[Title 50 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2013 Edition]
[From the U.S. Government Printing Office]



[[Page i]]

          

          Title 50

Wildlife and Fisheries


________________________

Parts 200 to 227

                         Revised as of October 1, 2013

          Containing a codification of documents of general 
          applicability and future effect

          As of October 1, 2013
                    Published by the Office of the Federal Register 
                    National Archives and Records Administration as a 
                    Special Edition of the Federal Register

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                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 50:
          Chapter II--National Marine Fisheries Service, 
          National Oceanic and Atmospheric Administration, 
          Department of Commerce                                     3
  Finding Aids:
      Table of CFR Titles and Chapters........................     869
      Alphabetical List of Agencies Appearing in the CFR......     889
      List of CFR Sections Affected...........................     899

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                     ----------------------------

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 50 CFR 216.1 refers 
                       to title 50, part 216, 
                       section 1.

                     ----------------------------

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                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, July 1, 2013), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
exercised by the user in determining the actual effective date. In 
instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

PAST PROVISIONS OF THE CODE

    Provisions of the Code that are no longer in force and effect as of 
the revision date stated on the cover of each volume are not carried. 
Code users may find the text of provisions in effect on any given date 
in the past by using the appropriate List of CFR Sections Affected 
(LSA). For the convenience of the reader, a ``List of CFR Sections 
Affected'' is published at the end of each CFR volume. For changes to 
the Code prior to the LSA listings at the end of the volume, consult 
previous annual editions of the LSA. For changes to the Code prior to 
2001, consult the List of CFR Sections Affected compilations, published 
for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.

``[RESERVED]'' TERMINOLOGY

    The term ``[Reserved]'' is used as a place holder within the Code of 
Federal Regulations. An agency may add regulatory information at a 
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used 
editorially to indicate that a portion of the CFR was left vacant and 
not accidentally dropped due to a printing or computer error.

INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
established by statute and allows Federal agencies to meet the 
requirement to publish regulations in the Federal Register by referring 
to materials already published elsewhere. For an incorporation to be 
valid, the Director of the Federal Register must approve it. The legal 
effect of incorporation by reference is that the material is treated as 
if it were published in full in the Federal Register (5 U.S.C. 552(a)). 
This material, like any other properly issued regulation, has the force 
of law.
    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
process.
    (c) The incorporating document is drafted and submitted for 
publication in accordance with 1 CFR part 51.
    What if the material incorporated by reference cannot be found? If 
you have any problem locating or obtaining a copy of material listed as 
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contacting the agency, you find the material is not available, please 
notify the Director of the Federal Register, National Archives and 
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or call 202-741-6010.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Authorities 
and Rules. A list of CFR titles, chapters, subchapters, and parts and an 
alphabetical list of agencies publishing in the CFR are also included in 
this volume.

[[Page vii]]

    An index to the text of ``Title 3--The President'' is carried within 
that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
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    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

REPUBLICATION OF MATERIAL

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in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
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the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-741-6000 
or write to the Director, Office of the Federal Register, National 
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ELECTRONIC SERVICES

    The full text of the Code of Federal Regulations, the LSA (List of 
CFR Sections Affected), The United States Government Manual, the Federal 
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register.
    The e-CFR is a regularly updated, unofficial editorial compilation 
of CFR material and Federal Register amendments, produced by the Office 
of the Federal Register and the Government Printing Office. It is 
available at www.ecfr.gov.

    Charles A. Barth,
    Director,
    Office of the Federal Register.
    July 1, 2013.







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                               THIS TITLE

    Title 50--Fish and Wildlife is composed of nine volumes. The parts 
in these volumes are arranged in the following order: Parts 1-16; part 
17 (17.1 to 17.95(b)), part 17 (17.95(c) to end of 17.95), part 17 
(17.96 to 17.99(h)), part 17 (17.99(i) to end of part 17), parts 18-199, 
parts 200-599, parts 600-659, and part 660 to end. The first six volumes 
consist of parts 1-16, part 17 (17.1 to 17.95(b)), part 17 (17.95(c) to 
end of 17.95), part 17 (17.96 to 17.99(h)), part 17 (17.99(i) to end of 
part 17), and parts 18-199 and contain the current regulations issued 
under chapter I--United States Fish and Wildlife Service, Department of 
the Interior. The seventh volume (parts 200-599) contains the current 
regulations issued under chapter II--National Marine Fisheries Service, 
National Oceanic and Atmospheric Administration, Department of Commerce; 
chapter III--International Fishing and Related Activities, chapter IV--
Joint Regulations (United States Fish and Wildlife Service, Department 
of the Interior and National Marine Fisheries Service, National Oceanic 
and Atmospheric Administration, Department of Commerce); Endangered 
Species Committee regulations; and chapter V--Marine Mammal Commission. 
The eighth and ninth volumes (parts 600-659 and part 660 to end) contain 
the current regulations issued under chapter VI--Fishery Conservation 
and Management, National Oceanic and Atmospheric Administration, 
Department of Commerce. The contents of these volumes represent all 
current regulations codified under this title of the CFR as of October 
1, 2013.

    Alphabetical listings of endangered and threatened wildlife and 
plants appear in Sec. Sec.  17.11 and 17.12.

    The OMB control numbers for the National Oceanic and Atmospheric 
Administration appear in 15 CFR 902.1.

    For this volume, Jonn V. Lilyea was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of 
Michael L. White, assisted by Ann Worley.

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                    TITLE 50--WILDLIFE AND FISHERIES




                  (This book contains parts 200 to 599)

  --------------------------------------------------------------------
                                                                    Part

chapter ii--National Marine Fisheries Service, National 
  Oceanic and Atmospheric Administration, Department of 
  Commerce..................................................         216

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  CHAPTER II--NATIONAL MARINE FISHERIES SERVICE, NATIONAL OCEANIC AND 
           ATMOSPHERIC ADMINISTRATION, DEPARTMENT OF COMMERCE




  --------------------------------------------------------------------

               SUBCHAPTER A--GENERAL PROVISIONS [RESERVED]
       SUBCHAPTER B--NORTH PACIFIC COMMERCIAL FISHERIES [RESERVED]
                      SUBCHAPTER C--MARINE MAMMALS
Part                                                                Page
216             Regulations governing the taking and 
                    importing of marine mammals.............           5
217             Regulations governing the take of marine 
                    mammals incidental to specified 
                    activities..............................         120
218             Regulations governing the taking and 
                    importing of marine mammals.............         152
219-220         [Reserved]

221             Prescriptions in FERC hydropower licenses...         260
222             General endangered and threatened marine 
                    species.................................         280
223             Threatened marine and anadromous species....         305
224             Endangered marine and anadromous species....         401
225             [Reserved]

226             Designated critical habitat.................         412

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               SUBCHAPTER A_GENERAL PROVISIONS [RESERVED]





       SUBCHAPTER B_NORTH PACIFIC COMMERCIAL FISHERIES [RESERVED]





                       SUBCHAPTER C_MARINE MAMMALS





PART 216_REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS--Table of Contents



                         Subpart A_Introduction

Sec.
216.1 Purpose of regulations.
216.2 Scope of regulations.
216.3 Definitions.
216.4 Other laws and regulations.
216.5 Payment of penalty.
216.6 Forfeiture and return of seized property.
216.7 Holding and bonding.
216.8 Enforcement officers.

                         Subpart B_Prohibitions

216.11 Prohibited taking.
216.12 Prohibited importation.
216.13 Prohibited uses, possession, transportation, sales, and permits.
216.14 Marine mammals taken before the MMPA.
216.15 Depleted species.
216.16 Prohibitions under the General Authorization for Level B 
          harassment for scientific research.
216.17 General prohibitions.

                      Subpart C_General Exceptions

216.21 Actions permitted by international treaty, convention, or 
          agreement.
216.22 Taking by State or local government officials.
216.23 Native exceptions.
216.24 Taking and related acts incidental to commercial fishing 
          operations by tuna purse seine vessels in the eastern tropical 
          Pacific Ocean.
216.25 Exempted marine mammals and marine mammal products.
216.26 Collection of certain marine mammal parts without prior 
          authorization.
216.27 Release, non-releasability, and disposition under special 
          exception permits for rehabilitated marine mammals.

                      Subpart D_Special Exceptions

216.30 [Reserved]
216.31 Definitions.
216.32 Scope.
216.33 Permit application submission, review, and decision procedures.
216.34 Issuance criteria.
216.35 Permit restrictions.
216.36 Permit conditions.
216.37 Marine mammal parts.
216.38 Reporting.
216.39 Permit amendments.
216.40 Penalties and permit sanctions.
216.41 Permits for scientific research and enhancement.
216.42 Photography. [Reserved]
216.43 Public display. [Reserved]
216.44 Applicability/transition.
216.45 General Authorization for Level B harassment for scientific 
          research.
216.46 U.S. citizens on foreign flag vessels operating under the 
          International Dolphin Conservation Program.
216.47 Access to marine mammal tissue, analyses, and data.
216.48-216.49 [Reserved]

                       Subpart E_Designated Ports

216.50 Importation at designated ports.

       Subpart F_Pribilof Islands, Taking for Subsistence Purposes

216.71 Allowable take of fur seals.
216.72 Restrictions on taking.
216.73 Disposition of fur seal parts.
216.74 Cooperation with Federal officials.

                Subpart G_Pribilof Islands Administration

216.81 Visits to fur seal rookeries.
216.82 Dogs prohibited.
216.83 Importation of birds or mammals.
216.84 [Reserved]
216.85 Walrus and Otter Islands.
216.86 Local regulations.
216.87 Wildlife research.

                  Subpart H_Dolphin Safe Tuna Labeling

216.90 Purposes.
216.91 Dolphin-safe labeling standards.
216.92 Dolphin-safe requirements for tuna harvested in the ETP by large 
          purse seine vessels.
216.93 Tracking and verification program.
216.94 False statements or endorsements.
216.95 Official mark for ``Dolphin-safe'' tuna products.

 Subpart I_General Regulations Governing Small Takes of Marine Mammals 
                   Incidental to Specified Activities

216.101 Purpose.

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216.102 Scope.
216.103 Definitions.
216.104 Submission of requests.
216.105 Specific regulations.
216.106 Letter of Authorization.
216.107 Incidental harassment authorization for Arctic waters.
216.108 Requirements for monitoring and reporting under incidental 
          harassment authorizations for Arctic waters.

Subpart J [Reserved]

Subpart K_Taking Of Marine Mammals Incidental To Space Vehicle And Test 
                            Flight Activities

216.120 Specified activity and specified geographical region.
216.121 Effective dates.
216.122 Permissible methods of taking.
216.123 Prohibitions.
216.124 Mitigation.
216.125 Requirements for monitoring and reporting.
216.126 Applications for Letters of Authorization.
216.127 Letters of Authorization.
216.128 Renewal of Letters of Authorization.
216.129 Modifications of Letters of Authorization.

Subparts L-M [Reserved]

    Subpart N_Taking Of Marine Mammals Incidental To Missile Launch 
                 Activities from San Nicolas Island, CA

216.150 Specified activity and specified geographical region.
216.151 Effective dates.
216.152 Permissible methods of taking.
216.153 Prohibitions.
216.154 Mitigation.
216.155 Requirements for monitoring and reporting.
216.156 Applications for Letters of Authorization.
216.157 Letters of Authorization.
216.158 Renewal of Letters of Authorization.
216.159 Modifications of Letters of Authorization.

Subpart O [Reserved]

Subpart P_Taking Marine Mammals Incidental to U.S. Navy Training in the 
                       Hawaii Range Complex (HRC)

216.170 Specified activity and specified geographical region.
216.171 Effective dates and definitions.
216.172 Permissible methods of taking.
216.173 Prohibitions.
216.174 Mitigation.
216.175 Requirements for monitoring and reporting.
216.176 Applications for Letters of Authorization.
216.177 Letters of Authorization.
216.178 Renewal of Letters of Authorization.
216.179 Modifications to Letters of Authorization.

Subparts Q-U [Reserved]

  Subpart V_Taking and Importing Marine Mammals; U.S. Navy's Atlantic 
                   Fleet Active Sonar Training (AFAST)

216.240 Specified activity and specified geographical region.
216.241 Effective dates and definitions.
216.242 Permissible methods of taking.
216.243 Prohibitions.
216.244 Mitigation.
216.245 Requirements for monitoring and reporting.
216.246 Applications for Letters of Authorization.
216.247 Letters of Authorization.
216.248 Renewal of Letters of Authorization and Adaptive Management.
216.249 Modifications to Letters of Authorization.

Subpart W [Reserved]

Subpart X_Taking Marine Mammals Incidental to U.S. Navy Training in the 
                    Southern California Range Complex

216.270 Specified activity and specified geographical region.
216.271 Effective dates and definitions.
216.272 Permissible methods of taking.
216.273 Prohibitions.
216.274 Mitigation.
216.275 Requirements for monitoring and reporting.
216.276 Applications for Letters of Authorization.
216.277 Letters of Authorization.
216.278 Renewal of Letters of Authorization.
216.279 Modifications to Letters of Authorization.

    Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.

    Source: 39 FR 1852, Jan. 15, 1974, unless otherwise noted.
    Note to part 216: See also 50 CFR parts 228 and 229 for regulations 
governing certain incidental takings of marine mammals.



                         Subpart A_Introduction



Sec.  216.1  Purpose of regulations.

    The regulations in this part implement the Marine Mammal Protection 
Act of 1972, 86 Stat. 1027, 16 U.S.C. 1361-1407, Pub. L. 92-522, which, 
among other

[[Page 7]]

things, restricts the taking, possession, transportation, selling, 
offering for sale, and importing of marine mammals.



Sec.  216.2  Scope of regulations.

    This part 216 applies solely to marine mammals and marine mammal 
products as defined inSec. 216.3. For regulations under the MMPA, with 
respect to other marine mammals and marine mammal products, see 50 CFR 
part 18.

[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50375, Oct. 3, 1994]



Sec.  216.3  Definitions.

    In addition to definitions contained in the MMPA, and unless the 
context otherwise requires, in this part 216:
    Acts means, collectively, the Marine Mammal Protection Act of 1972, 
as amended, 16 U.S.C. 1361 et seq., the Endangered Species Act of 1973, 
as amended, 16 U.S.C. 1531 et seq., and the Fur Seal Act of 1966, as 
amended, 16 U.S.C. 1151 et seq.
    Active sportfishing means paying passengers have their terminal 
fishing gear (lures, hooks, etc.) in the water in an attempt to catch 
fish or, in the case of fishing involving chumming, fishing is 
considered to be in progress from the instant fish have been sighted 
taking bait (boiling) during that chumming process.
    Administrator, Southwest Region means the Regional Administrator, 
Southwest Region, National Marine Fisheries Service, 501 W. Ocean Blvd., 
Suite 4200, Long Beach, CA 90802-4213, or his or her designee.
    Agreement on the International Dolphin Conservation Program 
(Agreement on the IDCP) means the Agreement establishing the formal 
binding IDCP that was signed in Washington, DC on May 21, 1998.
    Alaskan Native means a person defined in the Alaska Native Claims 
Settlement Act (43 U.S.C. 1602(b)) (85 Stat. 588) as a citizen of the 
United States who is of one-fourth degree or more Alaska Indian 
(including Tsimishian Indians enrolled or not enrolled in the Metlaktla 
Indian Community), Eskimo, or Aleut blood or combination thereof. The 
term includes any Native, as so defined, either or both of whose 
adoptive parents are not Natives. It also includes, in the absence of 
proof of a minimum blood quantum, any citizen of the United States who 
is regarded as an Alaska Native by the Native village or group, of which 
he claims to be a member and whose father or mother is (or, if deceased, 
was) regarded as Native by any Native village or Native group. Any such 
citizen enrolled by the Secretary of the Interior pursuant to section 5 
of the Alaska Native Claims Settlement Act shall be conclusively 
presumed to be an Alaskan Native for purposes of this part.
    Albacore tuna means the species Thunnus alalunga.
    Article of handicraft means items made by an Indian, Aleut or Eskimo 
from the nonedible byproducts of fur seals taken for personal or family 
consumption which--
    (1) Were commonly produced by Alaskan Natives on or before October 
14, 1983;
    (2) Are composed wholly or in some significant respect of natural 
materials, and;
    (3) Are significantly altered from their natural form and which are 
produced, decorated, or fashioned in the exercise of traditional native 
handicrafts without the use of pantographs, multiple carvers, or similar 
mass copying devices. Improved methods of production utilizing modern 
implements such as sewing machines or modern tanning techniques at a 
tannery registered pursuant toSec. 216.23(c) may be used so long as no 
large scale mass production industry results. Traditional native 
handicrafts include, but are not limited to, weaving, carving, 
stitching, sewing, lacing, beading, drawing, and painting. The formation 
of traditional native groups, such as a cooperative, is permitted so 
long as no large scale mass production results.
    Assistant Administrator means the Assistant Administrator for 
Fisheries, National Marine Fisheries Service, National Oceanic and 
Atmospheric Administration, Silver Spring, MD 20910, or his/her 
designee.
    Authentic native articles of handicrafts and clothing means items 
made by an Indian, Aleut or Eskimo which (a) were commonly produced on 
or before December 21, 1972, and (b) are composed wholly or in some 
significant respect of

[[Page 8]]

natural materials, and (c) are significantly altered from their natural 
form and which are produced, decorated, or fashioned in the exercise of 
traditional native handicrafts without the use of pantographs, multiple 
carvers, or similar mass copying devices. Improved methods of production 
utilizing modern implements such as sewing machines or modern tanning 
techniques at a tannery registered pursuant toSec. 216.23(c) may be 
used so long as no large scale mass production industry results. 
Traditional native handicrafts include, but are not limited to, weaving, 
carving, stitching, sewing, lacing, beading, drawing, and painting. The 
formation of traditional native groups, such as a cooperative, is 
permitted so long as no large scale mass production results.
    Bigeye tuna means the species Thunnus obesus.
    Bluefin tuna means the species Thunnus thynnus or Thunnus 
orientalis.
    Bona fide scientific research: (1) Means scientific research on 
marine mammals conducted by qualified personnel, the results of which:
    (i) Likely would be accepted for publication in a refereed 
scientific journal;
    (ii) Are likely to contribute to the basic knowledge of marine 
mammal biology or ecology. (Note: This includes, for example, marine 
mammal parts in a properly curated, professionally accredited scientific 
collection); or
    (iii) Are likely to identify, evaluate, or resolve conservation 
problems.
    (2) Research that is not on marine mammals, but that may 
incidentally take marine mammals, is not included in this definition 
(see sections 101(a)(3)(A), 101(a)(5)(A), and 101(a)(5)(D) of the MMPA, 
and sections 7(b)(4) and 10(a)(1)(B) of the ESA).
    Carrying capacity means the Regional Director's determination of the 
maximum amount of fish that a vessel can carry in short tons based on 
the greater of the amount indicated by the builder of the vessel, a 
marine surveyor's report, or the highest amount reported landed from any 
one trip.
    Certified charter vessel means a fishing vessel of a non-U.S. flag 
nation, which is operating under the jurisdiction of the marine mammal 
laws and regulations of another, harvesting, nation by a formal 
declaration entered into by mutual agreement of the nations.
    Co-investigator means the on-site representative of a principal 
investigator.
    Commercial fishing operation means the lawful harvesting of fish 
from the marine environment for profit as part of an ongoing business 
enterprise. Such terms may include licensed commercial passenger fishing 
vessel (as defined) activities, but no other sportfishing activities, 
whether or not the fish so caught are subsequently sold.
    Commercial passenger fishing vessel means any vessel licensed for 
commercial passenger fishing purposes within the State out of which it 
is operating and from which, while under charter or hire, persons are 
legally permitted to conduct sportfishing activities.
    Custody means holding a live marine mammal pursuant to the 
conditional authority granted under the MMPA, and the responsibility 
therein for captive maintenance of the marine mammal.
    Declaration of Panama means the declaration signed in Panama City, 
Republic of Panama, on October 4, 1995.
    Director, Office of Protected Resources means Director, Office of 
Protected Resources, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910.
    Dolphin Mortality Limit (DML) means the maximum allowable number of 
incidental dolphin mortalities per calendar year assigned to a vessel, 
unless a shorter time period is specified.
    Endangered Species means a species or subspecies of marine mammal 
listed as ``endangered'' pursuant to the Endangered Species Act of 1973, 
87 Stat. 884, Pub. L. 93-205 (see part 17 of this title).
    ESA means the Endangered Species Act of 1973, as amended, 16 U.S.C. 
1531 et seq.
    ETP means the eastern tropical Pacific Ocean which includes the 
Pacific Ocean area bounded by 40[deg] N. latitude, 40[deg] S. latitude, 
160[deg] W. longitude and the coastlines of North, Central and South 
America.
    Facility means, in the context specific to captive marine mammals,: 
(1) One or more permanent primary enclosures used to hold marine mammals 
captive

[[Page 9]]

(i.e., pools, lagoons) and associated infrastructure (i.e., equipment 
and supplies necessary for the care and maintenance of marine mammals) 
where these enclosures are either located within the boundaries of a 
single contiguous parcel of land and water, or are grouped together 
within the same general area within which enclosure-to-enclosure 
transport is expected to be completed in less than one hour; or
    (2) A traveling display/exhibit, where the enclosure(s) and 
associated infrastructure is transported together with the marine 
mammals.
    Feeding is offering, giving, or attempting to give food or non-food 
items to marine mammals in the wild. It includes operating a vessel or 
providing other platforms from which feeding is conducted or supported. 
It does not include the routine discard of bycatch during fishing 
operations or the routine discharge of waste or fish byproducts from 
fish processing plants or other platforms if the discharge is otherwise 
legal and is incidental to operation of the activity.
    First exporter means the person or company that first exports the 
fish or fish product, or, in the case of shipments that are subject to 
the labeling requirements of 50 CFR part 247 and that only contain fish 
harvested by vessels of the United States, the first seller of the fish 
or fish product.
    Fisheries Certificate of Origin, or FCO, means NOAA Form 370, as 
described inSec. 216.24(f)(4).
    Force majeure means forces outside the vessel operator's or vessel 
owner's control that could not be avoided by the exercise of due care.
    FSA means the Fur Seal Act of 1966, as amended, 16 U.S.C. 1151 et 
seq.
    Fur seal means North Pacific fur seal, scientifically known as 
Callorhinus ursinus.
    Hard part means any bone, tooth, baleen, treated pelt, or other part 
of a marine mammal that is relatively solid or durable.
    Harvesting nation means the country under whose flag one or more 
fishing vessels are documented, or which has by formal declaration 
agreed to assert jurisdiction over one or more certified charter 
vessels, from which vessel(s) fish are caught that are a part of any 
cargo or shipment of fish to be imported into the United States, 
regardless of any intervening transshipments.
    Humane means the method of taking, import, export, or other activity 
which involves the least possible degree of pain and suffering 
practicable to the animal involved.
    Import means to land on, bring into, or introduce into, or attempt 
to land on, bring into, or introduce into, any place subject to the 
jurisdiction of the United States, whether or not such landing, 
bringing, or introduction constitutes an importation within the Customs 
laws of the United States; except that, for the purpose of any ban 
issued under 16 U.S.C. 1371(a)(2) on the importation of fish or fish 
products, the definition of ``import'' inSec. 216.24(f)(1)(ii) shall 
apply.
    Incidental catch means the taking of a marine mammal (1) because it 
is directly interfering with commercial fishing operations, or (2) as a 
consequence of the steps used to secure the fish in connection with 
commercial fishing operations: Provided, That a marine mammal so taken 
must immediately be returned to the sea with a minimum of injury and 
further, that the taking of a marine mammal, which otherwise meets the 
requirements of this definition shall not be considered an incidental 
catch of that mammal if it is used subsequently to assist in commercial 
fishing operations.
    Intentional purse seine set means that a tuna purse seine vessel or 
associated vessels chase marine mammals and subsequently make a purse 
seine set.
    International Dolphin Conservation Program (IDCP) means the 
international program established by the agreement signed in La Jolla, 
California, in June 1992, as formalized, modified, and enhanced in 
accordance with the Declaration of Panama and the Agreement on the IDCP.
    International Dolphin Conservation Program Act (IDCPA) means Public 
Law 105-42, enacted into law on August 15, 1997.
    International Review Panel (IRP) means the International Review 
Panel established by the Agreement on the IDCP.

[[Page 10]]

    Intrusive research means a procedure conducted for bona fide 
scientific research involving: A break in or cutting of the skin or 
equivalent, insertion of an instrument or material into an orifice, 
introduction of a substance or object into the animal's immediate 
environment that is likely either to be ingested or to contact and 
directly affect animal tissues (i.e., chemical substances), or a 
stimulus directed at animals that may involve a risk to health or 
welfare or that may have an impact on normal function or behavior (i.e., 
audio broadcasts directed at animals that may affect behavior). For 
captive animals, this definition does not include:
    (1) A procedure conducted by the professional staff of the holding 
facility or an attending veterinarian for purposes of animal husbandry, 
care, maintenance, or treatment, or a routine medical procedure that, in 
the reasonable judgment of the attending veterinarian, would not 
constitute a risk to the health or welfare of the captive animal; or
    (2) A procedure involving either the introduction of a substance or 
object (i.e., as described in this definition) or a stimulus directed at 
animals that, in the reasonable judgment of the attending veterinarian, 
would not involve a risk to the health or welfare of the captive animal.
    Label means a display of written, printed, or graphic matter on or 
affixed to the immediate container of any article.
    Land or landing means to begin offloading any fish, to arrive in 
port with the intention of offloading fish, or to cause any fish to be 
offloaded.
    Large-scale driftnet means a gillnet that is composed of a panel or 
panels of webbing, or a series of such gillnets, with a total length of 
2.5 kilometers or more that is used on the high seas and allowed to 
drift with the currents and winds for the purpose of harvesting fish by 
entangling the fish in the webbing of the net.
    Level A Harassment means any act of pursuit, torment, or annoyance 
which has the potential to injure a marine mammal or marine mammal stock 
in the wild.
    Level B Harassment means any act of pursuit, torment, or annoyance 
which has the potential to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering but which does not have the potential to injure a 
marine mammal or marine mammal stock in the wild.
    Longtail tuna means the species Thunnus tonngol.
    Marine environment means the oceans and the seas, including 
estuarine and brackish waters.
    Marine mammal means those specimens of the following orders, which 
are morphologically adapted to the marine environment, and whether alive 
or dead, and any part thereof, including but not limited to, any raw, 
dressed or dyed fur or skin: Cetacea (whales, dolphins, and porpoises) 
and Pinnipedia, other than walrus (seals and sea lions).
    MMPA means the Marine Mammal Protection Act of 1972, as amended, 16 
U.S.C. 1361 et seq.
    Native village or town means any community, association, tribe, 
band, clan or group.
    Optimum sustainable population is a population size which falls 
within a range from the population level of a given species or stock 
which is the largest supportable within the ecosystem to the population 
level that results in maximum net productivity. Maximum net productivity 
is the greatest net annual increment in population numbers or biomass 
resulting from additions to the population due to reproduction and/or 
growth less losses due to natural mortality.
    Per-stock per-year dolphin mortality limit means the maximum 
allowable number of incidental dolphin mortalities and serious injuries 
from a specified stock per calendar year, as established under the IDCP.
    Pregnant means pregnant near term.
    Pribilovians means Indians, Aleuts, and Eskimos who live on the 
Pribilof Islands.
    Principal investigator means the individual primarily responsible 
for the taking, importation, export, and any related activities 
conducted under a

[[Page 11]]

permit issued for scientific research or enhancement purposes.
    Public display means an activity that provides opportunities for the 
public to view living marine mammals at a facility holding marine 
mammals captive.
    Regional Director means the Regional Administrator, Northeast 
Regional Office, NMFS, One Blackburn Drive, Gloucester, MA 01930; or 
Regional Administrator, Northwest Regional Office, NMFS, 7600 Sandpoint 
Way, N.E., Building 1, Seattle, WA 98115; or Regional Administrator, 
Southeast Regional Office, NMFS, 9721 Executive Center Drive North, St. 
Petersburg, FL 33702; or Regional Administrator, Southwest Regional 
Office, NMFS, 501 West Ocean Boulevard, Suite 4200, Long Beach, CA 
90802; or Regional Administrator, Pacific Islands Regional Office, NMFS, 
1601 Kapiolani Boulevard, Suite 1110, Honolulu, HI 96814; or Regional 
Administrator, Alaska Regional Office, NMFS, PO Box 21668, Juneau, AK 
99802.
    Rehabilitation means treatment of beached and stranded marine 
mammals taken under section 109(h)(1) of the MMPA or imported under 
section 109(h)(2) of the MMPA, with the intent of restoring the marine 
mammal's health and, if necessary, behavioral patterns.
    Secretary shall mean the Secretary of Commerce or his authorized 
representative.
    Serious injury means any injury that will likely result in 
mortality.
    Sexual harassment means any unwelcome sexual advance, request for 
sexual favors, or other verbal and physical conduct of a sexual nature 
which has the purpose or effect of substantially interfering with an 
individual's work performance or creating an intimidating, hostile, or 
offensive working environment.
    Skipjack tuna means the species Euthynnus (Katsuwonus) pelamis.
    Soft part means any marine mammal part that is not a hard part. Soft 
parts do not include urine or fecal material.
    South Pacific Ocean means any waters of the Pacific Ocean that lie 
south of the equator.
    South Pacific Tuna Treaty means the Treaty on Fisheries Between the 
Governments of Certain Pacific Island States and the Government of the 
United States of America (50 CFR part 300, subpart D).
    Southern bluefin tuna means the species Thunnus maccoyii.
    Stranded or stranded marine mammal means a marine mammal specimen 
under the jurisdiction of the Secretary:
    (1) If the specimen is dead, and is on a beach or shore, or is in 
the water within the Exclusive Economic Zone of the United States; or
    (2) If the specimen is alive, and is on a beach or shore and is 
unable to return to the water, or is in the water within the Exclusive 
Economic Zone of the United States where the water is so shallow that 
the specimen is unable to return to its natural habitat under its own 
power.
    Subsistence means the use of marine mammals taken by Alaskan Natives 
for food, clothing, shelter, heating, transportation, and other uses 
necessary to maintain the life of the taker or those who depend upon the 
taker to provide them with such subsistence.
    Subsistence uses means the customary and traditional uses of fur 
seals taken by Pribilovians for direct personal or family consumption as 
food, shelter, fuel, clothing, tools or transportation; for the making 
and selling of handicraft articles out of nonedible byproducts of fur 
seals taken for personal or family consumption; and for barter, or 
sharing for personal or family consumption. As used in this definition--
    (1) Family means all persons related by blood, marriage, or 
adoption, or any person living within a household on a permanent basis.
    (2) Barter means the exchange of fur seals or their parts, taken for 
subsistence uses--
    (i) For other wildlife or fish or their parts, or
    (ii) For other food or for nonedible items other than money if the 
exchange is of a limited and noncommercial nature.
    Take means to harass, hunt, capture, collect, or kill, or attempt to 
harass, hunt, capture, collect, or kill any marine mammal. This 
includes, without limitation, any of the following: The collection of 
dead animals, or parts thereof; the restraint or detention of a marine 
mammal, no matter how temporary; tagging a marine mammal; the

[[Page 12]]

negligent or intentional operation of an aircraft or vessel, or the 
doing of any other negligent or intentional act which results in 
disturbing or molesting a marine mammal; and feeding or attempting to 
feed a marine mammal in the wild.
    Threatened species means a species of marine mammal listed as 
``threatened'' pursuant to the Endangered Species Act of 1973, 87 Stat. 
884, Pub. L. 93-205.
    Trip means a voyage starting when a vessel leaves port with all fish 
wells empty of fish and ending when a vessel unloads all of its fish.
    Tuna means any fish of the genus Thunnus and the species Euthynnus 
(Katsuwonus) pelamis.
    Tuna product means any food product processed for retail sale and 
intended for human or animal consumption that contains an item listed in 
Sec.  216.24(f)(2)(i) or (ii), but does not include perishable items 
with a shelf life of less than 3 days.
    Wasteful manner means any taking or method of taking which is likely 
to result in the killing of marine mammals beyond those needed for 
subsistence, subsistence uses, or for the making of authentic native 
articles of handicrafts and clothing, or which results in the waste of a 
substantial portion of the marine mammal and includes, without 
limitation, the employment of a method of taking which is not likely to 
assure the capture or killing of a marine mammal, or which is not 
immediately followed by a reasonable effort to retrieve the marine 
mammal.
    Yellowfin tuna means the species Thunnus albacares (synonomy: 
Neothunnus macropterus).

[39 FR 1852, Jan. 15, 1974]

    Editorial Note: For Federal Register citations affectingSec. 
216.3, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and at www.fdsys.gov.



Sec.  216.4  Other laws and regulations.

    (a) Federal. Nothing in this part, nor any permit issued under 
authority of this part, shall be construed to relieve a person from any 
other requirements imposed by a statute or regulation of the United 
States, including any applicable statutes or regulations relating to 
wildlife and fisheries, health, quarantine, agriculture, or customs.
    (b) State laws or regulations. See part 403 of this chapter.

[39 FR 1852, Jan. 15, 1974, as amended at 41 FR 36662, Aug. 31, 1976; 58 
FR 65134, Dec. 13, 1993]



Sec.  216.5  Payment of penalty.

    The respondent shall have 30 days from receipt of the final 
assessment decision within which to pay the penalty assessed. Upon a 
failure to pay the penalty, the Secretary may request the Attorney 
General to institute a civil action in the appropriate United States 
District Court to collect the penalty.

[39 FR 1852, Jan. 15, 1974. Redesignated at 46 FR 61652, Dec. 18, 1981]



Sec.  216.6  Forfeiture and return of seized property.

    (a) Whenever any cargo or marine mammal or marine mammal product has 
been seized pursuant to section 107 of the MMPA, the Secretary shall 
expedite any proceedings commenced under these regulations.
    (b) Whenever a civil penalty has been assessed by the Secretary 
under these regulations, any cargo, marine mammal, or marine mammal 
product seized pursuant to section 107 of the MMPA shall be subject to 
forfeiture. If respondent voluntarily forfeits any such seized property 
or the monetary value thereof without court proceedings, the Secretary 
may apply the value thereof, if any, as determined by the Secretary, 
toward payment of the civil penalty.
    (c) Whenever a civil penalty has been assessed under these 
regulations, and whether or not such penalty has been paid, the 
Secretary may request the Attorney General to institute a civil action 
in an appropriate United States District Court to compel forfeiture of 
such seized property or the monetary value thereof to the Secretary for 
disposition by him in such manner as he deems appropriate. If no 
judicial action to compel forfeiture is commenced within 30 days after 
final decision-making assessment of a civil penalty, pursuant toSec. 
216.60, such seized property shall immediately be returned to the 
respondent.
    (d) If the final decision of the Secretary under these regulations 
is that

[[Page 13]]

respondent has committed no violation of the MMPA or of any permit or 
regulations issued thereunder, any marine mammal, marine mammal product, 
or other cargo seized from respondent in connection with the proceedings 
under these regulations, or the bond or other monetary value substituted 
therefor, shall immediately be returned to the respondent.
    (e) If the Attorney General commences criminal proceedings pursuant 
to section 105(b) of the MMPA, and such proceedings result in a finding 
that the person accused is not guilty of a criminal violation of the 
MMPA, the Secretary may institute proceedings for the assessment of a 
civil penalty under this part: Provided, That if no such civil penalty 
proceedings have been commenced by the Secretary within 30 days 
following the final disposition of the criminal case, any property 
seized pursuant to section 107 of the MMPA shall be returned to the 
respondent.
    (f) If any seized property is to be returned to the respondent, the 
Regional Director shall issue a letter authorizing such return. This 
letter shall be dispatched to the respondent by registered mail, return 
receipt requested, and shall identify the respondent, the seized 
property, and, if appropriate, the bailee of the seized property. It 
shall also provide that upon presentation of the letter and proper 
identification, the seized property is authorized to be released. All 
charges for storage, care, or handling of the seized property accruing 5 
days or more after the date of the return receipt shall be for the 
account of the respondent: Provided, That if it is the final decision of 
the Secretary under these regulations that the respondent has committed 
the alleged violation, all charges which have accrued for the storage, 
care, or handling of the seized property shall be for the account of the 
respondent.

[39 FR 1852, Jan. 15, 1974. Redesignated at 46 FR 61652, Dec. 18, 1981, 
and amended at 59 FR 50375, Oct. 3, 1994]



Sec.  216.7  Holding and bonding.

    (a) Any marine mammal, marine mammal product, or other cargo seized 
pursuant to section 107 of the MMPA shall be delivered to the 
appropriate Regional Director of the National Marine Fisheries Service 
(seeSec. 201.2 of this title) or his designee, who shall either hold 
such seized property or arrange for the proper handling and care of such 
seized property.
    (b) Any arrangement for the handling and care of seized property 
shall be in writing and shall state the compensation to be paid. Subpart 
F of 15 CFR part 904 contains additional procedures that govern seized 
property that is subject to forfeiture or has been forfeited under the 
MMPA.

[39 FR 1852, Jan. 15, 1974. Redesignated at 46 FR 61652, Dec. 18, 1981, 
and amended at 50 FR 12785, Apr. 1, 1985; 59 FR 50375, Oct. 3, 1994]



Sec.  216.8  Enforcement officers.

    Enforcement Agents of the National Marine Fisheries Service shall 
enforce the provisions of the MMPA and may take any actions authorized 
by the MMPA with respect to enforcement. In addition, the Secretary may 
utilize, by agreement, the personnel, services, and facilities of any 
other Federal Agency for the purposes of enforcing this MMPA. Pursuant 
to the terms of section 107(b) of the MMPA, the Secretary may also 
designate officers and employees of any State or of any possession of 
the United States to enforce the provisions of this MMPA.

[39 FR 1852, Jan. 15, 1974. Redesignated at 46 FR 61652, Dec. 18, 1981, 
and amended at 59 FR 50375, Oct. 3, 1994]



                         Subpart B_Prohibitions



Sec.  216.11  Prohibited taking.

    Except as otherwise provided in subparts C, D, and I of this part 
216 or in part 228 or 229, it is unlawful for:
    (a) Any person, vessel, or conveyance subject to the jurisdiction of 
the United States to take any marine mammal on the high seas, or
    (b) Any person, vessel, or conveyance to take any marine mammal in 
waters or on lands under the jurisdiction of the United States, or
    (c) Any person subject to the jurisdiction of the United States to 
take

[[Page 14]]

any marine mammal during the moratorium.

[39 FR 1852, Jan. 15, 1974, as amended at 47 FR 21254, May 18, 1982; 54 
FR 21921, May 19, 1989]



Sec.  216.12  Prohibited importation.

    (a) Except as otherwise provided in subparts C and D of this part 
216, it is unlawful for any person to import any marine mammal or marine 
mammal product into the United States.
    (b) Regardless of whether an importation is otherwise authorized 
pursuant to subparts C and D of this part 216, it is unlawful for any 
person to import into the United States any:
    (1) Marine mammal:
    (i) Taken in violation of the MMPA, or
    (ii) Taken in another country in violation to the laws of that 
country;
    (2) Any marine mammal product if
    (i) The importation into the United States of the marine mammal from 
which such product is made would be unlawful under paragraph (b)(1) of 
this section, or
    (ii) The sale in commerce of such product in the country of origin 
if the product is illegal.
    (c) Except in accordance with an exception referred to in subpart C 
and Sec.Sec. 216.31 (regarding scientific research permits only) and 
216.32 of this part 216, it is unlawful to import into the United States 
any:
    (1) Marine mammal which was pregnant at the time of taking.
    (2) Marine mammal which was nursing at the time of taking, or less 
than 8 months old, whichever occurs later.
    (3) Specimen of an endangered or threatened species of marine 
mammal.
    (4) Specimen taken from a depleted species or stock of marine 
mammals, or
    (5) Marine mammal taken in an inhumane manner.
    (d) It is unlawful to import into the United States any fish, 
whether fresh, frozen, or otherwise prepared, if such fish was caught in 
a manner proscribed by the Secretary of Commerce for persons subject to 
the jurisdiction of the United States, whether or not any marine mammals 
were in fact taken incident to the catching of the fish.

[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50375, Oct. 3, 1994]



Sec.  216.13  Prohibited uses, possession, transportation, sales,
and permits.

    It is unlawful for:
    (a) Any person to use any port, harbor or other place under the 
jurisdiction of the United States for any purpose in any way connected 
with a prohibited taking or an unlawful importation of any marine mammal 
or marine mammal product; or
    (b) Any person subject to the jurisdiction of the United States to 
possess any marine mammal taken in violation of the MMPA or these 
regulations, or to transport, sell, or offer for sale any such marine 
mammal or any marine mammal product made from any such mammal.
    (c) Any person subject to the jurisdiction of the United States to 
use in a commercial fishery, any means or method of fishing in 
contravention of regulations and limitations issued by the Secretary of 
Commerce for that fishery to achieve the purposes of this MMPA.
    (d) Any person to violate any term, condition, or restriction of any 
permit issued by the Secretary.

[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50375, 50376, Oct. 3, 
1994; 61 FR 21933, May 10, 1996]



Sec.  216.14  Marine mammals taken before the MMPA.

    (a) Section 102(e) of the MMPA provides, in effect, that the MMPA 
shall not apply to any marine mammal taken prior to December 21, 1972, 
or to any marine mammal product, consisting of or composed in whole or 
in part of, any marine mammal taken before that date. This prior status 
of any marine mammal or marine mammal product may be established by 
submitting to the Director, National Marine Fisheries Service prior to, 
or at the time of importation, an affidavit containing the following:
    (1) The Affiant's name and address;
    (2) Identification of the Affiant;
    (3) A description of the marine mammals or marine mammal products 
which the Affiant desires to import;

[[Page 15]]

    (4) A statement by the Affiant that, to the best of his knowledge 
and belief, the marine mammals involved in the application were taken 
prior to December 21, 1972;
    (5) A statement by the Affiant in the following language:

    The foregoing is principally based on the attached exhibits which, 
to the best of my knowledge and belief, are complete, true and correct. 
I understand that this affidavit is being submitted for the purpose of 
inducing the Federal Government to permit the importation of--under the 
Marine Mammal Protection Act of 1972 (16 U.S.C. 1361 through 1407) and 
regulations promulgated thereunder, and that any false statements may 
subject me to the criminal penalties of 13 U.S.C. 1001, or to penalties 
under the Marine Mammal Protection Act of 1972.

    (b) Either one of two exhibits shall be attached to such affidavit, 
and will contain either:
    (1) Records or other available evidence showing that the product 
consists of or is composed in whole or in part of marine mammals taken 
prior to the effective date of the MMPA. Such records or other 
evidentiary material must include information on how, when, where, and 
by whom the animals were taken, what processing has taken place since 
taking, and the date and location of such processing; or
    (2) A statement from a government agency of the country of origin 
exercising jurisdiction over marine mammals that any and all such 
mammals from which the products sought to be imported were derived were 
taken prior to December 21, 1972.
    (c) No pre-Act marine mammal or pre-Act marine mammal product may be 
imported unless the requirements of this section have been fulfilled.
    (d) This section has no application to any marine mammal or marine 
mammal product intended to be imported pursuant to Sec.Sec. 216.21, 
216.31 orSec. 216.32.

[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50375, 50376, Oct. 3, 
1994]



Sec.  216.15  Depleted species.

    The following species or population stocks have been designated by 
the Assistant Administrator as depleted under the provisions of the 
MMPA.
    (a) Hawaiian monk seal (Monachus schauinslandi).
    (b) Bowhead whale (Balaena mysticetus).
    (c) North Pacific fur seal (Callorhinus ursinus). Pribilof Island 
population.
    (d) Bottlenose dolphin (Tursiops truncatus), coastal-migratory stock 
along the U.S. mid-Atlantic coast.
    (e) Eastern spinner dolphin (Stenella longirostris orientalis).
    (f) Northeastern offshore spotted dolphin (Stenella attenuata).
    (g) Cook Inlet, Alaska, stock of beluga whales (Delphinapterus 
leucas). The stock includes all beluga whales occurring in waters of the 
Gulf of Alaska north of 58[deg] North latitude including, but not 
limited to, Cook Inlet, Kamishak Bay, Chinitna Bay, Tuxedni Bay, Prince 
William Sound, Yakutat Bay, Shelikof Strait, and off Kodiak Island and 
freshwater tributaries to these waters.
    (h) Eastern North Pacific Southern Resident stock of killer whales 
(Orcinus orca). The stock includes all resident killer whales in pods J, 
K, and L in the waters of, but not limited to, the inland waterways of 
southern British Columbia and Washington, including the Georgia Strait, 
the Strait of Juan de Fuca, and Puget Sound.
    (i) AT1 stock of killer whales (Orcinus orca). The stock includes 
all killer whales belonging to the AT1 group of transient killer whales 
occurring primarily in waters of Prince William Sound, Resurrection Bay, 
and the Kenai Fjords region of Alaska.

[53 FR 17899, May 18, 1988, as amended at 58 FR 17791, Apr. 6, 1993; 58 
FR 45074, Aug. 26, 1993; 58 FR 58297, Nov. 1, 1993; 59 FR 50376, Oct. 3, 
1994; 65 FR 34597, May 31, 2000; 68 FR 31983, May 29, 2003; 69 FR 31324, 
June 3, 2004]



Sec.  216.16  Prohibitions under the General Authorization for Level
B harassment for scientific research.

    It shall be unlawful for any person to:
    (a) Provide false information in a letter of intent submitted 
pursuant toSec. 216.45(b);
    (b) Violate any term or condition imposed pursuant toSec. 
216.45(d).

[59 FR 50376, Oct. 3, 1994]



Sec.  216.17  General prohibitions.

    It is unlawful for any person to:

[[Page 16]]

    (a) Assault, resist, oppose, impede, intimidate, threaten, or 
interfere with any authorized officer in the conduct of any search, 
inspection, investigation or seizure in connection with enforcement of 
the MMPA, DPCIA, or IDCPA.
    (b) Interfere with, delay, or prevent by any means the apprehension 
of another person, knowing that such person has committed any act 
prohibited by the MMPA.
    (c) Resist a lawful arrest for any act prohibited under the MMPA.
    (d) Make any false statement, oral or written, to an authorized 
officer concerning any act under the jurisdiction of the MMPA, DPCIA, 
IDCPA, or attempt to do any of the above.
    (e) Interfere with, obstruct, delay, or prevent by any means an 
investigation, search, seizure, or disposition of seized property in 
connection with enforcement of the MMPA, DPCIA, or IDCPA.

[70 FR 19008, Apr. 12, 2005]



                      Subpart C_General Exceptions



Sec.  216.21  Actions permitted by international treaty, convention,
or agreement.

    The MMPA and these regulations shall not apply to the extent that 
they are inconsistent with the provisions of any international treaty, 
convention or agreement, or any statute implementing the same relating 
to the taking or importation of marine mammals or marine mammal 
products, which was existing and in force prior to December 21, 1972, 
and to which the United States was a party. Specifically, the 
regulations in subpart B of this part and the provisions of the MMPA 
shall not apply to activities carried out pursuant to the Interim 
Convention on the Conservation of North Pacific Fur Seals signed at 
Washington on February 9, 1957, and the Fur Seal Act of 1966, 16 U.S.C. 
1151 through 1187, as in each case, from time to time amended.

[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50376, Oct. 3, 1994]



Sec.  216.22  Taking by State or local government officials.

    (a) A State or local government official or employee may take a 
marine mammal in the normal course of his duties as an official or 
employee, and no permit shall be required, if such taking:
    (1) Is accomplished in a humane manner;
    (2) Is for the protection or welfare of such mammal or for the 
protection of the public health or welfare; and
    (3) Includes steps designed to insure return of such mammal, if not 
killed in the course of such taking, to its natural habitat. In 
addition, any such official or employee may, incidental to such taking, 
possess and transport, but not sell or offer for sale, such mammal and 
use any port, harbor, or other place under the jurisdiction of the 
United States. All steps reasonably practicable under the circumstances 
shall be taken by any such employee or official to prevent injury or 
death to the marine mammal as the result of such taking. Where the 
marine mammal in question is injured or sick, it shall be permissible to 
place it in temporary captivity until such time as it is able to be 
returned to its natural habitat. It shall be permissible to dispose of a 
carcass of a marine mammal taken in accordance with this subsection 
whether the animal is dead at the time of taking or dies subsequent 
thereto.
    (b) Each taking permitted under this section shall be included in a 
written report to be submitted to the Secretary every six months 
beginning December 31, 1973. Unless otherwise permitted by the 
Secretary, the report shall contain a description of:
    (1) The animal involved;
    (2) The circumstances requiring the taking;
    (3) The method of taking;
    (4) The name and official position of the State official or employee 
involved;
    (5) The disposition of the animal, including in cases where the 
animal has been retained in captivity, a description of the place and 
means of confinement and the measures taken for its maintenance and 
care; and
    (6) Such other information as the Secretary may require.
    (c) Salvage of dead stranded marine mammals or parts therefrom and 
subsequent transfer.

[[Page 17]]

    (1) Salvage. In the performance of official duties, a state or local 
government employee; an employee of the National Marine Fisheries 
Service, the U.S. Fish and Wildlife Service, or any other Federal agency 
with jurisdiction and conservation responsibilities in marine shoreline 
areas; or a person authorized under 16 U.S.C. 1382(c) may take and 
salvage a marine mammal specimen if it is stranded and dead or it was 
stranded or rescued and died during treatment, transport, captivity or 
other rehabilitation subsequent to that stranding or distress if salvage 
is for the purpose of utilization in scientific research or for the 
purpose of maintenance in a properly curated, professionally accredited 
scientific collection.
    (2) Registration. A person salvaging a dead marine mammal specimen 
under this section must register the salvage of the specimen with the 
appropriate Regional Office of the National Marine Fisheries Service 
within 30 days after the taking or death occurs. The registration must 
include:
    (i) The name, address, and any official position of the individual 
engaged in the taking and salvage;
    (ii) A description of the marine mammal specimen salvaged including 
the scientific and common names of the species;
    (iii) A description of the parts salvaged;
    (iv) The date and the location of the taking;
    (v) Such other information as deemed necessary by the Assistant 
Administrator.
    (3) Identification and curation. The Regional Director will assign a 
single unique number to each carcass, and the parts thereof, that are 
salvaged under the provisions of this section. The person who salvaged 
the specimen may designate the number to be assigned. After this number 
is assigned, the person who salvaged the specimen must permanently mark 
that number on each separate hard part of that specimen and must affix 
that number with tags or labels to each soft part of that specimen or 
the containers in which that soft part is kept. Each specimen salvaged 
under this section must be curated in accordance with professional 
standards.
    (4) No sale or commercial trade. No person may sell or trade for 
commercial purposes any marine mammal specimen salvaged under this 
section.
    (5) Transfer without prior authorization. A person who salvages a 
marine mammal specimen under this section may transfer that specimen to 
another person if:
    (i) The person transferring the marine mammal specimen does not 
receive remuneration for the specimen;
    (ii) The person receiving the marine mammal specimen is an employee 
of the National Marine Fisheries Service, the U.S. Fish and Wildlife 
Service, or any other Federal agency with jurisdiction and conservation 
responsibilities in marine shoreline areas; is a person authorized under 
16 U.S.C. 1382(c); or is a person who has received prior authorization 
under paragraph (c)(6) of this section;
    (iii) The marine mammal specimen is transferred for the purpose of 
scientific research, for the purpose of maintenance in a properly 
curated, professionally accredited scientific collection, or for 
educational purposes;
    (iv) The unique number assigned by the National Marine Fisheries 
Service is on, marked on, or affixed to the marine mammal specimen or 
container; and
    (v) Except as provided under paragraph (c)(8) of this section, the 
person transferring the marine mammal specimen notifies the appropriate 
Regional Office of the National Marine Fisheries Service of the 
transfer, including notification of the number of the specimen 
transferred and the person to whom the specimen was transferred, within 
30 days after the transfer occurs.
    (6) Other transfers within the United States. Except as provided 
under paragraphs (c)(5) and (c)(8) of this section, a person who 
salvages a marine mammal specimen, or who has received a marine mammal 
specimen under the provisions of this section, may not transfer that 
specimen to another person within the United States unless the Regional 
Director of the appropriate Regional Office of the National Marine 
Fisheries

[[Page 18]]

Service grants prior written authorization for the transfer. The 
Regional Director may grant authorization for the transfer if there is 
evidence that the conditions listed under paragraphs (c)(5)(i), 
(c)(5)(iii), and (c)(5)(iv) of this section are met.
    (7) Tranfers outside of the United States. A person who salvages a 
marine mammal specimen, or a person who has received a marine mammal 
specimen under the provisions of this section, may not transfer that 
specimen to a person outside of the United States unless the Assistant 
Administrator grants prior written authorization for the transfer. The 
Assistant Administrator may grant authorization for the transfer if 
there is evidence that the conditions listed under paragraphs (c)(5)(i), 
(c)(5)(iii), and (c)(5)(iv) of this section are met.
    (8) Exceptions to requirements for notification or prior 
authorization. A person may transfer a marine mammal specimen salvaged 
under this section without the notification required in paragraph 
(c)(5)(v) of this section or the prior authorization required in 
paragraph (c)(6) of this section if:
    (i) The transfer is a temporary transfer to a laboratory or research 
facility within the United States so that analyses can be performed for 
the person salvaging the specimen; or
    (ii) The transfer is a loan of not more than 1 year to another 
professionally accredited scientific collection within the United 
States.

[39 FR 1852, Jan. 15, 1974, as amended at 56 FR 41307, Aug. 20, 1991]



Sec.  216.23  Native exceptions.

    (a) Taking. Notwithstanding the prohibitions of subpart B of this 
part 216, but subject to the restrictions contained in this section, any 
Indian, Aleut, or Eskimo who resides on the coast of the North Pacific 
Ocean or the Arctic Ocean may take any marine mammal without a permit, 
if such taking is:
    (1) By Alaskan Natives who reside in Alaska for subsistence, or
    (2) For purposes of creating and selling authentic native articles 
of handicraft and clothing, and
    (3) In each case, not accomplished in a wasteful manner.
    (b) Restrictions. (1) No marine mammal taken for subsistence may be 
sold or otherwise transferred to any person other than an Alaskan Native 
or delivered, carried, transported, or shipped in interstate or foreign 
commerce, unless:
    (i) It is being sent by an Alaskan Native directly or through a 
registered agent to a tannery registered under paragraph (c) of this 
section for the purpose of processing, and will be returned directly or 
through a registered agent to the Alaskan Native; or
    (ii) It is sold or transferred to a registered agent in Alaska for 
resale or transfer to an Alaskan Native; or
    (iii) It is an edible portion and it is sold in an Alaskan Native 
village or town.
    (2) No marine mammal taken for purposes of creating and selling 
authentic native articles of handicraft and clothing may be sold or 
otherwise transferred to any person other than an Indian, Aleut or 
Eskimo, or delivered, carried, transported or shipped in interstate or 
foreign commerce, unless:
    (i) It is being sent by an Indian, Aleut or Eskimo directly or 
through a registered agent to a tannery registered under paragraph (c) 
of this section for the purpose of processing, and will be returned 
directly or through a registered agent to the Indian, Aleut or Eskimo; 
or
    (ii) It is sold or transferred to a registered agent for resale or 
transfer to an Indian, Aleut, or Eskimo; or
    (iii) It has first been transformed into an authentic native article 
of handicraft or clothing; or
    (iv) It is an edible portion and sold (A) in an Alaskan Native 
village or town, or (B) to an Alaskan Native for his consumption.
    (c) Any tannery, or person who wishes to act as an agent, within the 
jurisdiction of the United States may apply to the Director, National 
Marine Fisheries Service, U.S. Department of Commerce, Washington, DC 
20235, for registration as a tannery or an agent which may possess and 
process marine mammal products for Indians, Aleuts, or Eskimos. The 
application shall include the following information:
    (i) The name and address of the applicant;

[[Page 19]]

    (ii) A description of the applicant's procedures for receiving, 
storing, processing, and shipping materials;
    (iii) A proposal for a system of bookkeeping and/or inventory 
segregation by which the applicant could maintain accurate records of 
marine mammals received from Indians, Aleuts, or Eskimos pursuant to 
this section;
    (iv) Such other information as the Secretary may request;
    (v) A certification in the following language:

    I hereby certify that the foregoing information is complete, true 
and correct to the best of my knowledge and belief. I understand that 
this information is submitted for the purpose of obtaining the benefit 
of an exception under the Marine Mammal Protection Act of 1972 (16 
U.S.C. 1361 through 1407) and regulations promulgated thereunder, and 
that any false statement may subject me to the criminal penalties of 18 
U.S.C. 1001, or to penalties under the Marine Mammal Protection Act of 
1972.

    (vi) The signature of the applicant.

The sufficiency of the application shall be determined by the Secretary, 
and in that connection, he may waive any requirement for information, or 
require any elaboration or further information deemed necessary. The 
registration of a tannery or other agent shall be subject to such 
conditions as the Secretary prescribes, which may include, but are not 
limited to, provisions regarding records, inventory segregation, 
reports, and inspection. The Secretary may charge a reasonable fee for 
processing such applications, including an appropriate apportionment of 
overhead and administrative expenses of the Department of Commerce.
    (d) Notwithstanding the preceding provisions of this section, 
whenever, under the MMPA, the Secretary determines any species of stock 
of marine mammals to be depleted, he may prescribe regulations pursuant 
to section 103 of the MMPA upon the taking of such marine animals by any 
Indian, Aleut, or Eskimo and, after promulgation of such regulations, 
all takings of such marine mammals shall conform to such regulations.
    (e) Marking and reporting of Cook Inlet Beluga Whales--(1) 
Definitions. In addition to definitions contained in the MMPA and the 
regulations in this part:
    (i) Reporting means the collection and delivery of biological data, 
harvest data, and other information regarding the effect of taking a 
beluga whale (Delphinapterus leucas) from Cook Inlet, as required by 
NMFS.
    (ii) Whaling captain or vessel operator means the individual who is 
identified by Alaskan Natives as the leader of each hunting team 
(usually the other crew on the boat) and who is the whaling captain; or 
the individual operating the boat at the time the whale is harvested or 
transported to the place of processing.
    (iii) Cook Inlet means all waters of Cook Inlet north of 59[deg] 
North latitude, including, but not limited to, waters of Kachemak Bay, 
Kamishak Bay, Chinitna Bay, and Tuxedni Bay.
    (2) Marking. Each whaling captain or vessel operator, upon killing 
and landing a beluga whale (Delphinapterus leucas) from Cook Inlet, 
Alaska, must remove the lower left jawbone, leaving the teeth intact and 
in place. When multiple whales are harvested during one hunting trip, 
the jawbones will be marked for identification in the field to ensure 
correct reporting of harvest information by placing a label marked with 
the date, time, and location of harvest within the container in which 
the jawbone is placed. The jawbone(s) must be retained by the whaling 
captain or vessel operator and delivered to NMFS at the Anchorage Field 
Office, 222 West 7th Avenue, Anchorage, Alaska 99513 within 72 hours of 
returning from the hunt.
    (3) Reporting. Upon delivery to NMFS of a jawbone, the whaling 
captain or vessel operator must complete and mail a reporting form, 
available from NMFS, to the NMFS Anchorage Field Office within 30 days. 
A separate form is required for each whale harvested.
    (i) To be complete, the form must contain the following information: 
the date and location of kill, the method of harvest, and the coloration 
of the whale. The respondent will also be invited to report on any other 
observations concerning the animal or circumstance of the harvest.
    (ii) Data collected pursuant to paragraph (e) of this section will 
be reported on forms obtained from the Anchorage Field Office. These 
data will be

[[Page 20]]

maintained in the NMFS Alaska Regional Office in Juneau, Alaska, where 
such data will be available for public review.
    (4) No person may falsify any information required to be set forth 
on the reporting form as required by paragraph (e) of this section.
    (5) The Anchorage Field Office of NMFS is located in room 517 of the 
Federal Office Building, 222 West 7th Avenue; its mailing address is: 
NMFS, Box 43, Anchorage, AK. 99513.
    (f) Harvest management of Cook Inlet beluga whales--(1) Cooperative 
management of subsistence harvest. Subject to the provisions of 16 
U.S.C. 1371(b) and any further limitations set forth inSec. 216.23, 
any taking of a Cook Inlet beluga whale by an Alaska Native must be 
authorized under an agreement for the co-management of subsistence uses 
(hereinafter in this paragraph ``co-management agreement'') between the 
National Marine Fisheries Service and an Alaska Native organization(s).
    (2) Limitations. (i) Sale of Cook Inlet beluga whale parts and 
products. Authentic Native articles of handicraft and clothing made from 
nonedible by-products of beluga whales taken in accordance with the 
provisions of this paragraph may be sold in interstate commerce. The 
sale of any other part or product, including food stuffs, from Cook 
Inlet beluga whales is prohibited, provided that nothing herein shall be 
interpreted to prohibit or restrict customary and traditional 
subsistence practices of barter and sharing of Cook Inlet beluga parts 
and products.
    (ii) Beluga whale calves or adults with calves. The taking of a calf 
or an adult whale accompanied by a calf is prohibited.
    (iii) Season. All takings of beluga whales authorized underSec. 
216.23(f) shall occur no earlier than July 1 of each year.
    (iv) Taking during 2001-2004. The harvest of Cook Inlet beluga 
whales is restricted during the four-year period of 2001-2004 as 
follows:
    (A) Strike limitations. Subject to the suspension provision of 
subparagraph (C), a total of six (6) strikes, which could result in up 
to six landings, are to be allocated through co-management agreement(s).
    (B) Strike allocations. Four strikes, not to exceed one per year, 
are allocated to the Native Village of Tyonek. The remaining two strikes 
will be allocated over the 4-year period through co-management agreement 
with other Cook Inlet community hunters, with no more than one such 
strike being allocated during every other year.
    (C) Emergency provisions. Takings of beluga whales authorized under 
Sec.  216.23 will be suspended whenever unusual mortalities exceed six 
(6) whales in any year. ``Unusual mortalities'' include all documented 
human-caused mortality (including illegal takings and net entanglements 
but excluding all legally harvested whales) and all documented mortality 
resulting from unknown or natural causes that occur above normal levels, 
considered for the purposes of this provision to be twelve beluga whales 
per year. The level of unusual mortalities shall be calculated by 
documenting mortality for the calendar year and subtracting twelve. The 
sum of this result and the carry over of unusual mortality from any 
previous year from which the population has not recovered is the level 
of unusual mortalities for the current year. If in any year the number 
of unusual mortalities exceeds six whales, no strikes will be allowed in 
that year or in subsequent years until the population has recovered from 
those mortalities through foregone future harvests and natural 
recruitment.
    (v) Taking during 2008 and subsequent years. (A) Co-management 
agreements pursuant to paragraph (f)(1) of this section may be 
established for 5-year intervals beginning in 2008. Agreements must 
include specific provisions regarding the number and allocation of 
strikes, hunting practices to promote consistency with limitations in 
paragraph (f)(2)(ii) of this section, and to improve efficiency of the 
harvest, mitigating measures, and enforcement. Agreements may include 
provisions regarding the sex composition of the beluga harvest.
    (B) Strike/harvest levels for each 5-year planning interval 
beginning in 2008 will be determined by the recovery

[[Page 21]]

of this stock as measured by the average abundance in the prior 5-year 
interval and the best estimate of the population growth rate using 
information obtained in the 10 years prior to each 5-year interval. 
Criteria for categorizing growth rates are presented below as an 
algorithm using the estimated abundance, the distribution statistics for 
growth rates, and the date. Harvest levels are subject to the Expected 
Mortality Limit. The established strike levels are presented in the 
Harvest Table and the following algorithm will be used to determine 
harvest levels for each 5-year period beginning in 2008.
    (1) NMFS will calculate the average stock abundance over the 
previous 5-year period.
    (2) NMFS will calculate a population growth rates from abundance 
estimates for the most recent 10-year period prior to the next 5-year 
period.
    (3) Using the abundance and growth information obtained in 
accordance with paragraphs (f)(2)(v)(B)(1) and (f)(2)(v)(B)(2), NMFS 
will calculate the probabilities that the growth rate within the 
population would be less than 1 percent, less than 2 percent, or greater 
than 3 percent. NMFS will then use paragraphs (f)(2)(v)(B)(3(i)) and 
(f)(2)(v)(B)(3)(vi) of this section to select the proper cell from the 
Harvest Table to determine the harvest levels for the next 5-year 
interval.
    (i) Is the average stock abundance over the previous 5-year period 
less than 350 beluga whales? If yes, the Harvest Table provides that the 
harvest is zero during the next 5-year period. If no, go to 
(f)(2)(v)(B)(3)(ii) of this section.
    (ii) Is the current year 2035 or later and is there more than a 20 
percent probability the growth rate is less than 1 percent? If yes, the 
harvest is zero during the next 5-year period. If no, go to paragraph 
(f)(2)(v)(B)(3)(iii) of this section.
    (iii) Is the current year between 2020 and 2034 and there is more 
than a 20 percent probability the growth rate is less than 1 percent? If 
yes, the harvest is three whales during the next 5-year period. If no, 
go to paragraph (f)(2)(v)(B)(3)(iv) of this section.
    (iv) Is the current year 2015 or later and is there more than a 25 
percent probability the growth rate is less than 2 percent? If yes, go 
to the harvest table using the ``Low'' growth rate column. If no, go to 
paragraph (f)(2)(v)(B)(3)(vi)) of this section.
    (v) Is the current year prior to 2015 and is there more than a 75 
percent probability the growth rate is less than 2 percent? If yes, go 
to the harvest table using the ``Low'' growth rate column. If no, go to 
paragraph (f)(2)(v)(B)(3)(vi) of this section.
    (vi) Is there more than a 25-percent probability the growth rate is 
more than 3 percent? If yes, go to the harvest table using the ``High'' 
growth rate column. If no, go to the harvest table using the 
``Intermediate'' growth rate column.

                                                                      Harvest Table
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                               Expected
               5-year population averages                            ``High'' growth rate             ``Intermediate''     ``Low'' growth     Mortality
                                                                                                         growth rate            rate            Limit
--------------------------------------------------------------------------------------------------------------------------------------------------------
Less than 350...........................................                                          0                   0                   0            -
350-399.................................................                       8 strikes in 5 years      5 strikes in 5      5 strikes in 5           21
                                                                                                                  years               years
400-449.................................................                       9 strikes in 5 years      8 strikes in 5      5 strikes in 5           24
                                                                                                                  years               years
450-499.................................................                      10 strikes in 5 years      8 strikes in 5      5 strikes in 5           27
                                                                                                                  years               years
500-524.................................................                      14 strikes in 5 years      9 strikes in 5      5 strikes in 5           30
                                                                                                                  years               years
525-549.................................................                      16 strikes in 5 years     10 strikes in 5      5 strikes in 5           32
                                                                                                                  years               years
550-574.................................................                      20 strikes in 5 years     15 strikes in 5      5 strikes in 5           33
                                                                                                                  years               years
575-599.................................................                      22 strikes in 5 years     16 strikes in 5      5 strikes in 5           35
                                                                                                                  years               years
600-624.................................................                      24 strikes in 5 years     17 strikes in 5      6 strikes in 5           36
                                                                                                                  years               years
625-649.................................................                      26 strikes in 5 years     18 strikes in 5      6 strikes in 5           38
                                                                                                                  years               years
650-699.................................................                      28 strikes in 5 years     19 strikes in 5      7 strikes in 5           39
                                                                                                                  years               years
700-779.................................................                      32 strikes in 5 years     20 strikes in 5      7 strikes in 5           42
                                                                                                                  years               years

[[Page 22]]

 
780 +...................................................         Consult with co-managers to expand  ..................  ..................  ...........
                                                              harvest levels while allowing for the
                                                                                 population to grow
--------------------------------------------------------------------------------------------------------------------------------------------------------

    (C) At the beginning of each 5-year period, an Expected Mortality 
Limit is determined from the Harvest Table using the 5-year average 
abundance. During the course of each calendar year, the number of beach 
casts carcasses and carcasses found floating either reported to NMFS or 
observed by NMFS personnel will be the number of mortalities for that 
year. If at the end of each calendar year this number exceeds the 
Expected Mortality Limit, then an unusual mortality event has occurred. 
The Estimated Excess Mortalities will be calculated as twice the number 
of reported dead whales above the Expected Mortality Limit. The harvest 
will then be adjusted as follows:
    (1) The harvest level for the remaining years of the current 5-year 
period will be recalculated by reducing the 5-year average abundance 
from the previous 5-year period by the Estimated Excess Mortalities. The 
revised abundance estimate would then be used in the harvest table for 
the remaining years and the harvest adjusted accordingly.
    (2) For the subsequent 5-year period, for the purpose of calculating 
the 5-year average, the Estimated Excess Mortalities would be subtracted 
from the abundance estimates of the year of the excess mortality event 
so that the average would reflect the loss to the population. This 
average would then be used in the table to set the harvest level.

[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50376, Oct. 3, 1994; 64 
FR 27927, May 24, 1999; 69 FR 17980, Apr. 6, 2004; 73 FR 60985, Oct. 15, 
2008]



Sec.  216.24  Taking and related acts incidental to commercial fishing
operations by tuna purse seine vessels in the eastern tropical 
Pacific Ocean.

    (a)(1) No marine mammal may be taken in the course of a commercial 
fishing operation by a U.S. purse seine fishing vessel in the ETP unless 
the taking constitutes an incidental catch as defined inSec. 216.3, 
and vessel and operator permits have been obtained in accordance with 
these regulations, and such taking is not in violation of such permits 
or regulations.
    (2)(i) It is unlawful for any person using a U.S. purse seine 
fishing vessel of 400 short tons (st) (362.8 metric tons (mt)) carrying 
capacity or less to intentionally deploy a net on or to encircle 
dolphins, or to carry more than two speedboats, if any part of its 
fishing trip is in the ETP.
    (ii) It is unlawful for any person using a U.S. purse seine fishing 
vessel of greater than 400 st (362.8 mt) carrying capacity that does not 
have a valid permit obtained under these regulations to catch, possess, 
or land tuna if any part of the vessel's fishing trip is in the ETP.
    (iii) It is unlawful for any person subject to the jurisdiction of 
the United States to receive, purchase, or possess tuna caught, 
possessed, or landed in violation of paragraph (a)(2)(ii) of this 
section.
    (iv) It is unlawful for any person subject to the jurisdiction of 
the United States to intentionally deploy a purse seine net on, or to 
encircle, dolphins from a vessel operating in the ETP when there is not 
a DML assigned to that vessel.
    (v) It is unlawful for any person subject to the jurisdiction of the 
United States to intentionally deploy a purse seine net on, or to 
encircle, dolphins from a vessel operating in the ETP with an assigned 
DML after a set in which the DML assigned to that vessel has been 
reached or exceeded.
    (vi) Alleged violations of the Agreement on the IDCP and/or these 
regulations identified by the International Review Panel will be 
considered for potential enforcement action by NMFS.

[[Page 23]]

    (3) Upon written request made in advance of entering the ETP, the 
limitations in paragraphs (a)(2)(ii) and (e)(1) of this section may be 
waived by the Administrator, Southwest Region, for the purpose of 
allowing transit through the ETP. The waiver will provide, in writing, 
the terms and conditions under which the vessel must operate, including 
a requirement to report to the Administrator, Southwest Region, the 
vessel's date of exit from or subsequent entry into the permit area.
    (b) Permits--(1) Vessel permit. The owner or managing owner of a 
U.S. purse seine fishing vessel of greater than 400 st (362.8 mt) 
carrying capacity that participates in commercial fishing operations in 
the ETP must possess a valid vessel permit issued under paragraph (b) of 
this section. This permit is not transferable and must be renewed 
annually. If a vessel permit holder surrenders his/her permit to the 
Administrator, Southwest Region, the permit will not be returned and a 
new permit will not be issued before the end of the calendar year. 
Vessel permits will be valid through December 31 of each year.
    (2) Operator permit. The person in charge of and actually 
controlling fishing operations (hereinafter referred to as the operator) 
on a U.S. purse seine fishing vessel engaged in commercial fishing 
operations under a vessel permit must possess a valid operator permit 
issued under paragraph (b) of this section. Such permits are not 
transferable and must be renewed annually. To receive a permit, the 
operator must have satisfactorily completed all required training under 
paragraph (c)(5) of this section. The operator's permit is valid only 
when the permit holder is on a vessel with a valid vessel permit. 
Operator permits will be valid through December 31 of each year.
    (3) Possession and display. A valid vessel permit issued pursuant to 
paragraph (b)(1) of this section must be on board the vessel while 
engaged in fishing operations, and a valid operator permit issued 
pursuant to paragraph (b)(2) of this section must be in the possession 
of the operator to whom it was issued. Permits must be shown upon 
request to NMFS enforcement agents, U.S. Coast Guard officers, or 
designated agents of NMFS or the Inter-American Tropical Tuna Commission 
(IATTC) (including observers). A vessel owner or operator who is at sea 
on a fishing trip when his or her permit expires and to whom a permit 
for the next year has been issued, may take marine mammals under the 
terms of the new permit without having to display it on board the vessel 
until the vessel returns to port.
    (4) Application for vessel permit. ETP tuna purse seine vessel 
permit application forms and instructions for their completion are 
available from NMFS. To apply for an ETP vessel permit, a vessel owner 
or managing owner must complete, sign, and submit the appropriate form 
via fax to (562) 980-4047, for prioritization purposes as described 
underSec. 300.22(b)(4)(i)(D)(3) of this title, allowing at least 15 
days for processing. To request that a vessel in excess of 400 st (362.8 
mt) carrying capacity be categorized as active on the Vessel Register 
underSec. 300.22(b)(4)(i) of this title in the following calendar 
year, the owner or managing owner must submit the vessel permit 
application via fax, payment of the vessel permit application fee, and 
payment of the vessel assessment fee no later than September 15 for 
vessels for which a DML is requested for the following year, and no 
later than November 30 for vessels for which a DML is not requested for 
the following year.
    (5) Application for operator permit. An applicant for an operator 
permit must complete, sign, and submit the appropriate form obtained 
from NMFS and submit payment of the permit application fee to the 
Administrator, Southwest Region, allowing at least 45 days for 
processing. Application forms and instructions for their completion are 
available from NMFS.
    (6) Fees--(i) Vessel permit application fees. Payment of the permit 
application fee is required before NMFS will issue a permit. The 
Assistant Administrator may change the amount of this fee at any time if 
a different fee is determined in accordance with the NOAA Finance 
Handbook. The amount of the fee will be printed on the vessel permit 
application form provided by the Administrator, Southwest Region.

[[Page 24]]

    (ii) Operator permit fee. The Assistant Administrator may require a 
fee to be submitted with an application for an operator permit. The 
level of such a fee shall be determined in accordance with the NOAA 
Finance Handbook and specified by the Administrator, Southwest Region, 
on the application form.
    (iii) Vessel assessment fee. The vessel assessment fee supports the 
placement of observers on individual tuna purse seine vessels, and 
maintenance of the observer program, as established by the IATTC or 
other approved observer program.
    (A) The owner or managing owner of a purse seine vessel for which a 
DML has been requested must submit the vessel assessment fee, as 
established by the IATTC or other approved observer program, to the 
Administrator, Southwest Region, no later than September 15 of the year 
prior to the calendar year for which the DML is requested. Payment of 
the vessel assessment fee must be consistent with the fee for active 
status on the Vessel Register underSec. 300.22(b)(4) of this title.
    (B) The owner or managing owner of a purse seine vessel for which 
active or inactive status on the Vessel Register, as defined inSec. 
300.21 of this title, has been requested, but for which a DML has not 
been requested, must submit payment of the vessel assessment fee, as 
established by the IATTC or other approved observer program, to the 
Administrator, Southwest Region, no later than November 30 of the year 
prior to the calendar year in which the vessel will be listed on the 
Vessel Register. Payment of the vessel assessment fee is required only 
if the vessel is listed as active and is required to carry an observer, 
or if the vessel is listed as inactive and exceeds 400 st (362.8 mt) in 
carrying capacity. Payment of the vessel assessment fee must be 
consistent with the vessel's status, either active or inactive, on the 
Vessel Register inSec. 300.22(b)(4) of this title.
    (C) The owner or managing owner of a purse seine vessel that is 
licensed under the South Pacific Tuna Treaty must submit the vessel 
assessment fee, as established by the IATTC or other approved observer 
program, to the Administrator, Southwest Region, prior to obtaining an 
observer and entering the ETP to fish. Consistent withSec. 
300.22(b)(1)(i) of this title, this class of purse seine vessels is not 
required to be listed on the Vessel Register underSec. 300.22(b)(4) of 
this title in order to purse seine for tuna in the ETP during a single 
fishing trip per calendar year of 90 days or less. Payment of the vessel 
assessment fee must be consistent with the fee for active status on the 
Vessel Register underSec. 300.22(b)(4) of this title.
    (D) The owner or managing owner of a purse seine vessel listed as 
inactive on the Vessel Register at the beginning of the calendar year 
and who requests to replace a vessel removed from active status on the 
Vessel Register underSec. 300.22(b)(4) of this title during the year, 
must pay the vessel assessment fee associated with active status, less 
the vessel assessment fee associated with inactive status that was 
already paid, before NMFS will request the IATTC Director change the 
status of the vessel from inactive to active. Payment of the vessel 
assessment fee is required only if the vessel is required to carry an 
observer.
    (E) The owner or managing owner of a purse seine vessel not listed 
on the Vessel Register at the beginning of the calendar year and who 
requests to replace a vessel removed from active status on the Vessel 
Register underSec. 300.22(b)(4) of this title during the year, must 
pay the vessel assessment fee associated with active status only if the 
vessel is required to carry an observer, before NMFS will request the 
IATTC Director change the status of the vessel to active.
    (F) Payments will be subject to a 10 percent surcharge if received 
under paragraph (b)(6)(iii)(E) of this section for vessels that were 
listed as active on the Vessel Register in the calendar year prior to 
the year for which active status was requested; or if received after the 
dates specified in paragraphs (b)(6)(iii)(A) or (b)(6)(iii)(B) of this 
section for vessels for which active status is requested if the vessel 
was listed as active during the year the request was made. Payments will 
not be subject to a 10 percent surcharge if received under paragraph 
(b)(6)(iii)(C) or (b)(6)(iii)(D) of this section, or if received under 
paragraph (b)(6)(iii)(E) of this section

[[Page 25]]

for vessels that were not listed as active on the Vessel Register in the 
calendar year prior to the year for which active status was requested. 
Payments will also not be subject to a 10 percent surcharge if received 
after the date specified in paragraph (b)(6)(iii)(B) of this section for 
vessels for which inactive status is requested, or for vessels for which 
active status is requested if the vessel was not listed as active during 
the year the request was made. The Administrator, Southwest Region, will 
forward all vessel assessment fees described in this section to the 
IATTC or to the applicable organization approved by the Administrator, 
Southwest Region.
    (7) Application approval. The Administrator, Southwest Region, will 
determine the adequacy and completeness of an application and, upon 
determining that an application is adequate and complete, will approve 
that application and issue the appropriate permit, except for applicants 
having unpaid or overdue civil penalties, criminal fines, or other 
liabilities incurred in a legal proceeding.
    (8) Conditions applicable to all permits--(i) General conditions. 
Failure to comply with the provisions of a permit or with these 
regulations may lead to suspension, revocation, modification, or denial 
of a permit. The permit holder, vessel, vessel owner, operator, or 
master may be subject, jointly or severally, to the penalties provided 
for under the MMPA. Procedures governing permit sanctions and denials 
are found at subpart D of 15 CFR part 904.
    (ii) Observer placement. By obtaining a permit, the permit holder 
consents to the placement of an observer on the vessel during every trip 
involving operations in the ETP and agrees to payment of the fees for 
observer placement. No observer will be assigned to a vessel unless that 
vessel owner has submitted payment of observer fees to the 
Administrator, Southwest Region. The observers may be placed under an 
observer program of NMFS, IATTC, or another observer program approved by 
the Administrator, Southwest Region.
    (iii) Explosives. The use of explosive devices is prohibited during 
all tuna purse seine operations that involve marine mammals.
    (iv) Reporting requirements. (A) The vessel permit holder of each 
permitted vessel must notify the Administrator, Southwest Region or the 
IATTC contact designated by the Administrator, Southwest Region, at 
least 5 days in advance of the vessel's departure on a fishing trip to 
allow for observer placement on every trip.
    (B) The vessel permit holder must notify the Administrator, 
Southwest Region, or the IATTC contact designated by the Administrator, 
Southwest Region, of any change of vessel operator at least 48 hours 
prior to departing on a fishing trip. In the case of a change in 
operator due to an emergency, notification must be made within 72 hours 
of the change.
    (v) Data release. By using a permit, the permit holder authorizes 
the release to NMFS and the IATTC of all data collected by observers 
aboard purse seine vessels during fishing trips under the IATTC observer 
program or another international observer program approved by the 
Administrator, Southwest Region. The permit holder must furnish the 
international observer program with all release forms required to 
authorize the observer data to be provided to NMFS and the IATTC. Data 
obtained under such releases will be used for the same purposes as would 
data collected directly by observers placed by NMFS and will be subject 
to the same standards of confidentiality.
    (9) Mortality and serious injury reports. The Administrator, 
Southwest Region, will provide to the public periodic status reports 
summarizing the estimated incidental dolphin mortality and serious 
injury by U.S. vessels of individual species and stocks.
    (c) Purse seining by vessels with Dolphin Mortality Limits (DMLs). 
In addition to the terms and conditions set forth in paragraph (b) of 
this section, any permit for a vessel to which a DML has been assigned 
under paragraph (c)(9) of this section and any operator permit when used 
on such a vessel are subject to the following terms and conditions:
    (1) A vessel may be used to chase and encircle schools of dolphins 
in the ETP only under the immediate direction of the holder of a valid 
operator's permit.

[[Page 26]]

    (2) No retention of live marine mammals. Except as otherwise 
authorized by a specific permit, live marine mammals incidentally taken 
must be immediately returned to the ocean without further injury. The 
operator of a purse seine vessel must take every precaution to refrain 
from causing or permitting incidental mortality or serious injury of 
marine mammals. Live marine mammals may not be brailed, sacked up, or 
hoisted onto the deck during ortza retrieval.
    (3) Gear and equipment required for valid permit. A vessel 
possessing a vessel permit for purse seining involving the intentional 
taking of marine mammals may not engage in fishing operations involving 
the intentional deployment of the net on or encirclement of dolphins 
unless it is equipped with a dolphin safety panel in its purse seine, 
has the other required gear and equipment, and uses the required 
procedures.
    (i) Dolphin safety panel. The dolphin safety panel must be a minimum 
of 180 fathoms in length (as measured before installation), except that 
the minimum length of the panel in nets deeper than 18 strips must be 
determined in a ratio of 10 fathoms in length for each strip of net 
depth. It must be installed so as to protect the perimeter of the 
backdown area. The perimeter of the backdown area is the length of 
corkline that begins at the outboard end of the last bowbunch pulled and 
continues to at least two-thirds the distance from the backdown channel 
apex to the stern tiedown point. The dolphin safety panel must consist 
of small mesh webbing not to exceed 1\1/4\ inches (3.18 centimeters 
(cm)) stretch mesh extending downward from the corkline and, if present, 
the base of the dolphin apron to a minimum depth equivalent to two 
strips of 100 meshes of 4\1/4\ inches (10.80 cm) stretch mesh webbing. 
In addition, at least a 20-fathom length of corkline must be free from 
bunchlines at the apex of the backdown channel.
    (ii) Dolphin safety panel markers. Each end of the dolphin safety 
panel and dolphin apron, if present, must be identified with an easily 
distinguishable marker.
    (iii) Dolphin safety panel hand holds. Throughout the length of the 
corkline under which the dolphin safety panel and dolphin apron are 
located, hand hold openings must be secured so that they will not allow 
the insertion of a 1\3/8\ inch (3.50 cm) diameter cylindrical-shaped 
object.
    (iv) Dolphin safety panel corkline hangings. Throughout the length 
of the corkline under which the dolphin safety panel and dolphin apron 
if present, are located, corkline hangings must be inspected by the 
vessel operator following each trip. Hangings found to have loosened to 
the extent that a cylindrical-shaped object with a 1\3/8\ inch (3.50 cm) 
diameter can be inserted between the cork and corkline hangings, must be 
tightened so as not to allow the insertion of a cylindrical-shaped 
object with a 1\3/8\ inch (3.50 cm) diameter.
    (v) Speedboats. A minimum of three speedboats in operating condition 
must be carried. All speedboats carried aboard purse seine vessels and 
in operating condition must be rigged with tow lines and towing bridles 
or towing posts. Speedboat hoisting bridles may not be substituted for 
towing bridles.
    (vi) Raft. A raft suitable to be used as a dolphin observation-and-
rescue platform must be carried.
    (vii) Facemask and snorkel, or viewbox. At least two facemasks and 
snorkels or viewboxes must be carried.
    (viii) Lights. The vessel must be equipped with long-range, high-
intensity floodlights with a sodium lamp of at least 1000 watts, or a 
multivapour lamp of at least 1500 watts, for use in darkness to ensure 
sufficient light to observe that procedures for dolphin release are 
carried out and to monitor incidental dolphin mortality.
    (4) Vessel inspection--(i) Twice per year. At least twice during 
each calendar year, purse seine nets and other gear and equipment 
required underSec. 216.24(c)(3) must be made available for inspection 
and for a trial set/net alignment by an authorized NMFS inspector or 
IATTC staff as specified by the Administrator, Southwest Region, in 
order to obtain a vessel permit. The first such inspection shall be 
carried out before the vessel's request for a DML is submitted to the 
IATTC. The second such inspection shall be carried

[[Page 27]]

out before notification of any reallocation of DMLs for vessels with 
full-year DMLs or during the last quarter of the year for vessels with 
second-semester DMLs.
    (ii) Reinspection. Purse seine nets and other gear and equipment 
required by these regulations must be made available for reinspection by 
an authorized NMFS inspector or IATTC staff as specified by the 
Administrator, Southwest Region. The vessel permit holder must notify 
the Administrator, Southwest Region, of any net modification at least 5 
days prior to departure of the vessel in order to determine whether a 
reinspection or trial set/net alignment is required.
    (iii) Failure to pass inspection. Upon failure to pass an inspection 
or reinspection, a vessel may not engage in purse seining involving the 
intentional taking of marine mammals until the deficiencies in gear or 
equipment are corrected as required by NMFS.
    (5) Operator permit holder training requirements. An operator must 
maintain proficiency sufficient to perform the procedures required 
herein, and must attend and satisfactorily complete a formal training 
session approved by the Administrator, Southwest Region, in order to 
obtain his or her permit. At the training session, an attendee will be 
instructed on the relevant provisions and regulatory requirements of the 
MMPA and the IDCP, and the fishing gear and techniques that are required 
for reducing serious injury and mortality of dolphin incidental to purse 
seining for tuna. Operators who have received a written certificate of 
satisfactory completion of training and who possess a current or 
previous calendar year permit will not be required to attend additional 
formal training sessions unless there are substantial changes in the 
relevant provisions or implementing regulations of the MMPA or the IDCP, 
or in fishing gear and techniques. Additional training may be required 
for any operator who is found by the Administrator, Southwest Region, to 
lack proficiency in the required fishing procedures or familiarity with 
the relevant provisions or regulations of the MMPA or the IDCP.
    (6) Marine mammal release requirements. All operators fishing 
pursuant to paragraph (c) of this section must use the following 
procedures during all sets involving the incidental taking of marine 
mammals in association with the capture and landing of tuna.
    (i) Backdown procedure. Backdown must be performed following a purse 
seine set in which dolphins are captured in the course of catching tuna, 
and must be continued until it is no longer possible to remove live 
dolphins from the net by this procedure. At least one crewmember must be 
deployed during backdown to aid in the release of dolphins. Thereafter, 
other release procedures required will be continued so that all live 
dolphins are released prior to the initiation of the sack-up procedure.
    (ii) Prohibited use of sharp or pointed instrument. The use of a 
sharp or pointed instrument to remove any marine mammal from the net is 
prohibited.
    (iii) Sundown sets prohibited. On every set encircling dolphin, the 
backdown procedure must be completed no later than one-half hour after 
sundown, except as provided here. For the purpose of this section, 
sundown is defined as the time at which the upper edge of the sun 
disappears below the horizon or, if the view of the sun is obscured, the 
local time of sunset calculated from tables developed by the U.S. Naval 
Observatory or other authoritative source approved by the Administrator, 
Southwest Region. A sundown set is a set in which the backdown procedure 
has not been completed and rolling the net to sack-up has not begun 
within one-half hour after sundown. Should a set extend beyond one-half 
hour after sundown, the operator must use the required marine mammal 
release procedures including the use of the high intensity lighting 
system. In the event a sundown set occurs where the seine skiff was let 
go 90 or more minutes before sundown, and an earnest effort to rescue 
dolphins is made, the International Review Panel of the IDCP may 
recommend to the United States that in the view of the International 
Review Panel, prosecution by the United States is not recommended. Any 
such recommendation will be considered by the United States in 
evaluating the appropriateness of prosecution in a particular 
circumstance.

