re quired to drive a pile. If in-water pile installation and removal work ceases for more than 30 minutes, the pre-ac tivity monitoring of the shutdown zones must commence. A determina tion that the shutdown zone is clear must be made during a period of good visibility (i.e., the entire shutdown zone and surrounding waters must be visible to the naked eye). (9) If a marine mammal approaches or enters the shutdown zone, all pile driving activities at that location shall be halted. In the event of a delay, the activity may not commence or resume until either the animal has voluntarily left and been visually confirmed be yond the shutdown zone or fifteen min utes have passed without re-detection of the animal. (10) Pile driving activity must be halted upon observation of either a spe cies for which incidental take is not authorized or a species for which inci dental take has been authorized but the authorized number of takes has been met, entering or within the har assment zone. (11) Should environmental conditions deteriorate (e.g., fog, heavy rain) such VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00190 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 181 National Marine Fisheries Service/NOAA, Commerce § 217.215 that observers are unable to visibly de tect marine mammals within the en tire shutdown zone then HRCP shall delay pile driving and removal until observers are confident marine mam mals within the shutdown zone could be detected. (12) Monitoring shall be conducted by trained observers, who shall have no other assigned tasks during monitoring periods. Trained observers shall be placed at the best vantage point(s) practicable to monitor for marine mammals and implement shutdown or delay procedures when applicable through communication with the equipment operator. HRCP shall ad here to the following additional ob server qualifications: (i) Independent observers are re quired; (ii) At least one observer must have prior experience working as an ob server; (iii) Other observers may substitute education (degree in biological science or related field) or training for experi ence; (iv) Where a team of three or more observers are required, one observer shall be designated as lead observer or monitoring coordinator. The lead ob server must have prior experience working as an observer; and (v) HRCP must submit PSO CVs for approval by NMFS prior to the begin ning of pile driving and drilling. (13) HRCP shall use soft start tech niques for impact pile driving. Soft start for impact driving requires HRCP and those persons it authorizes to pro vide an initial set of three strikes at reduced energy, followed by a thirty second waiting period, then two subse quent reduced energy three-strike sets. Soft start shall be implemented at the start of each day’s impact pile driving and at any time following cessation of impact pile driving for a period of thir ty minutes or longer. (14) HRCP shall employ bubble cur tain systems during impact driving of steel piles except under conditions where the water depth is less than 20 feet in depth. Bubble curtains must meet the following requirements: (i) The bubble curtain must dis tribute air bubbles around 100 percent of the piling perimeter for the full depth of the water column. (ii) The lowest bubble ring must be in contact with the mudline and/or rock bottom for the full circumference of the ring, and the weights attached to the bottom ring shall ensure 100 per cent mudline and/or rock bottom con tact. No parts of the ring or other ob jects shall prevent full mudline and/or rock bottom contact. (iii) The bubble curtain must be oper ated such that there is proper (equal) balancing of air flow to all bubblers. (iv) HRCP shall require that con struction contractors train personnel in the proper balancing of air flow to the bubblers and corrections to the at tenuation device to meet the perform ance standards specified in an LOA issued under §§ 216.106 of this chapter and § 217.216. This shall occur prior to the initiation of pile driving activities. (b) [Reserved] § 217.215 Requirements for monitoring and reporting. (a) HRCP shall submit a Marine Mammal Monitoring Plan to NMFS for approval in advance of construction. (b) HRCP shall deploy observers as indicated in its approved Marine Mam mal Monitoring Plan. (c) Observers shall be trained in ma rine mammal identification and behav iors. Observers shall have no other con struction-related tasks while con ducting monitoring. (d) HRCP shall monitor the Level B harassment zones and Level A harass ment zones extending beyond the des ignated shutdown zones to the extent practicable. (e) HRCP shall monitor the shutdown zones during all pile driving and re moval activities. (f) HRCP shall submit a draft annual monitoring report to NMFS within 90 work days of the completion of annual marine mammal monitoring. The re port must detail the monitoring pro tocol and summarize the data recorded during monitoring. If no comments are received from NMFS within 30 days, the draft report will constitute the final report. If comments are received, a final report addressing NMFS com ments must be submitted within 30 VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00191 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 182 50 CFR Ch. II (10–1–22 Edition) § 217.216 days after receipt of comments. Spe cifically, the report must include: (1) Dates and times (begin and end) of all marine mammal monitoring; (2) Construction activities occurring during each daily observation period, including how many and what type of piles were driven or removed and by what method (i.e., impact or vibra tory); (3) Environmental conditions during monitoring periods (at beginning and end of PSO shift and whenever condi tions change significantly), including Beaufort sea state and any other rel evant weather conditions including cloud cover, fog, sun glare, and overall visibility to the horizon, estimated ob servable distance (if less than the har assment zone distance), and percent ages of Level A and Level B harass ment zones that are not visible; (4) The number of marine mammals observed, by species, relative to the pile location and if pile driving or re moval was occurring at time of sight ing; (5) Age and sex class, if possible, of all marine