[[Page 28]]

    (iv) Dolphin safety panel. During backdown, the dolphin safety panel 
must be positioned so that it protects the perimeter of the backdown 
area. The perimeter of the backdown area is the length of corkline that 
begins at the outboard end of the last bow bunch pulled and continues to 
at least two-thirds the distance from the backdown channel apex to the 
stern tiedown point.
    (7) Experimental fishing operations. The Administrator, Southwest 
Region, may authorize experimental fishing operations, consistent with 
the provisions of the IDCP, for the purpose of testing proposed 
improvements in fishing techniques and equipment that may reduce or 
eliminate dolphin mortality or serious injury, or do not require the 
encirclement of dolphins in the course of fishing operations. The 
Administrator, Southwest Region, may waive, as appropriate, any 
requirements of this section except DMLs and the obligation to carry an 
observer.
    (i) A vessel permit holder may apply for an experimental fishing 
operation waiver by submitting the following information to the 
Administrator, Southwest Region, no less than 90 days before the date 
the proposed operation is intended to begin:
    (A) The name(s) of the vessel(s) and the vessel permit holder(s) to 
participate;
    (B) A statement of the specific vessel gear and equipment or 
procedural requirement to be exempted and why such an exemption is 
necessary to conduct the experiment;
    (C) A description of how the proposed modification to the gear and 
equipment or procedures is expected to reduce incidental mortality or 
serious injury of marine mammals;
    (D) A description of the applicability of this modification to other 
purse seine vessels;
    (E) The planned design, time, duration, and general area of the 
experimental operation;
    (F) The name(s) of the permitted operator(s) of the vessel(s) during 
the experiment;
    (G) A statement of the qualifications of the individual or company 
doing the analysis of the research; and
    (H) Signature of the permitted operator or of the operator's 
representative.
    (ii) The Administrator, Southwest Region, will acknowledge receipt 
of the application and, upon determining that it is complete, will 
publish a notice in the Federal Register summarizing the application, 
making the full application available for inspection and inviting 
comments for a minimum period of 30 days from the date of publication.
    (iii) The Administrator, Southwest Region, after considering the 
information submitted in the application identified in paragraph 
(c)(7)(i) of this section and the comments received, will either issue a 
waiver to conduct the experiment that includes restrictions or 
conditions deemed appropriate, or deny the application, giving the 
reasons for denial.
    (iv) A waiver for an experimental fishing operation will be valid 
only for the vessels and operators named in the permit, for the time 
period and areas specified, for trips carrying an observer designated by 
the Administrator, Southwest Region, and when all the terms and 
conditions of the permit are met.
    (v) The Administrator, Southwest Region, may suspend or revoke an 
experimental fishing waiver in accordance with 15 CFR part 904 if the 
terms and conditions of the waiver or the provisions of the regulations 
are not followed.
    (8) Operator permit holder performance requirements. [Reserved]
    (9) Vessel permit holder dolphin mortality limits. For purposes of 
this paragraph, the term ``vessel permit holder'' includes both the 
holder of a current vessel permit and also the holder of a vessel permit 
for the following year.
    (i) By September 1 each year, a vessel permit holder desiring a DML 
for the following year must provide to the Administrator, Southwest 
Region, the name of the U.S. purse seine fishing vessel(s) of carrying 
capacity greater than 400 st (362.8 mt) that the owner intends to use to 
intentionally deploy purse seine fishing nets in the ETP to encircle 
dolphins in an effort to capture tuna during the following year. NMFS 
will forward the list of purse seine vessels to the Director of the

[[Page 29]]

IATTC on or before October 1, or as otherwise required by the IDCP, for 
assignment of a DML for the following year under the provisions of Annex 
IV of the Agreement on the IDCP.
    (ii) Each vessel permit holder that desires a DML only for the 
period between July 1 to December 31 must provide the Administrator, 
Southwest Region, by September 1 of the prior year, the name of the U.S. 
purse seine fishing vessel(s) of greater than 400 st (362.8 mt) carrying 
capacity that the owner intends to use to intentionally deploy purse 
seine fishing nets in the ETP to encircle dolphins in an effort to 
capture tuna during the period. NMFS will forward the list of purse 
seine vessels to the Director of the IATTC on or before October 1, or as 
otherwise required under the IDCP, for possible assignment of a DML for 
the 6-month period July 1 to December 31. Under the IDCP, the DML will 
be calculated by the IDCP from any unutilized pool of DMLs in accordance 
with the procedure described in Annex IV of the Agreement on the IDCP 
and will not exceed one-half of an unadjusted full-year DML as 
calculated by the IDCP.
    (iii)(A) The Administrator, Southwest Region, will notify vessel 
owners of the DML assigned for each vessel for the following year, or 
the second half of the year, as applicable.
    (B) The Administrator, Southwest Region, may adjust the DMLs in 
accordance with Annex IV of the Agreement on the IDCP. All adjustments 
of full-year DMLs will be made before January 1, and the Administrator, 
Southwest Region, will notify the Director of the IATTC of any 
adjustments prior to a vessel departing on a trip using its adjusted 
DML. The notification will be no later than February 1 in the case of 
adjustments to full-year DMLs, and no later than May 1 in the case of 
adjustments to DMLs for the second half of the year.
    (C) In accordance with the requirements of Annex IV of the Agreement 
on the IDCP, the Administrator, Southwest Region, may adjust a vessel's 
DML if it will further scientific or technological advancement in the 
protection of marine mammals in the fishery or if the past performance 
of the vessel indicates that the protection or use of the yellowfin tuna 
stocks or marine mammals is best served by the adjustment, within the 
mandates of the MMPA. Experimental fishing operation waivers or 
scientific research permits will be considered a basis for adjustments.
    (iv)(A) A vessel assigned a full-year DML that does not make a set 
on dolphins by April 1 or that leaves the fishery will lose its DML for 
the remainder of the year, unless the failure to set on dolphins is due 
to force majeure or other extraordinary circumstances as determined by 
the International Review Panel.
    (B) A vessel assigned a DML for the second half of the year will be 
considered to have lost its DML if the vessel has not made a set on 
dolphins before December 31, unless the failure to set on dolphins is 
due to force majeure or extraordinary circumstances as determined by the 
International Review Panel.
    (C) Any vessel that loses its DML for 2 consecutive years will not 
be eligible to receive a DML for the following year.
    (D) NMFS will determine, based on available information, whether a 
vessel has left the fishery.
    (1) A vessel lost at sea, undergoing extensive repairs, operating in 
an ocean area other than the ETP, or for which other information 
indicates that vessel will no longer be conducting purse seine 
operations in the ETP for the remainder of the period covered by the DML 
will be determined to have left the fishery.
    (2) NMFS will make all reasonable efforts to determine the 
intentions of the vessel owner. The owner of any vessel that has been 
preliminarily determined to have left the fishery will be provided 
notice of such preliminary determination and given the opportunity to 
provide information on whether the vessel has left the fishery prior to 
NMFS making a final determination under 15 CFR part 904 and notifying 
the IATTC.
    (v) Any vessel that exceeds its assigned DML after any applicable 
adjustment under paragraph (c)(9)(iii) of this section will have its DML 
for the subsequent year reduced by 150 percent

[[Page 30]]

of the overage, unless another adjustment is determined by the 
International Review Panel, as mandated by the Agreement on the IDCP.
    (vi) A vessel that is covered by a valid vessel permit and that does 
not normally fish for tuna in the ETP but desires to participate in the 
fishery on a limited basis may apply for a per-trip DML from the 
Administrator, Southwest Region, at any time, allowing at least 60 days 
for processing. The request must state the expected number of trips 
involving sets on dolphins and the anticipated dates of the trip or 
trips. The request will be forwarded to the Secretariat of the IATTC for 
processing in accordance with Annex IV of the Agreement on the IDCP. A 
per-trip DML will be assigned if one is made available in accordance 
with the terms of Annex IV of the Agreement on the IDCP. If a vessel 
assigned a per-trip DML does not set on dolphins during that trip, the 
vessel will be considered to have lost its DML unless this was a result 
of force majeure or other extraordinary circumstances as determined by 
the International Review Panel. After two consecutive losses of a DML, a 
vessel will not be eligible to receive a DML for the next fishing year.
    (vii) Observers will make their records available to the vessel 
operator at any reasonable time, including after each set, in order for 
the operator to monitor the balance of the DML(s) remaining for use.
    (viii) Vessel and operator permit holders must not deploy a purse 
seine net on or encircle any school of dolphins containing individuals 
of a particular stock of dolphins for the remainder of the calendar 
year:
    (A) after the applicable per-stock per-year dolphin mortality limit 
for that stock of dolphins (or for that vessel, if so assigned) has been 
reached or exceeded; or
    (B) after the time and date provided in actual notification or 
notification in the Federal Register by the Administrator, Southwest 
Region, based upon the best available evidence, stating when any 
applicable per-stock per-year dolphin mortality limit has been reached 
or exceeded, or is expected to be reached in the near future.
    (ix) If individual dolphins belonging to a stock that is prohibited 
from being taken are not reasonably observable at the time the net skiff 
attached to the net is released from the vessel at the start of a set, 
the fact that individuals of that stock are subsequently taken will not 
be cause for enforcement action provided that all procedures required by 
the applicable regulations have been followed.
    (x) Vessel and operator permit holders must not intentionally deploy 
a purse seine net on or encircle dolphins intentionally:
    (A) after a set in which the vessel's DML, as adjusted, has been 
reached or exceeded; or
    (B) after the date and time provided in actual notification by 
letter, facsimile, radio, or electronic mail, or notice in the Federal 
Register by the Administrator, Southwest Region, based upon the best 
available evidence, that intentional sets on dolphins must cease because 
the total of the DMLs assigned to the U.S. fleet has been reached or 
exceeded, or is expected to be exceeded in the near future.
    (d) Purse seining by vessels without assigned DMLs. In addition to 
the requirements of paragraph (b) of this section, a vessel permit used 
for a trip not involving an assigned DML and the operator's permit when 
used on such a vessel are subject to the following terms and conditions: 
a permit holder may take marine mammals provided that such taking is an 
accidental occurrence in the course of normal commercial fishing 
operations and the vessel does not intentionally deploy its net on, or 
to encircle, dolphins; marine mammals taken incidental to such 
commercial fishing operations must be immediately returned to the 
environment where captured without further injury, using release 
procedures such as hand rescue, or aborting the set at the earliest 
effective opportunity; and the use of one or more rafts and facemasks or 
viewboxes to aid in the rescue of dolphins is recommended.
    (e) Observers--(1) The holder of a vessel permit must allow an 
observer duly authorized by the Administrator, Southwest Region, to 
accompany the vessel on all fishing trips in the ETP for the purpose of 
conducting research

[[Page 31]]

and observing operations, including collecting information that may be 
used in civil or criminal penalty proceedings, forfeiture actions, or 
permit sanctions. A vessel that fails to carry an observer in accordance 
with these requirements may not engage in fishing operations.
    (2) Research and observation duties will be carried out in such a 
manner as to minimize interference with commercial fishing operations. 
Observers must be provided access to vessel personnel and to dolphin 
safety gear and equipment, electronic navigation equipment, radar 
displays, high powered binoculars, and electronic communication 
equipment. The navigator must provide true vessel locations by latitude 
and longitude, accurate to the nearest minute, upon request by the 
observer. Observers must be provided with adequate space on the bridge 
or pilothouse for clerical work, as well as space on deck adequate for 
carrying out observer duties. No vessel owner, master, operator, or crew 
member of a permitted vessel may impair, or in any way interfere with, 
the research or observations being carried out. Masters must allow 
observers to use vessel communication equipment necessary to report 
information concerning the take of marine mammals and other observer 
collected data upon request of the observer.
    (3) Any marine mammals killed during fishing operations that are 
accessible to crewmen and requested from the permit holder or master by 
the observer must be brought aboard the vessel and retained for 
biological processing, until released by the observer for return to the 
ocean. Whole marine mammals or marine mammal parts designated as 
biological specimens by the observer must be retained in cold storage 
aboard the vessel until retrieved by authorized personnel of NMFS or the 
IATTC when the vessel returns to port for unloading.
    (4) It is unlawful for any person to forcibly assault, impede, 
intimidate, interfere with, or to influence or attempt to influence an 
observer, or to harass (including sexual harassment) an observer by 
conduct that has the purpose or effect of unreasonably interfering with 
the observer's work performance, or that creates an intimidating, 
hostile, or offensive environment. In determining whether conduct 
constitutes harassment, the totality of the circumstances, including the 
nature of the conduct and the context in which it occurred, will be 
considered. The determination of the legality of a particular action 
will be made from the facts on a case-by-case basis.
    (5)(i) All observers must be provided sleeping, toilet and eating 
accommodations at least equal to that provided to a full crew member. A 
mattress or futon on the floor or a cot is not acceptable in place of a 
regular bunk. Meal and other galley privileges must be the same for the 
observer as for other crew members.
    (ii) Female observers on a vessel with an all-male crew must be 
accommodated either in a single-person cabin or, if reasonable privacy 
can be ensured by installing a curtain or other temporary divider, in a 
two-person cabin shared with a licensed officer of the vessel. If the 
cabin assigned to a female observer does not have its own toilet and 
shower facilities that can be provided for the exclusive use of the 
observer, then a schedule for time-sharing common facilities must be 
established before the placement meeting and approved by NMFS or other 
approved observer program and must be followed during the entire trip.
    (iii) In the event there are one or more female crew members, the 
female observer must be provided a bunk in a cabin shared solely with 
female crew members, and provided toilet and shower facilities shared 
solely with these female crew members.
    (f) Importation, purchase, shipment, sale and transport. (1)(i) It 
is illegal to import into the United States any fish, whether fresh, 
frozen, or otherwise prepared, if the fish have been caught with 
commercial fishing technology that results in the incidental kill or 
incidental serious injury of marine mammals in excess of that allowed 
under this part for U.S. fishermen, or as specified at paragraph (f)(6) 
of this section.
    (ii) For purposes of this paragraph (f), and in applying the 
definition of an

[[Page 32]]

``intermediary nation,'' an import occurs when the fish or fish product 
is released from a nation's Customs' custody and enters into the 
commerce of the nation. For other purposes, ``import'' is defined in 
Sec.  216.3.
    (2) Imports requiring a Fisheries Certificate of Origin. Shipments 
of tuna, tuna products, and certain other fish products identified in 
paragraphs (f)(2)(i), (f)(2)(ii), and (f)(2)(iii) of this section may 
not be imported into the United States unless a properly completed 
Fisheries Certificate of Origin (FCO), NOAA Form 370, is filed with U.S. 
Customs and Border Protection (CBP) at the time of importation.
    (i) Imports requiring a Fisheries Certificate of Origin, subject to 
yellowfin tuna embargo. All shipments containing yellowfin tuna or 
yellowfin tuna products (other than fresh tuna) imported into the United 
States must be accompanied by an FCO, including, but not limited to, 
those imported under the following Harmonized Tariff Schedule of the 
United States (HTS) numbers. Updated HTS numbers can be identified by 
referencing the most current HTS in effect at the time of importation, 
available at www.usitc.gov. The scope of yellowfin tuna embargoes and 
procedures for attaining an affirmative finding are described under 
paragraphs (f)(6) and (f)(8) of this section, respectively.

  (A) Frozen: (products containing Yellowfin)...........................
  0303.42.0020............................  Yellowfin tunas, whole,
                                             frozen
  0303.42.0040............................  Yellowfin tunas, head-on,
                                             frozen, except whole
  0303.42.0060............................  Yellowfin tunas frozen,
                                             except whole, head-on,
                                             fillets, livers and roes
  0304.29.6097............................  Tuna fish fillets, frozen,
                                             Not elsewhere specified or
                                             indicated (NESOI)
  0304.99.1090............................  Tuna, frozen, in bulk or in
                                             immediate containers
                                             weighing with their
                                             contents over 6.8 kg each,
                                             NESOI
  (B) Airtight Containers: (products containing Yellowfin)..............
  1604.14.1010............................  Tunas and skipjack, in oil,
                                             in airtight containers, in
                                             foil or other flexible
                                             containers weighing with
                                             their contents not more
                                             than 6.8 kg each
  1604.14.1099............................  Tunas and skipjack, in oil,
                                             in airtight containers,
                                             NESOI
  1604.14.2291............................  Other tunas and skipjack, no
                                             oil, in foil/flexible
                                             airtight containers, not
                                             over 6.8 kg, 4.8% of U.S.
                                             consumption of canned tuna
                                             during preceding year
  1604.14.2299............................  Tunas, NESOI and skipjack,
                                             not in oil, in other
                                             airtight containers not
                                             over 7 kg, 4.8% of U.S.
                                             consumption of canned tuna
                                             during preceding year
  1604.14.3091............................  Tunas and skipjack, NESOI,
                                             not in oil, in foil or
                                             other flexible airtight
                                             containers, weighing with
                                             their contents not more
                                             than 6.8 kg each
  1604.14.3099............................  Other tunas and skipjack,
                                             not in oil, in airtight
                                             containers, NESOI
  (C) Loins: (products containing Yellowfin)............................
  1604.14.4000............................  Tunas and skipjacks,
                                             prepared or preserved, not
                                             in airtight containers, not
                                             in oil, in bulk or
                                             immediate containers with
                                             their contents over 6.8 kg
                                             each
  1604.14.5000............................  Tunas and skipjack, prepared
                                             or preserved, not in
                                             airtight containers, NESOI
  (D) Other: (products containing Yellowfin)............................
  1604.20.1000............................  Fish pastes
  1604.20.2500............................  Fish balls, cakes and
                                             puddings, not in oil, not
                                             in airtight containers, in
                                             immediate containers
                                             weighing with their
                                             contents not over 6.8 kg
                                             each
  1604.20.3000............................  Fish balls, cakes and
                                             puddings, NESOI
 

    (ii) Imports requiring a Fisheries Certificate of Origin, not 
subject to yellowfin tuna embargo. All shipments containing tuna or tuna 
products (other than fresh tuna or yellowfin tuna identified in 
paragraph (f)(2)(i) of this section) imported into the United States 
must be accompanied by an FCO, including, but not limited to, those 
imported under the following HTS numbers. Updated HTS numbers can be 
identified by referencing the most current HTS in effect at the time of 
importation, available at www.usitc.gov.

  (A) Frozen: (other than Yellowfin)....................................
  0303.41.0000............................  Albacore or longfinned
                                             tunas, frozen, except
                                             fillets, livers and roes
  0303.43.0000............................  Skipjack tunas or stripe-
                                             bellied bonito, frozen,
                                             except fillets, livers and
                                             roes
  0303.44.0000............................  Bigeye tunas, frozen, except
                                             fillets, livers and roes
  0303.45.0000............................  Bluefin tunas, frozen,
                                             except fillets, livers and
                                             roes
  0303.46.0000............................  Southern bluefin tunas,
                                             frozen, except fillets,
                                             livers and roes
  0303.49.0100............................  Tunas, frozen, except
                                             fillets, livers and roes,
                                             NESOI
  0304.29.6097............................  Tuna fish fillets, frozen,
                                             NESOI
  0304.99.1090............................  Tuna, frozen, in bulk or in
                                             immediate containers
                                             weighing with their
                                             contents over 6.8 kg each,
                                             NESOI
  (B) Airtight Containers: (other than Yellowfin).......................
  1604.14.1010............................  Tunas and skipjack, in oil,
                                             in airtight containers, in
                                             foil or other flexible
                                             containers weighing with
                                             their contents not more
                                             than 6.8 kg each
  1604.14.1091............................  Tunas, albacore, in oil, in
                                             airtight containers, NESOI
  1604.14.1099............................  Tunas and skipjack, in oil,
                                             in airtight containers,
                                             NESOI
  1604.14.2251............................  Albacore tuna, not in oil,
                                             in foil/flexible airtight
                                             containers, weighing not
                                             over 6.8 kg, 4.8% of U.S.
                                             consumption of canned tuna
                                             during preceding year

[[Page 33]]

 
  1604.14.2259............................  Albacore tuna, not in oil,
                                             in airtight containers
                                             weighing not over 7 kg,
                                             NESOI, 4.8% of U.S.
                                             consumption of canned tuna
                                             during preceding year
  1604.14.2291............................  Other tunas and skipjack, no
                                             oil, in foil/flexible
                                             airtight containers, not
                                             over 6.8 kg, 4.8% of U.S.
                                             consumption of canned tuna
                                             during preceding year
  1604.14.2299............................  Tunas, NESOI and skipjack,
                                             not in oil, in other
                                             airtight containers, not
                                             over 7 kg, 4.8% of U.S.
                                             consumption of canned tuna
                                             during preceding year
  1604.14.3051............................  Tuna, albacore not in oil,
                                             in foil or other flexible
                                             airtight containers,
                                             weighing with contents not
                                             more than 6.8 kg each,
                                             NESOI
  1604.14.3059............................  Tuna, albacore not in oil,
                                             in airtight containers,
                                             NESOI
  1604.14.3091............................  Tunas and skipjack, NESOI,
                                             not in oil, in foil or
                                             other flexible airtight
                                             containers, weighing with
                                             their contents not more
                                             than 6.8 kg each
  1604.14.3099............................  Other tunas and skipjack,
                                             not in oil, in airtight
                                             containers, NESOI
  (C) Loins: (other than Yellowfin).....................................
  1604.14.4000............................  Tunas and skipjacks,
                                             prepared or preserved, not
                                             in airtight containers, not
                                             in oil, in bulk or
                                             immediate containers with
                                             their contents over 6.8 kg
                                             each
  1604.14.5000............................  Tunas and skipjack, prepared
                                             or preserved, not in
                                             airtight containers, NESOI
  (D) Other: (only if the product contains tuna)........................
  1604.20.1000............................  Fish pastes
  1604.20.2500............................  Fish balls, cakes and
                                             puddings, not in oil, not
                                             in airtight containers, in
                                             immediate containers
                                             weighing with their
                                             contents not over 6.8 kg
                                             each
  1604.20.3000............................  Fish balls, cakes and
                                             puddings, NESOI
 

    (iii) Exports from driftnet nations only, requiring a Fisheries 
Certificate of Origin and official certification. The following HTS 
numbers identify categories of fish and shellfish, in addition to those 
identified in paragraphs (f)(2)(i) and (f)(2)(ii) of this section, known 
to have been harvested using a large-scale driftnet and imported into 
the United States. Shipments exported from a large-scale driftnet 
nation, as identified under paragraph (f)(7) of this section, and 
imported into the United States, including but not limited to those 
imported into the United States under any of the HTS numbers listed in 
paragraph (f)(2) of this section, must be accompanied by an FCO and the 
official statement described in paragraph (f)(4)(xiii) of this section.

  (A) Frozen:...........................................................
  0303.19.0012............................  Chinook (King) salmon
                                             (Oncorhynchus
                                             tschawytscha), frozen,
                                             except fillets, livers and
                                             roes
  0303.19.0022............................  Chum (dog) salmon
                                             (Oncorhynchus keta),
                                             frozen, except fillets,
                                             livers and roes
  0303.19.0032............................  Pink (humpie) salmon
                                             (Oncorhynchus gorbuscha),
                                             frozen, except fillets,
                                             livers and roes
  0303.19.0052............................  Coho (silver) salmon
                                             (Oncorhynchus kisutch),
                                             frozen, except fillets,
                                             livers and roes
  0303.19.0062............................  Pacific salmon (Oncorhynchus
                                             masou, Oncorhynchus
                                             rhodurus), frozen, except
                                             fillets, livers and roes,
                                             NESOI
  0303.21.0000............................  Trout (Salmo trutta;
                                             Oncorhynchus mykiss,
                                             clarki, aguabonita, gilae,
                                             apache, and chrysogaster),
                                             frozen, except fillets,
                                             livers and roes
  0303.22.0000............................  Atlantic salmon (Salmo
                                             salar) and Danube salmon
                                             (Hucho hucho), frozen,
                                             except fillets, livers and
                                             roes
  0303.29.0000............................  Salmonidae, frozen, except
                                             fillets, livers and roes,
                                             NESOI
  0303.61.0010............................  Swordfish steaks, frozen,
                                             except fillets
  0303.61.0090............................  Swordfish, frozen, except
                                             steaks, fillets, livers and
                                             roes
  0303.75.0010............................  Dogfish (Squalus spp.),
                                             frozen, except fillets,
                                             livers and roes
  0303.75.0090............................  Sharks, frozen, except
                                             dogfish, fillets, livers
                                             and roes
  0303.79.0079............................  Fish, frozen, except
                                             fillets, livers and roes,
                                             NESOI
  0304.21.0000............................  Swordfish fillets, frozen,
                                             NESOI
  0304.29.2066............................  Fish fillets, skinned,
                                             frozen blocks weighing over
                                             4.5 kg each, to be minced,
                                             ground or cut into pieces
                                             of uniform weights and
                                             dimensions, NESOI
  0304.29.6006............................  Atlantic Salmonidae (Salmo
                                             salar) fillets, frozen,
                                             NESOI
  0304.29.6008............................  Salmonidae fillets, frozen,
                                             except Atlantic salmon,
                                             NESOI
  0304.29.6099............................  Fish fillets, frozen, NESOI
  0307.49.0010............................  Squid fillets, frozen
  (B) Canned:...........................................................
  1604.11.2020............................  Pink (humpie) salmon, whole
                                             or in pieces, but not
                                             minced, in oil, in airtight
                                             containers
  1604.11.2030............................  Sockeye (red) salmon, whole
                                             or in pieces, but not
                                             minced, in oil, in airtight
                                             containers
  1604.11.2090............................  Salmon NESOI, whole or in
                                             pieces, but not minced, in
                                             oil, in airtight containers
  1604.11.4010............................  Chum (dog) salmon, not in
                                             oil, canned
  1604.11.4020............................  Pink (humpie) salmon, not in
                                             oil, canned
  1604.11.4030............................  Sockeye (red) salmon, not in
                                             oil, canned
  1604.11.4040............................  Salmon, NESOI, not in oil,
                                             canned
  1604.11.4050............................  Salmon, whole or in pieces,
                                             but not minced, NESOI
  1604.19.2000............................  Fish, NESOI, not in oil, in
                                             airtight containers
  1604.19.3000............................  Fish, NESOI, in oil, in
                                             airtight containers
  1605.90.6050............................  Loligo squid, prepared or
                                             preserved
  1605.90.6055............................  Squid except Loligo,
                                             prepared or preserved
  (C) Other:............................................................
  0305.30.6080............................  Fish fillets, dried, salted
                                             or in brine, but not
                                             smoked, NESOI

[[Page 34]]

 
  0305.41.000.............................  Pacific salmon (Oncorhynchus
                                             spp.), Atlantic salmon
                                             (Salmo salar), and Danube
                                             salmon (Hucho hucho),
                                             including fillets, smoked
  0305.49.4040............................  Fish including fillets,
                                             smoked, NESOI
  0305.59.2000............................  Shark fins, dried, whether
                                             or not salted but not
                                             smoked
  0305.59.4000............................  Fish, dried, whether or not
                                             salted but not smoked,
                                             NESOI
  0305.69.4000............................  Salmon, salted but not dried
                                             or smoked; in brine
  0305.69.5000............................  Fish in immediate containers
                                             weighing with their
                                             contents 6.8 kg or less
                                             each, salted but not dried
                                             or smoked; in brine, NESOI
  0305.69.6000............................  Fish, salted but not dried
                                             or smoked; in brine, NESOI
  0307.49.0022............................  Squid, Loligo opalescens,
                                             frozen (except fillets),
                                             dried, salted or in brine
  0307.49.0024............................  Squid, Loligo pealei, frozen
                                             (except fillets), dried,
                                             salted or in brine
  0307.49.0029............................  Loligo squid, frozen (except
                                             fillets), dried, salted or
                                             in brine, NESOI
  0307.49.0050............................  Squid, frozen (except
                                             fillets), dried, salted or
                                             in brine, except Loligo
                                             squid
  0307.49.0060............................  Cuttle fish (Sepia
                                             officinalis, Rossia
                                             macrosoma, Sepiola spp.),
                                             frozen, dried, salted or in
                                             brine
 

    (3) Disposition of Fisheries Certificates of Origin. The FCO 
described in paragraph (f)(4) of this section may be obtained from the 
Administrator, Southwest Region, or downloaded from the Internet at 
http://swr.nmfs.noaa.gov/noaa370.htm.
    (i) A properly completed FCO and its attached certificates as 
described inSec. 216.91(a), if applicable, must accompany the required 
CBP entry documents that are filed at the time of import.
    (ii) FCOs and associated certifications as described inSec. 
216.91(a), if any, that accompany imported shipments of tuna must be 
submitted by the importer of record to the Tuna Tracking and 
Verification Program, Southwest Region, within 10 calendar days of the 
shipment's entry into the commerce of the United States. FCOs submitted 
via mail should be sent to the Tuna Tracking and Verification Program, 
Southwest Region, P.O. Box 32469, Long Beach, CA 90832-2469. Copies of 
the documents may be submitted electronically using a secure file 
transfer protocol (FTP) site. Importers of record interested in 
submitting FCOs and associated certifications via FTP may contact a 
representative of the Tuna Tracking and Verification Program at the 
following email address: [email protected] The Tuna Tracking and 
Verification Program will facilitate secure transfer and protection of 
certifications by assigning a separate electronic folder for each 
importer. Access to the electronic folder will require a user 
identification and password. The Tuna Tracking and Verification Program 
will assign each importer a unique user identification and password. 
Safeguarding the confidentiality of the user identification and password 
is the responsibility of the importer to whom they are assigned. Copies 
of the documents may also be submitted via mail either on compact disc 
or as hard copies. All electronic submissions, whether via FTP or on 
compact disc, must be in Portable Document Format (PDF).
    (iii) FCOs that accompany imported shipments of tuna destined for 
further processing in the United States must be endorsed at each change 
in ownership and submitted to the Administrator, Southwest Region, by 
the last endorser when all required endorsements are completed.
    (iv) Importers and exporters are required to retain their records, 
including FCOs, import or export documents, invoices, and bills of 
lading for 2 years, and such records must be made available within 30 
days of a request by the Secretary or the Administrator, Southwest 
Region.
    (4) Contents of Fisheries Certificate of Origin. An FCO, certified 
to be accurate by the exporter(s) of the accompanying shipment, must 
include the following information:
    (i) CBP entry identification;
    (ii) Date of entry;
    (iii) Exporter's full name and complete address;
    (iv) Importer's or consignee's full name and complete address;
    (v) Species description, product form, and HTS number;
    (vi) Total net weight of the shipment in kilograms;
    (vii) Ocean area where the fish were harvested (ETP, western Pacific 
Ocean, south Pacific Ocean, north Pacific Ocean, eastern Atlantic Ocean, 
western Atlantic Ocean, Caribbean Sea, Indian Ocean, or other);
    (viii) Type of fishing gear used to harvest the fish (purse seine, 
longline,

[[Page 35]]

baitboat, large-scale driftnet, gillnet, pole and line/hook and line, or 
other);
    (ix) Country under whose laws the harvesting vessel operated based 
upon the flag of the vessel or, if a certified charter vessel, the 
country that accepted responsibility for the vessel's fishing 
operations;
    (x) Dates on which the fishing trip began and ended;
    (xi) The name of the harvesting vessel;
    (xii) Dolphin-safe condition of the shipment, described by checking 
the appropriate statement on the form and attaching additional 
certifications as described inSec. 216.91(a) if required;
    (xiii) For shipments containing fish or fish products exported from, 
or harvested on the high seas by vessels of a nation known to use large-
scale driftnets, as determined by the Secretary pursuant to paragraph 
(f)(7) of this section, the High Seas Driftnet Certification contained 
on the FCO must be dated and signed by a responsible government official 
of the large-scale driftnet nation, certifying that the fish or fish 
products were harvested by a method other than large-scale driftnet; and
    (xiv) Each importer, exporter, or processor who takes custody of the 
shipment must sign and date the form to certify that the form and 
attached documentation accurately describes the shipment of fish that 
they accompany.
    (5) Dolphin-safe label. Tuna or tuna products sold in or exported 
from the United States that include on the label the term ``dolphin-
safe'' or any other term or symbol that claims or suggests the tuna were 
harvested in a manner not injurious to dolphins are subject to the 
requirements of subpart H of this part (Sec.  216.90 et seq.).
    (6) Scope of embargoes--(i) ETP yellowfin tuna embargo. Yellowfin 
tuna or products of yellowfin tuna harvested using a purse seine in the 
ETP identified by an HTS number listed in paragraph (f)(2)(i) of this 
section may not be imported into the United States if such tuna or tuna 
products were:
    (A) Harvested on or after March 3, 1999, the effective date of 
section 4 of the IDCPA, and harvested by, or exported from, a nation 
that the Assistant Administrator has determined has jurisdiction over 
purse seine vessels of greater than 400 st (362.8 mt) carrying capacity 
harvesting tuna in the ETP, unless the Assistant Administrator has made 
an affirmative finding required for importation for that nation under 
paragraph (f)(8) of this section;
    (B) Exported from an intermediary nation, as defined in Section 3 of 
the MMPA, and a ban is currently in force prohibiting the importation 
from that nation under paragraph (f)(9) of this section; or
    (C) Harvested before March 3, 1999, the effective date of Section 4 
of the IDCPA, and would have been banned from importation under Section 
101(a)(2) of the MMPA at the time of harvest.
    (ii) Driftnet embargo. A shipment containing fish or fish products 
identified by an HTS number listed in paragraph (f)(2) of this section 
may not be imported into the United States if it is harvested by a 
large-scale driftnet, or if it is exported from or harvested on the high 
seas by any nation determined by the Assistant Administrator to be 
engaged in large-scale driftnet fishing, unless a government official of 
the large-scale driftnet nation completes, signs and dates the High Seas 
Driftnet section of the FCO certifying that the fish or fish products 
were harvested by a method other than large-scale driftnet.
    (iii) Pelly certification. After 6 months of an embargo being in 
place against a nation under this section, the Secretary will certify 
that nation under section 8(a) of the Fishermen's Protective Act (22 
U.S.C. 1978(a)). When such an embargo is lifted, the Secretary will 
terminate the certification under Section 8(d) of that Act (22 U.S.C. 
1978(d)).
    (iv) Coordination. The Assistant Administrator will promptly advise 
the Department of State and the Department of Homeland Security of 
embargo decisions, actions, and finding determinations.
    (7) Large-scale driftnet nation: determination. Based upon the best 
information available, the Assistant Administrator will determine which 
nations have registered vessels that engage in fishing using large-scale 
driftnets. Such determinations will be published

[[Page 36]]

in the Federal Register. A responsible government official of any such 
nation may certify to the Assistant Administrator that none of the 
nation's vessels use large-scale driftnets. Upon receipt of the 
certification, the Assistant Administrator may find, and publish such 
finding in the Federal Register, that none of that nation's vessels 
engage in fishing with large-scale driftnets.
    (8) Affirmative finding procedure for nations harvesting yellowfin 
tuna using a purse seine in the ETP. (i) The Assistant Administrator 
will determine, on an annual basis, whether to make an affirmative 
finding based upon documentary evidence provided by the government of 
the harvesting nation or by the IDCP and the IATTC, and will publish the 
finding in the Federal Register. A finding will remain valid for 1 year 
or for such other period as the Assistant Administrator may determine. 
An affirmative finding will be terminated if the Assistant Administrator 
determines that the requirements of this paragraph are no longer being 
met. Every 5 years, the government of the harvesting nation must submit 
such documentary evidence directly to the Assistant Administrator and 
request an affirmative finding. Documentary evidence must be submitted 
by the harvesting nation for the first affirmative finding application. 
The Assistant Administrator may require the submission of supporting 
documentation or other verification of statements made in connection 
with requests to allow importations. An affirmative finding applies to 
yellowfin tuna and yellowfin tuna products that were harvested by 
vessels of the nation after March 3, 1999. To make an affirmative 
finding, the Assistant Administrator must find that:
    (A) The harvesting nation participates in the IDCP and is either a 
member of the IATTC or has initiated (and within 6 months thereafter 
completed) all steps required of applicant nations, in accordance with 
article V, paragraph 3, of the Convention establishing the IATTC, to 
become a member of that organization;
    (B) The nation is meeting its obligations under the IDCP and its 
obligations of membership in the IATTC, including all financial 
obligations;
    (C)(1) The annual total dolphin mortality of the nation's purse 
seine fleet (including certified charter vessels operating under its 
jurisdiction) did not exceed the aggregated total of the mortality 
limits assigned by the IDCP for that nation's purse seine vessels for 
the year preceding the year in which the finding would start; or
    (2)(i) Because of extraordinary circumstances beyond the control of 
the nation and the vessel captains, the total dolphin mortality of the 
nation's purse seine fleet (including certified charter vessels 
operating under its jurisdiction) exceeded the aggregated total of the 
mortality limits assigned by the IDCP for that nation's purse seine 
vessels; and
    (ii) Immediately after the national authorities discovered the 
aggregate mortality of its fleet had been exceeded, the nation required 
all its vessels to cease fishing for tuna in association with dolphins 
for the remainder of the calendar year; and
    (D)(1) In any years in which the parties agree to a global 
allocation system for per-stock per-year individual stock quotas, the 
nation responded to the notification from the IATTC that an individual 
stock quota had been reached by prohibiting any additional sets on the 
stock for which the quota had been reached;
    (2) If a per-stock per-year quota is allocated to each nation, the 
annual per-stock per-year dolphin mortality of the nation's purse seine 
fleet (including certified charter vessels operating under its 
jurisdiction) did not exceed the aggregated total of the per-stock per-
year limits assigned by the IDCP for that nation's purse seine vessels 
(if any) for the year preceding the year in which the finding would 
start; or
    (3)(i) Because of extraordinary circumstances beyond the control of 
the nation and the vessel captains, the per-stock per-year dolphin 
mortality of the nation's purse seine fleet (including certified charter 
vessels operating under its jurisdiction) exceeded the aggregated total 
of the per-stock per-year limits assigned by the IDCP for that nation's 
purse seine vessels; and

[[Page 37]]

    (ii) Immediately after the national authorities discovered the 
aggregate per-stock mortality limits of its fleet had been exceeded, the 
nation required all its vessels to cease fishing for tuna in association 
with the stocks whose limits had been exceeded, for the remainder of the 
calendar year.
    (ii) Documentary Evidence and Compliance with the IDCP--(A) 
Documentary Evidence. The Assistant Administrator will make an 
affirmative finding under paragraph (f)(8)(i) of this section only if 
the government of the harvesting nation provides directly to the 
Assistant Administrator, or authorizes the IATTC to release to the 
Assistant Administrator, complete, accurate, and timely information that 
enables the Assistant Administrator to determine whether the harvesting 
nation is meeting the obligations of the IDCP, and whether ETP-harvested 
tuna imported from such nation comports with the tracking and 
verification regulations of subpart H of this part.
    (B) Revocation. After considering the information provided under 
paragraph (f)(8)(ii)(A) of this section, each party's financial 
obligations to the IATTC, and any other relevant information, including 
information that a nation is consistently failing to take enforcement 
actions on violations that diminish the effectiveness of the IDCP, the 
Assistant Administrator, in consultation with the Secretary of State, 
will revoke an affirmative finding issued to a nation that is not 
meeting the obligations of the IDCP.
    (iii) A harvesting nation may apply for an affirmative finding at 
any time by providing to the Assistant Administrator the information and 
authorizations required in paragraphs (f)(8)(i) and (f)(8)(ii) of this 
section, allowing at least 60 days from the submission of complete 
information to NMFS for processing.
    (iv) The Assistant Administrator will make or renew an affirmative 
finding for the period from April 1 through March 31 of the following 
year, or portion thereof, if the harvesting nation has provided all the 
information and authorizations required by paragraphs (f)(8)(i) and 
(f)(8)(ii) of this section, and has met the requirements of paragraphs 
(f)(8)(i) and (f)(8)(ii) of this section.
    (v) Reconsideration of finding. The Assistant Administrator may 
reconsider a finding upon a request from, and the submission of 
additional information by, the harvesting nation, if the information 
indicates that the nation has met the requirements under paragraphs 
(f)(8)(i) and (f)(8)(ii) of this section.
    (9) Intermediary nation. Except as authorized under this paragraph, 
no yellowfin tuna or yellowfin tuna products harvested by purse seine in 
the ETP classified under one of the HTS numbers listed in paragraph 
(f)(2)(i) of this section may be imported into the United States from 
any intermediary nation.
    (i) An ``intermediary nation'' is a nation that exports yellowfin 
tuna or yellowfin tuna products to the United States and that imports 
yellowfin tuna or yellowfin tuna products that are subject to a direct 
ban on importation into the United States pursuant to Section 
101(a)(2)(B) of the MMPA.
    (ii) Shipments of yellowfin tuna that pass through any nation (e.g. 
on a 'through Bill of Lading') and are not entered for consumption in 
that nation are not considered to be imports to that nation and thus, 
would not cause that nation to be considered an intermediary nation 
under the MMPA.
    (iii) The Assistant Administrator will publish in the Federal 
Register a notice announcing when NMFS has determined, based on the best 
information available, that a nation is an ``intermediary nation.'' 
After the effective date of that notice, the import restrictions of this 
paragraph shall apply.
    (iv) Changing the status of intermediary nation determinations. 
Imports from an intermediary nation of yellowfin tuna and yellowfin tuna 
products classified under any of the HTS numbers in paragraph (f)(2)(i) 
of this section may be imported into the United States only if the 
Assistant Administrator determines, and publishes a notice of such 
determination in the Federal Register, that the intermediary nation has 
provided certification and reasonable proof that it has not imported in 
the preceding 6 months

[[Page 38]]

yellowfin tuna or yellowfin tuna products that are subject to a ban on 
direct importation into the United States under Section 101(a)(2)(B) of 
the MMPA. At that time, the nation shall no longer be considered an 
``intermediary nation'' and these import restrictions shall no longer 
apply.
    (v) The Assistant Administrator will review decisions under this 
paragraph upon the request of an intermediary nation. Such requests must 
be accompanied by specific and detailed supporting information or 
documentation indicating that a review or reconsideration is warranted. 
For purposes of this paragraph, the term ``certification and reasonable 
proof'' means the submission to the Assistant Administrator by a 
responsible government official from the nation of a document reflecting 
the nation's customs records for the preceding 6 months, together with a 
certification attesting that the document is accurate.
    (10) Fish refused entry. If fish is denied entry under paragraph 
(f)(2) of this section, the Port Director of CBP shall refuse to release 
the fish for entry into the United States.
    (11) Disposition of fish refused entry into the United States. Fish 
that is denied entry under paragraph (f)(2) of this section and that is 
not exported under CBP supervision within 90 days shall be disposed of 
under CBP laws and regulations at the importer's expense. Provided, 
however, that any disposition shall not result in an introduction into 
the United States of fish caught in violation of the MMPA.
    (12) Market Prohibitions. (i) It is unlawful for any person to sell, 
purchase, offer for sale, transport, or ship in the United States, any 
tuna or tuna products unless the tuna products are either:
    (A) Dolphin-safe under subpart H of this part; or
    (B) Harvested in compliance with the IDCP by vessels under the 
jurisdiction of a nation that is a member of the IATTC or has initiated, 
and within 6 months thereafter completes, all steps required by an 
applicant nation to become a member of the IATTC.
    (ii) It is unlawful for any exporter, transshipper, importer, 
processor, or wholesaler/distributor to possess, sell, purchase, offer 
for sale, transport, or ship in the United States, any tuna or tuna 
products bearing a label or mark that refers to dolphins, porpoises, or 
marine mammals unless the label or mark complies with the requirements 
of 16 U.S.C. 1385(d).
    (g) Penalties. Any person or vessel subject to the jurisdiction of 
the United States will be subject to the penalties provided for under 
the MMPA for the conduct of fishing operations in violation of these 
regulations. Penalties for violating these regulations may include, but 
are not limited to, civil monetary fines, permit suspension or 
revocation, and reductions in current and future DMLs. Recommended 
sanctions are identified in the IDCPA/DPCIA Tuna/Dolphin Civil 
Administrative Penalty Schedule. Procedures for the imposition of 
penalties under the MMPA are found at 15 CFR part 904.

[69 FR 55297, Sept. 13, 2004, as amended at 70 FR 19008, Apr. 12, 2005; 
74 FR 1613, Jan. 13, 2009]



Sec.  216.25  Exempted marine mammals and marine mammal products.

    (a) The provisions of the MMPA and these regulations shall not 
apply:
    (1) To any marine mammal taken before December 21, 1972 \1\, or
---------------------------------------------------------------------------

    \1\ In the context of captive maintenance of marine mammals, the 
only marine mammals exempted under this section are those that were 
actually captured or otherwise in captivity before December 21, 1972.
---------------------------------------------------------------------------

    (2) To any marine mammal product if the marine mammal portion of 
such product consists solely of a marine mammal taken before such date.
    (b) The prohibitions contained inSec. 216.12(c) (3) and (4) shall 
not apply to marine mammals or marine mammal products imported into the 
United States before the date on which a notice is published in the 
Federal Register with respect to the designation of the species or stock 
concerned as depleted or endangered.
    (c) Section 216.12(b) shall not apply to articles imported into the 
United States before the effective date of the foreign law making the 
taking or sale, as the case may be, of such marine

[[Page 39]]

mammals or marine mammal products unlawful.

[39 FR 1852, Jan. 15, 1974, as amended at 56 FR 43888, Sept. 5, 1991; 59 
FR 50376, Oct. 3, 1994]



Sec.  216.26  Collection of certain marine mammal parts without prior
authorization.

    Notwithstanding any other provision of this subpart:
    (a) Any bones, teeth or ivory of any dead marine mammal may be 
collected from a beach or from land within\1/4\ of a mile of the ocean. 
The term ocean includes bays and estuaries.
    (b) Notwithstanding the provisions of subpart D, soft parts that are 
sloughed, excreted, or discharged naturally by a living marine mammal in 
the wild may be collected or imported for bona fide scientific research 
and enhancement, provided that collection does not involve the taking of 
a living marine mammal in the wild.
    (c) Any marine mammal part collected under paragraph (a) of this 
section or any marine mammal part collected and imported under paragraph 
(b) of this section must be registered and identified, and may be 
transferred or otherwise possessed, in accordance withSec. 216.22(c). 
In registering a marine mammal part collected or imported under 
paragraph (b) of this section, the person who collected or imported the 
part must also state the scientific research or enhancement purpose for 
which the part was collected or imported.
    (d) No person may purchase, sell or trade for commercial purposes 
any marine mammal part collected or imported under this section.
    (e) The export of parts collected without prior authorization under 
paragraph (b) of this section may occur if consistent with the 
provisions atSec. 216.37(d) under subpart D.

[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50376, Oct. 3, 1994; 61 
FR 21933, May 10, 1996]



Sec.  216.27  Release, non-releasability, and disposition under special
exception permits for rehabilitated marine mammals.

    (a) Release requirements. (1) Any marine mammal held for 
rehabilitation must be released within six months of capture or import 
unless the attending veterinarian determines that:
    (i) The marine mammal might adversely affect marine mammals in the 
wild;
    (ii) Release of the marine mammal to the wild will not likely be 
successful given the physical condition and behavior of the marine 
mammal; or
    (iii) More time is needed to determine whether the release of the 
marine mammal to the wild will likely be successful. Releasability must 
be reevaluated at intervals of no less than six months until 24 months 
from capture or import, at which time there will be a rebuttable 
presumption that release into the wild is not feasible.
    (2) The custodian of the rehabilitated marine mammal shall provide 
written notification prior to any release into the wild.
    (i) Notification shall be provided to:
    (A) The NMFS Regional Director at least 15 days in advance of 
releasing any beached or stranded marine mammal, unless advance notice 
is waived in writing by the Regional Director; or
    (B) The Office Director at least 30 days in advance of releasing any 
imported marine mammal.
    (ii) Notification shall include the following:
    (A) A description of the marine mammal, including its physical 
condition and estimated age;
    (B) The date and location of release; and
    (C) The method and duration of transport prior to release.
    (3) The Regional Director, or the Office Director as appropriate, 
may:
    (i) Require additional information prior to any release;
    (ii) Change the date or location of release, or the method or 
duration of transport prior to release;
    (iii) Impose additional conditions to improve the likelihood of 
success or to monitor the success of the release; or
    (iv) Require other disposition of the marine mammal.
    (4) All marine mammals must be released near wild populations of the 
same species, and stock if known, unless a waiver is granted by the 
Regional Director or the Office Director.

[[Page 40]]

    (5) All marine mammals released must be tagged or marked in a manner 
acceptable to the Regional Director or the Office Director. The tag 
number or description of the marking must be reported to the Regional 
Director or Office Director following release.
    (b) Non-releasability and postponed determinations. (1) The 
attending veterinarian shall provide the Regional Director or Office 
Director with a written report setting forth the basis of any 
determination under paragraphs (a)(1)(i) through (iii) of this section.
    (2) Upon receipt of a report under paragraph (b)(1) of this section, 
the Regional Director or Office Director, in their sole discretion, may:
    (i) Order the release of the marine mammal;
    (ii) Order continued rehabilitation for an additional 6 months; or
    (iii) Order other disposition as authorized.
    (3) No later than 30 days after a marine mammal is determined 
unreleasable in accordance with paragraphs (a)(1)(i) through (iii) of 
this section, the person with authorized custody must:
    (i) Request authorization to retain or transfer custody of the 
marine mammal in accordance with paragraph (c) of this section, or;
    (ii) Humanely euthanize the marine mammal or arrange any other 
disposition of the marine mammal authorized by the Regional Director or 
Office Director.
    (4) Notwithstanding any of the provisions of this section, the 
Office Director may require use of a rehabilitated marine mammal for any 
activity authorized under subpart D in lieu of animals taken from the 
wild.
    (5) Any rehabilitated beached or stranded marine mammal placed on 
public display following a non-releasability determination under 
paragraph (a)(1) of this section and pending disposition under paragraph 
(c) of this section, or any marine mammal imported for medical treatment 
otherwise unavailable and placed on public display pending disposition 
after such medical treatment is concluded, must be held in captive 
maintenance consistent with all requirements for public display.
    (c) Disposition for a special exception purpose. (1) Upon receipt of 
an authorization request made under paragraph (b)(3)(i) of this section, 
or release notification under (a)(2), the Office Director may authorize 
the retention or transfer of custody of the marine mammal for a special 
exception purpose authorized under subpart D.
    (2) The Office Director will first consider requests from a person 
authorized to hold the marine mammal for rehabilitation. The Office 
Director may authorize such person to retain or transfer custody of the 
marine mammal for scientific research, enhancement, or public display 
purposes.
    (3) The Office Director may authorize retention or transfer of 
custody of the marine mammal only if:
    (i) Documentation has been submitted to the Office Director that the 
person retaining the subject animal or the person receiving custody of 
the subject animal by transfer, hereinafter referred to as the 
recipient, complies with public display requirements of 16 U.S.C. 
1374(c)(2)(A) or, for purposes of scientific research and enhancement, 
holds an applicable permit, or an application for such a special 
exception permit underSec. 216.33 or a request for a major amendment 
underSec. 216.39 has been submitted to the Office Director and has 
been found complete;
    (ii) The recipient agrees to hold the marine mammal in conformance 
with all applicable requirements and standards; and
    (iii) The recipient acknowledges that the marine mammal is subject 
to seizure by the Office Director:
    (A) If, at any time pending issuance of the major amendment or 
permit, the Office Director determines that seizure is necessary in the 
interest of the health or welfare of the marine mammal;
    (B) If the major amendment or permit is denied; or
    (C) If the recipient is issued a notice of violation and assessment, 
or is subject to permit sanctions, in accordance with 15 CFR part 904.
    (4) There shall be no remuneration associated with any transfer, 
provided that, the transferee may reimburse the

[[Page 41]]

transferor for any and all costs associated with the rehabilitation and 
transport of the marine mammal.
    (5) Marine mammals undergoing rehabilitation or pending disposition 
under this section shall not be subject to public display, unless such 
activities are specifically authorized by the Regional Director or the 
Office Director, and conducted consistent with the requirements 
applicable to public display. Such marine mammals shall not be trained 
for performance or be included in any aspect of a program involving 
interaction with the public; and
    (6) Marine mammals undergoing rehabilitation shall not be subject to 
intrusive research, unless such activities are specifically authorized 
by the Office Director in consultation with the Marine Mammal Commission 
and its Committee of Scientific Advisors on Marine Mammals, and are 
conducted pursuant to a scientific research permit.
    (d) Reporting. In addition to the report required underSec. 
216.22(b), the person authorized to hold marine mammals for 
rehabilitation must submit reports to the Regional Director or Office 
Director regarding release or other disposition. These reports must be 
provided in the form and frequency specified by the Regional Director or 
Office Director.

[61 FR 21933, May 10, 1996]



                      Subpart D_Special Exceptions



Sec.  216.30  [Reserved]



Sec.  216.31  Definitions.

    For the purpose of this subpart, the definitions set forth in 50 CFR 
part 217 shall apply to all threatened and endangered marine mammals, 
unless a more restrictive definition exists under the MMPA or part 216.

[61 FR 21935, May 10, 1996]



Sec.  216.32  Scope.

    The regulations of this subpart apply to:
    (a) All marine mammals and marine mammal parts taken or born in 
captivity after December 20, 1972; and
    (b) All marine mammals and marine mammal parts that are listed as 
threatened or endangered under the ESA.

[61 FR 21935, May 10, 1996]



Sec.  216.33  Permit application submission, review, and decision
procedures.

    (a) Application submission. Persons seeking a special exemption 
permit under this subpart must submit an application to the Office 
Director. The application must be signed by the applicant, and provide 
in a properly formatted manner all information necessary to process the 
application. Written instructions addressing information requirements 
and formatting may be obtained from the Office Director upon request.
    (b) Applications to export living marine mammals. For applicants 
seeking a special exception permit to export living marine mammals, the 
application must:
    (1) Be submitted through the Convention on International Trade in 
Endangered Fauna and Flora management authority of the foreign 
government or, if different, the appropriate agency or agencies of the 
foreign government that exercises oversight over marine mammals.
    (2) Include a certification from the foreign government that:
    (i) The information set forth in the application is accurate;
    (ii) The laws and regulations of the foreign governmentinvolved 
allow enforcement of the terms and conditions of the permit, and that 
the foreign government will enforce all terms and conditions; and
    (iii) The foreign government involved will afford comity to any 
permit amendment, modification, suspension or revocation decision.
    (c) Initial review. (1) NMFS will notify the applicant of receipt of 
the application.
    (2) During the initial review, the Office Director will determine:
    (i) Whether the application is complete.
    (ii) Whether the proposed activity is for purposes authorized under 
this subpart.

[[Page 42]]

    (iii) If the proposed activity is for enhancement purposes, whether 
the species or stock identified in the application is in need of 
enhancement for its survival or recovery and whether the proposed 
activity will likely succeed in its objectives.
    (iv) Whether the activities proposed are to be conducted consistent 
with the permit restrictions and permit specific conditions as described 
inSec. 216.35 andSec. 216.36(a).
    (v) Whether sufficient information is included regarding the 
environmental impact of the proposed activity to enable the Office 
Director:
    (A) To make an initial determination under the National 
Environmental Policy Act (NEPA) as to whether the proposed activity is 
categorically excluded from preparation of further environmental 
documentation, or whether the preparation of an environmental assessment 
(EA) or environmental impact statement (EIS) is appropriate or 
necessary; and
    (B) To prepare an EA or EIS if an initial determination is made by 
the Office Director that the activity proposed is not categorically 
excluded from such requirements.
    (3) The Office Director may consult with the Marine Mammal 
Commission (Commission) and its Committee of Scientific Advisors on 
Marine Mammals (Committee) in making these initial, and any subsequent, 
determinations.
    (4) Incomplete applications will be returned with explanation. If 
the applicant fails to resubmit a complete application or correct the 
identified deficiencies within 60 days, the application will be deemed 
withdrawn. Applications that propose activities inconsistent with this 
subpart will be returned with explanation, and will not be considered 
further.
    (d) Notice of receipt and application review. (1) Upon receipt of a 
valid, complete application, and the preparation of any NEPA 
documentation that has been determined initially to be required, the 
Office Director will publish a notice of receipt in the Federal 
Register. The notice will:
    (i) Summarize the application, including:
    (A) The purpose of the request;
    (B) The species and number of marine mammals;
    (C) The type and manner of special exception activity proposed;
    (D) The location(s) in which the marine mammals will be taken, from 
which they will be imported, or to which they will be exported; and
    (E) The requested period of the permit.
    (ii) List where the application is available for review.
    (iii) Invite interested parties to submit written comments 
concerning the application within 30 days of the date of the notice.
    (iv) Include a NEPA statement that an initial determination has been 
made that the activity proposed is categorically excluded from the 
requirement to prepare an EA or EIS, that an EA was prepared resulting 
in a finding of no significant impact, or that a final EIS has been 
prepared and is available for review.
    (2) The Office Director will forward a copy of the complete 
application to the Commission for comment. If no comments are received 
within 45 days (or such longer time as the Office Director may 
establish) the Office Director will consider the Commission to have no 
objection to issuing a permit.
    (3) The Office Director may consult with any other person, 
institution, or agency concerning the application.
    (4) Within 30 days of publication of the notice of receipt in the 
Federal Register, any interested party may submit written comments or 
may request a public hearing on the application.
    (5) If the Office Director deems it advisable, the Office Director 
may hold a public hearing within 60 days of publication of the notice of 
receipt in the Federal Register. Notice of the date, time, and place of 
the public hearing will be published in the Federal Register not less 
than 15 days in advance of the public hearing. Any interested person may 
appear in person or through representatives and may submit any relevant 
material, data, views, or comments. A summary record of the hearing will 
be kept.
    (6) The Office Director may extend the period during which any 
interested party may submit written comments.

[[Page 43]]

Notice of the extension must be published in the Federal Register within 
60 days of publication of the notice of receipt in the Federal Register.
    (7) If, after publishing a notice of receipt, the Office Director 
determines on the basis of new information that an EA or EIS must be 
prepared, the Office Director must deny the permit unless an EA is 
prepared with a finding of no significant impact. If a permit is denied 
under these circumstances the application may be resubmitted with 
information sufficient to prepare an EA or EIS, and will be processed as 
a new application.
    (e) Issuance or denial procedures. (1) Within 30 days of the close 
of the public hearing or, if no public hearing is held, within 30 days 
of the close of the public comment period, the Office Director will 
issue or deny a special exception permit.
    (2) The decision to issue or deny a permit will be based upon:
    (i) All relevant issuance criteria set forth atSec. 216.34;
    (ii) All purpose-specific issuance criteria as appropriate set forth 
atSec. 216.41,Sec. 216.42, andSec. 216.43;
    (iii) All comments received or views solicited on the permit 
application; and
    (iv) Any other information or data that the Office Director deems 
relevant.
    (3) If the permit is issued, upon receipt, the holder must date and 
sign the permit, and return a copy of the original to the Office 
Director. The permit shall be effective upon the permit holder's signing 
of the permit. In signing the permit, the holder:
    (i) Agrees to abide by all terms and conditions set forth in the 
permit, and all restrictions and relevant regulations under this 
subpart; and
    (ii) Acknowledges that the authority to conduct certain activities 
specified in the permit is conditional and subject to authorization by 
the Office Director.
    (4) Notice of the decision of the Office Director shall be published 
in the Federal Register within 10 days after the date of permit issuance 
or denial and shall indicate where copies of the permit, if issued, may 
be reviewed or obtained. If the permit issued involves marine mammals 
listed as endangered or threatened under the ESA, the notice shall 
include a finding by the Office Director that the permit:
    (i) Was applied for in good faith;
    (ii) If exercised, will not operate to the disadvantage of such 
endangered or threatened species; and
    (iii) Is consistent with the purposes and policy set forth in 
section 2 of the ESA.
    (5) If the permit is denied, the Office Director shall provide the 
applicant with an explanation for the denial.
    (6) Under the MMPA, the Office Director may issue a permit for 
scientific research before the end of the public comment period if 
delaying issuance could result in injury to a species, stock, or 
individual, or in loss of unique research opportunities. The Office 
Director also may waive the 30-day comment period required under the ESA 
in an emergency situation where the health or life of an endangered or 
threatened marine mammal is threatened and no reasonable alternative is 
available. If a permit is issued under these circumstances, notice of 
such issuance before the end of the comment period shall be published in 
the Federal Register within 10 days of issuance.
    (7) The applicant or any party opposed to a permit may seek judicial 
review of the terms and conditions of such permit or of a decision to 
deny such permit. Review may be obtained by filing a petition for review 
with the appropriate U.S. District Court as provided for by law.

[61 FR 21935, May 10, 1996]



Sec.  216.34  Issuance criteria.

    (a) For the Office Director to issue any permit under this subpart, 
the applicant must demonstrate that:
    (1) The proposed activity is humane and does not present any 
unnecessary risks to the health and welfare of marine mammals;
    (2) The proposed activity is consistent with all restrictions set 
forth atSec. 216.35 and any purpose-specific restrictions as 
appropriate set forth atSec. 216.41,Sec. 216.42, andSec. 216.43;

[[Page 44]]

    (3) The proposed activity, if it involves endangered or threatened 
marine mammals, will be conducted consistent with the purposes and 
policies set forth in section 2 of the ESA;
    (4) The proposed activity by itself or in combination with other 
activities, will not likely have a significant adverse impact on the 
species or stock;
    (5) Whether the applicant's expertise, facilities, and resources are 
adequate to accomplish successfully the objectives and activities stated 
in the application;
    (6) If a live animal will be held captive or transported, the 
applicant's qualifications, facilities, and resources are adequate for 
the proper care and maintenance of the marine mammal; and
    (7) Any requested import or export will not likely result in the 
taking of marine mammals or marine mammal parts beyond those authorized 
by the permit.
    (b) The opinions or views of scientists or other persons or 
organizations knowledgeable of the marine mammals that are the subject 
of the application or of other matters germane to the application will 
be considered.

[61 FR 21936, May 10, 1996]



Sec.  216.35  Permit restrictions.

    The following restrictions shall apply to all permits issued under 
this subpart:
    (a) The taking, importation, export, or other permitted activity 
involving marine mammals and marine mammal parts shall comply with the 
regulations of this subpart.
    (b) The maximum period of any special exception permit issued, or 
any major amendment granted, is five years from the effective date of 
the permit or major amendment. In accordance with the provisions of 
Sec.  216.39, the period of a permit may be extended by a minor 
amendment up to 12 months beyond that established in the original 
permit.
    (c) Except as provided for inSec. 216.41(c)(1)(v), marine mammals 
or marine mammal parts imported under the authority of a permit must be 
taken or imported in a humane manner, and in compliance with the Acts 
and any applicable foreign law. Importation of marine mammals and marine 
mammal parts is subject to the provisions of 50 CFR part 14.
    (d) The permit holder shall not take from the wild any marine mammal 
which at the time of taking is either unweaned or less than eight months 
old, or is a part of a mother-calf/pup pair, unless such take is 
specifically authorized in the conditions of the special exception 
permit. Additionally, the permit holder shall not import any marine 
mammal that is pregnant or lactating at the time of taking or import, or 
is unweaned or less than eight months old unless such import is 
specifically authorized in the conditions of the special exception 
permit.
    (e) Captive marine mammals shall not be released into the wild 
unless specifically authorized by the Office Director under a scientific 
research or enhancement permit.
    (f) The permit holder is responsible for all activities of any 
individual who is operating under the authority of the permit;
    (g) Individuals conducting activities authorized under the permit 
must possess qualifications commensurate with their duties and 
responsibilities, or must be under the direct supervision of a person 
with such qualifications;
    (h) Persons who require state or Federal licenses to conduct 
activities authorized under the permit must be duly licensed when 
undertaking such activities;
    (i) Special exception permits are not transferable or assignable to 
any other person, and a permit holder may not require any direct or 
indirect compensation from another person in return for requesting 
authorization for such person to conduct the taking, import, or export 
activities authorized under the subject permit;
    (j) The permit holder or designated agent shall possess a copy of 
the permit when engaged in a permitted activity, when the marine mammal 
is in transit incidental to such activity, and whenever marine mammals 
or marine mammal parts are in the possession of the permit holder or 
agent. A copy of the permit shall be affixed to any container, package, 
enclosure, or other means of containment, in which the marine mammals or 
marine mammal

[[Page 45]]

parts are placed for purposes of transit, supervision, or care. For 
marine mammals held captive and marine mammal parts in storage, a copy 
of the permit shall be kept on file in the holding or storage facility.

[61 FR 21936, May 10, 1996]



Sec.  216.36  Permit conditions.

    (a) Specific conditions. (1) Permits issued under this subpart shall 
contain specific terms and conditions deemed appropriate by the Office 
Director, including, but not limited to:
    (i) The number and species of marine mammals that are authorized to 
be taken, imported, exported, or otherwise affected;
    (ii) The manner in which marine mammals may be taken according to 
type of take;
    (iii) The location(s) in which the marine mammals may be taken, from 
which they may be imported, or to which they may be exported, as 
applicable, and, for endangered or threatened marine mammal species to 
be imported or exported, the port of entry or export;
    (iv) The period during which the permit is valid.
    (2) [Reserved]
    (b) Other conditions. In addition to the specific conditions imposed 
pursuant to paragraph (a) of this section, the Office Director shall 
specify any other permit conditions deemed appropriate.

[61 FR 21937, May 10, 1996]



Sec.  216.37  Marine mammal parts.

    With respect to marine mammal parts acquired by take or import 
authorized under a permit issued under this subpart:
    (a) Marine mammal parts are transferrable if:
    (1) The person transferring the part receives no remuneration of any 
kind for the marine mammal part;
    (2) The person receiving the marine mammal part is:
    (i) An employee of NMFS, the U.S. Fish and Wildlife Service, or any 
other governmental agency with conservation and management 
responsibilities, who receives the part in the course of their official 
duties;
    (ii) A holder of a special exception permit which authorizes the 
take, import, or other activity involving the possession of a marine 
mammal part of the same species as the subject part; or
    (iii) In the case of marine mammal parts from a species that is not 
depleted, endangered or threatened, a person who is authorized under 
section 112(c) of the MMPA and subpart C of this part to take or import 
marine mammals or marine mammal parts;
    (iv) Any other person specifically authorized by the Regional 
Director, consistent with the requirements of paragraphs (a)(1) and 
(a)(3) through (6) of this section.
    (3) The marine mammal part is transferred for the purpose of 
scientific research, maintenance in a properly curated, professionally 
accredited scientific collection, or education, provided that, for 
transfers for educational purposes, the recipient is a museum, 
educational institution or equivalent that will ensure that the part is 
available to the public as part of an educational program;
    (4) A unique number assigned by the permit holder is marked on or 
affixed to the marine mammal part or container;
    (5) The person receiving the marine mammal part agrees that, as a 
condition of receipt, subsequent transfers may only occur subject to the 
provisions of paragraph (a) of this section; and
    (6) Within 30 days after the transfer, the person transferring the 
marine mammal part notifies the Regional Director of the transfer, 
including a description of the part, the person to whom the part was 
transferred, the purpose of the transfer, certification that the 
recipient has agreed to comply with the requirements of paragraph (a) of 
this section for subsequent transfers, and, if applicable, the 
recipient's permit number.
    (b) Marine mammal parts may be loaned to another person for a 
purpose described in paragraph (a)(3) of this section and without the 
agreement and notification required under paragraphs (a)(5) and (6) of 
this section, if:
    (1) A record of the loan is maintained; and

[[Page 46]]

    (2) The loan is for not more than one year. Loans for a period 
greater than 12 months, including loan extensions or renewals, require 
notification of the Regional Director under paragraph (a)(6).
    (c) Unless other disposition is specified in the permit, a holder of 
a special exception permit may retain marine mammal parts not destroyed 
or otherwise disposed of during or after a scientific research or 
enhancement activity, if such marine mammal parts are:
    (1) Maintained as part of a properly curated, professionally 
accredited collection; or
    (2) Made available for purposes of scientific research or 
enhancement at the request of the Office Director.
    (d) Marine mammal parts may be exported and subsequently reimported 
by a permit holder or subsequent authorized recipient, for the purpose 
of scientific research, maintenance in a properly curated, 
professionally accredited scientific collection, or education, provided 
that:
    (1) The permit holder or other person receives no remuneration for 
the marine mammal part;
    (2) A unique number assigned by the permit holder is marked on or 
affixed to the marine mammal specimen or container;
    (3) The marine mammal part is exported or reimported in compliance 
with all applicable domestic and foreign laws;
    (4) If exported or reimported for educational purposes, the 
recipient is a museum, educational institution, or equivalent that will 
ensure that the part is available to the public as part of an 
educational program; and
    (5) Special reports are submitted within 30 days after both export 
and reimport as required by the Office Director underSec. 216.38.

[61 FR 21937, May 10, 1996]



Sec.  216.38  Reporting.

    All permit holders must submit annual, final, and special reports in 
accordance with the requirements established in the permit, and any 
reporting format established by the Office Director.

[61 FR 21937, May 10, 1996]



Sec.  216.39  Permit amendments.

    (a) General. Special exception permits may be amended by the Office 
Director. Major and minor amendments may be made to permits in response 
to, or independent of, a request from the permit holder. Amendments must 
be consistent with the Acts and comply with the applicable provisions of 
this subpart.
    (1) A major amendment means any change to the permit specific 
conditions underSec. 216.36(a) regarding:
    (i) The number and species of marine mammals that are authorized to 
be taken, imported, exported, or otherwise affected;
    (ii) The manner in which these marine mammals may be taken, 
imported, exported, or otherwise affected, if the proposed change may 
result in an increased level of take or risk of adverse impact;
    (iii) The location(s) in which the marine mammals may be taken, from 
which they may be imported, and to which they may be exported, as 
applicable; and
    (iv) The duration of the permit, if the proposed extension would 
extend the duration of the permit more than 12 months beyond that 
established in the original permit.
    (2) A minor amendment means any amendment that does not constitute a 
major amendment.
    (b) Amendment requests and proposals. (1) Requests by a permit 
holder for an amendment must be submitted in writing and include the 
following:
    (i) The purpose and nature of the amendment;
    (ii) Information, not previously submitted as part of the permit 
application or subsequent reports, necessary to determine whether the 
amendment satisfies all issuance criteria set forth atSec. 216.34, 
and, as appropriate,Sec. 216.41,Sec. 216.42, andSec. 216.43.
    (iii) Any additional information required by the Office Director for 
purposes of reviewing the proposed amendment.
    (2) If an amendment is proposed by the Office Director, the permit 
holder will be notified of the proposed amendment, together with an 
explanation.
    (c) Review of proposed amendments--(1) Major amendments. The 
provisions of

[[Page 47]]

Sec.  216.33(d) and (e) governing notice of receipt, review and decision 
shall apply to all proposed major amendments.
    (2) Minor amendments. (i) After reviewing all appropriate 
information, the Office Director will provide the permit holder with 
written notice of the decision on a proposed or requested amendment, 
together with an explanation for the decision.
    (ii) If the minor amendment extends the duration of the permit 12 
months or less from that established in the original permit, notice of 
the minor amendment will be published in the Federal Register within 10 
days from the date of the Office Director's decision.
    (iii) A minor amendment will be effective upon a final decision by 
the Office Director.

[61 FR 21937, May 10, 1996]



Sec.  216.40  Penalties and permit sanctions.

    (a) Any person who violates any provision of this subpart or permit 
issued thereunder is subject to civil and criminal penalties, permit 
sanctions and forfeiture as authorized under the Acts, and 15 CFR part 
904.
    (b) All special exception permits are subject to suspension, 
revocation, modification and denial in accordance with the provisions of 
subpart D of 15 CFR part 904.

[61 FR 21938, May 10, 1996]



Sec.  216.41  Permits for scientific research and enhancement.

    In addition to the requirements under Sec.Sec. 216.33 through 
216.38, permits for scientific research and enhancement are governed by 
the following requirements:
    (a) Applicant. (1) For each application submitted under this 
section, the applicant shall be the principal investigator responsible 
for the overall research or enhancement activity. If the research or 
enhancement activity will involve a periodic change in the principal 
investigator or is otherwise controlled by and dependent upon another 
entity, the applicant may be the institution, governmental entity, or 
corporation responsible for supervision of the principal investigator.
    (2) For any scientific research involving captive maintenance, the 
application must include supporting documentation from the person 
responsible for the facility or other temporary enclosure.
    (b) Issuance Criteria. For the Office Director to issue any 
scientific research or enhancement permit, the applicant must 
demonstrate that:
    (1) The proposed activity furthers a bona fide scientific or 
enhancement purpose;
    (2) If the lethal taking of marine mammals is proposed:
    (i) Non-lethal methods for conducting the research are not feasible; 
and
    (ii) For depleted, endangered, or threatened species, the results 
will directly benefit that species or stock, or will fulfill a 
critically important research need.
    (3) Any permanent removal of a marine mammal from the wild is 
consistent with any applicable quota established by the Office Director.
    (4) The proposed research will not likely have significant adverse 
effects on any other component of the marine ecosystem of which the 
affected species or stock is a part.
    (5) For species or stocks designated or proposed to be designated as 
depleted, or listed or proposed to be listed as endangered or 
threatened:
    (i) The proposed research cannot be accomplished using a species or 
stock that is not designated or proposed to be designated as depleted, 
or listed or proposed to be listed as threatened or endangered;
    (ii) The proposed research, by itself or in combination with other 
activities will not likely have a long-term direct or indirect adverse 
impact on the species or stock;
    (iii) The proposed research will either:
    (A) Contribute to fulfilling a research need or objective identified 
in a species recovery or conservation plan, or if there is no 
conservation or recovery plan in place, a research need or objective 
identified by the Office Director in stock assessments established under 
section 117 of the MMPA;
    (B) Contribute significantly to understanding the basic biology or 
ecology

[[Page 48]]

of the species or stock, or to identifying, evaluating, or resolving 
conservation problems for the species or stock; or
    (C) Contribute significantly to fulfilling a critically important 
research need.
    (6) For proposed enhancement activities:
    (i) Only living marine mammals and marine mammal parts necessary for 
enhancement of the survival, recovery, or propagation of the affected 
species or stock may be taken, imported, exported, or otherwise affected 
under the authority of an enhancement permit. Marine mammal parts would 
include in this regard clinical specimens or other biological samples 
required for the conduct of breeding programs or the diagnosis or 
treatment of disease.
    (ii) The activity will likely contribute significantly to 
maintaining or increasing distribution or abundance, enhancing the 
health or welfare of the species or stock, or ensuring the survival or 
recovery of the affected species or stock in the wild.
    (iii) The activity is consistent with:
    (A) An approved conservation plan developed under section 115(b) of 
the MMPA or recovery plan developed under section 4(f) of the ESA for 
the species or stock; or
    (B) If there is no conservation or recovery plan, with the Office 
Director's evaluation of the actions required to enhance the survival or 
recovery of the species or stock in light of the factors that would be 
addressed in a conservation or recovery plan.
    (iv) An enhancement permit may authorize the captive maintenance of 
a marine mammal from a threatened, endangered, or depleted species or 
stock only if the Office Director determines that:
    (A) The proposed captive maintenance will likely contribute directly 
to the survival or recovery of the species or stock by maintaining a 
viable gene pool, increasing productivity, providing necessary 
biological information, or establishing animal reserves required to 
support directly these objectives; and
    (B) The expected benefit to the species or stock outweighs the 
expected benefits of alternatives that do not require removal of marine 
mammals from the wild.
    (v) The Office Director may authorize the public display of marine 
mammals held under the authority of an enhancement permit only if:
    (A) The public display is incidental to the authorized captive 
maintenance;
    (B) The public display will not interfere with the attainment of the 
survival or recovery objectives;
    (C) The marine mammals will be held consistent with all requirements 
and standards that are applicable to marine mammals held under the 
authority of the Acts and the Animal Welfare Act, unless the Office 
Director determines that an exception is necessary to implement an 
essential enhancement activity; and
    (D) The marine mammals will be excluded from any interactive program 
and will not be trained for performance.
    (vi) The Office Director may authorize non-intrusive scientific 
research to be conducted while a marine mammal is held under the 
authority of an enhancement permit, only if such scientific research:
    (A) Is incidental to the permitted enhancement activities; and
    (B) Will not interfere with the attainment of the survival or 
recovery objectives.
    (c) Restrictions. (1) The following restrictions apply to all 
scientific research permits issued under this subpart:
    (i) Research activities must be conducted in the manner authorized 
in the permit.
    (ii) Research results shall be published or otherwise made available 
to the scientific community in a reasonable period of time.
    (iii) Research activities must be conducted under the direct 
supervision of the principal investigator or a co-investigator 
identified in the permit.
    (iv) Personnel involved in research activities shall be reasonable 
in number and limited to:
    (A) Individuals who perform a function directly supportive of and 
necessary to the permitted research activity; and
    (B) Support personnel included for the purpose of training or as 
backup

[[Page 49]]

personnel for persons described in paragraph (c)(1)(iv)(A).
    (v) Any marine mammal part imported under the authority of a 
scientific research permit must not have been obtained as the result of 
a lethal taking that would be inconsistent with the Acts, unless 
authorized by the Office Director.
    (vi) Marine mammals held under a permit for scientific research 
shall not be placed on public display, included in an interactive 
program or activity, or trained for performance unless such activities:
    (A) Are necessary to address scientific research objectives and have 
been specifically authorized by the Office Director under the scientific 
research permit; and
    (B) Are conducted incidental to and do not in any way interfere with 
the permitted scientific research; and
    (C) Are conducted in a manner consistent with provisions applicable 
to public display, unless exceptions are specifically authorized by the 
Office Director.
    (vii) Any activity conducted incidental to the authorized scientific 
research activity must not involve any taking of marine mammals beyond 
what is necessary to conduct the research (i.e., educational and 
commercial photography).
    (2) Any marine mammal or progeny held in captive maintenance under 
an enhancement permit shall be returned to its natural habitat as soon 
as feasible, consistent with the terms of the enhancement permit and the 
objectives of an approved conservation or recovery plan. In accordance 
with section 10(j) of the ESA, the Office Director may authorize the 
release of any population of an endangered or threatened species outside 
the current range of such species if the Office Director determines that 
such release will further the conservation of such species.

[61 FR 21938, May 10, 1996]



Sec.  216.42  Photography. [Reserved]



Sec.  216.43  Public display. [Reserved]



Sec.  216.44  Applicability/transition.

    (a) General. The regulations of this subpart are applicable to all 
persons, including persons holding permits or other authorizing 
documents issued before June 10, 1996, by NMFS for the take, import, 
export, or conduct of any otherwise prohibited activity involving a 
marine mammal or marine mammal part for special exception purposes.
    (b) Scientific research. Any intrusive research as defined inSec. 
216.3, initiated after June 10, 1996, must be authorized under a 
scientific research permit. Intrusive research authorized by the Office 
Director to be conducted on captive marine mammals held for public 
display purposes prior to June 10, 1996, must be authorized under a 
scientific research permit one year after June 10, 1996.

[61 FR 21939, May 10, 1996]



Sec.  216.45  General Authorization for Level B harassment for
scientific research.

    (a) General Authorization. (1) Persons are authorized under section 
104(c)(3)(C) of the MMPA to take marine mammals in the wild by Level B 
harassment, as defined inSec. 216.3, for purposes of bona fide 
scientific research Provided, That:
    (i) They submit a letter of intent in accordance with the 
requirements of paragraph (b) of this section, receive confirmation that 
the General Authorization applies in accordance with paragraph (c) of 
this section, and comply with the terms and conditions of paragraph (d) 
of this section; or
    (ii) If such marine mammals are listed as endangered or threatened 
under the ESA, they have been issued a permit under Section 10(a)(1)(A) 
of the ESA and implementing regulations at 50 CFR parts 217-227, 
particularly atSec. 222.23 throughSec. 222.28, to take marine 
mammals in the wild for the purpose of scientific research, the taking 
authorized under the permit involves such Level B harassment of marine 
mammals or marine mammal stocks, and they comply with the terms and 
conditions of that permit.
    (2) Except as provided under paragraph (a)(1)(ii) of this section, 
no taking, including harassment, of marine mammals listed as threatened 
or endangered under the ESA is authorized under the General 
Authorization. Marine mammals listed as endangered or

[[Page 50]]

threatened under the ESA may be taken for purposes of scientific 
research only after issuance of a permit for such activities pursuant to 
the ESA.
    (3) The following types of research activities will likely qualify 
for inclusion under the General Authorization: Photo-identification 
studies, behavioral observations, and vessel and aerial population 
surveys (except aerial surveys over pinniped rookeries at altitudes of 
less than 1,000 ft).
    (b) Letter of intent. Except as provided under paragraph (a)(1)(ii) 
of this section, any person intending to take marine mammals in the wild 
by Level B harassment for purposes of bona fide scientific research 
under the General Authorization must submit, at least 60 days before 
commencement of such research, a letter of intent by certified return/
receipt mail to the Chief, Permits Division, F/PR1, Office of Protected 
Resources, NMFS, 1335 East-West Highway, Silver Spring, MD 20910-3226.
    (1) The letter of intent must be submitted by the principal 
investigator (who shall be deemed the applicant). For purposes of this 
section, the principal investigator is the individual who is responsible 
for the overall research project, or the institution, governmental 
entity, or corporation responsible for supervision of the principal 
investigator.
    (2) The letter of intent must include the following information:
    (i) The name, address, telephone number, qualifications and 
experience of the applicant and any co-investigator(s) to be conducting 
the proposed research, and a curriculum vitae for each, including a list 
of publications by each such investigator relevant to the objectives, 
methodology, or other aspects of the proposed research;
    (ii) The species or stocks of marine mammals (common and scientific 
names) that are the subject of the scientific research and any other 
species or stock of marine mammals that may be harassed during the 
conduct of the research;
    (iii) The geographic location(s) in which the research is to be 
conducted, e.g., geographic name or lat./long.;
    (iv) The period(s) of time over which the research will be conducted 
(up to five years), including the field season(s) for the research, if 
applicable;
    (v) The purpose of the research, including a description of how the 
proposed research qualifies as bona fide research as defined inSec. 
216.3; and
    (vi) The methods to be used to conduct the research.
    (3) The letter of intent must be signed, dated, and certified by the 
applicant as follows:

    In accordance with section 104(c)(3)(C) of the Marine Mammal 
Protection Act of 1972, as amended (16 U.S.C. 1361 et seq.) and 
implementing regulations (50 CFR part 216), I hereby notify the National 
Marine Fisheries Service of my intent to conduct research involving only 
Level B harassment on marine mammals in the wild, and request 
confirmation that the General Authorization for Level B Harassment for 
Scientific Research applies to the proposed research as described 
herein. I certify that the information in this letter of intent is 
complete, true, and correct to the best of my knowledge and belief, and 
I understand that any false statement may subject me to the criminal 
penalties of 18 U.S.C. 1001, or penalties under the MMPA and 
implementing regulations. I acknowledge and accept that authority to 
conduct scientific research on marine mammals in the wild under the 
General Authorization is a limited conditional authority restricted to 
Level B harassment only, and that any other take of marine mammals, 
including the conduct of any activity that has the potential to injure 
marine mammals (i.e., Level A harassment), may subject me to penalties 
under the MMPA and implementing regulations.

    (c) Confirmation that the General Authorization applies or 
notification of permit requirement. (1) Not later than 30 days after 
receipt of a letter of intent as described in paragraph (b) of this 
section, the Chief, Permits Division, NMFS will issue a letter to the 
applicant either:
    (i) Confirming that the General Authorization applies to the 
proposed scientific research as described in the letter of intent;
    (ii) Notifying the applicant that all or part of the research 
described in the letter of intent is likely to result in a taking of a 
marine mammal in the wild

[[Page 51]]

involving other than Level B harassment and, as a result, cannot be 
conducted under the General Authorization, and that a scientific 
research permit is required to conduct all or part of the subject 
research; or
    (iii) Notifying the applicant that the letter of intent fails to 
provide sufficient information and providing a description of the 
deficiencies, or notifying the applicant that the proposed research as 
described in the letter of intent is not bona fide research as defined 
inSec. 216.3.
    (2) A copy of each letter of intent and letter confirming that the 
General Authorization applies or notifying the applicant that it does 
not apply will be forwarded to the Marine Mammal Commission.
    (3) Periodically, NMFS will publish a summary document in the 
Federal Register notifying the public of letters of confirmation issued.
    (d) Terms and conditions. Persons issued letters of confirmation in 
accordance with paragraph (c) of this section are responsible for 
complying with the following terms and conditions:
    (1) Activities are limited to those conducted for the purposes, by 
the means, in the locations, and during the periods of time described in 
the letter of intent and acknowledged as authorized under the General 
Authorization in the confirmation letter sent pursuant to paragraph (c) 
of this section;
    (2) Annual reports of activities conducted under the General 
Authorization must be submitted to the Chief, Permits Division (address 
listed in paragraph (b) of this section) within 90 days of completion of 
the last field season(s) during the calendar year or, if the research is 
not conducted during a defined field season, no later than 90 days after 
the anniversary date of the letter of confirmation issued under 
paragraph (c) of this section. Annual reports must include:
    (i) A summary of research activities conducted;
    (ii) Identification of the species and number of each species taken 
by Level B harassment;
    (iii) An evaluation of the progress made in meeting the objectives 
of the research as described in the letter of intent; and
    (iv) Any incidental scientific, educational, or commercial uses of 
photographs, videotape, and film obtained as a result of or incidental 
to the research and if so, names of all photographers.
    (3) Authorization to conduct research under the General 
Authorization is for the period(s) of time identified in the letter of 
intent or for a period of 5 years from the date of the letter of 
confirmation issued under paragraph (c) of this section, whichever is 
less, unless extended by the Director or modified, suspended, or revoked 
in accordance with paragraph (e) of this section;
    (4) Activities conducted under the General Authorization may only be 
conducted under the on-site supervision of the principal investigator or 
co-investigator(s) named in the letter of intent. All personnel involved 
in the conduct of activities under the General Authorization must 
perform a function directly supportive of and necessary for the research 
being conducted, or be one of a reasonable number of support personnel 
included for the purpose of training or as back-up personnel;
    (5) The principal investigator must notify the appropriate Regional 
Director, NMFS, (Regional Director) in writing at least 2 weeks before 
initiation of on-site activities. The Regional Director shall consider 
this information in efforts to coordinate field research activities to 
minimize adverse impacts on marine mammals in the wild. The principal 
investigator must cooperate with coordination efforts by the Regional 
Director in this regard;
    (6) If research activities result in a taking which exceeds Level B 
harassment, the applicant shall:
    (i) Report the taking within 12 hours to the Director, Office of 
Protected Resources, or his designee as set forth in the letter 
authorizing research; and
    (ii) Temporarily discontinue for 72 hours all field research 
activities that resulted in the taking. During this time period, the 
applicant shall consult with NMFS as to the circumstances surrounding 
the taking and any precautions necessary to prevent future taking, and 
may agree to amend the research protocol, as deemed necessary by NMFS.

[[Page 52]]

    (7) NMFS may review scientific research conducted pursuant to the 
General Authorization. If requested by NMFS, the applicant must 
cooperate with any such review and shall:
    (i) Allow any employee of NOAA or any other person designated by the 
Director, Office of Protected Resources to observe research activities; 
and
    (ii) Provide any documents or other information relating to the 
scientific research;
    (8) Any photographs, videotape, or film obtained during the conduct 
of research under the General Authorization must be identified by a 
statement that refers to the General Authorization or ESA permit number, 
and includes the file number provided by NMFS in the confirmation 
letter, the name of the photographer, and the date the image was taken. 
This statement must accompany the image(s) in all subsequent uses or 
sales. The annual report must note incidental scientific, educational, 
or commercial uses of the images, and if there are any such uses, the 
names of all photographers; and
    (9) Persons conducting scientific research under authority of the 
General Authorization may not transfer or assign any authority granted 
thereunder to any other person.
    (e) Suspension, revocation, or modification. (1) NMFS may suspend, 
revoke, or modify the authority to conduct scientific research under the 
General Authorization if:
    (i) The letter of intent included false information or statements of 
a material nature;
    (ii) The research does not constitute bona fide scientific research;
    (iii) Research activities result in takings of marine mammals other 
than by Level B harassment;
    (iv) Research activities differ from those described in the letter 
of intent submitted by the applicant and letter of confirmation issued 
by NMFS; or
    (v) The applicant violates any term or condition set forth in this 
section.
    (2) Any suspension, revocation, or modification is subject to the 
requirements of 15 CFR part 904.

[59 FR 50376, Oct. 3, 1994]



Sec.  216.46  U.S. citizens on foreign flag vessels operating under the
International Dolphin Conservation Program.

    The MMPA's provisions do not apply to a citizen of the United States 
who incidentally takes any marine mammal during fishing operations in 
the ETP which are outside the U.S. exclusive economic zone (as defined 
in section 3 of the Magnuson-Stevens Fishery Conservation and Management 
Act (16 U.S.C. 1802)), while employed on a fishing vessel of a 
harvesting nation that is participating in, and in compliance with, the 
IDCP.

[65 FR 56, Jan. 3, 2000]



Sec.  216.47  Access to marine mammal tissue, analyses, and data.

    (a) Applications for the National Marine Mammal Tissue Bank samples 
(NMMTB). (1) A principal investigator, contributor or holder of a 
scientific research permit issued in accordance with the provisions of 
this subpart may apply for access to a tissue specimen sample in the 
NMMTB. Applicants for tissue specimen samples from the NMMTB must submit 
a signed written request with attached study plan to the Marine Mammal 
Health and Stranding Response Program (MMHSRP) Program Manager, Office 
of Protected Resources, NMFS. The written request must include:
    (i) A clear and concise statement of the proposed use of the banked 
tissue specimen. The applicant must demonstrate that the proposed use of 
the banked tissue is consistent with the goals of the NMMTB and the 
MMHSRP.
    (A) The goals of the MMHSRP are to facilitate the collection and 
dissemination of reference data on marine mammals and health trends of 
marine mammal populations in the wild; to correlate the health of marine 
mammals and marine mammal populations in the wild with available data on 
physical, chemical, and biological environmental parameters; and to 
coordinate effective responses to unusual mortality events.
    (B) The goal of the NMMTB is to maintain quality controlled marine 
mammal tissues that will permit retrospective analyses to determine 
environmental trends of contaminants and

[[Page 53]]

other analytes of interest and that will provide the highest quality 
samples for analyses using new and innovative techniques.
    (ii) A copy of the applicant's scientific research permit. The 
applicant must demonstrate that the proposed use of the banked tissue is 
authorized by the permit;
    (iii) Name of principal investigator, official title, and affiliated 
research or academic organization;
    (iv) Specific tissue sample and quantity desired;
    (v) Research facility where analyses will be conducted. The 
applicant must demonstrate that the research facility will follow the 
Analytical Quality Assurance (AQA) program, which was designed to ensure 
the accuracy, precision, level of detection, and intercompatibility of 
data resulting from chemical analyses of marine mammal tissues. The AQA 
consists of annual interlaboratory comparisons and the development of 
control materials and standard reference materials for marine mammal 
tissues;
    (vi) Verification that funding is available to conduct the research;
    (vii) Estimated date for completion of research, and schedule/date 
of subsequent reports;
    (viii) Agreement that all research findings based on use of the 
banked tissue will be reported to the NMMTB, MMHSRP Program Manager and 
the contributor; and the sequences of tissue specimen samples that are 
used/released for genetic analyses (DNA sequencing) will be archived in 
the National Center for biotechnology Information's GenBank. Sequence 
accessions in GenBank should document the source, citing a NIST field 
number that indentifies the animal; and
    (ix) Agreement that credit and acknowledgment will be given to U.S. 
Fish and Wildlife Service (USFWS), US Geologic Service (USGS), National 
Institute of Standards and Technology (NIST), the Minerals Management 
Service (MMS), NMFS, the NMMTB, and the collector for use of banked 
tissues.
    (2) The applicant shall insert the following acknowledgment in all 
publications, abstracts, or presentations based on research using the 
banked tissue:

    The specimens used in this study were collected by [the contributor] 
and provided by the National Marine Mammal Tissue Bank, which is 
maintained in the National Biomonitoring Specimen Bank at NIST and which 
is operated under the direction of NMFS with the collaboration of MMS, 
USGS, USFWS, and NIST through the Marine Mammal Health and Stranding 
Response Program [and the Alaska Marine Mammal Tissue Archival Project 
if the samples are from Alaska].

    (3) Upon submission of a complete application, the MMHSRP Program 
Manager will send the request and attached study plan to the following 
entities which will function as the review committee:
    (i) Appropriate Federal agency (NMFS or USFWS) marine mammal 
management office for that particular species; and
    (ii) Representatives of the NMMTB Collaborating Agencies (NMFS, 
USFS, USGS Biological Resources Division, and NIST) If no member of the 
review committee is an expert in the field that is related to the 
proposed research activity, any member may request an outside review of 
the proposal, which may be outside of NMFS or USFWS but within the 
Federal Government.
    (4) The MMHSRP Program Manager will send the request and attached 
study plan to any contributor(s) of the tissue specimen sample. The 
contributor(s) of the sample may submit comments on the proposed 
research activity to the Director, Office of Protected Resources within 
30 days of the date that the request was sent to the contributor(s).
    (5) The USFWS Representative of the NMMTB Collaborating Agencies 
will be chair of review committees for requests involving species 
managed by the DOI. The MMHSRP Program Manager will be chair of all 
other review committees.
    (6) Each committee chair will provide recommendations on the request 
and an evaluation of the study plan to the Director, Office of Protected 
Resources, NMFS.
    (7) The Director, Office of Protected Resources, NMFS, will make the 
final decision on release of the samples based on the advice provided by 
the review committee, comments received from any contributor(s) of the 
sample

[[Page 54]]

within the time provided in paragraph (a)(4) of this section, and 
determination that the proposed use of the banked tissue specimen is 
consistent with the goals of the MMHSRP and the NMMTB. The Director will 
send a written decision to the applicant and send copies to all review 
committee members. If the samples are released, the response will 
indicate whether the samples have been homogenized and, if not, the 
homogenization schedule.
    (8) The applicant will bear all shipping and homogenization costs 
related to use of any specimens from the NMMTB.
    (9) The applicant will dispose of the tissue specimen sample 
consistent with the provisions of the applicant's scientific research 
permit after the research is completed, unless the requester submits 
another request and receives approval pursuant to this section. The 
request must be submitted within three months after the original project 
has been completed.
    (b) [Reserved]

[69 FR 41979, July 13, 2004]



Sec.Sec. 216.48-216.49  [Reserved]



                       Subpart E_Designated Ports



Sec.  216.50  Importation at designated ports.

    (a) Any marine mammal or marine mammal product which is subject to 
the jurisdiction of the National Marine Fisheries Service, National 
Oceanic and Atmospheric Administration, Department of Commerce and is 
intended for importation into the United States shall be subject to the 
provisions of 50 CFR part 14.
    (b) For the information of importers, designated ports of entry for 
the United States are:

New York, N.Y.
Miami, Fla.
Chicago, Ill.
San Francisco, Calif.
Los Angeles, Calif.
New Orleans, La.
Seattle, Wash.
Honolulu, Hi.

    (c) Additionally, marine mammals or marine mammal products which are 
entered into Alaska, Hawaii, Puerto Rico, Guam, American Samoa or the 
Virgin Islands and which are not to be forwarded or transhipped within 
the United States may be imported through the following ports:

Alaska--Juneau, Anchorage, Fairbanks
Hawaii--Honolulu
Puerto Rico--San Juan
Guam--Honolulu, Hi.
American Samoa--Honolulu, Hi.
Virgin Islands--San Juan, P.R.

    (d) Importers are advised to see 50 CFR part 14 for importation 
requirements and information.

[39 FR 1852, Jan. 15, 1974. Redesignated at 59 FR 50376, Oct. 3, 1994]



       Subpart F_Pribilof Islands, Taking for Subsistence Purposes



Sec.  216.71  Allowable take of fur seals.

    Pribilovians may take fur seals on the Pribilof Islands if such 
taking is
    (a) For subsistence uses, and
    (b) Not accomplished in a wasteful manner.

[51 FR 24840, July 9, 1986. Redesignated at 61 FR 11750, Mar. 22, 1996]



Sec.  216.72  Restrictions on taking.

    (a) The harvests of seals on St. Paul and St. George Islands shall 
be treated independently for the purposes of this section. Any 
suspension, termination, or extension of the harvest is applicable only 
to the island for which it is issued.
    (b) By April 1 of every third year, beginning April 1994, the 
Assistant Administrator will publish in the Federal Register a summary 
of the preceding 3 years of harvesting and a discussion of the number of 
seals expected to be taken annually over the next 3 years to satisfy the 
subsistence requirements of each island. This discussion will include an 
assessment of factors and conditions on St. Paul and St. George Islands 
that influence the need by Pribilof Aleuts to take seals for subsistence 
uses and an assessment of any changes to those conditions indicating 
that the number of seals that may be taken for subsistence each year 
should be made higher or lower. Following a 30-day public comment 
period, a final notification of the expected annual harvest levels for 
the next 3 years will be published.

[[Page 55]]

    (c)(1) No fur seal may be taken on the Pribilof Islands before June 
23 of each year.
    (2) No fur seal may be taken except by experienced sealers using the 
traditional harvesting methods, including stunning followed immediately 
by exsanguination. The harvesting method shall include organized drives 
of subadult males to killing fields unless it is determined by the NMFS 
representatives, in consultation with the Pribilovians conducting the 
harvest, that alternative methods will not result in increased 
disturbance to the rookery or the increased accidental take of female 
seals.
    (3) Any taking of adult fur seals or pups, or the intentional taking 
of subadult female fur seals is prohibited.
    (4) Only subadult male fur seals 124.5 centimeters or less in length 
may be taken.
    (5) Seals with tags and/or entangling debris may only be taken if so 
directed by NMFS scientists.
    (d) The scheduling of the harvest is at the discretion of the 
Pribilovians, but must be such as to minimize stress to the harvested 
seals. The Pribilovians must give adequate advance notice of their 
harvest schedules to the NMFS representatives to allow for necessary 
monitoring activities. Scheduling must be consistent with the following 
restrictions:
    (1) St. Paul Island--Seals may only be harvested from the following 
haulout areas: Zapadni, English Bay, Northeast Point, Polovina, Lukanin, 
Kitovi, and Reef. No haulout area may be harvested more than once per 
week.
    (2) St. George Island--Seals may only be harvested from the 
following haulout areas: Northeast and Zapadni. Neither haulout area may 
be harvested more than twice per week.
    (e)(1) The Assistant Administrator is required to suspend the take 
provided for inSec. 215.31 when:
    (i) He determines, after reasonable notice by NMFS representatives 
to the Pribilovians on the island, that the subsistence needs of the 
Pribilovians on the island have been satisfied;

or
    (ii) He determines that the harvest is otherwise being conducted in 
a wasteful manner; or
    (iii) The lower end of the range of the estimated subsistence level 
provided in the notice issued under paragraph (b) of this section is 
reached.
    (2) A suspension based on a determination under paragraph (e)(1)(ii) 
of this section may be lifted by the Assistant Administrator if he finds 
that the conditions which led to the determination that the harvest was 
being conducted in a wasteful manner have been remedied.
    (3) A suspension issued in accordance with paragraph (e)(1)(iii) of 
this section may not exceed 48 hours in duration and shall be followed 
immediately by a review of the harvest data to determine if a finding 
under paragraph (e)(1)(i) of this section is warranted. If a the harvest 
is not suspended under paragraph (e)(1)(i) of this section, the 
Assistant Administrator must provide a revised estimate of the number of 
seals required to satisfy the Pribilovians' subsistence needs.
    (f) The Assistant Administrator shall terminate the take provided 
for inSec. 215.31 on August 8 of each year or when it is determined 
under paragraph (e)(1)(i) of this section that the subsistence needs of 
the Pribilovians on the island have been satisfied, whichever occurs 
first.

[51 FR 24840, July 9, 1986, as amended at 57 FR 33902, July 31, 1992; 59 
FR 35474, July 12, 1994. Redesignated at 61 FR 11750, Mar. 22, 1996]



Sec.  216.73  Disposition of fur seal parts.

    Except for transfers to other Alaskan Natives for barter or sharing 
for personal or family consumption, no part of a fur seal taken for 
subsistence uses may be sold or otherwise transferred to any person 
unless it is a nonedible byproduct which:
    (a) Has been transformed into an article of handicraft, or
    (b) Is being sent by an Alaskan Native directly, or through a 
registered agent, to a tannery registered under 50 CFR 216.23(c) for the 
purpose of processing, and will be returned directly to the Alaskan 
Native for conversion into an article of handicraft, or
    (c) Is being sold or transferred to an Alaskan Native, or to an 
agent registered under 50 CFR 216.23(c) for resale or transfer to an 
Alaskan Native, who

[[Page 56]]

will convert the seal part into a handicraft.

[51 FR 24840, July 9, 1986. Redesignated at 61 FR 11750, Mar. 22, 1996]



Sec.  216.74  Cooperation with Federal officials.

    Pribilovians who engage in the harvest of seals are required to 
cooperate with scientists engaged in fur seal research on the Pribilof 
Islands who may need assistance in recording tag or other data and 
collecting tissue or other fur seal samples for research purposes. In 
addition, Pribilovians who take fur seals for subsistence uses must, 
consistent with 5 CFR 1320.7(k)(3), cooperate with the NMFS 
representatives on the Pribilof Islands who are responsible for 
compiling the following information on a daily basis:
    (a) The number of seals taken each day in the subsistence harvest,
    (b) The extent of the utilization of fur seals taken, and
    (c) Other information determined by the Assistant Administrator to 
be necessary for determining the subsistence needs of the Pribilovians 
or for making determinations underSec. 215.32(e).

[51 FR 24840, July 9, 1986. Redesignated at 61 FR 11750, Mar. 22, 1996]



                Subpart G_Pribilof Islands Administration



Sec.  216.81  Visits to fur seal rookeries.

    From June 1 to October 15 of each year, no person, except those 
authorized by a representative of the National Marine Fisheries Service, 
or accompanied by an authorized employee of the National Marine 
Fisheries Service, shall approach any fur seal rookery or hauling 
grounds nor pass beyond any posted sign forbidding passage.

[41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996]



Sec.  216.82  Dogs prohibited.

    In order to prevent molestation of fur seal herds, the landing of 
any dogs at Pribilof Islands is prohibited.

[41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996]



Sec.  216.83  Importation of birds or mammals.

    No mammals or birds, except household cats, canaries and parakeets, 
shall be imported to the Pribilof Islands without the permission of an 
authorized representative of the National Marine Fisheries Service.

[41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996]



Sec.  216.84  [Reserved]



Sec.  216.85  Walrus and Otter Islands.

    By Executive Order 1044, dated February 27, 1909, Walrus and Otter 
Islands were set aside as bird reservations. All persons are prohibited 
to land on these islands except those authorized by the appropriate 
representative of the National Marine Fisheries Service.

[41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996]



Sec.  216.86  Local regulations.

    Local regulations will be published from time to time and will be 
brought to the attention of local residents and persons assigned to duty 
on the Islands by posting in public places and brought to the attention 
of tourists by personal notice.

[41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996]



Sec.  216.87  Wildlife research.

    (a) Wildlife research, other than research on North Pacific fur 
seals, including specimen collection, may be permitted on the Pribilof 
Islands subject to the following conditions:
    (1) Any person or agency, seeking to conduct such research shall 
first obtain any Federal or State of Alaska permit required for the type 
of research involved.
    (2) Any person seeking to conduct such research shall obtain prior 
approval of the Director, Pribilof Islands Program, National Marine 
Fisheries Service, National Oceanic and Atmospheric Administration, 1700 
Westlake Avenue North, Seattle, WA 98109, by filing with the Director an 
application which shall include:
    (i) Copies of the required Federal and State of Alaska permits; and

[[Page 57]]

    (ii) A resume of the intended research program.
    (3) All approved research shall be subject to all regulations and 
administrative procedures in effect on the Pribilof Islands, and such 
research shall not commence until approval from the Director is 
received.
    (4) Any approved research program shall be subject to such terms and 
conditions as the Director, Pribilof Islands Program deems appropriate.
    (5) Permission to utilize the Pribilof Islands to conduct an 
approved research program may be revoked by the Director, Pribilof 
Islands Program at any time for noncompliance with any terms and 
conditions, or for violations of any regulation or administrative 
procedure in effect on the Pribilof Islands.

[43 FR 5521, Feb. 9, 1978. Redesignated at 61 FR 11750, Mar. 22, 1996]



                  Subpart H_Dolphin Safe Tuna Labeling

    Authority: 16 U.S.C. 1385.



Sec.  216.90  Purposes.

    This subpart governs the requirements for using the official mark 
described inSec. 216.95 or an alternative mark that refers to 
dolphins, porpoises, or marine mammals, to label tuna or tuna products 
offered for sale in or exported from the United States using the term 
dolphin-safe or suggesting the tuna were harvested in a manner not 
injurious to dolphins.

[69 FR 55307, Sept. 13, 2004]



Sec.  216.91  Dolphin-safe labeling standards.

    (a) It is a violation of Section 5 of the Federal Trade Commission 
Act (15 U.S.C. 45) for any producer, importer, exporter, distributor, or 
seller of any tuna products that are exported from or offered for sale 
in the United States to include on the label of those products the term 
``dolphin-safe'' or any other term or symbol that claims or suggests 
that the tuna contained in the products were harvested using a method of 
fishing that is not harmful to dolphins if the products contain tuna 
harvested:
    (1) ETP large purse seine vessel. In the ETP by a purse seine vessel 
of greater than 400 st (362.8 mt) carrying capacity unless:
    (i) the documentation requirements for dolphin-safe tuna underSec. 
216.92 and 216.93 are met;
    (ii) No dolphins were killed or seriously injured during the sets in 
which the tuna were caught; and
    (iii) None of the tuna were caught on a trip using a purse seine net 
intentionally deployed on or to encircle dolphins, provided that this 
paragraph (a)(1)(iii) will not apply if the Assistant Administrator 
publishes a notification in the Federal Register announcing a finding 
under 16 U.S.C. 1385(g)(2) that the intentional deployment of purse 
seine nets on or encirclement of dolphins is not having a significant 
adverse impact on any depleted stock.
    (2) Non-ETP purse seine vessel. Outside the ETP by a vessel using a 
purse seine net:
    (i) In a fishery in which the Assistant Administrator has determined 
that a regular and significant association occurs between dolphins and 
tuna (similar to the association between dolphins and tuna in the ETP), 
unless such products are accompanied as described inSec. 216.24(f)(3) 
by a written statement, executed by the Captain of the vessel and an 
observer participating in a national or international program acceptable 
to the Assistant Administrator, certifying that no purse seine net was 
intentionally deployed on or used to encircle dolphins during the 
particular trip on which the tuna were caught and no dolphins were 
killed or seriously injured in the sets in which the tuna were caught; 
or
    (ii) In any other fishery on a fishing trip that began before July 
13, 2013 unless the products are accompanied as described inSec. 
216.93(d), (e), or (f), as appropriate, by a written statement executed 
by the Captain of the vessel certifying that no purse seine net was 
intentionally deployed on or used to encircle dolphins during the 
particular trip on which the tuna was harvested;
    (iii) In any other fishery on a fishing trip that began on or after 
July 13, 2013 unless the products are accompanied as described inSec. 
216.93(d), (e), or (f), as appropriate, by:

[[Page 58]]

    (A) A written statement executed by the Captain of the vessel 
certifying that no purse seine net was intentionally deployed on or used 
to encircle dolphins during the fishing trip in which the tuna were 
caught, and that no dolphins were killed or seriously injured in the 
sets in which the tuna were caught; and
    (B) Where the Assistant Administrator has determined that observers 
participating in a national or international observer program are 
qualified and authorized to certify that no purse seine net was 
intentionally deployed on or used to encircle dolphins during the 
fishing trip in which the tuna were caught, and that no dolphins were 
killed or seriously injured in the sets in which the tuna were caught, 
and where such an observer is on board the vessel, a written statement 
executed by the observer, or by an authorized representative of a nation 
participating in the observer program based on information from the 
observer, certifying that no purse seine net was intentionally deployed 
on or used to encircle dolphins during the fishing trip in which the 
tuna were caught and that no dolphins were killed or seriously injured 
in the sets in which the tuna were caught. Any determination by the 
Assistant Administrator shall be announced in a notice published in the 
Federal Register. Determinations under this subparagraph will also be 
publicized on the Web site of the NMFS Southwest Region (http://
swr.nmfs.noaa.gov/).
    (3) Driftnet. By a vessel engaged in large-scale driftnet fishing; 
or
    (4) Other fisheries. By a vessel on a fishing trip that began on or 
after July 13, 2013 in a fishery other than one described in paragraphs 
(a)(1) through (3) of this section unless such product is accompanied as 
described in section 216.93(d), (e), or (f), as appropriate, by:
    (i) A written statement executed by the Captain of the vessel 
certifying that no dolphins were killed or seriously injured in the sets 
or other gear deployments in which the tuna were caught;
    (ii) Where the Assistant Administrator has determined that observers 
participating in a national or international observer program are 
qualified and authorized to certify that no dolphins were killed or 
seriously injured in the sets or other gear deployments in which the 
tuna were caught, and where such an observer is on board the vessel, a 
written statement executed by the observer, or by an authorized 
representative of a nation participating in the observer program based 
on information from the observer, certifying that no dolphins were 
killed or seriously injured in the sets or other gear deployments in 
which the tuna were caught. Any determination by the Assistant 
Administrator shall be announced in a notice published in the Federal 
Register. Determinations under this subparagraph will also be publicized 
on the Web site of the NMFS Southwest Region (http://swr.nmfs.noaa.gov/
); and
    (iii) In any other fishery that is identified by the Assistant 
Administrator as having a regular and significant mortality or serious 
injury of dolphins, a written statement executed by an observer 
participating in a national or international program acceptable to the 
Assistant Administrator, that no dolphins were killed or seriously 
injured in the sets or other gear deployments in which the tuna were 
caught, provided that the Assistant Administrator determines that such 
an observer statement is necessary.
    (5) All Fisheries. On a fishing trip that began on or after July 13, 
2013 during which any dolphin was killed or seriously injured, unless 
the tuna labeled dolphin-safe was caught in a set or other gear 
deployment was stored separately from tuna caught in non-dolphin-safe 
sets or other gear deployments by the use of netting, other material, or 
separate storage areas from the time of capture through unloading. If a 
purse seine vessel has more than one well used to store tuna, all tuna 
inside a well shall be considered non-dolphin-safe, if at any time non-
dolphin-safe tuna is loaded into the well, regardless of the use of 
netting or other material inside the well.
    (b) It is a violation of section 5 of the Federal Trade Commission 
Act (15 U.S.C. 45) to willingly and knowingly use a label referred to in 
this section in

[[Page 59]]

a campaign or effort to mislead or deceive consumers about the level of 
protection afforded dolphins under the IDCP.
    (c) A tuna product that is labeled with the official mark, described 
inSec. 216.95, may not be labeled with any other label or mark that 
refers to dolphins, porpoises, or marine mammals.

[69 FR 55307, Sept. 13, 2004, as amended at 74 FR 1617, Jan. 13, 2009; 
78 FR 41002, July 9, 2013]



Sec.  216.92  Dolphin-safe requirements for tuna harvested in the ETP
by large purse seine vessels.

    (a) U.S. vessels. Tuna products that contain tuna harvested by U.S. 
flag purse seine vessels of greater than 400 st (362.8 mt) carrying 
capacity in the ETP may be labeled dolphin-safe only if the following 
requirements are met:
    (1) Tuna Tracking Forms containing a complete record of all the 
fishing activities on the trip, certified by the vessel Captain and the 
observer, are submitted to the Administrator, Southwest Region, at the 
end of the fishing trip during which the tuna was harvested;
    (2) The tuna is delivered for processing to a U.S. tuna processor in 
a plant located in one of the 50 states, Puerto Rico, or American Samoa 
that is in compliance with the tuna tracking and verification 
requirements ofSec. 216.93; and
    (3) The tuna or tuna products meet the dolphin-safe labeling 
standards underSec. 216.91.
    (b) Imported tuna. (1) Yellowfin tuna or tuna products harvested in 
the ETP by vessels of greater than 400 st (362.8 mt) carrying capacity 
and presented for import into the United States may be labeled dolphin-
safe only if the yellowfin tuna was harvested by a U.S. vessel fishing 
in compliance with the requirements of the IDCP and applicable U.S. law, 
or by a vessel belonging to a nation that has obtained an affirmative 
finding underSec. 216.24(f)(8).
    (2) Tuna or tuna products, other than yellowfin tuna, harvested in 
the ETP by purse seine vessels of greater than 400 st (362.8 mt) 
carrying capacity and presented for import into the United States may be 
labeled dolphin-safe only if:
    (i) The tuna was harvested by a U.S. vessel fishing in compliance 
with the requirements of the IDCP and applicable U.S. law, or by a 
vessel belonging to a nation that is a Party to the Agreement on the 
IDCP or has applied to become a Party and is adhering to all the 
requirements of the Agreement on the IDCP Tuna Tracking and Verification 
Plan;
    (ii) The tuna or tuna products are accompanied as described inSec. 
216.24(f)(3) by a properly completed FCO; and
    (iii) The tuna or tuna products are accompanied as described in 
Sec.  216.24(f)(3) by valid documentation signed by a representative of 
the appropriate IDCP member nation, containing the harvesting vessel 
names and tuna tracking form numbers represented in the shipment, and 
certifying that:
    (A) There was an IDCP approved observer on board the vessel(s) 
during the entire trip(s); and
    (B) The tuna contained in the shipment were caught according to the 
dolphin-safe labeling standards ofSec. 216.91.

[69 FR 55307, Sept. 13, 2004, as amended at 74 FR 1617, Jan. 13, 2009]



Sec.  216.93  Tracking and verification program.

    The Administrator, Southwest Region, has established a national 
tracking and verification program to accurately document the dolphin-
safe condition of tuna, under the standards set forth in Sec.Sec. 
216.91 and 216.92. The tracking program includes procedures and reports 
for use when importing tuna into the United States and during U.S. 
fishing, processing, and marketing in the United States and abroad. 
Verification of tracking system operations is attained through the 
establishment of audit and document review requirements. The tracking 
program is consistent with the international tuna tracking and 
verification program adopted by the Parties to the Agreement on the 
IDCP.
    (a) Tuna tracking forms. Whenever a U.S. flag tuna purse seine 
vessel of greater than 400 st (362.8 mt) carrying capacity fishes in the 
ETP, IDCP approved Tuna Tracking Forms (TTFs), bearing a unique number 
assigned to that trip, are used by the observer to

[[Page 60]]

record every set made during that trip. One TTF is used to record 
dolphin-safe sets and a second TTF is used to record non-dolphin-safe 
sets. The information entered on the TTFs following each set includes 
the date, well number, weights by species composition, estimated tons 
loaded, and additional notes, if any. The observer and the vessel 
engineer initial the entry as soon as possible following each set, and 
the vessel captain and observer review and sign both TTFs at the end of 
the fishing trip certifying that the information on the forms is 
accurate. TTFs are confidential official documents of the IDCP, 
consistent with Article XVIII of the Agreement on the IDCP, and the 
Agreement on the IDCP Rules of Confidentiality.
    (b) Dolphin-Safe Certification. Upon request, the Office of the 
Administrator, Southwest Region, will provide written certification that 
tuna harvested by U.S. purse seine vessels greater than 400 st (362.8 
mt) carrying capacity is dolphin-safe, but only if NMFS' review of the 
TTFs for the subject trip shows that the tuna for which the 
certification is requested is dolphin-safe under the requirements of the 
Agreement on the IDCP and U.S. law.
    (c) Tracking fishing operations. (1) ETP large purse seine vessel. 
In the ETP by a purse seine vessel of greater than 400 st (362.8 mt) 
carrying capacity:
    (i) During fishing trips, any part of which included fishing in the 
ETP, by purse seine vessels greater than 400 st (362.8 mt) carrying 
capacity, tuna caught in sets designated as dolphin-safe by the vessel 
observer must be stored separately from tuna caught in non-dolphin-safe 
sets from the time of capture through unloading. Vessel personnel will 
decide into which wells tuna will be loaded. The observer will initially 
designate whether each set is dolphin-safe or not, based on his/her 
observation of the set. The observer will initially identify a vessel 
fish well as dolphin-safe if the first tuna loaded into the well during 
a trip was captured in a set in which no dolphin died or was seriously 
injured. The observer will initially identify a vessel fish well as non-
dolphin-safe if the first tuna loaded into the well during a trip was 
captured in a set in which a dolphin died or was seriously injured. Any 
tuna loaded into a well previously designated non-dolphin-safe is 
considered non-dolphin-safe tuna. The observer will change the 
designation of a dolphin-safe well to non-dolphin-safe if any tuna are 
loaded into the well that were captured in a set in which a dolphin died 
or was seriously injured.
    (ii) The captain, managing owner, or vessel agent of a U.S. purse 
seine vessel greater than 400 st (362.8 mt) returning to port from a 
trip, any part of which included fishing in the ETP, must provide at 
least 48 hours' notice of the vessel's intended place of landing, 
arrival time, and schedule of unloading to the Administrator, Southwest 
Region.
    (iii) If the trip terminates when the vessel enters port to unload 
part or all of its catch, new TTFs will be assigned to the new trip, and 
any information concerning tuna retained on the vessel will be recorded 
as the first entry on the TTFs for the new trip. If the trip is not 
terminated following a partial unloading, the vessel will retain the 
original TTFs and submit a copy of those TTFs to the Administrator, 
Southwest Region, within 5 working days. In either case, the species and 
amount unloaded will be noted on the respective originals.
    (iv) Tuna offloaded to trucks, storage facilities, or carrier 
vessels must be loaded or stored in such a way as to maintain and 
safeguard the identification of the dolphin-safe or non-dolphin-safe 
designation of the tuna as it left the fishing vessel.
    (v) The handling of TTFs and the tracking and verification of tuna 
caught in the Convention Area by a U.S. purse seine vessel greater than 
400 st (362.8 mt) carrying capacity shall be conducted consistent with 
the international tuna tracking and verification program adopted by the 
Parties to the Agreement on the IDCP.
    (2) Purse seine vessel other than ETP large purse seine vessel. This 
paragraph (c)(2) applies to tuna product labeled dolphin-safe that 
includes tuna harvested on a fishing trip that began on or after July 
13, 2013, in the ETP by a purse seine vessel of 400 st (362.8 mt) or 
less carrying capacity or by a purse seine vessel outside the ETP of any 
carrying capacity.

[[Page 61]]

    (i) Tuna caught in sets designated as dolphin-safe must be stored 
separately from tuna caught in non-dolphin-safe sets from the time of 
capture through unloading. Tuna caught in sets where a dolphin died or 
was seriously injured must be stored in a well designated as non-
dolphin-safe by the captain or, where applicable, by a qualified and 
authorized observer underSec. 216.91. Any tuna loaded into a well 
previously designated non-dolphin-safe is considered non-dolphin-safe 
tuna. The captain or, where applicable, a qualified and authorized 
observer underSec. 216.91, will change the designation of a dolphin-
safe well to non-dolphin-safe if any tuna are loaded into the well that 
were captured in a set in which a dolphin died or was seriously injured. 
If a purse seine vessel has only one well used to store tuna, dolphin-
safe tuna must be kept physically separate from non-dolphin-safe tuna by 
using netting or other material. If a purse seine vessel has more than 
one well used to store tuna, all tuna inside a well shall be considered 
non-dolphin-safe, if at any time non-dolphin-safe tuna is loaded into 
the well, regardless of the use of netting or other material inside the 
well.
    (ii) Tuna offloaded to trucks, storage facilities, or carrier 
vessels must be loaded or stored in such a way as to maintain and 
safeguard the identification of the dolphin-safe or non-dolphin-safe 
designation of the tuna as it left the fishing vessel.
    (3) Other vessels. This paragraph (c)(3) applies to tuna product 
labeled dolphin-safe that includes tuna harvested by a vessel on a 
fishing trip that began on or after July 13, 2013 other than ones 
described in paragraphs (c)(1) or (2) of this section:
    (i) Tuna caught in sets or other gear deployments designated as 
dolphin-safe must be stored separately from tuna caught in non-dolphin-
safe sets or other gear deployments from the time of capture through 
unloading. Dolphin-safe tuna must be kept physically separate from non-
dolphin-safe tuna by using netting, other material, or separate storage 
areas. The captain or, where applicable, a qualified and authorized 
observer underSec. 216.91, must designate the storage areas for 
dolphin-safe and non-dolphin-safe tuna.
    (ii) Tuna offloaded to trucks, storage facilities, or carrier 
vessels must be loaded or stored in such a way as to maintain and 
safeguard the identification of the dolphin-safe or non-dolphin-safe 
designation of the tuna as it left the fishing vessel.
    (d) Tracking cannery operations. (1) Whenever a U.S. tuna canning 
company in the 50 states, Puerto Rico, or American Samoa receives a 
domestic or imported shipment of tuna for processing, a NMFS 
representative may be present to monitor delivery and verify that 
dolphin-safe and non-dolphin-safe tuna are clearly identified and remain 
segregated. Such inspections may be scheduled or unscheduled, and 
canners must allow the NMFS representative access to all areas and 
records.
    (2) Tuna processors must submit a report to the Administrator, 
Southwest Region, of all tuna received at their processing facilities in 
each calendar month whether or not the tuna is actually canned or stored 
during that month. Monthly cannery receipt reports must be submitted 
electronically or by mail before the last day of the month following the 
month being reported. Monthly reports must contain the following 
information:
    (i) Domestic receipts: whether the tuna is eligible to be labeled 
dolphin-safe underSec. 216.91, species, condition (round, loin, 
dressed, gilled and gutted, other), weight in short tons to the fourth 
decimal, ocean area of capture (ETP, western Pacific, Indian, eastern 
and western Atlantic, other), catcher vessel, gear type, trip dates, 
carrier name, unloading dates, and location of unloading. Where the 
processor indicates the tuna is eligible to be labeled dolphin-safe 
underSec. 216.91, it must enclose the certifications required by that 
section.
    (ii) Import receipts: In addition to the information required in 
paragraph (d)(2)(i) of this section, a copy of the FCO for each imported 
receipt must be provided.
    (3) Tuna processors must report on a monthly basis the amounts of 
ETP-caught tuna that were immediately utilized upon receipt or removed 
from

[[Page 62]]

cold storage. This report may be submitted in conjunction with the 
monthly report required in paragraph (d)(2) of this section. This report 
must contain:
    (i) The date of removal from cold storage or disposition;
    (ii) Storage container or lot identifier number(s) and dolphin-safe 
or non-dolphin-safe designation of each container or lot; and
    (iii) Details of the disposition of fish (for example, canning, 
sale, rejection, etc.).
    (4) During canning activities, non-dolphin-safe tuna may not be 
mixed in any manner or at any time during processing with any dolphin-
safe tuna or tuna products and may not share the same storage 
containers, cookers, conveyers, tables, or other canning and labeling 
machinery.
    (e) Tracking processor operations other than cannery operations. 
U.S. tuna processors other than cannery operations engaged in processing 
tuna products, including frozen, dried, or smoked tuna products, must 
submit a report to the Administrator, Southwest Region that includes the 
information set out inSec. 216.93(d)(2) and (3) on a monthly basis for 
all tuna received at their processing facilities that will be included 
in any tuna product labeled dolphin-safe.
    (f) Tracking imports. All tuna products, except fresh tuna, that are 
imported into the United States must be accompanied as described in 
Sec.  216.24(f)(3) by a properly certified FCO as required bySec. 
216.24(f)(2). For tuna tracking purposes, copies of FCOs and associated 
certifications must be submitted by the importer of record to the 
Administrator, Southwest Region, within 10 calendar days of the 
shipment's entry into the commerce of the United States as required by 
Sec.  216.24(f)(3)(ii).
    (g) Verification requirements. (1) Record maintenance. Any exporter, 
transshipper, importer, processor, or wholesaler/distributor of any tuna 
or tuna products must maintain records related to that tuna for at least 
2 years. These records include, but are not limited to: FCOs and 
required certifications, any reports required in paragraphs (a), (b), 
(d) and (e) of this section, invoices, other import documents, and trip 
reports.
    (2) Record submission. Within 10 calendar days of receiving a 
shipment of tuna or tuna products, any exporter, transshipper, importer, 
processor, or wholesaler/distributor of tuna or tuna products must 
submit to the Administrator, Southwest Region, all corresponding FCOs 
and required certifications for those tuna or tuna products.
    (3) Audits and spot checks. Upon request of the Administrator, 
Southwest Region, any exporter, transshipper, importer, processor, or 
wholesaler/distributor of tuna or tuna products must provide the 
Administrator, Southwest Region, timely access to all pertinent records 
and facilities to allow for audits and spot-checks on caught, landed, 
stored, and processed tuna.
    (h) Confidentiality of proprietary information. Information 
submitted to the Assistant Administrator under this section will be 
treated as confidential in accordance with NOAA Administrative Order 
216-100 ``Protection of Confidential Fisheries Statistics.''

[78 FR 41002, July 9, 2013]



Sec.  216.94  False statements or endorsements.

    Any person who knowingly and willfully makes a false statement or 
false endorsement required bySec. 216.92 is liable for a civil penalty 
not to exceed $100,000, that may be assessed in an action brought in any 
appropriate District Court of the United States on behalf of the 
Secretary.

[61 FR 27794, June 3, 1996. Redesignated at 69 FR 55307, Sept. 13, 2004]



Sec.  216.95  Official mark for ``Dolphin-safe'' tuna products.

    (a) This is the ``official mark'' (see figure 1) designated by the 
United States Department of Commerce that may be used to label tuna 
products that meet the ``dolphin-safe'' standards set forth in the 
Dolphin Protection Consumer Information Act, 16 U.S.C. 1385, and 
implementing regulations at Sec.Sec. 216.91 through 216.94:

[[Page 63]]

[GRAPHIC] [TIFF OMITTED] TR30MY00.019

    (b) Location and size of the official mark. The official mark on 
labels must allow the consumer to identify the official mark and be 
similar in design and scale to figure 1. A full color version of the 
official mark is available at http://swr.ucsd.edu/dsl.htm.

[65 FR 34410, May 30, 2000. Redesignated at 69 FR 55307, Sept. 13, 2004]



 Subpart I_General Regulations Governing Small Takes of Marine Mammals 
                   Incidental to Specified Activities

    Source: 61 FR 15887, Apr. 10, 1996, unless otherwise noted.



Sec.  216.101  Purpose.

    The regulations in this subpart implement section 101(a)(5) (A) 
through (D) of the Marine Mammal Protection Act of 1972, as amended, 16 
U.S.C. 1371(a)(5), which provides a mechanism for allowing, upon 
request, the incidental, but not intentional, taking of small numbers of 
marine mammals by U.S. citizens who engage in a specified activity 
(other than commercial fishing) within a specified geographic region.



Sec.  216.102  Scope.

    The taking of small numbers of marine mammals under section 
101(a)(5) (A) through (D) of the Marine Mammal Protection Act may be 
allowed only if the National Marine Fisheries Service:
    (a) Finds, based on the best scientific evidence available, that the 
total taking by the specified activity during the specified time period 
will have a negligible impact on species or stock of

[[Page 64]]

marine mammal(s) and will not have an unmitigable adverse impact on the 
availability of those species or stocks of marine mammals intended for 
subsistence uses;
    (b) Prescribes either regulations underSec. 216.106, or 
requirements and conditions contained within an incidental harassment 
authorization issued underSec. 216.107, setting forth permissible 
methods of taking and other means of effecting the least practicable 
adverse impact on the species or stock of marine mammal and its habitat 
and on the availability of the species or stock of marine mammal for 
subsistence uses, paying particular attention to rookeries, mating 
grounds, and areas of similar significance; and
    (c) Prescribes either regulations or requirements and conditions 
contained within an incidental harassment authorization, as appropriate, 
pertaining to the monitoring and reporting of such taking. The specific 
regulations governing certain specified activities are contained in 
subsequent subparts of this part.



Sec.  216.103  Definitions.

    In addition to definitions contained in the MMPA, and inSec. 
216.3, and unless the context otherwise requires, in subsequent subparts 
to this part:
    Arctic waters means the marine and estuarine waters north of 60[deg] 
N. lat.
    Citizens of the United States and U.S. citizens mean individual U.S. 
citizens or any corporation or similar entity if it is organized under 
the laws of the United States or any governmental unit defined in 16 
U.S.C. 1362(13). U.S. Federal, state and local government agencies shall 
also constitute citizens of the United States for purposes of this part.
    Incidental harassment, incidental taking and incidental, but not 
intentional, taking all mean an accidental taking. This does not mean 
that the taking is unexpected, but rather it includes those takings that 
are infrequent, unavoidable or accidental. (A complete definition of 
``take'' is contained inSec. 216.3).
    Negligible impact is an impact resulting from the specified activity 
that cannot be reasonably expected to, and is not reasonably likely to, 
adversely affect the species or stock through effects on annual rates of 
recruitment or survival.
    Small numbers means a portion of a marine mammal species or stock 
whose taking would have a negligible impact on that species or stock.
    Specified activity means any activity, other than commercial 
fishing, that takes place in a specified geographical region and 
potentially involves the taking of small numbers of marine mammals.
    Specified geographical region means an area within which a specified 
activity is conducted and that has certain biogeographic 
characteristics.
    Unmitigable adverse impact means an impact resulting from the 
specified activity:
    (1) That is likely to reduce the availability of the species to a 
level insufficient for a harvest to meet subsistence needs by:
    (i) Causing the marine mammals to abandon or avoid hunting areas;
    (ii) Directly displacing subsistence users; or
    (iii) Placing physical barriers between the marine mammals and the 
subsistence hunters; and
    (2) That cannot be sufficiently mitigated by other measures to 
increase the availability of marine mammals to allow subsistence needs 
to be met.



Sec.  216.104  Submission of requests.

    (a) In order for the National Marine Fisheries Service to consider 
authorizing the taking by U.S. citizens of small numbers of marine 
mammals incidental to a specified activity (other than commercial 
fishing), or to make a finding that an incidental take is unlikely to 
occur, a written request must be submitted to the Assistant 
Administrator. All requests must include the following information for 
their activity:
    (1) A detailed description of the specific activity or class of 
activities that can be expected to result in incidental taking of marine 
mammals;
    (2) The date(s) and duration of such activity and the specific 
geographical region where it will occur;
    (3) The species and numbers of marine mammals likely to be found 
within the activity area;

[[Page 65]]

    (4) A description of the status, distribution, and seasonal 
distribution (when applicable) of the affected species or stocks of 
marine mammals likely to be affected by such activities;
    (5) The type of incidental taking authorization that is being 
requested (i.e., takes by harassment only; takes by harassment, injury 
and/or death) and the method of incidental taking;
    (6) By age, sex, and reproductive condition (if possible), the 
number of marine mammals (by species) that may be taken by each type of 
taking identified in paragraph (a)(5) of this section, and the number of 
times such takings by each type of taking are likely to occur;
    (7) The anticipated impact of the activity upon the species or stock 
of marine mammal;
    (8) The anticipated impact of the activity on the availability of 
the species or stocks of marine mammals for subsistence uses;
    (9) The anticipated impact of the activity upon the habitat of the 
marine mammal populations, and the likelihood of restoration of the 
affected habitat;
    (10) The anticipated impact of the loss or modification of the 
habitat on the marine mammal populations involved;
    (11) The availability and feasibility (economic and technological) 
of equipment, methods, and manner of conducting such activity or other 
means of effecting the least practicable adverse impact upon the 
affected species or stocks, their habitat, and on their availability for 
subsistence uses, paying particular attention to rookeries, mating 
grounds, and areas of similar significance;
    (12) Where the proposed activity would take place in or near a 
traditional Arctic subsistence hunting area and/or may affect the 
availability of a species or stock of marine mammal for Arctic 
subsistence uses, the applicant must submit either a plan of cooperation 
or information that identifies what measures have been taken and/or will 
be taken to minimize any adverse effects on the availability of marine 
mammals for subsistence uses. A plan must include the following:
    (i) A statement that the applicant has notified and provided the 
affected subsistence community with a draft plan of cooperation;
    (ii) A schedule for meeting with the affected subsistence 
communities to discuss proposed activities and to resolve potential 
conflicts regarding any aspects of either the operation or the plan of 
cooperation;
    (iii) A description of what measures the applicant has taken and/or 
will take to ensure that proposed activities will not interfere with 
subsistence whaling or sealing; and
    (iv) What plans the applicant has to continue to meet with the 
affected communities, both prior to and while conducting the activity, 
to resolve conflicts and to notify the communities of any changes in the 
operation;
    (13) The suggested means of accomplishing the necessary monitoring 
and reporting that will result in increased knowledge of the species, 
the level of taking or impacts on populations of marine mammals that are 
expected to be present while conducting activities and suggested means 
of minimizing burdens by coordinating such reporting requirements with 
other schemes already applicable to persons conducting such activity. 
Monitoring plans should include a description of the survey techniques 
that would be used to determine the movement and activity of marine 
mammals near the activity site(s) including migration and other habitat 
uses, such as feeding. Guidelines for developing a site-specific 
monitoring plan may be obtained by writing to the Director, Office of 
Protected Resources; and
    (14) Suggested means of learning of, encouraging, and coordinating 
research opportunities, plans, and activities relating to reducing such 
incidental taking and evaluating its effects.
    (b)(1) The Assistant Administrator shall determine the adequacy and 
completeness of a request and, if determined to be adequate and 
complete, will begin the public review process by publishing in the 
Federal Register either:
    (i) A proposed incidental harassment authorization; or
    (ii) A notice of receipt of a request for the implementation or 
reimplementation of regulations governing the incidental taking.

[[Page 66]]

    (2) Through notice in the Federal Register, newspapers of general 
circulation, and appropriate electronic media in the coastal areas that 
may be affected by such activity, NMFS will invite information, 
suggestions, and comments for a period not to exceed 30 days from the 
date of publication in the Federal Register. All information and 
suggestions will be considered by the National Marine Fisheries Service 
in developing, if appropriate, the most effective regulations governing 
the issuance of letters of authorization or conditions governing the 
issuance of an incidental harassment authorization.
    (3) Applications that are determined to be incomplete or 
inappropriate for the type of taking requested, will be returned to the 
applicant with an explanation of why the application is being returned.
    (c) The Assistant Administrator shall evaluate each request to 
determine, based upon the best available scientific evidence, whether 
the taking by the specified activity within the specified geographic 
region will have a negligible impact on the species or stock and, where 
appropriate, will not have an unmitigable adverse impact on the 
availability of such species or stock for subsistence uses. If the 
Assistant Administrator finds that the mitigating measures would render 
the impact of the specified activity negligible when it would not 
otherwise satisfy that requirement, the Assistant Administrator may make 
a finding of negligible impact subject to such mitigating measures being 
successfully implemented. Any preliminary findings of ``negligible 
impact'' and ``no unmitigable adverse impact'' shall be proposed for 
public comment along with either the proposed incidental harassment 
authorization or the proposed regulations for the specific activity.
    (d) If, subsequent to the public review period, the Assistant 
Administrator finds that the taking by the specified activity would have 
more than a negligible impact on the species or stock of marine mammal 
or would have an unmitigable adverse impact on the availability of such 
species or stock for subsistence uses, the Assistant Administrator shall 
publish in the Federal Register the negative finding along with the 
basis for denying the request.



Sec.  216.105  Specific regulations.

    (a) For all petitions for regulations under this paragraph, 
applicants must provide the information requested inSec. 216.104(a) on 
their activity as a whole, which includes, but is not necessarily 
limited to, an assessment of total impacts by all persons conducting the 
activity.
    (b) For allowed activities that may result in incidental takings of 
small numbers of marine mammals by harassment, serious injury, death or 
a combination thereof, specific regulations shall be established for 
each allowed activity that set forth:
    (1) Permissible methods of taking;
    (2) Means of effecting the least practicable adverse impact on the 
species and its habitat and on the availability of the species for 
subsistence uses; and
    (3) Requirements for monitoring and reporting, including 
requirements for the independent peer-review of proposed monitoring 
plans where the proposed activity may affect the availability of a 
species or stock for taking for subsistence uses.
    (c) Regulations will be established based on the best available 
information. As new information is developed, through monitoring, 
reporting, or research, the regulations may be modified, in whole or in 
part, after notice and opportunity for public review.



Sec.  216.106  Letter of Authorization.

    (a) A Letter of Authorization, which may be issued only to U.S. 
citizens, is required to conduct activities pursuant to any regulations 
established underSec. 216.105. Requests for Letters of Authorization 
shall be submitted to the Director, Office of Protected Resources. The 
information to be submitted in a request for an authorization will be 
specified in the appropriate subpart to this part or may be obtained by 
writing to the above named person.
    (b) Issuance of a Letter of Authorization will be based on a 
determination that the level of taking will be consistent with the 
findings made for the total taking allowable under the specific 
regulations.

[[Page 67]]

    (c) Letters of Authorization will specify the period of validity and 
any additional terms and conditions appropriate for the specific 
request.
    (d) Notice of issuance of all Letters of Authorization will be 
published in the Federal Register within 30 days of issuance.
    (e) Letters of Authorization shall be withdrawn or suspended, either 
on an individual or class basis, as appropriate, if, after notice and 
opportunity for public comment, the Assistant Administrator determines 
that:
    (1) The regulations prescribed are not being substantially complied 
with; or
    (2) The taking allowed is having, or may have, more than a 
negligible impact on the species or stock or, where relevant, an 
unmitigable adverse impact on the availability of the species or stock 
for subsistence uses.
    (f) The requirement for notice and opportunity for public review in 
Sec.  216.106(e) shall not apply if the Assistant Administrator 
determines that an emergency exists that poses a significant risk to the 
wellbeing of the species or stocks of marine mammals concerned.
    (g) A violation of any of the terms and conditions of a Letter of 
Authorization or of the specific regulations shall subject the Holder 
and/or any individual who is operating under the authority of the 
Holder's Letter of Authorization to penalties provided in the MMPA.



Sec.  216.107  Incidental harassment authorization for Arctic waters.

    (a) Except for activities that have the potential to result in 
serious injury or mortality, which must be authorized underSec. 
216.105, incidental harassment authorizations may be issued, following a 
30-day public review period, to allowed activities that may result in 
only the incidental harassment of a small number of marine mammals. Each 
such incidental harassment authorization shall set forth:
    (1) Permissible methods of taking by harassment;
    (2) Means of effecting the least practicable adverse impact on the 
species, its habitat, and on the availability of the species for 
subsistence uses; and
    (3) Requirements for monitoring and reporting, including 
requirements for the independent peer-review of proposed monitoring 
plans where the proposed activity may affect the availability of a 
species or stock for taking for subsistence uses.
    (b) Issuance of an incidental harassment authorization will be based 
on a determination that the number of marine mammals taken by harassment 
will be small, will have a negligible impact on the species or stock of 
marine mammal(s), and will not have an unmitigable adverse impact on the 
availability of species or stocks for taking for subsistence uses.
    (c) An incidental harassment authorization will be either issued or 
denied within 45 days after the close of the public review period.
    (d) Notice of issuance or denial of an incidental harassment 
authorization will be published in the Federal Register within 30 days 
of issuance of a determination.
    (e) Incidental harassment authorizations will be valid for a period 
of time not to exceed 1 year but may be renewed for additional periods 
of time not to exceed 1 year for each reauthorization.
    (f) An incidental harassment authorization shall be modified, 
withdrawn, or suspended if, after notice and opportunity for public 
comment, the Assistant Administrator determines that:
    (1) The conditions and requirements prescribed in the authorization 
are not being substantially complied with; or
    (2) The authorized taking, either individually or in combination 
with other authorizations, is having, or may have, more than a 
negligible impact on the species or stock or, where relevant, an 
unmitigable adverse impact on the availability of the species or stock 
for subsistence uses.
    (g) The requirement for notice and opportunity for public review in 
paragraph (f) of this section shall not apply if the Assistant 
Administrator determines that an emergency exists that poses a 
significant risk to the well-being of the species or stocks of marine 
mammals concerned.
    (h) A violation of any of the terms and conditions of an incidental 
harassment authorization shall subject the

[[Page 68]]

holder and/or any individual who is operating under the authority of the 
holder's incidental harassment authorization to penalties provided in 
the MMPA.



Sec.  216.108  Requirements for monitoring and reporting under 
incidental harassment authorizations for Arctic waters.

    (a) Holders of an incidental harassment authorization in Arctic 
waters and their employees, agents, and designees must cooperate with 
the National Marine Fisheries Service and other designated Federal, 
state, or local agencies to monitor the impacts of their activity on 
marine mammals. Unless stated otherwise within an incidental harassment 
authorization, the holder of an incidental harassment authorization 
effective in Arctic waters must notify the Alaska Regional Director, 
National Marine Fisheries Service, of any activities that may involve a 
take by incidental harassment in Arctic waters at least 14 calendar days 
prior to commencement of the activity.
    (b) Holders of incidental harassment authorizations effective in 
Arctic waters may be required by their authorization to designate at 
least one qualified biological observer or another appropriately 
experienced individual to observe and record the effects of activities 
on marine mammals. The number of observers required for monitoring the 
impact of the activity on marine mammals will be specified in the 
incidental harassment authorization. If observers are required as a 
condition of the authorization, the observer(s) must be approved in 
advance by the National Marine Fisheries Service.
    (c) The monitoring program must, if appropriate, document the 
effects (including acoustical) on marine mammals and document or 
estimate the actual level of take. The requirements for monitoring 
plans, as specified in the incidental harassment authorization, may vary 
depending on the activity, the location, and the time.
    (d) Where the proposed activity may affect the availability of a 
species or stock of marine mammal for taking for subsistence purposes, 
proposed monitoring plans or other research proposals must be 
independently peer-reviewed prior to issuance of an incidental 
harassment authorization under this subpart. In order to complete the 
peer-review process within the time frames mandated by the MMPA for an 
incidental harassment authorization, a proposed monitoring plan 
submitted under this paragraph must be submitted to the Assistant 
Administrator no later than the date of submission of the application 
for an incidental harassment authorization. Upon receipt of a complete 
monitoring plan, and at its discretion, the National Marine Fisheries 
Service will either submit the plan to members of a peer review panel 
for review or within 60 days of receipt of the proposed monitoring plan, 
schedule a workshop to review the plan. The applicant must submit a 
final monitoring plan to the Assistant Administrator prior to the 
issuance of an incidental harassment authorization.
    (e) At its discretion, the National Marine Fisheries Service may 
place an observer aboard vessels, platforms, aircraft, etc., to monitor 
the impact of activities on marine mammals.
    (f)(1) As specified in the incidental harassment authorization, the 
holder of an incidental harassment authorization for Arctic waters must 
submit reports to the Assistant Administrator within 90 days of 
completion of any individual components of the activity (if any), within 
90 days of completion of the activity, but no later than 120 days prior 
to expiration of the incidental harassment authorization, whichever is 
earlier. This report must include the following information:
    (i) Dates and type(s) of activity;
    (ii) Dates and location(s) of any activities related to monitoring 
the effects on marine mammals; and
    (iii) Results of the monitoring activities, including an estimate of 
the actual level and type of take, species name and numbers of each 
species observed, direction of movement of species, and any observed 
changes or modifications in behavior.
    (2) Monitoring reports will be reviewed by the Assistant 
Administrator and, if determined to be incomplete or inaccurate, will be 
returned to the

[[Page 69]]

holder of the authorization with an explanation of why the report is 
being returned. If the authorization holder disagrees with the findings 
of the Assistant Administrator, the holder may request an independent 
peer review of the report. Failure to submit a complete and accurate 
report may result in a delay in processing future authorization 
requests.
    (g) Results of any behavioral, feeding, or population studies, that 
are conducted supplemental to the monitoring program, should be made 
available to the National Marine Fisheries Service before applying for 
an incidental harassment authorization for the following year.

Subpart J [Reserved]



Subpart K_Taking Of Marine Mammals Incidental To Space Vehicle And Test 
                            Flight Activities

    Source: 74 FR 6242, Feb. 6, 2009, unless otherwise noted.

    Effective Date Note: 74 FR 6242, Feb. 6, 2009, subpart K, consisting 
of Sec.Sec. 216.120 through 216.129 were added, effective Feb. 7, 2009 
through Feb. 7, 2014.



Sec.  216.120  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the incidental taking 
of those marine mammals specified in paragraph (b) of this section by 
the 30th Space Wing, United States Air Force, and those persons it 
authorizes to engage in:
    (1) Launching up to 15 missiles each year from Vandenberg Air Force 
Base, for a total of up to 75 missiles over the 5-year period of the 
regulations in this subpart,
    (2) Launching up to 35 rockets each year from Vandenberg Air Force 
Base, for a total of up to 175 rocket launches over the 5-year period of 
the regulations in this subpart,
    (3) Aircraft flight test operations, and
    (4) Helicopter operations from Vandenberg Air Force Base.
    (b) The incidental take of marine mammals on Vandenberg Air Force 
Base and in waters off southern California, under the activity 
identified in paragraph (a) of this section, is limited to the following 
species: Harbor seals (Phoca vitulina); California sea lions (Zalophus 
californianus); northern elephant seals (Mirounga angustirostris); and 
northern fur seals (Callorhinus ursinus).

[74 FR 6242, Feb. 6, 2009, as amended at 77 FR 4921, Feb. 1, 2012]



Sec.  216.121  Effective dates.

    Amended regulations are effective from February 1, 2012, through 
February 6, 2014.

[77 FR 4921, Feb. 1, 2012]



Sec.  216.122  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant toSec. 216.106 
and 216.127, the 30th Space Wing, U.S. Air Force, its contractors, and 
clients, may incidentally, but not intentionally, take marine mammals by 
harassment, within the area described inSec. 216.120, provided the 
activity is in compliance with all terms, conditions, and requirements 
of the regulations in this subpart and the appropriate Letter of 
Authorization.
    (b) The taking of marine mammals is authorized for the species 
listed inSec. 216.120(b) and is limited to Level B Harassment.



Sec.  216.123  Prohibitions.

    Notwithstanding takings specified inSec. 216.120 and authorized by 
a Letter of Authorization issued under Sec.Sec. 216.106 and 216.127, 
no person in connection with the activities described inSec. 216.120 
may:
    (a) Take any marine mammal not specified inSec. 216.120(b);
    (b) Take any marine mammal specified inSec. 216.120(b) other than 
by incidental, unintentional harassment;
    (c) Take a marine mammal specified inSec. 216.120(b) if such 
taking results in more than a negligible impact on the species or stocks 
of such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or a Letter of

[[Page 70]]

Authorization issued under Sec.Sec. 216.106 and 216.127.



Sec.  216.124  Mitigation.

    (a) The activity identified inSec. 216.120(a) must be conducted in 
a manner that minimizes, to the greatest extent practicable, adverse 
impacts on marine mammals and their habitats. When conducting operations 
identified inSec. 216.120(a), the mitigation measures contained in the 
Letter of Authorization issued under Sec.Sec. 216.106 and 216.127 must 
be implemented. These mitigation measures include (but are not limited 
to):
    (1) All aircraft and helicopter flight paths must maintain a minimum 
distance of 1,000 ft (305 m) from recognized seal haul-outs and 
rookeries (e.g., Point Sal, Purisima Point, Rocky Point), except in 
emergencies or for real-time security incidents (e.g., search-and-
rescue, fire-fighting), which may require approaching pinniped haul-outs 
and rookeries closer than 1,000 ft (305 m).
    (2) For missile and rocket launches, holders of Letters of 
Authorization must avoid, whenever possible, launches during the harbor 
seal pupping season of March through June, unless constrained by factors 
including, but not limited to, human safety, national security, or for 
space vehicle launch trajectory necessary to meet mission objectives.
    (3) Vandenberg Air Force Base must avoid, whenever possible, 
launches which are predicted to produce a sonic boom on the Northern 
Channel Islands during harbor seal, elephant seal, California sea lion, 
and northern fur seal pupping seasons of March through June.
    (4) If post-launch surveys determine that an injurious or lethal 
take of a marine mammal has occurred or there is an indication that the 
distribution, size, or productivity of the potentially affected pinniped 
populations has been affected, the launch procedure and the monitoring 
methods must be reviewed, in cooperation with NMFS, and, if necessary, 
appropriate changes must be made through modification to a Letter of 
Authorization, prior to conducting the next launch of the same vehicle 
under that Letter of Authorization.
    (5) Additional mitigation measures as contained in a Letter of 
Authorization.
    (b) [Reserved]



Sec.  216.125  Requirements for monitoring and reporting.

    (a) Holders of Letters of Authorization issued pursuant to 
Sec.Sec. 216.106 and 216.127 for activities described inSec. 
216.120(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 
Authorization, the Holder of the Letter of Authorization must notify the 
Administrator, Southwest Region, NMFS, by letter or telephone, at least 
2 weeks prior to activities possibly involving the taking of marine 
mammals. If the authorized activity identified inSec. 216.120(a) is 
thought to have resulted in the mortality or injury of any marine 
mammals or in any take of marine mammals not identified inSec. 
216.120(b), then the Holder of the Letter of Authorization must notify 
the Director, Office of Protected Resources, NMFS, or designee, by 
telephone (301-713-2289), within 48 hours of the discovery of the 
injured or dead animal.
    (b) Holders of Letters of Authorization must designate qualified, 
on-site individuals approved in advance by NMFS, as specified in the 
Letter of Authorization, to:
    (1) Conduct observations on harbor seal, elephant seal, and sea lion 
activity in the vicinity of the rookery nearest the launch platform or, 
in the absence of pinnipeds at that location, at another nearby haul-
out, for at least 72 hours prior to any planned launch occurring during 
the harbor seal pupping season (1 March through 30 June) and continue 
for a period of time not less than 48 hours subsequent to launching.
    (2) For launches during the harbor seal pupping season (March 
through June), conduct follow-up surveys within 2 weeks of the launch to 
ensure that there were no adverse effects on any marine mammals,
    (3) Monitor haul-out sites on the Northern Channel Islands, if it is 
determined by modeling that a sonic boom of greater than 1 psf could 
occur in

[[Page 71]]

those areas (this determination will be made in consultation with NMFS),
    (4) Investigate the potential for spontaneous abortion, disruption 
of effective female-neonate bonding, and other reproductive dysfunction,
    (5) Supplement observations on Vandenberg and on the Northern 
Channel Islands with video-recording of mother-pup seal responses for 
daylight launches during the pupping season,
    (6) Conduct acoustic measurements of those launch vehicles that have 
not had sound pressure level measurements made previously, and
    (7) Include multiple surveys each day that surveys are required that 
record the species, number of animals, general behavior, presence of 
pups, age class, gender and reaction to launch noise, sonic booms or 
other natural or human caused disturbances, in addition to recording 
environmental conditions such as tide, wind speed, air temperature, and 
swell.
    (c) Holders of Letters of Authorization must conduct additional 
monitoring as required under an annual Letter of Authorization.
    (d) Holders of Letters of Authorization must submit a report to the 
Southwest Administrator, 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 program, and
    (3) Results of the monitoring program, including, but not 
necessarily limited to:
    (i) Numbers of pinnipeds present on the haul-out prior to 
commencement of the launch,
    (ii) Numbers of pinnipeds that may have been harassed as noted by 
the number of pinnipeds estimated to have entered the water as a result 
of launch noise,
    (iii) The length of time pinnipeds remained off the haul-out or 
rookery,
    (iv) Numbers of pinniped adults, juveniles or pups that may have 
been injured or killed as a result of the launch, and
    (v) Behavioral modifications by pinnipeds that were likely the 
result of launch noise or the sonic boom.
    (e) An annual report must be submitted at the time of renewal of the 
Letter of Authorization.
    (f) A final report must be submitted at least 180 days prior to 
expiration of these regulations. This report will:
    (1) Summarize the activities undertaken and the results reported in 
all previous reports,
    (2) Assess the impacts at each of the major rookeries,
    (3) Assess the cumulative impacts on pinnipeds and other marine 
mammals from Vandenberg activities, and
    (4) State the date(s), location(s), and findings of any research 
activities related to monitoring the effects on launch noise and sonic 
booms on marine mammal populations.



Sec.  216.126  Applications for Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to the regulations 
in this subpart, the U.S. citizen (as defined bySec. 216.103) 
conducting the activity identified inSec. 216.120(a) (30th Space Wing, 
U.S. Air Force) must apply for and obtain either an initial Letter of 
Authorization in accordance withSec. 216.127 or a renewal underSec. 
216.128.
    (b) The application must be submitted to NMFS at least 30 days 
before the activity is scheduled to begin.
    (c) Applications for a Letter of Authorization and for renewals of 
Letters of Authorization must include the following:
    (1) Name of the U.S. citizen requesting the authorization,
    (2) A description of the activity, the dates of the activity, and 
the specific location of the activity, and
    (3) Plans to monitor the behavior and effects of the activity on 
marine mammals.
    (d) A copy of the Letter of Authorization must be in the possession 
of the persons conducting activities that may involve incidental takings 
of pinnipeds.



Sec.  216.127  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the period of validity of this 
subpart, but must be renewed annually subject to annual renewal 
conditions inSec. 216.128.

[[Page 72]]

    (b) Each Letter of Authorization will set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable 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 Letter 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 affected species or stock of marine mammal(s).



Sec.  216.128  Renewal of Letters of Authorization.

    (a) A Letter of Authorization issued underSec. 216.106 andSec. 
216.127 for the activity identified inSec. 216.120(a) will be renewed 
annually upon:
    (1) Notification to NMFS that the activity described in the 
application submitted underSec. 216.126 will be undertaken and that 
there will not be a substantial modification to the described work, 
mitigation or monitoring undertaken during the upcoming 12 months;
    (2) Timely receipt of the monitoring reports required underSec. 
216.125(d) and (e), and the Letter of Authorization issued underSec. 
216.127, which has been reviewed and accepted by NMFS; and
    (3) A determination by NMFS that the mitigation, monitoring and 
reporting measures required under Sec.Sec. 216.124 and 216.125 and the 
Letter of Authorization issued under Sec.Sec. 216.106 and 216.127, 
were undertaken and will be undertaken during the upcoming annual period 
of validity of a renewed Letter of Authorization.
    (b) If a request for a renewal of a Letter of Authorization issued 
under Sec.Sec. 216.106 and 216.128 indicates that a substantial 
modification 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. Review and 
comment on renewals of Letters of Authorization 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 changes to the mitigation and monitoring requirements 
contained 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 Register.



Sec.  216.129  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 Authorization by NMFS, issued pursuant to Sec.Sec. 216.106 
and 216.127 and subject to the provisions of this subpart shall be made 
until after notification and an opportunity for public comment has been 
provided. For purposes of this paragraph, a renewal of a Letter of 
Authorization underSec. 216.128, without modification (except for the 
period of validity), is not considered a substantive modification.
    (b) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species or 
stocks of marine mammals specified inSec. 216.120(b), a Letter of 
Authorization issued pursuant to Sec.Sec. 216.106 and 216.127 may be 
substantively modified without prior notification and an opportunity for 
public comment. Notification will be published in the Federal Register 
within 30 days subsequent to the action.

Subparts L-M [Reserved]



    Subpart N_Taking Of Marine Mammals Incidental To Missile Launch 
                 Activities from San Nicolas Island, CA

    Source: 74 FR 26587, June 3, 2009, unless otherwise noted.

    Effective Date Note: At 74 FR 26587, June 3, 2009, subpart N, 
consisting of Sec.Sec. 216.150 through 216.159 was added, effective 
June 2, 2009 through June 2, 2014.

[[Page 73]]



Sec.  216.150  Specified activity and specified geographical region.

    (a) This subpart applies only to the incidental taking of marine 
mammals specified in paragraph (b) of this section by the Naval Air 
Warfare Center Weapons Division, U.S. Navy, and those persons it 
authorizes to engage in missile launch activities and associated 
aircraft and helicopter operations at the Naval Air Warfare Center 
Weapons Division facilities on San Nicolas Island, California.
    (b) The incidental take of marine mammals under the activity 
identified in paragraph (a) of this section is limited to the following 
species: northern elephant seals (Mirounga angustirostris), harbor seals 
(Phoca vitulina), and California sea lions (Zalophus californianus).
    (c) This Authorization is valid only for activities associated with 
the launching of a total of 40 Coyote (or similar sized and smaller) 
missiles per year from San Nicolas Island, California.



Sec.  216.151  Effective dates.

    This subpart is effective June 2, 2009 through June 2, 2014.



Sec.  216.152  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec.Sec. 
216.106 and 216.157, the U.S. Navy, its contractors, and clients, may 
incidentally, but not intentionally, take marine mammals by harassment, 
within the area described inSec. 216.150, provided the activity is in 
compliance with all terms, conditions, and requirements of the 
regulations in this subpart and the appropriate Letter of Authorization.
    (b) The taking of marine mammals is authorized for the species 
listed inSec. 216.150(b) and is limited to Level B Harassment.



Sec.  216.153  Prohibitions.

    Notwithstanding takings contemplated inSec. 216.150 and authorized 
by a Letter of Authorization issued under Sec.Sec. 216.106 and 
216.157, no person in connection with the activities described inSec. 
216.150 may:
    (a) Take any marine mammal not specified inSec. 216.150(b);
    (b) Take any marine mammal specified inSec. 216.150(b) other than 
by incidental, unintentional harassment, as discussed inSec. 216.152;
    (c) Take a marine mammal specified inSec. 216.150(b) if such 
taking results in more than a negligible impact on the species or stocks 
of such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or a Letter of Authorization issued under 
Sec.Sec. 216.106 and 216.157.



Sec.  216.154  Mitigation.

    (a) The activity identified inSec. 216.150 must be conducted in a 
manner that minimizes, to the greatest extent practicable, adverse 
impacts on marine mammals and their habitats. When conducting operations 
identified inSec. 216.150(c), the mitigation measures contained in the 
Letter of Authorization issued under Sec.Sec. 216.106 and 216.157 must 
be implemented. These mitigation measures include (but are not limited 
to):
    (1) The holder of the Letter of Authorization must prohibit 
personnel from entering pinniped haul-out sites below the missile's 
predicted flight path for 2 hours prior to planned missile launches.
    (2) The holder of the Letter of Authorization must avoid launch 
activities during harbor seal pupping season (February through April), 
unless constrained by factors including, but not limited to, human 
safety, national security, or for launch trajectory necessary to meet 
mission objectives.
    (3) The holder of the Letter of Authorization must limit launch 
activities during other pinniped pupping seasons, unless constrained by 
factors including, but not limited to, human safety, national security, 
or for launch trajectory necessary to meet mission objectives.
    (4) The holder of the Letter of Authorization must not launch 
missiles from the Alpha Complex at low elevation (less than 1,000 feet 
(305 m)) on launch azimuths that pass close to pinniped haul-out sites 
when occupied.
    (5) The holder of the Letter of Authorization must avoid launching 
multiple missiles in quick succession over

[[Page 74]]

haul-out sites, especially when young pups are present, except when 
required by mission objectives.
    (6) The holder of the Letter of Authorization must limit launch 
activities during nighttime hours, except when required by mission 
objectives.
    (7) Aircraft and helicopter flight paths must maintain a minimum 
altitude of 1,000 feet (305 m) from pinniped haul-outs and rookeries, 
except in emergencies or for real-time security incidents (e.g., search-
and-rescue, fire-fighting, adverse weather conditions), which may 
require approaching pinniped haul-outs and rookeries closer than 1,000 
feet (305 m).
    (8) If post-launch surveys determine that an injurious or lethal 
take of a marine mammal has occurred or there is an indication that the 
distribution, size, or productivity of the potentially affected pinniped 
populations has been affected, the launch procedure and the monitoring 
methods must be reviewed, in cooperation with NMFS, and, if necessary, 
appropriate changes must be made through modification to a Letter of 
Authorization, prior to conducting the next launch of the same vehicle 
under that Letter of Authorization.
    (9) Additional mitigation measures as contained in a Letter of 
Authorization.
    (b) [Reserved]



Sec.  216.155  Requirements for monitoring and reporting.

    (a) Holders of Letters of Authorization issued pursuant to 
Sec.Sec. 216.106 and 216.157 for activities described inSec. 216.150 
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 
Authorization, the Holder of the Letter of Authorization must notify the 
Administrator, Southwest Region, NMFS, by letter, e-mail, or telephone, 
at least 1 week prior to activities possibly involving the taking of 
marine mammals. If the authorized activity identified inSec. 216.150 
is thought to have resulted in the mortality or injury of any marine 
mammals or in any take of marine mammals not identified inSec. 
216.150(b), then the Holder of the Letter of Authorization must notify 
the Director, Office of Protected Resources, NMFS, or designee, by 
telephone (301-713-2289), and the Administrator, Southwest Region, NMFS, 
or designee, by telephone (562-980-3232), within 48 hours of the 
discovery of the injured or dead animal.
    (b) The National Marine Fisheries Service must be informed 
immediately of any changes or deletions to any portions of the proposed 
monitoring plan submitted, in accordance with the Letter of 
Authorization.
    (c) The holder of the Letter of Authorization must designate 
biologically trained, on-site individual(s), approved in advance by the 
National Marine Fisheries Service, to record the effects of the launch 
activities and the resulting noise on pinnipeds.
    (d) The holder of the Letter of Authorization must implement the 
following monitoring measures:
    (1) Visual Land-Based Monitoring. (i) Prior to each missile launch, 
an observer(s) will place 3 autonomous digital video cameras overlooking 
chosen haul-out sites located varying distances from the missile launch 
site. Each video camera will be set to record a focal subgroup within 
the larger haul-out aggregation for a maximum of 4 hours or as permitted 
by the videotape capacity.
    (ii) Systematic visual observations, by those individuals, described 
in paragraph (c) of this section, on pinniped presence and activity will 
be conducted and recorded in a field logbook or recorded on digital 
video for subsequent analysis for no less than 1 hour prior to the 
estimated launch time and for up to 1 hour immediately following each 
missile launch.
    (iii) Documentation, both via autonomous video camera and human 
observer, will consist of:
    (A) Numbers and sexes of each age class in focal subgroups;
    (B) Description and timing of launch activities or other disruptive 
event(s);
    (C) Movements of pinnipeds, including number and proportion moving, 
direction and distance moved, and pace of movement;
    (D) Description of reactions;
    (E) Minimum distances between interacting and reacting pinnipeds;
    (F) Study location;
    (G) Local time;

[[Page 75]]

    (H) Substratum type;
    (I) Substratum slope;
    (J) Weather condition;
    (K) Horizontal visibility; and
    (L) Tide state.
    (2) Acoustic Monitoring. (i) During all missile launches, calibrated 
recordings of the levels and characteristics of the received launch 
sounds will be obtained from 3 different locations of varying distances 
from the missile's flight path. To the extent practicable, these 
acoustic recording locations will correspond with the haul-out sites 
where video monitoring is done.
    (ii) Acoustic recordings will be supplemented by the use of radar 
and telemetry systems to obtain the trajectory of missiles in three 
dimensions, whenever data coverage allows.
    (iii) Acoustic equipment used to record launch sounds will be 
suitable for collecting a wide range of parameters, including the 
magnitude, characteristics, and duration of each missile.
    (e) The holder of the Letter of Authorization must implement the 
following reporting requirements:
    (1) For each missile launch, the lead contractor or lead observer 
for the holder of the Letter of Authorization must provide a status 
report to the National Marine Fisheries Service, Southwest Regional 
Office, providing reporting items found under the Letter of 
Authorization, unless other arrangements for monitoring are agreed in 
writing.
    (2) An initial report must be submitted to the Office of Protected 
Resources, and the Southwest Regional Office at least 60 days prior to 
the expiration of each annual Letter of Authorization. This report must 
contain the following information:
    (i) Timing and nature of launch operations;
    (ii) Summary of pinniped behavioral observations;
    (iii) Estimate of the amount and nature of all takes by harassment 
or by other means; and
    (iv) Evidence of compliance with mitigation measures.
    (3) A draft comprehensive technical report will be submitted to the 
Office of Protected Resources and Southwest Regional Office, National 
Marine Fisheries Service, 180 days prior to the expiration of the 
regulations in this subpart, providing full documentation of the 
methods, results, and interpretation of all monitoring tasks for 
launches to date plus preliminary information for missile launches 
during the first 6 months of the final Letter of Authorization.
    (4) A revised final comprehensive technical report, including all 
monitoring results during the entire period of the Letter of 
Authorization will be due 90 days after the end of the period of 
effectiveness of the regulations in this subpart.
    (5) Both the 60-day and final reports will be subject to review and 
comment by the National Marine Fisheries Service. Any recommendations 
made by the National Marine Fisheries Service must be addressed in the 
final comprehensive report prior to acceptance by the National Marine 
Fisheries Service.
    (f) Activities related to the monitoring described in paragraphs (c) 
and (d) of this section, or in the Letter of Authorization issued under 
Sec.Sec. 216.106 and 216.157, including the retention of marine 
mammals, may be conducted without the need for a separate scientific 
research permit.
    (g) In coordination and compliance with appropriate Navy 
regulations, at its discretion, the National Marine Fisheries Service 
may place an observer on San Nicolas Island for any activity involved in 
marine mammal monitoring either prior to, during, or after a missile 
launch in order to monitor the impact on marine mammals.



Sec.  216.156  Applications for Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to the regulations 
contained in this subpart, the U.S. citizen (as defined bySec. 
216.103) conducting the activity identified inSec. 216.150 (Naval Air 
Warfare Center Weapons Division, U.S. Navy) must apply for and obtain 
either an initial Letter of Authorization in accordance withSec. 
216.157 or a renewal underSec. 216.158.
    (b) The application must be submitted to NMFS at least 30 days 
before the activity is scheduled to begin.
    (c) Applications for a Letter of Authorization and for renewals of 
Letters

[[Page 76]]

of Authorization must include the following:
    (1) Name of the U.S. citizen requesting the authorization,
    (2) A description of the activity, the dates of the activity, and 
the specific location of the activity, and
    (3) Plans to monitor the behavior and effects of the activity on 
marine mammals.
    (d) A copy of the Letter of Authorization must be in the possession 
of the persons conducting activities that may involve incidental takings 
of pinnipeds.



Sec.  216.157  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the period of validity of this 
subpart, but must be renewed annually subject to annual renewal 
conditions inSec. 216.158.
    (b) Each Letter of Authorization will set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable 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 Letter 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 affected species or stock of marine mammal(s).



Sec.  216.158  Renewal of Letters of Authorization.

    (a) A Letter of Authorization issued under Sec.Sec. 216.106 and 
216.157 for the activity identified inSec. 216.150 will be renewed 
annually upon:
    (1) Notification to NMFS that the activity described in the 
application submitted underSec. 216.156 will be undertaken and that 
there will not be a substantial modification to the described work, 
mitigation or monitoring undertaken during the upcoming 12 months;
    (2) Timely receipt of the monitoring reports required underSec. 
216.155(e), and the Letter of Authorization issued underSec. 216.157, 
which has been reviewed and accepted by NMFS; and
    (3) A determination by NMFS that the mitigation, monitoring and 
reporting measures required under Sec.Sec. 216.154 and 216.155 and the 
Letter of Authorization issued under Sec.Sec. 216.106 and 216.157, 
were undertaken and will be undertaken during the upcoming annual period 
of validity of a renewed Letter of Authorization.
    (b) If a request for a renewal of a Letter of Authorization issued 
underSec. 216.106 and this section indicates that a substantial 
modification 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. Review and 
comment on renewals of Letters of Authorization 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 changes to the mitigation and monitoring requirements 
contained 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 Register.



Sec.  216.159  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 Authorization by NMFS, issued pursuant to Sec.Sec. 216.106 
and 216.157 and subject to the provisions of this subpart shall be made 
until after notification and an opportunity for public comment has been 
provided. For purposes of this paragraph, a renewal of a Letter of 
Authorization underSec. 216.158, without modification (except for the 
period of validity), is not considered a substantive modification.
    (b) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species or 
stocks of marine mammals specified inSec. 216.150(b), a Letter of 
Authorization issued pursuant to Sec.Sec. 216.106 and 216.157 may be 
substantively modified without prior notification and an opportunity for 
public

[[Page 77]]

comment. Notification will be published in the Federal Register within 
30 days subsequent to the action.

Subpart O [Reserved]



Subpart P_Taking Marine Mammals Incidental to U.S. Navy Training in the 
                       Hawaii Range Complex (HRC)

    Source: 74 FR 1484, Jan. 12, 2009, unless otherwise noted.

    Effective Date Note: At 74 FR 1484, Jan. 12, 2009, subpart P was 
added, effective Jan. 5, 2009, through Jan. 5, 2014.



Sec.  216.170  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the U.S. Navy 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 is only authorized if 
it occurs within the Hawaii Operational Area, which extends from 16 to 
43[deg] N. lat. and from 150 to 179[deg] degrees W. long.
    (c) The taking of marine mammals by the Navy is only authorized if 
it occurs incidental to the following activities:
    (1) The use of the following mid-frequency active sonar (MFAS) and 
high frequency active sonar (HFAS) sources, or similar sources, for Navy 
training activities (estimated amounts below):
    (1) The use of the following mid-frequency active sonar (MFAS) and 
high frequency active sonar (HFAS) sources, or similar sources, for Navy 
training activities (estimated amounts below):
    (i) AN/SQS-53 (hull-mounted sonar)--up to 6420 hours over the course 
of 5 years (an average of 1284 hours per year)
    (ii) AN/SQS-56 (hull-mounted sonar)--up to 1915 hours over the 
course of 5 years (an average of 383 hours per year)
    (iii) AN/AQS-22 (helicopter dipping sonar)--up to 5050 dips over the 
course of 5 years (an average of 1010 dips per year)
    (iv) SSQ-62 (sonobuoys)--up to 12115 sonobuoys over the course of 5 
years (an average of 2423 sonobuoys per year)
    (v) MK-48 (torpedoes)--up to 1565 torpedoes over the course of 5 
years (an average of 313 torpedoes per year)
    (vi) AN/BQQ-10 (submarine mounted sonar)--up to 1000 hours over the 
course of 5 years (an average of 200 per year)
    (vii) AN/SSQ-125 (AEER sonar sonobuoy)--4800 sonobuoys (total, of 
IEER/EER and AEER combined) over the course of 5 years (an average of 
960 per year)
    (2) The detonation of the underwater explosives indicated in 
paragraph (c)(2)(i) of this section, or similar explosives, conducted as 
part of the training exercises indicated in paragraph (c)(2)(ii) of this 
section:
    (i) Underwater Explosives:
    (A) 5[sec] Naval Gunfire (9.5 lbs).
    (B) 76 mm rounds (1.6 lbs).
    (C) Maverick (78.5 lbs).
    (D) Harpoon (448 lbs).
    (E) MK-82 (238 lbs).
    (F) MK-83 (574 lbs).
    (G) MK-84 (945 lbs).
    (H) MK-48 (851 lbs).
    (I) Demolition Charges (20 lbs).
    (J) EER/IEER (5 lbs).
    (ii) Training Events:
    (A) Mine Neutralization--up to 340 exercises over the course of 5 
years (an average of 68 per year).
    (B) Air-to-Surface MISSILEX--up to 250 exercises over the course of 
5 years (an average of 50 per year).
    (C) Surface-to-Surface MISSILEX--up to 60 exercises over the course 
of 5 years (an average of 12 per year).
    (D) BOMBEX--up to 195 exercises over the course of 5 years (an 
average of 38 per year).
    (E) SINKEX--up to 30 exercises over the course of 5 years (an 
average of 6 per year).
    (F) Surface-to-Surface GUNEX--up to 455 exercises over the course of 
5 years (an average of 91 per year).
    (G) Naval Surface Fire Support--up to 140 exercises over the course 
of 5 years (an average of 28 per year).
    (H) EER/IEER--4800 sonobuoys (total, of EER/IEER and AEER combined) 
over the course of 5 years (an average of 960 sonobuoy deployments per 
year)

[[Page 78]]

    (d) The taking of marine mammals may be authorized in an LOA for the 
activities and sources listed inSec. 216.170(c) should the amounts 
(e.g., hours, dips, or number of exercises) vary from those estimated in 
Sec.  216.170(c), provided that the variation does not result in 
exceeding the amount of take indicated inSec. 216.172(c).

[74 FR 1484, Jan. 12, 2009, as amended at 76 FR 6701, Feb. 8, 2011; 77 
FR 4921, Feb. 1, 2012]



Sec.  216.171  Effective dates and definitions.

    (a) Amended regulations are effective from February 1, 2012, through 
January 5, 2014.
    (b) The following definitions are utilized in these regulations:
    (1) Uncommon Stranding Event (USE)--A stranding event that takes 
place during a major training exercise and involves any one of the 
following:
    (i) Two or more individuals of any cetacean species (not including 
mother/calf pairs, unless of species of concern listed in next bullet) 
found dead or live on shore within a two day period and occurring on 
same shore lines or facing shorelines of different islands.
    (ii) A single individual or mother/calf pair of any of the following 
marine mammals of concern: Beaked whale of any species, Kogia sp., 
Risso's dolphin, melon-headed whale, pilot whales, humpback whales, 
sperm whales, blue whales, fin whales, sei whales, or monk seal.
    (iii) A group of 2 or more cetaceans of any species exhibiting 
indicators of distress.
    (2) Shutdown (this definition specifically applies only to the word 
as used inSec. 216.174(a)(1)(xxviii)(A)(1) and (2))--The cessation of 
MFAS operation or detonation of explosives within 14 nm of any live, in 
the water animal involved in a USE.

[74 FR 1484, Jan. 12, 2009, as amended at 76 FR 6701, Feb. 8, 2011; 77 
FR 4921, Feb. 1, 2012]



Sec.  216.172  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec.Sec. 
216.106 and 216.177, the Holder of the Letter of Authorization may 
incidentally, but not intentionally, take marine mammals within the area 
described inSec. 216.170(b), provided the activity is in compliance 
with all terms, conditions, and requirements of these regulations and 
the appropriate Letter of Authorization.
    (b) The activities identified inSec. 216.170(c) must be conducted 
in a manner that minimizes, to the greatest extent practicable, any 
adverse impacts on marine mammals and their habitat.
    (c) The incidental take of marine mammals under the activities 
identified inSec. 216.170(c) is limited to the following species, by 
the indicated method of take and the indicated number of times:
    (1) Level B Harassment (10 percent of the 
number of takes indicated below):
    (i) Mysticetes:
    (A) Humpback whale (Megaptera novaeangliae)--49470 (an average of 
9894 annually).
    (B) Minke whale (Balaenoptera acutorostrata)--320 (an average of 64 
annually).
    (C) Sei whale (Balaenoptera borealis)--230 (an average of 46 
annually).
    (D) Fin whale (Balaenoptera physalus)--230 (an average of 46 
annually).
    (E) Bryde's whale (Balaenoptera edeni)--320 (an average of 64 
annually).
    (ii) Odontocetes:
    (A) Sperm whales (Physeter macrocephalus)--3905 (an average of 781 
annually).
    (B) Pygmy sperm whales (Kogia breviceps)--4325 (an average of 865 
annually).
    (C) Dwarf sperm whale (Kogia sima)--10610 (an average of 2122 
annually).
    (D) Cuvier's beaked whale (Ziphius cavirostris)--5750 (an average of 
1150 annually).
    (E) Blainville's beaked whale (Mesoplodon densirostris)--1785 (an 
average of 357 annually).
    (F) Longman's beaked whale (Indopacetus pacificus)--525 (an average 
of 105 annually).
    (G) Rough-toothed dolphin (Steno bredanensis)--5385 (an average of 
1077 annually).
    (H) Bottlenose dolphin (Tursiops truncatus)--3670 (an average of 734 
annually).
    (I) Pan-tropical dolphins (Stenella attenuata)--10995 (an average of 
2199 annually).

[[Page 79]]

    (J) Spinner dolphins (Stenella longirostris)--2105 (an average of 
421 annually).
    (K) Striped dolphins (Stenella coeruleoalba)--16045 (an average of 
3209 annually).
    (L) Risso's dolphin (Grampus griseus)--2485 (an average of 497 
annually).
    (M) Melon-headed whale (Peponocephala electra)--2985 (an average of 
597 annually).
    (N) Fraser's dolphin (Lagenodelphis hosei)--6235 (an average of 1247 
annually).
    (O) Pygmy killer whale (Feresa attenuata)--980 (an average of 196 
annually).
    (P) False killer whale (Pseudorca crassidens)--230 (an average of 46 
annually).
    (Q) Killer whale (Orcinus orca)--230 (an average of 46 annually).
    (R) Short-finned pilot whale (Globicephala macrorynchus)--8990 (an 
average of 1798 annually).
    (iii) Pinnipeds: Hawaiian monk seal (Monachus schauinslandi)--550 
(an average of 110 annually).
    (2) Level A Harassment and/or mortality of no more than 10 
individuals total of each of the species listed below over the course of 
the 5-year regulations: Bottlenose dolphin (Tursiops truncatus), Pygmy 
and Dwarf sperm whales (Kogia breviceps and sima), Melon-headed whale 
(Peponocephala electra), Pantropical spotted dolphin (Stenella 
attenuata), Pygmy killer whale (Feresa attenuata), Short-finned pilot 
whale (Globicephala macrorynchus), Striped dolphin (Stenella 
coeruleoalba), and Cuvier's beaked whale (Ziphius cavirostris), 
Blainville's beaked whale, (Mesoplodon densirostris), Longman's beaked 
whale (Indopacetus pacificus).



Sec.  216.173  Prohibitions.

    Notwithstanding takings contemplated inSec. 216.172 and authorized 
by a Letter of Authorization issued under Sec.Sec. 216.106 and 
216.177, no person in connection with the activities described inSec. 
216.170 may:
    (a) Take any marine mammal not specified inSec. 216.172(c);
    (b) Take any marine mammal specified inSec. 216.172(c) other than 
by incidental take as specified inSec. 216.172(c)(1) and (2);
    (c) Take a marine mammal specified inSec. 216.172(c) if such 
taking results in more than a negligible impact on the species or stocks 
of such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of these regulations or a Letter of Authorization issued 
under Sec.Sec. 216.106 and 216.177.



Sec.  216.174  Mitigation.

    (a) When conducting training activities identified inSec. 
216.170(c), the mitigation measures contained in the Letter of 
Authorization issued under Sec.Sec. 216.106 of this chapter and 
216.177 must be implemented. These mitigation measures include, but are 
not limited to:
    (1) Mitigation Measures for ASW training: (i) All lookouts onboard 
platforms involved in ASW training events shall review the NMFS-approved 
Marine Species Awareness Training (MSAT) material prior to use of mid-
frequency active sonar.
    (ii) All Commanding Officers, Executive Officers, and officers 
standing watch on the Bridge shall have reviewed the MSAT material prior 
to a training event employing the use of mid-frequency active sonar.
    (iii) Navy lookouts shall undertake extensive training in order to 
qualify as a watchstander in accordance with the Lookout Training 
Handbook (NAVEDTRA, 12968-D).
    (iv) Lookout training shall include on-the-job instruction under the 
supervision of a qualified, experienced watchstander. Following 
successful completion of this supervised training period, Lookouts shall 
complete the Personal Qualification Standard program, certifying that 
they have demonstrated the necessary skills (such as detection and 
reporting of partially submerged objects).
    (v) Lookouts shall be trained in the most effective means to ensure 
quick and effective communication within the command structure in order 
to facilitate implementation of mitigation measures if marine species 
are spotted.
    (vi) On the bridge of surface ships, there shall be at least three 
people on

[[Page 80]]

watch whose duties include observing the water surface around the 
vessel.
    (vii) All surface ships participating in ASW exercises shall, in 
addition to the three personnel on watch noted previously, have at all 
times during the exercise at least two additional personnel on watch as 
lookouts.
    (viii) Personnel on lookout and officers on watch on the bridge 
shall have at least one set of binoculars available for each person to 
aid in the detection of marine mammals.
    (ix) On surface vessels equipped with mid-frequency active sonar, 
pedestal mounted ``Big Eye'' (20x110) binoculars shall be present and in 
good working order.
    (x) Personnel on lookout shall employ visual search procedures 
employing a scanning methodology in accordance with the Lookout Training 
Handbook (NAVEDTRA 12968-D).
    (xi) After sunset and prior to sunrise, lookouts shall employ Night 
Lookouts Techniques in accordance with the Lookout Training Handbook.
    (xii) Personnel on lookout shall be responsible for reporting all 
objects or anomalies sighted in the water (regardless of the distance 
from the vessel) to the Officer of the Deck.
    (xiii) CPF shall distribute the final mitigation measures contained 
in the LOA and BO to the Fleet.
    (xiv) Commanding Officers shall make use of marine species detection 
cues and information to limit interaction with marine species to the 
maximum extent possible consistent with safety of the ship.
    (xv) All personnel engaged in passive acoustic sonar operation 
(including aircraft, surface ships, or submarines) shall monitor for 
marine mammal vocalizations and report the detection of any marine 
mammal to the appropriate watch station for dissemination and 
appropriate action.
    (xvi) During mid-frequency active sonar training activities, 
personnel shall utilize all available sensor and optical systems (such 
as Night Vision Goggles) to aid in the detection of marine mammals.
    (xvii) Navy aircraft participating in exercises at sea shall conduct 
and maintain, when operationally feasible and safe, surveillance for 
marine mammals as long as it does not violate safety constraints or 
interfere with the accomplishment of primary operational duties.
    (xviii) Aircraft with deployed sonobuoys shall use only the passive 
capability of sonobuoys when marine mammals are detected within 200 
yards (182 m) of the sonobuoy.
    (xix) Marine mammal detections shall be reported immediately to 
assigned Aircraft Control Unit for further dissemination to ships in the 
vicinity of the marine species as appropriate where it is reasonable to 
conclude that the course of the ship will likely result in a closing of 
the distance to the detected marine mammal.
    (xx) Safety Zones--When marine mammals are detected by any means 
(aircraft, shipboard lookout, or acoustically) the Navy shall ensure 
that MFAS transmission levels are limited to at least 6 dB below normal 
operating levels if any detected marine mammals are within 1000 yards 
(914 m) of the sonar dome (the bow).
    (A) Ships and submarines shall continue to limit maximum MFAS 
transmission levels by this 6-dB factor until the marine mammal has been 
seen to leave the area, has not been detected for 30 minutes, or the 
vessel has transited more than 2,000 yards (1828 m) beyond the location 
of the last detection.
    (B) The Navy shall ensure that MFAS transmissions will be limited to 
at least 10 dB below the equipment's normal operating level if any 
detected animals are within 500 yards (457 m) of the sonar dome. Ships 
and submarines shall continue to limit maximum ping levels by this 10-dB 
factor until the marine mammal has been seen to leave the area, has not 
been detected for 30 minutes, or the vessel has transited more than 2000 
yards (1828 m) beyond the location of the last detection.
    (C) The Navy shall ensure that MFAS transmissions are ceased if any 
detected marine mammals are within 200 yards of the sonar dome. MFAS 
transmissions will not resume until the marine mammal has been seen to 
leave the area, has not been detected for 30 minutes, or the vessel has 
transited more than 2,000 yards beyond the location of the last 
detection.