mammals observed; (6) PSO locations during marine mammal monitoring; (7) Distances and bearings of each marine mammal observed to the pile being driven or removed for each sight ing (if pile driving or removal was oc curring at time of sighting); (8) Description of any marine mam mal behavior patterns during observa tion, including direction of travel and estimated time spent within the Level A and Level B harassment zones while the source was active; (9) Number of marine mammals de tected within the harassment zones, by species; (10) Detailed information about any implementation of any mitigation trig gered (e.g., shutdowns and delays), a description of specific actions that en sued, and resulting behavior of the ani mal, if any; and (11) Description of attempts to distin guish between the number of individual animals taken and the number of incidences of take, such as ability to track groups or individuals; (g) In the event that personnel in volved in the construction activities discover an injured or dead marine mammal, HRCP shall report the inci dent to the Office of Protected Re sources (OPR) (301–427–8401), NMFS and to the Greater Atlantic Region New England/Mid-Atlantic Regional Strand ing Coordinator as soon as feasible. If the death or injury was clearly caused by the specified activity, HRCP must immediately cease the specified activi ties until NMFS is able to review the circumstances of the incident and de termine what, if any, additional meas ures are appropriate to ensure compli ance with the terms of the authoriza tion. HRCP must not resume their ac tivities until notified by NMFS. The report must include the following in formation: (1) Time, date, and location (latitude/ longitude) of the first discovery (and updated location information if known and applicable); (2) Species identification (if known) or description of the animal(s) in volved; (3) Condition of the animal(s) (includ ing carcass condition if the animal is dead); (4) Observed behaviors of the ani mal(s), if alive; (5) If available, photographs or video footage of the animal(s); and (6) General circumstances under which the animal was discovered. § 217.216 Letters of Authorization. (a) To incidentally take marine mammals pursuant to these regula tions, HRCP must apply for and obtain an LOA. (b) An LOA, unless suspended or re voked, may be effective for a period of time not to exceed the expiration date of these regulations. (c) If an LOA expires prior to the ex piration date of these regulations, HRCP may apply for and obtain a re newal of the LOA. (d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, HRCP must apply for and obtain a modification of the LOA as described in § 217.217. (e) The LOA shall set forth the fol lowing information: (1) Permissible methods of incidental taking; VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00192 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 183 National Marine Fisheries Service/NOAA, Commerce Pt. 218 (2) Means of effecting the least prac ticable adverse impact (i.e., mitigation) on the species, its habitat, and on the availability of the species for subsist ence uses; and (3) Requirements for monitoring and reporting. (f) Issuance of the LOA shall be based on a determination that the level of taking will be consistent with the find ings made for the total taking allow able under these regulations. (g) Notice of issuance or denial of an LOA shall be published in the FEDERAL REGISTER within thirty days of a deter mination. § 217.217 Renewals and modifications of Letters of Authorization. (a) An LOA issued under §§ 216.106 of this chapter and 217.216 for the activity identified in § 217.210(a) shall be re newed or modified upon request by the applicant, provided that: (1) The planned specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those de scribed and analyzed for these regula tions; and (2) NMFS determines that the miti gation, monitoring, and reporting measures required by the previous LOA under these regulations were imple mented. (b) For LOA modification or renewal requests by the applicant that include changes to the activity or the mitiga tion, monitoring, or reporting that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS may publish a notice of proposed LOA in the FEDERAL REGISTER, including the associated analysis of the change, and solicit pub lic comment before issuing the LOA. (c) An LOA issued under §§ 216.106 of this chapter and217.216 for the activity identified in § 217.210(a) may be modi fied by NMFS under the following cir cumstances: (1) HRCP may modify (including aug ment) the existing mitigation, moni toring, or reporting measures (after consulting with NMFS regarding the practicability of the modifications) if doing so creates a reasonable likeli hood of more effectively accomplishing the goals of the mitigation and moni toring set forth in the preamble for these regulations; (i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or report ing measures in a LOA: (A) Results from HRCP’s monitoring from previous years; (B) Results from other marine mam mal and/or sound research or studies; and (C) Any information that reveals ma rine mammals may have been taken in a manner, extent or number not au thorized by these regulations or subse quent LOAs; (ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a no tice of proposed LOA in the FEDERAL REGISTER and solicit public comment. (2) If NMFS determines that an emer gency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in a LOA issued pursuant to §§ 216.106 of this chapter and217.216, a LOA may be modified without prior notice or oppor tunity for public comment. Notice would be published in the FEDERAL REGISTER within thirty days of the ac tion. §§ 217.218–217.219 [Reserved] Subpart X [Reserved] Subparts Z–[Reserved] PART 218—REGULATIONS GOV ERNING THE TAKING AND IM PORTING OF MARINE MAM MALS Subpart A—Taking and Importing Marine Mammals Incidental to U.S. Navy Con struction at Naval Station Norfolk in Norfolk, Virginia Sec. 218.1 Specified activity and geographical re gion. 218.2 Effective dates. 218.3 Permissible methods of taking. 218.4 Prohibitions. 218.5 Mitigation requirements. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00193 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R