[[Page 81]]

    (D) Special conditions applicable for dolphins and porpoises only: 
If, after conducting an initial maneuver to avoid close quarters with 
dolphins or porpoises, the Officer of the Deck concludes that dolphins 
or porpoises are deliberately closing to ride the vessel's bow wave, no 
further mitigation actions are necessary while the dolphins or porpoises 
continue to exhibit bow wave riding behavior.
    (E) If the need for power-down should arise as detailed in ``Safety 
Zones'' in paragraph (a)(1)(xx) of this section, Navy shall follow the 
requirements as though they were operating at 235 dB--the normal 
operating level (i.e., the first power-down will be to 229 dB, 
regardless of at what level above 235 dB sonar was being operated).
    (xxi) Prior to start up or restart of active sonar, operators shall 
check that the Safety Zone radius around the sound source is clear of 
marine mammals.
    (xxii) Sonar levels (generally)--Navy shall operate sonar at the 
lowest practicable level, not to exceed 235 dB, except as required to 
meet tactical training objectives.
    (xxiii) Helicopters shall observe/survey the vicinity of an ASW 
Exercise for 10 minutes before the first deployment of active (dipping) 
sonar in the water.
    (xxiv) Helicopters shall not dip their sonar within 200 yards (183 
m) of a marine mammal and shall cease pinging if a marine mammal closes 
within 200 yards (183 m) after pinging has begun.
    (xxv) Submarine sonar operators shall review detection indicators of 
close-aboard marine mammals prior to the commencement of ASW training 
activities involving active mid-frequency sonar.
    (xxvi) Night vision goggles shall be available to all ships and air 
crews, for use as appropriate.
    (xxvii) Humpback Whale Cautionary Area: An area extending 5km (2.7 
nm) from a line drawn from Kaunakakai on the island of Molokai to Kaena 
Point on the Island of Lanai; and an area extending 5 km (2.7 nm) from a 
line drawn from Kaunolu on the Island of Lanai to the most Northeastern 
point on the Island of Kahoolawe; and within a line drawn from Kanapou 
Bay on the Island of Kahoolawe to Kanahena Point on the Island of Maui 
and a line drawn from Cape Halawa on the Island of Molokai to Lipo Point 
on the Island of Maui, excluding the existing submarine operating area.
    (A) Should national security needs require MFAS training and testing 
in the cautionary area between 15 December and 15 April, it must be 
personally authorized by the Commander, U.S. Pacific Fleet based on his 
determination that training and testing in that specific area is 
required for national security purposes. This authorization shall be 
documented by the CPF in advance of transiting and training in the 
cautionary area, and the determination shall be based on the unique 
characteristics of the area from a military readiness perspective, 
taking into account the importance of the area for humpback whales and 
the need to minimize adverse impacts on humpback whales from MFAS 
whenever practicable. Further, Commander, U.S. Pacific Fleet will 
provide specific direction on required mitigation measures prior to 
operational units transiting to and training in the cautionary area.
    (B) The Navy shall provide advance notification to NMFS of any such 
activities (listed in paragraph (a)(1)(xxvii)(A)of this section).
    (C) The Navy shall include in its periodic reports for compliance 
with the MMPA whether or not activities occurred in the Humpback Whale 
Cautionary Area and any observed effects on humpback whales due to the 
conduct of these activities.
    (xxviii) The Navy shall abide by the letter of the ``Stranding 
Response Plan for Major Navy Training Exercises in the HRC'' to include 
the following measures:
    (A) Shutdown Procedures--When an Uncommon Stranding Event (USE--
defined inSec. 216.171(b)) occurs during a Major Training Exercise 
(MTE, including RIMPAC, USWEX, or Multi-Strike Group Exercise) in the 
HRC, the Navy shall implement the procedures described below.
    (1) The Navy shall implement a Shutdown (as definedSec. 
216.171(b)) when advised by a NMFS Office of Protected Resources 
Headquarters Senior Official

[[Page 82]]

designated in the HRC Stranding Communication Protocol that a USE 
involving live animals has been identified and that at least one live 
animal is located in the water. NMFS and Navy will maintain a dialogue, 
as needed, regarding the identification of the USE and the potential 
need to implement shutdown procedures.
    (2) Any shutdown in a given area shall remain in effect in that area 
until NMFS advises the Navy that the subject(s) of the USE at that area 
die or are euthanized, or that all live animals involved in the USE at 
that area have left the area (either of their own volition or herded).
    (3) If the Navy finds an injured or dead animal floating at sea 
during an MTE, the Navy shall notify NMFS immediately or as soon as 
operational security considerations allow. The Navy shall provide NMFS 
with species or description of the animal(s), the condition of the 
animal(s) including carcass condition if the animal(s) is/are dead), 
location, time of first discovery, observed behavior (if alive), and 
photo or video (if available). Based on the information provided, NMFS 
will determine if, and advise the Navy whether a modified shutdown is 
appropriate on a case-by-case basis.
    (4) In the event, following a USE, that qualified individuals are 
attempting to herd animals back out to the open ocean and animals are 
not willing to leave, or animals are seen repeatedly heading for the 
open ocean but turning back to shore, NMFS and the Navy shall coordinate 
(including an investigation of other potential anthropogenic stressors 
in the area) to determine if the proximity of MFAS training activities 
or explosive detonations, though farther than 14 nm from the distressed 
animal(s), is likely contributing to the animals' refusal to return to 
the open water. If so, NMFS and the Navy will further coordinate to 
determine what measures are necessary to improve the probability that 
the animals will return to open water and implement those measures as 
appropriate.
    (B) Within 72 hours of NMFS notifying the Navy of the presence of a 
USE, the Navy shall provide available information to NMFS (per the HRC 
Communication Protocol) regarding the location, number and types of 
acoustic/explosive sources, direction and speed of units using MFAS, and 
marine mammal sightings information associated with training activities 
occurring within 80 nm (148 km) and 72 hours prior to the USE event. 
Information not initially available regarding the 80 nm (148 km), 72 
hour period prior to the event will be provided as soon as it becomes 
available. The Navy will provide NMFS investigative teams with 
additional relevant unclassified information as requested, if available.
    (C) Memorandum of Agreement (MOA)--The Navy and NMFS shall develop a 
MOA, or other mechanism consistent with federal fiscal law requirements 
(and all other applicable laws), that will establish a framework whereby 
the Navy can (and provide the Navy examples of how they can best) assist 
NMFS with stranding investigations in certain circumstances.
    (xxix) While in transit, naval vessels shall be alert at all times, 
use extreme caution, and proceed at a ``safe speed'' so that the vessel 
can take proper and effective action to avoid a collision with any 
marine animal and can be stopped within a distance appropriate to the 
prevailing circumstances and conditions.
    (xxx) When marine mammals have been sighted in the area, Navy 
vessels shall increase vigilance and take reasonable and practicable 
actions to avoid collisions and activities that might result in close 
interaction of naval assets and marine mammals. Actions may include 
changing speed and/or direction and are dictated by environmental and 
other conditions (e.g., safety, weather).
    (2) Mitigation for IEER--The following are protective measures for 
use with Extended Echo Ranging/Improved Extended Echo Ranging (EER/IEER) 
given an explosive source generates the acoustic wave used in this 
sonobuoy.
    (i) Crews shall conduct aerial visual reconnaissance of the drop 
area prior to laying their intended sonobuoy pattern. This search should 
be conducted below 500 yards (457 m) at a slow speed, if operationally 
feasible and weather conditions permit. In dual aircraft training 
activities, crews are allowed

[[Page 83]]

to conduct coordinated area clearances.
    (ii) Crews shall conduct a minimum of 30 minutes of visual and 
acoustic monitoring of the search area prior to commanding the first 
post detonation. This 30-minute observation period may include pattern 
deployment time.
    (iii) For any part of the briefed pattern where a post (source/
receiver sonobuoy pair) will be deployed within 1,000 yards (914 m) of 
observed marine mammal activity, the Navy shall deploy the receiver ONLY 
and monitor while conducting a visual search. When marine mammals are no 
longer detected within 1,000 yards (914 m) of the intended post 
position, co-locate the explosive source sonobuoy (AN/SSQ-110A) (source) 
with the receiver.
    (iv) When able, crews will conduct continuous visual and aural 
monitoring of marine mammal activity. This is to include monitoring of 
own-aircraft sensors from first sensor placement to checking off station 
and out of communication range of these sensors.
    (v) Aural Detection: If the presence of marine mammals is detected 
aurally, then that shall cue the aircrew to increase the diligence of 
their visual surveillance. Subsequently, if no marine mammals are 
visually detected, then the crew may continue multi-static active 
search.
    (vi) Visual Detection:
    (A) If marine mammals are visually detected within 1,000 yards (914 
m) of the explosive source sonobuoy (AN/SSQ-110A) intended for use, then 
that payload shall not be detonated. Aircrews may utilize this post once 
the marine mammals have not been re-sighted for 30 minutes, or are 
observed to have moved outside the 1,000 yards (914 m) safety buffer.
    (B) Aircrews may shift their multi-static active search to another 
post, where marine mammals are outside the 1,000 yards (914 m) safety 
buffer.
    (vii) Aircrews shall make every attempt to manually detonate the 
unexploded charges at each post in the pattern prior to departing the 
operations area by using the ``Payload 1 Release'' command followed by 
the ``Payload 2 Release'' command. Aircrews shall refrain from using the 
``Scuttle'' command when two payloads remain at a given post. Aircrews 
will ensure that a 1,000 yard (914 m) safety buffer, visually clear of 
marine mammals, is maintained around each post as is done during active 
search operations.
    (viii) Aircrews shall only leave posts with unexploded charges in 
the event of a sonobuoy malfunction, an aircraft system malfunction, or 
when an aircraft must immediately depart the area due to issues such as 
fuel constraints, inclement weather, and in-flight emergencies. In these 
cases, the sonobuoy will self-scuttle using the secondary or tertiary 
method.
    (ix) The navy shall ensure all payloads are accounted for. Explosive 
source sonobuoys (AN/SSQ-110A) that cannot be scuttled shall be reported 
as unexploded ordnance via voice communications while airborne, then 
upon landing via naval message.
    (x) Marine mammal monitoring shall continue until out of own-
aircraft sensor range.
    (3) Mitigation for Demolitions (DEMOs) and Mine Countermeasure (MCM) 
Training (Up to 20 lb).
    (i) Exclusion Zones--Explosive charges shall not be detonated if a 
marine mammal is detected within 700 yards (640 m) of the detonation 
site.
    (ii) Pre-Exercise Surveys--For MCM training activities, the Navy 
shall conduct a pre-exercise survey within 30 minutes prior to the 
commencement of the scheduled explosive event. The survey may be 
conducted from the surface, by divers, and/or from the air. If a marine 
mammal is detected within the survey area, the exercise shall be 
suspended until the animal voluntarily leaves the area.
    (iii) Post-Exercise Surveys--Surveys within the same radius shall 
also be conducted within 30 minutes after the completion of the 
explosive event.
    (iv) Reporting--Any evidence of a marine mammal that may have been 
injured or killed by the action shall be reported immediately to NMFS.
    (v) Mine Laying Training--Though mine laying training operations 
involve aerial drops of inert training shapes on floating targets, 
measures 1, 2, and 3 for Demolitions and Mine countermeasures will apply 
to mine laying

[[Page 84]]

training. To the maximum extent feasible, the Navy shall retrieve inert 
mine shapes dropped during Mine Laying Training.
    (4) Mitigation for SINKEX, GUNEX, MISSILEX, and BOMBEX. (i) All 
weapons firing shall be conducted during the period 1 hour after 
official sunrise to 30 minutes before official sunset.
    (ii) Extensive range clearance operations shall be conducted in the 
hours prior to commencement of the exercise.
    (iii) An exclusion zone with a radius of 1.0 nm (1.85 km) shall be 
established around each target. An additional buffer of 0.5 nm (0.93 km) 
shall be added to account for errors, target drift, and animal 
movements. Additionally, a safety zone, which extends out an additional 
0.5 nm (0.93 km), shall be surveyed. Together, the zones extend out 2 nm 
(3.7 km) from the target.
    (iv) A series of surveillance over-flights shall be conducted within 
the exclusion and the safety zones, prior to and during the exercise, 
when feasible. Survey protocol would be as follows:
    (A) Overflights within the exclusion zone shall be conducted in a 
manner that optimizes the surface area of the water observed. This may 
be accomplished through the use of the Navy's Search and Rescue (SAR) 
Tactical Aid (TACAID).
    (B) All visual surveillance activities shall be conducted by Navy 
personnel trained in visual surveillance. At least one member of the 
mitigation team shall have completed the Navy's marine mammal training 
program for lookouts.
    (C) In addition to the overflights, the exclusion zone shall be 
monitored by passive acoustic means, when assets are available. This 
passive acoustic monitoring shall be maintained throughout the exercise. 
Potential assets include sonobuoys, which can be utilized to detect any 
vocalizing marine mammals in the vicinity of the exercise. The sonobuoys 
shall be re-seeded as necessary throughout the exercise. Additionally, 
passive sonar onboard submarines may be utilized to detect any 
vocalizing marine mammals in the area. The Officer Conducting the 
Exercise (OCE) shall be informed of any aural detection of marine 
mammals and would include this information in the determination of when 
it is safe to commence the exercise.
    (D) On each day of the exercise, aerial surveillance of the 
exclusion and safety zones shall commence two hours prior to the first 
firing.
    (E) The results of all visual, aerial, and acoustic searches shall 
be reported immediately to the OCE. No weapons launches or firing would 
commence until the OCE declares the safety and exclusion zones free of 
marine mammals.
    (F) If a marine mammal observed within the exclusion zone is diving, 
firing shall be delayed until the animal is re-sighted outside the 
exclusion zone, or 30 minutes has elapsed.
    (G) During breaks in the exercise of 30 minutes or more, the 
exclusion zone shall again be surveyed for any marine mammals. If marine 
mammals are sighted within the exclusion zone, the OCE would be 
notified, and the procedure described in paragraph (a)(4)(iv)(F) of this 
section would be followed.
    (H) Upon sinking of the vessel, a final surveillance of the 
exclusion zone shall be monitored for two hours, or until sunset, to 
verify that no marine mammals were harmed.
    (v) Aerial surveillance would be conducted using helicopters or 
other aircraft based on necessity and availability. These aircraft shall 
be capable of (and shall, to the extent practicable) flying at the slow 
safe speeds necessary to enable viewing of marine mammals with 
unobstructed, or minimally obstructed, downward and outward visibility. 
The Navy may cancel the exclusion and safety zone surveys in the event 
that a mechanical problem, emergency search and rescue, or other similar 
and unexpected event preempts the use of one of the aircraft onsite for 
the exercise.
    (vi) Where practicable, the Navy shall conduct the exercise in sea 
states that are ideal for marine mammal sighting, i.e., Beaufort Sea 
State 3 or less. In the event of a Beaufort Sea State of 4 or above, the 
Navy shall utilize additional aircraft (conducting tight search 
patterns), if available, to increase survey efforts within the zones.

[[Page 85]]

    (vii) The exercise shall not be conducted unless the exclusion zone 
can be adequately monitored visually.
    (viii) In the unlikely event that any marine mammals are observed to 
be harmed in the area, a detailed description of the animal shall be 
documented, the location noted, and if possible, photos taken. This 
information would be provided to NMFS.
    (b) [Reserved]



Sec.  216.175  Requirements for monitoring and reporting.

    (a) As outlined in the HRC Stranding Communication Plan, the Holder 
of the Authorization must notify NMFS immediately (or as soon as 
clearance procedures allow) if the specified activity identified in 
Sec.  216.170(c) is thought to have resulted in the mortality or injury 
of any marine mammals, or in any take of marine mammals not identified 
inSec. 216.172(c).
    (b) The Holder of the Letter of Authorization must conduct all 
monitoring and required reporting under the Letter of Authorization, 
including abiding by the HRC Monitoring Plan.
    (c) The Navy shall complete an Integrated Comprehensive Monitoring 
Plan (ICMP) in 2009. This planning and adaptive management tool shall 
include:
    (1) A method for prioritizing monitoring projects that clearly 
describes the characteristics of a proposal that factor into its 
priority.
    (2) A method for annually reviewing, with NMFS, monitoring results, 
Navy R&D, and current science to use for potential modification of 
mitigation or monitoring methods.
    (3) A detailed description of the Monitoring Workshop to be convened 
in 2011 and how and when Navy/NMFS will subsequently utilize the 
findings of the Monitoring Workshop to potentially modify subsequent 
monitoring and mitigation.
    (4) An adaptive management plan.
    (5) A method for standardizing data collection across Range 
Complexes.
    (d) General Notification of Injured or Dead Marine Mammals--Navy 
personnel shall ensure that NMFS (regional stranding coordinator) is 
notified immediately (or as soon as clearance procedures allow) if an 
injured or dead marine mammal is found during or shortly after, and in 
the vicinity of, any Navy training exercise utilizing MFAS, HFAS, or 
underwater explosive detonations. The Navy shall provide NMFS with 
species or description of the animal(s), the condition of the animal(s) 
(including carcass condition if the animal is dead), location, time of 
first discovery, observed behaviors (if alive), and photo or video (if 
available). The Navy shall consult the Stranding Response Plan to obtain 
more specific reporting requirements for specific circumstances.
    (e) Annual HRC Monitoring Plan Report--The Navy shall submit a 
report annually on October 1 describing the implementation and results 
(through August 1 of the same year) of the HRC Monitoring Plan, 
described inSec. 216.175(b). Data collection methods will be 
standardized across range complexes to allow for comparison in different 
geographic locations. Although additional information will be gathered, 
the marine mammal observers (MMOs) collecting marine mammal data 
pursuant to the HRC Monitoring Plan shall, at a minimum, provide the 
same marine mammal observation data required inSec. 216.175(f)(1).
    The HRC Monitoring Plan Report may be provided to NMFS within a 
larger report that includes the required Monitoring Plan Reports from 
multiple Range Complexes.
    (f) Annual HRC Exercise Report--The Navy shall submit an Annual HRC 
Exercise Report on October 1 of every year (covering data gathered 
through August 1 (or completion of RIMPAC if later than Aug 1) of the 
same year). This report shall contain information identified in 
subsections 216.175(f)(1)-(f)(5).
    (1) MFAS/HFAS Major Training Exercises--This section shall contain 
the following information for Major Training Exercises (MTEs, which 
include RIMPAC, USWEX, and Multi Strike Group) conducted in the HRC:
    (i) Exercise Information (for each MTE):
    (A) Exercise designator.
    (B) Date that exercise began and ended.
    (C) Location.

[[Page 86]]

    (D) Number and types of active sources used in the exercise.
    (E) Number and types of passive acoustic sources used in exercise.
    (F) Number and types of vessels, aircraft, etc., participating in 
exercise.
    (G) Total hours of observation by watchstanders.
    (H) Total hours of all active sonar source operation.
    (I) Total hours of each active sonar source (along with explanation 
of how hours are calculated for sources typically quantified in 
alternate way (buoys, torpedoes, etc.)).
    (J) Wave height (high, low, and average during exercise).
    (ii) Individual marine mammal sighting info (for each sighting in 
each MTE).
    (A) Location of sighting.
    (B) Species (if not possible--indication of whale/dolphin/pinniped).
    (C) Number of individuals.
    (D) Calves observed (y/n).
    (E) Initial Detection Sensor.
    (F) Indication of specific type of platform observation made from 
(including, for example, what type of surface vessel, i.e., FFG, DDG, or 
CG).
    (G) Length of time observers maintained visual contact with marine 
mammal.
    (H) Wave height (in feet).
    (I) Visibility.
    (J) Sonar source in use (y/n).
    (K) Indication of whether animal is <200yd, 200-500yd, 500-1000yd, 
1000-2000yd, or 2000yd from sonar source in paragraph 
(f)(1)(ii)(J) of this section.
    (L) Mitigation Implementation--Whether operation of sonar sensor was 
delayed, or sonar was powered or shut down, and how long the delay was.
    (M) If source in use (see paragraph (f)(1)(ii)(J) of this section) 
is hullmounted, true bearing of animal from ship, true direction of 
ship's travel, and estimation of animal's motion relative to ship 
(opening, closing, parallel).
    (N) Observed behavior--Watchstanders shall report, in plain language 
and without trying to categorize in any way, the observed behavior of 
the animals (such as animal closing to bow ride, paralleling course/
speed, floating on surface and not swimming, etc.).
    (iii) An evaluation (based on data gathered during all of the MTEs) 
of the effectiveness of mitigation measures designed to avoid exposing 
to mid-frequency sonar. This evaluation shall identify the specific 
observations that support any conclusions the Navy reaches about the 
effectiveness of the mitigation.
    (2) ASW Summary--This section shall include the following 
information as summarized from both MTEs and non-major training 
exercises (i.e., unit-level exercises, such as TRACKEXs):
    (i) Total annual hours of each type of sonar source (along with 
explanation of how hours are calculated for sources typically quantified 
in alternate way (buoys, torpedoes, etc.)).
    (ii) Total hours (from December 15 through April 15) of hullmounted 
active sonar operation occurring in the dense humpback areas plus a 5-km 
buffer, but not including the Pacific Missile Range Facility. The Navy 
shall work with NMFS to develop the exact boundaries of this area.
    (iii) Total estimated annual hours of hull-mounted active sonar 
operation conducted in Humpback Whale Cautionary area between December 
15 and April 15.
    (iv) Cumulative Impact Report--To the extent practicable, the Navy, 
in coordination with NMFS, shall develop and implement a method of 
annually reporting non-major (i.e., other than RIMPAC, USWEX, or Multi-
Strike Group Exercises) training exercises utilizing hull-mounted sonar. 
The report shall present an annual (and seasonal, where practicable) 
depiction of non-major training exercises geographically across the HRC. 
The Navy shall include (in the HRC annual report) a brief annual 
progress update on the status of development until an agreed-upon (with 
NMFS) method has been developed and implemented.
    (3) SINKEXs--This section shall include the following information 
for each SINKEX completed that year:
    (i) Exercise information (gathered for each SINKEX):
    (A) Location.
    (B) Date and time exercise began and ended.

[[Page 87]]

    (C) Total hours of observation by watchstanders before, during, and 
after exercise.
    (D) Total number and types of rounds expended/explosives detonated.
    (E) Number and types of passive acoustic sources used in exercise.
    (F) Total hours of passive acoustic search time.
    (G) Number and types of vessels, aircraft, etc., participating in 
exercise.
    (H) Wave height in feet (high, low and average during exercise).
    (I) Narrative description of sensors and platforms utilized for 
marine mammal detection and timeline illustrating how marine mammal 
detection was conducted.
    (ii) Individual marine mammal observation (by Navy lookouts) 
information (gathered for each marine mammal sighting):
    (A) Location of sighting.
    (B) Species (if not possible, indicate whale, dolphin or pinniped).
    (C) Number of individuals.
    (D) Whether calves were observed.
    (E) Initial detection sensor.
    (F) Length of time observers maintained visual contact with marine 
mammal.
    (G) Wave height.
    (H) Visibility.
    (I) Whether sighting was before, during, or after detonations/
exercise, and how many minutes before or after.
    (J) Distance of marine mammal from actual detonations (or target 
spot if not yet detonated)--use four categories to define distance:
    (1) The modeled injury threshold radius for the largest explosive 
used in that exercise type in that OPAREA (91 m for SINKEX in HRC);
    (2) The required exclusion zone (1 nm for SINKEX in HRC);
    (3) The required observation distance (if different than the 
exclusion zone (2 nm for SINKEX in HRC); and
    (4) Greater than the required observed distance. For example, in 
this case, the observer would indicate if <91 m, from 91 m--1 nm, from 1 
nm--2 nm, and 2 nm.
    (K) Observed behavior--Watchstanders will report, in plain language 
and without trying to categorize in any way, the observed behavior of 
the animal(s) (such as animal closing to bow ride, paralleling course/
speed, floating on surface and not swimming etc.), including speed and 
direction.
    (L) Resulting mitigation implementation--Indicate whether explosive 
detonations were delayed, ceased, modified, or not modified due to 
marine mammal presence and for how long.
    (M) If observation occurs while explosives are detonating in the 
water, indicate munition type in use at time of marine mammal detection.
    (4) IEER Summary--This section shall include an annual summary of 
the following IEER information:
    (i) Total number of IEER events conducted in the HRC.
    (ii) Total expended/detonated rounds (buoys).
    (iii) Total number of self-scuttled IEER rounds.
    (5) Explosives Summary--To the extent practicable, the Navy will 
provide the information described below for all of their explosive 
exercises. Until the Navy is able to report in full the information 
below, they will provide an annual update on the Navy's explosive 
tracking methods, including improvements from the previous year.
    (i) Total annual number of each type of explosive exercises (of 
those identified as part of the ``specified activity'' in this final 
rule) conducted in the HRC.
    (ii) Total annual expended/detonated rounds (missiles, bombs, etc.) 
for each explosive type.
    (g) Sonar Exercise Notification--The Navy shall submit to the NMFS 
Office of Protected Resources (specific contact information to be 
provided in LOA) either an electronic (preferably) or verbal report 
within fifteen calendar days after the completion of any major exercise. 
(RIMPAC, USWEX, or Multi Strike Group) indicating:
    (1) Location of the exercise.
    (2) Beginning and end dates of the exercise.
    (3) Type of exercise (e.g., RIMPAC, USWEX, or Multi Strike Group).
    (h) HRC 5-yr Comprehensive Report--The Navy shall submit to NMFS a 
draft report that analyzes and summarizes all of the multi-year marine 
mammal information gathered during ASW and explosive exercises for which 
annual reports are required (Annual

[[Page 88]]

HRC Exercise Reports and HRC Monitoring Plan Reports). This report will 
be submitted at the end of the fourth year of the rule (November 2012), 
covering activities that have occurred through June 1, 2012.
    (i) Comprehensive National ASW Report--By June 2014, the Navy shall 
submit a draft Comprehensive National Report that analyzes, compares, 
and summarizes the active sonar data gathered (through January 1, 2014) 
from the watchstanders in accordance with the Monitoring Plans for the 
HRC, the Atlantic Fleet Active Sonar Training, the Southern California 
(SOCAL) Range Complex, the Marianas Range Complex, the Northwest 
Training Range, the Gulf of Alaska, and the East Coast Undersea Warfare 
Training Range.
    (j) The Navy shall respond to NMFS comments and requests for 
additional information or clarification on the HRC Comprehensive Report, 
the draft National ASW report, the Annual HRC Exercise Report, or the 
Annual HRC Monitoring Plan Report (or the multi-Range Complex Annual 
Monitoring Plan Report, if that is how the Navy chooses to submit the 
information) if submitted within 3 months of receipt. These reports will 
be considered final after the Navy has addressed NMFS' comments or 
provided the requested information, or three months after the submittal 
of the draft if NMFS does not comment by then.
    (k) In 2011, the Navy shall convene a Monitoring Workshop in which 
the Monitoring Workshop participants will be asked to review the Navy's 
Monitoring Plans and monitoring results and make individual 
recommendations (to the Navy and NMFS) of ways of improving the 
Monitoring Plans. The recommendations shall be reviewed by the Navy, in 
consultation with NMFS, and modifications to the Monitoring Plan shall 
be made, as appropriate.



Sec.  216.176  Applications for Letters of Authorization.

    To incidentally take marine mammals pursuant to the regulations in 
this subpart, the U.S. citizen (as defined bySec. 216.103 of this 
chapter) conducting the activity identified inSec. 216.170(c) (the 
U.S. Navy) must apply for and obtain either an initial Letter of 
Authorization in accordance withSec. 216.177 or a renewal underSec. 
216.178.



Sec.  216.177  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the period of validity of this 
subpart, but may be renewed or modified sooner subject to the renewal 
conditions inSec. 216.178 and the modification conditions inSec. 
216.179.
    (b) Each Letter of Authorization will set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable 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 Letter 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 affected species or stock of marine mammal(s).

[74 FR 6242, Feb. 6, 2009, as amended at 77 FR 4921, Feb. 1, 2012]



Sec.  216.178  Renewal of Letters of Authorization.

    (a) A Letter of Authorization issued under Sec.Sec. 216.106 and 
216.177 for the activity identified inSec. 216.170(c) may be renewed 
for an amount of time not to exceed the periods of validity of this 
subpart upon:
    (1) Notification to NMFS that the activity described in the 
application submitted underSec. 216.176 will be undertaken and that 
there will not be a substantial modification to the desired work, 
mitigation, or monitoring undertaken during the upcoming period of 
validity;
    (2) Timely receipt (by the dates indicated in these regulations) of 
the monitoring reports required underSec. 216.175(c) through (j); and
    (3) A determination by NMFS that the mitigation, monitoring and 
reporting measures required underSec. 216.174 and the Letter of 
Authorization issued under Sec.Sec. 216.106 and 216.177, were 
undertaken and will be undertaken during

[[Page 89]]

the upcoming period of validity of a renewed Letter of Authorization.
    (b) If a request for a renewal of a Letter of Authorization issued 
under thisSec. 216.106 andSec. 216.178 indicates that a substantial 
modification, as determined by NMFS, to the described work, mitigation 
or monitoring undertaken during the upcoming season will occur, the NMFS 
will provide the public a period of 30 days for review and comment on 
the request. Review and comment on renewals of Letters of Authorization 
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 changes to the mitigation and monitoring requirements 
contained 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 Register.
    (d) NMFS, in response to new information and in consultation with 
the Navy, may modify the mitigation or monitoring measures in subsequent 
LOAs if doing so creates a reasonable likelihood of more effectively 
accomplishing the goals of mitigation 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:
    (1) Results from the Navy's monitoring from the previous year 
(either from the HRC or other locations).
    (2) Findings of the Monitoring Workshop that the Navy will convene 
in 2011 (Sec.  216.175(q)).
    (3) Compiled results of Navy funded research and development (R&D) 
studies (presented pursuant to the ICMP (Sec.  216.175(d)).
    (4) Results from specific stranding investigations (either from the 
HRC Study Area or other locations, and involving coincident MFAS/HFAS or 
explosives training or not involving coincident use).
    (5) Results from the Long Term Prospective Study. (6) Results from 
general marine mammal and sound research (funded by the Navy (or 
otherwise).

[74 FR 6242, Feb. 6, 2009, as amended at 77 FR 4921, Feb. 1, 2012]



Sec.  216.179  Modifications to Letters of Authorization.

    (a) Except as provided in paragraph (b) of this section, no 
substantive modification (including withdrawal or suspension) to the 
Letter of Authorization by NMFS, issued pursuant to Sec.Sec. 216.106 
and 216.177 and subject to the provisions of this subpart shall be made 
until after notification and an opportunity for public comment has been 
provided. For purposes of this paragraph, a renewal of a Letter of 
Authorization underSec. 216.178, without modification (except for the 
period of validity), is not considered a substantive modification.
    (b) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species or 
stocks of marine mammals specified inSec. 216.172(c), a Letter of 
Authorization issued pursuant to Sec.Sec. 216.106 and 216.177 may be 
substantively modified without prior notification and an opportunity for 
public comment. Notification will be published in the Federal Register 
within 30 days subsequent to the action.

Subparts Q-U [Reserved]



  Subpart V_Taking and Importing Marine Mammals; U.S. Navy's Atlantic 
                   Fleet Active Sonar Training (AFAST)

    Source: 74 FR 4876, Jan. 27, 2009, unless otherwise noted.

    Effective Date Note: At 74 FR 4876, Jan. 27, 2009, subpart V was 
added, effective Jan. 22, 2009 through Jan. 22, 2014.



Sec.  216.240  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the U.S. Navy 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.

[[Page 90]]

    (b) The taking of marine mammals by the Navy is only authorized if 
it occurs within the AFAST Study Area, which extends east from the 
Atlantic Coast of the U.S. to 45[deg] W. long. and south from the 
Atlantic and Gulf of Mexico Coasts to approximately 23[deg] N. lat., 
excluding the Bahamas (see Figure 1-1 in the Navy's Application).
    (c) The taking of marine mammals by the Navy is only authorized if 
it occurs incidental to the use of the following mid-frequency active 
sonar (MFAS) sources, high frequency active sonar (HFAS) sources, 
explosive sonobuoys, or similar sources, for Navy training, maintenance, 
or research, development, testing, and evaluation (RDT&E) (estimated 
amounts below):
    (1) AN/SQS-53 (hull-mounted sonar)--up to 16070 hours over the 
course of 5 years (an average of 3214 hours per year).
    (2) AN/SQS-56 (hull-mounted sonar)--up to 8420 hours over the course 
of 5 years (an average of 1684 hours per year).
    (3) AN/SQS-56 or 53 (hull mounted sonar in object detection mode)--
up to 1080 hours over the course of 5 years (an average of 216 hours per 
year).
    (4) AN/BQQ-10 or 5 (submarine sonar)--up to 49880 pings over the 
course of 5 years (an average of 9976 pings per year) (an average of 1 
ping per two hours during training events, 60 pings per hour for 
maintenance).
    (5) AN/AQS-22 or 13 (helicopter dipping sonar)--up to 14760 dips 
over the course of 5 years (an average of 2952 dips per year--10 pings 
per five-minute dip).
    (6) SSQ-62 (Directional Command Activated Sonobuoy System (DICASS) 
sonobuoys)--up to 29265 sonobuoys over the course of 5 years (an average 
of 5853 sonobuoys per year).
    (7) MK-48 (heavyweight torpedoes)--up to 160 torpedoes over the 
course of 5 years (an average of 32 torpedoes per year).
    (8) MK-46 or 54 (lightweight torpedoes)--up to 120 torpedoes over 
the course of 5 years (an average of 24 torpedoes per year).
    (9) AN/SSQ-110A (IEER explosive sonobuoy) and AN/SSQ-125 (AEER sonar 
sonobuoy)--up to 4360 sonobuoys, between these 2 sources, over the 
course of 5 years (an average of 872 buoys per year).
    (10) AN/SQQ-32 (over the side mine-hunting sonar)--up to 22370 hours 
over the course of 5 years (an average of 4474 hours per year).
    (11) AN/SLQ-25 (NIXIE--towed countermeasure)--up to 1660 hours over 
the course of 5 years (an average of 332 hours per year).
    (12) AN/BQS-15 (submarine navigation)--up to 2250 hours over the 
course of 5 years (an average of 450 hours per year).
    (13) MK-1 or 2 or 3 or 4 (Submarine-fired Acoustic Device 
Countermeasure (ADC))--up to 1125 ADCs over the course of 5 years (an 
average of 225 ADCs per year).
    (14) Noise Acoustic Emitters (NAE--Sub-fired countermeasure)--up to 
635 NAEs over the course of 5 years (an average of 127 NAEs per year).
    (d) The taking of marine mammals may be authorized in an LOA for the 
activities and sources listed inSec. 216.240(c) should the amounts 
(e.g., hours, dips, or number of exercises) vary from those estimated in 
Sec.  216.240(c), provided that the variation does not result in 
exceeding the amount of take indicated inSec. 216.242(c).

[74 FR 4876, Jan. 27, 2009, as amended at 76 FR 6701, Feb. 8, 2011; 77 
FR 4921, Feb. 1, 2012]



Sec.  216.241  Effective dates and definitions.

    (a) Amended regulations are effective from February 1, 2012, through 
January 22, 2014.
    (i) Two or more individuals of any cetacean species (not including 
mother/calf pairs), unless of species of concern listed inSec. 
216.241(b)(1)(ii) found dead or live on shore within a 2-day period and 
occurring within 30 miles of one another.
    (ii) A single individual or mother/calf pair of any of the following 
marine mammals of concern: beaked whale of any species, dwarf or pygmy 
sperm whales, melon-headed whales, pilot whales, right whales, humpback 
whales, sperm whales, blue whales, fin whales, or sei whales.
    (iii) A group of 2 or more cetaceans of any species exhibiting 
indicators of distress as defined inSec. 216.241(b)(3).

[[Page 91]]

    (2) Shutdown--The cessation of MFAS/HFAS operation or detonation of 
explosives within 14 nm nm (Atlantic Ocean) or 17 nm (Gulf of Mexico) of 
any live, in the water, animal involved in a USE.

[74 FR 4876, Jan. 27, 2009, as amended at 76 FR 6701, Feb. 8, 2011; 77 
FR 4922, Feb. 1, 2012]



Sec.  216.242  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec.Sec. 
216.106 and 216.247, the Holder of the Letter of Authorization may 
incidentally, but not intentionally, take marine mammals within the area 
described inSec. 216.240(b), provided the activity is in compliance 
with all terms, conditions, and requirements of these regulations and 
the appropriate Letter of Authorization.
    (b) The activities identified inSec. 216.240(c) must be conducted 
in a manner that minimizes, to the greatest extent practicable, any 
adverse impacts on marine mammals and their habitat.
    (c) The incidental take of marine mammals under the activities 
identified inSec. 216.240(c) is limited to the following species, by 
the identified method of take and the indicated number of times:
    (1) Level B Harassment (10 percent of the 
number of takes indicated below):
    (i) Mysticetes:
    (A) North Atlantic right whale (Eubalaena glacialis)--3330 (an 
average of 666 annually).
    (B) Humpback whale (Megaptera novaeangliae)--21010 (an average of 
4202 annually).
    (C) Minke whale (Balaenoptera acutorostrata)--2075 (an average of 
415 annually).
    (D) Sei whale (Balaenoptera borealis)--5285 (an average of 1057 
annually).
    (E) Fin whale (Balaenoptera physalus)--4410 (an average of 882 
annually).
    (F) Bryde's whale (Balaenoptera edeni)--180 (an average of 36 
annually).
    (G) Blue whale (Balaenoptera musculus)--4005 (an average of 801 
annually).
    (ii) Odontocetes:
    (A) Sperm whales (Physeter macrocephalus)--48790 (an average of 9758 
annually).
    (B) Pygmy or dwarf sperm whales (Kogia breviceps or Kogia sima)--
21920 (an average of 4384 annually).
    (C) Beaked Whales (Cuvier's, True's, Gervais', Sowerby's, 
Blainville's, Northern bottlenose whale) (Ziphius cavirostris, 
Mesoplodon mirus, M. europaeus, M. bidens, M. densirostris, Hyperoodon 
ampullatus)--24535 (an average of 4907 annually).
    (D) Rough-toothed dolphin (Steno bredanensis)--13540 (an average of 
2708 annually).
    (E) Bottlenose dolphin (Tursiops truncatus)--3034010 (an average of 
606802 annually).
    (F) Pan-tropical dolphin (Stenella attenuata)--696530 (an average of 
139306 annually).
    (G) Atlantic spotted dolphin (Stenella frontalis)--1881805 (an 
average of 376361 annually).
    (H) Spinner dolphin (Stenella longirostris)--105775 (an average of 
21155 annually).
    (I) Clymene dolphin (Stenella clymene)--232190 (an average of 46438 
annually).
    (J) Striped dolphin (Stenella coeruleoalba)--873620 (an average of 
174274 annually).
    (K) Common dolphin (Delphinus spp.)--482300 (an average of 96460 
annually).
    (L) Fraser's dolphin (Lagenodelphis hosei)--1730 (an average of 346 
annually).
    (M) Risso's dolphin (Grampus griseus)--470375 (an average of 94075 
annually).
    (N) Atlantic white-sided dolphin (Lagenorhynchus acutus)--103255 (an 
average of 20651 annually).
    (O) White-beaked dophin (Lagenorhynchus albirostris)--17250 (an 
average of 3450 annually).
    (P) Melon-headed whale (Peponocephala electra)--8270 (an average of 
1654 annually).
    (Q) Pygmy killer whale (Feresa attenuata)--1400 (an average of 280 
annually).
    (R) False killer whale (Pseudorca crassidens)--2690 (an average of 
538 annually).
    (S) Killer whale (Orcinus orca)--2515 (an average of 503 annually).
    (T) Pilot whales (Short-finned pilot or long-finned) (Globicephala

[[Page 92]]

macrorynchus or G. melas)--636965 (an average of 127393 annually).
    (U) Harbor porpoise (Phocoena phocoena)--767405 (an average of 
153481 annually).
    (iii) Pinnipeds:
    (A) Gray seal (Halichoerus grypus)--39295 (an average of 7859 
annually).
    (B) Harbor seal (Phoca vitulina)--63295 (an average of 12659 
annually).
    (C) Hooded seal (Cystophora cristata)--78590 (an average of 15718 
annually).
    (D) Harp seal (Pagophilus groenlandica)--55010 (an average of 11002 
annually).
    (2) Level A Harassment and/or mortality of no more than 10 beaked 
whales (total), of any of the species listed inSec. 
216.242(c)(1)(ii)(C) over the course of the 5-year regulations.



Sec.  216.243  Prohibitions.

    Notwithstanding takings contemplated inSec. 218.92 and authorized 
by a Letter of Authorization issued under Sec.Sec. 216.106 and 
216.247, no person in connection with the activities described inSec. 
216.240 may:
    (a) Take any marine mammal not specified inSec. 216.242(c);
    (b) Take any marine mammal specified inSec. 216.242(c) other than 
by incidental take as specified inSec. 216.242(c)(1) and (2);
    (c) Take a marine mammal specified inSec. 216.242(c) if such 
taking results in more than a negligible impact on the species or stocks 
of such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of these regulations or a Letter of Authorization issued 
under Sec.Sec. 216.106 and 216.247.



Sec.  216.244  Mitigation.

    (a) When conducting training activities identified inSec. 
216.240(c), the mitigation measures contained in the Letter of 
Authorization issued under Sec.Sec. 216.106 and 216.247 must be 
implemented. These mitigation measures include, but are not limited to:
    (1) Mitigation Measures for ASW and MIW training:
    (i) All lookouts onboard platforms involved in ASW training events 
shall review the NMFS-approved Marine Species Awareness Training (MSAT) 
material prior to use of mid-frequency active sonar.
    (ii) All Commanding Officers, Executive Officers, and officers 
standing watch on the Bridge shall review the MSAT material prior to a 
training event employing the use of mid- or high-frequency active sonar.
    (iii) Navy lookouts shall undertake extensive training in order to 
qualify as a watchstander in accordance with the Lookout Training 
Handbook (NAVEDTRA, 12968-D).
    (iv) Lookout training shall include on-the-job instruction under the 
supervision of a qualified, experienced watchstander. Following 
successful completion of this supervised training period, Lookouts shall 
complete the Personal Qualification Standard program, certifying that 
they have demonstrated the necessary skills (such as detection and 
reporting of partially submerged objects).
    (v) Lookouts shall be trained in the most effective means to ensure 
quick and effective communication within the command structure in order 
to facilitate implementation of mitigation measures if marine mammals 
are spotted.
    (vi) On the bridge of surface ships, there shall always be at least 
three people on watch whose duties include observing the water surface 
around the vessel.
    (vii) All surface ships participating in ASW exercises shall, in 
addition to the three personnel on watch noted previously, have at all 
times during the exercise at least two additional personnel on watch as 
lookouts.
    (viii) Personnel on lookout and officers on watch on the bridge 
shall have at least one set of binoculars available for each person to 
aid in the detection of marine mammals.
    (ix) On surface vessels equipped with MFAS, pedestal mounted ``Big 
Eye'' (20x110) binoculars shall be present and in good working order.
    (x) Personnel on lookout shall employ visual search procedures 
employing a scanning methodology in accordance with the Lookout Training 
Handbook (NAVEDTRA 12968-D). Surface lookouts should scan the water from 
the ship to the horizon and be responsible for all contacts in their 
sector. In

[[Page 93]]

searching the assigned sector, the lookout should always start at the 
forward part of the sector and search aft (toward the back). To search 
and scan, the lookout should hold the binoculars steady so the horizon 
is in the top third of the field of vision and direct the eyes just 
below the horizon. The lookout should scan for approximately five 
seconds in as many small steps as possible across the field seen through 
the binoculars. They should search the entire sector in approximately 
five-degree steps, pausing between steps for approximately five seconds 
to scan the field of view. At the end of the sector search, the glasses 
should be lowered to allow the eyes to rest for a few seconds, and then 
the lookout should search back across the sector with the naked eye.
    (xi) After sunset and prior to sunrise, lookouts shall employ Night 
Lookouts Techniques in accordance with the Lookout Training Handbook. At 
night, lookouts should not sweep the horizon with their eyes because 
this method is not effective when the vessel is moving. Lookouts should 
scan the horizon in a series of movements that should allow their eyes 
to come to periodic rests as they scan the sector. When visually 
searching at night, they should look a little to one side and out of the 
corners of their eyes, paying attention to the things on the outer edges 
of their field of vision.
    (xii) Personnel on lookout shall be responsible for informing the 
Officer of the Deck all objects or anomalies sighted in the water 
(regardless of the distance from the vessel) to the Officer of the Deck, 
since any object or disturbance (e.g., trash, periscope, surface 
disturbance, discoloration) in the water may be indicative of a threat 
to the vessel and its crew or indicative of a marine species that may 
need to be avoided as warranted.
    (xiii) Commanding Officers shall make use of marine mammal detection 
cues and information to limit interaction with marine mammals to the 
maximum extent possible consistent with safety of the ship.
    (xiv) All personnel engaged in passive acoustic sonar operation 
(including aircraft, surface ships, or submarines) shall monitor for 
marine mammal vocalizations and report the detection of any marine 
mammal to the appropriate watch station for dissemination and 
appropriate action.
    (xv) Units shall use training lookouts to survey for marine mammals 
prior to commencement and during the use of active sonar.
    (xvi) During operations involving sonar, personnel shall utilize all 
available sensor and optical systems (such as Night Vision Goggles) to 
aid in the detection of marine mammals.
    (xvii) Navy aircraft participating in exercises at sea shall conduct 
and maintain, when operationally feasible and safe, surveillance for 
marine mammals as long as it does not violate safety constraints or 
interfere with the accomplishment of primary operational duties.
    (xviii) Aircraft with deployed sonobuoys shall use only the passive 
capability of sonobuoys when marine mammals are detected within 200 
yards (182 m) of the sonobuoy.
    (xix) Marine mammal detections shall be reported immediately to 
assigned Aircraft Control Unit (if participating) for further 
dissemination to ships in the vicinity of the marine mammals. This 
action shall occur when it is reasonable to conclude that the course of 
the ship will likely close the distance between the ship and the 
detected marine mammal.
    (xx) Safety Zones--When marine mammals are detected by any means 
(aircraft, shipboard lookout, or acoustically) the Navy shall ensure 
that sonar transmission levels are limited to at least 6 dB below normal 
operating levels if any detected marine mammals are within 1000 yards 
(914 m) of the sonar dome (the bow).
    (A) Ships and submarines shall continue to limit maximum 
transmission levels by this 6-dB factor until the marine mammal has been 
seen to leave the area, has not been detected for 30 minutes, or the 
vessel has transited more than 2,000 yards (1828 m) beyond the location 
of the last detection.
    (B) Should a marine mammal be detected within or closing to inside 
457 m (500 yd) of the sonar dome, active sonar transmissions shall be 
limited to at

[[Page 94]]

least 10 dB below the equipment's normal operating level. Ships and 
submarines shall continue to limit maximum ping levels by this 10-dB 
factor until the marine mammal has been seen to leave the area, has not 
been detected for 30 minutes, or the vessel has transited more than 2000 
yards (1828 m) beyond the location of the last detection.
    (C) Should the marine mammal be detected within or closing to inside 
183 m (200 yd) of the sonar dome, active sonar transmissions shall 
cease. Sonar shall not resume until the marine mammal has been seen to 
leave the area, has not been detected for 30 minutes, or the vessel has 
transited more than 2,000 yards (1828 m) beyond the location of the last 
detection.
    (D) If the need for power-down should arise as detailed in ``Safety 
Zones'' in paragraph (a)(1)(xx) of this section, Navy shall follow the 
requirements as though they were operating at 235 dB--the normal 
operating level (i.e., the first power-down shall be to 229 dB, 
regardless of at what level above 235 sonar was being operated).
    (xxi) Prior to startup or restart of active sonar, operators shall 
check that the Safety Zone radius around the sound source is clear of 
marine mammals.
    (xxii) Sonar levels (generally)--The Navy shall operate sonar at the 
lowest practicable level, not to exceed 235 dB, except as required to 
meet tactical training objectives.
    (xxiii) Helicopters shall observe/survey the vicinity of an ASW 
Operation for 10 minutes before the first deployment of active (dipping) 
sonar in the water.
    (xxiv) Helicopters shall not dip their sonar within 200 yards (183 
m) of a marine mammal and shall cease pinging if a marine mammal closes 
within 200 yards of the helicopter dipping sonar (183 m) after pinging 
has begun.
    (xxv) Submarine sonar operators shall review detection indicators of 
close-aboard marine mammals prior to the commencement of ASW training 
activities involving active sonar.
    (xxvi) Night vision devices shall be available to all ships and air 
crews, for use as appropriate.
    (xxvii) Dolphin bowriding--If, after conducting an initial maneuver 
to avoid close quarters with dolphins, the ship concludes that dolphins 
are deliberately closing in on the ship to ride the vessel's bow wave, 
no further mitigation actions would be necessary because dolphins are 
out of the main transmission axis of the active sonar while in the 
shallow-wave area of the vessel bow.
    (xxviii) TORPEXs conducted in the northeast North Atlantic right 
whale critical habitat (as designated in 50 CFR Part 226) shall 
implement the following measures.
    (A) All torpedo-firing operations shall take place during daylight 
hours.
    (B) During the conduct of each test, visual surveys of the test area 
shall be conducted by all vessels and aircraft involved in the exercise 
to detect the presence of marine mammals. Additionally, trained 
observers shall be placed on the submarine, spotter aircraft, and the 
surface support vessel. All participants shall report sightings of any 
marine mammals, including negative reports, prior to torpedo firings. 
Reporting requirements shall be outlined in the test plans and 
procedures written for each individual exercise, and shall be emphasized 
as part of pre-exercise briefings conducted with all participants.
    (C) Observers shall receive NMFS-approved training in field 
identification, distribution, and relevant behaviors of marine mammals 
of the western north Atlantic. Observers shall fill out Standard 
Sighting Forms and the data shall be housed at the Naval Undersea 
Warfare Center Division Newport (NUWCDIVNPT). Any sightings of North 
Atlantic right whales shall be immediately communicated to the Sighting 
Advisory System (SAS). All platforms shall have onboard a copy of:
    (1) The Guide to Marine Mammals and Turtles of the U.S. Atlantic and 
Gulf of Mexico (Wynne and Schwartz 1999);
    (2) The NMFS Critical Sightings Program placard;
    (3) Right Whales, Guidelines to Mariners placard.
    (D) In addition to the visual surveillance discussed above, 
dedicated aerial surveys shall be conducted utilizing a

[[Page 95]]

fixed-wing aircraft. An aircraft with an overhead wing (i.e., Cessna 
Skymaster or similar) shall be used to facilitate a clear view of the 
test area. Two trained observers, in addition to the pilot, shall be 
embarked on the aircraft. Surveys shall be conducted at an approximate 
altitude of 1000 ft (305 m) flying parallel track lines at a separation 
of 1 nmi (1.85 km), or as necessary to facilitate good visual coverage 
of the sea surface. While conducting surveillance, the aircraft shall 
maintain an approximate speed of 100 knots (185 km/hr). Since factors 
that affect visibility are highly dependent on the specific time of day 
of the survey, the flight operator will have the flexibility to adjust 
the flight pattern to reduce glare and improve visibility. The entire 
test site shall be surveyed initially, but once preparations are being 
made for an actual test launch, survey effort shall be concentrated over 
the vicinity of the individual test location. Further, for approximately 
ten minutes immediately prior to launch, the aircraft shall racetrack 
back and forth between the launch vessel and the target vessel.
    (E) Commencement of an individual torpedo test scenario shall not 
occur until observers from all vessels and aircraft involved in the 
exercise have reported to the Officer in Tactical Command (OTC) and the 
OTC has declared that the range is clear of marine mammals. Should 
marine mammals be present within or seen moving toward the test area, 
the test shall be either delayed or moved as required to avoid 
interference with the animals.
    (F) The TORPEX shall be suspended if the Beaufort Sea State exceeds 
3 or if visibility precludes safe operations.
    (G) Vessel speeds:
    (1) During transit through the northeastern North Atlantic right 
whale critical habitat, surface vessels and submarines shall maintain a 
speed of no more than 10 knots (19 km/hr) while not actively engaged in 
the exercise procedures.
    (2) During TORPEX operations, a firing vessel should, where 
feasible, not exceed 10 knots. When a submarine is used as a target, 
vessel speeds should, where feasible, not exceed 18 knots. However, on 
occasion, when surface vessels are used as targets, the vessel may 
exceed 18 kts in order to fully test the functionality of the torpedoes. 
This increased speed would occur for a short period of time (e.g., 10-15 
minutes) to evade the torpedo when fired upon.
    (H) In the event of an animal strike, or if an animal is discovered 
that appears to be in distress, the Navy shall immediately report the 
discovery through the appropriate Navy chain of Command.
    (xxix) The Navy shall abide by the following additional measures:
    (A) The Navy shall avoid planning major exercises in the specified 
planning awareness areas (PAAs--as depicted in NMFS' ``Environmental 
Assessment of Mitigation Alternatives for Issuance of Incidental Take 
Regulations to U.S. Navy for Atlantic Fleet Active Sonar Training 
(AFAST)'') where feasible. Should national security require the conduct 
of more than four major exercises (C2X, JTFEX, SEASWITI, or similar 
scale event) in these areas (meaning all or a portion of the exercise) 
per year the Navy shall provide NMFS with prior notification and include 
the information in any associated after-action or monitoring reports.
    (B) The Navy shall conduct no more than one of the four above-
mentioned major exercises (COMPTUEX, JTFEX, SEASWITI or similar scale 
event) per year in the Gulf of Mexico to the extent operationally 
feasible. If national security needs require more than one major 
exercise to be conducted in the Gulf of Mexico PAAs, the Navy shall 
provide NMFS with prior notification and include the information in any 
associated after-action or monitoring reports.
    (C) The Navy shall include the PAAs in the Navy's Protective 
Measures Assessment Protocol (PMAP) (implemented by the Navy for use in 
the protection of the marine environment) for unit level situational 
awareness (i.e., exercises other than COMPTUEX, JTFEX, SEASWITI) and 
planning purposes.
    (D) Helicopter Dipping Sonar--Unless otherwise dictated by national 
security needs, the Navy shall minimize helicopter dipping sonar 
activities within

[[Page 96]]

the southeastern areas of North Atlantic right whale critical habitat 
(as designated in 50 CFR part 226) from November 15-April 15.
    (E) Object Detection Exercises--The Navy shall implement the 
following measures regarding object detection activities in the 
southeastern areas of the North Atlantic right whale critical habitat:
    (1) The Navy shall reduce the time spent conducting object detection 
exercises in the NARW critical habitat;
    (2) Prior to conducting surface ship object detection exercises in 
the southeastern areas of the North Atlantic right whale critical 
habitat during the time of November 15-April 15, ships shall contact 
FACSFACJAX to obtain the latest North Atlantic right whale sighting 
information. FACSFACJAX shall advise ships of all reported whale 
sightings in the vicinity of the critical habitat and associated areas 
of concern (which extend 9 km (5 NM) seaward of the designated critical 
habitat boundaries). To the extent operationally feasible, ships shall 
avoid conducting training in the vicinity of recently sighted North 
Atlantic right whales. Ships shall maneuver to maintain at least 500 
yards separation from any observed whale, consistent with the safety of 
the ship.
    (xxx) The Navy shall abide by the letter of the ``Stranding Response 
Plan for Major Navy Training Exercises in the AFAST Study Area'' 
(available at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm), to 
include the following measures:
    (A) Shutdown Procedures--When an Uncommon Stranding Event (USE--
defined inSec. 216.241) occurs during a Major Training Exercise (MTE, 
including SEASWITI, IAC, Group Sails, JTFEX, or COMPTUEX) in the AFAST 
Study Area, the Navy shall implement the procedures described below.
    (1) The Navy shall implement a Shutdown (as definedSec. 216.241) 
when advised by a NMFS Office of Protected Resources Headquarters Senior 
Official designated in the AFAST Stranding Communication Protocol that a 
USE involving live animals has been identified and that at least one 
live animal is located in the water. NMFS and Navy shall communicate, as 
needed, regarding the identification of the USE and the potential need 
to implement shutdown procedures.
    (2) Any shutdown in a given area shall remain in effect in that area 
until NMFS advises the Navy that the subject(s) of the USE at that area 
die or are euthanized, or that all live animals involved in the USE at 
that area have left the area (either of their own volition or herded).
    (3) If the Navy finds an injured or dead animal of any species other 
than North Atlantic right whale floating at sea during an MTE, the Navy 
shall notify NMFS immediately or as soon as operational security 
considerations allow. The Navy shall provide NMFS with species or 
description of the animal(s), the condition of the animal(s) including 
carcass condition (if the animal(s) is/are dead), location, time of 
first discovery, observed behaviors (if alive), and photo or video (if 
available). Based on the information provided, NMFS shall determine if, 
and advise the Navy whether a modified shutdown is appropriate on a 
case-by-case basis.
    (4) If the Navy finds an injured (or entangled) North Atlantic right 
whale floating at sea during an MTE, the Navy shall implement shutdown 
procedures (14 or 17 nm, as defined below) around the animal immediately 
(without waiting for notification from NMFS). The Navy shall then notify 
NMFS (pursuant to the AFAST Communication Protocol) immediately or as 
soon as operational security considerations allow. The Navy shall 
provide NMFS with species or description of the animal(s), the condition 
of the animal(s) including carcass condition (if the animal(s) is/are 
dead), location, time of first discovery, observed behaviors (if alive), 
and photo or video (if available). Subsequent to the discovery of the 
injured whale, any Navy platforms in the area shall report any North 
Atlantic right whale sightings to NMFS (or to a contact that can alert 
NMFS as soon as possible). Based on the information provided, NMFS may 
initiate/organize an aerial survey (by requesting the Navy's assistance 
pursuant to the memorandum of agreement (MOA) (see (a)(1)(xxx)(C) of 
this section) or by other available means) to see if other North 
Atlantic right

[[Page 97]]

whales are in the vicinity. Based on the information provided by the 
Navy and, if necessary, the outcome of the aerial surveys, NMFS shall 
determine whether a continued shutdown is appropriate on a case-by-case 
basis. Though it will be determined on a case-by-case basis after Navy/
NMFS discussion of the situation, NMFS anticipates that the shutdown 
will continue within 14 or 17 nm of a live, injured/entangled North 
Atlantic right whale until the animal dies or has not been seen for at 
least 3 hours (either by NMFS staff attending the injured animal or Navy 
personnel monitoring the area around where the animal was last sighted).
    (5) If the Navy finds a dead North Atlantic right whale floating at 
sea during an MTE, the Navy shall notify NMFS (pursuant to AFAST 
Stranding Communication Protocol) immediately or as soon as operational 
security considerations allow. The Navy shall provide NMFS with species 
or description of the animal(s), the condition of the animal(s) 
(including carcass condition if the animal(s) is/are dead), location, 
time of first discovery, observed behaviors (if alive), and photo or 
video (if available). Subsequent to the discovery of the dead whale, if 
the Navy is operating sonar in the area they shall use increased 
vigilance (in looking for North Atlantic right whales) and all platforms 
in the area shall report sightings of North Atlantic right whales to 
NMFS as soon as possible. Based on the information provided, NMFS may 
initiate/organize an aerial survey (by requesting the Navy's assistance 
pursuant to the MOA (see (a)(1)(xxx)(C) of this section) or by other 
available means) to see if other North Atlantic right whales are in the 
vicinity. Based on the information provided by the Navy and, if 
necessary, the outcome of the aerial surveys, NMFS will determine 
whether any additional mitigation measures are necessary on a case-by-
case basis.
    (6) In the event, following a USE, that: (a) Qualified individuals 
are attempting to herd animals back out to the open ocean and animals 
are not willing to leave, or (b) animals are seen repeatedly heading for 
the open ocean but turning back to shore, NMFS and the Navy should 
coordinate (including an investigation of other potential anthropogenic 
stressors in the area) to determine if the proximity of MFAS/HFAS 
training activities or explosive detonations, though farther than 14 or 
17 nm from the distressed animal(s), is likely decreasing the likelihood 
that the animals return to the open water. If so, NMFS and the Navy 
shall further coordinate to determine what measures are necessary to 
further minimize that likelihood and implement those measures as 
appropriate.
    (B) Within 72 hours of NMFS notifying the Navy of the presence of a 
USE, the Navy shall provide available information to NMFS (per the AFAST 
Communication Protocol) regarding the location, number and types of 
acoustic/explosive sources, direction and speed of units using MFAS/
HFAS, and marine mammal sightings information associated with training 
activities occurring within 80 nm (148 km) and 72 hours prior to the USE 
event. Information not initially available regarding the 80 nm (148 km), 
72 hours, period prior to the event shall be provided as soon as it 
becomes available. The Navy shall provide NMFS investigative teams with 
additional relevant unclassified information as requested, if available.
    (C) Memorandum of Agreement (MOA)--The Navy and NMFS shall develop a 
MOA, or other mechanism consistent with Federal fiscal law requirements 
(and all other applicable laws), that will establish a framework whereby 
the Navy can (and provide the Navy examples of how they can best) assist 
NMFS with stranding investigations in certain circumstances. This 
document shall be finalized in 2009 (unless NMFS notifies the Navy that 
a delay is needed).
    (2) Mitigation for IEER/AEER--The following are mitigation measures 
for use with Extended Echo Ranging/Improved Extended Echo Ranging (EER/
IEER) and Advanced Extended Echo Ranging given an explosive source 
generates the acoustic wave used in this sonobuoy.
    (i) Navy crews shall conduct visual reconnaissance of the drop area 
prior to laying their intended sonobuoy pattern. This search should be 
conducted below 500 yards (457 m) at a slow speed,

[[Page 98]]

if operationally feasible and weather conditions permit. In dual 
aircraft training activities, crews are allowed to conduct coordinated 
area clearances.
    (ii) For IEER (AN/SSQ-110A), Navy crews shall conduct a minimum of 
30 minutes of visual and acoustic monitoring of the search area prior to 
commanding the first post (source/receiver sonobuoy pair) detonation. 
This 30-minute observation period may include pattern deployment time.
    (iii) For any part of the briefed pattern where a post (source/
receiver sonobuoy pair) will be deployed within 1,000 yards (914 m) of 
observed marine mammal activity, deploy the receiver ONLY and monitor 
while conducting a visual search. When marine mammals are no longer 
detected within 1,000 yards (914 m) of the intended post position, co-
locate the explosive source sonobuoy (AN/SSQ-110A) (source) with the 
receiver.
    (iv) When operationally feasible, Navy crews shall conduct 
continuous visual and aural monitoring of marine mammal activity. This 
is to include monitoring of own-aircraft sensors from first sensor 
placement to checking off station and out of communication range of 
these sensors.
    (v) Aural Detection: If the presence of marine mammals is detected 
aurally, then that should cue the aircrew to increase the diligence of 
their visual surveillance. Subsequently, if no marine mammals are 
visually detected, then the Navy crew may continue multi-static active 
search.
    (vi) Visual Detection:
    (A) If marine mammals are visually detected within 1,000 yards (914 
m) of the explosive source sonobuoy (AN/SSQ-110A) intended for use, then 
that payload shall not be detonated.
    (B) Navy Aircrews may utilize this post once the marine mammals have 
not been re-sighted for 30 minutes, or are observed to have moved 
outside the 1,000 yards (914 m) safety buffer.
    (C) Navy Aircrews may shift their multi-static active search to 
another post, where marine mammals are outside the 1,000 yards (914 m) 
safety buffer.
    (vii) For IEER (AN/SSQ-110A), Navy Aircrews shall make every attempt 
to manually detonate the unexploded charges at each post in the pattern 
prior to departing the operations area by using the ``Payload 1 
Release'' command followed by the ``Payload 2 Release'' command. 
Aircrews shall refrain from using the ``Scuttle'' command when two 
payloads remain at a given post. Aircrews shall ensure that a 1,000 yard 
(914 m) safety buffer, visually clear of marine mammals, is maintained 
around each post as is done during active search operations.
    (viii) Navy Aircrews shall only leave posts with unexploded charges 
in the event of a sonobuoy malfunction, an aircraft system malfunction, 
or when an aircraft must immediately depart the area due to issues such 
as fuel constraints, inclement weather, and in-flight emergencies. In 
these cases, the sonobuoy will self-scuttle using the secondary or 
tertiary method.
    (ix) The Navy shall ensure all payloads are accounted for. Explosive 
source sonobuoys (AN/SSQ-110A) that cannot be scuttled shall be reported 
as unexploded ordnance via voice communications while airborne, then 
upon landing via naval message.
    (x) Marine mammal monitoring shall continue until out of own-
aircraft sensor range.
    (3) Mitigation Measures Related to Vessel Transit and North Atlantic 
Right Whales:
    (i) Mid-Atlantic, Offshore of the Eastern United States:
    (A) All Navy vessels are required to use extreme caution and operate 
at a slow, safe speed consistent with mission and safety during the 
months indicated below and within a 37 km (20 nm) arc (except as noted) 
of the specified associated reference points:
    (1) South and East of Block Island (37 km (20 NM) seaward of line 
between 41-4.49[deg] N. lat. 071-51.15[deg] W. long. and 41-18.58[deg] 
N. lat. 070-50.23[deg] W. long): Sept-Oct and Mar-Apr.
    (2) New York/New Jersey (40-30.64[deg] N. lat. 073-57.76[deg] W. 
long.): Sep-Oct and Feb-Apr.
    (3) Delaware Bay (Philadelphia) (38-52.13[deg] N. lat. 075-1.93[deg] 
W. long.): Oct-Dec and Feb-Mar.
    (4) Chesapeake Bay (Hampton Roads and Baltimore) (37-1.11[deg] N. 
lat. 075-57.56[deg] W. long.): Nov-Dec and Feb-Apr.

[[Page 99]]

    (5) North Carolina (34-41.54[deg] N. lat. 076-40.20[deg] W. long.): 
Dec-Apr.
    (6) South Carolina (33-11.84[deg] N. lat. 079-8.99[deg] W. long. and 
32-43.39[deg] N. lat. 079-48.72[deg] W. long.): Oct-Apr.
    (B) During the months indicated in paragraph (a)(3)(i)(A) of this 
section, Navy vessels shall practice increased vigilance with respect to 
avoidance of vessel-whale interactions along the mid-Atlantic coast, 
including transits to and from any mid-Atlantic ports not specifically 
identified in paragraph (a)(3)(i)(A) of this section.
    (C) All surface units transiting within 56 km (30 NM) of the coast 
in the mid-Atlantic shall ensure at least two watchstanders are posted, 
including at least one lookout who has completed required MSAT training.
    (D) Navy vessels shall not knowingly approach any whale head on and 
shall maneuver to keep at least 457 m (1,500 ft) away from any observed 
whale, consistent with vessel safety.
    (ii) Southeast Atlantic, Offshore of the Eastern United States--for 
the purposes of the measures below (within this paragraph), the 
``southeast'' encompasses sea space from Charleston, South Carolina, 
southward to Sebastian Inlet, Florida, and from the coast seaward to 148 
km (80 NM) from shore. North Atlantic right whale critical habitat is 
the area from 31-15[deg] N. lat. to 30-15[deg] N. lat. extending from 
the coast out to 28 km (15 NM), and the area from 28-00[deg] N. lat. to 
30-15[deg] N. lat. from the coast out to 9 km (5 NM). All mitigation 
measures described here that apply to the critical habitat apply from 
November 15-April 15 and also apply to an associated area of concern 
which extends 9 km (5 NM) seaward of the designated critical habitat 
boundaries.
    (A) Prior to transiting or training in the critical habitat or 
associated area of concern, ships shall contact Fleet Area Control and 
Surveillance Facility, Jacksonville, to obtain latest whale sighting and 
other information needed to make informed decisions regarding safe speed 
and path of intended movement. Subs shall contact Commander, Submarine 
Group Ten for similar information.
    (B) The following specific mitigation measures apply to activities 
occurring within the critical habitat and an associated area of concern 
which extends 9 km (5 NM) seaward of the designated critical habitat 
boundaries:
    (1) When transiting within the critical habitat or associated area 
of concern, vessels shall exercise extreme caution and proceed at a slow 
safe speed. The speed shall be the slowest safe speed that is consistent 
with mission, training and operations.
    (2) Speed reductions (adjustments) are required when a whale is 
sighted by a vessel or when the vessel is within 9 km (5 NM) of a 
reported new sighting less then 12 hours old. Circumstances could arise 
where, in order to avoid North Atlantic right whale(s), speed reductions 
could mean vessel must reduce speed to a minimum at which it can safely 
keep on course or vessels could come to an all stop.
    (3) Vessels shall avoid head-on approaches to North Atlantic right 
whale(s) and shall maneuver to maintain at least 457 m (500 yd) of 
separation from any observed whale if deemed safe to do so. These 
requirements do not apply if a vessel's safety is threatened, such as 
when a change of course would create an imminent and serious threat to a 
person, vessel, or aircraft, and to the extent vessels are restricted in 
the ability to maneuver.
    (4) Ships shall not transit through the critical habitat or 
associated area of concern in a North-South direction.
    (5) Ships, surfaced subs, and aircraft shall report any whale 
sightings to Fleet Area Control and Surveillance Facility, Jacksonville, 
by the quickest and most practicable means. The sighting report shall 
include the time, latitude/longitude, direction of movement and number 
and description of whale (i.e., adult/calf).
    (iii) Northeast Atlantic, Offshore of the Eastern United States:
    (A) Prior to transiting the Great South Channel or Cape Cod Bay 
critical habitat areas, ships shall obtain the latest North Atlantic 
right whale sightings and other information needed to make informed 
decisions regarding safe speed. The Great South Channel critical habitat 
is defined by the following coordinates: 41-00[deg] N. lat., 69-05[deg] 
W. long.; 41-45[deg] N. lat, 69-45[deg] W. long; 42-10[deg] N. lat., 68-
31[deg] W. long.; 41-38[deg] N.

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lat., 68-13[deg] W. long. The Cape Cod Bay critical habitat is defined 
by the following coordinates: 42-04.8[deg] N. lat., 70-10[deg] W. long.; 
42-12[deg] N. lat., 70-15[deg] W. long.; 42-12[deg] N. lat., 70-30[deg] 
W. long.; 41-46.8[deg] N. lat., 70-30[deg] W. long.
    (B) Ships, surfaced subs, and aircraft shall report any North 
Atlantic right whale sightings (if the whale is identifiable as a right 
whale) off the northeastern U.S. to Patrol and Reconnaissance Wing 
(COMPATRECONWING). The report shall include the time of sighting, lat/
long, direction of movement (if apparent) and number and description of 
the whale(s).
    (C) Vessels or aircraft that observe whale carcasses shall record 
the location and time of the sighting and report this information as 
soon as possible to the cognizant regional environmental coordinator. 
All whale strikes must be reported. This report shall include the date, 
time, and location of the strike; vessel course and speed; operations 
being conducted by the vessel; weather conditions, visibility, and sea 
state; description of the whale; narrative of incident; and indication 
of whether photos/videos were taken. Navy personnel are encouraged to 
take photos whenever possible.
    (D) Specific mitigation measures related to activities occurring 
within the critical habitat include the following:
    (1) Vessels shall avoid head-on approaches to North Atlantic right 
whale(s) and shall maneuver to maintain at least 457 m (500 yd) of 
separation from any observed whale if deemed safe to do so. These 
requirements do not apply if a vessel's safety is threatened, such as 
when change of course would create an imminent and serious threat to 
person, vessel, or aircraft, and to the extent vessels are restricted in 
the ability to maneuver.
    (2) When transiting within the critical habitat or associated area 
of concern, vessels shall use extreme caution and operate at a safe 
speed so as to be able to avoid collisions with North Atlantic right 
whales and other marine mammals, and stop within a distance appropriate 
to the circumstances and conditions.
    (3) Speed reductions (adjustments) are required when a whale is 
sighted by a vessel or when the vessel is within 9 km (5 NM) of a 
reported new sighting less than one week old.
    (4) Ships transiting in the Cape Cod Bay and Great South Channel 
critical habitats shall obtain information on recent whale sightings in 
the vicinity of the critical habitat. Any vessel operating in the 
vicinity of a North Atlantic right whale shall consider additional speed 
reductions as per Rule 6 of International Navigational Rules.



Sec.  216.245  Requirements for monitoring and reporting.

    (a) As outlined in the AFAST Stranding Communication Plan, the Navy 
must notify NMFS immediately (or as soon as clearance procedures allow) 
if the specified activity identified inSec. 216.240(c) is thought to 
have resulted in the mortality or injury of any marine mammals, or in 
any take of marine mammals not identified inSec. 216.242(c).
    (b) The Navy must conduct all monitoring and required reporting 
under the Letter of Authorization, including abiding by the AFAST 
Monitoring Plan, which is incorporated herein by reference.
    (c) The Navy shall complete an Integrated Comprehensive Monitoring 
Program (ICMP) Plan in 2009. This planning and adaptive management tool 
shall include:
    (1) A method for prioritizing monitoring projects that clearly 
describes the characteristics of a proposal that factor into its 
priority.
    (2) A method for annually reviewing, with NMFS, monitoring results, 
Navy R&D, and current science to use for potential modification of 
mitigation or monitoring methods.
    (3) A detailed description of the Monitoring Workshop to be convened 
in 2011 and how and when Navy/NMFS will subsequently utilize the 
findings of the Monitoring Workshop to potentially modify subsequent 
monitoring and mitigation.
    (4) An adaptive management plan.
    (5) A method for standardizing data collection for AFAST and across 
Range Complexes

[[Page 101]]

    (d) General Notification of Injured or Dead Marine Mammals--Navy 
personnel shall ensure that NMFS (regional stranding coordinator) is 
notified immediately (or as soon as clearance procedures allow) if an 
injured or dead marine mammal is found during or shortly after, and in 
the vicinity of, any Navy training exercise utilizing MFAS, HFAS, or 
underwater explosive detonations. The Navy shall provide NMFS with 
species or description of the animal(s), the condition of the animal(s) 
(including carcass condition if the animal is dead), location, time of 
first discovery, observed behaviors (if alive), and photo or video (if 
available). The Navy shall consult the Stranding Response Plan to obtain 
more specific reporting requirements for specific circumstances.
    (e) Annual AFAST Monitoring Plan Report--The Navy shall submit a 
report annually on October 1 describing the implementation and results 
(through August 1 of the same year) of the AFAST Monitoring Plan. Data 
collection methods will be standardized across range complexes to allow 
for comparison in different geographic locations. Although additional 
information will also be gathered, the marine mammal observers (MMOs) 
collecting marine mammal data pursuant to the AFAST Monitoring Plan 
shall, at a minimum, provide the same marine mammal observation data 
required in the data required inSec. 216.245(f)(1). The AFAST 
Monitoring Plan Report may be provided to NMFS within a larger report 
that includes the required Monitoring Plan Reports from AFAST and 
multiple Range Complexes.
    (f) Annual AFAST Exercise Report--The Navy shall submit an Annual 
AFAST Exercise Report on October 1 of every year (covering data gathered 
through August 1 of the same year). This report shall contain 
information identified in subsectionsSec. 216.245(f)(1) through 
(f)(5).
    (1) MFAS/HFAS Major Training Exercises--This section shall contain 
the following information for the major training exercises for reporting 
(MTERs), which include the Southeastern ASW Integrated Training 
Initiative (SEASWITI), Integrated ASW Course (IAC), Composite Training 
Unit Exercises (COMPTUEX), and Joint Task Force Exercises (JTFEX) 
conducted in the AFAST Study Area:
    (i) Exercise Information (for each MTER):
    (A) Exercise designator;
    (B) Date that exercise began and ended;
    (C) Location;
    (D) Number and types of active sources used in the exercise;
    (E) Number and types of passive acoustic sources used in exercise;
    (F) Number and types of vessels, aircraft, etc., participating in 
exercise;
    (G) Total hours of observation by watchstanders;
    (H) Total hours of all active sonar source operation;
    (I) Total hours of each active sonar source (along with explanation 
of how hours are calculated for sources typically quantified in 
alternate way (buoys, torpedoes, etc.));
    (J) Wave height (high, low, and average during exercise).
    (ii) Individual marine mammal sighting info (for each sighting in 
each MTER):
    (A) Location of sighting;
    (B) Species (if not possible--indication of whale/dolphin/pinniped);
    (C) Number of individuals;
    (D) Calves observed (y/n);
    (E) Initial Detection Sensor;
    (F) Indication of specific type of platform observation made from 
(including, for example, what type of surface vessel, i.e., FFG, DDG, or 
CG);
    (G) Length of time observers maintained visual contact with marine 
mammal;
    (H) Wave height (in feet);
    (I) Visibility;
    (J) Sonar source in use (y/n);
    (K) Indication of whether animal is <200 yd, 200-500 yd, 500-1000 
yd, 1000-2000 yd, or 2000 yd from sonar source in paragraph 
(f)(1)(ii)(J) of this section;
    (L) Mitigation Implementation--Whether operation of sonar sensor was 
delayed, or sonar was powered or shut down, and how long the delay was;
    (M) If source in use (i.e., in paragraph (f)(1)(ii)(J) of this 
section) is hullmounted, true bearing of animal from ship, true 
direction of ship's travel, and estimation of animal's motion relative 
to ship (opening, closing, parallel);

[[Page 102]]

    (N) Observed behavior--Watchstanders shall report, in plain language 
and without trying to categorize in any way, the observed behavior of 
the animals (such as animal closing to bow ride, paralleling course/
speed, floating on surface and not swimming, etc.).
    (iii) An evaluation (based on data gathered during all of the MTERs) 
of the effectiveness of mitigation measures designed to avoid exposing 
marine mammals to MFAS. This evaluation shall identify the specific 
observations that support any conclusions the Navy reaches about the 
effectiveness of the mitigation.
    (2) ASW Summary--This section shall include the following 
information as summarized from both MTERs and non-major training 
exercises:
    (i) Total annual hours of each type of sonar source (along with 
explanation of how hours are calculated for sources typically quantified 
in alternate way (buoys, torpedoes, etc.)).
    (ii) Cumulative Impact Report--To the extent practicable, the Navy, 
in coordination with NMFS, shall develop and implement a method of 
annually reporting non-major (i.e., other than MTERs) training exercises 
utilizing hull-mounted sonar. The report shall present an annual (and 
seasonal, where practicable) depiction of non-major training exercises 
geographically across the AFAST Study Area. To the extent practicable, 
this report will also include the total number of sonar hours (from 
helicopter dipping sonar and object detection exercises) conducted 
within the southern NARW critical habitat plus 5 nm buffer area. The 
Navy shall include (in the AFAST annual report) a brief annual progress 
update on the status of the development of an effective and unclassified 
method to report this information until an agreed-upon (with NMFS) 
method has been developed and implemented.
    (3) IEER/AEER Summary--This section shall include an annual summary 
of the following IEER and AEER information:
    (i) Total number of IEER and AEER events conducted in the AFAST 
Study Area;
    (ii) Total expended/detonated rounds (buoys);
    (iii) Total number of self-scuttled IEER rounds.
    (g) Sonar Exercise Notification--The Navy shall submit to the NMFS 
Office of Protected Resources (specific contact information to be 
provided in LOA) either an electronic (preferably) or verbal report 
within fifteen calendar days after the completion of any MTER 
indicating:
    (1) Location of the exercise;
    (2) Beginning and end dates of the exercise;
    (3) Type of exercise (e.g., COMPTUEX or SEASWITI).
    (h) AFAST 5-yr Comprehensive Report--The Navy shall submit to NMFS a 
draft report that analyzes and summarizes all of the multi-year marine 
mammal information gathered during ASW, MIW and IEER/AEER exercises for 
which annual reports are required (Annual AFAST Exercise Reports and 
AFAST Monitoring Plan Reports). This report will be submitted at the end 
of the fourth year of the rule (November 2012), covering activities that 
have occurred through June 1, 2012.
    (i) Comprehensive National ASW Report--By June, 2014, the Navy shall 
submit a draft National Report that analyzes, compares, and summarizes 
the active sonar data gathered (through January 1, 2014) from the 
watchstanders and pursuant to the implementation of the Monitoring Plans 
for AFAST, SOCAL, the HRC, the Marianas Range Complex, the Northwest 
Training Range, the Gulf of Alaska, and the East Coast Undersea Warfare 
Training Range.
    (j) The Navy shall respond to NMFS comments and requests for 
additional information or clarification on the AFAST Comprehensive 
Report, the Comprehensive National ASW report, the Annual AFAST Exercise 
Report, or the Annual AFAST Monitoring Plan Report (or the multi-Range 
Complex Annual Monitoring Plan Report, if that is how the Navy chooses 
to submit the information) if submitted within 3 months of receipt. 
These reports will be considered final after the Navy has addressed 
NMFS' comments or provided the requested information, or three months 
after the submittal of the draft if NMFS does not comment by then.

[[Page 103]]

    (k) In 2011, the Navy shall convene a Monitoring Workshop in which 
the Monitoring Workshop participants will be asked to review the Navy's 
Monitoring Plans and monitoring results and make individual 
recommendations (to the Navy and NMFS) of ways of improving the 
Monitoring Plans. The recommendations shall be reviewed by the Navy, in 
consultation with NMFS, and modifications to the Monitoring Plan shall 
be made, as appropriate.



Sec.  216.246  Applications for Letters of Authorization.

    To incidentally take marine mammals pursuant to the regulations in 
this subpart, the U.S. citizen (as defined bySec. 216.103) conducting 
the activity identified inSec. 216.240(c) (the U.S. Navy) must apply 
for and obtain either an initial Letter of Authorization in accordance 
withSec. 216.247 or a renewal underSec. 216.248.



Sec.  216.247  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the period of validity of this 
subpart, but may be renewed or modified sooner subject to the renewal 
conditions inSec. 216.248 and the modification conditions inSec. 
216.249.
    (b) Each Letter of Authorization will set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable 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 Letter 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 affected species or stock of marine mammal(s).

[74 FR 4876, Jan. 27, 2009, as amended at 77 FR 4922, Feb. 1, 2012]



Sec.  216.248  Renewal of Letters of Authorization and Adaptive Management.

    (a) A Letter of Authorization issued under Sec.Sec. 216.106 and 
216.247 for the activity identified inSec. 216.240(c) may be renewed 
upon:
    (1) Notification to NMFS that the activity described in the 
application submitted underSec. 216.246 will be undertaken and that 
there will not be a substantial modification to the desired work, 
mitigation, or monitoring undertaken during the upcoming period of 
validity;
    (2) Timely receipt (by the dates indicated in these regulations) of 
the monitoring reports required underSec. 216.245(c) through (j); and
    (3) A determination by NMFS that the mitigation, monitoring and 
reporting measures required underSec. 216.244 and the Letter of 
Authorization issued under Sec.Sec. 216.106 and 216.247, were 
undertaken and will be undertaken during the upcoming period of validity 
of a renewed Letter of Authorization.
    (b) If a request for a renewal of a Letter of Authorization issued 
under Sec.Sec. 216.106 and 216.248 indicates that a substantial 
modification, as determined by NMFS, to the described work, mitigation 
or monitoring undertaken during the upcoming season will occur, the NMFS 
will provide the public a period of 30 days for review and comment on 
the request. Review and comment on renewals of Letters of Authorization 
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 changes to the mitigation and monitoring requirements 
contained 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 Register.
    (d) NMFS, in response to new information and in consultation with 
the Navy, may modify the mitigation or monitoring measures in subsequent 
LOAs if doing so creates a reasonable likelihood of more effectively 
accomplishing the goals of mitigation 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 decision to modify the mitigation 
or monitoring measures:

[[Page 104]]

    (1) Results from the Navy's monitoring from the previous year 
(either from AFAST or other locations).
    (2) Findings of the Monitoring Workshop that the Navy will convene 
in 2011 (section 216.245(l)).
    (3) Compiled results of Navy funded research and development (R&D) 
studies (presented pursuant to the ICMP (Sec.  216.245(d))).
    (4) Results from specific stranding investigations (either from the 
AFAST Study Area or other locations, and involving coincident MFAS/HFAS 
or explosives training or not involving coincident use).
    (5) Results from the Long Term Prospective Study described in the 
preamble to these regulations.
    (6) Results from general marine mammal and sound research (funded by 
the Navy (described below) or otherwise).

[74 FR 4876, Jan. 27, 2009, as amended at 77 FR 4922, Feb. 1, 2012]



Sec.  216.249  Modifications to Letters of Authorization.

    (a) Except as provided in paragraph (b) of this section, no 
substantive modification (including withdrawal or suspension) to the 
Letter of Authorization by NMFS, issued pursuant to Sec.Sec. 216.106 
and 216.247 and subject to the provisions of this subpart shall be made 
until after notification and an opportunity for public comment has been 
provided. For purposes of this paragraph, a renewal of a Letter of 
Authorization underSec. 216.248, without modification (except for the 
period of validity), is not considered a substantive modification.
    (b) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species or 
stocks of marine mammals specified inSec. 216.242(c), a Letter of 
Authorization issued pursuant to Sec.Sec. 216.106 and 216.247 may be 
substantively modified without prior notification and an opportunity for 
public comment. Notification will be published in the Federal Register 
within 30 days subsequent to the action.

Subpart W [Reserved]



Subpart X_Taking Marine Mammals Incidental to U.S. Navy Training in the 
         Southern California Range Complex (SOCAL Range Complex)

    Source: 74 FR 3909, Jan. 21, 2009, unless otherwise noted.

    Effective Date Note: 74 FR 3909, Jan. 21, 2009, subpart X was added, 
effective Jan. 14, 2009 through Jan. 14, 2014.



Sec.  216.270  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the U.S. Navy 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 is only authorized if 
it occurs within the SOCAL Range Complex (as depicted in Figure ES-1 in 
the Navy's Final Environmental Impact Statement for the SOCAL Range 
Complex), which extends southwest from southern California in an 
approximately 700 by 200 nm rectangle with the seaward corners at 
27[deg]30[min]00[sec] N. lat.; 127[deg]10[min]04[sec] W. long. and 
24[deg]00[min]01[sec] N. lat.; 125[deg]00[min]03[sec] W. long.
    (c) The taking of marine mammals by the Navy is only authorized if 
it occurs incidental to the following activities:
    (1) The use of the following mid-frequency active sonar (MFAS) and 
high frequency active sonar (HFAS) sources, or similar sources, for Navy 
training, maintenance, or research, development, testing, and evaluation 
(RDT&E) (estimated amounts below):
(i) AN/SQS-53 (hull-mounted active sonar)--up to 9885 hours over the 
course of 5 years (an average of 1977 hours per year)
(ii) AN/SQS-56 (hull-mounted active sonar)--up to 2470 hours over the 
course of 5 years (an average of 494 hours per year)
(iii) AN/BQQ-10 (submarine active sonar)--up to 4075 hours over the 
course of 5 years (an average of 815 hours per year)(an average of 2 
pings per hour during training

[[Page 105]]

events, 60 pings per hour for maintenance)
(iv) AN/AQS-22 or 13 (active helicopter dipping sonar)--up to 13595 dips 
over the course of 5 years (an average of 2719 dips per year--10 pings 
per dip)
(v) SSQ-62 (Directional Command Activated Sonobuoy System (DICASS) 
sonobuoys)--up to 21275 sonobuoys over the course of 5 years (an average 
of 4255 sonobuoys per year)
(vi) MK-48 (heavyweight torpedoes)--up to 435 torpedoes over the course 
of 5 years (an average of 87 torpedoes per year)
(vii) AN/BQQ-15 (submarine navigational sonar)--up to 610 hours over the 
course of 5 years (an average of 122 hours per year)
(viii) MK-46 (lightweight torpedoes)--up to 420 torpedoes over the 
course of 5 years (an average of 84 torpedoes per year)
(ix) AN/SLQ-25A NIXIE--up to 1135 hours over the course of 5 years (an 
average of 227 hours per year)
(x) AN/SSQ-125 (AEER sonar sonobuoy)--up to 540 sonobuoys (total, of 
EER/IEER and AEER) over the course of 5 years (an average of 108 per 
year))
    (2) The detonation of the underwater explosives indicated in 
paragraph (c)(2)(i) of this section, or similar explosives, conducted as 
part of the training exercises indicated in paragraph (c)(2)(ii) of this 
section:
(i) Underwater Explosives:
 (A) 5 Naval Gunfire (9.5 lbs)
 (B) 76 mm rounds (1.6 lbs)
 (C) Maverick (78.5 lbs)
 (D) Harpoon (448 lbs)
 (E) MK-82 (238 lbs)
 (F) MK-83 (574 lbs)
 (G) MK-84 (945 lbs)
 (H) MK-48 (851 lbs)
 (I) Demolition Charges (20 lbs)
 (J) AN/SSQ-110A (IEER explosive sonobuoy--5 lbs)
(ii) Training Events:
 (A) Surface-to-surface Gunnery Exercises (S-S GUNEX)--up to 2010 
exercises over the course of 5 years (an average of 402 per year)
 (B) Air-to-surface Missile Exercises (A-S MISSILEX)--up to 250 
exercises over the course of 5 years (an average of 50 per year)
 (C) Bombing Exercises (BOMBEX)--up to 200 exercises over the course of 
5 years (an average of 40 per year)
 (D) Sinking Exercises (SINKEX)--up to 10 exercises over the course of 5 
years (an average of 2 per year)
 (E) Extended Echo Ranging and Improved Extended Echo Ranging (EER/IEER) 
Systems--up to 15 exercises (total, of EER/IEER and AEER combined) over 
the course of 5 years (an average of 3 exercises, or 108 sonobuoy 
deployments, per year).
    (d) The taking of marine mammals may be authorized in an LOA for the 
activities and sources listed inSec. 216.270(c) should the amounts 
(e.g., hours, dips, or number of exercises) vary from those estimated in 
Sec.  216.270(c), provided that the variation does not result in 
exceeding the amount of take indicated inSec. 216.272(c).

[74 FR 3909, Jan. 21, 2009, as amended at 76 FR 6701, Feb. 8, 2011; 77 
FR 4922, Feb. 1, 2012]



Sec.  216.271  Effective dates and definitions.

    (a) Amended regulations are effective from the date of publication 
of the final rule, through January 14, 2014.
    (b) The following definitions are utilized in these regulations:
    (1) Uncommon Stranding Event (USE)--A stranding event that takes 
place during an integrated, coordinated, or major training exercise 
(MTE) and involves any one of the following:
    (i) Two or more individuals of any cetacean species (not including 
mother/calf pairs, unless of species of concern listed inSec. 
216.271(b)(1)(ii) found dead or live on shore within a two day period 
and occurring within 30 miles of one another.
    (ii) A single individual or mother/calf pair of any of the following 
marine mammals of concern: Beaked whale of any species, dwarf or pygmy 
sperm whales, short-finned pilot whales, humpback whales, sperm whales, 
blue whales, fin whales, or sei whales.
    (iii) A group of 2 or more cetaceans of any species exhibiting 
indicators of distress as defined in the SOCAL Range Complex Stranding 
Response Plan.

[[Page 106]]

    (2) Shutdown--The cessation of MFAS/HFAS operation or detonation of 
explosives within 14 nm of any live, in the water, animal involved in a 
USE.

[74 FR 3909, Jan. 21, 2009, as amended at 76 FR 6701, Feb. 8, 2011; 77 
FR 4922, Feb. 1, 2012]



Sec.  216.272  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec.Sec. 
216.106 and 216.277, the Holder of the Letter of Authorization may 
incidentally, but not intentionally, take marine mammals within the area 
described inSec. 216.270(b), provided the activity is in compliance 
with all terms, conditions, and requirements of these regulations and 
the appropriate Letter of Authorization.
    (b) The activities identified inSec. 216.270(c) must be conducted 
in a manner that minimizes, to the greatest extent practicable, any 
adverse impacts on marine mammals and their habitat.
    (c) The incidental take of marine mammals under the activities 
identified inSec. 216.270(c) is limited to the following species, by 
the indicated method of take and the indicated number of times:
    (1) Level B Harassment (10 percent of the 
number of takes indicated below):
(i) Mysticetes:
 (A) Humpback whale (Megaptera novaeangliae)--110 (an average of 22 
annually)
 (B) Fin whale (Balaenoptera physalus)--870 (an average of 174 annually)
 (C) Blue whale (Balaenoptera musculus)--3085 (an average of 617 
annually)
 (D) Minke whale (Balaenoptera acutorostrata)--665 (an average of 133 
annually)
 (E) Gray whale (Eschrichtius robustus)--27340 (an average of 5468 
annually)
(ii) Odontocetes:
 (A) Sperm whales (Physeter macrocephalus)--775 (an average of 155 
annually)
 (B) Pygmy sperm whales (Kogia breviceps)--830 (an average of 166 
annually)
 (C) Dwarf sperm whale (Kogia sima)--100 (an average of 20 annually)
 (D) Mesoplodont beaked whales (Blainville's, Hubb's, Perrin's, pygmy, 
and ginkgo-toothed) (Mesoplodon densirostris, M. carlhubbsi, M. perrini, 
M. peruvianus, M. ginkgodens)--690 (an average of 138 annually)
 (E) Cuvier's beaked whales (Ziphius cavirostris)--2175 (an average of 
435 annually)
 (F) Baird's beaked whales (Berardius bairdii)--100 (an average of 20 
annually)
 (G) Unidentified beaked whales--555 (an average of 104 annually)
 (H) Rough-toothed dolphin (Steno bredanensis)--100 (an average of 20 
annually)
 (I) Bottlenose dolphin (Tursiops truncatus)--7480 (an average of 1516 
annually)
 (J) Pan-tropical spotted dolphin (Stenella attenuata)--100 (an average 
of 20 annually)
 (K) Spinner dolphin (Stenella longirostris)--100 (an average of 20 
annually)
 (L) Striped dolphin (Stenella coeruleoalba)--9190 (an average of 1838 
annually)
 (M) Long-beaked common dolphin (Delphinus capensis)--23145 (an average 
of 4629 annually)
 (N) Risso's dolphin (Grampus griseus)--17995 (an average of 3599 
annually)
 (O) Northern right whale dolphin (Lissodelphis borealis)--7935 (an 
average of 1547 annually)
 (P) Pacific white-sided dolphin (Lagenorhynchus obliquidens)--7020 (an 
average of 1404 annually)
 (Q) Short-beaked common dolphin (Delphinus delphis)--197350 (an average 
of 39470 annually)
 (R) Melon-headed whale (Peponocephala electra)--100 (an average of 20 
annually)
 (S) Pygmy killer whale (Feresa attenuata)--100 (an average of 20 
annually)
 (T) False killer whale (Pseudorca crassidens)--100 (an average of 20 
annually)
 (U) Killer whale (Orcinus orca)--70 (an average of 14 annually)
 (V) Short-finned pilot whale (Globicephala macrorynchus)--260 (an 
average of 52 annually)

[[Page 107]]

 (W) Dall's porpoise (Phocoenoides dalli)--3145 (an average of 629 
annually)
(iii) Pinnipeds:
 (A) Northern elephant seal (Mirounga angustirostris)--4795 (an average 
of 959 annually)
 (B) Pacific harbor seal (Phoca vitulina)--28380 (an average of 5676 
annually)
 (C) California sea lion (Zalophus californianus)--277530 (an average of 
55506 annually)
 (D) Northern fur seal (Callorhinus ursinus)--6185 (an average of 1237 
annually)
 (E) Guadalupe fur seal (Arctocephalus townsendi)--5340 (an average of 
1068 annually)
    (2) Level A Harassment and/or mortality of no more than 10 beaked 
whales (total), of any of the species listed inSec. 
216.272(c)(1)(ii)(D) through (G) over the course of the 5-year 
regulations.



Sec.  216.273  Prohibitions.

    Notwithstanding takings contemplated inSec. 216.272 and authorized 
by a Letter of Authorization issued under Sec.Sec. 216.106 and 
216.277, no person in connection with the activities described inSec. 
216.270 may:
    (a) Take any marine mammal not specified inSec. 216.272(c);
    (b) Take any marine mammal specified inSec. 216.272(c) other than 
by incidental take as specified inSec. 216.272(c)(1) and (2);
    (c) Take a marine mammal specified inSec. 216.272(c) if such 
taking results in more than a negligible impact on the species or stocks 
of such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of these regulations or a Letter of Authorization issued 
under Sec.Sec. 216.106 and 216.277.



Sec.  216.274  Mitigation.

    (a) When conducting activities identified inSec. 216.270(c), the 
mitigation measures contained in the Letter of Authorization issued 
under Sec.Sec. 216.106 and 216.277 must be implemented. These 
mitigation measures include, but are not limited to:
    (1) Navy's General SOCAL Maritime Measures for All Training at Sea:
    (i) Personnel Training (for all Training Types):
    (A) All commanding officers (COs), executive officers (XOs), 
lookouts, Officers of the Deck (OODs), junior OODs (JOODs), maritime 
patrol aircraft aircrews, and Anti-submarine Warfare (ASW)/Mine Warfare 
(MIW) helicopter crews shall complete the NMFS-approved Marine Species 
Awareness Training (MSAT) by viewing the U.S. Navy MSAT digital 
versatile disk (DVD). All bridge lookouts shall complete both parts one 
and two of the MSAT; part two is optional for other personnel.
    (B) Navy lookouts shall undertake extensive training in order to 
qualify as a watchstander in accordance with the Lookout Training 
Handbook (Naval Education and Training Command [NAVEDTRA] 12968-D).
    (C) Lookout training shall include on-the-job instruction under the 
supervision of a qualified, experienced lookout. Following successful 
completion of this supervised training period, lookouts shall complete 
the Personal Qualification Standard Program, certifying that they have 
demonstrated the necessary skills (such as detection and reporting of 
partially submerged objects). Personnel being trained as lookouts can be 
counted among required lookouts as long as supervisors monitor their 
progress and performance.
    (D) Lookouts shall be trained in the most effective means to ensure 
quick and effective communication within the command structure in order 
to facilitate implementation of mitigation measures if marine species 
are spotted.
    (ii) Operating Procedures and Collision Avoidance:
    (A) Prior to major exercises, a Letter of Instruction, Mitigation 
Measures Message or Environmental Annex to the Operational Order shall 
be issued to further disseminate the personnel training requirement and 
general marine species mitigation measures.
    (B) COs shall make use of marine species detection cues and 
information to limit interaction with marine species to the maximum 
extent possible consistent with safety of the ship.

[[Page 108]]

    (C) While underway, surface vessels shall have at least two lookouts 
with binoculars; surfaced submarines shall have at least one lookout 
with binoculars. Lookouts already posted for safety of navigation and 
man-overboard precautions may be used to fill this requirement. As part 
of their regular duties, lookouts will watch for and report to the OOD 
the presence of marine mammals.
    (D) On surface vessels equipped with a mid-frequency active sensor, 
pedestal mounted ``Big Eye'' (20x110) binoculars shall be properly 
installed and in good working order to assist in the detection of marine 
mammals in the vicinity of the vessel.
    (E) Personnel on lookout shall employ visual search procedures 
employing a scanning methodology in accordance with the Lookout Training 
Handbook (NAVEDTRA 12968-D).
    (F) After sunset and prior to sunrise, lookouts shall employ Night 
Lookout Techniques in accordance with the Lookout Training Handbook. 
(NAVEDTRA 12968-D).
    (G) While in transit, naval vessels shall be alert at all times, use 
extreme caution, and proceed at a ``safe speed'' so that the vessel can 
take proper and effective action to avoid a collision with any marine 
animal and can be stopped within a distance appropriate to the 
prevailing circumstances and conditions.
    (H) When marine mammals have been sighted in the area, Navy vessels 
shall increase vigilance and take reasonable and practicable actions to 
avoid collisions and activities that might result in close interaction 
of naval assets and marine mammals. Actions may include changing speed 
and/or direction and are dictated by environmental and other conditions 
(e.g., safety, weather).
    (I) Floating weeds and kelp, algal mats, clusters of seabirds, and 
jellyfish are good indicators of marine mammals. Therefore, where these 
circumstances are present, the Navy shall exercise increased vigilance 
in watching for marine mammals.
    (J) Navy aircraft participating in exercises at sea shall conduct 
and maintain, when operationally feasible and safe, surveillance for 
marine mammals as long as it does not violate safety constraints or 
interfere with the accomplishment of primary operational duties. Marine 
mammal detections shall be immediately reported to assigned Aircraft 
Control Unit for further dissemination to ships in the vicinity of the 
marine species as appropriate when it is reasonable to conclude that the 
course of the ship will likely result in a closing of the distance to 
the detected marine mammal.
    (K) All vessels shall maintain logs and records documenting training 
operations should they be required for event reconstruction purposes. 
Logs and records will be kept for a period of 30 days following 
completion of a major training exercise.
    (2) Navy's Measures for MFAS Operations:
    (i) Personnel Training (for MFAS Operations):
    (A) All lookouts onboard platforms involved in ASW training events 
shall review the NMFS-approved Marine Species Awareness Training 
material prior to use of mid-frequency active sonar.
    (B) All COs, XOs, and officers standing watch on the bridge shall 
have reviewed the Marine Species Awareness Training material prior to a 
training event employing the use of mid-frequency active sonar.
    (C) Navy lookouts shall undertake extensive training in order to 
qualify as a watchstander in accordance with the Lookout Training 
Handbook (Naval Educational Training [NAVEDTRA], 12968-D).
    (D) Lookout training shall include on-the-job instruction under the 
supervision of a qualified, experienced watchstander. Following 
successful completion of this supervised training period, lookouts shall 
complete the Personal Qualification Standard program, certifying that 
they have demonstrated the necessary skills (such as detection and 
reporting of partially submerged objects). This does not forbid 
personnel being trained as lookouts from being counted as those listed 
in previous measures so long as supervisors monitor their progress and 
performance.
    (E) Lookouts shall be trained in the most effective means to ensure 
quick and effective communication within

[[Page 109]]

the command structure in order to facilitate implementation of 
mitigation measures if marine species are spotted.
    (ii) Lookout and Watchstander Responsibilities:
    (A) On the bridge of surface ships, there shall always be at least 
three people on watch whose duties include observing the water surface 
around the vessel.
    (B) All surface ships participating in ASW training events shall, in 
addition to the three personnel on watch noted previously, have at all 
times during the exercise at least two additional personnel on watch as 
marine mammal lookouts.
    (C) Personnel on lookout and officers on watch on the bridge shall 
have at least one set of binoculars available for each person to aid in 
the detection of marine mammals.
    (D) On surface vessels equipped with mid-frequency active sonar, 
pedestal mounted ``Big Eye'' (20x110) binoculars shall be present and in 
good working order to assist in the detection of marine mammals in the 
vicinity of the vessel.
    (E) Personnel on lookout shall employ visual search procedures 
employing a scanning methodology in accordance with the Lookout Training 
Handbook (NAVEDTRA 12968-D).
    (F) After sunset and prior to sunrise, lookouts shall employ Night 
Lookouts Techniques in accordance with the Lookout Training Handbook.
    (G) Personnel on lookout shall be responsible for reporting all 
objects or anomalies sighted in the water (regardless of the distance 
from the vessel) to the Officer of the Deck, since any object or 
disturbance (e.g., trash, periscope, surface disturbance, discoloration) 
in the water may be indicative of a threat to the vessel and its crew or 
indicative of a marine species that may need to be avoided as warranted.
    (iii) Operating Procedures:
    (A) Navy will distribute final mitigation measures contained in the 
LOA and the Incidental take statement of NMFS' biological opinion to the 
Fleet.
    (B) COs shall make use of marine species detection cues and 
information to limit interaction with marine species to the maximum 
extent possible consistent with safety of the ship.
    (C) All personnel engaged in passive acoustic sonar operation 
(including aircraft, surface ships, or submarines) shall monitor for 
marine mammal vocalizations and report the detection of any marine 
mammal to the appropriate watch station for dissemination and 
appropriate action.
    (D) During mid-frequency active sonar operations, personnel shall 
utilize all available sensor and optical systems (such as night vision 
goggles) to aid in the detection of marine mammals.
    (E) Navy aircraft participating in exercises at sea shall conduct 
and maintain, when operationally feasible and safe, surveillance for 
marine species of concern as long as it does not violate safety 
constraints or interfere with the accomplishment of primary operational 
duties.
    (F) Aircraft with deployed sonobuoys shall use only the passive 
capability of sonobuoys when marine mammals are detected within 200 yds 
(183 m) of the sonobuoy.
    (G) Marine mammal detections shall be immediately reported to 
assigned Aircraft Control Unit for further dissemination to ships in the 
vicinity of the marine species as appropriate where it is reasonable to 
conclude that the course of the ship will likely result in a closing of 
the distance to the detected marine mammal.
    (H) Safety Zones--When marine mammals are detected by any means 
(aircraft, shipboard lookout, or acoustically) within or closing to 
inside 1,000 yds (914 m) of the sonar dome (the bow), the ship or 
submarine shall limit active transmission levels to at least 6 decibels 
(dB) below normal operating levels.
    (1) Ships and submarines shall continue to limit maximum 
transmission levels by this 6-dB factor until the animal has been seen 
to leave the area, has not been detected for 30 minutes, or the vessel 
has transited more than 2,000 yds (1829 m) beyond the location of the 
last detection.
    (2) Should a marine mammal be detected within or closing to inside 
500 yds (457 m) of the sonar dome, active sonar transmissions shall be 
limited to at least 10-dB below the equipment's

[[Page 110]]

normal operating level. Ships and submarines shall continue to limit 
maximum ping levels by this 10-dB factor until the animal has been seen 
to leave the area, has not been detected for 30 minutes, or the vessel 
has transited more than 2,000 yds (1829 m) beyond the location of the 
last detection.
    (3) Should the marine mammal be detected within or closing to inside 
200 yds (183 m) of the sonar dome, active sonar transmissions shall 
cease. Sonar shall not resume until the animal has been seen to leave 
the area, has not been detected for 30 minutes, or the vessel has 
transited more than 2,000 yds (1829 m) beyond the location of the last 
detection.
    (4) Special conditions applicable for dolphins and porpoises only: 
If, after conducting an initial maneuver to avoid close quarters with 
dolphins or porpoises, the OOD concludes that dolphins or porpoises are 
deliberately closing to ride the vessel's bow wave, no further 
mitigation actions are necessary while the dolphins or porpoises 
continue to exhibit bow wave riding behavior.
    (5) If the need for power-down should arise as detailed in paragraph 
(a)(2)(iii)(H) of this section, the Navy shall follow the requirements 
as though they were operating at 235 dB--the normal operating level 
(i.e., the first power-down will be to 229 dB, regardless of at what 
level above 235 dB active sonar was being operated).
    (I) Prior to start up or restart of active sonar, operators will 
check that the Safety Zone radius around the sound source is clear of 
marine mammals.
    (J) Active sonar levels (generally)--Navy shall operate active sonar 
at the lowest practicable level, not to exceed 235 dB, except as 
required to meet tactical training objectives.
    (K) Helicopters shall observe/survey the vicinity of an ASW training 
event for 10 minutes before the first deployment of active (dipping) 
sonar in the water.
    (L) Helicopters shall not dip their active sonar within 200 yds (183 
m) of a marine mammal and shall cease pinging if a marine mammal closes 
within 200 yds (183 m) after pinging has begun.
    (M) Submarine sonar operators shall review detection indicators of 
close-aboard marine mammals prior to the commencement of ASW training 
events involving active mid-frequency sonar.
    (N) Night vision goggles shall be available to all ships and air 
crews, for use as appropriate.
    (3) Navy's Measures for Underwater Detonations:
    (i) Surface-to-Surface Gunnery (explosive rounds):
    (A) Lookouts shall visually survey for floating weeds and kelp. 
Intended impact (i.e., where the Navy is aiming) shall not be within 600 
yds (585 m) of known or observed floating weeds and kelp, and algal 
mats.
    (B) For exercises using targets towed by a vessel or aircraft, 
target-towing vessels/aircraft shall maintain a trained lookout for 
marine mammals, if applicable. If a marine mammal is sighted in the 
vicinity, the tow aircraft/vessel shall immediately notify the firing 
vessel, which shall suspend the exercise until the area is clear.
    (C) A 600-yard radius buffer zone shall be established around the 
intended target.
    (D) From the intended firing position, trained lookouts shall survey 
the buffer zone for marine mammals prior to commencement and during the 
exercise as long as practicable.
    (E) The exercise shall be conducted only when the buffer zone is 
visible and marine mammals are not detected within it.
    (ii) Surface-to-Surface Gunnery (non-explosive rounds):
    (A) Lookouts shall visually survey for floating weeds and kelp, and 
algal mats. Intended impact will not be within 200 yds (183 m) of known 
or observed floating weeds and kelp, and algal mats.
    (B) A 200-yd (183 m) radius buffer zone shall be established around 
the intended target.
    (C) From the intended firing position, trained lookouts shall survey 
the buffer zone for marine mammals prior to commencement and during the 
exercise as long as practicable.
    (D) If applicable, target towing vessels shall maintain a lookout. 
If a marine mammal is sighted in the vicinity

[[Page 111]]

of the exercise, the tow vessel shall immediately notify the firing 
vessel in order to secure gunnery firing until the area is clear.
    (E) The exercise shall be conducted only when the buffer zone is 
visible and marine mammals are not detected within the target area and 
the buffer zone.
    (iii) Surface-to-Air Gunnery (explosive and non-explosive rounds):
    (A) Vessels shall orient the geometry of gunnery exercises in order 
to prevent debris from falling in the area of sighted marine mammals.
    (B) Vessels will expedite the recovery of any parachute deploying 
aerial targets to reduce the potential for entanglement of marine 
mammals.
    (C) Target towing aircraft shall maintain a lookout, if applicable. 
If a marine mammal is sighted in the vicinity of the exercise, the tow 
aircraft shall immediately notify the firing vessel in order to secure 
gunnery firing until the area is clear.
    (iv) Air-to-Surface Gunnery (explosive and non-explosive rounds)
    (A) If surface vessels are involved, lookouts will visually survey 
for floating kelp in the target area. Impact shall not occur within 200 
yds (183 m) of known or observed floating weeds and kelp or algal mats.
    (B) A 200 yd (183 m) radius buffer zone shall be established around 
the intended target.
    (C) If surface vessels are involved, lookout(s) shall visually 
survey the buffer zone for marine mammals prior to and during the 
exercise.
    (D) Aerial surveillance of the buffer zone for marine mammals shall 
be conducted prior to commencement of the exercise. Aircraft crew/pilot 
shall maintain visual watch during exercises. Release of ordnance 
through cloud cover is prohibited: aircraft must be able to actually see 
ordnance impact areas.
    (E) The exercise shall be conducted only if marine mammals are not 
visible within the buffer zone.
    (v) Small Arms Training--(grenades, explosive and non-explosive 
rounds)--Lookouts will visually survey for floating weeds or kelp, algal 
mats, and marine mammals. Weapons shall not be fired in the direction of 
known or observed floating weeds or kelp, algal mats, or marine mammals.
    (vi) Air-to-Surface At-sea Bombing Exercises (explosive and non-
explosive):
    (A) If surface vessels are involved, trained lookouts shall survey 
for floating kelp and marine mammals. Ordnance shall not be targeted to 
impact within 1,000 yds (914 m) of known or observed floating kelp or 
marine mammals.
    (B) A 1,000 yd (914 m) radius buffer zone shall be established 
around the intended target.
    (C) Aircraft shall visually survey the target and buffer zone for 
marine mammals prior to and during the exercise. The survey of the 
impact area shall be made by flying at 1,500 ft (152 m) or lower, if 
safe to do so, and at the slowest safe speed. Release of ordnance 
through cloud cover is prohibited: aircraft must be able to actually see 
ordnance impact areas. Survey aircraft should employ most effective 
search tactics and capabilities.
    (D) The exercise will be conducted only if marine mammals are not 
visible within the buffer zone.
    (vii) Air-to-Surface Missile Exercises (explosive and non-
explosive):
    (A) Ordnance shall not be targeted to impact within 1,800 yds (1646 
m) of known or observed floating kelp.
    (B) Aircraft shall visually survey the target area for marine 
mammals. Visual inspection of the target area shall be made by flying at 
1,500 (457 m) feet or lower, if safe to do so, and at slowest safe 
speed. Firing or range clearance aircraft must be able to actually see 
ordnance impact areas. Explosive ordnance shall not be targeted to 
impact within 1,800 yds (1646 m) of sighted marine mammals.
    (viii) Demolitions, Mine Warfare, and Mine Countermeasures (up to a 
20-lb NEW charge):
    (A) Exclusion Zones--All Demolitions, Mine Warfare and Mine 
Countermeasures Operations involving the use of explosive charges must 
include exclusion zones for marine mammals to prevent physical and/or 
acoustic effects to those species. These exclusion zones shall extend in 
a 700-yard arc radius around the detonation site.

[[Page 112]]

    (B) Pre-Exercise Surveys--For Demolition and Ship Mine 
Countermeasures Operations, pre-exercise survey shall be conducted 
within 30 minutes prior to the commencement of the scheduled explosive 
event. The survey may be conducted from the surface, by divers, and/or 
from the air, and personnel shall be alert to the presence of any marine 
mammal. Should a marine mammal be present within the survey area, the 
exercise shall be paused until the animal voluntarily leaves the area. 
The Navy shall suspend detonation exercises and ensure the area is clear 
for a full 30 minutes prior to detonation. Personnel shall record any 
marine mammal observations during the exercise.
    (C) Post-Exercise Surveys--Surveys within the same radius shall also 
be conducted within 30 minutes after the completion of the explosive 
event.
    (D) Reporting--If there is evidence that a marine mammal may have 
been stranded, injured or killed by the action, Navy activities shall be 
immediately suspended and the situation immediately reported by the 
participating unit to the Officer in Charge of the Exercise (OCE), who 
will follow Navy procedures for reporting the incident to Commander, 
Pacific Fleet, Commander, Third Fleet, Commander, Navy Region Southwest, 
Environmental Director, and the chain-of-command. The situation shall 
also be reported to NMFS (see Stranding Plan for details).
    (ix) Mining Operations--Initial target points shall be briefly 
surveyed prior to inert ordnance (no live ordnance used) release from an 
aircraft to ensure the intended drop area is clear of marine mammals. To 
the extent feasible, the Navy shall retrieve inert mine shapes dropped 
during Mining Operations.
    (x) Sink Exercise:
    (A) All weapons firing shall be conducted during the period 1 hour 
after official sunrise to 30 minutes before official sunset.
    (B) An exclusion zone with a radius of 1.5 nm shall be established 
around each target. This 1.5 nm zone includes a buffer of 0.5 nm to 
account for errors, target drift, and animal movement. In addition to 
the 1.5 nm exclusion zone, a further safety zone, which extends from the 
exclusion zone at 1.5 nm out an additional 0.5 nm, shall be surveyed. 
Together, the zones (exclusion and safety) extend out 2 nm from the 
target.
    (C) A series of surveillance over-flights shall be conducted within 
the exclusion and the safety zones, prior to and during the exercise, 
when feasible. Survey protocol shall be as follows:
    (1) Overflights within the exclusion zone shall be conducted in a 
manner that optimizes the surface area of the water observed. This may 
be accomplished through the use of the Navy's Search and Rescue Tactical 
Aid, which provides the best search altitude, ground speed, and track 
spacing for the discovery of small, possibly dark objects in the water 
based on the environmental conditions of the day. These environmental 
conditions include the angle of sun inclination, amount of daylight, 
cloud cover, visibility, and sea state.
    (2) All visual surveillance activities shall be conducted by Navy 
personnel trained in visual surveillance. At least one member of the 
mitigation team shall have completed the Navy's marine mammal training 
program for lookouts.
    (3) In addition to the overflights, the exclusion zone shall be 
monitored by passive acoustic means, when assets are available. This 
passive acoustic monitoring would be maintained throughout the exercise. 
Potential assets include sonobuoys, which can be utilized to detect any 
vocalizing marine mammals (particularly sperm whales) in the vicinity of 
the exercise. The sonobuoys shall be re-seeded as necessary throughout 
the exercise. Additionally, passive sonar onboard submarines may be 
utilized to detect any vocalizing marine mammals in the area. The OCE 
would be informed of any aural detection of marine mammals and would 
include this information in the determination of when it is safe to 
commence the exercise.
    (4) On each day of the exercise, aerial surveillance of the 
exclusion and safety zones shall commence 2 hours prior to the first 
firing.
    (5) The results of all visual, aerial, and acoustic searches shall 
be reported immediately to the OCE. No weapons

[[Page 113]]

launches or firing may commence until the OCE declares the safety and 
exclusion zones free of marine mammals.
    (6) If a protected species observed within the exclusion zone is 
diving, firing shall be delayed until the animal is re-sighted outside 
the exclusion zone, or 30 minutes have elapsed. After 30 minutes, if the 
animal has not been re-sighted it would be assumed to have left the 
exclusion zone.
    (7) During breaks in the exercise of 30 minutes or more, the 
exclusion zone shall again be surveyed for any protected species. If 
marine mammals are sighted within the exclusion zone, the OCE shall be 
notified, and the procedure described in paragraph (a)(3)(x)(C)(6) of 
this section would be followed.
    (8) Upon sinking of the vessel, a final surveillance of the 
exclusion zone shall be monitored for 2 hours, or until sunset, to 
verify that no marine mammals were harmed.
    (D) Aerial surveillance shall be conducted using helicopters or 
other aircraft based on necessity and availability. The Navy has several 
types of aircraft capable of performing this task; however, not all 
types are available for every exercise. For each exercise, the available 
asset best suited for identifying objects on and near the surface of the 
ocean would be used. These aircraft would be capable of flying at the 
slow safe speeds necessary to enable viewing of marine vertebrates with 
unobstructed, or minimally obstructed, downward and outward visibility. 
The exclusion and safety zone surveys may be cancelled in the event that 
a mechanical problem, emergency search and rescue, or other similar and 
unexpected event preempts the use of one of the aircraft onsite for the 
exercise.
    (E) Where practicable, the Navy shall conduct the exercise in sea 
states that are ideal for marine mammal sighting, i.e., Beaufort Sea 
State 3 or less. In the event of a 4 or above, survey efforts shall be 
increased within the zones. This shall be accomplished through the use 
of an additional aircraft, if available, and conducting tight search 
patterns.
    (F) The exercise shall not be conducted unless the exclusion zone 
can be adequately monitored visually.
    (G) In the event that any marine mammals are observed to be harmed 
in the area, a detailed description of the animal shall be taken, the 
location noted, and if possible, photos taken. This information shall be 
provided to NMFS via the Navy's regional environmental coordinator for 
purposes of identification (see the Stranding Plan for detail).
    (H) An after action report detailing the exercise's time line, the 
time the surveys commenced and terminated, amount, and types of all 
ordnance expended, and the results of survey efforts for each event 
shall be submitted to NMFS.
    (xi) Extended Echo Ranging/Improved Extended Echo Ranging (EER/IEER/
AEER):
    (A) Crews shall conduct visual reconnaissance of the drop area prior 
to laying their intended sonobuoy pattern. This search shall be 
conducted at an altitude below 457 m (500 yd) at a slow speed, if 
operationally feasible and weather conditions permit. In dual aircraft 
operations, crews are allowed to conduct coordinated area clearances.
    (B) For IEER (AN/SSQ-110A), crews shall conduct a minimum of 30 
minutes of visual and aural monitoring of the search area prior to 
commanding the first post detonation. This 30-minute observation period 
may include pattern deployment time.
    (C) For any part of the briefed pattern where a post (source/
receiver sonobuoy pair) will be deployed within 914 m (1,000 yd) of 
observed marine mammal activity, the Navy shall deploy the receiver ONLY 
and monitor while conducting a visual search. When marine mammals are no 
longer detected within 914 m (1,000 yd) of the intended post position, 
the Navy shall co-locate the explosive source sonobuoy (AN/SSQ-110A) 
(source) with the receiver.
    (D) When able, Navy crews shall conduct continuous visual and aural 
monitoring of marine mammal activity. This is to include monitoring of 
own-aircraft sensors from first sensor placement to checking off station 
and out of RF range of these sensors.

[[Page 114]]

    (E) Aural Detection--If the presence of marine mammals is detected 
aurally, then that shall cue the Navy aircrew to increase the diligence 
of their visual surveillance. Subsequently, if no marine mammals are 
visually detected, then the crew may continue multi-static active 
search.
    (F) Visual Detection--If marine mammals are visually detected within 
914 m (1,000 yd) of the explosive source sonobuoy (AN/SSQ-110A) intended 
for use, then that payload shall not be detonated. Aircrews may utilize 
this post once the marine mammals have not been re-sighted for 30 
minutes, or are observed to have moved outside the 914 m (1,000 yd) 
safety buffer. Aircrews may shift their multi-static active search to 
another post, where marine mammals are outside the 914 m (1,000 yd) 
safety buffer.
    (G) For IEER (AN/SSQ-110A), aircrews shall make every attempt to 
manually detonate the unexploded charges at each post in the pattern 
prior to departing the operations area by using the ``Payload 1 
Release'' command followed by the ``Payload 2 Release'' command. 
Aircrews shall refrain from using the ``Scuttle'' command when two 
payloads remain at a given post. Aircrews will ensure that a 914 m 
(1,000 yd) safety buffer, visually clear of marine mammals, is 
maintained around each post as is done during active search operations.
    (H) Aircrews shall only leave posts with unexploded charges in the 
event of a sonobuoy malfunction, an aircraft system malfunction, or when 
an aircraft must immediately depart the area due to issues such as fuel 
constraints, inclement weather, and in-flight emergencies. In these 
cases, the sonobuoy will self-scuttle using the secondary or tertiary 
method.
    (I) The Navy shall ensure all payloads are accounted for. Explosive 
source sonobuoys (AN/SSQ-110A) that can not be scuttled shall be 
reported as unexploded ordnance via voice communications while airborne, 
then upon landing via naval message.
    (J) Marine mammal monitoring shall continue until out of own-
aircraft sensor range.
    (4) The Navy shall abide by the letter of the ``Stranding Response 
Plan for Major Navy Training Exercises in the SOCAL Range Complex'' 
(available at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm), 
which is incorporated herein by reference, to include the following 
measures:
    (i) Shutdown Procedures--When an Uncommon Stranding Event (USE--
defined inSec. 216.271) occurs during a Major Training Exercise (MTE) 
(as defined in the Stranding Plan, meaning including Sustainment, 
SHAREM, IAC2, JTFEX, or COMPTUEX) in the SOCAL Range Complex, the Navy 
shall implement the procedures described below.
    (A) The Navy shall implement a Shutdown (as definedSec. 216.271) 
when advised by a NMFS Office of Protected Resources Headquarters Senior 
Official designated in the SOCAL Range Complex Stranding Communication 
Protocol that a USE involving live animals has been identified and that 
at least one live animal is located in the water. NMFS and Navy shall 
communicate, as needed, regarding the identification of the USE and the 
potential need to implement shutdown procedures.
    (B) Any shutdown in a given area shall remain in effect in that area 
until NMFS advises the Navy that the subject(s) of the USE at that area 
die or are euthanized, or that all live animals involved in the USE at 
that area have left the area (either of their own volition or herded).
    (C) If the Navy finds an injured or dead marine mammal floating at 
sea during an MTE, the Navy shall notify NMFS immediately or as soon as 
operational security considerations allow. The Navy shall provide NMFS 
with species or description of the animal(s), the condition of the 
animal(s) including carcass condition if the animal(s) is/are dead), 
location, time of first discovery, observed behaviors (if alive), and 
photo or video (if available). Based on the information provided, NMFS 
shall determine if, and advise the Navy whether a modified shutdown is 
appropriate on a case-by-case basis.
    (D) In the event, following a USE, that: (a) Qualified individuals 
are attempting to herd animals back out to the open ocean and animals 
are not willing to leave, or (b) animals are seen repeatedly heading for 
the open ocean

[[Page 115]]

but turning back to shore, NMFS and the Navy shall coordinate (including 
an investigation of other potential anthropogenic stressors in the area) 
to determine if the proximity of MFAS/HFAS activities or explosive 
detonations, though farther than 14 nm from the distressed animal(s), is 
likely decreasing the likelihood that the animals return to the open 
water. If so, NMFS and the Navy shall further coordinate to determine 
what measures are necessary to further minimize that likelihood and 
implement those measures as appropriate.
    (ii) Within 72 hours of NMFS notifying the Navy of the presence of a 
USE, the Navy shall provide available information to NMFS (per the SOCAL 
Range Complex Communication Protocol) regarding the location, number and 
types of acoustic/explosive sources, direction and speed of units using 
MFAS/HFAS, and marine mammal sightings information associated with 
training activities occurring within 80 nm (148 km) and 72 hours prior 
to the USE event. Information not initially available regarding the 80 
nm (148 km), 72 hours, period prior to the event shall be provided as 
soon as it becomes available. The Navy shall provide NMFS investigative 
teams with additional relevant unclassified information as requested, if 
available.
    (iii) Memorandum of Agreement (MOA)--The Navy and NMFS shall develop 
a MOA, or other mechanism consistent with federal fiscal law 
requirements (and all other applicable laws), that will establish a 
framework whereby the Navy can (and provide the Navy examples of how 
they can best) assist NMFS with stranding investigations in certain 
circumstances.



Sec.  216.275  Requirements for monitoring and reporting.

    (a) As outlined in the SOCAL Range Complex Stranding Communication 
Plan, the Navy must notify NMFS immediately (or as soon as clearance 
procedures allow) if the specified activity identified inSec. 
216.270(c) is thought to have resulted in the mortality or injury of any 
marine mammals, or in any take of marine mammals not identified inSec. 
216.272(c).
    (b) The Navy must conduct all monitoring and required reporting 
under the Letter of Authorization, including abiding by the SOCAL Range 
Complex Monitoring Plan.
    (c) The Navy shall complete an Integrated Comprehensive Monitoring 
Plan (ICMP) in 2009. This planning and adaptive management tool shall 
include:
    (1) A method for prioritizing monitoring projects that clearly 
describes the characteristics of a proposal that factor into its 
priority.
    (2) A method for annually reviewing, with NMFS, monitoring results, 
Navy R&D, and current science to use for potential modification of 
mitigation or monitoring methods.
    (3) A detailed description of the Monitoring Workshop to be convened 
in 2011 and how and when Navy/NMFS will subsequently utilize the 
findings of the Monitoring Workshop to potentially modify subsequent 
monitoring and mitigation.
    (4) An adaptive management plan.
    (5) A method for standardizing data collection across Range 
Complexes.
    (d) General Notification of Injured or Dead Marine Mammals--Navy 
personnel shall ensure that NMFS (regional stranding coordinator) is 
notified immediately (or as soon as clearance procedures allow) if an 
injured or dead marine mammal is found during or shortly after, and in 
the vicinity of, any Navy training exercise utilizing MFAS, HFAS, or 
underwater explosive detonations. The Navy shall provide NMFS with 
species or description of the animal(s), the condition of the animal(s) 
(including carcass condition if the animal is dead), location, time of 
first discovery, observed behaviors (if alive), and photo or video (if 
available). The Navy shall consult the Stranding Response Plan to obtain 
more specific reporting requirements for specific circumstances.
    (e) Annual SOCAL Range Complex Monitoring Plan Report--The Navy 
shall submit a report annually on October 1 describing the 
implementation and results (through August 1 of the same year) of the 
SOCAL Range Complex Monitoring Plan. Data collection methods will be 
standardized across

[[Page 116]]

range complexes to allow for comparison in different geographic 
locations. Although additional information will also be gathered, the 
marine mammal observers (MMOs) collecting marine mammal data pursuant to 
the SOCAL Range Complex Monitoring Plan shall, at a minimum, provide the 
same marine mammal observation data required in the data required in 
Sec.  216.275(f)(1). The SOCAL Range Complex Monitoring Plan Report may 
be provided to NMFS within a larger report that includes the required 
Monitoring Plan Reports from multiple Range Complexes.
    (f) Annual SOCAL Range Complex Exercise Report--The Navy shall 
submit an Annual SOCAL Range Complex Exercise Report on October 1 of 
every year (covering data gathered through August 1 of the same year). 
This report shall contain information identified inSec. 216.275(f)(1) 
through (5).
    (1) MFAS/HFAS Major Training Exercises--This section shall contain 
the following information for Integrated, Coordinated, and Major 
Training Exercises (MTEs), which include Ship ASW Readiness and 
Evaluation Measuring (SHAREM), Sustainment Exercises, Integrated ASW 
Course Phase II (IAC2), Composite Training Unit Exercises (COMPTUEX), 
and Joint Task Force Exercises (JTFEX) conducted in the SOCAL Range 
Complex:
(i) Exercise Information (for each MTE):
 (A) Exercise designator
 (B) Date that exercise began and ended
 (C) Location
 (D) Number and types of active sources used in the exercise
 (E) Number and types of passive acoustic sources used in exercise
 (F) Number and types of vessels, aircraft, etc., participating in 
exercise
 (G) Total hours of observation by watchstanders
 (H) Total hours of all active sonar source operation
 (I) Total hours of each active sonar source (along with explanation of 
how hours are calculated for sources typically quantified in alternate 
way (buoys, torpedoes, etc.)).
 (J) Wave height (high, low, and average during exercise)
(ii) Individual marine mammal sighting info (for each sighting in each 
MTE)
 (A) Location of sighting
 (B) Species (if not possible--indication of whale/dolphin/pinniped)
 (C) Number of individuals
 (D) Calves observed (y/n)
 (E) Initial Detection Sensor
 (F) Indication of specific type of platform observation made from 
(including, for example, what type of surface vessel, i.e., FFG, DDG, or 
CG)
 (G) Length of time observers maintained visual contact with marine 
mammal
 (H) Wave height (in feet)
 (I) Visibility
 (J) Sonar source in use (y/n).
 (K) Indication of whether animal is <200 yd, 200-500 yd, 500-1000 yd, 
1000-2000 yd, or 2000 yd from sonar source in paragraph 
(f)(1)(ii)(J) of this section.
 (L) Mitigation Implementation--Whether operation of sonar sensor was 
delayed, or sonar was powered or shut down, and how long the delay was.
 (M) If source in use (i.e., in paragraph (f)(1)(ii)(J) of this section) 
is hull-mounted, true bearing of animal from ship, true direction of 
ship's travel, and estimation of animal's motion relative to ship 
(opening, closing, parallel)
 (N) Observed behavior--Watchstanders shall report, in plain language 
and without trying to categorize in any way, the observed behavior of 
the animals (such as animal closing to bow ride, paralleling course/
speed, floating on surface and not swimming, etc.)
(iii) An evaluation (based on data gathered during all of the MTEs) of 
the effectiveness of mitigation measures designed to avoid exposing 
marine mammals to mid-frequency sonar. This evaluation shall identify 
the specific observations that support any conclusions the Navy reaches 
about the effectiveness of the mitigation.
    (2) ASW Summary--This section shall include the following 
information

[[Page 117]]

as summarized from both MTEs and non-major training exercises (unit-
level exercises, such as TRACKEXs):
(i) Total annual hours of each type of sonar source (along with 
explanation of how hours are calculated for sources typically quantified 
in alternate way (buoys, torpedoes, etc.))
(ii) Cumulative Impact Report--To the extent practicable, the Navy, in 
coordination with NMFS, shall develop and implement a method of annually 
reporting non-major (i.e., other than MTEs) training exercises utilizing 
hull-mounted sonar. The report shall present an annual (and seasonal, 
where practicable) depiction of non-major training exercises 
geographically across the SOCAL Range Complex. The Navy shall include 
(in the SOCAL Range Complex annual report) a brief annual progress 
update on the status of the development of an effective and unclassified 
method to report this information until an agreed-upon (with NMFS) 
method has been developed and implemented.
    (3) SINKEXs--This section shall include the following information 
for each SINKEX completed that year:
(i) Exercise information (gathered for each SINKEX):
 (A) Location
 (B) Date and time exercise began and ended
 (C) Total hours of observation by watchstanders before, during, and 
after exercise
 (D) Total number and types of rounds expended / explosives detonated
 (E) Number and types of passive acoustic sources used in exercise
 (F) Total hours of passive acoustic search time
 (G) Number and types of vessels, aircraft, etc., participating in 
exercise
 (H) Wave height in feet (high, low and average during exercise)
 (I) Narrative description of sensors and platforms utilized for marine 
mammal detection and timeline illustrating how marine mammal detection 
was conducted
(ii) Individual marine mammal observation (by Navy lookouts) information 
(gathered for each marine mammal sighting)
 (A) Location of sighting
 (B) Species (if not possible, indicate whale, dolphin or pinniped)
 (C) Number of individuals
 (D) Whether calves were observed
 (E) Initial detection sensor
 (F) Length of time observers maintained visual contact with marine 
mammal
 (G) Wave height
 (H) Visibility
 (I) Whether sighting was before, during, or after detonations/exercise, 
and how many minutes before or after
 (J) Distance of marine mammal from actual detonations (or target spot 
if not yet detonated)--use four categories to define distance:
 (1) The modeled injury threshold radius for the largest explosive used 
in that exercise type in that OPAREA (738 m for SINKEX in the SOCAL 
Range Complex);
 (2) The required exclusion zone (1 nm for SINKEX in the SOCAL Range 
Complex);
 (3) The required observation distance (if different than the exclusion 
zone (2 nm for SINKEX in the SOCAL Range Complex); and
 (4) Greater than the required observed distance. For example, in this 
case, the observer would indicate if <738 m, from 738 m to 1 nm, from 1 
nm to 2 nm, and 2 nm.
 (K) Observed behavior--Watchstanders will report, in plain language and 
without trying to categorize in any way, the observed behavior of the 
animal(s) (such as animal closing to bow ride, paralleling course/speed, 
floating on surface and not swimming etc.), including speed and 
direction.
 (L) Resulting mitigation implementation--Indicate whether explosive 
detonations were delayed, ceased, modified, or not modified due to 
marine mammal presence and for how long.
 (M) If observation occurs while explosives are detonating in the water, 
indicate munition type in use at time of marine mammal detection.
    (4) IEER Summary--This section shall include an annual summary of 
the following IEER information:

[[Page 118]]

(i) Total number of IEER events conducted in the SOCAL Range Complex
(ii) Total expended/detonated rounds (buoys)
(iii) Total number of self-scuttled IEER rounds
    (5) Explosives Summary--To the extent practicable, the Navy will 
provide the information described below for all of their explosive 
exercises. Until the Navy is able to report in full the information 
below, they will provide an annual update on the Navy's explosive 
tracking methods, including improvements from the previous year.
(i) Total annual number of each type of explosive exercises (of those 
identified as part of the ``specified activity'' in this final rule) 
conducted in the SOCAL Range Complex.
(ii) Total annual expended/detonated rounds (missiles, bombs, etc.) for 
each explosive type.
    (g) Sonar Exercise Notification--The Navy shall submit to the NMFS 
Office of Protected Resources (specific contact information to be 
provided in LOA) either an electronic (preferably) or verbal report 
within fifteen calendar days after the completion of any MTE 
(Sustainment, IAC2, SHAREM, COMPTUEX, or JTFEX) indicating:
    (1) Location of the exercise
    (2) Beginning and end dates of the exercise
    (3) Type of exercise (e.g., SHAREM, JTFEX, etc.)
    (h) SOCAL Range Complex 5-yr Comprehensive Report--The Navy shall 
submit to NMFS a draft report that analyzes and summarizes all of the 
multi-year marine mammal information gathered during ASW and explosive 
exercises for which annual reports are required (Annual SOCAL Range 
Complex Exercise Reports and SOCAL Range Complex Monitoring Plan 
Reports). This report will be submitted at the end of the fourth year of 
the rule (November 2012), covering activities that have occurred through 
June 1, 2012
    (i) Comprehensive National ASW Report--By June, 2014, the Navy shall 
submit a draft National Report that analyzes, compares, and summarizes 
the active sonar data gathered (through January 1, 2014) from the 
watchstanders and pursuant to the implementation of the Monitoring Plans 
for the SOCAL Range Complex, the Atlantic Fleet Active Sonar Training, 
the HRC, the Marianas Range Complex, the Northwest Training Range, the 
Gulf of Alaska, and the East Coast Undersea Warfare Training Range.
    (j) The Navy shall respond to NMFS comments and requests for 
additional information or clarification on the SOCAL Range Complex 
Comprehensive Report, the Comprehensive National ASW report, the Annual 
SOCAL Range Complex Exercise Report, or the Annual SOCAL Range Complex 
Monitoring Plan Report (or the multi-Range Complex Annual Monitoring 
Plan Report, if that is how the Navy chooses to submit the information) 
if submitted within 3 months of receipt. These reports will be 
considered final after the Navy has addressed NMFS' comments or provided 
the requested information, or three months after the submittal of the 
draft if NMFS does not comment by then.
    (k) In 2011, the Navy shall convene a Monitoring Workshop in which 
the Monitoring Workshop participants will be asked to review the Navy's 
Monitoring Plans and monitoring results and make individual 
recommendations (to the Navy and NMFS) of ways of improving the 
Monitoring Plans. The recommendations shall be reviewed by the Navy, in 
consultation with NMFS, and modifications to the Monitoring Plan shall 
be made, as appropriate.



Sec.  216.276  Applications for Letters of Authorization.

    To incidentally take marine mammals pursuant to the regulations in 
this subpart, the U.S. citizen (as defined bySec. 216.103) conducting 
the activity identified inSec. 216.270(c) (the U.S. Navy) must apply 
for and obtain either an initial Letter of Authorization in accordance 
withSec. 216.277 or a renewal underSec. 216.278.



Sec.  216.277  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the periods of validity of this 
subpart, but may be renewed or modified sooner subject to the renewal 
conditions inSec. 216.278

[[Page 119]]

and the modification conditions inSec. 216.279.
    (b) Each Letter of Authorization will set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable 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 Letter 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 affected species or stock of marine mammal(s).

[74 FR 3909, Jan. 21, 2009, as amended at 77 FR 4922, Feb. 1, 2012]



Sec.  216.278  Renewal of Letters of Authorization and Adaptive Management.

    (a) A Letter of Authorization issued under Sec.Sec. 216.106 and 
216.277 for the activity identified inSec. 216.270(c) may be renewed 
upon:
    (1) Notification to NMFS that the activity described in the 
application submitted underSec. 216.276 will be undertaken and that 
there will not be a substantial modification to the desired work, 
mitigation, or monitoring undertaken during the upcoming period of 
validity;
    (2) Timely receipt (by the dates indicated in these regulations) of 
the monitoring reports required underSec. 216.275(c) through (j); and
    (3) A determination by NMFS that the mitigation, monitoring and 
reporting measures required underSec. 216.274 and the Letter of 
Authorization issued under Sec.Sec. 216.106 and 216.277, were 
undertaken and will be undertaken during the upcoming period of validity 
of a renewed Letter of Authorization.
    (b) If a request for a renewal of a Letter of Authorization issued 
under Sec.Sec. 216.106 and 216.278 indicates that a substantial 
modification, as determined by NMFS, to the described work, mitigation 
or monitoring undertaken during the upcoming season will occur, the NMFS 
will provide the public a period of 30 days for review and comment on 
the request. Review and comment on renewals of Letters of Authorization 
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 changes to the mitigation and monitoring requirements 
contained 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 Register.
    (d) NMFS, in response to new information and in consultation with 
the Navy, may modify the mitigation or monitoring measures in subsequent 
LOAs if doing so creates a reasonable likelihood of more effectively 
accomplishing the goals of mitigation 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 decision to modify the mitigation 
or monitoring measures:
    (1) Results from the Navy's monitoring from the previous year 
(either from the SOCAL Range Complex or other locations).
    (2) Findings of the Monitoring Workshop that the Navy will convene 
in 2011 (Sec.  216.275(l)).
    (3) Compiled results of Navy funded research and development (R&D) 
studies (presented pursuant to the ICMP (Sec.  216.275(d)).
    (4) Results from specific stranding investigations (either from the 
SOCAL Range Complex or other locations, and involving coincident MFAS/
HFAS or explosives training or not involving coincident use).
    (5) Results from the Long Term Prospective Study described in the 
preamble to these regulations.
    (6) Results from general marine mammal and sound research (funded by 
the Navy (described below) or otherwise).

[74 FR 3909, Jan. 21, 2009, as amended at 77 FR 4922, Feb. 1, 2012]



Sec.  216.279  Modifications to Letters of Authorization.

    (a) Except as provided in paragraph (b) of this section, no 
substantive modification (including withdrawal or

[[Page 120]]

suspension) to the Letter of Authorization by NMFS, issued pursuant to 
Sec.Sec. 216.106 and 216.277 and subject to the provisions of this 
subpart shall be made until after notification and an opportunity for 
public comment has been provided. For purposes of this paragraph, a 
renewal of a Letter of Authorization underSec. 216.278, without 
modification (except for the period of validity), is not considered a 
substantive modification.
    (b) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species or 
stocks of marine mammals specified inSec. 216.272(c), a Letter of 
Authorization issued pursuant to Sec.Sec. 216.106 and 216.277 may be 
substantively modified without prior notification and an opportunity for 
public comment. Notification will be published in the Federal Register 
within 30 days subsequent to the action.



PART 217_REGULATIONS GOVERNING THE TAKE OF MARINE MAMMALS INCIDENTAL
TO SPECIFIED ACTIVITIES--Table of Contents



Subpart A [Reserved]

  Subpart B_Taking of Marine Mammals Incidental to Coastal Commercial 
    Fireworks Displays at Monterey Bay National Marine Sanctuary, CA

Sec.
217.11 Specified activity and specified geographical region.
217.12 Effective dates.
217.13 Permissible methods of taking.
217.14 Prohibitions.
217.15 Mitigation.
217.16 Requirements for monitoring and reporting.
217.17 Letters of Authorization.
217.18 Renewals and Modifications of Letters of Authorization.

Subparts C-G [Reserved]

   Subpart H_Taking of Marine Mammals Incidental to Space Vehicle and 
            Missile Launches at Kodiak Launch Complex, Alaska

217.70 Specified activity and specified geographical region.
217.71 Effective dates.
217.72 Permissible methods of taking.
217.73 Prohibitions.
217.74 Mitigation.
217.75 Requirements for monitoring and reporting.
217.76 Letter of Authorization.
217.77 Renewal of a Letter of Authorization and adaptive management.
217.78 Modifications to a Letter of Authorization.

    Subpart I_Taking of Marine Mammals Incidental to Naval Explosive 
              Ordnance Disposal School Training Operations

217.80 Specified activity and specified geographical region.
217.81 Effective dates.
217.82 Permissible methods of taking.
217.83 Prohibitions.
217.84 Mitigation.
217.85 Requirements for monitoring and reporting.
217.86 Applications for Letters of Authorization.
217.87 Letters of Authorization.
217.88 Renewal and review of Letters of Authorization and adaptive 
          management.
217.89 Modifications of Letters of Authorization.

Subparts J-O [Reserved]

Subpart P_Taking Marine Mammals Incidental to Construction and Operation 
     of a Liquefied Natural Gas Deepwater Port in the Gulf of Mexico

217.151 Specified activity and specified geographical region.
217.152 Effective dates.
217.153 Permissible methods of taking.
217.154 Prohibitions.
217.155 Mitigation.
217.156 Requirements for monitoring and reporting.
217.157 Letters of Authorization.
217.158 Renewals and Modifications of Letters of Authorization.

Subpart Q [Reserved]

     Subpart R_Taking of Marine Mammals Incidental to Operation and 
     Maintenance of the Neptune Liquefied Natural Gas Facility Off 
                              Massachusetts

217.170 Specified activity and specified geographical region.
217.171 Effective dates.
217.172 Permissible methods of taking.
217.173 Prohibitions.
217.174 Mitigation.
217.175 Requirements for monitoring and reporting.
217.176 Applications for Letters of Authorization.
217.177 Letters of Authorization.

[[Page 121]]

217.178 Renewal of Letters of Authorization and adaptive management.
217.179 Modifications of Letters of Authorization

Subparts S-T [Reserved]

 Subpart U_Taking Of Marine Mammals Incidental To The Port of Anchorage 
                  Marine 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 reporting.
217.206 Applications for Letters of Authorization.
217.207 Letters of Authorization.
217.208 Renewal of Letters of Authorization.
217.209 Modifications of Letters of Authorization.

    Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.

    Source: 74 FR 35143, July 20, 2009, unless otherwise noted.

Subpart A [Reserved]



  Subpart B_Taking of Marine Mammals Incidental to Coastal Commercial 
    Fireworks Displays at Monterey Bay National Marine Sanctuary, CA

    Source: 77 FR 31544, May 29, 2012, unless otherwise noted.

    Effective Date Note: 77 FR 31544, May 29, 2012, subpart B was added, 
effective June 28, 2012 through June 28, 2017.



Sec.  217.11  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the Monterey Bay 
National Marine Sanctuary (MBNMS) and those persons it authorizes to 
display fireworks within the MBNMS for the taking of marine mammals that 
occurs in the area described in paragraph (b) of this section and that 
occurs incidental to authorization of commercial fireworks displays.
    (b) The taking of marine mammals by MBNMS may be authorized in a 
Letter of Authorization (LOA) only if it occurs in waters of the MBNMS.



Sec.  217.12  Effective dates.

    Regulations in this subpart are effective from June 28, 2012, 
through June 28, 2017.



Sec.  217.13  Permissible methods of taking.

    (a) Under LOAs issued pursuant to Sec.Sec. 216.106 and 217.17 of 
this chapter, the Holder of the LOA (hereinafter ``MBNMS'') may 
incidentally, but not intentionally, take marine mammals within the area 
described inSec. 217.11(b) of this chapter, provided the activity is 
in compliance with all terms, conditions, and requirements of the 
regulations in this subpart and the appropriate LOA.
    (b) The incidental take of marine mammals under the activities 
identified inSec. 217.11(a) of this chapter is limited to the 
following species and is limited to Level B Harassment:
    (1) Harbor seal (Phoca vitulina)--1,150 (an average of 230 annually)
    (2) California sea lion (Zalophus californianus)--21,095 (an average 
of 4,219 annually)



Sec.  217.14  Prohibitions.

    Notwithstanding takings contemplated inSec. 217.11 of this chapter 
and authorized by a LOA issued under Sec.Sec. 216.106 and 217.17 of 
this chapter, no person in connection with the activities described in 
Sec.  217.11 of this chapter may:
    (a) Take any marine mammal not specified inSec. 217.13(b) of this 
chapter;
    (b) Take any marine mammal specified inSec. 217.13(b) of this 
chapter other than by incidental, unintentional Level B harassment;
    (c) Take a marine mammal specified inSec. 217.13(b) of this 
chapter if such taking results in more than a negligible impact on the 
species or stocks of such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or a LOA issued under Sec.Sec. 216.106 
and 217.17 of this chapter.

[[Page 122]]



Sec.  217.15  Mitigation.

    (a) The activity identified inSec. 217.11(a) of this chapter must 
be conducted in a manner that minimizes, to the greatest extent 
practicable, adverse impacts on marine mammals and their habitats. When 
conducting the activities identified inSec. 217.11(a) of this chapter, 
the mitigation measures contained in the LOA issued under Sec.Sec. 
216.106 and 217.17 of this chapter must be implemented. These mitigation 
measures include but are not limited to:
    (1) Limiting the location of the authorized fireworks displays to 
the four specifically designated areas at Half Moon Bay, the Santa Cruz/
Soquel area, the northeastern Monterey Breakwater, and Cambria (Santa 
Rosa Creek);
    (2) Limiting the frequency of authorized fireworks displays to no 
more than twenty total displays per year and no more than one fireworks 
display every 2 months in each of the four prescribed areas;
    (3) Limiting the duration of authorized individual fireworks 
displays to no longer than 30 minutes each, with the exception of two 
longer shows not to exceed 1 hour;
    (4) Prohibiting fireworks displays at MBNMS between March 1 and June 
30 of any year; and
    (5) Continuing to implement authorization requirements and general 
and special restrictions for each event, as determined by MBNMS. 
Standard requirements include, but are not limited to, the use of a 
ramp-up period, wherein salutes are not allowed in the first 5 minutes 
of the display; the removal of plastic and aluminum labels and 
wrappings; and post-show reporting and cleanup. MBNMS shall continue to 
assess displays and restrict the number of aerial salute effects on a 
case-by-case basis, and shall implement general and special restrictions 
unique to each fireworks event as necessary.
    (b) The mitigation measures that the individuals conducting the 
fireworks are responsible for will be included as a requirement in 
fireworks display authorizations issued by MBNMS to the individual 
entities.



Sec.  217.16  Requirements for monitoring and reporting.

    (a) MBNMS is responsible for ensuring that all monitoring required 
under a LOA is conducted appropriately, including, but not limited to:
    (1) A census of all pinnipeds in the impact area on the day prior to 
all displays, with observations to occur for no less than 30 minutes, 
and
    (2) Reporting to NMFS of all marine mammal injury, serious injury, 
or mortality observed in the vicinity of the display area. Monitoring 
for injury, serious injury, or mortality shall occur no later than the 
morning after each fireworks display, and shall occur for no less than 
30 minutes.
    (b) Unless specified otherwise in the LOA, MBNMS must submit a draft 
annual monitoring report to the Director, Office of Protected Resources, 
NMFS, no later than 60 days after the conclusion of each calendar year. 
This report must contain:
    (1) An estimate of the number of marine mammals disturbed by the 
authorized activities,
    (2) Results of the monitoring required inSec. 217.16(a) of this 
chapter, and any additional information required by the LOA. A final 
annual monitoring report must be submitted to NMFS within 30 days after 
receiving comments from NMFS on the draft report. If no comments are 
received from NMFS, the draft report will be considered to be the final 
annual monitoring report.
    (c) A draft comprehensive monitoring report on all marine mammal 
monitoring conducted during the period of these regulations must be 
submitted to the Director, Office of Protected Resources, NMFS at least 
120 days prior to expiration of these regulations. A final comprehensive 
monitoring report must be submitted to the NMFS within 30 days after 
receiving comments from NMFS on the draft report. If no comments are 
received from NMFS, the draft report will be considered to be the final 
comprehensive monitoring report.



Sec.  217.17  Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, MBNMS must apply for and obtain a LOA.

[[Page 123]]

    (b) A LOA, unless suspended or revoked, 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 expiration date of these 
regulations, MBNMS must 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, MBNMS must apply 
for and obtain a modification of the LOA as described inSec. 217.18 of 
this chapter.
    (e) The LOA shall set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact (i.e., 
mitigation) on the species, its habitat, and on the availability of the 
species for subsistence 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 findings made for the total 
taking allowable under these regulations.
    (g) Notice of issuance or denial of a LOA shall be published in the 
Federal Register within 30 days of a determination.



Sec.  217.18  Renewals and modifications of Letters of Authorization.

    (a) A LOA issued under Sec.Sec. 216.106 and 217.17 of this chapter 
for the activity identified inSec. 217.11(a) of this chapter shall be 
renewed or modified upon request by the applicant, provided that:
    (1) The proposed specified activity and mitigation, monitoring, and 
reporting measures, as well as the anticipated impacts, are the same as 
those described and analyzed for these regulations (excluding changes 
made pursuant to the adaptive management provision inSec. 217.18(c)(1) 
of this chapter), and
    (2) NMFS determines that the mitigation, monitoring, and reporting 
measures required by the previous LOA under these regulations were 
implemented.
    (b) For LOA modification or renewal 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 inSec. 217.18(c)(1) of this chapter) 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 illustrating the 
change, and solicit public comment before issuing the LOA .
    (c) A LOA issued under Sec.Sec. 217.106 and 217.17 of this chapter 
for the activity identified inSec. 217.11(a) of this chapter may be 
modified by NMFS under the following circumstances:
    (1) Adaptive Management--NMFS may modify (including augment) the 
existing mitigation, monitoring, or reporting measures (after consulting 
with MBNMS regarding the practicability 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 regulations.
    (i) Possible sources of data that could contribute to the decision 
to modify the mitigation, monitoring, or reporting measures in an LOA:
    (A) Results from MBNMS's monitoring from the previous year(s).
    (B) Results from other marine mammal and/or sound research or 
studies.
    (C) Any information that reveals marine mammals may have been taken 
in a manner, extent or number not authorized by these regulations or 
subsequent LOAs.
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, NMFS will 
publish a notice 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 inSec. 217.13(b) of this chapter, an LOA may 
be modified without prior notice or opportunity for public comment. 
Notification would be published in the Federal Register within 30 days 
of the action.

[[Page 124]]

Subparts C-G [Reserved]



   Subpart H_Taking of Marine Mammals Incidental to Space Vehicle and 
            Missile Launches at Kodiak Launch Complex, Alaska

    Source: 76 FR 16318, Mar. 23, 2011, unless otherwise noted.

    Effective Date Note: At 76 FR 16318, Mar. 23, 2011, subpart H was 
added, effective Mar. 22, 2011 to Mar. 22, 2016.



Sec.  217.70  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the incidental taking 
of marine mammals specified in paragraph (b) of this section by U.S. 
citizens engaged in space vehicle and missile launch activities at the 
Kodiak Launch Complex on Kodiak Island, Alaska.
    (b) The incidental take of marine mammals under the activity 
identified in paragraph (a) of this section is limited to 32 juvenile 
and adult Steller sea lions (Eumetopius jubatus), 1,125 Pacific harbor 
seals (Phoca vitulina) of all ages, and 17 harbor seal pups.



Sec.  217.71  Effective dates.

    Regulations in this subpart are effective from March 22, 2011 
through March 22, 2016.



Sec.  217.72  Permissible methods of taking.

    (a) Under a Letter of Authorization issued pursuant toSec. 216.106 
of this chapter, the Alaska Aerospace Corporation and its contractors 
may incidentally, but not intentionally, take Steller sea lions and 
Pacific harbor seals by Level B harassment and harbor seal pups by Level 
A harassment or mortality in the course of conducting space vehicle and 
missile launch activities within the area described inSec. 217.70(a), 
provided all terms, conditions, and requirements of these regulations 
and such Letter of Authorization are complied with.
    (b) The activities identified inSec. 217.70(a) must be conducted 
in a manner that minimizes, to the greatest extent practicable, adverse 
impacts on marine mammals and their habitat.



Sec.  217.73  Prohibitions.

    The following activities are prohibited:
    (a) The taking of a marine mammal that is other than unintentional.
    (b) The violation of, or failure to comply with, the terms, 
conditions, and requirements of this subpart or a Letter of 
Authorization issued underSec. 216.106 of this chapter.
    (c) The incidental taking of any marine mammal of a species not 
specified, or in a manner not authorized, in this subpart.



Sec.  217.74  Mitigation.

    (a) The activity identified inSec. 217.70(a) must be conducted in 
a manner that minimizes, to the greatest extent practicable, adverse 
impacts on marine mammals and their habitats. When conducting operations 
identified inSec. 217.70(a), the mitigation measures contained in the 
Letter of Authorization issued under Sec.Sec. 216.106 of this chapter 
and 217.76 must be implemented. These mitigation measures include (but 
are not limited to):
    (1) Security overflights by helicopter associated with a launch will 
not approach occupied pinniped haulouts on Ugak Island by closer than 
0.25 mile (0.4 km), and will maintain a vertical distance of 1000 ft 
(305 m) from the haulouts when within 0.5 miles (0.8 km), unless 
indications of human presence or activity warrant closer inspection of 
the area to assure that national security interests are protected in 
accordance with law;
    (2) For missile and rocket launches, holders of Letters of 
Authorization must avoid launches during the harbor seal pupping season 
of May 15 through June 30, except when launches are necessary for the 
following purposes: human safety, national security, space vehicle 
launch trajectory necessary to meet mission objectives, or other 
purposes related to missile or rocket launches.
    (3) All flights by fixed-wing aircraft associated with the marine 
mammal abundance quarterly surveys must maintain a minimum altitude of 
500 ft (152 m) and remain 0.25 miles from recognized seal haulouts.

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    (4) If launch monitoring or quarterly aerial surveys indicate that 
the distribution, size, or productivity of the potentially affected 
pinniped populations has been affected due to the specified activity, 
the launch procedures and the monitoring methods will be reviewed, in 
cooperation with NMFS, and, if necessary, appropriate changes may be 
made through modifications to a given LOA, prior to conducting the next 
launch of the same vehicle under that LOA.
    (5) Additional mitigation measures as contained in a Letter of 
Authorization.
    (b) [Reserved]



Sec.  217.75  Requirements for monitoring and reporting.

    (a) Holders of Letters of Authorization issued pursuant to 
Sec.Sec. 216.106 of this chapter and 217.76 for activities described 
inSec. 217.70(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 Authorization, the Holder of the Letter of Authorization must notify 
the Administrator, Alaska Region, NMFS, by letter, e-mail or telephone, 
prior to each launch. If the authorized activity identified inSec. 
217.70(a) is thought to have resulted in the take of marine mammals not 
identified inSec. 217.70(b), then the Holder of the Letter of 
Authorization must notify the Director, Office of Protected Resources, 
NMFS, or designee, by telephone (301-713-2289), within 48 hours of the 
discovery of the take.
    (b) Holders of Letters of Authorization must designate qualified 
protected species observers, approved in advance by NMFS, as specified 
in the Letter of Authorization, to:
    (1) Deploy for AAC a remote camera system designed to detect 
pinniped responses to rocket launches for at least the first five 
launches conducted under these regulations. AAC will conduct visual 
monitoring for at least 2 hours before, during, and 2 hours after 
launch;
    (2) Ensure a remote camera system will be in place and operating in 
a location which allows visual monitoring of a harbor seal rookery, if a 
launch during the harbor seal pupping season cannot be avoided;
    (3) Relocate the camera system to or re-aim the camera system on 
another haulout to be chosen in cooperation with NMFS after the first 
five launches with harbor seals present;
    (4) Review and log pinniped presence, behavior, and re-occupation 
time data from the visual footage obtained from the remote camera system 
and report results to NMFS within 90 days post launch;
    (5) Obtain, whenever a new class of rocket is flown from the Kodiak 
Launch Complex, a real-time sound pressure and sound exposure record for 
documentation purposes and to correlate with the behavioral response 
record. Two monitors shall be used: one shall be placed at the 
established recording location known as Narrow Cape, and the other as 
close as practical to the remote video system;
    (6) Conduct quarterly aerial surveys, ideally during midday 
coinciding with low tide, to obtain data on pinniped presence, 
abundance, and behavior within the action area to determine long-term 
trends in pinniped haulout use. Results of these quarterly surveys will 
be reported once as part of the year-end summary report that will 
accompany the request for a new LOA.
    (c) Holders of Letters of Authorization must conduct additional 
monitoring as required under an annual Letter of Authorization.
    (d) Holders of Letters of Authorization must submit a report to the 
Alaska Region Administrator, NMFS, within 90 days after each launch. 
This report must contain the following information:
    (1) Date(s) and time(s) of the launch;
    (2) Location of camera system and acoustic recorders (if used);
    (3) Design of the monitoring program and a description of how data 
is stored and analyzed; and
    (4) Results of the monitoring program, including, but not 
necessarily limited to:
    (i) Numbers of pinnipeds, by species and age class (if possible), 
present on the haulout prior to commencement of the launch;
    (ii) Numbers of pinnipeds, by species and age class (if possible), 
that may

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have been harassed, including the number that entered the water as a 
result of launch noise;
    (iii) The length of time pinnipeds remained off the haulout during 
post-launch monitoring;
    (iv) Number of harbor seal pups that may have been injured or killed 
as a result of the launch; and
    (v) Other behavioral modifications by pinnipeds that were likely the 
result of launch noise.
    (5) Results of sound pressure and sound exposure level monitoring 
will be reported in flat weighted, A-weighted, and peak measurements.
    (e) An annual report must be submitted at the time of request for a 
renewal of the Letter of Authorization; it will include results of the 
aerial quarterly trend counts of pinnipeds at Ugak Island.
    (f) A final report must be submitted at least 90 days prior to 
expiration of these regulations if new regulations are sought or 180 
days after expiration of regulations. This report will:
    (1) Summarize the activities undertaken and the results reported in 
all previous reports;
    (2) Assess the impacts of launch activities on pinnipeds within the 
action area, including potential for pup injury and mortality; and
    (3) Assess the cumulative impacts on pinnipeds and other marine 
mammals from multiple rocket launches.



Sec.  217.76  Letter of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time specified in the Letter of Authorization, but 
a Letter of Authorization may not be valid beyond the effective period 
of the regulations.
    (b) A Letter of Authorization with a period of validity less than 
the effective period of the regulations in this subpart may be renewed 
subject to renewal conditions inSec. 217.76.
    (c) A Letter of Authorization will set forth:
    (1) The number of marine mammals, by species and age class, 
authorized to be taken;
    (2) Permissible methods of incidental taking;
    (3) Specified geographical region;
    (4) Means of effecting the least practicable adverse impact on the 
species of marine mammals authorized for taking and its habitat; and
    (5) Requirements for monitoring and reporting incidental takes.
    (d) Issuance of a Letter of Authorization will be based on a 
determination that the total taking by the activity as a whole will have 
no more than a negligible impact on the affected species or stocks of 
marine mammal(s).
    (e) Notice of issuance or denial of a Letter of Authorization will 
be published in the Federal Register within 30 days of a determination.



Sec.  217.77  Renewal of a Letter of Authorization and adaptive management.

    (a) A Letter of Authorization issued underSec. 216.106 of this 
chapter andSec. 217.76 for the activity identified inSec. 217.70(a) 
will be renewed annually upon:
    (1) Notification to NMFS that the activity described in the 
application for a Letter of Authorization submitted underSec. 217.76 
will be undertaken and that there will not be a substantial modification 
to the described activity, mitigation, or monitoring undertaken during 
the upcoming season;
    (2) Timely receipt of and acceptance by NMFS of the monitoring 
reports required underSec. 217.75;
    (3) A determination by NMFS that the mitigation, monitoring, and 
reporting measures required under Sec.Sec. 217.74 and 217.75 and the 
Letter of Authorization were undertaken and will be undertaken during 
the upcoming period of validity of a renewed Letter of Authorization; 
and
    (4) A determination that the number of marine mammals taken by the 
activity will have no more than a negligible impact on the affected 
species or stocks of marine mammal(s), and that the level of taking will 
be consistent with the findings made for the total taking allowable 
under these regulations.
    (b) If a request for a renewal of a Letter of Authorization issued 
under Sec.Sec. 216.106 and 216.128 of this chapter indicates that a 
substantial modification to the described work, mitigation, or 
monitoring undertaken during the upcoming season will occur, NMFS will

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provide the public a period of 30 days to review and comment on the 
request. Review and comment on renewals of Letters of Authorization 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 changes to the mitigation and monitoring requirements 
contained 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 Register within 30 days 
of a determination.
    (d) NMFS, in response to new information and in consultation with 
the AAC, may modify the mitigation or monitoring measures in subsequent 
LOAs if doing so creates a reasonable likelihood of more effectively 
accomplishing the goals of mitigation or monitoring set forth in the 
preamble of these regulations. Below are some of the possible sources of 
new data that could contribute to the decision to modify the mitigation 
or monitoring measures:
    (1) Results from the AAC's monitoring from the previous year.
    (2) Results from general marine mammal and sound research.



Sec.  217.78  Modifications to a Letter of Authorization.

    (a) Except as provided in paragraph (b) of this section, no 
substantive modification (including withdrawal or suspension) to a 
Letter of Authorization issued pursuant to the provisions of this 
subpart shall be made by NMFS until after notification and an 
opportunity for public comment has been provided. A renewal of a Letter 
of Authorization underSec. 217.77 without modification is not 
considered a substantive modification.
    (b) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species or 
stocks of marine mammals specified inSec. 217.70(b), a Letter of 
Authorization may be substantively modified without prior notification 
and an opportunity for public comment. Notification will be published in 
the Federal Register within 30 days subsequent to the action.



    Subpart I_Taking of Marine Mammals Incidental to Naval Explosive 
          Ordnance Disposal School (NEODS) Training Operations

    Source: 77 FR 16736, Mar. 22, 2012, unless otherwise noted.



Sec.  217.80  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the incidental taking 
of those marine mammals specified in paragraph (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 activities described in 
paragraphs (a)(1) through (7) of this section and the area set forth in 
paragraph (b) of this section.
    (1) NEODS missions involving underwater detonations of small, live 
explosive 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 involving 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 separation time of 20 minutes 
between each detonation,
    (6) Mine shapes and debris shall be recovered and removed from the 
Gulf of Mexico waters when training is completed, and
    (7) Each training team has two days to complete their entire 
evolution (i.e., detonation of five charges). If operations 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, including three sites in the Eglin 
Gulf

[[Page 128]]

Test and Training Range at property off Santa Rosa Island, Florida, in 
the northern Gulf of Mexico, under the activity 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[deg] North, -86.808838[deg] West
    (ii) 29.539011[deg] North, -84.995536[deg] West
    (iii) 28.03949[deg] North, -85.000147[deg] West
    (iv) 28.027598[deg] North, -85.199395[deg] West
    (v) 28.505304[deg] North, -86.799043[deg] West
    (2) The latitude/longitude of corners of W-151A in the Eglin Gulf 
Test and Training Range are:
    (i) 30.24006[deg] North, -86.808838[deg] West
    (ii) 30.07499[deg] North, -85.999327[deg] West
    (iii) 29.179968[deg] North, -85.996341[deg] West
    (iv) 29.384439[deg] North, -86.802579[deg] West



Sec.  217.81  Effective dates.

    Regulations in this subpart are effective from April 23, 2012, 
through April 24, 2017.



Sec.  217.82  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant toSec. 216.106 
of this chapter andSec. 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 intentionally, 
take marine mammals by Level B harassment, within the area described in 
Sec.  217.80, provided the activity 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 inSec. 217.80(b) and is limited to Level B harassment.
    (c) The incidental taking of an average 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 obtains additional authorization for the take of marine mammals if:
    (1) A marine mammal is injured, seriously injured, or killed during 
training operations;
    (2) The injury, serious injury, or death could be associated with 
the activities; and
    (3) After coordination and concurrence with NMFS, the U.S. Air Force 
determines that supplementary measures 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.



Sec.  217.83  Prohibitions.

    Notwithstanding takings contemplated inSec. 217.80 and authorized 
by a Letter of Authorization issued under Sec.Sec. 216.106 of this 
chapter and 217.87, no person in connection with the activities 
described inSec. 217.80 may:
    (a) Take any marine mammal not specified inSec. 217.80(b);
    (b) Take any marine mammal specified inSec. 217.80(b) other than 
by incidental take as specified inSec. 217.82(a) through (d);
    (c) Take a marine mammal specified inSec. 217.80(b) if such taking 
results in more than a negligible impact on the species or stocks of 
such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or a Letter of Authorization issued under 
Sec.Sec. 216.106 of this chapter and 217.87.



Sec.  217.84  Mitigation.

    (a) The activity identified inSec. 217.80(a) must be conducted in 
a manner that minimizes, to the greatest extent practicable, adverse 
impacts on marine mammals and their habitats. When conducting operations 
identified inSec. 217.80(a), the mitigation measures contained in the 
Letter of Authorization issued under Sec.Sec. 216.106 of this chapter 
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 
conducted 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 postponed if:

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    (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, jellyfish, and/or large Sargassum 
rafts are observed within the mitigation-monitoring zone. The delay 
would continue until the fish, jellyfish, and/or Sargassum rafts that 
cause the postponement are confirmed to be outside the mitigation-
monitoring zone.
    (3) Time delays longer than 10 minutes 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-monitoring zone will be established 
around each underwater detonation location based on charge weight and 
length of time-delay used. When conducting surveys 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 meters, two boats are required. For 
a radius 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 degrees (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 turtles, diving 
birds, large concentrations of fish or jellyfish, and large Sargassum 
mats. The presence of diving birds, fish, jellyfish, and Sargassum may 
indicate 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 expected to ensure adequate 
coverage of the buffer zone. While weather conditions and sea state may 
require slower speeds in some instances, 18.5 kilometers per hour is 
considered a prudent, safe, and executable speed that will allow 
adequate surveillance. For a 914.4 meter survey zone, a boat traveling 
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 
period. By using two boats, approximately 6.4 circles would be completed 
in total. Similarly, for a 1,280.2 meter radius, each boat would circle 
the detonation point approximately 2.3 times within 30 minutes, and use 
of three boats would result in 6.9 total circles.
    (9) If available, a U.S. Navy helicopter 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 
helicopter search pattern is dictated by standard U.S. Navy protocols 
and accounts for multiple variables, such as size and shape of the 
search area, size of the object, and environmental conditions, 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, although a variety of factors can cause a delay of longer 
than 20 minutes between 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 monitoring 
as well as pre-mission monitoring for the next detonation. If the

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time between detonations is delayed beyond 20 minutes, post-mission 
monitoring will be conducted for 30 minutes. At the conclusion of the 
final detonation, post-monitoring will be conducted for 30 minutes.
    (11) Other personnel besides designated observers shall also 
maintain situational awareness of the presence of marine mammals within 
the mitigation-monitoring zone to the extent practicable given dive 
safety considerations.
    (12) Divers placing the charges on mines will observe the immediate 
underwater 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-
monitoring zone or moving towards it, underwater detonation events will 
be postponed or suspended until the marine mammal that caused the 
postponement/suspension of training operations 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 subsequently cannot be 
reacquired, the mission will be postponed or suspended until the last 
verified location is outside 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 coordinate with other members 
of marine mammal stranding networks, as appropriate, and report these 
events to NMFS or U.S. Fish and Wildlife Service. The report will 
contain date and time of sighting, location, species description, and 
indications of the animal's status.
    (16) Training operations shall be suspended if the conditions of 
Sec.  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 
Authorization.
    (b) [Reserved]



Sec.  217.85  Requirements for monitoring and reporting.

    (a) Holders of Letters of Authorization pursuant toSec. 216.106 of 
this chapter andSec. 217.87 for activities described inSec. 
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 
Authorization, the Holder of the Letter of Authorization must notify the 
Administrator, Southeast Region, NMFS, by letter or telephone, prior to 
activities possibly involving the taking of marine mammals. If the 
authorized activity identified inSec. 217.80(a) is thought to have 
resulted in the mortality or injury of any marine mammals or in any take 
of marine mammals not identified inSec. 217.80(b), then the Holder of 
the Letter of Authorization must, in addition to complying with the 
requirements ofSec. 217.82(a)-(d), notify the Director, Office of 
Protected Resources, NMFS, or designee, by telephone (301-427-8400), 
within 24 hours of the discovery of the injured or dead animal.
    (b) Holders of Letters of Authorization must designate trained, 
qualified, on-site individuals approved in advance by NMFS, as specified 
in the Letter of Authorization, to perform the following monitoring 
requirements:
    (1) For NEODS testing, areas to be used in missions shall be 
visually monitored 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-mission monitoring shall also be conducted for 30 
minutes after the final detonation (concentrated on the area down 
current of the test site). If marine mammals are inside the mitigation-
monitoring zone, detonations shall be postponed until they have left the 
area. The observer on the vessel

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must be equipped with the proper optical equipment and lines of 
communication in order to recommend the decision to move forward with 
the mission.
    (2) Monitoring shall occur pre-mission (for 30 minutes), throughout 
the mission, and post-mission (for 30 minutes). 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 species indicators (e.g., Sargassum rafts) are encountered.
    (5) After conducting post-mission monitoring, NEODS training 
operations data as required by Eglin Air Force Base's Natural Resources 
Section, 96 CEG/CEVSN shall be reported. Post-mission monitoring shall 
commence immediately following each detonation 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 
observations shall be submitted to: NMFS, Southeast Regional Office, 
Protected Resources Division, 9721 Executive Center Drive North, St. 
Petersburg, Florida 33702; and NMFS, Office of Protected Resources, 1315 
East West Highway, Silver Spring, Maryland 20910.
    (c) Holders of Letters of Authorization must conduct additional 
monitoring as required under an annual Letter of Authorization.
    (d) Holders of Letters of Authorization must submit an annual report 
summarizing the specified activity as well as monitoring and mitigation 
data to the Southeast Regional Administrator and Director of the Office 
of Protected Resources, NMFS, within 90 days after the conclusion of the 
NEODS training operations. This report must contain the following 
information:
    (1) Date(s), time(s), and location(s) of explosive activities,
    (2) Design of the monitoring program,
    (3) Results of the monitoring program including, but not necessarily 
limited to:
    (i) Species counts,
    (ii) Numbers of observed disturbances,
    (iii) Descriptions of the disturbance behaviors before, during, and 
after explosive activities,
    (iv) Bearing and distances,
    (v) Observations of unusual behaviors, numbers, or distributions of 
marine 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 personnel. In addition, 
observations of tag-bearing marine mammals, sea turtles, and fish 
carcasses as well as any rare or unusual species of marine mammals and 
fish shall be reported to NMFS and U.S. Fish and Wildlife Service.
    (e) An annual report (referred to inSec. 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 regulations. This comprehensive 
technical report shall provide full documentation of methods, results, 
and interpretation of all monitoring during the first four and a half 
years of the Letter of Authorization. A revised final comprehensive 
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 summarize 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 Authorization, such as an injury, serious injury, or 
mortality, Eglin Air Force Base will immediately cease the specified 
activities and immediately report the incident to the Chief of the 
Permits and Conservation Division, Office of

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Protected Resources, NMFS at 301-427-8401 and/or by email to 
[email protected] and [email protected], and the NMFS 
Southeast Regional Marine Mammal Stranding Network at 877-433-8299 
([email protected] and [email protected]) (Florida Marine 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 mammal observations in the 24 hours 
preceding the incident;
    (vii) Species identification or description of the animal(s) 
involved;
    (viii) Fate of the animal(s); and
    (ix) Photographs or video footage of the animal(s) (if equipment is 
available).
    Activities shall not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS shall work with Eglin Air 
Force Base to determine what is necessary to minimize the likelihood of 
further prohibited take and ensure MMPA compliance. Eglin Air Force Base 
may not resume 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 marine mammal, and the lead observer determines that the cause of 
injury or death is unknown and the death is relatively recent (i.e., 
less than a moderate state of decomposition as described 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 
[email protected] and [email protected] and the NMFS 
Southeast Region Marine Mammal Stranding Network (877-433-8299) and/or 
by email to the Southeast Regional Stranding Coordinator 
([email protected]) and Southeast Regional Stranding Program 
Administrator ([email protected]). The report must include the same 
information identified in the paragraph above. Activities may continue 
while NMFS reviews the circumstances of the incident, NMFS will work 
with Eglin Air Force Base to determine whether modifications in the 
activities are appropriate.
    (3) In the event that Eglin Air Force Base discovers an injured or 
dead marine mammal, and the lead observer determines that the injury or 
death is not associated with or related to the activities authorized in 
the Letter of Authorization (e.g., previously wounded animal, carcass 
with moderate to advanced decomposition, or scavenger damage), Eglin Air 
Force Base will 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 [email protected] and 
[email protected], and the NMFS Southeast Regional Marine Mammal 
Stranding Network (877-433-8299), and/or by email to the Southeast 
Regional Stranding Coordinator ([email protected]) and Southeast 
Regional Stranding Program Administrator ([email protected]), 
within 24 hours of discovery. Eglin Air Force Base will provide 
photographs or video footage (if available) or other documentation of 
the stranded animals sighting to NMFS and the Marine Mammal Stranding 
Network.



Sec.  217.86  Applications for Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, the U.S. citizen (as defined bySec. 216.103) conducting 
the activity identified inSec. 217.80(a) must apply for and obtain 
either an initial Letter of Authorization in accordance withSec. 
217.87 or a renewal underSec. 217.88.
    (b) The application must be submitted to NMFS at least 30 days 
before the activity is scheduled to begin.
    (c) Application for a Letter of Authorization and for renewals of 
Letters of Authorization must include the following:

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    (1) Name of the U.S. citizen requesting the authorization;
    (2) A description of the activity, the dates of the activity, and 
the specific location of the activity; and
    (3) Plans to monitor the behavior and effects of the activity on 
marine mammals.
    (d) A copy of the Letter of Authorization must be in the possession 
of the persons conducting activities that may involve incidental takings 
of marine mammals.
    (e) [Reserved]



Sec.  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 period 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 practicable 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 Letter 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 species or stock of marine mammal(s).



Sec.  217.88  Renewal of Letters of Authorization and adaptive management.

    (a) A Letter of Authorization issued underSec. 216.106 of this 
chapter andSec. 217.87 for the activity identified inSec. 217.80(a) 
shall be renewed upon a request by the applicant or determination by 
NMFS and the applicant that modifications are appropriate pursuant to 
the adaptive management component of these regulations, provided that:
    (1) NMFS is notified that the activity described in the application 
submitted underSec. 217.86 shall be undertaken and there shall not be 
a substantial modification to the described work, mitigation or 
monitoring undertaken during the upcoming 12 months;
    (2) NMFS has received, reviewed, and accepted the monitoring reports 
required underSec. 217.85(d) and (e) and the Letter of Authorization 
issued underSec. 217.87;
    (3) NMFS determines that the mitigation, monitoring, and reporting 
measures required under Sec.Sec. 217.84 and 217.85 and the Letter of 
Authorization issued under Sec.Sec. 216.106 and 217.87 of this 
chapter, were undertaken and shall be undertaken during the upcoming 
annual period of validity of a renewed Letter of Authorization; and
    (4) NMFS makes the determination required bySec. 217.87(c).
    (b) If either a request for a renewal of a Letter of Authorization 
issued underSec. 216.106 of this chapter andSec. 217.88, or a 
determination by NMFS and the applicant that modifications are 
appropriate pursuant to the adaptive management component of these 
regulations indicates that a substantial modification, as determined by 
NMFS, to the described work, mitigation or monitoring undertaken during 
the upcoming season shall occur, NMFS shall publish a proposed 
modification to the Letter of Authorization in the Federal Register and 
provide the public a period of 30 days for review and comment. Review 
and comment on renewals or modifications of Letters of Authorization 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 
requirements contained 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 shall be published in the Federal Register.
    (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 effectively accomplishing the 
goals of mitigation and monitoring set forth in the preamble of these 
regulations. Below are some of the possible sources of new

[[Page 134]]

data that could contribute to the decision to modify the mitigation or 
monitoring 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.



Sec.  217.89  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 Authorization by NMFS issued pursuant toSec. 216.106 of this 
chapter andSec. 217.87 of this chapter and subject to the provisions 
of this subpart shall be made until after notification and an 
opportunity for public comment has been provided. For purposes of this 
paragraph, a renewal of a Letter of Authorization underSec. 217.88, 
without modification (except for the period of validity), is not 
considered a substantive modification.
    (b) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species or 
stocks of marine mammals specified inSec. 217.80(b), a Letter of 
Authorization issued pursuant toSec. 216.106 of this chapter andSec. 
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 subsequent to the 
action.

Subparts J-O [Reserved]



Subpart P_Taking Marine Mammals Incidental to Construction and Operation 
     of a Liquefied Natural Gas Deepwater Port in the Gulf of Mexico

    Source: 78 FR 20816, Apr. 8, 2013, unless otherwise noted.

    Effective Date Note: At 78 FR 20816, Apr. 8, 2013, subpart P was 
added, effective June 1, 2013 to May 31, 2018.



Sec.  217.151  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to Port Dolphin Energy 
LLC (Port Dolphin) and those persons it authorizes to conduct activities 
on its behalf for the taking of marine mammals that occurs in the area 
outlined in paragraph (b) of this section and that occur incidental to 
construction and operation of the Port Dolphin Deepwater Port (Port).
    (b) The taking of marine mammals by Port Dolphin may be authorized 
in a Letter of Authorization (LOA) only if it occurs in the vicinity of 
the Port Dolphin Deepwater Port in the eastern Gulf of Mexico or along 
the associated pipeline route.



Sec.  217.152  Effective dates.

    Regulations in this subpart are effective from June 1, 2013, through 
May 31, 2018.



Sec.  217.153  Permissible methods of taking.

    (a) Under LOAs issued pursuant to Sec.Sec. 216.106 and 217.157 of 
this chapter, the Holder of the LOA (hereinafter ``Port Dolphin'') may 
incidentally, but not intentionally, take marine mammals within the area 
described inSec. 217.151(b) of this chapter, provided the activity is 
in compliance with all terms, conditions, and requirements of the 
regulations in this subpart and the appropriate LOA.
    (b) The incidental take of marine mammals under the activities 
identified inSec. 217.151(a) of this chapter is limited to the 
following species and is limited to Level B Harassment:
    (1) Bottlenose dolphin (Tursiops truncatus)--3,388 (860 the first 
year and an average of 632 annually thereafter)
    (2) Atlantic spotted dolphin (Stenella frontalis)--1,274 (290 the 
first year and an average of 246 annually thereafter)



Sec.  217.154  Prohibitions.

    Notwithstanding takings contemplated inSec. 217.151 of this 
chapter and authorized by a LOA issued under Sec.Sec. 216.106 and 
217.157 of this chapter, no

[[Page 135]]

person in connection with the activities described inSec. 217.151 of 
this chapter may:
    (a) Take any marine mammal not specified inSec. 217.153(b) of this 
chapter;
    (b) Take any marine mammal specified inSec. 217.153(b) of this 
chapter other than by incidental, unintentional Level B Harassment;
    (c) Take a marine mammal specified inSec. 217.153(b) of this 
chapter if such taking results in more than a negligible impact on the 
species or stocks of such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or a LOA issued under Sec.Sec. 216.106 
and 217.157 of this chapter.



Sec.  217.155  Mitigation.

    (a) When conducting the activities identified inSec. 217.151(a) of 
this chapter, the mitigation measures contained in any LOA issued under 
Sec.Sec. 216.106 and 217.157 of this chapter must be implemented. 
These mitigation measures include but are not limited to:
    (1) General Conditions:
    (i) Briefings shall be conducted between the Port Dolphin project 
construction supervisors and the crew, protected species observer(s) 
(PSO), and acoustic monitoring team prior to the start of all 
construction activity, and when new personnel join the work, to explain 
responsibilities, communication procedures, protected species monitoring 
protocol, and operational procedures.
    (ii) Port Dolphin shall comply with all applicable equipment sound 
standards and ensure that all construction equipment has sound control 
devices no less effective than those provided on the original equipment. 
Vessel crew and contractors shall minimize the production of underwater 
sound to the extent possible. Equipment and/or procedures used may 
include the use of enclosures and mufflers on equipment, minimizing the 
use of thrusters, and turning off engines and equipment when not in use.
    (iii) All vessels associated with Port Dolphin construction and 
operations shall comply with NMFS Vessel Strike Avoidance Measures and 
Reporting for Mariners and applicable regulations. All vessels 
associated with Port Dolphin construction and operations shall remain 
500 yd (457 m) away from North Atlantic right whales (Eubalaena 
glacialis) and 100 yd (91 m) away from all other marine mammals, except 
in cases where small marine mammals (i.e., delphinids) voluntarily 
approach within 100 yd or unless constrained by human safety concerns or 
navigational constraints.
    (2) Shutdown and Monitoring:
    (i) Shutdown zone: For all stationary activities, shutdown zones 
shall be established. These zones shall include all areas where 
underwater sound pressure levels (SPLs) are anticipated to equal or 
exceed 180 dB re: 1 [micro]Pa rms, as determined by modeled scenarios 
approved by NMFS for each specific activity. The actual size of these 
zones shall be empirically determined and reported by Port Dolphin. For 
all non-stationary activities (e.g., pipeline burial, shuttle 
regasification vessel (SRV) maneuvering), Port Dolphin shall adhere to 
Vessel Strike Avoidance Measures described inSec. 217.155(a)(1)(iii) 
of this chapter, but shall not otherwise be required to establish 
shutdown zones.
    (ii) Disturbance zone: For all construction activities, disturbance 
zones shall be established. For impact pile driving, these zones shall 
include all areas where underwater SPLs are anticipated to equal or 
exceed 160 dB re: 1 [micro]Pa rms. For all other activities these zones 
shall include all areas where underwater SPLs are anticipated to equal 
or exceed 120 dB re: 1 [micro]Pa rms. These zones shall be established 
on the basis of modeled scenarios approved by NMFS for each specific 
activity. The actual size of disturbance zones shall be empirically 
determined and reported by Port Dolphin, and on-site PSOs shall be aware 
of the size of these zones. However, because of the large size of these 
zones, monitoring of the zone is required only to maximum line-of-sight 
distance from established monitoring locations.
    (iii) Visual monitoring shall occur for all construction activities. 
The following measures shall apply:
    (A) Zones shall be monitored from the appropriate vessel or work 
platform, or other suitable vantage point. Port Dolphin shall at all 
times employ,

[[Page 136]]

at minimum, two PSOs in association with each concurrent specified 
construction activity.
    (B) Shutdown zones shall be monitored for the presence of marine 
mammals before, during, and after construction activity. For all 
activities, the shutdown zone shall be monitored for 30 minutes prior to 
initiating the start of activity and for 30 minutes following the 
completion of activity. If marine mammals are present within the 
shutdown zone prior to initiating activity, the start shall be delayed 
until the animals leave the shutdown zone of their own volition or until 
15 minutes has elapsed without observing the animal. If a marine mammal 
is observed within or approaching the shutdown zone, activity shall be 
halted as soon as it is safe to do so, until the animal is observed 
exiting the shutdown zone or 15 minutes has elapsed. If a marine mammal 
is observed within the disturbance zone, a take shall be recorded and 
behaviors documented.
    (C) PSOs shall be on watch at all times during daylight hours when 
in-water operations are being conducted, unless conditions (e.g., fog, 
rain, darkness) make observations impossible. The lead PSO on duty shall 
make this determination. If conditions deteriorate during daylight hours 
such that the sea surface observations are halted, visual observations 
must resume as soon as conditions permit. While activities will be 
permitted to continue during low-visibility conditions, they must have 
been initiated following proper clearance of the shutdown zone under 
acceptable observation conditions and must be restarted, if halted for 
any reason, using the appropriate shutdown zone clearance procedures as 
described inSec. 217.155(a)(2)(iii)(B) of this chapter.
    (3) Pile driving:
    (i) A minimum shutdown zone of 250 m radius shall be established 
around all impact pile driving activity.
    (ii) Contractors shall reduce the power of impact hammers to minimum 
energy levels required to drive a pile.
    (iii) Port Dolphin shall use a sound attenuation measure for impact 
driving of pilings. Prior to beginning construction, Port Dolphin must 
provide information to NMFS about the device to be used, including 
technical specifications. NMFS must approve use of the device before 
construction may begin. If a bubble curtain or similar measure is used, 
it shall distribute small air bubbles around 100 percent of the piling 
perimeter for the full depth of the water column. Any other attenuation 
measure (e.g., temporary sound attenuation pile) must provide 100 
percent coverage in the water column for the full depth of the pile. 
Prior to any impact pile driving, a performance test of the sound 
attenuation device must be conducted in accordance with a NMFS-approved 
acoustic monitoring plan. If a bubble curtain or similar measure is 
utilized, the performance test shall confirm the calculated pressures 
and flow rates at each manifold ring.
    (iv) Ramp-up:
    (A) A ramp-up technique shall be used at the beginning of each day's 
in-water pile driving activities and if pile driving resumes after it 
has ceased for more than 1 hour.
    (B) If a vibratory driver is used, contractors shall be required to 
initiate sound from vibratory hammers for 15 seconds at reduced energy 
followed by a 1-minute waiting period. The procedure shall be repeated 
two additional times before full energy may be achieved.
    (C) If a non-diesel impact hammer is used, contractors shall be 
required to provide an initial set of strikes from the impact hammer at 
reduced energy, followed by a 1-minute waiting period, then two 
subsequent sets.
    (D) If a diesel impact hammer is used, contractors shall be required 
to turn on the sound attenuation device for 15 seconds prior to 
initiating pile driving.
    (v) No impact pile driving shall occur when visibility in the 
shutdown zone is significantly limited, such as during heavy rain or 
fog.
    (4) Additional mitigation measures:
    (i) Use of lights during construction activities shall be limited to 
areas where work is actually occurring, and all other lights must be 
extinguished. Lights must be shielded such that they illuminate the deck 
and do not intentionally illuminate surrounding waters, to the extent 
possible.

[[Page 137]]

    (ii) Additional mitigation measures as contained in a LOA issued 
under Sec.Sec. 216.106 and 217.157 of this chapter.
    (b) [Reserved]



Sec.  217.156  Requirements for monitoring and reporting.

    (a) Visual monitoring program:
    (1) Port Dolphin shall employ, at minimum, two qualified PSOs during 
specified construction-related activities at each site where such 
activities are occurring. All PSOs must be selected in conformance with 
NMFS' minimum qualifications, as described in the preamble to this rule, 
and must receive training sponsored by Port Dolphin, with topics to 
include, at minimum, implementation of the monitoring protocol, 
identification of marine mammals, and reporting requirements. The PSOs 
shall be responsible for visually locating marine mammals in the 
shutdown and disturbance zones and, to the extent possible, identifying 
the species. PSOs shall record, at minimum, the following information:
    (i) A count of all marine mammals observed by species, sex, and age 
class, when possible.
    (ii) Their location within the shutdown or disturbance zone, and 
their reaction (if any) to construction activities, including direction 
of movement.
    (iii) Activity that is occurring at the time of observation, 
including time that activity begins and ends, any acoustic or visual 
disturbance, and time of the observation.
    (iv) Environmental conditions, including wind speed, wind direction, 
visibility, and temperature.
    (2) Port Dolphin shall sponsor a training course to designated crew 
members assigned to vessels associated with construction activities or 
support of operations who will have responsibilities for watching for 
marine mammals. This course shall cover topics including, but not 
limited to, descriptions of the marine mammals found in the area, 
mitigation and monitoring requirements contained in a LOA, sighting log 
requirements, provisions of NMFS Vessel Strike Avoidance Measures and 
Reporting for Mariners, and procedures for reporting injured or dead 
marine mammals.
    (3) Monitoring shall be conducted using appropriate binoculars, such 
as 8x50 marine binoculars. When possible, digital video or still cameras 
shall also be used to document the behavior and response of marine 
mammals to construction activities or other disturbances.
    (4) Each PSO shall have two-way communication capability for contact 
with other PSOs or work crews. PSOs shall implement shut-down or delay 
procedures when applicable by calling for the shut-down to the 
equipment/vessel operator.
    (5) A GPS unit and/or appropriate range finding device shall be used 
for determining the observation location and distance to marine mammals, 
vessels, and construction equipment.
    (b) Acoustic monitoring program:
    (1) Acoustic monitoring must be conducted in accordance with the 
NMFS-approved acoustic monitoring plan.
    (2) Port Dolphin shall provide NMFS with empirically measured source 
level data for designated sources of sound associated with Port 
construction and operation activities and shall verify distances to 
relevant sound thresholds. Measurements shall be carefully coordinated 
with sound-producing activities.
    (3) [Reserved]
    (c) Reporting--Port Dolphin must implement the following reporting 
requirements:
    (1) A report of data collected during monitoring shall be submitted 
to NMFS following conclusion of construction activities. Subsequent 
reports concerning Port operations shall be submitted annually. The 
reports shall include:
    (i) All data required to be collected during monitoring, as 
described underSec. 217.156(a) of this chapter, including observation 
dates, times, and conditions;
    (ii) Correlations of observed behavior with activity type and 
received levels of sound, to the extent possible; and
    (iii) Estimations of total incidental take of marine mammals, 
extrapolated from observed incidental take.
    (2) Port Dolphin shall also submit a report(s) concerning the 
results of all

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acoustic monitoring. Acoustic monitoring reports shall include 
information as described in a NMFS-approved acoustic monitoring plan.
    (3) Reporting injured or dead marine mammals:
    (i) In the unanticipated event that the specified activity clearly 
causes the take of a marine mammal in a manner prohibited by a LOA (if 
issued), such as an injury (Level A harassment), serious injury, or 
mortality, Port Dolphin shall immediately cease the specified activities 
and report the incident to the Chief of the Permits and Conservation 
Division, Office of Protected Resources, NMFS, and the Southeast 
Regional Stranding Coordinator, NMFS. The report must include the 
following information:
    (A) Time and date of the incident;
    (B) Description of the incident;
    (C) Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, and visibility);
    (D) Description of all marine mammal observations in the 24 hours 
preceding the incident;
    (E) Species identification or description of the animal(s) involved;
    (F) Fate of the animal(s); and
    (G) Photographs or video footage of the animal(s).


Activities shall not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS will work with Port Dolphin 
to determine what measures are necessary to minimize the likelihood of 
further prohibited take and ensure MMPA compliance. Port Dolphin may not 
resume their activities until notified by NMFS.
    (ii) In the event that Port Dolphin discovers an injured or dead 
marine mammal, and the lead PSO 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), Port Dolphin shall immediately 
report the incident to the Chief of the Permits and Conservation 
Division, Office of Protected Resources, NMFS, and the Southeast 
Regional Stranding Coordinator, NMFS. The report must include the same 
information identified inSec. 217.156(b)(3)(i) of this chapter. 
Activities may continue while NMFS reviews the circumstances of the 
incident. NMFS will work with Port Dolphin to determine whether 
additional mitigation measures or modifications to the activities are 
appropriate.
    (iii) In the event that Port Dolphin 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 advanced 
decomposition, or scavenger damage), Port Dolphin shall report the 
incident to the Chief of the Permits and Conservation Division, Office 
of Protected Resources, NMFS, and the Southeast Regional Stranding 
Coordinator, NMFS, within 24 hours of the discovery. Port Dolphin shall 
provide photographs or video footage or other documentation of the 
stranded animal sighting to NMFS.
    (4) Annual reports. (i) A report summarizing all marine mammal 
monitoring and construction activities shall be submitted to NMFS, 
Office of Protected Resources, and NMFS, Southeast Regional Office 
(specific contact information to be provided in LOA) following the 
conclusion of construction activities. Thereafter, Port Dolphin shall 
submit annual reports summarizing operations activities.
    (ii) The annual reports shall include data collected for each marine 
mammal species observed in the project area. Description of marine 
mammal behavior, overall numbers of individuals observed, frequency of 
observation, and any behavioral changes and the context of the changes 
relative to activities shall also be included in the reports. Additional 
information that shall be recorded during activities and contained in 
the reports include: date and time of marine mammal detections, weather 
conditions, species identification, approximate distance from the 
source, and activity at the construction site when a marine mammal is 
sighted. Port Dolphin shall extrapolate observed incidences of take to 
provide an estimate of actual incidences of take.
    (5) Five-year comprehensive report. (i) Port Dolphin shall submit a 
draft comprehensive final report to NMFS, Office of Protected Resources, 
and NMFS,

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Southeast Regional Office (specific contact information to be provided 
in LOA) 180 days prior to the expiration of the regulations. This 
comprehensive technical report shall provide full documentation of 
methods, results, and interpretation of all monitoring during the first 
4.5 years of the activities conducted under the regulations in this 
subpart.
    (ii) Port Dolphin shall submit a revised final comprehensive 
technical report, including all monitoring results during the entire 
period of the LOAs, 90 days after the end of the period of effectiveness 
of the regulations to NMFS, Office of Protected Resources, and NMFS, 
Southeast Regional Office (specific contact information to be provided 
in LOA).



Sec.  217.157  Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, Port Dolphin must apply for and obtain a LOA.
    (b) A LOA, unless suspended or revoked, 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 expiration date of these 
regulations, Port Dolphin must 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, Port Dolphin must 
apply for and obtain a modification of the LOA as described inSec. 
217.158 of this chapter.
    (e) The LOA shall set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact (i.e., 
mitigation) on the species, its habitat, and on the availability of the 
species for subsistence 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 findings made for the total 
taking allowable under these regulations.
    (g) Notice of issuance or denial of a LOA shall be published in the 
Federal Register within 30 days of a determination.



Sec.  217.158  Renewals and modifications of Letters of Authorization.

    (a) A LOA issued under Sec.Sec. 216.106 and 217.157 of this 
chapter for the activity identified inSec. 217.151(a) of this chapter 
shall be renewed or modified upon request by the applicant, provided 
that:
    (1) The proposed specified activity and mitigation, monitoring, and 
reporting measures, as well as the anticipated impacts, are the same as 
those described and analyzed for these regulations (excluding changes 
made pursuant to the adaptive management provision inSec. 
217.158(c)(1) of this chapter).
    (2) NMFS determines that the mitigation, monitoring, and reporting 
measures required by the previous LOA under these regulations were 
implemented.
    (b) For LOA modification or renewal 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 inSec. 217.158(c)(1) of this chapter) 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 public comment before issuing the LOA.
    (c) A LOA issued under Sec.Sec. 216.106 and 217.157 of this 
chapter for the activity identified inSec. 217.151(a) of this chapter 
may be modified by NMFS under the following circumstances:
    (1) Adaptive Management--NMFS may modify (including augment) the 
existing mitigation, monitoring, or reporting measures (after consulting 
with Port Dolphin regarding the practicability 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 regulations.
    (i) Possible sources of data that could contribute to the decision 
to modify the mitigation, monitoring, or reporting measures in an LOA:
    (A) Results from Port Dolphin's monitoring from the previous 
year(s).

[[Page 140]]

    (B) Results from other marine mammal and/or sound research or 
studies.
    (C) Any information that reveals marine mammals may have been taken 
in a manner, extent or number not authorized by these regulations or 
subsequent LOAs.
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, NMFS will 
publish a notice 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 inSec. 217.153(b) of this chapter, an LOA may 
be modified without prior notice or opportunity for public comment. 
Notice would be published in the Federal Register within 30 days of the 
action.

Subpart Q [Reserved]



     Subpart R_Taking of Marine Mammals Incidental to Operation and 
     Maintenance of the Neptune Liquefied Natural Gas Facility Off 
                              Massachusetts

    Source: 76 FR 34172, June 13, 2011, unless otherwise noted.

    Effective Date Note: At 76 FR 34172, June 13, 2011, subpart R was 
added, effective July 11, 2011 through July 10, 2016.



Sec.  217.170  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to Neptune LNG LLC 
(Neptune) and those persons it authorizes to conduct activities on its 
behalf for the taking of marine mammals that occurs in the area outlined 
in paragraph (b) of this section and that occur incidental to 
commissioning and operation, including maintenance and repair 
activities, at the Neptune Deepwater Port (Port).
    (b) The taking of marine mammals by Neptune may be authorized in a 
Letter of Authorization only if it occurs at the Neptune Deepwater Port 
within Outer Continental Shelf blocks NK 19-04 6525 and NK 19-04 6575, 
which are located at approximately 42[deg]28[min]09[sec] N. lat and 
70[deg]36[min]22[sec] W. long.



Sec.  217.171  Effective dates.

    Regulations in this subpart are effective from July 11, 2011, 
through July 10, 2016.

[76 FR 35996, June 21, 2011]



Sec.  217.172  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec.Sec. 
216.106 and 217.177 of this chapter, the Holder of the Letter of 
Authorization (hereinafter ``Neptune'') may incidentally, but not 
intentionally, take marine mammals within the area described inSec. 
217.170(b), provided the activity is in compliance with all terms, 
conditions, and requirements of the regulations in this subpart and the 
appropriate Letter of Authorization.
    (b) The incidental take of marine mammals under the activities 
identified inSec. 217.170(a) is limited to the following species and 
is limited to Level B Harassment:
    (1) Mysticetes:
    (i) North Atlantic right whale (Eubalaena glacialis)--120 (an 
average of 24 annually).
    (ii) Fin whale (Balaenoptera physalus)--145 (an average of 29 
annually).
    (iii) Humpback whale (Megaptera novaeangliae)--390 (an average of 78 
annually).
    (iv) Minke whale (Balaenoptera acutorostrata)--90 (an average of 18 
annually).
    (v) Sei whale (Balaenoptera borealis)--60 (an average of 12 
annually).
    (2) Odontocetes:
    (i) Long-finned pilot whale (Globicephala melas)--595 (an average of 
119 annually).
    (ii) Atlantic white-sided dolphin (Lagenorhynchus acutus)--1,935 (an 
average of 387 annually).
    (iii) Bottlenose dolphin (Tursiops truncatus)--50 (an average of 10 
annually).
    (iv) Common dolphin (Delphinus delphis)--100 (an average of 20 
annually).
    (v) Risso's dolphin (Grampus griseus)--100 (an average of 20 
annually).
    (vi) Killer whale (Orcinus orca)--100 (an average of 20 annually).

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    (vii) Harbor porpoise (Phocoena phocoena)--25 (an average of 5 
annually).
    (3) Pinnipeds:
    (i) Harbor seal (Phoca vitulina)--75 (an average of 15 annually).
    (ii) Gray seal (Halichoerus grypus)--75 (an average of 15 annually).



Sec.  217.173  Prohibitions.

    Notwithstanding takings contemplated inSec. 217.170 and authorized 
by a Letter of Authorization issued under Sec.Sec. 216.106 and 217.177 
of this chapter, no person in connection with the activities described 
inSec. 217.170 may:
    (a) Take any marine mammal not specified inSec. 217.172(b);
    (b) Take any marine mammal specified inSec. 217.172(b) other than 
by incidental, unintentional Level B Harassment;
    (c) Take a marine mammal specified inSec. 217.172(b) if such 
taking results in more than a negligible impact on the species or stocks 
of such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or a Letter of Authorization issued under 
Sec.Sec. 216.106 and 217.177 of this chapter.



Sec.  217.174  Mitigation.

    (a) When conducting the activities identified inSec. 217.170(a), 
the mitigation measures contained in the Letter of Authorization issued 
under Sec.Sec. 216.106 and 217.177 must be implemented. These 
mitigation measures include but are not limited to:
    (1) Major Repairs (May 1-November 30):
    (i) During repairs, if a marine mammal is detected within 0.6 mi (1 
km) of the repair vessel (or acoustically), the vessel superintendent or 
on-deck supervisor shall be notified immediately. The vessel's crew will 
be put on a heightened state of alert. The marine mammal will be 
monitored constantly to determine if it is moving toward the repair 
area.
    (ii) Repair vessels shall cease any movement in the area if a marine 
mammal other than a right whale is sighted within or approaching to a 
distance of 100 yd (91 m) from the operating repair vessel. Repair 
vessels shall cease any movement in the construction area if a right 
whale is sighted within or approaching to a distance of 500 yd (457 m) 
from the operating vessel. Vessels transiting the repair area, such as 
pipe haul barge tugs, shall also be required to maintain these 
separation distances.
    (iii) Repair vessels shall cease all sound emitting activities if a 
marine mammal other than a right whale is sighted within or approaching 
to a distance of 100 yd (91 m) or if a right whale is sighted within or 
approaching to a distance of 500 yd (457 m), from the operating repair 
vessel. The back-calculated source level, based on the most conservative 
cylindrical model of acoustic energy spreading, is estimated to be 139 
dB re 1 [micro]Pa.
    (iv) Repair activities may resume after the marine mammal is 
positively reconfirmed outside the established zones (either 500 yd (457 
m) or 100 yd (91 m), depending upon species) or if the marine mammal has 
not been re-sighted in the established zones for 30 minutes.
    (v) While under way, all repair vessels shall remain 500 yd (457 m) 
away from right whales and 100 yd (91 m) away from all other marine 
mammals, unless constrained by human safety concerns or navigational 
constraints.
    (vi) All repair vessels 300 gross tons or greater must maintain a 
speed of 10 knots (18.5 km/hr) or less. Vessels less than 300 gross tons 
carrying supplies or crew between the shore and the repair site must 
contact the Mandatory Ship Reporting System, the U.S. Coast Guard 
(USCG), or the protected species observers (PSOs) at the repair site 
before leaving shore for reports of recent right whale sightings or 
active Dynamic Management Areas (DMAs) and, consistent with navigation 
safety, restrict speeds to 10 knots (18.5 km/hr) or less within 5 mi (8 
km) of any recent sighting location and within any existing DMA.
    (vii) Vessels transiting through the Cape Cod Canal and Cape Cod Bay 
(CCB) between January 1 and May 15 must reduce speeds to 10 knots (18.5 
km/hr) or less, follow the recommended routes charted by NOAA to reduce 
interactions between right whales and

[[Page 142]]

shipping traffic, and avoid aggregations of right whales in the eastern 
portion of CCB.
    (2) Major Repairs (December 1-April 30): If unplanned/emergency 
repair activities cannot be conducted between May 1 and November 30, 
then Neptune shall implement the following mitigation measures in 
addition to those listed inSec. 217.174(a)(1)(i) through (vii):
    (i) If on-board PSOs do not have at least 0.6-mi (1-km) visibility, 
they shall call for a shutdown of repair activities. If dive operations 
are in progress, then they shall be halted and divers brought on board 
until visibility is adequate to see a 0.6-mi (1-km) range. At the time 
of shutdown, the use of thrusters must be minimized to the lowest level 
needed to maintain personnel safety. If there are potential safety 
problems due to the shutdown, the captain must decide what operations 
can safely be shut down and shall document such activities in the data 
log.
    (ii) Prior to leaving the dock to begin transit, the barge must 
contact one of the PSOs on watch to receive an update of sightings 
within the visual observation area. If the PSO has observed a North 
Atlantic right whale within 30 minutes of the transit start, the vessel 
shall hold for 30 minutes and again seek clearance to leave from the 
PSOs on board. PSOs will assess whale activity and visual observation 
ability at the time of the transit request to clear the barge for 
release and will grant clearance if no North Atlantic right whales have 
been sighted in the last 30 minutes in the visual observation area.
    (iii) Neptune or its contractor shall provide a half-day training 
course to designated crew members assigned to the transit barges and 
other support vessels who will have responsibilities for watching for 
marine mammals. This course shall cover topics including, but not 
limited to, descriptions of the marine mammals found in the area, 
mitigation and monitoring requirements contained in the Letter of 
Authorization, sighting log requirements, and procedures for reporting 
injured or dead marine mammals. These designated crew members shall be 
required to keep watch on the bridge and immediately notify the 
navigator of any whale sightings. All watch crew members shall sign into 
a bridge log book upon start and end of watch. Transit route, 
destination, sea conditions, and any protected species sightings/
mitigation actions during watch shall be recorded in the log book. Any 
whale sightings within 3,281 ft (1,000 m) of the vessel shall result in 
a high alert and slow speed of 4 knots (7.4 km/hr) or less. A sighting 
within 2,461 ft (750 m) shall result in idle speed and/or ceasing all 
movement.
    (iv) The material barges and tugs used for repair work shall transit 
from the operations dock to the work sites during daylight hours, when 
possible, provided the safety of the vessels is not compromised. Should 
transit at night be required, the maximum speed of the tug shall be 5 
knots (9.3 km/hr).
    (v) Consistent with navigation safety, all repair vessels must 
maintain a speed of 10 knots (18.5 km/hr) or less during daylight hours. 
All vessels shall operate at 5 knots (9.3 km/hr) or less at all times 
within 3.1 mi (5 km) of the repair area.
    (3) Speed Restrictions in Seasonal Management Areas (SMAs): Repair 
vessels and shuttle regasification vessels (SRVs) shall transit at 10 
knots (18.5 km/hr) or less in the following seasons and areas, which 
either correspond to or are more restrictive than the times and areas in 
NMFS' regulations at 50 CFR 224.105 that implement speed restrictions to 
reduce the likelihood and severity of ship strikes of right whales:
    (i) CCB SMA from January 1 through May 15, which includes all waters 
in CCB, extending to all shorelines of the Bay, with a northern boundary 
of 42[deg]12[min] N. latitude;
    (ii) Off Race Point SMA year round, which is bounded by straight 
lines connecting the following coordinates in the order stated: 
42[deg]30[min] N. 69[deg]45[min] W.; thence to 42[deg]30[min] N. 
70[deg]30[min] W.; thence to 42[deg]12[min] N. 70[deg]30[min] W.; thence 
to 42[deg]12[min] N. 70[deg]12[min] W.; thence to 
42[deg]04[min]56.5[sec] N. 70[deg]12[min] W.; thence along mean high 
water line and inshore limits of COLREGS limit to a latitude of 
41[deg]40[min] N.; thence due east to 41[deg]41[min] N. 69[deg]45[min] 
W.; thence back to starting point; and
    (iii) Great South Channel (GSC) SMA from April 1 through July 31, 
which is bounded by straight lines connecting

[[Page 143]]

the following coordinates in the order stated:

(A) 42[deg]30[min] N. 69[deg]45[min] W.
(B) 41[deg]40[min] N. 69[deg]45[min] W.
(C) 41[deg]00[min] N. 69[deg]05[min] W.
(D) 42[deg]09[min] N. 67[deg]08[min]24[sec] W.
(E) 42[deg]30[min] N. 67[deg]27[min] W.
(F) 42[deg]30[min] N. 69[deg]45[min] W.

    (4) Additional Mitigation Measures:
    (i) When approaching and departing from the Neptune Port, SRVs shall 
use the Boston Traffic Separation Scheme (TSS) starting and ending at 
the entrance to the GSC. Upon entering the TSS, the SRV shall go into a 
``heightened awareness'' mode of operation.
    (ii) In the event that a whale is visually observed within 0.6 mi (1 
km) of the Port or a confirmed acoustic detection is reported on either 
of the two auto-detection buoys (ABs) closest to the Port, departing 
SRVs shall delay their departure from the Port, unless extraordinary 
circumstances, defined in the Marine Mammal Detection, Monitoring, and 
Response Plan (the Plan), require that the departure is not delayed. The 
departure delay shall continue until either the observed whale has been 
visually (during daylight hours) confirmed as more than 0.6 mi (1 km) 
from the Port or 30 minutes have passed without another confirmed 
detection either acoustically within the acoustic detection range of the 
two ABs closest to the Port or visually within 0.6 mi (1 km) from 
Neptune.
    (iii) SRVs that are approaching or departing from the Port and are 
within the Area to be Avoided (ATBA) surrounding Neptune shall remain at 
least 0.6 mi (1 km) away from any visually detected right whales and at 
least 100 yd (91 m) away from all other visually detected whales unless 
extraordinary circumstances, as defined in Section 1.2 of the Plan, 
require that the vessel stay its course. The ATBA is defined in 33 CFR 
150.940. It is the largest area of the Port marked on nautical charts, 
and it is enforceable by the USCG in accordance with the 33 CFR 150.900 
regulations. The Vessel Master shall designate at least one lookout to 
be exclusively and continuously monitoring for the presence of marine 
mammals at all times while the SRV is approaching or departing Neptune.
    (iv) Neptune shall ensure that other vessels providing support to 
Port operations during regasification activities that are approaching or 
departing from the Port and are within the ATBA shall be operated so as 
to remain at least 0.6 mi (1 km) away from any visually detected right 
whales and at least 100 yd (91 m) from all other visually detected 
whales.
    (v) PSOs shall direct a moving vessel to slow to idle if a baleen 
whale is seen less than 0.6 mi (1 km) from the vessel.
    (vi) Use of lights during repair or maintenance activities shall be 
limited to areas where work is actually occurring, and all other lights 
must be extinguished. Lights must be downshielded to illuminate the deck 
and shall not intentionally illuminate surrounding waters, so as not to 
attract whales or their prey to the area.
    (vii) Neptune must immediately suspend any repair and maintenance or 
operations activities if a dead or injured marine mammal is found in the 
vicinity of the project area, and the death or injury of the animal 
could be attributable to the Port facility activities. Upon finding a 
dead or injured marine mammal, Neptune must contact NMFS, the Northeast 
Stranding and Disentanglement Program, and the USCG. NMFS will review 
the documentation submitted by the PSO and attempt to attribute a cause 
of death. Activities shall not resume until review and approval has been 
given by NMFS.
    (5) Additional mitigation measures as contained in a Letter of 
Authorization issued under Sec.Sec. 216.106 and 217.177 of this 
chapter.
    (b) [Reserved]



Sec.  217.175  Requirements for monitoring and reporting.

    (a) Visual Monitoring Program:
    (1) Neptune shall employ PSOs during maintenance- and repair-related 
activities on each vessel that has a dynamic positioning system. Two (2) 
PSOs shall be on-duty at all times. All PSOs must receive NMFS-approved 
PSO training and be approved in advance by NMFS after a review of their 
qualifications.
    (2) Qualifications for these PSOs shall include direct field 
experience on

[[Page 144]]

a marine mammal observation vessel and/or aerial surveys in the Atlantic 
Ocean/Gulf of Mexico.
    (3) The PSOs (one primary and one secondary) are responsible for 
visually locating marine mammals at the ocean's surface and, to the 
extent possible, identifying the species. The primary PSO shall act as 
the identification specialist, and the secondary PSO shall serve as data 
recorder and also assist with identification. Both PSOs shall have 
responsibility for monitoring for the presence of marine mammals.
    (4) The PSOs shall monitor the maintenance/repair area using the 
naked eye, hand-held binoculars, and/or power binoculars.
    (5) The PSOs shall scan the ocean surface during maintenance- and 
repair-related activities and record all sightings in marine mammal 
field sighting logs. Observations of marine mammals shall be identified 
to the species or the lowest taxonomic level possible, and their 
relative position in relation to the vessel shall be recorded.
    (6) While a SRV is navigating within the designated TSS, three 
people have lookout duties on or near the bridge of the ship including 
the SRV Master, the Officer-of-the-Watch, and the Helmsman on watch.
    (7) In addition to standard watch procedures, while the SRV is 
within the ATBA and/or while actively engaging in the use of thrusters, 
an additional lookout shall be designated to exclusively and 
continuously monitor for marine mammals. Once the SRV is moored and 
regasification activities have begun, the vessel is no longer considered 
in ``heightened awareness'' status.
    (8) At the conclusion of regasification activities, when the SRV is 
prepared to depart from the Port, the Master shall once again ensure 
that the responsibilities as defined in the Plan are carried out. All 
sightings of marine mammals by the designated lookout, individuals 
posted to navigational lookout duties, and/or any other crew member 
while the SRV is within the TSS, in transit to the ATBA, within the 
ATBA, and/or when actively engaging in the use of thrusters shall be 
immediately reported to the Officer-of-the-Watch who shall then alert 
the Master.
    (b) Passive Acoustic Monitoring (PAM) Program:
    (1) Neptune shall work with NMFS, Stellwagen Bank National Marine 
Sanctuary (SBNMS), and other scientists to install and monitor an array 
of passive acoustic detection buoys in the Boston TSS that meets the 
criteria specified in the recommendations developed by NOAA through 
consultation with the USCG under the National Marine Sanctuary Act 
(NMSA). The system shall provide near real-time information on the 
presence of vocalizing whales in the shipping lanes.
    (2) Neptune shall work with NMFS, SBNMS, and other scientists to 
monitor the archival array of acoustic recording units (ARUs), or ``pop-
ups,'' around the Port that meets the criteria specified in the program 
developed by NOAA in consultation with the USCG under the NMSA. The ARUs 
shall remain in place for 5 years following initiation of operations to 
monitor the actual acoustic output of port operations and alert NOAA to 
any unanticipated adverse effects of port operations, such as large-
scale abandonment of the area or greater acoustic impacts than predicted 
through modeling.
    (3) Passive acoustic devices shall be actively monitored for 
detections by a NMFS-approved bioacoustic technician.
    (4) Repair Activity PAM Measures: PAM, in addition to that required 
in this section of these regulations, shall be required, on a case-by-
case basis, during both planned and emergency repair activities in order 
to better detect right whales in the area of repair work and to collect 
additional data on the noise levels produced during repair and 
maintenance activities.
    (i) Neptune shall work with NOAA (NMFS and SBNMS) to evaluate when 
to install and maintain an array of real-time passive acoustic detection 
buoys to provide early warnings for potential occurrence of right whales 
in the vicinity of the repair area. The number of passive acoustic 
detection buoys installed around the activity site, if deemed necessary, 
shall be commensurate with the type and spatial

[[Page 145]]

extent of maintenance/repair work required, but must be sufficient to 
detect vocalizing right whales within the 120-dB impact zone.
    (ii) Neptune shall provide NMFS with empirically measured source 
level data for all sources of noise associated with Port maintenance and 
repair activities. Measurements shall be carefully planned and 
coordinated with noise-producing activities and shall be collected from 
the passive detection network.
    (5) SRV Regasification PAM Measures: Source levels associated with 
dynamic positioning of SRVs at the buoys shall be estimated using 
empirical measurements collected from a platform positioned as close as 
practicable to thrusters while in use.
    (c) Neptune must implement the following reporting requirements:
    (1) Because the Port is within the Mandatory Ship Reporting Area 
(MSRA), all SRVs transiting to and from the Port must report their 
activities to the mandatory reporting section of the USCG to remain 
apprised of North Atlantic right whale movements within the area. All 
vessels entering and exiting the MSRA must report their activities to 
WHALESNORTH. Any North Atlantic right whale sightings must be reported 
to the NMFS Sighting Advisory System.
    (2) Repair work reports. (i) For major repair work associated with 
the pipeline lateral or other port components, Neptune shall notify the 
appropriate NOAA personnel as soon as practicable after it is determined 
that repair work must be conducted.
    (ii) During maintenance and repair of the pipeline lateral or other 
port components, weekly status reports must be provided to NOAA. The 
weekly report must include data collected for each distinct marine 
mammal species observed in the project area during the period of the 
repair activity. The weekly reports shall include the following:
    (A) The location, time, and nature of the pipeline lateral 
activities;
    (B) Whether the dynamic position (DP) system was operated and, if 
so, the number of thrusters used and the time and duration of DP 
operation;
    (C) Marine mammals observed in the area (number, species, age group, 
and initial behavior);
    (D) The distance of observed marine mammals from the repair 
activities;
    (E) Observed marine mammal behaviors during the sighting;
    (F) Whether any mitigation measures were implemented;
    (G) Weather conditions (sea state, wind speed, wind direction, 
ambient temperature, precipitation, and percent cloud cover, etc.);
    (H) Condition of the marine mammal observation (visibility and 
glare); and
    (I) Details of passive acoustic detections and any action taken in 
response to those detections.
    (iii) For all minor repair work, Neptune must notify NOAA regarding 
when and where the repair/maintenance work is to take place along with a 
tentative schedule and description of the work, as soon as practicable 
after it is determined that repair work must be conducted. Vessel crews 
shall record/document any marine mammal sightings during the work 
period.
    (iv) At the conclusion of all minor repair work, Neptune shall 
provide NOAA with a report describing any marine mammal sightings, the 
type of work taking place when the sighting occurred, and any avoidance 
actions taken during the repair/maintenance work.
    (3) Incident reports. During all phases of project repair/
maintenance activities and operation, sightings of any injured or dead 
marine mammals must be reported immediately to the Chief, Permits, 
Conservation and Education Division or staff member and the Northeast 
Stranding and Disentanglement Program, regardless of whether the injury 
or death is caused by project activities. If the injury or death was 
caused by a project vessel (e.g., SRV, support vessel, or construction 
vessel), the USCG must be notified immediately, and a full report must 
be provided to NMFS. Activities will not resume until review and 
approval has been given by NMFS. The report must include the following 
information:
    (i) Time, date, and location (latitude/longitude) of the incident;

[[Page 146]]

    (ii) The name and type of vessel involved;
    (iii) The vessel's speed during the incident;
    (iv) Description of the incident;
    (v) Water depth;
    (vi) Environmental conditions (e.g., wind speed and direction, sea 
state, cloud cover, and visibility);
    (vii) Species identification or description of the animal;
    (viii) The fate of the animal; and
    (ix) Photographs or video footage of the animal (if equipment is 
available).
    (4) Annual reports. (i) An annual report on marine mammal monitoring 
and mitigation shall be submitted to NMFS, Office of Protected 
Resources, and NMFS, Northeast Regional Office (specific contact 
information to be provided in Letter of Authorization), on August 1 of 
each year. The annual report shall cover the time period of January 1 
through December 31 of each year of activity.
    (ii) The annual report shall include data collected for each 
distinct marine mammal species observed in the project area in the 
Massachusetts Bay during the period of Port operations and repair/
maintenance activities. The annual report shall also include a 
description of marine mammal behavior, overall numbers of individuals 
observed, frequency of observation, and any behavioral changes and the 
context of the changes relative to operation and repair/maintenance 
activities. Additional information that shall be recorded by Neptune or 
its contractor during operations and repair/maintenance activities and 
contained in the reports include: results of empirical source level 
estimation for thrusters while in use and activities associated with 
maintenance and repair events, date and time of marine mammal detections 
(visually or acoustically), weather conditions, species identification, 
approximate distance from the source, activity of the vessel when a 
marine mammal is sighted, and whether thrusters were in use and, if so, 
how many at the time of the sighting.
    (5) Five-year comprehensive report. (i) Neptune shall submit a draft 
comprehensive final report to NMFS, Office of Protected Resources, and 
NMFS, Northeast Regional Office (specific contact information to be 
provided in Letter of Authorization), 180 days prior to the expiration 
of the regulations. This comprehensive technical report shall provide 
full documentation of methods, results, and interpretation of all 
monitoring during the first four and a half years of the LOA.
    (ii) Neptune shall submit a revised final comprehensive technical 
report, including all monitoring results during the entire period of the 
LOAs, 90 days after the end of the period of effectiveness of the 
regulations to NMFS, Office of Protected Resources, and NMFS, Northeast 
Regional Office (specific contact information to be provided in Letter 
of Authorization).



Sec.  217.176  Applications for Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, the U.S. Citizen (as defined bySec. 216.103) conducting 
the activity identified inSec. 217.170(a) (i.e., Neptune) must apply 
for and obtain either an initial Letter of Authorization in accordance 
withSec. 217.177 or a renewal underSec. 217.178.
    (b) [Reserved]



Sec.  217.177  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, shall be 
valid for a period of time not to exceed the period 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 practicable 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 Letter of Authorization shall 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 affected species or stock of marine mammal(s).

[[Page 147]]



Sec.  217.178  Renewal of Letters of Authorization and adaptive
management.

    (a) A Letter of Authorization issued under Sec.Sec. 216.106 and 
217.177 of this chapter for the activity identified inSec. 217.170(a) 
shall be renewed upon request by the applicant or determination by NMFS 
and the applicant that modifications are appropriate pursuant to the 
adaptive management component of these regulations, provided that:
    (1) NMFS is notified that the activity described in the application 
submitted underSec. 217.176 will be undertaken and that there will not 
be a substantial modification to the described work, mitigation or 
monitoring undertaken during the upcoming 12 months;
    (2) NMFS recieves the monitoring reports required underSec. 
217.175(c)(1)-(4); and
    (3) NMFS determines that the mitigation, monitoring and reporting 
measures required under Sec.Sec. 217.174 and 217.175 and the Letter of 
Authorization issued under Sec.Sec. 216.106 and 217.177 of this 
chapter were undertaken and will be undertaken during the upcoming 
annual period of validity of a renewed Letter of Authorization.
    (b) If either a request for a renewal of a Letter of Authorization 
issued under Sec.Sec. 216.106 and 217.178 or a determination by NMFS 
and the applicant that modifications are appropriate pursuant to the 
adaptive management component of these regulations indicates that a 
substantial modification, as determined 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. Review and comment on renewals of Letters of 
Authorization 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 
requirements contained 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 Register.
    (d) Adaptive Management--NMFS may modify or augment the existing 
mitigation or monitoring measures (after consulting with Neptune 
regarding the practicability of the modifications) if doing so creates a 
reasonable likelihood of more effectively accomplishing the goals of 
mitigation 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 decision to modify the mitigation or monitoring 
measures:
    (1) Results from Neptune's monitoring from the previous year;
    (2) Results from general 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 LOAs.



Sec.  217.179  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 Authorization issued by NMFS, pursuant to Sec.Sec. 216.106 
and 217.177 of this chapter and subject to the provisions of this 
subpart shall be made until after notification and an opportunity for 
public comment has been provided. For purposes of this paragraph, a 
renewal of a Letter of Authorization underSec. 217.178, without 
modification (except for the period of validity), is not considered a 
substantive modification.
    (b) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species or 
stocks of marine mammals specified inSec. 217.172(b), a Letter of 
Authorization issued pursuant to Sec.Sec. 216.106 and 217.177 of this 
chapter may be substantively modified without prior notification and an 
opportunity for public comment. Notification will be published in the 
Federal Register within 30 days subsequent to the action.

Subparts S-T [Reserved]

[[Page 148]]



 Subpart U_Taking Of Marine Mammals Incidental To The Port of Anchorage 
                  Marine Terminal Redevelopment Project



Sec.  217.200  Specified activities and specified geographical region.

    (a) Regulations in this subpart apply only to the incidental taking 
of those marine mammals specified inSec. 217.202(b) by the Port of 
Anchorage and the U.S. Department of Transportation Maritime 
Administration (MARAD), and those persons it authorizes to engage in 
construction activities associated with the Port of Anchorage Marine 
Terminal Redevelopment Project, specifically in-water pile driving, at 
the Port of Anchorage, Alaska.
    (b) [Reserved]



Sec.  217.201  Effective dates.

    Regulations in this subpart are effective from July 15, 2009, 
through July 14, 2014.



Sec.  217.202  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant toSec. 216.106 
of this chapter andSec. 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 described inSec. 
217.200, provided the activity 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 
limited to the incidental take, by Level B harassment only, of the 
following species under the activities identified inSec. 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 prohibited and may result in the 
modification, suspension, or revocation of a Letter of Authorization.



Sec.  217.203  Prohibitions.

    Notwithstanding takings contemplated inSec. 217.202(b) and 
authorized by a Letter of Authorization issued underSec. 216.106 of 
this chapter andSec. 217.207, no person in connection with the 
activities described inSec. 217.200 may:
    (a) Take any marine mammal not specified inSec. 217.202(b);
    (b) Take any marine mammal specified inSec. 217.202(b) other than 
by incidental, unintentional Level B harassment;
    (c) Take a marine mammal specified inSec. 217.202(b) if such 
taking results in more than a negligible impact on the species or stocks 
of such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or a Letter of Authorization issued under 
Sec.  216.106 of this chapter andSec. 217.207.



Sec.  217.204  Mitigation.

    (a) When conducting operations identified inSec. 217.200(a), the 
mitigation measures contained in the Letter of Authorization, issued 
underSec. 216.106 of this chapter andSec. 217.207, must be 
implemented. These mitigation measures are:
    (1) Through monitoring described underSec. 217.205, the Holder of 
a Letter of Authorization will ensure that no marine 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 approaching a distance 200 m from in-water pile driving or in-
water chipping, operations shall be immediately delayed or suspended 
until the marine mammal moves outside these designated zones or the 
animal is not detected within 15 minutes of the last sighting.
    (2) If a marine mammal is detected within or approaching the Level B 
harassment zone designated for impact pile driving (350 m) prior to in-
water impact pile driving, operations shall 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 
harassment zone designated for vibratory

[[Page 149]]

pile driving (1,300 m) prior to in-water vibratory pile driving, 
operations shall not commence until the marine mammal 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 requires the holder of the Letter of 
Authorization to initiate noise from the hammers for 15 seconds at 
reduced energy followed by 1-minute waiting period and repeat the 
procedure two additional 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 restrict clear, visible detection of all waters within the 
appropriate harassment zones or the 200 m safety zone. Such conditions 
that can impair sightibility include, but are not limited 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 suspended until the 
animal has moved outside the 200m safety zone or the animal 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 approaching a harassment zone, in-water pile driving shall cease and 
shall not be resumed until the calf or group is confirmed 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 resume.
    (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 hydraulic 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 practicable while still maintaining control 
of the vessel and safe working conditions.
    (11) In the event the Port of Anchorage conducts out-of-water 
blasting, detonation of charges will be delayed if a marine mammal is 
detected anywhere within a visible distance from the detonation site.
    (12) Additional mitigation measures as contained in a Letter of 
Authorization.
    (b) [Reserved]



Sec.  217.205  Requirements for monitoring and reporting.

    (a) The Holder of a Letter of Authorization issued pursuant toSec. 
216.106 of this chapter andSec. 217.207, for activities described in 
Sec.  217.200(a) is 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 Authorization, the Holder of the Letter of

[[Page 150]]

Authorization must notify the Administrator, Alaska Region, NMFS, by 
letter, e-mail, or telephone, at least 2 weeks prior to commencement of 
seasonal activities and dock demolition possibly involving the taking of 
marine mammals. If the activity identified inSec. 217.200(a) is 
thought to have resulted in the mortality or injury of any marine 
mammals or in any take of marine mammals not identified inSec. 
217.202(b), the Holder of the Letter of Authorization must notify the 
Director, Office of Protected Resources, NMFS, or designee, 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 Authorization must designate 
qualified, on-site marine mammal observers (MMOs), approved in advance 
by NMFS, as specified in the Letter of Authorization, to:
    (1) Conduct visual marine mammal monitoring at the Port of Anchorage 
beginning 30 minutes prior to and during 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 composition, initial and closest 
distance to pile driving hammer, and behavior (e.g., activity, group 
cohesiveness, direction and speed of travel, etc.) of animals throughout 
duration of sighting;
    (iii) Any discrete behavioral reactions to in-water work;
    (iv) The number (by species) of marine 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 implemented.
    (3) Employ a scientific marine mammal 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, 
analyze, and document potential changes in behavior in response to in-
water construction work. This monitoring team is not required to be 
present during all in-water pile driving operations but will continue 
monitoring one-year post in-water construction. The on-site MMOs and 
this marine mammal monitoring 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 Authorization must conduct additional 
monitoring as required under an annual Letter of Authorization.
    (d) The Holder of a Letter of Authorization shall submit a monthly 
report to NMFS' Headquarters Permits, Education and Conservation 
Division and the Alaska Region, Anchorage for all months in-water pile 
driving or chipping takes place. This report must contain the 
information listed in paragraph (b)(2) of this section.
    (e) An annual report must be submitted 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 
subsequent 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 undertaken 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.



Sec.  217.206  Applications for Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, the U.S. citizen (as defined bySec. 216.103 of this 
chapter) conducting the activity identified inSec. 217.200(a) (the 
Port of Anchorage and MARAD) must apply for and obtain either an initial 
Letter of Authorization in accordance withSec. 217.207 or a renewal 
underSec. 217.208.

[[Page 151]]

    (b) The application must be submitted to NMFS at least 60 days 
before the expiration of the initial or current Letter of Authorization.
    (c) Applications for a Letter of Authorization and for renewals of 
Letters of Authorization must include the following:
    (1) Name of the U.S. citizen requesting the authorization,
    (2) The date(s), duration, and the specified geographic region where 
the activities specified inSec. 217.200 will occur; and
    (3) The most current population estimate of Cook Inlet beluga whales 
and the estimated percentage of marine mammal populations potentially 
affected for the 12-month period of effectiveness of the Letter of 
Authorization;
    (4) A summary of take levels, monitoring 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 Authorization.



Sec.  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 period of validity of this 
subpart, but must be renewed annually subject to annual renewal 
conditions inSec. 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 subsistence uses.
    (c) Issuance of a Letter of Authorization 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 mammals by the activities specified inSec. 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 
marine mammals for subsistence uses.
    (d) Notice of issuance or denial of an application for a Letter of 
Authorization will be published in the Federal Register within 30 days 
of a determination.



Sec.  217.208  Renewal of Letters of Authorization.

    (a) A Letter of Authorization issued underSec. 216.106 of this 
chapter andSec. 217.207 for the activity identified inSec. 
217.200(a) will be renewed annually upon:
    (1) Notification to NMFS that the activity described in the 
application submitted underSec. 217.206 will be undertaken and that 
there will not be a substantial modification to the described work, 
mitigation or monitoring undertaken during the upcoming 12 months;
    (2) Timely receipt of the monitoring reports required underSec. 
217.205(d) and (e), and the Letter of Authorization issued underSec. 
217.207, which has been reviewed and accepted by NMFS; and
    (3) A determination by NMFS that the mitigation, monitoring and 
reporting measures required under Sec.Sec. 217.204 and 217.205 and the 
Letter of Authorization issued underSec. 216.106 of this chapter and 
Sec.  217.207, were undertaken and will be undertaken during the 
upcoming annual period of validity of a renewed Letter of Authorization; 
and
    (4) A determination by NMFS that the number of marine mammals taken 
during the period of the Letter of Authorization will be small, that the 
total taking of marine mammals by the activities specified inSec. 
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 marine mammals for subsistence uses.
    (b) If a request for a renewal of a Letter of Authorization issued 
underSec. 216.106 of this chapter and this section indicates that a 
substantial modification to the described work, mitigation or monitoring 
undertaken during the upcoming season will occur, NMFS will provide the 
public a period of 30 days

[[Page 152]]

for review and comment on the request.
    (c) Notice of issuance or denial of a renewal of a Letter of 
Authorization will be published in the Federal Register within 30 days 
of a determination.



Sec.  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 Authorization by NMFS, issued pursuant toSec. 216.106 of 
this chapter andSec. 217.207 and subject to the provisions of this 
subpart, shall be made until after notification and an opportunity for 
public comment has been provided. For purposes of this paragraph, a 
renewal of a Letter of Authorization underSec. 217.208, without 
modification (except for the period of validity), is not considered a 
substantive modification.
    (b) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species or 
stocks of marine mammals specified inSec. 217.202(b), a Letter of 
Authorization issued pursuant toSec. 216.106 of this chapter andSec. 
217.207 may be substantively modified without prior notification and an 
opportunity for public comment. Notification will be published in the 
Federal Register within 30 days subsequent to the action.



PART 218_REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE 
MAMMALS--Table of Contents



Subpart A_Taking Marine Mammals Incidental to U.S. Navy Training in the 
          Virginia Capes Range Complex (VACAPES Range Complex)

Sec.
218.1 Specified activity, specified geographical area and effective 
          dates.
218.2 Permissible methods of taking.
218.3 Prohibitions.
218.4 Mitigation.
218.5 Requirements for monitoring and reporting.
218.6 Applications for Letters of Authorization.
218.7 Letters of Authorization.
218.8 Renewal of Letters of Authorization and adaptive management.
218.9 Modifications to Letters of Authorization.

Subpart B_Taking Marine Mammals Incidental to U.S. Navy Training in the 
                       Jacksonville Range Complex

218.10 Specified activity and specified geographical area and effective 
          dates.
218.11 Permissible methods of taking.
218.12 Prohibitions.
218.13 Mitigation.
218.14 Requirements for monitoring and reporting.
218.15 Applications for Letters of Authorization.
218.16 Letters of Authorization.
218.17 Renewal of Letters of Authorization and adaptive management.
218.18 Modifications to Letters of Authorization.

Subpart C_Taking Marine Mammals Incidental to U.S. Navy Training in the 
                       Cherry Point Range Complex

218.20 Specified activity and specified geographical area and effective 
          dates.
218.21 Permissible methods of taking.
218.22 Prohibitions.
218.23 Mitigation.
218.24 Requirements for monitoring and reporting.
218.25 Applications for Letters of Authorization.
218.26 Letters of Authorization.
218.27 Renewal of Letters of Authorization and adaptive management.
218.28 Modifications to Letters of Authorization.

Subpart D_Taking Marine Mammals Incidental to U.S. Navy Training in the 
                      Gulf of Mexico Range Complex

218.30 Specified activity and specified geographical area and effective 
          dates.
218.31 Permissible methods of taking.
218.32 Prohibitions.
218.33 Mitigation.
218.34 Requirements for monitoring and reporting.
218.35 Applications for Letters of Authorization.
218.36 Letters of Authorization.
218.37 Renewal of Letters of Authorization and adaptive management.
218.38 Modifications to Letters of Authorization.

[[Page 153]]

Subparts E-K [Reserved]

   Subpart L_Taking and Importing Marine Mammals; U.S. Navy's Mariana 
                      Islands Range Complex (MIRC)

218.100 Specified activity and geographical area.
218.101 Effective dates.
218.102 Permissible methods of taking.
218.103 Prohibitions.
218.104 Mitigation.
218.105 Requirements for monitoring and reporting.
218.106 Applications for Letters of Authorization.
218.107 Letters of Authorization.
218.108 Renewal of Letters of Authorization and adaptive management.
218.109 Modifications to Letters of Authorization.

  Subpart M_Taking and Importing Marine Mammals; U.S. Navy's Northwest 
                     Training Range Complex (NWTRC)

218.110 Specified activity and specified geographical area.
218.111 Effective dates.
218.112 Permissible methods of taking.
218.113 Prohibitions.
218.114 Mitigation.
218.115 Requirements for monitoring and reporting.
218.116 Applications for Letters of Authorization.
218.117 Letters of Authorization.
218.118 Renewal of Letters of Authorization and adaptive management.
218.119 Modifications to Letters of Authorization.

Subpart N_Taking and Importing Marine Mammals; Gulf of Alaska Temporary 
                   Maritime Activities Area (GoA TMAA)

218.120 Specified activity and geographical area.
218.121 Effective dates.
218.122 Permissible methods of taking.
218.123 Prohibitions.
218.124 Mitigation.
218.125 Requirements for monitoring and reporting.
218.126 Applications for Letters of Authorization.
218.127 Letters of Authorization.
218.128 Renewal of Letters of Authorization and adaptive management.
218.129 Modifications to Letters of Authorization.

Subparts O-Q [Reserved]

   Subpart R_Taking Marine Mammals Incidental to U.S. Navy Research, 
  Development, Test, and Evaluation Activities in the Naval Sea System 
  Command (NAVSEA) Naval Undersea Warfare Center (NUWC) Keyport Range 
        Complex and the Associated Proposed Extensions Study Area

218.170 Specified activity and specified geographical area and effective 
          dates.
218.171 Permissible methods of taking.
218.172 Prohibitions.
218.173 Mitigation.
218.174 Requirements for monitoring and reporting.
218.175 Applications for Letters of Authorization.
218.176 Letters of Authorization.
218.177 Renewal of Letters of Authorization and adaptive management.
218.178 Modifications to Letters of Authorization.

Subpart S_Taking Marine Mammals Incidental to U.S. Naval Surface Warfare 
             Center Panama City Division Mission Activities

218.180 Specified activity and specified geographical area and effective 
          dates.
218.181 Permissible methods of taking.
218.182 Prohibitions.
218.183 Mitigation.
218.184 Requirements for monitoring and reporting.
218.185 Applications for Letters of Authorization.
218.186 Letters of Authorization.
218.187 Renewal of Letters of Authorization and adaptive management.
218.188 Modifications to Letters of Authorization.

Subparts T - W [Reserved]

  Subpart X_Taking and Importing of Marine Mammals; Navy Operations of 
  Surveillance Towed Array Sensor System Low Frequency Active (SURTASS 
                               LFA) Sonar

218.230 Specified activity, level of taking, and species.
218.231 Effective dates.
218.232 Permissible methods of taking.
218.233 Prohibitions.
218.234 Mitigation.
218.235 Requirements for monitoring.
218.236 Requirements for reporting.
218.237 Applications for Letters of Authorization.
218.238 Letters of Authorization.
218.239 Renewal of Letters of Authorization.

[[Page 154]]

218.240 Modifications to Letters of Authorization.
218.241 Adaptive management.

    Authority: 16 U.S.C. 1361 et seq.

    Source: 74 FR 28343, June 15, 2009, unless otherwise noted.



Subpart A_Taking Marine Mammals Incidental to U.S. Navy Training in the 
          Virginia Capes Range Complex (VACAPES Range Complex)



Sec.  218.1  Specified activity, specified geographical area 
and effective dates.

    (a) Regulations in this subpart apply only to the U.S. Navy for the 
taking of marine mammals that occurs in the area outlined in paragraph 
(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 Navy is only authorized if 
it occurs within the VACAPES Range Complex Operation Area (OPAREA), 
which is located in the coastal and offshore waters of the western North 
Atlantic Ocean adjacent to Delaware, Maryland, Virginia, and North 
Carolina. The northernmost boundary of the VACAPES Range Complex OPAREA 
is located 37 nautical miles (nm) off the entrance to Delaware Bay at 
latitude 38[deg]45[min] N, the farthest point of the eastern boundary is 
184 nm east of Chesapeake Bay at longitude 72[deg]41[min] W, and the 
southernmost point is 105 nm southeast of Cape Hatteras, North Carolina, 
at latitude of 34[deg]19[min] N. The western boundary of the VACAPES 
Range Complex OPAREA lies 3 nm from the shoreline at the boundary 
separating state and Federal waters.
    (c) The taking of marine mammals by the Navy is only authorized if 
it occurs incidental to the following activities:
    (1) The use of the explosive munitions, or similar explosive types, 
indicated in paragraph (c)(1)(i) of this section conducted as part of 
the Navy training events, or similar training events, indicated in 
paragraph (c)(1)(ii) of this section:
    (i) Underwater Explosives:
    (A) AGM-114 (Hellfire missile)
    (B) AGM-65 E/F (Maverick missile)
    (C) MK-83/GBU-32 (1,000 lb High Explosive bomb)
    (D) Airborne Mine Neutralization system (AMNS)
    (E) 20 lb NEW charges
    (F) AGM-88 (HARM)
    (G) 5[sec] Naval Gunfire
    (ii) Training events (with approximated number of events)
    (B) Mine Exercise (MINEX) (Mine Neutralization [20 lb NEW 
charges])--up to 120 exercises over the course of 5 years (an average of 
24 per year);
    (C) Bombing Exercise (BOMBEX) (Air-to-Surface)--up to 100 exercises 
over the course of 5 years (an average of 20 per year);
    (D) Missile Exercise (MISSILEX) (Air-to-Surface; Hellfire missile)--
up to 300 exercises over the course of 5 years (an average of 60 per 
year);
    (E) Missile Exercise (MISSILEX) (Air-to-Surface; Maverick, HE)--up 
to 100 exercises over the course of 5 years (an average of 20 per year); 
and
    (F) FIREX with IMPASS--up to 110 exercises over the course of 5 
years (an average of 22 per year).
    (2) [Reserved]
    (d) Amended regulations are effective from February 1, 2012, through 
June 4, 2016.
    (e) The taking of marine mammals may be authorized in an LOA for the 
explosive types and activities, or similar explosives or activities, 
listed inSec. 218.1(c) should the amounts (e.g., number of exercises) 
vary from those estimated inSec. 218.1(c), provided that the variation 
does not result in exceeding the amount of take indicated inSec. 
218.2(c).

[74 FR 28343, June 15, 2009, as amended at 76 FR 30554, May 26, 2011; 77 
FR 4922, Feb. 1, 2012]



Sec.  218.2  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant toSec. 216.106 
of this chapter andSec. 218.7, the Holder of the Letter of 
Authorization may incidentally, but not intentionally, take marine 
mammals within the area described inSec. 218.1(b), provided the 
activity is in compliance with all terms, conditions, and requirements 
of this subpart and the appropriate Letter of Authorization.

[[Page 155]]

    (b) The activities identified inSec. 218.1(c) must be conducted in 
a manner that minimizes, to the greatest extent practicable, any adverse 
impacts on marine mammals and their habitat.
    (c) The incidental take of marine mammals under the activities 
identified inSec. 218.1(c) is limited to the following species, by the 
indicated method of take and the indicated number of times:
    (1) Level B Harassment:
    (i) Mysticetes:
    (A) Humpback whale (Megaptera novaeangliae)--10 (an average of 2 
annually); and
    (B) Fin whale (Balaenoptera physalus)--10 (an average of 2 
annually).
    (ii) Odontocetes:
    (A) Sperm whale (Physeter macrocephalus)--10 (an average of 2 
annually);
    (B) Pygmy or dwarf sperm whales (Kogia sp.)--15 (an average of 3 
annually);
    (C) Rough-toothed dolphin (Steno bredanensis)--5 (an average of 1 
annually);
    (D) Bottlenose dolphin (Tursiops truncatus)--145 (an average of 29 
annually);
    (E) Pantropical spotted dolphin (Stenella attenuata)--350 (an 
average of 70 annually);
    (F) Striped dolphin (S. coeruleoalba)--340 (an average of 68 
annually);
    (G) Clymene dolphin (S. clymene)--165 (an average of 33 annually);
    (H) Atlantic spotted dolphin (S. frontalis)--215 (an average of 43 
annually);
    (I) Common dolphin (Delphinus delphis)--10,965 (an average of 2,193 
annually);
    (J) Risso's dolphin (Grampus griseus)--80 (an average of 16 
annually); and
    (K) Pilot whales (Globicephala sp.)--50 (an average of 10 annually).
    (2) Level A Harassment (injury):
    (i) Atlantic spotted dolphin--5 (an average of 1 annually);
    (ii) Common dolphin--100 (an average of 20 annually);
    (iii) Pantropical spotted dolphin--5 (an average of 1 annually); and
    (iv) Striped dolphin--15 (an average of 3 annually).



Sec.  218.3  Prohibitions.

    Notwithstanding takings contemplated inSec. 218.2 and authorized 
by a Letter of Authorization issued underSec. 216.106 of this chapter 
andSec. 218.7, no person in connection with the activities described 
inSec. 218.1 may:
    (a) Take any marine mammal not specified inSec. 218.2(c);
    (b) Take any marine mammal specified inSec. 218.2(c) other than by 
incidental take as specified inSec. 218.2(c)(1) and (2);
    (c) Take a marine mammal specified inSec. 218.2(c) if such taking 
results in more than a negligible impact on the species or stocks of 
such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of this Subpart or a Letter of Authorization issued under 
Sec.  216.106 of this chapter andSec. 218.7.



Sec.  218.4  Mitigation.

    (a) When conducting training activities identified inSec. 
218.1(c), the mitigation measures contained in the Letter of 
Authorization issued underSec. 216.106 of this chapter andSec. 218.7 
must be implemented. These mitigation measures include, but are not 
limited to:
    (1) General Maritime Measures:
    (i) Personnel Training--Lookouts
    (A) All bridge personnel, Commanding Officers, Executive Officers, 
officers standing watch on the bridge, maritime patrol aircraft 
aircrews, and Mine Warfare (MIW) helicopter crews shall complete Marine 
Species Awareness Training (MSAT).
    (B) Navy lookouts shall undertake extensive training to qualify as a 
watchstander in accordance with the Lookout Training Handbook (NAVEDTRA 
12968-D).
    (C) Lookout training shall include on-the-job instruction under the 
supervision of a qualified, experienced watchstander. Following 
successful completion of this supervised training period, lookouts shall 
complete the Personal Qualification Standard Program, certifying that 
they have demonstrated the necessary skills (such as detection and 
reporting of partially submerged objects).
    (D) Lookouts shall be trained in the most effective means to ensure 
quick

[[Page 156]]

and effective communication within the command structure to facilitate 
implementation of protective measures if marine species are spotted.
    (E) Surface lookouts shall scan the water from the ship to the 
horizon and be responsible for all contacts in their sector. In 
searching the assigned sector, the lookout shall always start at the 
forward part of the sector and search aft (toward the back). To search 
and scan, the lookout shall hold the binoculars steady so the horizon is 
in the top third of the field of vision and direct the eyes just below 
the horizon. The lookout shall scan for approximately five seconds in as 
many small steps as possible across the field seen through the 
binoculars. They shall search the entire sector in approximately five-
degree steps, pausing between steps for approximately five seconds to 
scan the field of view. At the end of the sector search, the glasses 
shall be lowered to allow the eyes to rest for a few seconds, and then 
the lookout shall search back across the sector with the naked eye.
    (F) At night, lookouts shall scan the horizon in a series of 
movements that would allow their eyes to come to periodic rests as they 
scan the sector. When visually searching at night, they shall look a 
little to one side and out of the corners of their eyes, paying 
attention to the things on the outer edges of their field of vision. 
Lookouts shall also have night vision devices available for use.
    (ii) Operating Procedures and Collision Avoidance:
    (A) Prior to major exercises, a Letter of Instruction, Mitigation 
Measures Message or Environmental Annex to the Operational Order shall 
be issued to further disseminate the personnel training requirement and 
general marine species mitigation measures.
    (B) Commanding Officers shall make use of marine species detection 
cues and information to limit interaction with marine species to the 
maximum extent possible consistent with safety of the ship.
    (C) While underway, surface vessels shall have at least two lookouts 
with binoculars; surfaced submarines shall have at least one lookout 
with binoculars. Lookouts already posted for safety of navigation and 
man-overboard precautions may be used to fill this requirement. As part 
of their regular duties, lookouts shall watch for and report to the OOD 
the presence of marine mammals.
    (D) Personnel on lookout shall employ visual search procedures 
employing a scanning method in accordance with the Lookout Training 
Handbook (NAVEDTRA 12968-D).
    (E) After sunset and prior to sunrise, lookouts shall employ Night 
Lookouts Techniques in accordance with the Lookout Training Handbook 
(NAVEDTRA 12968-D).
    (F) While in transit, naval vessels shall be alert at all times, use 
extreme caution, and proceed at a ``safe speed'' so that the vessel can 
take proper and effective action to avoid a collision with any marine 
animal and can be stopped within a distance appropriate to the 
prevailing circumstances and conditions.
    (G) When whales have been sighted in the area, Navy vessels shall 
increase vigilance and implement measures to avoid collisions with 
marine mammals and avoid activities that might result in close 
interaction of naval assets and marine mammals. Such measures shall 
include changing speed and/or direction and would be dictated by 
environmental and other conditions (e.g., safety or weather).
    (H) Naval vessels shall maneuver to keep at least 500 yds (460 m) 
away from any observed whale and avoid approaching whales head-on. This 
requirement does not apply if a vessel's safety is threatened, such as 
when change of course will create an imminent and serious threat to a 
person, vessel, or aircraft, and to the extent vessels are restricted in 
their ability to maneuver. Vessels shall take reasonable steps to alert 
other vessels in the vicinity of the whale.
    (I) Where feasible and consistent with mission and safety, vessels 
shall avoid closing to within 200-yd (183 m) of marine mammals other 
than whales (whales addressed above).
    (J) Navy aircraft participating in exercises at sea shall conduct 
and maintain, when operationally feasible and safe, surveillance for 
marine species of concern as long as it does not violate

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safety constraints or interfere with the accomplishment of primary 
operational duties. Marine mammal detections shall be immediately 
reported to assigned Aircraft Control Unit for further dissemination to 
ships in the vicinity of the marine species as appropriate where it is 
reasonable to conclude that the course of the ship will likely result in 
a closing of the distance to the detected marine mammal.
    (K) All vessels shall maintain logs and records documenting training 
operations should they be required for event reconstruction purposes. 
Logs and records shall be kept for a period of 30 days following 
completion of a major training exercise.
    (2) Coordination and Reporting Requirements. (i) The Navy shall 
coordinate with the local NMFS Stranding Coordinator for any unusual 
marine mammal behavior and any stranding, beached live/dead, or floating 
marine mammals that may occur at any time during or within 24 hours 
after completion of training activities.
    (ii) The Navy shall follow internal chain of command reporting 
procedures as promulgated through Navy instructions and orders.
    (3) Mitigation Measures Applicable to Vessel Transit in the Mid-
Atlantic during North Atlantic Right Whale Migration: The mitigation 
measures apply to all Navy vessel transits, including those vessels that 
would transit to and from East Coast ports and the VACAPES Range 
Complex.
    (i) Mid-Atlantic, Offshore of the Eastern United States:
    (A) All Navy vessels are required to use extreme caution and operate 
at a slow, safe speed consistent with mission and safety (at a speed 
that does not compromise safety of navigation) during the months 
indicated below and within a 37 km (20 nm) arc (except as noted) of the 
specified associated reference points:
    (1) South and East of Block Island (37 km (20 NM) seaward of line 
between 41-4.49[deg] N. lat. 071-51.15[deg] W. long. and 41-18.58[deg] 
N. lat. 070-50.23[deg] W. long): Sept-Oct and Mar-Apr
    (2) New York/New Jersey (40-30.64[deg] N. lat. 073-57.76[deg] W. 
long.): Sep-Oct and Feb-Apr.
    (3) Delaware Bay (Philadelphia) (38-52.13[deg] N. lat. 075-1.93[deg] 
W. long.): Oct-Dec and Feb-Mar.
    (4) Chesapeake Bay (Hampton Roads and Baltimore) (37-1.11[deg] N. 
lat. 075-57.56[deg] W. long.): Nov-Dec and Feb-Apr.
    (5) North Carolina (34-41.54[deg] N. lat. 076-40.20[deg] W. long.): 
Dec-Apr.
    (6) South Carolina (33-11.84[deg] N. lat. 079-8.99[deg] W. long. and 
32-43.39[deg] N. lat. 079-48.72[deg] W. long.): Oct-Apr.
    (B) During the months indicated in paragraph (a)(3)(i)(A) of this 
section, Navy vessels shall practice increased vigilance with respect to 
avoidance of vessel-whale interactions along the mid-Atlantic coast, 
including transits to and from any mid-Atlantic ports not specifically 
identified in paragraph (a)(3)(i)(A) of this section.
    (C) All surface units transiting within 56 km (30 NM) of the coast 
in the mid-Atlantic shall ensure at least two watchstanders are posted, 
including at least one lookout who has completed required MSAT training.
    (D) Navy vessels shall not knowingly approach any whale head on and 
shall maneuver to keep at least 457 m (1,500 ft) away from any observed 
whale, consistent with vessel safety.
    (ii) Southeast Atlantic, Offshore of the Eastern United States--for 
the purposes of the measures below (paragraphs (a)(3)(ii)(A) & (B) of 
this section), the ``southeast'' encompasses sea space from Charleston, 
South Carolina, southward to Sebastian Inlet, Florida, and from the 
coast seaward to 148 km (80 NM) from shore. North Atlantic right whale 
critical habitat is the area from 31-15[deg] N. lat. to 30-15[deg] N. 
lat. extending from the coast out to 28 km (15 NM), and the area from 
28-00[deg] N. lat. to 30-15[deg] N. lat. from the coast out to 9 km (5 
NM). All mitigation measures described here that apply to the critical 
habitat apply from November 15-April 15 and also apply to an associated 
area of concern which extends 9 km (5 NM) seaward of the designated 
critical habitat boundaries.
    (A) Prior to transiting or training in the critical habitat or 
associated area of concern, ships shall contact Fleet Area Control and 
Surveillance Facility, Jacksonville, to obtain latest whale sighting and 
other information

[[Page 158]]

needed to make informed decisions regarding safe speed (the minimum 
speed at which mission goals or safety will not be compromised) and path 
of intended movement. Subs shall contact Commander, Submarine Group Ten 
for similar information.
    (B) The following specific mitigation measures apply to activities 
occurring within the North Atlantic right whale critical habitat and an 
associated area of concern which extends 9 km (5 NM) seaward of the 
designated critical habitat boundaries:
    (1) When transiting within the critical habitat or associated area 
of concern, vessels shall exercise extreme caution and proceed at a slow 
safe speed. The speed shall be the slowest safe speed that is consistent 
with mission, training and operations.
    (2) Speed reductions (adjustments) are required when a whale is 
sighted by a vessel or when the vessel is within 9 km (5 NM) of a 
reported new sighting less than 12 hours old. Circumstances could arise 
where, in order to avoid North Atlantic right whale(s), speed reductions 
could mean vessels must reduce speed to a minimum at which it can safely 
keep on course or vessels could come to an all stop.
    (3) Vessels shall avoid head-on approaches to North Atlantic right 
whale(s) and shall maneuver to maintain at least 457 m (500 yd) of 
separation from any observed whale if deemed safe to do so. These 
requirements do not apply if a vessel's safety is threatened, such as 
when a change of course would create an imminent and serious threat to a 
person, vessel, or aircraft, and to the extent vessels are restricted in 
the ability to maneuver.
    (4) During the North Atlantic right whale calving season, north-
south transits through the critical habitat are prohibited.
    (5) Ships, surfaced subs, and aircraft shall report any whale 
sightings to Fleet Area Control and Surveillance Facility, Jacksonville, 
by the quickest and most practicable means. The sighting report shall 
include the time, latitude/longitude, direction of movement and number 
and description of whale (i.e., adult/calf).
    (iii) Northeast Atlantic, Offshore of the Eastern United States:
    (A) Prior to transiting the Great South Channel or Cape Cod Bay 
critical habitat areas, ships shall obtain the latest North Atlantic 
right whale sightings and other information needed to make informed 
decisions regarding safe speed (the minimum speed at which mission goals 
or safety will not be compromised). The Great South Channel critical 
habitat is defined by the following coordinates: 41-00[deg] N. lat., 69-
05[deg] W. long.; 41-45[deg] N. lat, 69-45[deg] W. long; 42-10[deg] N. 
lat., 68-31[deg] W. long.; 41-38[deg] N. lat., 68-13[deg] W. long. The 
Cape Cod Bay critical habitat is defined by the following coordinates: 
42-04.8[deg] N. lat., 70-10[deg] W. long.; 42-12[deg] N. lat., 70-
15[deg] W. long.; 42-12[deg] N. lat., 70-30[deg] W. long.; 41-46.8[deg] 
N. lat., 70-30[deg] W. long.
    (B) Ships, surfaced subs, and aircraft shall report any North 
Atlantic right whale sightings (if the whale is identifiable as a right 
whale) off the northeastern U.S. to Patrol and Reconnaissance Wing 
(COMPATRECONWING). The report shall include the time of sighting, lat/
long, direction of movement (if apparent) and number and description of 
the whale(s).
    (C) Vessels or aircraft that observe whale carcasses shall record 
the location and time of the sighting and report this information as 
soon as possible to the cognizant regional environmental coordinator. 
All whale strikes must be reported. This report shall include the date, 
time, and location of the strike; vessel course and speed; operations 
being conducted by the vessel; weather conditions, visibility, and sea 
state; description of the whale; narrative of incident; and indication 
of whether photos/videos were taken. Navy personnel are encouraged to 
take photos whenever possible.
    (D) Specific mitigation measures related to activities occurring 
within the critical habitat include the following:
    (1) Vessels shall avoid head-on approaches to North Atlantic right 
whale(s) and shall maneuver to maintain at least 457 m (500 yd) of 
separation from any observed whale if deemed safe to do so. These 
requirements do not apply if a vessel's safety is threatened, such as 
when change of course would create an imminent and serious threat to 
person, vessel, or aircraft,

[[Page 159]]

and to the extent vessels are restricted in the ability to maneuver.
    (2) When transiting within the critical habitat or associated area 
of concern, vessels shall use extreme caution and operate at a safe 
speed (the minimum speed at which mission goals or safety will not be 
compromised) so as to be able to avoid collisions with North Atlantic 
right whales and other marine mammals, and stop within a distance 
appropriate to the circumstances and conditions.
    (3) Speed reductions (adjustments) are required when a whale is 
sighted by a vessel or when the vessel is within 9 km (5 NM) of a 
reported new sighting less than one week old.
    (4) Ships transiting in the Cape Cod Bay and Great South Channel 
critical habitats shall obtain information on recent whale sightings in 
the vicinity of the critical habitat. Any vessel operating in the 
vicinity of a North Atlantic right whale shall consider additional speed 
reductions per Rule 6 of International Navigational Rules.
    (4) Mitigation Measures for Specific At-sea Training Events--If a 
marine mammal is killed as a result of the proposed Navy training 
activities (e.g., instances in which it is clear that munitions 
explosions caused the death), the Navy shall suspend its activities 
immediately and report the incident to NMFS.
    (i) Firing Exercise (FIREX) Using the Integrated Maritime Portable 
Acoustic Scoring System (IMPASS) (5-in. Explosive Rounds):
    (A) FIREX using IMPASS would only be conducted in the four 
designated areas specified in the Navy's LOA application in the VACAPES 
Range Complex.
    (B) Pre-exercise monitoring of the target area shall be conducted 
with ``Big Eyes'' prior to the event, during deployment of the IMPASS 
sonobuoy array, and during return to the firing position. Ships shall be 
required to maintain a lookout dedicated to visually searching for 
marine mammals 180[deg] along the ship track line and 360[deg] at each 
buoy drop-off location.
    (C) ``Big Eyes'' on the ship shall be used to monitor a 600 yd (548 
m) buffer zone around the target area for marine mammals during naval-
gunfire events.
    (D) Ships shall not fire on the target if any marine mammals are 
detected within or approaching the 600 yd (548 m) buffer zone until the 
area is cleared. If marine mammals are present, operations shall be 
suspended. Visual observation shall occur for approximately 45 minutes, 
or until the animal has been observed to have cleared the area and is 
heading away from the buffer zone.
    (E) Post-exercise monitoring of the entire target area shall take 
place with ``Big Eyes'' and the naked eye during the retrieval of the 
IMPASS sonobuoy array following each firing exercise.
    (F) FIREX with IMPASS shall take place during daylight hours only.
    (G) FIREX with IMPASS shall only be used in Beaufort Sea State three 
(3) or less.
    (H) The visibility must be such that the fall of shot is visible 
from the firing ship during the exercise.
    (I) No firing shall occur if marine mammals are detected within 70 
yd (64 m) of the vessel.
    (ii) Air-to-Surface At-Sea Bombing Exercises (250-lbs to 2,000-lbs 
explosive bombs):
    (A) Aircraft shall visually survey the target and buffer zone for 
marine mammals prior to and during the exercise. The survey of the 
impact area shall be made by flying at 1,500 ft (457 m) altitude or 
lower, if safe to do so, and at the slowest safe speed.
    (B) A buffer zone of 5,100-yd (4,663 m) radius shall be established 
around the intended target zone. The exercises shall be conducted only 
when marine mammals are observed to be outside the buffer zone.
    (C) At-sea BOMBEXs using live ordnance shall occur during daylight 
hours only.
    (iii) Air-to-Surface Missile Exercises (Explosive):
    (A) Aircraft shall initially survey the intended ordnance impact 
area for marine mammals.
    (B) During the actual firing of the weapon, the aircraft involved 
must be able to observe the intended ordnance impact area to ensure the 
area is free of marine mammal transiting the range.
    (C) Visual inspection of the target area shall be made by flying at 
1,500 ft

[[Page 160]]

(457 m) altitude or lower, if safe to do so, and at slowest safe speed.
    (D) Explosive ordnance shall not be targeted to impact within 1,800 
yd (1,646 m) of sighted marine mammals.
    (iv) Mine Neutralization Training Involving Underwater Detonations 
(up to 20-lb charges):
    (A) This activity shall only occur in W-50 of the VACAPES Range 
Complex.
    (B) Observers shall survey the Zone of Influence (ZOI), a 700 yd 
(640 m) radius from detonation location for marine mammals from all 
participating vessels during the entire operation. A survey of the ZOI 
(minimum of 3 parallel tracklines 219 yd [200 m] apart) using support 
craft shall be conducted at the detonation location 30 minutes prior 
through 30 minutes post detonation. Aerial survey support shall be 
utilized whenever assets are available.
    (C) Detonation operations shall be conducted during daylight hours 
only.
    (D) If a marine mammal is sighted within the ZOI, the animal shall 
be allowed to leave of its own volition. The Navy shall suspend 
detonation exercises and ensure the area is clear of marine mammals for 
a full 30 minutes prior to detonation.
    (E) Divers placing the charges on mines and dive support vessel 
personnel shall survey the area for marine mammals and shall report any 
sightings to the surface observers. These animals shall be allowed to 
leave of their own volition and the ZOI shall be clear of marine mammals 
for 30 minutes prior to detonation.
    (F) No detonations shall take place within 3.2 nm (6 km) of an 
estuarine inlet (Chesapeake Bay Inlets).
    (G) No detonations shall take place within 1.6 nm (3 km) of 
shoreline.
    (H) Personnel shall record any protected species observations during 
the exercise as well as measures taken if species are detected within 
the ZOI.
    (b) [Reserved]



Sec.  218.5  Requirements for monitoring and reporting.

    (a) The Holder of the Letter of Authorization issued pursuant to 
Sec.  216.106 of this chapter andSec. 218.7 for activities described 
inSec. 218.1(c) is required to cooperate with the NMFS when monitoring 
the impacts of the activity on marine mammals.
    (b) The Holder of the Authorization must notify NMFS immediately (or 
as soon as clearance procedures allow) if the specified activity 
identified inSec. 218.1(c) is thought to have resulted in the 
mortality or serious injury of any marine mammals, or in any take of 
marine mammals not identified inSec. 218.2(c).
    (c) The Navy must conduct all monitoring and required reporting 
under the Letter of Authorization, including abiding by the VACAPES 
Range Complex Monitoring Plan, which is incorporated herein by 
reference, and which requires the Navy to implement, at a minimum, the 
monitoring activities summarized below.
    (1) Vessel or aerial surveys. (i) The Holder of this Authorization 
shall visually survey a minimum of 2 explosive events per year, one of 
which shall be a multiple detonation event. One of the vessel or aerial 
surveys should involve professionally trained marine mammal observers 
(MMOs).
    (ii) Where operationally feasible, for specified training events, 
aerial or vessel surveys shall be used 1-2 days prior to, during (if 
reasonably safe), and 1-5 days post detonation.
    (iii) Surveys shall include any specified exclusion zone around a 
particular detonation point plus 2,000 yards beyond the border of the 
exclusion zone (i.e., the circumference of the area from the border of 
the exclusion zone extending 2,000 yards outwards). For vessel based 
surveys a passive acoustic system (hydrophone or towed array) could be 
used to determine if marine mammals are in the area before and/or after 
a detonation event.
    (iv) When conducting a particular survey, the survey team shall 
collect:
    (A) Location of sighting;
    (B) Species (if not possible, indicate whale, dolphin or pinniped);
    (C) Number of individuals;
    (D) Whether calves were observed;
    (E) Initial detection sensor;
    (F) Length of time observers maintained visual contact with marine 
mammal;
    (G) Wave height;
    (H) Visibility;

[[Page 161]]

    (I) Whether sighting was before, during, or after detonations/
exercise, and how many minutes before or after;
    (J) Distance of marine mammal from actual detonations (or target 
spot if not yet detonated);
    (K) Observed behavior--Watchstanders shall report, in plain language 
and without trying to categorize in any way, the observed behavior of 
the animal(s) (such as animal closing to bow ride, paralleling course/
speed, floating on surface and not swimming etc.), including speed and 
direction;
    (L) Resulting mitigation implementation--Indicate whether explosive 
detonations were delayed, ceased, modified, or not modified due to 
marine mammal presence and for how long; and
    (M) If observation occurs while explosives are detonating in the 
water, indicate munition type in use at time of marine mammal detection.
    (2) Passive acoustic monitoring--the Navy shall conduct passive 
acoustic monitoring when operationally feasible.
    (i) Any time a towed hydrophone array is employed during shipboard 
surveys the towed array shall be deployed during daylight hours for each 
of the days the ship is at sea.
    (ii) The towed hydrophone array shall be used to supplement the 
ship-based systematic line-transect surveys (particularly for species 
such as beaked whales that are rarely seen).
    (iii) The array shall have the capability of detecting low frequency 
vocalizations (<1,000 Hz) for baleen whales and relatively high 
frequency (up to 30 kHz) for odontocetes. The use of two simultaneously 
deployed arrays can also allow more accurate localization and 
determination of diving patterns.
    (3) Marine mammal observers on Navy platforms. (i) As required in 
Sec.  218.5(c)(1), MMOs selected for aerial or vessel survey shall be 
placed on a Navy platform during one of the explosive exercises being 
monitored per year, the other designated exercise shall be monitored by 
the Navy lookouts/watchstanders.
    (ii) The MMO must possess expertise in species identification of 
regional marine mammal species and experience collecting behavioral 
data.
    (iii) MMOs shall not be placed aboard Navy platforms for every Navy 
training event or major exercise, but during specifically identified 
opportunities deemed appropriate for data collection efforts. The events 
selected for MMO participation shall take into account safety, 
logistics, and operational concerns.
    (iv) MMOs shall observe from the same height above water as the 
lookouts.
    (v) The MMOs shall not be part of the Navy's formal reporting chain 
of command during their data collection efforts; Navy lookouts shall 
continue to serve as the primary reporting means within the Navy chain 
of command for marine mammal sightings. The only exception is that if an 
animal is observed within the shutdown zone that has not been observed 
by the lookout, the MMO shall inform the lookout of the sighting and the 
lookout shall take the appropriate action through the chain of command.
    (vi) The MMOs shall collect species identification, behavior, 
direction of travel relative to the Navy platform, and distance first 
observed. Information collected by MMOs be the same as those collected 
by Navy lookout/watchstanders described inSec. 218.5(c)(1)(iv).
    (d) The Navy shall complete an Integrated Comprehensive Monitoring 
Program (ICMP) Plan in 2009. This planning and adaptive management tool 
shall include:
    (1) A method for prioritizing monitoring projects that clearly 
describes the characteristics of a proposal that factor into its 
priority.
    (2) A method for annually reviewing, with NMFS, monitoring results, 
Navy R&D, and current science to use for potential modification of 
mitigation or monitoring methods.
    (3) A detailed description of the Monitoring Workshop to be convened 
in 2011 and how and when Navy/NMFS will subsequently utilize the 
findings of the Monitoring Workshop to potentially modify subsequent 
monitoring and mitigation.
    (4) An adaptive management plan.

[[Page 162]]

    (5) A method for standardizing data collection for VACAPES Range 
Complex and across range complexes.
    (e) General Notification of Injured or Dead Marine Mammals--Navy 
personnel shall ensure that NMFS (regional stranding coordinator) is 
notified immediately (or as soon as clearance procedures allow) if an 
injured or dead marine mammal is found during or shortly after, and in 
the vicinity of, any Navy training exercise utilizing underwater 
explosive detonations. The Navy shall provide NMFS with species or 
description of the animal(s), the condition of the animal(s) (including 
carcass condition if the animal is dead), location, time of first 
discovery, observed behaviors (if alive), and photo or video (if 
available).
    (f) Annual VACAPES Range Complex Monitoring Plan Report--The Navy 
shall submit a report annually on March 1 describing the implementation 
and results (through January 1 of the same year) of the VACAPES Range 
Complex Monitoring Plan. Data collection methods shall be standardized 
across range complexes to allow for comparison in different geographic 
locations. Although additional information will also be gathered, the 
MMOs collecting marine mammal data pursuant to the VACAPES Range Complex 
Monitoring Plan shall, at a minimum, provide the same marine mammal 
observation data required in the data required inSec. 218.5(g). The 
VACAPES Range Complex Monitoring Plan Report may be provided to NMFS 
within a larger report that includes the required Monitoring Plan 
Reports from VACAPES Range Complex and multiple range complexes.
    (g) Annual VACAPES Range Complex Exercise Report--The Navy shall 
provide the information described below for all of their explosive 
exercises. Until the Navy is able to report in full the information 
below, they shall provide an annual update on the Navy's explosive 
tracking methods, including improvements from the previous year.
    (1) Total annual number of each type of explosive exercise (of those 
identified as part of the ``specified activity'' in this final rule) 
conducted in the VACAPES Range Complex.
    (2) Total annual expended/detonated rounds (missiles, bombs, etc.) 
for each explosive type.
    (h) VACAPES Range Complex 5-yr Comprehensive Report--The Navy shall 
submit to NMFS a draft report that analyzes and summarizes all of the 
multi-year marine mammal information gathered during the VACAPES Range 
Complex exercises for which annual reports are required (Annual VACAPES 
Range Complex Exercise Reports and VACAPES Range Complex Monitoring Plan 
Reports). This report shall be submitted at the end of the fourth year 
of the rule (May 2013), covering activities that have occurred through 
December 1, 2012.
    (i) The Navy shall respond to NMFS' comments and requests for 
additional information or clarification on the VACAPES Range Complex 
Comprehensive Report, the Annual VACAPES Range Complex Exercise Report, 
or the Annual VACAPES Range Complex Monitoring Plan Report (or the 
multi-Range Complex Annual Monitoring Plan Report, if that is how the 
Navy chooses to submit the information) if submitted within 3 months of 
receipt. These reports shall be considered final after the Navy has 
addressed NMFS' comments or provided the requested information, or three 
months after the submittal of the draft if NMFS does not comment by 
then.
    (j) In 2011, the Navy shall convene a Monitoring Workshop in which 
the Monitoring Workshop participants will be asked to review the Navy's 
Monitoring Plans and monitoring results and make individual 
recommendations (to the Navy and NMFS) of ways of improving the 
Monitoring Plans. The recommendations shall be reviewed by the Navy, in 
consultation with NMFS, and modifications to the Monitoring Plan shall 
be made, as appropriate.



Sec.  218.6  Applications for Letters of Authorization.

    To incidentally take marine mammals pursuant to these regulations in 
this subpart, the U.S. citizen (as defined bySec. 216.103) conducting 
the activity identified inSec. 218.1(c) (the U.S. Navy) must apply for 
and obtain either an initial Letter of Authorization in

[[Page 163]]

accordance withSec. 218.7 or a renewal underSec. 218.8.



Sec.  218.7  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the periods of validity of this 
subpart, but may be renewed or modified sooner subject to the renewal 
conditions inSec. 218.8 and the modification conditions inSec. 
218.9.
    (b) Each Letter of Authorization will set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable 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 Letter 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 affected species or stock of marine mammal(s).

[74 FR 28343, June 15, 2009, as amended at 77 FR 4922, Feb. 1, 2012]



Sec.  218.8  Renewal of Letters of Authorization and adaptive
management.

    (a) A Letter of Authorization issued underSec. 216.106 of this 
chapter andSec. 218.7 for the activity identified inSec. 218.1(c) 
may be renewed upon:
    (1) Notification to NMFS that the activity described in the 
application submitted underSec. 218.6 will be undertaken and that 
there will not be a substantial modification to the desired work, 
mitigation, or monitoring undertaken during the upcoming period of 
validity;
    (2) Timely receipt of the monitoring reports required underSec. 
218.5(c) through (i); and
    (3) A determination by NMFS that the mitigation, monitoring and 
reporting measures required underSec. 218.4 and the Letter of 
Authorization issued underSec. 216.106 of this chapter andSec. 
218.7, were undertaken and will be undertaken during the upcoming period 
of validity of a renewed Letter of Authorization.
    (b) If a request for a renewal of a Letter of Authorization issued 
underSec. 216.106 of this chapter andSec. 218.8 indicates that a 
substantial modification 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. Review 
and comment on renewals of Letters of Authorization 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 changes to the mitigation and monitoring requirements 
contained 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 Register.
    (d) NMFS, in response to new information and in consultation with 
the Navy, may modify the mitigation or monitoring measures in subsequent 
LOAs if doing so creates a reasonable likelihood of more effectively 
accomplishing the goals of mitigation 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 decision to modify the mitigation 
or monitoring measures:
    (1) Results from the Navy's monitoring from the previous year 
(either from VACAPES Range Complex or other locations).
    (2) Findings of the Monitoring Workshop that the Navy will convene 
in 2011 (Sec.  218.5(j)).
    (3) Compiled results of Navy funded research and development (R&D) 
studies (presented pursuant to the ICMP (Sec.  218.5(d)).
    (4) Results from specific stranding investigations (either from the 
VACAPE Range Complex Study Area or other locations, and involving 
coincident explosives training or not involving coincident use).
    (5) Results from general marine mammal and sound research (funded by 
the Navy or otherwise).
    (6) Any information which reveals that marine mammals may have been 
taken in a manner, extent or number

[[Page 164]]

not authorized by these regulations or subsequent Letters of 
Authorization.

[74 FR 28343, June 15, 2009, as amended at 77 FR 4923, Feb. 1, 2012]



Sec.  218.9  Modifications to Letters of Authorization.

    (a) Except as provided in paragraph (b) of this section, no 
substantive modification (including withdrawal or suspension) to the 
Letter of Authorization by NMFS, issued pursuant toSec. 216.106 of 
this chapter andSec. 218.7 and subject to the provisions of this 
subpart shall be made until after notification and an opportunity for 
public comment has been provided. For purposes of this paragraph, a 
renewal of a Letter of Authorization underSec. 218.8, without 
modification (except for the period of validity), is not considered a 
substantive modification.
    (b) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species or 
stocks of marine mammals specified inSec. 218.2(c), a Letter of 
Authorization issued pursuant toSec. 216.106 of this chapter andSec. 
218.7 may be substantively modified without prior notification and an 
opportunity for public comment. Notification will be published in the 
Federal Register within 30 days subsequent to the action.



Subpart B_Taking Marine Mammals Incidental to U.S. Navy Training in the 
             Jacksonville Range Complex (JAX Range Complex)

    Source: 74 FR 28365, June 15, 2009, unless otherwise noted.



Sec.  218.10  Specified activity and specified geographical area
and effective dates.

    (a) Regulations in this subpart apply only to the U.S. Navy for the 
taking of marine mammals that occurs in the area outlined in paragraph 
(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 Navy is only authorized if 
it occurs within the JAX Range Complex Operation Areas (OPAREAs), which 
are located along the southern east coast of the U.S. The two principal 
OPAREAs within the JAX Study Area are the Jacksonville OPAREA and the 
Charleston OPAREA (sometimes referred to collectively as the JAX/CHASN 
OPAREA, or simply the OPAREA). The northernmost point of the JAX/CHASN 
OPAREA is located just north of Wilmington, North Carolina 
(34[deg]37[min] N) in waters less than 20 m (65.6 ft) deep, while the 
easternmost boundary lies 281 nm (518.6 km) offshore of Jacksonville, 
Florida (77[deg]00[min] W in waters with a bottom depth of nearly 2,000 
m [1.243 mi]).
    (c) The taking of marine mammals by the Navy is only authorized if 
it occurs incidental to the following activities:
    (1) The use of the explosive munitions, or similar explosive types, 
indicated in paragraph (c)(1)(i) of this section conducted as part of 
the Navy training events, or similar training events, indicated in 
paragraph (c)(1)(ii) of this section:
    (i) Underwater Explosives:
    (A) AGM-114 (Hellfire missile);
    (B) AGM-65 E/F (Maverick missile);
    (C) Mine Neutralization (20 lb NEW charges);
    (D) 5[sec] Naval Gunfire;
    (E) MK3A2 anti-swimmer concussion grenades.
    (ii) Training Events:
    (A) Mine Neutralization (20 lb NEW charges)--up to 60 exercises over 
the course of 5 years (an average of 12 per year);
    (B) Missile Exercise (MISSILEX) (Air-to-Surface; Hellfire missile)--
up to 350 exercises over the course of 5 years (an average of 70 per 
year);
    (C) Missile Exercise (MISSILEX) (Air-to-Surface; Maverick)--up to 15 
exercises over the course of 5 years (an average of 3 per year);
    (D) FIREX with IMPASS--up to 50 exercises over the course of 5 years 
(an average of 10 per year); and
    (E) Small Arms Training with MK3A2 anti-swimmer concussion grenade 
(0.5 lbs NEW)--up to 400 grenades over the course of 5 years (an average 
of 80 HE grenades used per year).
    (2) [Reserved]

[[Page 165]]

    (d) Amended regulations are effective February 1, 2012, through June 
4, 2016.
    (e) The taking of marine mammals may be authorized in an LOA for the 
explosive types and activities, or similar explosives and activities, 
listed inSec. 218.10(c) should the amounts (e.g., number of exercises) 
vary from those estimated inSec. 218.10(c), provided that the 
variation does not result in exceeding the amount of take indicated in 
Sec.  218.11(c).

[74 FR 28365, June 15, 2009, as amended at 76 FR 30554, May 264, 2011; 
77 FR 4923, Feb. 1, 2012]



Sec.  218.11  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec.Sec. 
216.106 of this chapter and 218.16, the Holder of the Letter of 
Authorization may incidentally, but not intentionally, take marine 
mammals within the area described inSec. 218.10(b), 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 inSec. 218.10(c) must be conducted 
in a manner that minimizes, to the greatest extent practicable, any 
adverse impacts on marine mammals and their habitat.
    (c) The incidental take of marine mammals under the activities 
identified inSec. 218.10(c) is limited to the following species, by 
the indicated method of take and the indicated number of times:
    (1) Level B Harassment:
    (i) Bottlenose dolphin (Tursiops truncatus)--150 (an average of 30 
annually);
    (ii) Pantropical spotted dolphin (Stenella attenuata)--100 (an 
average of 20 annually);
    (iii) Clymene dolphin (S. clymene)--100 (an average of 20 annually);
    (iv) Atlantic spotted dolphin (S. frontalis)--310 (an average of 62 
annually);
    (v) Striped dolphin (S. coeruleoalba)--100 (an average of 20 
annually);
    (vi) Risso's dolphin (Grampus griseus)--150 (an average of 30 
annually);
    (vii) Common dolphin (Delphinus delphis)--150 (an average of 30 
annually);
    (viii) Pilot whales (Globicephala sp.)--100 (an average of 20 
annually);
    (ix) Dwarf or pygmy sperm whales (Kogia sp.)--15 (an average of 3 
annually);
    (x) Beaked whales--100 (an average of 20 annually);
    (xi) Minke whales (Balaenoptera acutorostrata)--15 (an average of 3 
annually).
    (2) Level A Harassment (injury):
    (i) Atlantic spotted dolphin--10 (an average of 2 annually).
    (ii) [Reserved]



Sec.  218.12  Prohibitions.

    Notwithstanding takings contemplated inSec. 218.11 and authorized 
by a Letter of Authorization issued underSec. 216.106 of this chapter 
andSec. 218.16, no person in connection with the activities described 
inSec. 218.10 may:
    (a) Take any marine mammal not specified inSec. 218.11(c);
    (b) Take any marine mammal specified inSec. 218.11(c) other than 
by incidental take as specified inSec. 218.11(c)(1) and (2);
    (c) Take a marine mammal specified inSec. 218.11(c) if such taking 
results in more than a negligible impact on the species or stocks of 
such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of this Subpart or a Letter of Authorization issued under 
Sec.  216.106 of this chapter andSec. 218.16.



Sec.  218.13  Mitigation.

    (a) When conducting training activities identified inSec. 
218.10(c), the mitigation measures contained in the Letter of 
Authorization issued underSec. 216.106 of this chapter andSec. 
218.16 must be implemented. These mitigation measures include, but are 
not limited to:
    (1) General Maritime Measures:
    (i) Personnel Training--Lookouts:
    (A) All bridge personnel, Commanding Officers, Executive Officers, 
officers standing watch on the bridge, maritime patrol aircraft 
aircrews, and Mine Warfare (MIW) helicopter crews shall complete Marine 
Species Awareness Training (MSAT).
    (B) Navy lookouts shall undertake extensive training to qualify as a 
watchstander in accordance with the

[[Page 166]]

Lookout Training Handbook (NAVEDTRA 12968-D).
    (C) Lookout training shall include on-the-job instruction under the 
supervision of a qualified, experienced watchstander. Following 
successful completion of this supervised training period, lookouts shall 
complete the Personal Qualification Standard Program, certifying that 
they have demonstrated the necessary skills (such as detection and 
reporting of partially submerged objects).
    (D) Lookouts shall be trained in the most effective means to ensure 
quick and effective communication within the command structure to 
facilitate implementation of protective measures if marine species are 
spotted.
    (E) Surface lookouts shall scan the water from the ship to the 
horizon and be responsible for all contacts in their sector. In 
searching the assigned sector, the lookout shall always start at the 
forward part of the sector and search aft (toward the back). To search 
and scan, the lookout shall hold the binoculars steady so the horizon is 
in the top third of the field of vision and direct the eyes just below 
the horizon. The lookout shall scan for approximately five seconds in as 
many small steps as possible across the field seen through the 
binoculars. They shall search the entire sector in approximately five-
degree steps, pausing between steps for approximately five seconds to 
scan the field of view. At the end of the sector search, the glasses 
shall be lowered to allow the eyes to rest for a few seconds, and then 
the lookout shall search back across the sector with the naked eye.
    (F) At night, lookouts shall scan the horizon in a series of 
movements that would allow their eyes to come to periodic rests as they 
scan the sector. When visually searching at night, they shall look a 
little to one side and out of the corners of their eyes, paying 
attention to the things on the outer edges of their field of vision. 
Lookouts shall also have night vision devices available for use.
    (ii) Operating Procedures & Collision Avoidance:
    (A) Prior to major exercises, a Letter of Instruction, Mitigation 
Measures Message or Environmental Annex to the Operational Order shall 
be issued to further disseminate the personnel training requirement and 
general marine species mitigation measures.
    (B) Commanding Officers shall make use of marine species detection 
cues and information to limit interaction with marine species to the 
maximum extent possible consistent with safety of the ship.
    (C) While underway, surface vessels shall have at least two lookouts 
with binoculars; surfaced submarines shall have at least one lookout 
with binoculars. Lookouts already posted for safety of navigation and 
man-overboard precautions may be used to fill this requirement. As part 
of their regular duties, lookouts shall watch for and report to the OOD 
the presence of marine mammals.
    (D) Personnel on lookout shall employ visual search procedures 
employing a scanning method in accordance with the Lookout Training 
Handbook (NAVEDTRA 12968-D).
    (E) After sunset and prior to sunrise, lookouts shall employ Night 
Lookouts Techniques in accordance with the Lookout Training Handbook 
(NAVEDTRA 12968-D).
    (F) While in transit, naval vessels shall be alert at all times, use 
extreme caution, and proceed at a ``safe speed'' (the minimum speed at 
which mission goals or safety will not be compromised) so that the 
vessel can take proper and effective action to avoid a collision with 
any marine animal and can be stopped within a distance appropriate to 
the prevailing circumstances and conditions.
    (G) When marine mammals have been sighted in the area, Navy vessels 
shall increase vigilance and implement measures to avoid collisions with 
marine mammals and avoid activities that might result in close 
interaction of naval assets and marine mammals. Such measures shall 
include changing speed and/or course direction and would be dictated by 
environmental and other conditions (e.g., safety or weather).
    (H) Naval vessels shall maneuver to keep at least 500 yds (460 m) 
away from any observed whale and avoid approaching whales head-on. This 
requirement does not apply if a vessel's

[[Page 167]]

safety is threatened, such as when change of course will create an 
imminent and serious threat to a person, vessel, or aircraft, and to the 
extent vessels are restricted in their ability to maneuver. Vessels 
shall take reasonable steps to alert other vessels in the vicinity of 
the whale.
    (I) Where feasible and consistent with mission and safety, vessels 
shall avoid closing to within 200 yds (183 m) of marine mammals other 
than whales (whales addressed above).
    (J) Navy aircraft participating in exercises at sea shall conduct 
and maintain, when operationally feasible and safe, surveillance for 
marine species of concern as long as it does not violate safety 
constraints or interfere with the accomplishment of primary operational 
duties. Marine mammal detections shall be immediately reported to 
assigned Aircraft Control Unit for further dissemination to ships in the 
vicinity of the marine species as appropriate where it is reasonable to 
conclude that the course of the ship will likely result in a closing of 
the distance to the detected marine mammal.
    (K) All vessels shall maintain logs and records documenting training 
operations should they be required for event reconstruction purposes. 
Logs and records shall be kept for a period of 30 days following 
completion of a major training exercise.
    (2) Coordination and Reporting Requirements:
    (i) The Navy shall coordinate with the local NMFS Stranding 
Coordinator for any unusual marine mammal behavior and any stranding, 
beached live/dead, or floating marine mammals that may occur at any time 
during or within 24 hours after completion of training activities.
    (ii) The Navy shall follow internal chain of command reporting 
procedures as promulgated through Navy instructions and orders.
    (3) Mitigation Measures Applicable to Vessel Transit in the Mid-
Atlantic during North Atlantic Right Whale Migration: The mitigation 
measures apply to all Navy vessel transits, including those vessels that 
would transit to and from East Coast ports and the JAX Range Complex 
OPAREA.
    (i) Mid-Atlantic, Offshore of the Eastern United States:
    (A) All Navy vessels are required to use extreme caution and operate 
at a slow, safe speed consistent with mission and safety during the 
months indicated below and within a 37 km (20 nm) arc (except as noted) 
of the specified associated reference points:
    (1) South and East of Block Island (37 km (20 NM) seaward of line 
between 41-4.49[deg] N. lat. 071-51.15[deg] W. long. and 41-18.58[deg] 
N. lat. 070-50.23[deg] W. long): Sept-Oct and Mar-Apr
    (2) New York/New Jersey (40-30.64[deg] N. lat. 073-57.76[deg] W. 
long.): Sep-Oct and Feb-Apr.
    (3) Delaware Bay (Philadelphia) (38-52.13[deg] N. lat. 075-1.93[deg] 
W. long.): Oct-Dec and Feb-Mar.
    (4) Chesapeake Bay (Hampton Roads and Baltimore) (37-1.11[deg] N. 
lat. 075-57.56[deg] W. long.): Nov-Dec and Feb-Apr.
    (5) North Carolina (34-41.54[deg] N. lat. 076-40.20[deg] W. long.): 
Dec-Apr
    (6) South Carolina (33-11.84[deg] N. lat. 079-8.99[deg] W. long. and 
32-43.39[deg] N. lat. 079-48.72[deg] W. long.): Oct-Apr
    (B) During the months indicated in paragraph (a)(3)(i)(A) of this 
section, Navy vessels shall practice increased vigilance with respect to 
avoidance of vessel-whale interactions along the mid-Atlantic coast, 
including transits to and from any mid-Atlantic ports not specifically 
identified in paragraph (a)(3)(i)(A) of this section.
    (C) All surface units transiting within 56 km (30 NM) of the coast 
in the mid-Atlantic shall ensure at least two watchstanders are posted, 
including at least one lookout who has completed required MSAT training.
    (D) Navy vessels shall not knowingly approach any whale head on and 
shall maneuver to keep at least 457 m (1,500 ft) away from any observed 
whale, consistent with vessel safety.
    (ii) Southeast Atlantic, Offshore of the Eastern United States--for 
the purposes of the measures below (paragraphs (a)(3)(ii)(A) & (B) of 
this section), the ``southeast'' encompasses sea space from Charleston, 
South Carolina, southward to Sebastian Inlet, Florida, and from the 
coast seaward to 148 km (80 NM) from shore. North Atlantic right whale 
critical habitat is the area

[[Page 168]]

from 31-15[deg] N. lat. to 30-15[deg] N. lat. extending from the coast 
out to 28 km (15 NM), and the area from 28-00[deg] N. lat. to 30-15[deg] 
N. lat. from the coast out to 9 km (5 NM). All mitigation measures 
described here that apply to the critical habitat apply from November 
15--April 15 and also apply to an associated area of concern which 
extends 9 km (5 NM) seaward of the designated critical habitat 
boundaries.
    (A) Prior to transiting or training in the critical habitat or 
associated area of concern, ships shall contact Fleet Area Control and 
Surveillance Facility, Jacksonville, to obtain latest whale sighting and 
other information needed to make informed decisions regarding safe speed 
(the minimum speed at which mission goals or safety will not be 
compromised) and path of intended movement. Subs shall contact 
Commander, Submarine Group Ten for similar information.
    (B) The following specific mitigation measures apply to activities 
occurring within the North Atlantic right whale critical habitat and an 
associated area of concern which extends 9 km (5 NM) seaward of the 
designated critical habitat boundaries:
    (1) When transiting within the critical habitat or associated area 
of concern, vessels shall exercise extreme caution and proceed at a slow 
safe speed. The speed shall be the slowest safe speed that is consistent 
with mission, training and operations.
    (2) Speed reductions (adjustments) are required when a whale is 
sighted by a vessel or when the vessel is within 9 km (5 NM) of a 
reported new sighting less than 12 hours old. Circumstances could arise 
where, in order to avoid North Atlantic right whale(s), speed reductions 
could mean vessels must reduce speed to a minimum at which it can safely 
keep on course or vessels could come to an all stop.
    (3) Vessels shall avoid head-on approaches to North Atlantic right 
whale(s) and shall maneuver to maintain at least 457 m (500 yd) of 
separation from any observed whale if deemed safe to do so. These 
requirements do not apply if a vessel's safety is threatened, such as 
when a change of course would create an imminent and serious threat to a 
person, vessel, or aircraft, and to the extent vessels are restricted in 
the ability to maneuver.
    (4) During the North Atlantic right whale calving season, north-
south transits through the critical habitat are prohibited, except for 
Precision Anchoring drills and the Shipboard Electronic System 
Evaluation Facility range that necessarily operate at slow, safe speed.
    (5) Ships, surfaced subs, and aircraft shall report any whale 
sightings to Fleet Area Control and Surveillance Facility, Jacksonville, 
by the quickest and most practicable means. The sighting report shall 
include the time, latitude/longitude, direction of movement and number 
and description of whale (i.e., adult/calf).
    (6) Naval vessel operations in the North Atlantic right whale 
critical habitat and AAOC during the calving season shall be undertaken 
during daylight and periods of good visibility, to the extent 
practicable and consistent with mission, training, and operation. When 
operating in the critical habitat and AAOC at night or during periods of 
poor visibility, vessels shall operate as if in the vicinity of a 
recently reported NARW sighting.
    (iii) Northeast Atlantic, Offshore of the Eastern United States:
    (A) Prior to transiting the Great South Channel or Cape Cod Bay 
critical habitat areas, ships shall obtain the latest North Atlantic 
right whale sightings and other information needed to make informed 
decisions regarding safe speed (the minimum speed at which mission goals 
or safety will not be compromised). The Great South Channel critical 
habitat is defined by the following coordinates: 41-00[deg] N. lat., 69-
05[deg] W. long.; 41-45[deg] N. lat, 69-45[deg] W. long; 42-10[deg] N. 
lat., 68-31[deg] W. long.; 41-38[deg] N. lat., 68-13[deg] W. long. The 
Cape Cod Bay critical habitat is defined by the following coordinates: 
42-04.8[deg] N. lat., 70-10[deg] W. long.; 42-12[deg] N. lat., 70-
15[deg] W. long.; 42-12[deg] N. lat., 70-30[deg] W. long.; 41-46.8[deg] 
N. lat., 70-30[deg] W. long.
    (B) Ships, surfaced subs, and aircraft shall report any North 
Atlantic right whale sightings (if the whale is identifiable as a right 
whale) off the northeastern U.S. to Patrol and Reconnaissance Wing 
(COMPATRECONWING). The report shall include the time of

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sighting, lat/long, direction of movement (if apparent) and number and 
description of the whale(s).
    (C) Vessels or aircraft that observe whale carcasses shall record 
the location and time of the sighting and report this information as 
soon as possible to the cognizant regional environmental coordinator. 
All whale strikes must be reported immediately. This report shall 
include the date, time, and location of the strike; vessel course and 
speed; operations being conducted by the vessel; weather conditions, 
visibility, and sea state; description of the whale; narrative of 
incident; and indication of whether photos/videos were taken. Navy 
personnel are encouraged to take photos whenever possible.
    (D) Specific mitigation measures related to activities occurring 
within the critical habitat include the following:
    (1) Vessels shall avoid head-on approaches to North Atlantic right 
whale(s) and shall maneuver to maintain at least 457 m (500 yd) of 
separation from any observed whale if deemed safe to do so. These 
requirements do not apply if a vessel's safety is threatened, such as 
when change of course would create an imminent and serious threat to 
person, vessel, or aircraft, and to the extent vessels are restricted in 
the ability to maneuver.
    (2) When transiting within the critical habitat or associated area 
of concern, vessels shall use extreme caution and operate at a safe 
speed (the minimum speed at which mission goals or safety will not be 
compromised) so as to be able to avoid collisions with North Atlantic 
right whales and other marine mammals, and stop within a distance 
appropriate to the circumstances and conditions.
    (3) Speed reductions (adjustments) are required when a whale is 
sighted by a vessel or when the vessel is within 9 km (5 NM) of a 
reported new sighting less than one week old.
    (4) Ships transiting in the Cape Cod Bay and Great South Channel 
critical habitats shall obtain information on recent whale sightings in 
the vicinity of the critical habitat. Any vessel operating in the 
vicinity of a North Atlantic right whale shall consider additional speed 
reductions as per Rule 6 of International Navigational Rules.
    (4) Mitigation Measures for Specific At-sea Training Events--If a 
marine mammal is injured or killed as a result of the proposed Navy 
training activities (e.g., instances in which it is clear that munitions 
explosions caused death), the Navy shall suspend its activities 
immediately and report such incident to NMFS.
    (i) Firing Exercise (FIREX) Using the Integrated Maritime Portable 
Acoustic Scoring System (IMPASS) (5-in Explosive Rounds):
    (A) This activity shall only occur in Areas BB and CC, or in similar 
areas that will not result in marine mammal takes exceeding the amount 
indicated inSec. 216.11(c).
    (B) During North Atlantic right whale calving season no explosive 
ordnance shall be used.
    (C) Pre-exercise monitoring of the target area shall be conducted 
with ``Big Eyes'' prior to the event, during deployment of the IMPASS 
sonobuoy array, and during return to the firing position. Ships shall 
maintain a lookout dedicated to visually searching for marine mammals 
180[deg] along the ship track line and 360[deg] at each buoy drop-off 
location.
    (D) ``Big Eyes'' on the ship shall be used to monitor a 600 yard 
(548 m) buffer zone for marine mammals during naval-gunfire events.
    (E) Ships shall not fire on the target if any marine mammals are 
detected within or approaching the 600 yd (548 m) buffer zone until the 
area is cleared. If marine mammals are present, operations shall be 
suspended. Visual observation shall occur for approximately 45 minutes, 
or until the animal has been observed to have cleared the area and is 
heading away from the buffer zone.
    (F) Post-exercise monitoring of the entire target area shall take 
place with ``Big Eyes'' and the naked eye during the retrieval of the 
IMPASS sonobuoy array following each firing exercise.
    (G) FIREX with IMPASS shall take place during daylight hours only.
    (H) FIREX with IMPASS shall only be used in Beaufort Sea State three 
(3) or less.
    (I) The visibility must be such that the fall of shot is visible 
from the firing ship during the exercise.

[[Page 170]]

    (J) No firing shall occur if marine mammals are detected within 70 
yards (64 m) of the vessel.
    (ii) Air-to-Surface Missile Exercises (Explosive):
    (A) Aircraft shall initially survey the intended ordnance impact 
area for marine mammals.
    (B) During the actual firing of the weapon, the aircraft involved 
must be able to observe the intended ordnance impact area to ensure the 
area is free of marine mammals transiting the range.
    (C) Visual inspection of the target area shall be made by flying at 
1,500 ft (457 m) altitude or lower, if safe to do so, and at slowest 
safe speed.
    (D) Explosive ordnance shall not be targeted to impact within 1,800 
yd (1,646 m) of sighted marine mammals.
    (iii) Mine Neutralization Training Involving Underwater Detonations 
(up to and including 20-lb charges):
    (A) This activity shall only occur in Undet North and Undet South of 
the JAX Range Complex.
    (B) Observers shall survey the Zone of Influence (ZOI), a 700 yd 
(640 m) radius from detonation location for marine mammals from all 
participating vessels during the entire operation. A survey of the ZOI 
(minimum of 3 parallel tracklines 219 yd [200 m] apart) using support 
craft shall be conducted at the detonation location 30 minutes prior 
through 30 minutes post detonation. Aerial survey support shall be 
utilized whenever assets are available.
    (C) Detonation operations shall be conducted during daylight hours 
only.
    (D) If a marine mammal is sighted within the ZOI, the animal shall 
be allowed to leave of its own volition. The Navy shall suspend 
detonation exercises and ensure the area is clear of marine mammals for 
a full 30 minutes prior to detonation.
    (E) Divers placing the charges on mines and dive support vessel 
personnel shall survey the area for marine mammals and shall report any 
sightings to the surface observers. These animals shall be allowed to 
leave of their own volition and the ZOI shall be clear of marine mammals 
for 30 minutes prior to detonation.
    (F) No detonations shall take place within 3.2 nm (6 km) of an 
estuarine inlet.
    (G) No detonations shall take place within 1.6 nm (3 km) of 
shoreline.
    (H) Personnel shall record any protected species observations during 
the exercise as well as measures taken if species are detected within 
the ZOI.
    (iv) Small Arms Training--Explosive hand grenades (such as the MK3A2 
grenades):
    (A) Lookouts shall visually survey for marine mammals prior to and 
during exercise.
    (B) A 200 yd (182 m) radius buffer zone shall be established around 
the intended target. The exercises shall be conducted only if the buffer 
zone is clear of marine mammals.

[74 FR 28365, June 15, 2009, as amended at 76 FR 30554, May 264, 2011; 
77 FR 4923, Feb. 1, 2012]



Sec.  218.14  Requirements for monitoring and reporting.

    (a) The Holder of the Letter of Authorization issued pursuant to 
Sec.  216.106 of this chapter andSec. 218.16 for activities described 
inSec. 218.10(b) is required to cooperate with the NMFS when 
monitoring the impacts of the activity on marine mammals.
    (b) The Holder of the Authorization must notify NMFS immediately (or 
as soon as clearance procedures allow) if the specified activity 
identified inSec. 218.10(b) is thought to have resulted in the 
mortality or serious injury of any marine mammals, or in any take of 
marine mammals not identified inSec. 218.10(c).
    (c) The Navy must conduct all monitoring and required reporting 
under the Letter of Authorization, including abiding by the JAX Range 
Complex Monitoring Plan, which is incorporated herein by reference, and 
which requires the Navy to implement, at a minimum, the monitoring 
activities summarized below:
    (1) Vessel or aerial surveys:
    (i) The Holder of this Authorization shall visually survey a minimum 
of 2 explosive events per year, one of which shall be a multiple 
detonation event. One of the vessel or aerial surveys should involve 
professionally trained marine mammal observers (MMOs).

[[Page 171]]

    (ii) When operationally feasible, for specified training events, 
aerial or vessel surveys shall be used 1-2 days prior to, during (if 
reasonably safe), and 1-5 days post detonation.
    (iii) Surveys shall include any specified exclusion zone around a 
particular detonation point plus 2,000 yards beyond the border of the 
exclusion zone (i.e., the circumference of the area from the border of 
the exclusion zone extending 2,000 yards outwards). For vessel-based 
surveys a passive acoustic system (hydrophone or towed array) could be 
used to determine if marine mammals are in the area before and/or after 
a detonation event.
    (iv) When conducting a particular survey, the survey team shall 
collect:
    (A) Location of sighting;
    (B) Species (if not possible, indicate whale, dolphin or pinniped);
    (C) Number of individuals;
    (D) Whether calves were observed;
    (E) Initial detection sensor;
    (F) Length of time observers maintained visual contact with marine 
mammal;
    (G) Wave height;
    (H) Visibility;
    (I) Whether sighting was before, during, or after detonations/
exercise, and how many minutes before or after;
    (J) Distance of marine mammal from actual detonations (or target 
spot if not yet detonated);
    (K) Observed behavior--Watchstanders shall report, in plain language 
and without trying to categorize in any way, the observed behavior of 
the animal(s) (such as animal closing to bow ride, paralleling course/
speed, floating on surface and not swimming etc.), including speed and 
direction;
    (L) Resulting mitigation implementation--Indicate whether explosive 
detonations were delayed, ceased, modified, or not modified due to 
marine mammal presence and for how long; and
    (M) If observation occurs while explosives are detonating in the 
water, indicate munition type in use at time of marine mammal detection.
    (2) Passive acoustic monitoring--the Navy shall conduct passive 
acoustic monitoring when operationally feasible.
    (i) Any time a towed hydrophone array is employed during shipboard 
surveys, the towed array shall be deployed during daylight hours for 
each of the days the ship is at sea.
    (ii) The towed hydrophone array shall be used to supplement the 
ship-based systematic line-transect surveys (particularly for species 
such as beaked whales that are rarely seen).
    (iii) The array shall have the capability of detecting low frequency 
vocalizations (<1,000 Hz) for baleen whales and relatively high 
frequency (up to 30 kHz) for odontocetes. The use of two simultaneously 
deployed arrays can also allow more accurate localization and 
determination of diving patterns.
    (3) Marine mammal observers on Navy platforms:
    (i) As required inSec. 218.14(c)(1), MMOs selected for aerial or 
vessel survey shall be placed on a Navy platform during one of the 
explosive exercises being monitored per year, the other designated 
exercise shall be monitored by the Navy lookouts/watchstanders.
    (ii) The MMO must possess expertise in species identification of 
regional marine mammal species and experience collecting behavioral 
data.
    (iii) MMOs shall not be placed aboard Navy platforms for every Navy 
training event or major exercise, but during specifically identified 
opportunities deemed appropriate for data collection efforts. The events 
selected for MMO participation shall take into account safety, 
logistics, and operational concerns.
    (iv) MMOs shall observe from the same height above water as the 
lookouts.
    (v) The MMOs shall not be part of the Navy's formal reporting chain 
of command during their data collection efforts; Navy lookouts shall 
continue to serve as the primary reporting means within the Navy chain 
of command for marine mammal sightings. The only exception is that if an 
animal is observed within the shutdown zone that has not been observed 
by the lookout, the MMO shall inform the lookout of the sighting and the 
lookout shall take the appropriate action through the chain of command.
    (vi) The MMOs shall collect species identification, behavior, 
direction of

[[Page 172]]

travel relative to the Navy platform, and distance first observed. 
Information collected by MMOs shall be the same as those collected by 
Navy lookout/watchstanders described inSec. 218.14(c)(1)(iv).
    (d) The Navy shall complete an Integrated Comprehensive Monitoring 
Program (ICMP) Plan in 2009. This planning and adaptive management tool 
shall include:
    (1) A method for prioritizing monitoring projects that clearly 
describes the characteristics of a proposal that factor into its 
priority.
    (2) A method for annually reviewing, with NMFS, monitoring results, 
Navy R&D, and current science to use for potential modification of 
mitigation or monitoring methods.
    (3) A detailed description of the Monitoring Workshop to be convened 
in 2011 and how and when Navy/NMFS will subsequently utilize the 
findings of the Monitoring Workshop to potentially modify subsequent 
monitoring and mitigation.
    (4) An adaptive management plan.
    (5) A method for standardizing data collection for JAX Range Complex 
and across range complexes.
    (e) General Notification of Injured or Dead Marine Mammals--Navy 
personnel shall ensure that NMFS (regional stranding coordinator) is 
notified immediately (or as soon as clearance procedures allow) if an 
injured or dead marine mammal is found during or shortly after, and in 
the vicinity of, any Navy training exercise utilizing underwater 
explosive detonations. The Navy shall provide NMFS with species or 
description of the animal(s), the condition of the animal(s) (including 
carcass condition if the animal is dead), location, time of first 
discovery, observed behaviors (if alive), and photo or video (if 
available).
    (f) Annual JAX Range Complex Monitoring Plan Report--The Navy shall 
submit a report annually on March 1 describing the implementation and 
results (through January 1 of the same year) of the JAX Range Complex 
Monitoring Plan. Data collection methods will be standardized across 
range complexes to allow for comparison in different geographic 
locations. Although additional information will also be gathered, the 
MMOs collecting marine mammal data pursuant to the JAX Range Complex 
Monitoring Plan shall, at a minimum, provide the same marine mammal 
observation data required inSec. 218.14(g). The JAX Range Complex 
Monitoring Plan Report may be provided to NMFS within a larger report 
that includes the required Monitoring Plan Reports from JAX Range 
Complex and multiple range complexes.
    (g) Annual JAX Range Complex Exercise Report--The Navy shall provide 
the information described below for all of their explosive exercises. 
Until the Navy is able to report in full the information below, they 
shall provide an annual update on the Navy's explosive tracking methods, 
including improvements from the previous year.
    (i) Total annual number of each type of explosive exercise (of those 
identified as part of the ``specified activity'' in this final rule) 
conducted in the JAX Range Complex.
    (ii) Total annual expended/detonated rounds (missiles, bombs, etc.) 
for each explosive type.
    (h) JAX Range Complex 5-yr Comprehensive Report--The Navy shall 
submit to NMFS a draft report that analyzes and summarizes all of the 
multi-year marine mammal information gathered during the JAX Range 
Complex exercises for which annual reports are required (Annual JAX 
Range Complex Exercise Reports and JAX Range Complex Monitoring Plan 
Reports). This report shall be submitted at the end of the fourth year 
of the rule (May 2013), covering activities that have occurred through 
December 1, 2012.
    (i) The Navy shall respond to NMFS' comments and requests for 
additional information or clarification on the JAX Range Complex 
Comprehensive Report, the Annual JAX Range Complex Exercise Report, or 
the Annual JAX Range Complex Monitoring Plan Report (or the multi-Range 
Complex Annual Monitoring Plan Report, if that is how the Navy chooses 
to submit the information) if submitted within 3 months of receipt. 
These reports will be considered final after the Navy has addressed 
NMFS' comments or provided the requested information, or

[[Page 173]]

three months after the submittal of the draft if NMFS does not comment 
by then.
    (j) In 2011, the Navy shall convene a Monitoring Workshop in which 
the Monitoring Workshop participants will be asked to review the Navy's 
Monitoring Plans and monitoring results and make individual 
recommendations (to the Navy and NMFS) of ways of improving the 
Monitoring Plans. The recommendations shall be reviewed by the Navy, in 
consultation with NMFS, and modifications to the Monitoring Plan shall 
be made, as appropriate.



Sec.  218.15  Applications for Letters of Authorization.

    To incidentally take marine mammals pursuant to these regulations, 
the U.S. citizen (as defined bySec. 216.103 of this chapter) 
conducting the activity identified inSec. 218.10(a) (the U.S. Navy) 
must apply for and obtain either an initial Letter of Authorization in 
accordance withSec. 218.16 or a renewal underSec. 218.17.



Sec.  218.16  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the periods of validity of this 
subpart, but may be renewed or modified sooner subject to the renewal 
conditions inSec. 218.17 and modification conditions inSec. 218.18.
    (b) Each Letter of Authorization will set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable 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 Letter 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 affected species or stock of marine mammal(s).

[74 FR 28343, June 15, 2009, as amended at 77 FR 4923, Feb. 1, 2012]



Sec.  218.17  Renewal of Letters of Authorization and adaptive
management.

    (a) A Letter of Authorization issued underSec. 216.106 of this 
chapter andSec. 218.16 for the activity identified inSec. 218.10(c) 
will be renewed upon:
    (1) Notification to NMFS that the activity described in the 
application submitted underSec. 218.15 will be undertaken and that 
there will not be a substantial modification to the desired work, 
mitigation, or monitoring undertaken during the upcoming period of 
validity;
    (2) Timely receipt of the monitoring reports required underSec. 
218.14; and
    (3) A determination by NMFS that the mitigation, monitoring and 
reporting measures required underSec. 218.13 and the Letter of 
Authorization issued underSec. 216.106 of this chapter andSec. 
218.16, were undertaken and will be undertaken during the upcoming 
period of validity of a renewed Letter of Authorization.
    (b) If a request for a renewal of a Letter of Authorization issued 
under Sec.Sec. 216.106 and 218.17 of this chapter indicates that a 
substantial modification 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. Review 
and comment on renewals of Letters of Authorization 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 changes to the mitigation and monitoring requirements 
contained 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 Register.
    (d) NMFS, in response to new information and in consultation with 
the Navy, may modify the mitigation or monitoring measures in subsequent 
LOAs if doing so creates a reasonable likelihood of more effectively 
accomplishing the goals of mitigation 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 decision to

[[Page 174]]

modify the mitigation or monitoring measures:
    (1) Results from the Navy's monitoring from the previous year 
(either from JAX Study Area or other locations).
    (2) Findings of the Monitoring Workshop that the Navy will convene 
in 2011 (Sec.  218.14(j)).
    (3) Compiled results of Navy funded research and development (R&D) 
studies (presented pursuant to the ICMP (Sec.  218.14(d)).
    (4) Results from specific stranding investigations (either from the 
JAX Range Complex Study Area or other locations).
    (5) Results from general marine mammal and sound research (funded by 
the Navy (described below) or otherwise).
    (6) 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.

[74 FR 28343, June 15, 2009, as amended at 77 FR 4923, Feb. 1, 2012]



Sec.  218.18  Modifications to Letters of Authorization.

    (a) Except as provided in paragraph (b) of this section, no 
substantive modification (including withdrawal or suspension) to the 
Letter of Authorization by NMFS, issued pursuant toSec. 216.106 of 
this chapter andSec. 218.16 and subject to the provisions of this 
subpart shall be made until after notification and an opportunity for 
public comment has been provided. For purposes of this paragraph, a 
renewal of a Letter of Authorization underSec. 218.17, without 
modification (except for the period of validity), is not considered a 
substantive modification.
    (b) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species or 
stocks of marine mammals specified inSec. 218.11(b), a Letter of 
Authorization issued pursuant toSec. 216.106 of this chapter andSec. 
218.16 may be substantively modified without prior notification and an 
opportunity for public comment. Notification will be published in the 
Federal Register within 30 days subsequent to the action.



Subpart C_Taking Marine Mammals Incidental to U.S. Navy Training in the 
                       Cherry Point Range Complex

    Source: 74 FR 28385, June 15, 2009, unless otherwise noted.



Sec.  218.20  Specified activity and specified geographical area and
effective dates.

    (a) Regulations in this subpart apply only to the U.S. Navy for the 
taking of marine mammals that occurs in the area outlined in paragraph 
(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 Navy is only authorized if 
it occurs within the Cherry Point Range Complex Operation Area (OPAREA), 
which is located along the southern east coast of the U.S., as stated in 
the Navy's letter of authorization application. The coordinates of the 
Cherry Point Range Complex OPAREA are: 35[deg]30[min] N, 75[deg]25[min] 
W; 34[deg]14[min] N, 73[deg]57[min] W; 32[deg]12[min] N, 76[deg]49[min] 
W; 32[deg]20[min] N, 77[deg]20[min] W; 33[deg]10[min] N, 77[deg]31[min] 
W; and 34[deg]23[min]30[sec] N, 77[deg]30[min] W; then along the 3 nm 
from and parallel to the shoreline.
    (c) The taking of marine mammals by the Navy is only authorized if 
it occurs incidental to the following activities:
    (1) The use of the explosive munitions, or similar explosive types, 
indicated in paragraph (c)(1)(i) of this section conducted as part of 
the Navy training events, or similar training events, indicated in 
paragraph (c)(1)(ii) of this section:
    (i) Underwater Explosives:
    (A) AGM-114 (Hellfire missile);
    (B) Tube-launched Optically tracked Wire-guided (TOW) missile;
    (C) Mine Neutralization (20 lb NEW charges); and
    (D) 5[sec] Naval Gunfire.
    (ii) Training Exercises:
    (A) Mine Neutralization (20 lb NEW charges)--up to 100 exercises 
over the course of 5 years (an average of 20 per year);
    (B) Missile Exercise (MISSILEX) (Air-to-Surface; Hellfire missile)--
up to 40 exercises over the course of 5 years (an average of 8 per 
year);

[[Page 175]]

    (C) Missile Exercise (MISSILEX) (Air-to-Surface; TOW)--up to 40 
exercises over the course of 5 years (an average of 8 per year); and
    (D) FIREX with IMPASS--up to 10 exercises over the course of 5 years 
(an average of 2 per year).
    (2) [Reserved]
    (d) Regulations are effective February 1, 2012, through June 4, 
2014.
    (e) The taking of marine mammals may be authorized in an LOA for the 
explosive types and activities, or similar explosives and activities, 
listed inSec. 218.20(c) should the amounts (e.g., number of exercises) 
vary from those estimated inSec. 218.20(c), provided that the 
variation does not result in exceeding the amount of take indicated in 
Sec.  218.21(c).

[74 FR 28343, June 15, 2009, as amended at 77 FR 4923, Feb. 1, 2012]



Sec.  218.21  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec.Sec. 
216.106 of this chapter and 218.26, the Holder of the Letter of 
Authorization may incidentally, but not intentionally, take marine 
mammals within the area described inSec. 218.20(b), 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 inSec. 218.20(c) must be conducted 
in a manner that minimizes, to the greatest extent practicable, any 
adverse impacts on marine mammals and their habitat.
    (c) The incidental take of marine mammals under the activities 
identified inSec. 218.20(c) is limited to the following species, by 
the indicated method of take and the indicated number of times:
    (1) Level B Harassment:
    (i) Bottlenose dolphin (Tursiops truncatus)--150 (an average of 30 
annually);
    (ii) Pantropical spotted dolphin (Stenella attenuata)--100 (an 
average of 20 annually);
    (iii) Clymene dolphin (S. clymene)--150 (an average of 30 annually);
    (iv) Atlantic spotted dolphin (S. frontalis)--100 (an average of 20 
annually);
    (v) Striped dolphin (S. coeruleoalba)--100 (an average of 20 
annually);
    (vi) Spinner dolphin (S. longirostris)--15 (an average of 3 
annually):
    (vii) Risso's dolphin (Grampus griseus)--150 (an average of 30 
annually);
    (viii) Common dolphin (Delphinus delphis)--100 (an average of 20 
annually);
    (ix) Atlantic white-sided dolphin (Lagenorhynchus acutus)--100 (an 
average of 20 annually);
    (x) Pilot whales (Globicephala sp.)--100 (an average of 20 
annually);
    (xi) Dwarf or pygmy sperm whales (Kogia sp.)--15 (an average of 3 
annually);
    (xii) Beaked whales--100 (an average of 20 annually);
    (xiii) Fraser's dolphin (Lagenodelphis hosei)--15 (an average of 3 
annually);
    (xiv) Melon-headed whale (Peponocephala electra)--15 (an average of 
3 annually);
    (xv) Pygmy killer whale (Feresa attenuate)--15 (an average of 3 
annually);
    (xvi) Killer whale (Orcinus orca)--15 (an average of 3 annually);
    (xvii) Minke whales (Balaenoptera acutorostrata)--15 (an average of 
3 annually).
    (2) [Reserved]



Sec.  218.22  Prohibitions.

    Notwithstanding takings contemplated inSec. 218.21 and authorized 
by a Letter of Authorization issued under Sec.Sec. 216.106 of this 
chapter and 218.26, no person in connection with the activities 
described inSec. 218.20 may:
    (a) Take any marine mammal not specified inSec. 218.21(c);
    (b) Take any marine mammal specified inSec. 218.21(c) other than 
by incidental take as specified inSec. 218.21(b)(1) and (2);
    (c) Take a marine mammal specified inSec. 218.21(c) if such taking 
results in more than a negligible impact on the species or stocks of 
such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of this Subpart or a Letter of Authorization issued under 
Sec.Sec. 216.106 of this chapter and 218.26.

[[Page 176]]



Sec.  218.23  Mitigation.

    (a) When conducting training activities identified inSec. 
218.20(c), the mitigation measures contained in the Letters of 
Authorization issued under Sec.Sec. 216.106 of this chapter and 218.26 
must be implemented. These mitigation measures include, but are not 
limited to:
    (1) General Maritime Measures:
    (i) Personnel Training--Lookouts:
    (A) All bridge personnel, Commanding Officers, Executive Officers, 
officers standing watch on the bridge, maritime patrol aircraft 
aircrews, and Mine Warfare (MIW) helicopter crews shall complete Marine 
Species Awareness Training (MSAT).
    (B) Navy lookouts shall undertake extensive training to qualify as a 
watchstander in accordance with the Lookout Training Handbook (NAVEDTRA 
12968-D).
    (C) Lookout training shall include on-the-job instruction under the 
supervision of a qualified, experienced watchstander. Following 
successful completion of this supervised training period, lookouts shall 
complete the Personal Qualification Standard Program, certifying that 
they have demonstrated the necessary skills (such as detection and 
reporting of partially submerged objects).
    (D) Lookouts shall be trained in the most effective means to ensure 
quick and effective communication within the command structure to 
facilitate implementation of protective measures if marine species are 
spotted.
    (E) Surface lookouts shall scan the water from the ship to the 
horizon and be responsible for all contacts in their sector. In 
searching the assigned sector, the lookout shall always start at the 
forward part of the sector and search aft (toward the back). To search 
and scan, the lookout shall hold the binoculars steady so the horizon is 
in the top third of the field of vision and direct the eyes just below 
the horizon. The lookout shall scan for approximately five seconds in as 
many small steps as possible across the field seen through the 
binoculars. They shall search the entire sector in approximately five-
degree steps, pausing between steps for approximately five seconds to 
scan the field of view. At the end of the sector search, the glasses 
shall be lowered to allow the eyes to rest for a few seconds, and then 
the lookout shall search back across the sector with the naked eye.
    (F) At night, lookouts shall scan the horizon in a series of 
movements that would allow their eyes to come to periodic rests as they 
scan the sector. When visually searching at night, they shall look a 
little to one side and out of the corners of their eyes, paying 
attention to the things on the outer edges of their field of vision. 
Lookouts shall also have night vision devices available for use.
    (ii) Operating Procedures and Collision Avoidance:
    (A) Prior to major exercises, a Letter of Instruction, Mitigation 
Measures Message or Environmental Annex to the Operational Order shall 
be issued to further disseminate the personnel training requirement and 
general marine species mitigation measures.
    (B) Commanding Officers shall make use of marine species detection 
cues and information to limit interaction with marine species to the 
maximum extent possible consistent with safety of the ship.
    (C) While underway, surface vessels shall have at least two lookouts 
with binoculars; surfaced submarines shall have at least one lookout 
with binoculars. Lookouts already posted for safety of navigation and 
man-overboard precautions may be used to fill this requirement. As part 
of their regular duties, lookouts shall watch for and report to the OOD 
the presence of marine mammals.
    (D) Personnel on lookout shall employ visual search procedures 
employing a scanning method in accordance with the Lookout Training 
Handbook (NAVEDTRA 12968-D).
    (E) After sunset and prior to sunrise, lookouts shall employ Night 
Lookouts Techniques in accordance with the Lookout Training Handbook 
(NAVEDTRA 12968-D).
    (F) While in transit, naval vessels shall be alert at all times, use 
extreme caution, and proceed at a ``safe speed'' (the minimum speed at 
which mission goals or safety will not be compromised) so that the 
vessel can take proper and effective action to avoid a collision with 
any marine animal and

[[Page 177]]

can be stopped within a distance appropriate to the prevailing 
circumstances and conditions.
    (G) When marine mammals have been sighted in the area, Navy vessels 
shall increase vigilance and implement measures to avoid collisions with 
marine mammals and avoid activities that might result in close 
interaction of naval assets and marine mammals. Such measures shall 
include changing speed and/or course direction and would be dictated by 
environmental and other conditions (e.g., safety or weather).
    (H) Naval vessels shall maneuver to keep at least 500 yds (460 m) 
away from any observed whale and avoid approaching whales head-on. This 
requirement does not apply if a vessel's safety is threatened, such as 
when change of course will create an imminent and serious threat to a 
person, vessel, or aircraft, and to the extent vessels are restricted in 
their ability to maneuver. Vessels shall take reasonable steps to alert 
other vessels in the vicinity of the whale.
    (I) Where feasible and consistent with mission and safety, vessels 
shall avoid closing to within 200-yd (183 m) of marine mammals other 
than whales (whales addressed above).
    (J) Navy aircraft participating in exercises at sea shall conduct 
and maintain, when operationally feasible and safe, surveillance for 
marine species of concern as long as it does not violate safety 
constraints or interfere with the accomplishment of primary operational 
duties. Marine mammal detections shall be immediately reported to 
assigned Aircraft Control Unit for further dissemination to ships in the 
vicinity of the marine species as appropriate where it is reasonable to 
conclude that the course of the ship will likely result in a closing of 
the distance to the detected marine mammal.
    (K) All vessels shall maintain logs and records documenting training 
operations should they be required for event reconstruction purposes. 
Logs and records shall be kept for a period of 30 days following 
completion of a major training exercise.
    (2) Coordination and Reporting Requirements. (i) The Navy shall 
coordinate with the local NMFS Stranding Coordinator for any unusual 
marine mammal behavior and any stranding, beached live/dead, or floating 
marine mammals that may occur at any time during training activities or 
within 24 hours after completion of training activities.
    (ii) The Navy shall follow internal chain of command reporting 
procedures as promulgated through Navy instructions and orders.
    (3) Mitigation Measures Applicable to Vessel Transit in the Mid-
Atlantic during North Atlantic Right Whale Migration: The mitigation 
measures apply to all Navy vessel transits, including those vessels that 
would transit to and from East Coast ports and the Cherry Point OPAREA.
    (i) Mid-Atlantic, Offshore of the Eastern United States:
    (A) All Navy vessels are required to use extreme caution and operate 
at a slow, safe speed (at a speed that does not compromise safety of 
navigation) consistent with mission and safety during the months 
indicated below and within a 37 km (20 NM) arc (except as noted) of the 
specified associated reference points:
    (1) South and East of Block Island (37 km (20 NM) seaward of line 
between 41-4.49[deg] N. lat. 071-51.15[deg] W. long. and 41-18.58[deg] 
N. lat. 070-50.23[deg] W. long): Sept-Oct and Mar-Apr.
    (2) New York/New Jersey (40-30.64[deg] N. lat. 073-57.76[deg] W. 
long.): Sep-Oct and Feb-Apr.
    (3) Delaware Bay (Philadelphia) (38-52.13[deg] N. lat. 075-1.93[deg] 
W. long.): Oct-Dec and Feb-Mar.
    (4) Chesapeake Bay (Hampton Roads and Baltimore) (37-1.11[deg] N. 
lat. 075-57.56[deg] W. long.): Nov-Dec and Feb-Apr.
    (5) North Carolina (34-41.54[deg] N. lat. 076-40.20[deg] W. long.): 
Dec-Apr.
    (6) South Carolina (33-11.84[deg] N. lat. 079-8.99[deg] W. long. and 
32-43.39[deg] N. lat. 079-48.72[deg] W. long.): Oct-Apr.
    (B) During the months indicated in paragraph (a)(3)(i)(A) of this 
section, Navy vessels shall practice increased vigilance with respect to 
avoidance of vessel-whale interactions along the mid-Atlantic coast, 
including transits to and from any mid-Atlantic ports not specifically 
identified in paragraph (a)(3)(i)(A) of this section.

[[Page 178]]

    (C) All surface units transiting within 56 km (30 NM) of the coast 
in the mid-Atlantic shall ensure at least two watchstanders are posted, 
including at least one lookout who has completed required MSAT training.
    (D) Navy vessels shall not knowingly approach any whale head on and 
shall maneuver to keep at least 457 m (1,500 ft) away from any observed 
whale, consistent with vessel safety.
    (ii) Southeast Atlantic, Offshore of the Eastern United States--for 
the purposes of the measures below (paragraphs (a)(3)(ii)(A) & (B) of 
this section), the ``southeast'' encompasses sea space from Charleston, 
South Carolina, southward to Sebastian Inlet, Florida, and from the 
coast seaward to 148 km (80 NM) from shore. North Atlantic right whale 
critical habitat is the area from 31-15[deg] N. lat. to 30-15[deg] N. 
lat. extending from the coast out to 28 km (15 NM), and the area from 
28-00[deg] N. lat. to 30-15[deg] N. lat. from the coast out to 9 km (5 
NM). All mitigation measures described here that apply to the critical 
habitat apply from November 15--April 15 and also apply to an associated 
area of concern which extends 9 km (5 NM) seaward of the designated 
critical habitat boundaries.
    (A) Prior to transiting or training in the critical habitat or 
associated area of concern (AAOC), ships shall contact Fleet Area 
Control and Surveillance Facility, Jacksonville, to obtain latest whale 
sighting and other information needed to make informed decisions 
regarding safe speed (the minimum speed at which mission goals or safety 
will not be compromised) and path of intended movement. Subs shall 
contact Commander, Submarine Group Ten for similar information.
    (B) The following specific mitigation measures apply to activities 
occurring within the North Atlantic right whale critical habitat and an 
associated area of concern which extends 9 km (5 NM) seaward of the 
designated critical habitat boundaries:
    (1) When transiting within the critical habitat or associated area 
of concern, vessels shall exercise extreme caution and proceed at a slow 
safe speed. The speed shall be the slowest safe speed that is consistent 
with mission, training and operations.
    (2) Speed reductions (adjustments) are required when a whale is 
sighted by a vessel or when the vessel is within 9 km (5 NM) of a 
reported new sighting less than 12 hours old. Circumstances could arise 
where, in order to avoid North Atlantic right whale(s), speed reductions 
could mean vessels must reduce speed to a minimum at which it can safely 
keep on course or vessels could come to an all stop.
    (3) Vessels shall avoid head-on approaches to North Atlantic right 
whale(s) and shall maneuver to maintain at least 457 m (500 yd) of 
separation from any observed whale if deemed safe to do so. These 
requirements do not apply if a vessel's safety is threatened, such as 
when a change of course would create an imminent and serious threat to a 
person, vessel, or aircraft, and to the extent vessels are restricted in 
the ability to maneuver.
    (4) During the North Atlantic right whale calving season, north-
south transits through the critical habitat are prohibited.
    (5) Ships, surfaced subs, and aircraft shall report any whale 
sightings to Fleet Area Control and Surveillance Facility, Jacksonville, 
by the quickest and most practicable means. The sighting report shall 
include the time, latitude/longitude, direction of movement and number 
and description of whale (i.e., adult/calf).
    (6) Naval vessel operations in the North Atlantic right whale 
critical habitat and AAOC during the calving season shall be undertaken 
during daylight and periods of good visibility, to the extent 
practicable and consistent with mission, training, and operation. When 
operating in the critical habitat and AAOC at night or during periods of 
poor visibility, vessels shall operate as if in the vicinity of a 
recently reported NARW sighting.
    (iii) Northeast Atlantic, Offshore of the Eastern United States:
    (A) Prior to transiting the Great South Channel or Cape Cod Bay 
critical habitat areas, ships shall obtain the latest North Atlantic 
right whale sightings and other information needed to make informed 
decisions regarding safe speed (the minimum speed at which mission goals 
or safety will not be compromised). The Great South

[[Page 179]]

Channel critical habitat is defined by the following coordinates: 41-
00[deg] N. lat., 69-05[deg] W. long.; 41-45[deg] N. lat, 69-45[deg] W. 
long; 42-10[deg] N. lat., 68-31[deg] W. long.; 41-38[deg] N. lat., 68-
13[deg] W. long. The Cape Cod Bay critical habitat is defined by the 
following coordinates: 42-04.8[deg] N. lat., 70-10[deg] W. long.; 42-
12[deg] N. lat., 70-15[deg] W. long.; 42-12[deg] N. lat., 70-30[deg] W. 
long.; 41-46.8[deg] N. lat., 70-30[deg] W. long.
    (B) Ships, surfaced subs, and aircraft shall report any North 
Atlantic right whale sightings (if the whale is identifiable as a right 
whale) off the northeastern U.S. to Patrol and Reconnaissance Wing 
(COMPATRECONWING). The report shall include the time of sighting, lat/
long, direction of movement (if apparent) and number and description of 
the whale(s).
    (C) Vessels or aircraft that observe whale carcasses shall record 
the location and time of the sighting and report this information as 
soon as possible to the cognizant regional environmental coordinator. 
All whale strikes must be reported. This report shall include the date, 
time, and location of the strike; vessel course and speed; operations 
being conducted by the vessel; weather conditions, visibility, and sea 
state; description of the whale; narrative of incident; and indication 
of whether photos/videos of the whale were taken. Navy personnel are 
encouraged to take photos of the whale whenever possible.
    (D) Specific mitigation measures related to activities occurring 
within the critical habitat include the following:
    (1) Vessels shall avoid head-on approaches to North Atlantic right 
whale(s) and shall maneuver to maintain at least 457 m (500 yd) of 
separation from any observed whale if deemed safe to do so. These 
requirements do not apply if a vessel's safety is threatened, such as 
when change of course would create an imminent and serious threat to 
person, vessel, or aircraft, and to the extent vessels are restricted in 
the ability to maneuver.
    (2) When transiting within the critical habitat or associated area 
of concern, vessels shall use extreme caution and operate at a safe 
speed (the minimum speed at which mission goals or safety will not be 
compromised) so as to be able to avoid collisions with North Atlantic 
right whales and other marine mammals, and stop within a distance 
appropriate to the circumstances and conditions.
    (3) Speed reductions (adjustments) are required when a whale is 
sighted by a vessel or when the vessel is within 9 km (5 NM) of a 
reported new sighting less than one week old.
    (4) Ships transiting in the Cape Cod Bay and Great South Channel 
critical habitats shall obtain information on recent whale sightings in 
the vicinity of the critical habitat. Any vessel operating in the 
vicinity of a North Atlantic right whale shall consider additional speed 
reductions as per Rule 6 of International Navigational Rules.
    (4) Mitigation Measures for Specific At-sea Training Events--If a 
marine mammal is killed as a result of the proposed Navy training 
activities (e.g., instances in which it is clear that munitions 
explosions caused the death), the Navy shall suspend its activities 
immediately and report the incident to NMFS.
    (i) Firing Exercise (FIREX) Using the Integrated Maritime Portable 
Acoustic Scoring System (IMPASS) (5-in Explosive Rounds)
    (A) This activity shall only occur in Areas 4/5 and 13/14, or in 
similar areas that will not result in marine mammal takes exceeding the 
amount indicated inSec. 218.21(c).
    (B) Pre-exercise monitoring of the target area shall be conducted 
with ``Big Eyes'' prior to the event, during deployment of the IMPASS 
sonobuoy array, and during return to the firing position. Ships shall 
maintain lookouts dedicated to visually searching for marine mammals 
180[deg] along the ship track line and 360[deg] at each buoy drop-off 
location.
    (C) ``Big Eyes'' on the ship shall be used to monitor a 600-yd (548-
m) buffer zone for marine mammals during naval-gunfire events.
    (D) Ships shall not fire on the target if any marine mammals are 
detected within or approaching the 600-yd (548-m) buffer zone. If marine 
mammals are present, operations must be suspended. Visual observation 
shall occur for approximately 45 min, or until the animal has been 
observed to have cleared the area and is heading away from the

[[Page 180]]

buffer zone. At such time as animals have cleared the area and are 
heading away from the buffer zone, the Navy may begin or resume 
operations.
    (E) Post-exercise monitoring of the entire target area shall take 
place with ``Big Eyes'' and the naked eye during the retrieval of the 
IMPASS sonobuoy array following each firing exercise.
    (F) The naval gunfire shall take place during daylight hours only.
    (G) FIREX with IMPASS shall only be used in Beaufort Sea State three 
(3) or less.
    (H) The visibility must be such that the fall of shot is visible 
from the firing ship during the exercise.
    (I) No firing shall occur if marine mammals are detected within 70 
yd (64 m) of the vessel.
    (ii) Air-to-Surface Missile Exercises (Explosive):
    (A) Aircraft shall initially survey the intended ordnance impact 
area for marine mammals.
    (B) During the actual firing of the weapon, the aircraft involved 
must be able to observe the intended ordnance impact area to ensure the 
area is free of marine mammals transiting the range.
    (C) Visual inspection of the target area shall be made by flying at 
1,500 ft (457 m) altitude or lower, if safe to do so, and at slowest 
safe speed.
    (D) Explosive ordnance shall not be targeted to impact within 1,800 
yd (1,646 m) of sighted marine mammals.
    (iii) Mine Neutralization Training Involving Underwater Detonations 
(up to and including 20-lb charges):
    (A) This activity shall only occur in W-15 of the Cherry Point Range 
Complex.
    (B) Observers shall survey the Zone of Influence (ZOI), a 700 yd 
(640 m) radius from detonation location for marine mammals from all 
participating vessels during the entire operation. A survey of the ZOI 
(minimum of 3 parallel tracklines 219 yd [200 m] apart) using support 
craft shall be conducted at the detonation location 30 minutes prior 
through 30 minutes post detonation. Aerial survey support shall be 
utilized whenever operationally feasible.
    (C) Detonation operations shall be conducted during daylight hours 
only.
    (D) If a marine mammal is sighted within the ZOI, the animal shall 
be allowed to leave of its own volition. The Navy shall suspend 
detonation exercises and ensure the area is clear of marine mammals for 
a full 30 minutes prior to detonation.
    (E) Divers placing the charges on mines and dive support vessel 
personnel shall survey the area for marine mammals and shall report any 
sightings to the surface observers. These animals shall be allowed to 
leave of their own volition and the ZOI shall be clear of marine mammals 
for 30 minutes prior to detonation.
    (F) No detonations shall take place within 3.2 nm (6 km) of an 
estuarine inlet.
    (G) No detonations shall take place within 1.6 nm (3 km) of 
shoreline.
    (H) Personnel shall record any protected species observations during 
the exercise as well as measures taken if species are detected within 
the ZOI.

[74 FR 28343, June 15, 2009, as amended at 77 FR 4923, Feb. 1, 2012]



Sec.  218.24  Requirements for monitoring and reporting.

    (a) The Holder of the Letter of Authorization issued pursuant to 
Sec.  216.106 of this chapter andSec. 218.26 for activities described 
inSec. 218.20(c) is required to cooperate with the NMFS when 
monitoring the impacts of the activity on marine mammals.
    (b) The Holder of the Authorization must notify NMFS immediately (or 
as soon as clearance procedures allow) if the specified activity 
identified inSec. 218.20(c) is thought to have resulted in the 
mortality or serious injury of any marine mammals, or in any take of 
marine mammals not identified inSec. 218.21(c).
    (c) The Navy must conduct all monitoring and required reporting 
under the Letter of Authorization, including abiding by the Cherry Point 
Range Complex Monitoring Plan, which is incorporated herein by 
reference, and which requires the Navy to implement, at a minimum, the 
monitoring activities summarized below.
    (1) Vessel or aerial surveys.
    (i) The Holder of this Authorization shall visually survey a minimum 
of 1 explosive event per year. If possible,

[[Page 181]]

the event surveyed shall be one involving multiple detonations. One of 
the vessel or aerial surveys should involve professionally trained 
marine mammal observers (MMOs). If it is impossible to conduct the 
required surveys due to lack of training exercises, the missed annual 
survey requirement shall roll into the subsequent year to ensure that 
the appropriate number of surveys (i.e., total of five) occurs over the 
5-year period of effectiveness of this subject.
    (ii) When operationally feasible, for specified training events, 
aerial or vessel surveys shall be used 1-2 days prior to, during (if 
reasonably safe), and 1-5 days post detonation.
    (iii) Surveys shall include any specified exclusion zone around a 
particular detonation point plus 2,000 yards beyond the border of the 
exclusion zone (i.e., the circumference of the area from the border of 
the exclusion zone extending 2,000 yards outwards). For vessel based 
surveys, a passive acoustic system (hydrophone or towed array) could be 
used to determine if marine mammals are in the area before and/or after 
a detonation event.
    (iv) When conducting a particular survey, the survey team shall 
collect:
    (A) Location of sighting;
    (B) Species (if not possible, indicate whale, dolphin or pinniped);
    (C) Number of individuals;
    (D) Whether calves were observed;
    (E) Initial detection sensor;
    (F) Length of time observers maintained visual contact with marine 
mammal;
    (G) Wave height;
    (H) Visibility;
    (I) Whether sighting was before, during, or after detonations/
exercise, and how many minutes before or after;
    (J) Distance of marine mammal from actual detonations (or target 
spot if not yet detonated);
    (K) Observed behavior--Watchstanders shall report, in plain language 
and without trying to categorize in any way, the observed behavior of 
the animal(s) (such as animal closing to bow ride, paralleling course/
speed, floating on surface and not swimming etc.), including speed and 
direction;
    (L) Resulting mitigation implementation--Indicate whether explosive 
detonations were delayed, ceased, modified, or not modified due to 
marine mammal presence and for how long; and
    (M) If observation occurs while explosives are detonating in the 
water, indicate munitions type in use at time of marine mammal 
detection.
    (2) Passive acoustic monitoring--the Navy shall conduct passive 
acoustic monitoring when operationally feasible.
    (i) Any time a towed hydrophone array is employed during shipboard 
surveys, the towed array shall be deployed during daylight hours for 
each of the days the ship is at sea.
    (ii) The towed hydrophone array shall be used to supplement the 
ship-based systematic line-transect surveys (particularly for species 
such as beaked whales that are rarely seen).
    (iii) The array should have the capability of detecting low 
frequency vocalizations (<1,000 Hz) for baleen whales and relatively 
high frequency (up to 30 kHz) for odontocetes. The use of two 
simultaneously deployed arrays can also allow more accurate localization 
and determination of diving patterns.
    (3) Marine mammal observers on Navy platforms:
    (i) As required inSec. 218.24(c)(1), MMOs who are selected for 
aerial or vessel surveys shall be placed on a Navy platform during one 
of the explosive exercises being monitored per year, the other 
designated exercise shall be monitored by the Navy lookouts/
watchstanders.
    (ii) The MMO must possess expertise in species identification of 
regional marine mammal species and experience collecting behavioral 
data.
    (iii) MMOs shall not be placed aboard Navy platforms for every Navy 
training event or major exercise, but during specifically identified 
opportunities deemed appropriate for data collection efforts. The events 
selected for MMO participation shall take into account safety, 
logistics, and operational concerns.
    (iv) MMOs shall observe from the same height above water as the 
lookouts.

[[Page 182]]

    (v) The MMOs shall not be part of the Navy's formal reporting chain 
of command during their data collection efforts; Navy lookouts shall 
continue to serve as the primary reporting means within the Navy chain 
of command for marine mammal sightings. The only exception is that if an 
animal is observed within the shutdown zone that has not been observed 
by the lookout, the MMO shall inform the lookout of the sighting and the 
lookout shall take the appropriate action through the chain of command.
    (vi) The MMOs shall collect species identification, behavior, 
direction of travel relative to the Navy platform, and distance first 
observed. Information collected by MMOs should be the same as those 
collected by Navy lookout/watchstanders described inSec. 
218.24(c)(1)(iv).
    (d) The Navy shall complete an Integrated Comprehensive Monitoring 
Program (ICMP) Plan in 2009. This planning and adaptive management tool 
shall include:
    (1) A method for prioritizing monitoring projects that clearly 
describes the characteristics of a proposal that factor into its 
priority.
    (2) A method for annually reviewing, with NMFS, monitoring results, 
Navy R&D, and current science to use for potential modification of 
mitigation or monitoring methods.
    (3) A detailed description of the Monitoring Workshop to be convened 
in 2011 and how and when Navy/NMFS will subsequently utilize the 
findings of the Monitoring Workshop to potentially modify subsequent 
monitoring and mitigation.
    (4) An adaptive management plan,
    (5) A method for standardizing data collection for Cherry Point 
Range Complex and across range complexes,
    (e) General Notification of Injured or Dead Marine Mammals--Navy 
personnel shall ensure that NMFS (regional stranding coordinator) is 
notified immediately (or as soon as clearance procedures allow) if an 
injured or dead marine mammal is found during or shortly after, and in 
the vicinity of, any Navy training exercise utilizing underwater 
explosive detonations. The Navy shall provide NMFS with species or 
description of the animal(s), the condition of the animal(s) (including 
carcass condition if the animal is dead), location, time of first 
discovery, observed behaviors (if alive), and photo or video (if 
available).
    (f) Annual Cherry Point Range Complex Monitoring Plan Report--The 
Navy shall submit a report annually on March 1 describing the 
implementation and results (through January 1 of the same year) of the 
Cherry Point Range Complex Monitoring Plan. Data collection methods 
shall be standardized across range complexes to allow for comparison in 
different geographic locations. Although additional information will 
also be gathered, the MMOs collecting marine mammal data pursuant to the 
Cherry Point Range Complex Monitoring Plan shall, at a minimum, provide 
the same marine mammal observation data required in the data required in 
Sec.  218.24(g). The Cherry Point Range Complex Monitoring Plan Report 
may be provided to NMFS within a larger report that includes the 
required Monitoring Plan Reports from Cherry Point Range Complex and 
multiple range complexes.
    (g) Annual Cherry Point Range Complex Exercise Report--The Navy 
shall provide the information described below for all of their explosive 
exercises. Until the Navy is able to report in full the information 
below, they shall provide an annual update on the Navy's explosive 
tracking methods, including improvements from the previous year.
    (1) Total annual number of each type of explosive exercise (of those 
identified as part of the ``specified activity'' in this final rule) 
conducted in the Cherry Point Range Complex.
    (2) Total annual expended/detonated rounds (missiles, bombs, etc.) 
for each explosive type.
    (h) Cherry Point Range Complex 5-yr Comprehensive Report--The Navy 
shall submit to NMFS a draft report that analyzes and summarizes all of 
the multi-year marine mammal information gathered during the Cherry 
Point Range Complex exercises for which annual reports are required 
(Annual Cherry Point Range Complex Exercise Reports and Cherry Point 
Range Complex Monitoring Plan Reports). This report shall be submitted 
at the end of the

[[Page 183]]

fourth year of the rule (May 2013), covering activities that have 
occurred through December 1, 2012.
    (i) The Navy shall respond to NMFS comments and requests for 
additional information or clarification on the Cherry Point Range 
Complex Comprehensive Report, the Annual Cherry Point Range Complex 
Exercise Report, or the Annual Cherry Point Range Complex Monitoring 
Plan Report (or the multi-Range Complex Annual Monitoring Plan Report, 
if that is how the Navy chooses to submit the information) if submitted 
within 3 months of receipt. These reports will be considered final after 
the Navy has addressed NMFS' comments or provided the requested 
information, or three months after the submittal of the draft if NMFS 
does not comment by then.
    (j) In 2011, the Navy shall convene a Monitoring Workshop in which 
the Monitoring Workshop participants will be asked to review the Navy's 
Monitoring Plans and monitoring results and make individual 
recommendations (to the Navy and NMFS) of ways of improving the 
Monitoring Plans. The recommendations shall be reviewed by the Navy, in 
consultation with NMFS, and modifications to the Monitoring Plan shall 
be made, as appropriate.



Sec.  218.25  Applications for Letters of Authorization.

    To incidentally take marine mammals pursuant to these regulations, 
the U.S. citizen (as defined bySec. 216.103 of this chapter) 
conducting the activity identified inSec. 218.20(a) (the U.S. Navy) 
must apply for and obtain either an initial Letter of Authorization in 
accordance withSec. 218.26 or a renewal underSec. 218.27.



Sec.  218.26  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the periods of validity of this 
subpart, but may be renewed or modified sooner subject to the renewal 
conditions inSec. 218.27 and the modification conditions inSec. 
218.28.
    (b) Each Letter of Authorization will set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable 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 Letter 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 affected species or stock of marine mammal(s).

[74 FR 28343, June 15, 2009, as amended at 77 FR 4923, Feb. 1, 2012]



Sec.  218.27  Renewal of Letters of Authorization and Adaptive 
Management.

    (a) A Letter of Authorization issued underSec. 216.106 andSec. 
218.26 of this chapter for the activity identified inSec. 218.20(c) 
will be renewed annually upon:
    (1) Notification to NMFS that the activity described in the 
application submitted underSec. 218.25 shall be undertaken and that 
there will not be a substantial modification to the described work, 
mitigation or monitoring undertaken during the upcoming 12 months;
    (2) Timely receipt of the monitoring reports required underSec. 
218.24; and
    (3) A determination by the NMFS that the mitigation, monitoring and 
reporting measures required underSec. 218.23 and the Letter of 
Authorization issued under Sec.Sec. 216.106 and 218.26 of this 
chapter, were undertaken and will be undertaken during the upcoming 
annual period of validity of a renewed Letter of Authorization.
    (b) If a request for a renewal of a Letter of Authorization issued 
under Sec.Sec. 216.106 and 218.27 of this chapter indicates that a 
substantial modification to the described work, mitigation or monitoring 
undertaken during the upcoming season will occur, the NMFS will provide 
the public a period of 30 days for review and comment on the request. 
Review and comment on renewals of Letters of Authorization are 
restricted to:
    (1) New cited information and data indicating that the 
determinations made in this document are in need of reconsideration, and

[[Page 184]]

    (2) Proposed changes to the mitigation and monitoring requirements 
contained 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 Register.
    (d) NMFS, in response to new information and in consultation with 
the Navy, may modify the mitigation or monitoring measures in subsequent 
LOAs if doing so creates a reasonable likelihood of more effectively 
accomplishing the goals of mitigation 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 decision to modify the mitigation 
or monitoring measures:
    (1) Results from the Navy's monitoring from the previous year 
(either from Cherry Point Study Area or other locations).
    (2) Findings of the Monitoring Workshop that the Navy will convene 
in 2011 (Sec.  218.24(j)).
    (3) Compiled results of Navy funded research and development (R&D) 
studies (presented pursuant to the ICMP (Sec.  218.24(d)).
    (4) Results from specific stranding investigations (either from the 
Cherry Point Range Complex Study Area or other locations).
    (5) Results from general marine mammal and sound research (funded by 
the Navy (described below) or otherwise).
    (6) 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.

[74 FR 28343, June 15, 2009, as amended at 77 FR 4923, Feb. 1, 2012]



Sec.  218.28  Modifications to Letters of Authorization.

    (a) Except as provided in paragraph (b) of this section, no 
substantive modification (including withdrawal or suspension) to the 
Letter of Authorization by NMFS, issued pursuant to Sec.Sec. 216.106 
and 218.26 and subject to the provisions of this subpart shall be made 
until after notification and an opportunity for public comment has been 
provided. For purposes of this paragraph, a renewal of a Letter of 
Authorization underSec. 218.27, without modification (except for the 
period of validity), is not considered a substantive modification.
    (b) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species or 
stocks of marine mammals specified inSec. 218.20(b), a Letter of 
Authorization issued pursuant to Sec.Sec. 216.106 and 218.26 may be 
substantively modified without prior notification and an opportunity for 
public comment. Notification will be published in the Federal Register 
within 30 days subsequent to the action.



Subpart D_Taking Marine Mammals Incidental to U.S. Navy Training in the 
                      Gulf of Mexico Range Complex

    Source: 76 FR 9260, Feb. 17, 2011, unless otherwise noted.

    Effective Date Note: At 76 FR 9260, Feb. 17, 2011, subpart D was 
added, effective Feb. 17, 2011 to Feb. 17, 2016.



Sec.  218.30  Specified activity and specified geographical area
and effective dates.

    (a) Regulations in this subpart apply only to the U.S. Navy for the 
taking of marine mammals that occurs in the area outlined in paragraph 
(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 Navy is only authorized if 
it occurs within the GOMEX Range Complex Operation Areas (OPAREAs), 
which is located along the Gulf of Mexico coast of the U.S. described in 
Figures 1 and 2 of the LOA application and consists of the BOMBEX Hotbox 
(surface and subsurface waters), located off the Alabama and Florida 
coast, south of NAS Pensacola, and underwater detonation (UNDET) Area E3 
(surface and subsurface waters), located within the territorial waters 
off Padre Island, Texas, near Corpus Christi NAS.
    (1) The northernmost boundary of the BOMBEX Hotbox is located 23 nm 
(42.6 km) from the coast of the Florida panhandle at latitude 30[deg] N, 
the eastern

[[Page 185]]

boundary is approximately 200 nm (370.4 km) from the coast of the 
Florida peninsula at longitude 86[deg]48' W.
    (2) The UNDET Area E3 is a defined surface and subsurface area 
located in the waters south of Corpus Christi NAS and offshore of Padre 
Island, Texas. The westernmost boundary is located 7.5 nm (13.9 km) from 
the coast of Padre Island at 97[deg]9[min]33[sec] W and 
27[deg]24[min]26[sec] N at the Westernmost corner. It lies entirely 
within the territorial waters (0 to 12 nm, or 0 to 22.2 km) of the U.S. 
and the majority of it lies within Texas state waters (0 to 9 nm, or 0 
to 16.7 km). It is a very shallow water training area with depths 
ranging from 20 to 26 m.
    (c) The taking of marine mammals by the Navy is only authorized if 
it occurs incidental to the following activities:
    (1) The use of the explosive munitions, or similar explosive types, 
indicated in paragraph (c)(1)(i) of this section conducted as part of 
the Navy training events, or similar training events, indicated in 
paragraph (c)(1)(ii) of this section:
    (i) Underwater Explosives:
    (A) MK-83 (1,000 lb High Explosive bomb);
    (B) MK3A2 anti-swimmer concussion grenades (0.5 lbs NEW).
    (ii) Training Events:
    (A) BOMBEX (Air-to-Surface)--up to 5 events over the course of 5 
years (an average of 1 event per year, with 4 bombs in succession for 
each event);
    (B) Small Arms Training with MK3A2 anti-swimmer concussion 
grenades--up to 30 events over the course of 5 years (an average of 6 
events per year, with up to 10 live grenades authorized per event, but 
no more than 20 live grenades will be used per year).
    (2) [Reserved]
    (d) Regulations are effective February 1, 2012, through February 17, 
2016.
    (e) The taking of marine mammals may be authorized in an LOA for the 
explosive types and activities, or similar explosives and activities, 
listed inSec. 218.30(c) should the amounts (e.g., number of exercises) 
vary from those estimated inSec. 218.30(c), provided that the 
variation does not result in exceeding the amount of take indicated in 
Sec.  218.31(c).

[74 FR 28343, June 15, 2009, as amended at 77 FR 4924, Feb. 1, 2012]



Sec.  218.31  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec.Sec. 
216.106 of this chapter and 218.36, the Holder of the Letter of 
Authorization may incidentally take marine mammals within the area 
described inSec. 218.30(b), 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 inSec. 218.30(c) must be conducted 
in a manner that minimizes, to the greatest extent practicable, any 
adverse impacts on marine mammals and their habitat.
    (c) The incidental take of marine mammals under the activities 
identified inSec. 218.30(c) is limited to the following species, by 
the indicated method of take and the indicated number of times:
    (1) Level B Harassment:
    (i) Sperm whale (Physeter macrocephalus)--25 (an average of 5 
annually);
    (ii) Beaked whales--100 (an average of 20 annually);
    (iii) Bottlenose dolphin (Tursiops truncatus)--150 (an average of 30 
annually);
    (iv) Pantropical spotted dolphin (Stenella attenuata)--130 (an 
average of 26 annually);
    (v) Clymene dolphin (S. clymene)--100 (an average of 20 annually);
    (vi) Atlantic spotted dolphin (S. frontalis)--100 (an average of 20 
annually);
    (vii) Spinner dolphin (S. longirostris)--135 (an average of 27 
annually);
    (viii) Striped dolphin (S. coeruleoalba)--100 (an average of 20 
annually);
    (ix) Risso's dolphin (Grampus griseus)--150 (an average of 30 
annually);
    (x) Melon-headed whales (Peponocephala electra)--100 (an average of 
20 annually);
    (xi) False killer whale (Pseudorca crassidens)--50 (an average of 10 
annually);

[[Page 186]]

    (xii) Fraser's dolphin (Lagenodelphis hosei)--100 (an average of 20 
annually);
    (xiii) Pygmy or dwarf sperm whales (Kogia sp.)--100 (an average of 
20 annually);
    (xiv) Pygmy killer whale (Ferresa attenuatta)--50 (an average of 10 
annually);
    (xv) Rough-toothed dolphin (Steno bredanensis)--100 (an average of 
20 annually);
    (xvi) Short-finned pilot whale (Globicephala macrorhynchus)--100 (an 
average of 20 annually).
    (2) Level A Harassment (injury):
    (i) Pantropical spotted dolphin--5 (an average of 1 annually);
    (ii) Spinner dolphin--5 (an average of 1 annually);



Sec.  218.32  Prohibitions.

    Notwithstanding takings contemplated inSec. 218.31 and authorized 
by a Letter of Authorization issued underSec. 216.106 of this chapter 
andSec. 218.36, no person in connection with the activities described 
inSec. 218.30 may:
    (a) Take any marine mammal not specified inSec. 218.31(c);
    (b) Take any marine mammal specified inSec. 218.31(c) other than 
by incidental take as specified inSec. 218.31(c)(1) and (2);
    (c) Take a marine mammal specified inSec. 218.31(c) if such taking 
results in more than a negligible impact on the species or stocks of 
such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of this Subpart or a Letter of Authorization issued under 
Sec.  216.106 of this chapter andSec. 218.36.



Sec.  218.33  Mitigation.

    (a) When conducting training activities identified inSec. 
218.30(c), the mitigation measures contained in the Letter of 
Authorization issued underSec. 216.106 of this chapter andSec. 
218.36 must be implemented. These mitigation measures include, but are 
not limited to:
    (1) General Maritime Measures:
    (i) Personnel Training--Lookouts:
    (A) All bridge personnel, Commanding Officers, Executive Officers, 
officers standing watch on the bridge, maritime patrol aircraft 
aircrews, and Mine Warfare (MIW) helicopter crews shall complete Marine 
Species Awareness Training (MSAT).
    (B) Navy lookouts shall undertake extensive training to qualify as a 
watchstander in accordance with the Lookout Training Handbook (NAVEDTRA 
12968-D).
    (C) Lookout training shall include on-the-job instruction under the 
supervision of a qualified, experienced watchstander. Following 
successful completion of this supervised training period, lookouts shall 
complete the Personal Qualification Standard Program, certifying that 
they have demonstrated the necessary skills (such as detection and 
reporting of partially submerged objects).
    (D) Lookouts shall be trained in the most effective means to ensure 
quick and effective communication within the command structure to 
facilitate implementation of protective measures if marine species are 
spotted.
    (E) Surface lookouts shall scan the water from the ship to the 
horizon and be responsible for all contacts in their sector. In 
searching the assigned sector, the lookout shall always start at the 
forward part of the sector and search aft (toward the back). To search 
and scan, the lookout shall hold the binoculars steady so the horizon is 
in the top third of the field of vision and direct the eyes just below 
the horizon. The lookout shall scan for approximately five seconds in as 
many small steps as possible across the field seen through the 
binoculars. They shall search the entire sector in approximately five-
degree steps, pausing between steps for approximately five seconds to 
scan the field of view. At the end of the sector search, the glasses 
shall be lowered to allow the eyes to rest for a few seconds, and then 
the lookout shall search back across the sector with the naked eye.
    (F) At night, lookouts shall scan the horizon in a series of 
movements that would allow their eyes to come to periodic rests as they 
scan the sector. When visually searching at night, they shall look a 
little to one side and out of the corners of their eyes, paying 
attention to the things on the outer edges of their field of vision. 
Lookouts shall also have night vision devices available for use.

[[Page 187]]

    (ii) Operating Procedures & Collision Avoidance:
    (A) Prior to major exercises, a Letter of Instruction, Mitigation 
Measures Message or Environmental Annex to the Operational Order shall 
be issued to further disseminate the personnel training requirement and 
general marine species mitigation measures.
    (B) Commanding Officers shall make use of marine species detection 
cues and information to limit interaction with marine species to the 
maximum extent possible consistent with safety of the ship.
    (C) While underway, surface vessels shall have at least two lookouts 
with binoculars; surfaced submarines shall have at least one lookout 
with binoculars. Lookouts already posted for safety of navigation and 
man-overboard precautions may be used to fill this requirement. As part 
of their regular duties, lookouts shall watch for and report to the OOD 
the presence of marine mammals.
    (D) Personnel on lookout shall employ visual search procedures 
employing a scanning method in accordance with the Lookout Training 
Handbook (NAVEDTRA 12968-D).
    (E) After sunset and prior to sunrise, lookouts shall employ Night 
Lookouts Techniques in accordance with the Lookout Training Handbook 
(NAVEDTRA 12968-D).
    (F) While in transit, naval vessels shall be alert at all times, use 
extreme caution, and proceed at a ``safe speed'' (the minimum speed at 
which mission goals or safety will not be compromised) so that the 
vessel can take proper and effective action to avoid a collision with 
any marine animal and can be stopped within a distance appropriate to 
the prevailing circumstances and conditions.
    (G) When marine mammals have been sighted in the area, Navy vessels 
shall increase vigilance and implement measures to avoid collisions with 
marine mammals and avoid activities that might result in close 
interaction of naval assets and marine mammals. Such measures shall 
include changing speed and/or course direction and would be dictated by 
environmental and other conditions (e.g., safety or weather).
    (H) Naval vessels shall maneuver to keep at least 500 yds (460 m) 
away from any observed whale and avoid approaching whales head-on. This 
requirement does not apply if a vessel's safety is threatened, such as 
when change of course will create an imminent and serious threat to a 
person, vessel, or aircraft, and to the extent vessels are restricted in 
their ability to maneuver. Vessels shall take reasonable steps to alert 
other vessels in the vicinity of the whale.
    (I) Where feasible and consistent with mission and safety, vessels 
shall avoid closing to within 200-yd (183 m) of marine mammals other 
than whales (whales addressed above).
    (J) Navy aircraft participating in exercises at sea shall conduct 
and maintain, when operationally feasible and safe, surveillance for 
marine species of concern as long as it does not violate safety 
constraints or interfere with the accomplishment of primary operational 
duties. Marine mammal detections shall be immediately reported to 
assigned Aircraft Control Unit for further dissemination to ships in the 
vicinity of the marine species as appropriate where it is reasonable to 
conclude that the course of the ship will likely result in a closing of 
the distance to the detected marine mammal.
    (K) All vessels shall maintain logs and records documenting training 
operations should they be required for event reconstruction purposes. 
Logs and records shall be kept for a period of 30 days following 
completion of a major training exercise.
    (2) Coordination and Reporting Requirements:
    (i) The Navy shall coordinate with the local NMFS Stranding 
Coordinator for any unusual marine mammal behavior and any stranding, 
beached live/dead, or floating marine mammals that may occur at any time 
during or within 24 hours after completion of training activities.
    (ii) The Navy shall follow internal chain of command reporting 
procedures as promulgated through Navy instructions and orders.
    (3) Mitigation Measures for Specific At-sea Training Events--If a 
marine mammal is injured or killed as a result

[[Page 188]]

of the proposed Navy training activities (e.g., instances in which it is 
clear that munitions explosions caused the death), the Navy shall 
suspend its activities immediately and report such incident to NMFS.
    (i) Air-to-Surface At-Sea Bombing Exercises (1,000-lbs explosive 
bombs):
    (A) This activity shall only occur in the W-155A/B (hot box) area, 
or in similar areas that will not result in marine mammal takes 
exceeding the amount indicated inSec. 218.31(c).
    (B) Aircraft shall visually survey the target and buffer zone for 
marine mammals prior to and during the exercise. The survey of the 
impact area shall be made by flying at 1,500 ft (457 m) altitude or 
lower, if safe to do so, and at the slowest safe speed. Release of 
ordnance through cloud cover is prohibited; aircraft must be able to 
actually see ordnance impact areas.
    (C) A buffer zone of a 5,100-yard (4,663-m) radius shall be 
established around the intended target zone. The exercises shall be 
conducted only if the buffer zone is clear of marine mammals.
    (D) At-sea BOMBEXs using live ordnance shall occur during daylight 
hours only.
    (ii) Small Arms Training--Explosive hand grenades (such as the MK3A2 
grenades):
    (A) Lookouts shall visually survey for marine mammals prior to and 
during exercise.
    (B) A 200-yd (182-m) radius buffer zone shall be established around 
the intended target. The exercises shall be conducted only if the buffer 
zone is clear of marine mammals.
    (b) [Reserved]

[74 FR 28343, June 15, 2009, as amended at 77 FR 4924, Feb. 1, 2012]



Sec.  218.34  Requirements for monitoring and reporting.

    (a) The Holder of the Letter of Authorization issued pursuant to 
Sec.  216.106 of this chapter andSec. 218.36 for activities described 
inSec. 218.30(c) is required to cooperate with the NMFS when 
monitoring the impacts of the activity on marine mammals.
    (b) The Holder of the Authorization must notify NMFS immediately (or 
as soon as clearance procedures allow) if the specified activity 
identified inSec. 218.30(c) is thought to have resulted in the 
mortality or serious injury of any marine mammals, or in any take of 
marine mammals not identified inSec. 218.31(c).
    (c) The Navy must conduct all monitoring and required reporting 
under the Letter of Authorization, including abiding by the GOMEX Range 
Complex Monitoring Plan, which is incorporated herein by reference, and 
which requires the Navy to implement, at a minimum, the monitoring 
activities summarized below.
    (1) Vessel or aerial surveys.
    (i) The Holder of this Authorization shall visually survey a minimum 
of 1 explosive event per year. One of the vessel or aerial surveys 
should involve professional trained marine mammal observers (MMOs). If 
it is impossible to conduct the required surveys due to lack of training 
exercises, the missed annual survey requirement shall roll into the 
subsequent year to ensure that the appropriate number of surveys (i.e., 
total of five) occurs over the 5-year period of effectiveness of this 
subject.
    (ii) When operationally feasible, for specified training events, 
aerial or vessel surveys shall be used 1-2 days prior to, during (if 
reasonably safe), and 1-5 days post detonation.
    (iii) Surveys shall include any specified exclusion zone around a 
particular detonation point plus 2,000 yards beyond the border of the 
exclusion zone (i.e., the circumference of the area from the border of 
the exclusion zone extending 2,000 yards outwards). For vessel-based 
surveys a passive acoustic system (hydrophone or towed array) could be 
used to determine if marine mammals are in the area before and/or after 
a detonation event.
    (iv) When conducting a particular survey, the survey team shall 
collect:
    (A) Location of sighting;
    (B) Species (if not possible, indicate whale, dolphin or pinniped);
    (C) Number of individuals;
    (D) Whether calves were observed;
    (E) Initial detection sensor;
    (F) Length of time observers maintained visual contact with marine 
mammal;
    (G) Wave height;
    (H) Visibility;

[[Page 189]]

    (I) Whether sighting was before, during, or after detonations/
exercise, and how many minutes before or after;
    (J) Distance of marine mammal from actual detonations (or target 
spot if not yet detonated);
    (K) Observed behavior--Watchstanders shall report, in plain language 
and without trying to categorize in any way, the observed behavior of 
the animal(s) (such as animal closing to bow ride, paralleling course/
speed, floating on surface and not swimming etc.), including speed and 
direction;
    (L) Resulting mitigation implementation--Indicate whether explosive 
detonations were delayed, ceased, modified, or not modified due to 
marine mammal presence and for how long; and
    (M) If observation occurs while explosives are detonating in the 
water, indicate munitions type in use at time of marine mammal 
detection.
    (2) Passive acoustic monitoring--the Navy shall conduct passive 
acoustic monitoring when operationally feasible.
    (i) Any time a towed hydrophone array is employed during shipboard 
surveys the towed array shall be deployed during daylight hours for each 
of the days the ship is at sea.
    (ii) The towed hydrophone array shall be used to supplement the 
ship-based systematic line-transect surveys (particularly for species 
such as beaked whales that are rarely seen).
    (iii) The array should have the capability of detecting low 
frequency vocalizations (<1,000 Hz) for baleen whales and relatively 
high frequency (up to 30 kHz) for odontocetes. The use of two 
simultaneously deployed arrays can also allow more accurate localization 
and determination of diving patterns.
    (3) Marine mammal observers on Navy platforms:
    (i) As required inSec. 218.34(c)(1), MMOs who are selected for 
aerial or vessel surveys shall, to the extent practicable, be placed on 
a Navy platform during the exercises being monitored.
    (ii) The MMO must possess expertise in species identification of 
regional marine mammal species and experience collecting behavioral 
data.
    (iii) MMOs shall not be placed aboard Navy platforms for every Navy 
training event or major exercise. Instead, MMOs should be employed 
during specifically identified opportunities deemed appropriate for data 
collection efforts. The events selected for MMO participation shall take 
into account safety, logistics, and operational concerns.
    (iv) MMOs shall observe from the same height above water as the 
lookouts.
    (v) The MMOs shall not be part of the Navy's formal reporting chain 
of command during their data collection efforts; Navy lookouts shall 
continue to serve as the primary reporting means within the Navy chain 
of command for marine mammal sightings. The only exception is that if an 
animal is observed within the shutdown zone that has not been observed 
by the lookout, the MMO shall inform the lookout of the sighting and the 
lookout shall take the appropriate action through the chain of command.
    (vi) The MMOs shall collect species identification, behavior, 
direction of travel relative to the Navy platform, and distance first 
observed. Information collected by MMOs should be the same as those 
collected by the survey team described inSec. 218.34(c)(1)(iv).
    (d) General Notification of Injured or Dead Marine Mammals--Navy 
personnel shall ensure that NMFS (regional stranding coordinator) is 
notified immediately (or as soon as clearance procedures allow) if an 
injured or dead marine mammal is found during or shortly after, and in 
the vicinity of, any Navy training exercise utilizing underwater 
explosive detonations. The Navy shall provide NMFS with species or 
description of the animal(s), the condition of the animal(s) (including 
carcass condition if the animal is dead), location, time of first 
discovery, observed behaviors (if alive), and photo or video (if 
available).
    (e) Annual GOMEX Range Complex Monitoring Plan Report--The Navy 
shall submit a report annually on March 1 describing the implementation 
and results (through January 1 of the same year) of the GOMEX Range 
Complex Monitoring Plan. Data collection methods shall be standardized 
across

[[Page 190]]

range complexes to allow for comparison in different geographic 
locations. Although additional information will also be gathered, the 
MMOs collecting marine mammal data pursuant to the GOMEX Range Complex 
Monitoring Plan shall, at a minimum, provide the same marine mammal 
observation data required inSec. 218.34(c)(1)(iv). The GOMEX Range 
Complex Monitoring Plan Report may be provided to NMFS within a larger 
report that includes the required Monitoring Plan Reports from GOMEX 
Range Complex and multiple range complexes.
    (f) Annual GOMEX Range Complex Exercise Report--The Navy shall 
provide the information described below for all of their explosive 
exercises. Until the Navy is able to report in full the information 
below, they shall provide an annual update on the Navy's explosive 
tracking methods, including improvements from the previous year.
    (1) Total annual number of each type of explosive exercise (of those 
identified as part of the ``specified activity'' in this final rule) 
conducted in the GOMEX Range Complex.
    (2) Total annual expended/detonated rounds (missiles, bombs, etc.) 
for each explosive type.
    (g) GOMEX Range Complex 5-yr Comprehensive Report--The Navy shall 
submit to NMFS a draft report that analyzes and summarizes all of the 
multi-year marine mammal information gathered during the GOMEX Range 
Complex exercises for which annual reports are required (Annual GOMEX 
Range Complex Exercise Reports and GOMEX Range Complex Monitoring Plan 
Reports). This report shall be submitted at the end of the fourth year 
of the rule (February 2015), covering activities that have occurred 
through August 1, 2014.
    (h) The Navy shall respond to NMFS comments and requests for 
additional information or clarification on the GOMEX Range Complex 
Comprehensive Report, the Annual GOMEX Range Complex Exercise Report, or 
the Annual GOMEX Range Complex Monitoring Plan Report (or the multi-
Range Complex Annual Monitoring Plan Report, if that is how the Navy 
chooses to submit the information) if submitted within 3 months of 
receipt. These reports will be considered final after the Navy has 
addressed NMFS' comments or provided the requested information, or three 
months after the submittal of the draft if NMFS does not comment by 
then.
    (i) In 2011, the Navy shall convene a Monitoring Workshop in which 
the Monitoring Workshop participants will be asked to review the Navy's 
Monitoring Plans and monitoring results and make individual 
recommendations (to the Navy and NMFS) of ways of improving the 
Monitoring Plans. The recommendations shall be reviewed by the Navy, in 
consultation with NMFS, and modifications to the Monitoring Plan shall 
be made, as appropriate.



Sec.  218.35  Applications for Letters of Authorization.

    To incidentally take marine mammals pursuant to these regulations, 
the U.S. citizen (as defined bySec. 216.103 of this chapter) 
conducting the activity identified inSec. 218.30(a) (the U.S. Navy) 
must apply for and obtain either an initial Letter of Authorization in 
accordance withSec. 218.36 or a renewal underSec. 218.37.



Sec.  218.36  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the periods of validity of this 
subpart, but may be renewed or modified sooner subject to the renewal 
conditions inSec. 218.37 and the modification conditions inSec. 
218.38.
    (b) Each Letter of Authorization will set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable 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 Letter 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 affected species or stock of marine mammal(s).

[74 FR 28343, June 15, 2009, as amended at 77 FR 4924, Feb. 1, 2012]

[[Page 191]]



Sec.  218.37  Renewal of Letters of Authorization and adaptive
management.

    (a) A Letter of Authorization issued underSec. 216.106 of this 
chapter andSec. 218.36 for the activity identified inSec. 218.30(c) 
will be renewed upon:
    (1) Notification to NMFS that the activity described in the 
application submitted underSec. 218.35 will be undertaken and that 
there will not be a substantial modification to the desired work, 
mitigation, or monitoring undertaken during the upcoming period of 
validity;
    (2) Timely receipt of the monitoring reports required underSec. 
218.34; and
    (3) A determination by NMFS that the mitigation, monitoring and 
reporting measures required underSec. 218.33 and the Letter of 
Authorization issued underSec. 216.106 of this chapter andSec. 
218.36, were undertaken and will be undertaken during the upcoming 
period of validity of a renewed Letter of Authorization.
    (b) If a request for a renewal of a Letter of Authorization issued 
under Sec.Sec. 216.106 and 218.37 of this chapter indicates that a 
substantial modification to the described work, mitigation or monitoring 
undertaken during the upcoming season will occur, the NMFS will provide 
the public a period of 30 days for review and comment on the request. 
Review and comment on renewals of Letters of Authorization 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 changes to the mitigation and monitoring requirements 
contained 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 Register.
    (d) NMFS, in response to new information and in consultation with 
the Navy, may modify the mitigation or monitoring measures in subsequent 
LOAs if doing so creates a reasonable likelihood of more effectively 
accomplishing the goals of mitigation 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 decision to modify the mitigation 
or monitoring measures:
    (1) Results from the Navy's monitoring from the previous year 
(either from GOMEX Study Area or other locations).
    (2) Findings of the Monitoring Workshop that the Navy will convene 
in 2011 (Sec.  218.34(j)).
    (3) Results from specific stranding investigations (either from the 
GOMEX Range Complex Study Area or other locations).
    (4) Results from general marine mammal and sound research (funded by 
the Navy (described below) or otherwise).
    (5) 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.

[74 FR 28343, June 15, 2009, as amended at 77 FR 4924, Feb. 1, 2012]



Sec.  218.38  Modifications to Letters of Authorization.

    (a) Except as provided in paragraph (b) of this section, no 
substantive modification (including withdrawal or suspension) to the 
Letter of Authorization by NMFS, issued pursuant to Sec.Sec. 216.106 
and 218.36 of this chapter and subject to the provisions of this subpart 
shall be made until after notification and an opportunity for public 
comment has been provided. For purposes of this paragraph, a renewal of 
a Letter of Authorization underSec. 218.37, without modification 
(except for the period of validity), is not considered a substantive 
modification.
    (b) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species or 
stocks of marine mammals specified inSec. 218.30(b), a Letter of 
Authorization issued pursuant to Sec.Sec. 216.106 and 218.36 of this 
chapter may be substantively modified without prior notification and an 
opportunity for public comment. Notification will be published in the 
Federal Register within 30 days subsequent to the action.

Subparts E-K [Reserved]

[[Page 192]]



   Subpart L_Taking and Importing Marine Mammals; U.S. Navy's Mariana 
                  Islands Training Range Complex (MIRC)

    Source: 75 FR 45547, Aug. 3, 2010, unless otherwise noted.

    Effective Date Note: At 75 FR 45547, Aug. 3, 2010, Subpart L was 
added, effective Aug. 3, 2010 through Aug. 3, 2015.



Sec.  218.100  Specified activity and specified geographical area.

    (a) Regulations in this subpart apply only to the U.S. Navy for the 
taking of marine mammals that occurs in the area outlined in paragraph 
(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 Navy may be authorized in a 
Letter of Authorization (LOA) if it occurs within the Mariana Islands 
Range Complex (MIRC) Study Area (as depicted in Figure 1-1 in the Navy's 
application for MIRC), which is bounded by a pentagon with the following 
five corners: 16[deg]46[min]29.3376[sec] N. lat., 
138[deg]00[min]59.835[sec] E. long.; 20[deg]02[min]24.8094[sec] N. lat., 
140[deg]10[min]13.8642[sec] E. long.; 20[deg]3[min]27.5538[sec] N. lat., 
149[deg]17[min]41.0388[sec] E. long.; 7[deg]0[min]30.0702[sec] N. lat., 
149[deg]16[min]14.8542[sec] E. long; and 6[deg]59[min]24.633[sec] N. 
lat, 138[deg]1[min]29.7228[sec] E. long.
    (c) The taking of marine mammals by the Navy is only authorized if 
it occurs incidental to the following activities:
    (1) The use of the following mid-frequency active sonar (MFAS) and 
high frequency active sonar (HFAS) sources, or similar sources, for Navy 
training, maintenance, or research, development, testing, and evaluation 
(RDT&E) (estimated amounts below):
    (i) AN/SQS-53 (hull-mounted active sonar)--up to 10865 hours over 
the course of 5 years (an average of 2173 hours per year);
    (ii) AN/SQS-56 (hull-mounted active sonar)-up to 705 hours over the 
course of 5 years (an average of 141 hours per year);
    (iii) AN/SSQ-62 (Directional Command Activated Sonobuoy System 
(DICASS) sonobuoys)-up to 8270 sonobuoys over the course of 5 years (an 
average of 1654 sonobuoys per year);
    (iv) AN/AQS-22 (helicopter dipping sonar)--up to 2,960 dips over the 
course of 5 years (an average of 592 dips per year);
    (v) AN/BQQ-10 (submarine hull-mounted sonar)--up to 60 hours over 
the course of 5 years (an average of 12 hours per year);
    (vi) MK-48, MK-46, or MK-54 (torpedoes)--up to 200 torpedoes over 
the course of 5 years (an average of 40 torpedoes per year);
    (vii) AN/SSQ-110 (IEER)--up to 530 buoys deployed over the course of 
5 years (an average of 106 per year);
    (viii) AN/SSQ-125 (AEER)--up to 530 buoys deployed over the course 
of 5 years (an average of 106 per year);
    (ix) Range Pingers--up to 1,400 hours over the course of 5 years (an 
average of 280 hours per year); and
    (x) PUTR Transponder--up to 1,400 hours over the course of 5 years 
(an average of 280 hours per year).
    (2) The detonation of the underwater explosives indicated in 
paragraph (c)(2)(i) of this section, or similar explosives, conducted as 
part of the training exercises indicated in paragraph (c)(2)(ii) of this 
section:
    (i) Underwater Explosives (Net Explosive Weight (NEW)):
    (A) 5[sec] Naval Gunfire (9.5 lbs NEW);
    (B) 76 mm rounds (1.6 lbs NEW);
    (C) Maverick (78.5 lbs NEW);
    (D) Harpoon (448 lbs NEW);
    (E) MK-82 (238 lbs NEW);
    (F) MK-83 (574 lbs NEW);
    (G) MK-84 (945 lbs NEW);
    (H) MK-48 (851 lbs NEW);
    (I) Demolition Charges (10 lbs NEW);
    (J) AN/SSQ-110A (IEER explosive sonobuoy--5 lbs NEW);
    (K) Hellfire (16.5 lbs NEW);
    (L) GBU 38/32/31.
    (ii) Training Events:
    (A) Gunnery Exercises (S-S GUNEX)--up to 60 exercises over the 
course of 5 years (an average of 12 per year);
    (B) Bombing Exercises (BOMBEX)--up to 20 exercises over the course 
of 5 years (an average of 4 per year);
    (C) Sinking Exercises (SINKEX)--up to 10 exercises over the course 
of 5 years (an average of 2 per year);

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    (D) Extended Echo Ranging and Improved Extended Echo Ranging (EER/
IEER) Systems--up to 530 deployments over the course of 5 years (an 
average of 106 per year);
    (E) Demolitions--up to 250 over the course of 5 years (an average of 
50 per year); and
    (F) Missile exercises (A-S MISSILEX)--up to 10 exercises over the 
course of 5 years (an average of 2 per year).
    (d) The taking of marine mammals may also be authorized in an LOA 
for the activities and sources listed inSec. 218.100(c) should the 
amounts (i.e., hours, dips, number of exercises) vary from those 
estimated inSec. 218.100(c), provided that the variation does not 
result in exceeding the amount of take indicated inSec. 218.102.

[75 FR 45547, Aug. 3, 2010, as amended at 77 FR 4924, Feb. 1, 2012]



Sec.  218.101  Effective dates.

    Amended regulations are effective February 1, 2012, through August 
3, 2015.

[77 FR 4924, Feb. 1, 2012]



Sec.  218.102  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec.Sec. 
216.106 and 218.107 of this chapter, the Holder of the Letter of 
Authorization (hereinafter ``Navy'') may incidentally, but not 
intentionally, take marine mammals within the area described inSec. 
218.100(b), provided the activity is in compliance with all terms, 
conditions, and requirements of these regulations and the appropriate 
Letter of Authorization.
    (b) The activities identified inSec. 218.100(c) must be conducted 
in a manner that minimizes, to the greatest extent practicable, any 
adverse impacts on marine mammals and their habitat.
    (c) The incidental take of marine mammals under the activities 
identified inSec. 218.100(c) is limited to the species listed in this 
paragraph (4), (5), and (6) of this section (c) by the indicated method 
of take and the indicated number of times (estimated based on the 
authorized amounts of sound source operation), but with the following 
allowances for annual variation in activities:
    (1) In any given year, annual take, by harassment, of any species of 
marine mammal may not exceed the amount identified in paragraphs (b)(4) 
and (b)(5) of this section, for that species by more than 25% (a post-
calculation/estimation of which must be provided in the annual LOA 
application);
    (2) In any given year, annual take by harassment of all marine 
mammal species combined may not exceed the estimated total of all 
species combined, indicated in paragraphs (b)(4) and (b)(5) of this 
section, by more than 10%; and
    (3) Over the course of the effective period of this subpart, total 
take, by harassment, of any species may not exceed the 5-year amounts 
indicated in paragraphs (b)(4) and (b)(5) of this section by more than 
10%. A running calculation/estimation of takes of each species over the 
course of the years covered by the rule must be maintained.
    (4) Level B Harassment:
    (i) Mysticetes:
    (A) Humpback whale (Megaptera novaeangliae)--4,025 (an average of 
805 annually);
    (B) Fin whale (Balaenoptera physalus)--910 (an average of 182 
annually);
    (C) Blue whale (Balaenoptera musculus)--650 (an average of 130 
annually);
    (D) Sei whale (Balaenoptera borealis)--1,625 (an average of 325 
annually);
    (E) Minke whale (Balaenoptera acutorostrata)--2,225 (an average of 
445 annually);
    (F) Bryde's whale (Balaenoptera edeni)--2,285 (an average of 457 
annually); and
    (G) Unidentified Baleanopterid whales--360 (an average of 72 
annually).
    (ii) Odontocetes:
    (A) Sperm whales (Physeter macrocephalus)--4,120 (an average of 824 
annually);
    (B) Killer whale (Orcinus orca)- 1,150 (an average of 230 annually);
    (C) Pygmy or dwarf sperm whales (Kogia breviceps or Kogia sima)--
33,530 (an average of 6,706 annually);
    (D) Blainville's beaked whales (Mesoplodon densirostris);--3,850 (an 
average of 770 annually);

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    (E) Cuvier's beaked whales (Ziphius cavirostris)--18,140 (an average 
of 3,628 annually);
    (F) Ginkgo-toothed beaked whales (Mesoplodon ginkgodens)--2,150 (an 
average of 430 annually);
    (G) Longman's beaked whale (Indopacetus pacificus)--1,030 (an 
average of 206 annually);
    (H) Short-finned pilot whale (Globicephala macrorynchus)--11,370 (an 
average of 2,274 annually);
    (I) Melon-headed whale (Peponocephala electra)--14,315 (an average 
of 2,863 annually);
    (J) Pygmy killer whale (Feresa attenuata)--800 (an average of 160 
annually);
    (K) False killer whale (Pseudorca crassidens)--6,445 (an average of 
1,289 annually);
    (L) Striped dolphin (Stenella coeruleoalba)--44,290 (an average of 
8,858 annually);
    (M) Short-beaked common dolphin (Delphinus delphis)--4,715 (an 
average of 943 annually);
    (N) Risso's dolphin (Grampus griseus)--33,865 (an average of 6,773 
annually);
    (O) Bottlenose dolphin (Tursiops truncates)--855 (an average of 171 
annually);
    (P) Fraser's dolphin (Lagenodelphis hosei)--23,075 (an average of 
4,615 annually);
    (Q) Pantropical spotted dolphin (Stenella attenuata)--162,495 (an 
average of 32,499 annually);
    (R) Rough-toothed dolphin (Steno bredanensis)--1,205 (an average of 
241 annually);
    (S) Spinner dolphin (Stenella longirostris)--10,720 (an average of 
2,144 annually); and
    (T) Unidentified delphinid--7,690 (an average of 1,538 annually).
    (5) Level A Harassment:
    (i) Sperm whale--5 (an average of 1 annually);
    (ii) Pantropical spotted dolphin--5 (an average of 1 annually);
    (6) Level A Harassment and/or mortality of no more than 10 beaked 
whales (total), of any of the species listed inSec. 
218.102(c)(4)(ii)(D) through (G) over the course of the 5-year 
regulations.



Sec.  218.103  Prohibitions.

    No person in connection with the activities described inSec. 
218.100 may:
    (a) Take any marine mammal not specified inSec. 218.102(c);
    (b) Take any marine mammal specified inSec. 218.102(c) other than 
by incidental take as specified in Sec.Sec. 218.102(c)(1) and (c)(2);
    (c) Take a marine mammal specified inSec. 218.102(c) if such 
taking results in more than a negligible impact on the species or stocks 
of such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of these regulations or a Letter of Authorization issued 
under Sec.Sec. 216.106 and 218.107 of this chapter.



Sec.  218.104  Mitigation.

    (a) When conducting training and utilizing the sound sources or 
explosives identified inSec. 218.100(c), the mitigation measures 
contained in a Letter of Authorization issued under Sec.Sec. 216.106 
and 218.107 of this chapter must be implemented. These mitigation 
measures include, but are not limited to:
    (1) Personnel Training:
    (i) All commanding officers (COs), executive officers (XOs), 
lookouts, Officers of the Deck (OODs), junior OODs (JOODs), maritime 
patrol aircraft aircrews, and Anti-submarine Warfare (ASW)/Mine Warfare 
(MIW) helicopter crews shall complete the NMFS-approved Marine Species 
Awareness Training (MSAT) by viewing the U.S. Navy MSAT digital 
versatile disk (DVD). All bridge lookouts shall complete both parts one 
and two of the MSAT; part two is optional for other personnel.
    (ii) Navy lookouts shall undertake extensive training in order to 
qualify as a watchstander in accordance with the Lookout Training 
Handbook (Naval Education and Training Command [NAVEDTRA] 12968-D).
    (iii) Lookout training shall include on-the-job instruction under 
the supervision of a qualified, experienced lookout. Following 
successful completion of this supervised training period, lookouts shall 
complete the Personal Qualification Standard Program, certifying

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that they have demonstrated the necessary skills (such as detection and 
reporting of partially submerged objects). Personnel being trained as 
lookouts can be counted among required lookouts as long as supervisors 
monitor their progress and performance.
    (iv) Lookouts shall be trained in the most effective means to ensure 
quick and effective communication within the command structure in order 
to facilitate implementation of protective measures if marine species 
are spotted.
    (v) All lookouts onboard platforms involved in ASW training events 
will review the NMFS-approved Marine Species Awareness Training material 
prior to use of MFAS.
    (vi) All COs, XOs, and officers standing watch on the bridge will 
review the Marine Species Awareness Training material prior to a 
training event employing the use of MFAS/HFAS.
    (2) General Operating Procedures (for all training types):
    (i) Prior to major exercises, a Letter of Instruction, Mitigation 
Measures Message or Environmental Annex to the Operational Order shall 
be issued to further disseminate the personnel training requirement and 
general marine species protective measures.
    (ii) COs shall make use of marine species detection cues and 
information to limit interaction with marine mammals to the maximum 
extent possible consistent with safety of the ship.
    (iii) While underway, surface vessels shall have at least two 
lookouts with binoculars; surfaced submarines shall have at least one 
lookout with binoculars. Lookouts already posted for safety of 
navigation and man-overboard precautions may be used to fill this 
requirement. As part of their regular duties, lookouts will watch for 
and report to the OOD the presence of marine mammals.
    (iv) On surface vessels equipped with a multi-function active 
sensor, pedestal mounted ``Big Eye'' (20x110) binoculars shall be 
properly installed and in good working order to assist in the detection 
of marine mammals in the vicinity of the vessel.
    (v) Personnel on lookout shall employ visual search procedures 
employing a scanning methodology in accordance with the Lookout Training 
Handbook (NAVEDTRA 12968-D).
    (vi) After sunset and prior to sunrise, lookouts shall employ Night 
Lookouts Techniques in accordance with the Lookout Training Handbook 
(NAVEDTRA 12968-D).
    (vii) While in transit, naval vessels shall be alert at all times, 
use extreme caution, and proceed at a ``safe speed'', which means the 
speed at which the CO can maintain crew safety and effectiveness of 
current operational directives, so that the vessel can take action to 
avoid a collision with any marine mammal.
    (viii) When marine mammals have been sighted in the area, Navy 
vessels shall increase vigilance and take all reasonable actions to 
avoid collisions and close interaction of naval assets and marine 
mammals. Such action may include changing speed and/or direction and are 
dictated by environmental and other conditions (e.g., safety, weather).
    (ix) Navy aircraft participating in exercises at-sea shall conduct 
and maintain surveillance for marine mammals as long as it does not 
violate safety constraints or interfere with the accomplishment of 
primary operational duties.
    (x) All marine mammal detections shall be immediately reported to 
assigned Aircraft Control Unit for further dissemination to ships in the 
vicinity of the marine species as appropriate when it is reasonable to 
conclude that the course of the ship will likely result in a closing of 
the distance to the detected marine mammal.
    (xi) Naval vessels will maneuver to keep at least 1,500 ft (500 yds) 
away from any observed whale in the vessel's path and avoid approaching 
whales head-on. These requirements do not apply if a vessel's safety is 
threatened, such as when change of course will create an imminent and 
serious threat to a person, vessel, or aircraft, and to the extent 
vessels are restricted in their ability to maneuver. Restricted 
maneuverability includes, but is not limited to, situations when vessels 
are engaged in dredging, submerged activities, launching and recovering 
aircraft or landing craft, minesweeping activities, replenishment while 
underway and

[[Page 196]]

towing activities that severely restrict a vessel's ability to deviate 
course. Vessels will take reasonable steps to alert other vessels in the 
vicinity of the whale. Given rapid swimming speeds and maneuverability 
of many dolphin species, naval vessels would maintain normal course and 
speed on sighting dolphins unless some condition indicated a need for 
the vessel to maneuver.
    (3) Operating Procedures (for Anti-submarine Warfare (ASW) 
Operations):
    (i) On the bridge of surface ships, there shall always be at least 
three people on watch whose duties include observing the water surface 
around the vessel.
    (ii) All surface ships participating in ASW training events shall 
have, in addition to the three personnel on watch noted in (i), at least 
two additional personnel on watch as lookouts at all times during the 
exercise.
    (iii) Personnel on lookout and officers on watch on the bridge will 
have at least one set of binoculars available for each person to aid in 
the detection of marine mammals.
    (iv) Personnel on lookout shall be responsible for reporting all 
objects or anomalies sighted in the water (regardless of the distance 
from the vessel) to the Officer of the Deck, since any object or 
disturbance (e.g., trash, periscope, surface disturbance, discoloration) 
in the water may be indicative of a threat to the vessel and its crew or 
indicative of a marine mammal that may need to be avoided.
    (v) All personnel engaged in passive acoustic sonar operation 
(including aircraft, surface ships, or submarines) shall monitor for 
marine mammal vocalizations and report the detection of any marine 
mammal to the appropriate watch station for dissemination and 
appropriate action.
    (vi) During MFAS operations, personnel shall utilize all available 
sensor and optical systems (such as night vision goggles) to aid in the 
detection of marine mammals.
    (vii) Aircraft with deployed sonobuoys shall use only the passive 
capability of sonobuoys when marine mammals are detected within 200 yds 
(183 m) of the sonobuoy.
    (viii) Helicopters shall observe/survey the vicinity of an ASW 
exercise for 10 minutes before the first deployment of active (dipping) 
sonar in the water.
    (ix) Helicopters shall not dip their sonar within 200 yards of a 
marine mammal and shall cease pinging if a marine mammal closes within 
200 yards after pinging has begun.
    (x)(A) Safety Zones--When marine mammals are detected by any means 
(aircraft, shipboard lookout, or acoustically) the Navy shall ensure 
that sonar transmission levels are limited to at least 6 dB below normal 
operating levels if any detected marine mammals are within 1000 yards 
(914 m) of the sonar dome (the bow) (i.e., limit to at most 229 dB for 
AN/SQS-53 and 219 dB for AN/SQS-56, etc.). Ships and submarines shall 
continue to limit maximum transmission levels by this 6-dB factor until 
the animal has been seen to leave the 1000-yd safety zone, has not been 
detected for 30 minutes, or the vessel has transited more than 2,000 yds 
(1829 m) beyond the location of the last detection.
    (B) When marine mammals are detected by any means (aircraft, 
shipboard lookout, or acoustically) the Navy shall ensure that sonar 
transmission levels are limited to at least 10 dB below normal operating 
levels if any detected marine mammals are within 500 yards (457 m) of 
the sonar dome (the bow). Ships and submarines shall continue to limit 
maximum ping levels by this 10-dB factor until the animal has been seen 
to leave the 500-yd safety zone, has not been detected for 30 minutes, 
or the vessel has transited more than 2,000 yds (1829 m) beyond the 
location of the last detection.
    (C) When marine mammals are detected by any means (aircraft, 
shipboard lookout, or acoustically) the Navy shall ensure that sonar 
transmission ceases if any detected marine mammals are within 200 yards 
(183 m) of the sonar dome (the bow). Sonar shall not resume until the 
animal has been seen to leave the 200-yd safety zone, has not been 
detected for 30 minutes, or the vessel has transited more than 2,000 yds 
(457 m) beyond the location of the last detection.

[[Page 197]]

    (D) Special conditions applicable for dolphins and porpoises only: 
If, after conducting an initial maneuver to avoid close quarters with 
dolphins or porpoises, the OOD concludes that dolphins or porpoises are 
deliberately closing to ride the vessel's bow wave, no further 
mitigation actions are necessary while the dolphins or porpoises 
continue to exhibit bow wave riding behavior.
    (xi) Prior to start up or restart of active sonar, operators will 
check that the 1000-m Safety Zone radius around the sound source is 
clear of marine mammals.
    (xii) Active sonar levels (generally)--Navy shall operate active 
sonar at the lowest practicable level, not to exceed 235 dB, except as 
required to meet tactical training objectives.
    (xiii) Submarine sonar operators will review detection indicators of 
close-aboard marine mammals prior to the commencement of ASW training 
events involving MFAS.
    (E) If the need for power-down should arise (as detailed in 
218.114(a)(3)(x)) when the Navy is operating a hull-mounted or sub-
mounted source above 235 dB (infrequent), the Navy shall follow the 
requirements as though they were operating at 235 dB--the normal 
operating level (i.e., the first power-down will be to 229 dB, 
regardless of at what level above 235 dB active sonar was being 
operated).
    (4) Operating Procedures for Underwater Detonations (up to 10-lb 
charges):
    (i) Exclusion Zones--All demolitions and ship mine countermeasures 
training exercises involving the use of explosive charges must include 
exclusion zones for marine mammals to prevent physical and/or acoustic 
effects to those species. These exclusion zones shall extend in a 700-
yard arc radius around the detonation site. Should a marine mammal be 
present within the surveillance area, the explosive event shall not be 
started until the animal leaves the area.
    (ii) Pre-Exercise Surveys--For Demolition and Ship Mine 
Countermeasures Operations, pre-exercise surveys shall be conducted for 
30 minutes prior to the commencement of the scheduled explosive event. 
The survey may be conducted from the surface, by divers, and/or from the 
air, and personnel shall be alert to the presence of any marine mammal. 
Should such an animal be present within the survey area, the explosive 
event shall not be started until the animal voluntarily leaves the area. 
The Navy will ensure the area is clear of marine mammals for a full 30 
minutes prior to initiating the explosive event. Personnel will record 
any marine mammal observations during the exercise as well as measures 
taken if species are detected within the exclusion zone.
    (iii) Post-Exercise Surveys--Surveys within the same exclusion zone 
radius shall also be conducted within 30 minutes after the completion of 
the explosive event.
    (iv) Reporting--If there is evidence that a marine mammal may have 
been stranded, injured or killed by the action, Navy training activities 
shall be immediately suspended and the situation immediately reported by 
the participating unit to the Officer in Charge of the Exercise (OCE), 
who will follow Navy procedures for reporting the incident to Commander, 
Pacific Fleet, Commander, Navy Region Marianas, Environmental Director, 
and the chain-of-command. The situation shall also be reported to NMFS 
(see Stranding Plan for details).
    (5) Sinking Exercise:
    (i) All weapons firing shall be conducted during the period 1 hour 
after official sunrise to 30 minutes before official sunset.
    (ii) An exclusion zone with a radius of 1.0 nm (1.9 km) will be 
established around each target. An additional buffer of 0.5 nm (0.9 km) 
will be added to account for errors, target drift, and animal movements. 
Additionally, a safety zone, which will extend beyond the buffer zone by 
an additional 0.5 nm (0.9 km), shall be surveyed. Together, the zone 
extends out 2 nm (3.7 km) from the target.
    (iii) A series of surveillance over-flights shall be conducted 
within the 2-nm zone around the target, prior to and during the 
exercise, when feasible. Survey protocol shall be as follows:
    (A) Overflights within the 2-nm zone around the target shall be 
conducted in a manner that optimizes the surface

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area of the water observed. This may be accomplished through the use of 
the Navy's Search and Rescue Tactical Aid, which provides the best 
search altitude, ground speed, and track spacing for the discovery of 
small, possibly dark objects in the water based on the environmental 
conditions of the day. These environmental conditions include the angle 
of sun inclination, amount of daylight, cloud cover, visibility, and sea 
state.
    (B) All visual surveillance activities shall be conducted by Navy 
personnel trained in visual surveillance. At least one member of the 
mitigation team will have completed the Navy's marine mammal training 
program for lookouts.
    (C) In addition to the overflights, the 2-nm zone around the target 
shall be monitored by passive acoustic means, when assets are available. 
This passive acoustic monitoring would be maintained throughout the 
exercise. Additionally, passive sonar onboard submarines may be utilized 
to detect any vocalizing marine mammals in the area. The OCE will be 
informed of any aural detection of marine mammals and will include this 
information in the determination of when it is safe to commence the 
exercise.
    (D) On each day of the exercise, aerial surveillance of the 2-nm 
zone around the target shall commence 2 hours prior to the first firing.
    (E) The results of all visual, aerial, and acoustic searches shall 
be reported immediately to the OCE. No weapons launches or firing may 
commence until the OCE declares this 2-nm zone around the target is free 
of marine mammals.
    (F) If a marine mammal is observed within the 2-nm zone around the 
target, firing will be delayed until the animal is re-sighted outside 
the 2-nm zone around the target, or 30 minutes have elapsed. After 30 
minutes, if the animal has not been re-sighted it can be assumed to have 
left the 2-nm zone around the target. The OCE will determine if the 
marine mammal is in danger of being adversely affected by commencement 
of the exercise.
    (G) During breaks in the exercise of 30 minutes or more, the 2-nm 
zone around the target shall again be surveyed for any marine mammal. If 
marine mammals are sighted within the 2-nm zone around the target, the 
OCE shall be notified, and the procedures described in this section 
shall be followed.
    (H) Upon sinking of the vessel, a final surveillance of the 2-nm 
zone around the target shall be monitored for 2 hours, or until sunset, 
to verify that no marine mammals were harmed.
    (iv) Aerial surveillance shall be conducted using helicopters or 
other aircraft based on necessity and availability. The Navy has several 
types of aircraft capable of performing this task; however, not all 
types are available for every exercise. For each exercise, the available 
asset best suited for identifying objects on and near the surface of the 
ocean shall be used. These aircraft shall be capable of flying at the 
slow safe speeds necessary to enable viewing of marine vertebrates with 
unobstructed, or minimally obstructed, downward and outward visibility. 
The exclusion and safety zone surveys may be cancelled in the event that 
a mechanical problem, emergency search and rescue, or other similar and 
unexpected event preempts the use of one of the aircraft onsite for the 
exercise.
    (v) Every attempt shall be made to conduct the exercise in sea 
states that are ideal for marine mammal sighting, Beaufort Sea State 3 
or less. In the event of a 4 or above, survey efforts shall be increased 
within the 2-nm zone around the target. This shall be accomplished 
through the use of an additional aircraft, if available, and conducting 
tight search patterns.
    (vi) The exercise shall not be conducted unless the 2-nm zone around 
the target could be adequately monitored visually. Should low cloud 
cover or surface visibility prevent adequate visual monitoring as 
described previously, the exercise would be delayed until conditions 
improved, and all of the above monitoring criteria could be met.
    (vii) In the event that any marine mammals are observed to be harmed 
in the area, a detailed description of the animal shall be taken, the 
location noted, and if possible, photos taken of the marine mammal. This 
information shall be provided to NMFS via the

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Navy's regional environmental coordinator for purposes of identification 
(see the Stranding Plan for detail).
    (viii) An after action report detailing the exercise's time line, 
the time the surveys commenced and terminated, amount, and types of all 
ordnance expended, and the results of survey efforts for each event 
shall be submitted to NMFS.
    (6) Surface-to-Surface Gunnery (up to 5-inch Explosive Rounds):
    (i) For exercises using targets towed by a vessel, target-towing 
vessels shall maintain a trained lookout for marine mammals when 
feasible. If a marine mammal is sighted in the vicinity, the tow vessel 
will immediately notify the firing vessel, which will suspend the 
exercise until the area is clear.
    (ii) A 600 yard (585 m) radius buffer zone will be established 
around the intended target.
    (iii) From the intended firing position, trained lookouts will 
survey the buffer zone for marine mammals prior to commencement and 
during the exercise as long as practicable. Due to the distance between 
the firing position and the buffer zone, lookouts are only expected to 
visually detect breaching whales, whale blows, and large pods of 
dolphins and porpoises.
    (iv) The exercise will be conducted only when the buffer zone is 
visible and marine mammals are not detected within it.
    (7) Surface-to-Surface Gunnery (non-explosive rounds):
    (i) A 200-yd (183 m) radius buffer zone shall be established around 
the intended target.
    (ii) From the intended firing position, trained lookouts shall 
survey the buffer zone for marine mammals prior to commencement and 
during the exercise as long as practicable.
    (iii) If available, target towing vessels shall maintain a lookout 
(unmanned towing vessels will not have a lookout available). If a marine 
mammal is sighted in the vicinity of the exercise, the tow vessel shall 
immediately notify the firing vessel in order to secure gunnery firing 
until the area is clear.
    (iv) The exercise shall be conducted only when the buffer zone is 
visible and marine mammals are not detected within the target area and 
the buffer zone.
    (8) Surface-to-Air Gunnery (Explosive and Non-explosive Rounds):
    (i) Vessels will orient the geometry of gunnery exercises in order 
to prevent debris from falling in the area of sighted marine mammals.
    (ii) Vessels will attempt to recover any parachute deploying aerial 
targets to the extent practicable (and their parachutes if feasible) to 
reduce the potential for entanglement of marine mammals.
    (iii) Target towing aircraft shall maintain a lookout if feasible. 
If a marine mammal is sighted in the vicinity of the exercise, the tow 
aircraft will immediately notify the firing vessel in order to secure 
gunnery firing until the area is clear.
    (9) Air-to-Surface Gunnery (Explosive and Non-explosive Rounds):
    (i) A 200 yard (183 m) radius buffer zone will be established around 
the intended target.
    (ii) If surface vessels are involved, lookout(s) will visually 
survey the buffer zone for marine mammals to and during the exercise.
    (iii) Aerial surveillance of the buffer zone for marine mammals will 
be conducted prior to commencement of the exercise. Aerial surveillance 
altitude of 500 feet to 1,500 feet (152-456 m) is optimum. Aircraft 
crew/pilot will maintain visual watch during exercises. Release of 
ordnance through cloud cover is prohibited; aircraft must be able to 
actually see ordnance impact areas.
    (iv) The exercise will be conducted only if marine mammals are not 
visible within the buffer zone.
    (10) Small Arms Training (Grenades, Explosive and Non-explosive 
Rounds)--Lookouts will visually survey for marine mammals. Weapons will 
not be fired in the direction of known or observed marine mammals.
    (11) Air-to-Surface At-sea Bombing Exercises (explosive bombs and 
rockets):
    (i) If surface vessels are involved, trained lookouts shall survey 
for marine mammals. Ordnance shall not be targeted to impact within 
1,000 yds (914 m) of known or observed marine mammals.

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    (ii) A 1,000 yd (914 m) radius buffer zone shall be established 
around the intended target.
    (iii) Aircraft shall visually survey the target and buffer zone for 
marine mammals prior to and during the exercise. The survey of the 
impact area shall be made by flying at 1,500 ft (152 m) or lower, if 
safe to do so, and at the slowest safe speed. When safety or other 
considerations require the release of weapons without the releasing 
pilot having visual sight of the target area, a second aircraft, the 
``wingman,'' will clear the target area and perform the clearance and 
observation functions required before the dropping plane may release its 
weapons. Both planes must have direct communication to assure immediate 
notification to the dropping plane that the target area may have been 
fouled by encroaching animals or people. The clearing aircraft will 
assure it has visual site of the target area at a maximum height of 1500 
ft. The clearing plane will remain within visual sight of the target 
until required to clear the area for safety reasons. Survey aircraft 
shall employ most effective search tactics and capabilities.
    (iv) The exercise will be conducted only if marine mammals are not 
visible within the buffer zone.
    (12) Air-to-Surface At-Sea Bombing Exercises (Non-explosive Bombs 
and Rockets):
    (i) If surface vessels are involved, trained lookouts will survey 
for marine mammals. Ordnance shall not be targeted to impact within 
1,000 yards (914 m) of known or observed or marine mammals.
    (ii) A 1,000 yard (914 m) radius buffer zone will be established 
around the intended target.
    (iii) Aircraft will visually survey the target and buffer zone for 
marine mammals prior to and during the exercise. The survey of the 
impact area will be made by flying at 1,500 feet (456 m) or lower, if 
safe to do so, and at the slowest safe speed. When safety or other 
considerations require the release of weapons without the releasing 
pilot having visual sight of the target area, a second aircraft, the 
``wingman,'' will clear the target area and perform the clearance and 
observation functions required before the dropping plane may release its 
weapons. Both planes must have direct communication to assure immediate 
notification to the dropping plane that the target area may have been 
fouled by encroaching animals or people. The clearing aircraft will 
assure it has visual site of the target area at a maximum height of 1500 
ft. The clearing plane will remain within visual sight of the target 
until required to clear the area for safety reasons. Survey aircraft 
shall employ most effective search tactics and capabilities.
    (iv) The exercise will be conducted only if marine mammals and are 
not visible within the buffer zone.
    (13) Air-to-Surface Missile Exercises (explosive and non-explosive):
    (i) Aircraft will visually survey the target area for marine 
mammals. Visual inspection of the target area will be made by flying at 
1,500 (457 m) feet or lower, if safe to do so, and at slowest safe 
speed. Firing or range clearance aircraft must be able to actually see 
ordnance impact areas.
    (ii) Explosive ordnance shall not be targeted to impact within 1,800 
yds (1646 m) of sighted marine mammals.
    (14) Aircraft Training Activities Involving Non-Explosive Devices:
    An exclusion zone of 200 yds around the target location, therefore, 
shall be clear of marine mammals. Pre- and post-surveillance and 
reporting requirements outlined for underwater detonations shall be 
implemented during Mining Training Activities.
    (15) Extended Echo Ranging/Improved Extended Echo Ranging and 
Advanced Extended Echo-ranging (EER/IEER/AEER)--The following mitigation 
measures shall be used with the employment of IEER/AEER sonobuoys:
    (i) Crews shall conduct visual reconnaissance of the drop area prior 
to laying their intended sonobuoy pattern. This search shall be 
conducted at an altitude below 500 yd (457 m) at a slow speed, if 
operationally feasible and weather conditions permit. In dual aircraft 
operations, crews are allowed to conduct coordinated area clearances.
    (ii) For IEER (AN/SSQ-110A), crews shall conduct a minimum of 30 
minutes of visual and aural monitoring of the search area prior to 
commanding the first post detonation. This 30-minute

[[Page 201]]

observation period may include pattern deployment time.
    (iii) For any part of the intended sonobuoy pattern where a post 
(source/receiver sonobuoy pair) will be deployed within 1,000 yd (914 m) 
of observed marine mammal activity, the Navy shall deploy the receiver 
ONLY (i.e., not the source) and monitor while conducting a visual 
search. When marine mammals are no longer detected within 1,000 yd (914 
m) of the intended post position, the source sonobuoy (AN/SSQ-110A/SSQ-
125) will be co-located with the receiver.
    (iv) When operationally feasible, Navy crews shall conduct 
continuous visual and aural monitoring of marine mammal activity. This 
shall include monitoring of own-aircraft sensors from the time of the 
first sensor placement until the aircraft have left the area and are out 
of RF range of these sensors.
    (v) Aural Detection. If the presence of marine mammals is detected 
aurally, then that shall cue the Navy aircrew to increase the diligence 
of their visual surveillance. Subsequently, if no marine mammals are 
visually detected, then the crew may continue multi-static active 
search.
    (vi) Visual Detection. If marine mammals are visually detected 
within 1,000 yd (914 m) of the explosive source sonobuoy (AN/SSQ-110A/
SSQ-125) intended for use, then that payload shall not be activated. 
Aircrews may utilize this post once the marine mammals have not been re-
sighted for 30 minutes, or are observed to have moved outside the 1,000 
yd (914 m) safety buffer. Aircrews may shift their multi-static active 
search to another post, where marine mammals are outside the 1,000 yd 
(914 m) safety buffer.
    (vii) For IEER (AN/SSQ-110A), aircrews shall make every attempt to 
manually detonate the unexploded charges at each post in the pattern 
prior to departing the operations area by using the ``Payload 1 
Release'' command followed by the ``Payload 2 Release'' command. 
Aircrews shall refrain from using the ``Scuttle'' command when two 
payloads remain at a given post. Aircrews shall ensure that a 1,000 yd 
(914 m) safety buffer, visually clear of marine mammals, is maintained 
around each post as is done during active search operations.
    (viii) Aircrews shall only leave posts with unexploded charges in 
the event of a sonobuoy malfunction, an aircraft system malfunction, or 
when an aircraft must immediately depart the area due to issues such as 
fuel constraints, inclement weather, and in-flight emergencies. In these 
cases, the sonobuoy will self-scuttle using the secondary or tertiary 
method.
    (ix) The Navy shall ensure all payloads are accounted for. Explosive 
source sonobuoys (AN/SSQ-110A) that cannot be scuttled shall be reported 
as unexploded ordnance via voice communications while airborne, then 
upon landing via naval message.
    (x) Marine mammal monitoring shall continue until out of own-
aircraft sensor range.
    (16) The Navy shall implement the ``Stranding Response Plan for 
Major Navy Training Exercises in the MIRC'' (available at: http://
www.nmfs.noaa.gov/pr/permits/incidental.htm), which is incorporated 
herein by reference, including the following measures:
    (i) Shutdown Procedures. When an Uncommon Stranding Event (USE--
defined inSec. 216.271) occurs during a Major Training Exercise (MTE) 
(as defined in the Stranding Plan, meaning including Multi-strike group 
exercises, Joint Expeditionary exercises, and Marine Air Ground Task 
Force exercises in the MIRC), the Navy shall implement the procedures 
described in this section.
    (A) The Navy shall implement a Shutdown (as defined in the Stranding 
Response Plan for MIRC) when advised by a NMFS Office of Protected 
Resources Headquarters Senior Official designated in the MIRC Stranding 
Communication Protocol that a USE (as defined in the Stranding Response 
Plan for MIRC) involving live animals has been identified and that at 
least one live animal is located in the water. NMFS and Navy shall 
communicate, as needed, regarding the identification of the USE and the 
potential need to implement shutdown procedures.
    (B) Any shutdown in a given area shall remain in effect in that area 
until NMFS advises the Navy that the subject(s) of the USE at that area 
die or are euthanized, or that all live animals

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involved in the USE at that area have left the area (either of their own 
volition or herded).
    (C) If the Navy finds an injured or dead marine mammal floating at 
sea during an MTE, the Navy shall notify NMFS immediately or as soon as 
operational security considerations allow. The Navy shall provide NMFS 
with species or description of the animal(s), the condition of the 
animal(s) including carcass condition if the animal(s) is/are dead, 
location, time of first discovery, observed behaviors (if alive), and 
photo or video of the animals (if available). Based on the information 
provided, NMFS shall determine if, and advise the Navy whether, a 
modified shutdown is appropriate on a case-by-case basis.
    (D) In the event, following a USE, that: (a) Qualified individuals 
are attempting to herd animals back out to the open ocean and animals 
are not willing to leave, or (b) animals are seen repeatedly heading for 
the open ocean but turning back to shore, NMFS and the Navy shall 
coordinate (including an investigation of other potential anthropogenic 
stressors in the area) to determine if the proximity of MFAS/HFAS 
activities or explosive detonations, though farther than 14 nm from the 
distressed animal(s), is likely decreasing the likelihood that the 
animals return to the open water. If so, NMFS and the Navy shall further 
coordinate to determine what measures are necessary to further minimize 
that likelihood and implement those measures as appropriate.
    (ii) Within 72 hours of NMFS notifying the Navy of the presence of a 
USE, the Navy shall provide available information to NMFS (per the MIRC 
Communication Protocol) regarding the location, number and types of 
acoustic/explosive sources, direction and speed of units using MFAS/
HFAS, and marine mammal sightings information associated with training 
activities occurring within 80 nm (148 km) and 72 hours prior to the USE 
event. Information not initially available regarding the 80 nm (148 km), 
72 hours, period prior to the event shall be provided as soon as it 
becomes available. The Navy shall provide NMFS investigative teams with 
additional relevant unclassified information as requested, if available.
    (b) [Reserved]



Sec.  218.105  Requirements for monitoring and reporting.

    (a) General Notification of Injured or Dead Marine Mammals. Navy 
personnel shall ensure that NMFS is notified immediately ((see 
Communication Plan) or as soon as clearance procedures allow) if an 
injured, stranded, or dead marine mammal is found during or shortly 
after, and in the vicinity of, any Navy training exercise utilizing 
MFAS, HFAS, or underwater explosive detonations. The Navy will provide 
NMFS with the name of species or description of the animal(s), the 
condition of the animal(s) (including carcass condition if the animal is 
dead), location, time of first discovery, observed behaviors (if alive), 
and photo or video of the animal(s) (if available). In the event that an 
injured, stranded, or dead marine mammal is found by the Navy that is 
not in the vicinity of, or during or shortly after, MFAS, HFAS, or 
underwater explosive detonations, the Navy will report the same 
information as listed above as soon as operationally feasible and 
clearance procedures allow.
    (b) General Notification of Ship Strike. In the event of a ship 
strike by any Navy vessel, at any time or place, the Navy shall do the 
following:
    (1) Immediately report to NMFS the species identification (if 
known), location (lat/long) of the animal (or the strike if the animal 
has disappeared), and whether the animal is alive or dead, or whether 
its status is unknown.
    (2) Report to NMFS as soon as operationally feasible the size and 
length of animal, an estimate of the injury status (ex., dead, injured 
but alive, injured and moving, unknown, etc.), vessel class/type and 
operational status.
    (3) Report to NMFS the vessel length, speed, and heading as soon as 
feasible.
    (4) Provide NMFS a photo or video of the animal(s), if equipment is 
available.
    (c) The Navy must conduct all monitoring and/or research required 
under the Letter of Authorization, including

[[Page 203]]

abiding by the annual MIRC Monitoring Plan. (http://www.nmfs.noaa.gov/
pr/permits/incidental.htm#applications)
    (d) Report on Monitoring required in paragraph (c) of this section. 
The Navy shall submit a report annually describing the implementation 
and results of the monitoring required in paragraph (c) of this section. 
Required submission date will be identified each year in the LOA. Navy 
will standardize data collection methods across ranges to allow for 
comparison in different geographic locations.
    (e) Sonar Exercise Notification. The Navy shall submit to the NMFS 
Office of Protected Resources (specific contact information to be 
provided in LOA) either an electronic (preferably) or verbal report 
within fifteen calendar days after the completion of any Major Training 
Exercise for Reporting (MTER) indicating:
    (1) Location of the exercise;
    (2) Beginning and end dates of the exercise; and
    (3) Type of exercise.
    (f) Annual MIRC Report. The Navy will submit an Annual Exercise MIRC 
Report every year. This report shall contain the subsections and 
information indicated below.
    (1) MFAS/HFAS Major Training Exercises--This section shall contain 
the following information for the following Coordinated and Strike Group 
exercises, which for simplicity will be referred to as MTERs: Joint 
Multi-strike Group Exercises; Joint Expeditionary Exercises; and Marine 
Air Ground Task Force MIRC:
    (i) Exercise Information (for each MTER):
    (A) Exercise designator;
    (B) Date that exercise began and ended;
    (C) Location;
    (D) Number and types of active sources used in the exercise;
    (E) Number and types of passive acoustic sources used in exercise;
    (F) Number and types of vessels, aircraft, etc., participating in 
exercise;
    (G) Total hours of observation by watchstanders;
    (H) Total hours of all active sonar source operation;
    (I) Total hours of each active sonar source (along with explanation 
of how hours are calculated for sources typically quantified in 
alternate way (buoys, torpedoes, etc.)); and
    (J) Wave height (high, low, and average during exercise).
    (ii) Individual marine mammal sighting info (for each sighting in 
each MTER):
    (A) Location of sighting;
    (B) Species (if not possible--indication of whale/dolphin/pinniped);
    (C) Number of individuals;
    (D) Calves observed (y/n);
    (E) Initial Detection Sensor;
    (F) Indication of specific type of platform observation made from 
(including, for example, what type of surface vessel, i.e., FFG, DDG, or 
CG);
    (G) Length of time observers maintained visual contact with marine 
mammal(s);
    (H) Wave height (in feet);
    (I) Visibility;
    (J) Sonar source in use (y/n);
    (K) Indication of whether animal is <200 yd, 200-500 yd, 500-1,000 
yd, 1,000-2,000 yd, or 2,000 yd from sonar source in 
paragraph (f)(1)(i)(J) of this section;
    (L) Mitigation Implementation. Whether operation of sonar sensor was 
delayed, or sonar was powered or shut down, and how long the delay was;
    (M) If source in use in paragraph (f)(1)(i)(J) is hullmounted, true 
bearing of animal from ship, true direction of ship's travel, and 
estimation of animal's motion relative to ship (opening, closing, 
parallel); and
    (N) Observed behavior. Watchstanders shall describe, in plain 
language and without trying to categorize in any way, the observed 
behavior of the animals (such as animal closing to bow ride, paralleling 
course/speed, floating on surface and not swimming, etc.).
    (iii) An evaluation (based on data gathered during all of the MTERs) 
of the effectiveness of mitigation measures designed to avoid exposing 
marine mammals to MFAS. This evaluation shall identify the specific 
observations that support any conclusions the Navy reaches about the 
effectiveness of the mitigation.
    (2) ASW Summary. This section shall include the following 
information as summarized from non-major training exercises (unit-level 
exercises, such as TRACKEXs):

[[Page 204]]

    (i) Total Hours. Total annual hours of each type of sonar source 
(along with explanation of how hours are calculated for sources 
typically quantified in alternate way (buoys, torpedoes, etc.));
    (ii) Cumulative Impacts. To the extent practicable, the Navy, in 
coordination with NMFS, shall develop and implement a method of annually 
reporting non-major training (i.e., ULT) utilizing hull-mounted sonar. 
The report shall present an annual (and seasonal, where practicable) 
depiction of non-major training exercises geographically across MIRC. 
The Navy shall include (in the MIRC annual report) a brief annual 
progress update on the status of the development of an effective and 
unclassified method to report this information until an agreed-upon 
(with NMFS) method has been developed and implemented.
    (3) Sinking Exercises (SINKEXs). This section shall include the 
following information for each SINKEX completed that year:
    (i) Exercise info:
    (A) Location;
    (B) Date and time exercise began and ended;
    (C) Total hours of observation by watchstanders before, during, and 
after exercise;
    (D) Total number and types of rounds expended/explosives detonated;
    (E) Number and types of passive acoustic sources used in exercise;
    (F) Total hours of passive acoustic search time;
    (G) Number and types of vessels, aircraft, etc., participating in 
exercise;
    (H) Wave height in feet (high, low and average during exercise); and
    (I) Narrative description of sensors and platforms utilized for 
marine mammal detection and timeline illustrating how marine mammal 
detection was conducted.
    (ii) Individual marine mammal observation during SINKEX (by Navy 
lookouts) information:
    (A) Location of sighting;
    (B) Species (if not possible--indication of whale/dolphin/pinniped);
    (C) Number of individuals;
    (D) Calves observed (y/n);
    (E) Initial detection sensor;
    (F) Length of time observers maintained visual contact with marine 
mammal;
    (G) Wave height;
    (H) Visibility;
    (I) Whether sighting was before, during, or after detonations/
exercise, and how many minutes before or after;
    (J) Distance of marine mammal from actual detonations (or target 
spot if not yet detonated)--use four categories to define distance:
    (1) The modeled injury threshold radius for the largest explosive 
used in that exercise type in that OPAREA (TBD m for SINKEX in MIRC);
    (2) The required exclusion zone (1 nm for SINKEX in MIRC);
    (3) The required observation distance (if different than the 
exclusion zone (2 nm for SINKEX in MIRC); and
    (4) Greater than the required observed distance. For example, in 
this case, the observer shall indicate if 2 nm.
    (K) Observed behavior--Watchstanders will describe, in plain 
language and without trying to categorize in any way, the observed 
behavior of the animals (such as animal closing to bow ride, paralleling 
course/speed, floating on surface and not swimming etc.), including 
speed and direction.
    (L) Resulting mitigation implementation--Indicate whether explosive 
detonations were delayed, ceased, modified, or not modified due to 
marine mammal presence and for how long.
    (M) If observation occurs while explosives are detonating in the 
water, indicate munitions type in use at time of marine mammal 
detection.
    (4) Improved Extended Echo-Ranging System (IEER)/Advanced Extended 
Echo-Ranging (AEER) Summary:
    (i) Total number of IEER and AEER events conducted in MIRC;
    (ii) Total expended/detonated rounds (buoys); and
    (iii) Total number of self-scuttled IEER rounds.
    (5) Explosives Summary. The Navy is in the process of improving the 
methods used to track explosive use to provide increased granularity. To 
the extent practicable, the Navy shall provide the information described 
below

[[Page 205]]

for all of their explosive exercises. Until the Navy is able to report 
in full the information below, they will provide an annual update on the 
Navy's explosive tracking methods, including improvements from the 
previous year.
    (i) Total annual number of each type of explosive exercise (of those 
identified as part of the ``activity'' in this Subpart) conducted in 
MIRC; and
    (ii) Total annual expended/detonated rounds (missiles, bombs, etc.) 
for each explosive type.
    (g) MIRC 5-year Comprehensive Report. The Navy shall submit to NMFS 
a draft report that analyzes and summarizes all of the multi-year marine 
mammal information gathered during ASW and explosive exercises for which 
annual reports are required (Annual MIRC Exercise Reports and MIRC 
Monitoring Plan Reports). This report will be submitted at the end of 
the fourth year of the rule (November 2014), covering activities that 
have occurred through July 15, 2014.
    (h) Comprehensive National ASW Report. By June, 2014, the Navy shall 
submit a draft National Report that analyzes, compares, and summarizes 
the active sonar data gathered (through January 1, 2014) from the 
watchstanders and pursuant to the implementation of the Monitoring Plans 
for the Northwest Training Range Complex, the Southern California Range 
Complex, the Atlantic Fleet Active Sonar Training, the Hawaii Range 
Complex, the Mariana Islands Range Complex, and the Gulf of Alaska.
    (i) The Navy shall comply with the 2009 Integrated Comprehensive 
Monitoring Program (ICMP) Plan and continue to improve the program in 
consultation with NMFS. Changes and improvements to the program made 
during 2010 (as prescribed in the 2009 ICMP and deemed appropriate by 
the Navy and NMFS) will be described in an updated 2010 ICMP and 
submitted to NMFS by October 31, 2010, for review. An updated 2010 ICMP 
will be finalized by December 31, 2010.



Sec.  218.106  Applications for Letters of Authorization.

    To incidentally take marine mammals pursuant to these regulations, 
the U.S. Citizen (as defined bySec. 216.103) conducting the activity 
identified inSec. 218.100(c) (i.e., the Navy) must apply for and 
obtain either an initial Letter of Authorization in accordance with 
Sec.  218.107 or a renewal underSec. 218.108.



Sec.  218.107  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the periods of validity of this 
subpart, but may be renewed or modified sooner subject to the renewal 
conditions inSec. 218.108 and the modification conditions inSec. 
218.109.
    (b) Each Letter of Authorization shall set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable 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 Letter of Authorization shall 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 affected species or stock of marine mammal(s).

[75 FR 45547, Aug. 3, 2010, as amended at 77 FR 4924, Feb. 1, 2012]



Sec.  218.108  Renewal of Letters of Authorization and adaptive
management.

    (a) A Letter of Authorization issued underSec. 216.106 of this 
chapter andSec. 218.107 for the activity identified inSec. 
218.100(c) will be renewed upon:
    (1) Notification to NMFS that the activity described in the 
application submitted underSec. 218.106 will be undertaken and that 
there will not be a substantial modification to the desired work, 
mitigation, or monitoring undertaken during the upcoming period of 
validity;
    (2) Receipt of the monitoring reports and notifications within the 
timeframes indicated in the previous LOA; and
    (3) A determination by NMFS that the mitigation, monitoring and 
reporting measures required underSec. 218.104 and the Letter of 
Authorization issued underSec. 216.106 of this chapter and

[[Page 206]]

Sec.  218.107, were undertaken and will be undertaken during the 
upcoming period of validity of a renewed Letter of Authorization.
    (b) If a request for a renewal of a Letter of Authorization issued 
under Sec.Sec. 216.106 and 218.208 indicates that a substantial 
modification, as determined 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.
    (c) A notice of issuance or denial of a renewal of a Letter of 
Authorization will be published in the Federal Register.
    (d) Adaptive Management. NMFS may modify or augment the existing 
mitigation or monitoring measures (after consulting with the Navy 
regarding the practicability of the modifications) if doing so creates a 
reasonable likelihood of more effectively accomplishing the goals of 
mitigation 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 decision to modify the mitigation or monitoring 
measures:
    (1) Results from the Navy's monitoring from the previous year 
(either from the MIRC Study Area or other locations).
    (2) Findings of the Monitoring Workshop that the Navy will convene 
in 2011.
    (3) Compiled results of Navy funded research and development (R&D) 
studies (presented pursuant to the Integrated Comprehensive Monitoring 
Plan).
    (4) Results from specific stranding investigations (either from the 
MIRC Study Area or other locations, and involving coincident MFAS/HFAS 
or explosives training or not involving coincident use).
    (5) Results from the Long Term Prospective Study described in the 
preamble to these regulations.
    (6) Results from general marine mammal and sound research.
    (7) Any information which reveals that marine mammals may have been 
taken in a manner, extent or number not anticipated by these regulations 
or subsequent Letters of Authorization.

[75 FR 45547, Aug. 3, 2010, as amended at 77 FR 4924, Feb. 1, 2012]



Sec.  218.109  Modifications to Letters of Authorization.

    (a) Except as provided in paragraph (b) of this section, no 
substantive modification (including withdrawal or suspension) to the 
Letter of Authorization by NMFS, issued pursuant to Sec.Sec. 216.106 
and 218.107 of this chapter and subject to the provisions of this 
subpart, shall be made until after notification and an opportunity for 
public comment has been provided. For purposes of this paragraph, a 
renewal of a Letter of Authorization underSec. 218.108 without 
modification (except for the period of validity) is not considered a 
substantive modification.
    (b) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species or 
stocks of marine mammals specified inSec. 218.100(b), a Letter of 
Authorization issued pursuant to Sec.Sec. 216.106 and 218.107 of this 
chapter may be substantively modified without prior notification and an 
opportunity for public comment. Notification will be published in the 
Federal Register within 30 days subsequent to the action.



  Subpart M_Taking and Importing Marine Mammals; U.S. Navy's Northwest 
                     Training Range Complex (NWTRC)

    Source: 75 FR 69319, Nov. 10, 2010, unless otherwise noted.

    Effective Date Note: At 75 FR 69319, Nov. 10, 2010, subpart M was 
added, effective Nov. 9, 2010 through Nov. 9, 2015.



Sec.  218.110  Specified activity and specified geographical area.

    (a) Regulations in this subpart apply only to the U.S. Navy for the 
taking of marine mammals that occurs in the area outlined in paragraph 
(b) of this section and that occur incidental to the activities 
described in paragraph (c) of this section.

[[Page 207]]

    (b) The taking of marine mammals by the Navy is only authorized if 
it occurs within the Offshore area of the Northwest Training Range 
Complex (NWTRC) (as depicted in Figure ES-1 in the Navy's Draft 
Environmental Impact Statement for NWTRC), which is bounded by 
48[deg]30[min] N. lat.; 130[deg]00[min] W. long.; 40[deg]00[min] N. 
lat.; and on the east by 124[deg]00[min] W. long or by the shoreline 
where the shoreline extends west of 124[deg]00[min] W. long (excluding 
the Strait of Juan de Fuca (east of 124[deg]40[min] W. long), which is 
not included in the Offshore area).
    (c) The taking of marine mammals by the Navy is only authorized if 
it occurs incidental to the following activities:
    (1) The use of the following mid-frequency active sonar (MFAS) and 
high frequency active sonar (HFAS) sources, or similar sources, for Navy 
training, maintenance, or research, development, testing, and evaluation 
(RDT&E) (estimated amounts below):
    (i) AN/SQS-53 (hull-mounted active sonar)--up to 215 hours over the 
course of 5 years (an average of 43 hours per year);
    (ii) AN/SQS-56 (hull-mounted active sonar)--up to 325 hours over the 
course of 5 years (an average of 65 hours per year);
    (iii) SSQ-62 (Directional Command Activated Sonobuoy System (DICASS) 
sonobuoys)--up to 4430 sonobuoys over the course of 5 years (an average 
of 886 sonobuoys per year)
    (iv) MK-48 (heavyweight torpedoes)--up to 10 torpedoes over the 
course of 5 years (an average of 2 torpedoes per year);
    (v) AN/BQS-15 (mine detection and submarine navigational sonar)--up 
to 210 hours over the course of 5 years (an average of 42 hours per 
year);
    (vi) AN/SSQ-125 (AEER)--up to 745 buoys deployed over the course of 
5 years (total combined with the AN/SSQ-110A (IEER)) (an average of 149 
per year);
    (vii) Range Pingers--up to 900 hours over the course of 5 years (an 
average of 180 hours per year); and
    (viii) PUTR Uplink--up to 750 hours over the course of 5 years (an 
average of 150 hours per year).
    (2) The detonation of the underwater explosives indicated in 
paragraph (c)(2)(i) of this section, or similar explosives, conducted as 
part of the training exercises indicated in paragraph (c)(2)(ii) of this 
section:
    (i) Underwater Explosives:
    (A) 5[sec] Naval Gunfire (9.5 lbs);
    (B) 76 mm rounds (1.6 lbs);
    (C) Maverick (78.5 lbs);
    (D) Harpoon (448 lbs);
    (E) MK-82 (238 lbs);
    (F) MK-48 (851 lbs);
    (G) Demolition Charges (2.5 lbs);
    (H) AN/SSQ-110A (IEER explosive sonobuoy--5 lbs);
    (I) HARM;
    (J) Hellfire;
    (K) SLAM; and
    (L) GBU 10, 12, and 16.
    (ii) Training Events:
    (A) Surface-to-surface Gunnery Exercises (S-S GUNEX)--up to 1700 
exercises over the course of 5 years (an average of 340 per year).
    (B) Bombing Exercises (BOMBEX)--up to 150 exercises over the course 
of 5 years (an average of 30 per year).
    (C) Sinking Exercises (SINKEX)--up to 10 exercises over the course 
of 5 years (an average of 2 per year).
    (D) Extended Echo Ranging and Improved Extended Echo Ranging (EER/
IEER) Systems--up to 60 exercises (total combined with the AN/SSQ-125A 
(AEER)) over the course of 5 years (an average of 12 per year).
    (3) The taking of marine mammals may also be authorized in an LOA 
for the activities and sources listed inSec. 218.110(c)(1) should the 
amounts (i.e., hours, dips, number of exercises) vary from those 
estimated inSec. 218.110(c)(2), provided that the variation does not 
result in exceeding the amount of take indicated inSec. 218.112(c).

[75 FR 45547, Aug. 3, 2010, as amended at 77 FR 4924, Feb. 1, 2012]



Sec.  218.111  Effective dates.

    Amended regulations are effective February 1, 2012, through November 
9, 2015.

[77 FR 4924, Feb. 1, 2012]



Sec.  218.112  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec.Sec. 
216.106 and 218.117

[[Page 208]]

of this chapter, the Holder of the Letter of Authorization (hereinafter 
``Navy'') may incidentally, but not intentionally, take marine mammals 
within the area described inSec. 218.110(b), provided the activity is 
in compliance with all terms, conditions, and requirements of these 
regulations and the appropriate Letter of Authorization.
    (b) [Reserved]
    (c) The incidental take of marine mammals under the activities 
identified inSec. 218.110(c) is limited to the species listed in 
paragraphs (c)(4) and (5) of this section by the indicated method of 
take and the indicated number of times (estimated based on the 
authorized amounts of sound source operation), but with the following 
allowances for annual variation in sonar activities:
    (1) In any given year, annual take, by harassment, of any species of 
marine mammal may not exceed the amount indentified in paragraph (c)(4) 
and (5) of this section, for that species by more than 25 percent (a 
post-calculation/estimation of which must be provided in the annual LOA 
application);
    (2) In any given year, annual take by harassment of all marine 
mammal species combined may not exceed the estimated total of all 
species combined, indicated in paragraphs (c)(4) and (5), by more than 
10 percent; and
    (3) Over the course of the effective period of this subpart, total 
take, by harassment, of any species may not exceed the 5-year amounts 
indicated in paragraphs (c)(4) and (5) by more than 10 percent. A 
running calculation/estimation of takes of each species over the course 
of the years covered by the rule must be maintained.
    (4) Level B Harassment:
    (i) Mysticetes:
    (A) Humpback whale (Megaptera novaeangliae)--75 (an average of 15 
annually);
    (B) Fin whale (Balaenoptera physalus)--720 (an average of 144 
annually);
    (C) Blue whale (Balaenoptera musculus)--95 (an average of 19 
annually);
    (D) Sei whale (Balaenoptera borealis)--5 (an average of 1 annually);
    (E) Minke whale (Balaenoptera acutorostrata)--45 (an average of 9 
annually); and
    (F) Gray whale (Eschrichtius robustus)--20 (an average of 4 
annually).
    (ii) Odontocetes:
    (A) Sperm whales (Physeter macrocephalus)--635 (an average of 127 
annually);
    (B) Killer whale (Orcinus orca)--70 (an average of 14 annually);
    (C) Pygmy or dwarf sperm whales (Kogia breviceps or Kogia sima)--20 
(an average of 4 annually);
    (D) Mesoplodont beaked whales--75 (an average of 15 annually);
    (E) Cuvier's beaked whales (Ziphius cavirostris)--70 (an average of 
14 annually);
    (F) Baird's beaked whales (Berardius bairdii)--65 (an average of 13 
annually);
    (G) Short-finned pilot whale (Globicephala macrorynchus)--10 (an 
average of 2 annually);
    (H) Striped dolphin (Stenella coeruleoalba)--200 (an average of 40 
annually);
    (I) Short-beaked common dolphin (Globicephala macrorhynchus)--6280 
(an average of 1256 annually);
    (J) Risso's dolphin (Grampus griseus)--500 (an average of 100 
annually);
    (K) Northern right whale dolphin (Lissodelphis borealis)--3705 (an 
average of 741 annually);
    (L) Pacific white-sided dolphin (Lagenorhynchus obliquidens)--2855 
(an average of 571 annually);
    (M) Dall's porpoise (Phocoenoides dalli)--23760 (an average of 4752 
annually); and
    (N) Harbor Porpoise (Phocoena phocoena)--596370 (an average of 
119274 annually).
    (ii) Pinnipeds:
    (A) Northern elephant seal (Mirounga angustirostris)--1890 (an 
average of 378 annually);
    (B) Pacific harbor seal (Phoca vitulina)--2930 (an average of 586 
annually);
    (C) California sea lion (Zalophus californianus)--1430 (an average 
of 286 annually);
    (D) Northern fur seal (Callorhinus ursinus)--6825 (an average of 
1365 annually); and

[[Page 209]]

    (E) Steller sea lion (Eumetopias jubatus)--600 (an average of 120 
annually).
    (5) Level A Harassment:
    (i) Fin whale--5 (an average of 1 annually);
    (ii) Sperm whale--5 (an average of 1 annually);
    (iii) Dall's Porpoise--15 (an average of 3 annually);
    (iv) Harbor Porpoise--5 (an average of 1 annually);
    (v) Northern right whale dolphin--5 (an average of 1 annually);
    (vi) Short-beaked common dolphin--10 (an average of 2 annually);
    (vii) Northern elephant seal--10 (an average of 2 annually);
    (viii) Pacific harbor seal--5 (an average of 1 annually); and
    (ix) Northern fur seal--5 (an average of 1 annually).

    Editorial Note: At 75 FR 69319, Nov. 10, 2010, subpart M was added; 
at that time,Sec. 218.112 was added with two paragraphs (a)(4)(ii).



Sec.  218.113  Prohibitions.

    No person in connection with the activities described inSec. 
218.110 may:
    (a) Take any marine mammal not specified inSec. 218.112(c);
    (b) Take any marine mammal specified inSec. 218.112(c) other than 
by incidental take as specified in Sec.Sec. 218.112(c)(1) and (c)(2);
    (c) Take a marine mammal specified inSec. 218.112(c) if such 
taking results in more than a negligible impact on the species or stocks 
of such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of these regulations or a Letter of Authorization issued 
under Sec.Sec. 216.106 and 218.117 of this chapter.



Sec.  218.114  Mitigation.

    (a) When conducting training and utilizing the sound sources or 
explosives identified inSec. 218.110(c), the mitigation measures 
contained in the Letter of Authorization issued under Sec.Sec. 216.106 
and 218.117 of this chapter must be implemented. These mitigation 
measures include, but are not limited to:
    (1) Navy's General Maritime Measures for All Training at Sea:
    (i) Personnel Training (for all Training Types):
    (A) All commanding officers (COs), executive officers (XOs), 
lookouts, Officers of the Deck (OODs), junior OODs (JOODs), maritime 
patrol aircraft aircrews, and Anti-submarine Warfare (ASW)/Mine Warfare 
(MIW) helicopter crews shall complete the NMFS-approved Marine Species 
Awareness Training (MSAT) by viewing the U.S. Navy MSAT digital 
versatile disk (DVD). All bridge lookouts shall complete both parts one 
and two of the MSAT; part two is optional for other personnel.
    (B) Navy lookouts shall undertake extensive training in order to 
qualify as a watchstander in accordance with the Lookout Training 
Handbook (Naval Education and Training Command [NAVEDTRA] 12968-D) 
available at https://portal.navfac.navy.mil/go/navytraining-env-docs.
    (C) Lookout training shall include on-the-job instruction under the 
supervision of a qualified, experienced lookout. Following successful 
completion of this supervised training period, lookouts shall complete 
the Personal Qualification Standard Program, certifying that they have 
demonstrated the necessary skills (such as detection and reporting of 
partially submerged objects). Personnel being trained as lookouts can be 
counted among required lookouts as long as supervisors monitor their 
progress and performance.
    (D) Lookouts shall be trained in the most effective means to ensure 
quick and effective communication within the command structure in order 
to facilitate implementation of protective measures if marine species 
are spotted.
    (ii) Operating Procedures and Collision Avoidance:
    (A) Prior to major exercises, a Letter of Instruction, Mitigation 
Measures Message or Environmental Annex to the Operational Order shall 
be issued to further disseminate the personnel training requirement and 
general marine species protective measures.
    (B) COs shall make use of marine species detection cues and 
information to limit interaction with marine species to the maximum 
extent possible consistent with safety of the ship.

[[Page 210]]

    (C) While underway, surface vessels shall have at least two lookouts 
with binoculars; surfaced submarines shall have at least one lookout 
with binoculars. Lookouts already posted for safety of navigation and 
man-overboard precautions may be used to fill this requirement. As part 
of their regular duties, lookouts will watch for and report to the OOD 
the presence of marine mammals.
    (D) On surface vessels equipped with a multi-function active sensor, 
pedestal mounted ``Big Eye'' (20x110) binoculars shall be properly 
installed and in good working order to assist in the detection of marine 
mammals in the vicinity of the vessel.
    (E) Personnel on lookout shall employ visual search procedures 
employing a scanning methodology in accordance with the Lookout Training 
Handbook (NAVEDTRA 12968-D).
    (F) After sunset and prior to sunrise, lookouts shall employ Night 
Lookouts Techniques in accordance with the Lookout Training Handbook. 
(NAVEDTRA 12968-D).
    (G) While in transit, naval vessels shall be alert at all times, use 
extreme caution, and proceed at a ``safe speed'' so that the vessel can 
take proper and effective action to avoid a collision with any marine 
animal and can be stopped within a distance appropriate to the 
prevailing circumstances and conditions.
    (H) When marine mammals have been sighted in the area, Navy vessels 
shall increase vigilance and take reasonable and practicable actions to 
avoid collisions and activities that might result in close interaction 
of naval assets and marine mammals. Actions may include changing speed 
and/or direction and are dictated by environmental and other conditions 
(e.g., safety, weather).
    (I) Naval vessels shall maneuver to keep at least 1,500 ft (500 yds) 
away from any observed whale in the vessel's path and avoid approaching 
whales head-on. These requirements do not apply if a vessel's safety is 
threatened, such as when change of course will create an imminent and 
serious threat to a person, vessel, or aircraft, and to the extent 
vessels are restricted in their ability to maneuver. Restricted 
maneuverability includes, but is not limited to, situations when vessels 
are engaged in dredging, submerged activities, launching and recovering 
aircraft or landing craft, minesweeping activities, replenishment while 
underway and towing activities that severely restrict a vessel's ability 
to deviate course. Vessels will take reasonable steps to alert other 
vessels in the vicinity of the whale. Given rapid swimming speeds and 
maneuverability of many dolphin species, naval vessels would maintain 
normal course and speed on sighting dolphins unless some condition 
indicated a need for the vessel to maneuver.
    (J) Navy aircraft participating in exercises at sea shall conduct 
and maintain, when operationally feasible and safe, surveillance for 
marine mammals as long as it does not violate safety constraints or 
interfere with the accomplishment of primary operational duties. Marine 
mammal detections shall be immediately reported to assigned Aircraft 
Control Unit for further dissemination to ships in the vicinity of the 
marine species as appropriate when it is reasonable to conclude that the 
course of the ship will likely result in a closing of the distance to 
the detected marine mammal.
    (K) All vessels shall maintain logs and records documenting training 
operations should they be required for event reconstruction purposes. 
Logs and records will be kept for a period of 30 days following 
completion of a major training exercise.
    (2) Navy's Measures for MFAS Operations:
    (i) Personnel Training (for MFAS Operations):
    (A) All lookouts onboard platforms involved in ASW training events 
shall review the NMFS-approved Marine Species Awareness Training 
material prior to use of mid-frequency active sonar.
    (B) All COs, XOs, and officers standing watch on the bridge shall 
have reviewed the Marine Species Awareness Training material prior to a 
training event employing the use of mid-frequency active sonar.
    (C) Navy lookouts shall undertake extensive training in order to 
qualify as a watchstander in accordance with the Lookout Training 
Handbook (Naval

[[Page 211]]

Educational Training [NAVEDTRA], 12968-D).
    (D) Lookout training shall include on-the-job instruction under the 
supervision of a qualified, experienced watchstander. Following 
successful completion of this supervised training period, lookouts shall 
complete the Personal Qualification Standard program, certifying that 
they have demonstrated the necessary skills (such as detection and 
reporting of partially submerged objects). This does not forbid 
personnel being trained as lookouts from being counted as those listed 
in previous measures so long as supervisors monitor their progress and 
performance.
    (E) Lookouts shall be trained in the most effective means to ensure 
quick and effective communication within the command structure in order 
to facilitate implementation of mitigation measures if marine species 
are spotted.
    (ii) Lookout and Watchstander Responsibilities:
    (A) On the bridge of surface ships, there shall always be at least 
three people on watch whose duties include observing the water surface 
around the vessel.
    (B) All surface ships participating in ASW training events shall, in 
addition to the three personnel on watch noted previously, have at all 
times during the exercise at least two additional personnel on watch as 
marine mammal lookouts.
    (C) Personnel on lookout and officers on watch on the bridge shall 
have at least one set of binoculars available for each person to aid in 
the detection of marine mammals.
    (D) On surface vessels equipped with mid-frequency active sonar, 
pedestal mounted ``Big Eye'' (20x110) binoculars shall be present and in 
good working order to assist in the detection of marine mammals in the 
vicinity of the vessel.
    (E) Personnel on lookout shall employ visual search procedures 
employing a scanning methodology in accordance with the Lookout Training 
Handbook (NAVEDTRA 12968-D).
    (F) After sunset and prior to sunrise, lookouts shall employ Night 
Lookouts Techniques in accordance with the Lookout Training Handbook.
    (G) Personnel on lookout shall be responsible for reporting all 
objects or anomalies sighted in the water (regardless of the distance 
from the vessel) to the Officer of the Deck, since any object or 
disturbance (e.g., trash, periscope, surface disturbance, discoloration) 
in the water may be indicative of a threat to the vessel and its crew or 
indicative of a marine species that may need to be avoided as warranted.
    (iii) Operating Procedures (for MFAS Operations):
    (A) Navy will distribute final mitigation measures contained in the 
LOA and the Incidental take statement of NMFS' biological opinion to the 
Fleet.
    (B) COs shall make use of marine species detection cues and 
information to limit interaction with marine species to the maximum 
extent possible consistent with safety of the ship.
    (C) All personnel engaged in passive acoustic sonar operation 
(including aircraft, surface ships, or submarines) shall monitor for 
marine mammal vocalizations and report the detection of any marine 
mammal to the appropriate watch station for dissemination and 
appropriate action.
    (D) During mid-frequency active sonar operations, personnel shall 
utilize all available sensor and optical systems (such as night vision 
goggles) to aid in the detection of marine mammals.
    (E) Navy aircraft participating in exercises at sea shall conduct 
and maintain, when operationally feasible and safe, surveillance for 
marine species of concern as long as it does not violate safety 
constraints or interfere with the accomplishment of primary operational 
duties.
    (F) Aircraft with deployed sonobuoys shall use only the passive 
capability of sonobuoys when marine mammals are detected within 200 yds 
(183 m) of the sonobuoy.
    (G) Marine mammal detections shall be immediately reported to 
assigned Aircraft Control Unit for further dissemination to ships in the 
vicinity of the marine species as appropriate where it is reasonable to 
conclude that the course of the ship will likely result in a closing of 
the distance to the detected marine mammal.

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    (H) Safety Zones--When marine mammals are detected by any means 
(aircraft, shipboard lookout, or acoustically) the Navy shall ensure 
that sonar transmission levels are limited to at least 6 dB below normal 
operating levels if any detected marine mammals are within 1,000 yards 
(914 m) of the sonar dome (the bow).
    (1) Ships and submarines shall continue to limit maximum 
transmission levels by this 6-dB factor until the animal has been seen 
to leave the 1,000-yd safety zone, has not been detected for 30 minutes, 
or the vessel has transited more than 2,000 yds (1829 m) beyond the 
location of the last detection.
    (2) When marine mammals are detected by any means (aircraft, 
shipboard lookout, or acoustically) the Navy shall ensure that sonar 
transmission levels are limited to at least 10 dB below normal operating 
levels if any detected marine mammals are within 500 yards (497 m) of 
the sonar dome (the bow). Ships and submarines shall continue to limit 
maximum ping levels by this 10-dB factor until the animal has been seen 
to leave the 500-yd safety zone, has not been detected for 30 minutes, 
or the vessel has transited more than 2,000 yds (1829 m) beyond the 
location of the last detection.
    (3) When marine mammals are detected by any means (aircraft, 
shipboard lookout, or acoustically) the Navy shall ensure that sonar 
transmission ceases if any detected marine mammals are within 200 yards 
(183 m) of the sonar dome (the bow). Sonar shall not resume until the 
animal has been seen to leave the 200-yd safety zone, has not been 
detected for 30 minutes, or the vessel has transited more than 2,000 yds 
(1829 m) beyond the location of the last detection.
    (4) Special conditions applicable for dolphins and porpoises only: 
If, after conducting an initial maneuver to avoid close quarters with 
dolphins or porpoises, the OOD concludes that dolphins or porpoises are 
deliberately closing to ride the vessel's bow wave, no further 
mitigation actions are necessary while the dolphins or porpoises 
continue to exhibit bow wave riding behavior.
    (5) If the need for power-down should arise as detailed in ``Safety 
Zones'' above, the Navy shall follow the requirements as though they 
were operating at 235 dB--the normal operating level (i.e., the first 
power-down will be to 229 dB, regardless of at what level above 235 dB 
active sonar was being operated).
    (I) Prior to start up or restart of active sonar, operators will 
check that the Safety Zone radius around the sound source is clear of 
marine mammals.
    (J) Active sonar levels (generally)--Navy shall operate active sonar 
at the lowest practicable level, not to exceed 235 dB, except as 
required to meet tactical training objectives.
    (K) Helicopters shall observe/survey the vicinity of an ASW training 
event for 10 minutes before the first deployment of active (dipping) 
sonar in the water.
    (L) Helicopters shall not dip their active sonar within 200 yds (183 
m) of a marine mammal and shall cease pinging if a marine mammal closes 
within 200 yds of the sound source (183 m) after pinging has begun.
    (M) Submarine sonar operators shall review detection indicators of 
close-aboard marine mammals prior to the commencement of ASW training 
events involving active mid-frequency sonar.
    (N) Night vision goggles shall be available to all ships and air 
crews, for use as appropriate.
    (3) Navy's Measures for Underwater Detonations:
    (i) Surface-to-Surface Gunnery (non-explosive rounds)
    (A) A 200-yd (183 m) radius buffer zone shall be established around 
the intended target.
    (B) From the intended firing position, trained lookouts shall survey 
the buffer zone for marine mammals prior to commencement and during the 
exercise as long as practicable.
    (C) If applicable, target towing vessels shall maintain a lookout. 
If a marine mammal is sighted in the vicinity of the exercise, the tow 
vessel shall immediately notify the firing vessel in order to secure 
gunnery firing until the area is clear.
    (D) The exercise shall be conducted only when the buffer zone is 
visible and

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marine mammals are not detected within the target area and the buffer 
zone.
    (ii) Surface-to-Air Gunnery (explosive and non-explosive rounds)
    (A) Vessels shall orient the geometry of gunnery exercises in order 
to prevent debris from falling in the area of sighted marine mammals.
    (B) Vessels will attempt to recover any parachute deploying aerial 
targets to the extent practicable (and their parachutes if feasible) to 
reduce the potential for entanglement of marine mammals.
    (C) For exercises using targets towed by a vessel or aircraft, 
target towing vessel/aircraft shall maintain a lookout. If a marine 
mammal is sighted in the vicinity of the exercise, the tow aircraft 
shall immediately notify the firing vessel in order to secure gunnery 
firing until the area is clear.
    (iii) Air-to-Surface At-sea Bombing Exercises (explosive and non-
explosive):
    (A) If surface vessels are involved, trained lookouts shall survey 
for floating kelp and marine mammals. Ordnance shall not be targeted to 
impact within 1,000 yds (914 m) of known or observed floating kelp or 
marine mammals.
    (B) A 1,000 yd (914 m) radius buffer zone shall be established 
around the intended target.
    (C) Aircraft shall visually survey the target and buffer zone for 
marine mammals prior to and during the exercise. The survey of the 
impact area shall be made by flying at 1,500 ft (457 m) or lower, if 
safe to do so, and at the slowest safe speed. Release of ordnance 
through cloud cover is prohibited: aircraft must be able to actually see 
ordnance impact areas. Survey aircraft should employ most effective 
search tactics and capabilities.
    (D) The exercise will be conducted only if marine mammals are not 
visible within the buffer zone.
    (iv) Air-to-Surface Missile Exercises (explosive and non-explosive):
    (A) Ordnance shall not be targeted to impact within 1,800 yds (1646 
m) of known or observed floating kelp.
    (B) Aircraft shall visually survey the target area for marine 
mammals. Visual inspection of the target area shall be made by flying at 
1,500 ft (457 m) or lower, if safe to do so, and at slowest safe speed. 
Firing or range clearance aircraft must be able to actually see ordnance 
impact areas. Explosive ordnance shall not be targeted to impact within 
1,800 yds (1646 m) of sighted marine mammals.
    (v) Demolitions, Mine Warfare, and Mine Countermeasures (up to a 
2.5-lb charge):
    (A) Exclusion Zones--All Mine Warfare and Mine Countermeasures 
Operations involving the use of explosive charges must include exclusion 
zones for marine mammals to prevent physical and/or acoustic effects to 
those species. These exclusion zones shall extend in a 700-yard arc 
radius around the detonation site.
    (B) Pre-Exercise Surveys--For Demolition and Ship Mine 
Countermeasures Operations, pre-exercise surveys shall be conducted 
within 30 minutes prior to the commencement of the scheduled explosive 
event. The survey may be conducted from the surface, by divers, and/or 
from the air, and personnel shall be alert to the presence of any marine 
mammal. Should such an animal be present within the survey area, the 
explosive event shall not be started until the animal voluntarily leaves 
the area. The Navy will ensure the area is clear of marine mammals for a 
full 30 minutes prior to initiating the explosive event. Personnel will 
record any marine mammal observations during the exercise as well as 
measures taken if species are detected within the exclusion zone.
    (C) Post-Exercise Surveys--Surveys within the same radius shall also 
be conducted within 30 minutes after the completion of the explosive 
event.
    (D) Reporting--If there is evidence that a marine mammal may have 
been stranded, injured or killed by the action, Navy training activities 
shall be immediately suspended and the situation immediately reported by 
the participating unit to the Officer in Charge of the Exercise (OCE), 
who will follow Navy procedures for reporting the incident to Commander, 
Pacific Fleet, Commander, Navy Region Northwest, Environmental Director, 
and the chain-of-command. The situation shall

[[Page 214]]

also be reported to NMFS (see Stranding Plan for details).
    (vi) Sink Exercise:
    (A) All weapons firing shall be conducted during the period 1 hour 
after official sunrise to 30 minutes before official sunset.
    (B) An exclusion zone with a radius of 1.5 nm shall be established 
around each target. This 1.5 nm zone includes a buffer of 0.5 nm to 
account for errors, target drift, and animal movement. In addition to 
the 1.5 nm exclusion zone, a further safety zone, which extends from the 
exclusion zone at 1.5 nm out an additional 0.5 nm, shall be surveyed. 
Together, the zones extend out 2 nm (3.7 km) from the target.
    (C) A series of surveillance over-flights shall be conducted within 
the 2-nm zone around the target, prior to and during the exercise, when 
feasible. Survey protocol shall be as follows:
    (1) Overflights within the 2-nm zone around the target shall be 
conducted in a manner that optimizes the surface area of the water 
observed. This may be accomplished through the use of the Navy's Search 
and Rescue Tactical Aid, which provides the best search altitude, ground 
speed, and track spacing for the discovery of small, possibly dark 
objects in the water based on the environmental conditions of the day. 
These environmental conditions include the angle of sun inclination, 
amount of daylight, cloud cover, visibility, and sea state.
    (2) All visual surveillance activities shall be conducted by Navy 
personnel trained in visual surveillance. At least one member of the 
mitigation team is required to have completed the Navy's marine mammal 
training program for lookouts.
    (3) In addition to the overflights, the 2-nm zone around the target 
shall be monitored by passive acoustic means, when assets are available. 
This passive acoustic monitoring would be maintained throughout the 
exercise. Potential assets include sonobuoys, which can be utilized to 
detect any vocalizing marine mammals (particularly sperm whales) in the 
vicinity of the exercise. The sonobuoys shall be re-seeded as necessary 
throughout the exercise. Additionally, if submarines are present, 
passive sonar onboard shall be utilized to detect any vocalizing marine 
mammals in the area. The OCE would be informed of any aural detection of 
marine mammals and would include this information in the determination 
of when it is safe to commence the exercise.
    (4) On each day of the exercise, aerial surveillance of the 2-nm 
zone around the target shall commence 2 hours prior to the first firing.
    (5) The results of all visual, aerial, and acoustic searches shall 
be reported immediately to the OCE. No weapons launches or firing may 
commence until the OCE declares the 2-nm zone around the target free of 
marine mammals.
    (6) If a marine mammal observed within the 2-nm zone around the 
target is diving, firing would be delayed until the animal is re-sighted 
outside the 2-nm zone around the target, or 30 minutes have elapsed. 
After 30 minutes, if the animal has not been re-sighted it would be 
assumed to have left the exclusion zone. The OCE would determine if the 
identified marine mammal is in danger of being adversely affected by 
commencement of the exercise.
    (7) During breaks in the exercise of 30 minutes or more, the 2-nm 
zone around the target shall again be surveyed for any marine mammal. If 
marine mammals are sighted within 2-nm zone around the target, the OCE 
shall be notified, and the procedure described in (vi)(c)(1)-(6) would 
be followed.
    (8) Upon sinking of the vessel, a final surveillance of the 2-nm 
zone around the target shall be monitored for 2 hours, or until sunset, 
to verify that no marine mammals were injured.
    (D) Aerial surveillance shall be conducted using helicopters or 
other aircraft based on necessity and availability.
    (E) Where practicable, the Navy shall conduct the exercise in sea 
states that are ideal for marine mammal sighting, i.e., Beaufort Sea 
State 3 or less. In the event of a Beaufort Sea State 4 or above, survey 
efforts shall be increased within the 2-nm zone around the target. This 
shall be accomplished through the use of an additional aircraft, if 
available, and conducting tight search patterns.
    (F) The sink exercise shall not be conducted unless the 2-nm zone 
around

[[Page 215]]

the target could be adequately monitored visually.
    (G) In the event that any marine mammals are observed to be harmed 
in the area, NMFS shall be notified as soon as feasible following the 
stranding communication protocol. A detailed description of the animal 
shall be taken, the location noted, and if possible, photos taken. This 
information shall be provided to NMFS as soon as practicable via the 
Navy's regional environmental coordinator for purposes of 
identification.
    (H) An after action report detailing the exercise's time line, the 
time the surveys commenced and terminated, amount, and types of all 
ordnance expended, and the results of survey efforts for each event 
shall be submitted to NMFS.
    (vii) Extended Echo Ranging/Improved Extended Echo Ranging (EER/
IEER):
    (A) Crews shall conduct visual reconnaissance of the drop area prior 
to laying their intended sonobuoy pattern. This search shall be 
conducted at an altitude below 457 m (500 yd) at a slow speed, if 
operationally feasible and weather conditions permit. In dual aircraft 
operations, crews are allowed to conduct area clearances utilizing more 
than one aircraft.
    (B) For IEER (AN/SSQ-110A), crews shall conduct a minimum of 30 
minutes of visual and aural monitoring of the search area prior to 
commanding the first post detonation. This 30-minute observation period 
may include pattern deployment time.
    (C) For any part of the intended sonobuoy pattern where a post 
(source/receiver sonobuoy pair) will be deployed within 914 m (1,000 yd) 
of observed marine mammal activity, the Navy shall deploy the receiver 
ONLY (i.e., not the source) and monitor while conducting a visual 
search. When marine mammals are no longer detected within 914 m (1,000 
yd) of the intended post position, the source sonobuoy (AN/SSQ-110A/SSQ-
125) will be co-located with the receiver.
    (D) When operationally feasible, Navy crews shall conduct continuous 
visual and aural monitoring of marine mammal activity. This shall 
include monitoring of aircraft sensors from the time of the first sensor 
placement until the aircraft have left the area and are out of RF range 
of these sensors.
    (E) Aural Detection--If the presence of marine mammals is detected 
aurally, then that shall cue the Navy aircrew to increase the vigilance 
of their visual surveillance. Subsequently, if no marine mammals are 
visually detected, then the crew may continue multi-static active 
search.
    (F) Visual Detection--If marine mammals are visually detected within 
914 m (1,000 yd) of the explosive source sonobuoy (AN/SSQ-110A) intended 
for use, then that payload shall not be detonated. Aircrews may utilize 
this post once the marine mammals have not been re-sighted for 30 
minutes, or are observed to have moved outside the 914 m (1,000 yd) 
safety buffer. Aircrews may shift their multi-static active search to 
another post, where marine mammals are outside the 914 m (1,000 yd) 
safety buffer.
    (G) For IEER (AN/SSQ-110A), aircrews shall make every attempt to 
manually detonate the unexploded charges at each post in the pattern 
prior to departing the operations area by using the ``Payload 1 
Release'' command followed by the ``Payload 2 Release'' command. 
Aircrews shall refrain from using the ``Scuttle'' command when two 
payloads remain at a given post. Aircrews will ensure that a 914 m 
(1,000 yd) safety buffer, visually clear of marine mammals, is 
maintained around each post as is done during active search operations.
    (H) Aircrews shall only leave posts with unexploded charges in the 
event of a sonobuoy malfunction, an aircraft system malfunction, or when 
an aircraft must immediately depart the area due to issues such as fuel 
constraints, inclement weather, or in-flight emergencies. In these 
cases, the sonobuoy will self-scuttle using the secondary or tertiary 
method.
    (I) The Navy shall ensure all payloads are accounted for. Explosive 
source sonobuoys (AN/SSQ-110A) that cannot be scuttled shall be reported 
as unexploded ordnance via voice communications while airborne, then 
upon landing via naval message.

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    (J) Mammal monitoring shall continue until out of own-aircraft 
sensor range.
    (b) [Reserved]



Sec.  218.115  Requirements for monitoring and reporting.

    (a) General Notification of Injured or Dead Marine Mammals--Navy 
personnel shall ensure that NMFS is notified immediately ((see 
Communication Plan) or as soon as clearance procedures allow) if an 
injured, stranded, or dead marine mammal is found during or shortly 
after, and in the vicinity of, any Navy training exercise utilizing 
MFAS, HFAS, or underwater explosive detonations. The Navy will provide 
NMFS with the name of species or description of the animal(s), the 
condition of the animal(s) (including carcass condition if the animal is 
dead), location, time of first discovery, observed behaviors (if alive), 
and photo or video (if available). In the event that an injured, 
stranded, or dead marine mammal is found by the Navy that is not in the 
vicinity of, or during or shortly after, MFAS, HFAS, or underwater 
explosive detonations, the Navy will report the same information as 
listed above as soon as operationally feasible and clearance procedures 
allow.
    (b) General Notification of Ship Strike--In the event of a ship 
strike by any Navy vessel, at any time or place, the Navy shall do the 
following:
    (1) Immediately report to NMFS the species identification (if 
known), location (lat/long) of the animal (or the strike if the animal 
has disappeared), and whether the animal is alive or dead (or unknown).
    (2) Report to NMFS as soon as operationally feasible the size and 
length of animal, an estimate of the injury status (ex., dead, injured 
but alive, injured and moving, unknown, etc.), vessel class/type and 
operational status.
    (3) Report to NMFS the vessel length, speed, and heading as soon as 
feasible.
    (4) Provide NMFS a photo or video, if equipment is available.
    (c) Event Communication Plan--The Navy shall develop a communication 
plan that will include all of the communication protocols (phone trees, 
etc.) and associated contact information required for NMFS and the Navy 
to carry out the necessary expeditious communication required in the 
event of a stranding or ship strike, including as described in the 
proposed notification measures above.
    (d) The Navy must conduct all monitoring and/or research required 
under the Letter of Authorization, including abiding by the annual NWTRC 
Monitoring Plan. (http://www.nmfs.noaa.gov/pr/permits/
incidental.htm#applications)
    (e) The Navy shall comply with the 2009 Integrated Comprehensive 
Monitoring Program (ICMP) Plan and continue to improve the program in 
consultation with NMFS. Changes and improvements to the program made 
during 2010 (as prescribed in the 2009 ICMP and otherwise deemed 
appropriate by the Navy and NMFS) will be described in an updated 2010 
ICMP and submitted to NMFS by October 31, 2010 for review. An updated 
2010 ICMP will be finalized by December 31, 2010.
    (f) Report on Monitoring required in paragraph (e) of this section--
The Navy shall submit a report annually describing the implementation 
and results of the monitoring required in paragraph (d) of this section. 
The required submission date will be identified each year in the LOA. 
The Navy will standardize data collection methods across ranges to allow 
for comparison in different geographic locations.
    (g) Annual NWTRC Report--The Navy will submit an Annual NWTRC Report 
every year. The required submission date will be identified each year in 
the LOA. This report shall contain the subsections and information 
indicated below.
    (1) ASW Summary--This section shall include the following 
information as summarized from non-major training exercises (unit-level 
exercises, such as TRACKEXs and MIW):
    (i) Total Hours--Total annual hours of each type of sonar source 
(along with explanation of how hours are calculated for sources 
typically quantified in alternate way (buoys, torpedoes, etc.))
    (ii) Cumulative Impacts--To the extent practicable, the Navy, in 
coordination with NMFS, shall develop and implement a method of annually 
reporting non-major training (i.e., ULT) utilizing hull-mounted sonar. 
The report shall

[[Page 217]]

present an annual (and seasonal, where practicable) depiction of non-
major training exercises geographically across NWTRC. The Navy shall 
include (in the NWTRC annual report) a brief annual progress update on 
the status of the development of an effective and unclassified method to 
report this information until an agreed-upon (with NMFS) method has been 
developed and implemented.
    (2) [Reserved]
    (h) Sinking Exercises (SINKEXs)--This section shall include the 
following information for each SINKEX completed that year:
    (1) Exercise Info:
    (i) Location;
    (ii) Date and time exercise began and ended;
    (iii) Total hours of observation by watchstanders before, during, 
and after exercise;
    (iv) Total number and types of rounds expended/explosives detonated;
    (v) Number and types of passive acoustic sources used in exercise;
    (vi) Total hours of passive acoustic search time;
    (vii) Number and types of vessels, aircraft, etc., participating in 
exercise;
    (viii) Wave height in feet (high, low and average during exercise); 
and
    (ix) Narrative description of sensors and platforms utilized for 
marine mammal detection and timeline illustrating how marine mammal 
detection was conducted.
    (2) Individual marine mammal observation during SINKEX (by Navy 
lookouts) information:
    (i) Location of sighting;
    (ii) Species (if not possible--indication of whale/dolphin/
pinniped);
    (iii) Number of individuals;
    (iv) Calves observed (y/n);
    (v) Initial detection sensor;
    (vi) Length of time observers maintained visual contact with marine 
mammal;
    (vii) Wave height;
    (viii) Visibility;
    (ix) Whether sighting was before, during, or after detonations/
exercise, and how many minutes before or after;
    (x) Distance of marine mammal from actual detonations (or target 
spot if not yet detonated)--use four categories to define distance:
    (A) the modeled injury threshold radius for the largest explosive 
used in that exercise type in that OPAREA (662 m for SINKEX in NWTRC);
    (B) the required exclusion zone (1 nm for SINKEX in NWTRC);
    (C) the required observation distance (if different than the 
exclusion zone (2 nm for SINKEX in NWTRC)); and
    (D) greater than the required observed distance. For example, in 
this case, the observer would indicate if <662 m, from 738 m-1 nm, from 
1 nm-2 nm, and 2 nm.
    (xi) Observed behavior--Watchstanders will report, in plain language 
and without trying to categorize in any way, the observed behavior of 
the animals (such as animal closing to bow ride, paralleling course/
speed, floating on surface and not swimming etc.), including speed and 
direction.
    (xii) Resulting mitigation implementation--Indicate whether 
explosive detonations were delayed, ceased, modified, or not modified 
due to marine mammal presence and for how long.
    (xiii) If observation occurs while explosives are detonating in the 
water, indicate munitions type in use at time of marine mammal 
detection.
    (i) Improved Extended Echo-Ranging System (IEER) Summary
    (1) Total number of IEER events conducted in NWTRC;
    (2) Total expended/detonated rounds (buoys); and
    (3) Total number of self-scuttled IEER rounds.
    (j) Explosives Summary--The Navy is in the process of improving the 
methods used to track explosive use to provide increased granularity. To 
the extent practicable, the Navy shall provide the information described 
below for all of their explosive exercises. Until the Navy is able to 
report in full the information below, they will provide an annual update 
on the Navy's explosive tracking methods, including improvements from 
the previous year.
    (k) Total annual number of each type of explosive exercise (of those 
identified as part of the ``specified activity'' in this final rule) 
conducted in NWTRC; and
    (2) Total annual expended/detonated rounds (missiles, bombs, etc.) 
for each explosive type.

[[Page 218]]

    (l) NWTRC 5-Yr Comprehensive Report--The Navy shall submit to NMFS a 
draft report that analyzes and summarizes all of the multi-year marine 
mammal information gathered during ASW and explosive exercises for which 
annual reports are required (Annual NWTRC Exercise Reports and NWTRC 
Monitoring Plan Reports). This report will be submitted at the end of 
the fourth year of the rule (July 2014), covering activities that have 
occurred through February 1, 2014.
    (m) Comprehensive National ASW Report--By June, 2014, the Navy shall 
submit a draft National Report that analyzes, compares, and summarizes 
the active sonar data gathered (through January 1, 2014) from the 
watchstanders and pursuant to the implementation of the Monitoring Plans 
for the Northwest Training Range Complex, the Southern California Range 
Complex, the Atlantic Fleet Active Sonar Training, the Hawaii Range 
Complex, the Marianas Islands Range Complex, and the Gulf of Alaska.
    (n) The Navy shall respond to NMFS comments and requests for 
additional information or clarification on the NWTRC Comprehensive 
Report, the Comprehensive National ASW report, the Annual NWTRC Exercise 
Report, or the Annual NWTRC Monitoring Plan Report (or the multi-Range 
Complex Annual Monitoring Plan Report, if that is how the Navy chooses 
to submit the information) if submitted within 3 months of receipt. 
These reports will be considered final after the Navy has addressed 
NMFS' comments or provided the requested information, or three months 
after the submittal of the draft if NMFS does not comment by then.
    (o) In 2011, the Navy shall convene a Monitoring Workshop in which 
the Monitoring Workshop participants will be asked to review the Navy's 
Monitoring Plans and monitoring results and make individual 
recommendations (to the Navy and NMFS) of ways of improving the 
Monitoring Plans. The recommendations shall be reviewed by the Navy, in 
consultation with NMFS, and modifications to the Monitoring Plan shall 
be made, as appropriate.

    Editorial Note: At 75 FR 69319, Nov. 10, 2010, subpart M was added; 
at that time,Sec. 218.115 was added without a paragraph (k)(1) 
designation.



Sec.  218.116  Applications for Letters of Authorization.

    To incidentally take marine mammals pursuant to these regulations, 
the U.S. Citizen (as defined bySec. 216.103) conducting the activity 
identified inSec. 218.110(c) (i.e., the Navy) must apply for and 
obtain either an initial Letter of Authorization in accordance with 
Sec.  218.117 or a renewal underSec. 218.118.



Sec.  218.117  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the periods of validity of this 
subpart, but may be renewed or modified sooner subject to the renewal 
conditions inSec. 218.118 and the modification conditions inSec. 
218.119.
    (b) Each Letter of Authorization shall set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable 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 Letter of Authorization shall 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 affected species or stock of marine mammal(s).

[75 FR 45547, Aug. 3, 2010, as amended at 77 FR 4924, Feb. 1, 2012]



Sec.  218.118  Renewal of Letters of Authorization and adaptive
management.

    (a) A Letter of Authorization issued under Sec.Sec. 216.106 of 
this chapter and 218.117 for the activity identified inSec. 218.110(c) 
will be renewed upon:
    (1) Notification to NMFS that the activity described in the 
application submitted underSec. 218.116 will be undertaken and that 
there will not be a substantial modification to the desired work, 
mitigation, or monitoring undertaken during the upcoming period of 
validity;

[[Page 219]]

    (2) Receipt of the monitoring reports and notifications within the 
timeframes indicated in the previous LOA; and
    (3) A determination by NMFS that the mitigation, monitoring and 
reporting measures required underSec. 218.114 and the Letter of 
Authorization issued underSec. 216.106 of this chapter andSec. 
218.117, were undertaken and will be undertaken during the upcoming 
period of validity of a renewed Letter of Authorization.
    (b) If a request for a renewal of a Letter of Authorization issued 
under Sec.Sec. 216.106 and 216.118 indicates that a substantial 
modification, as determined by NMFS, to the described work, mitigation 
or monitoring undertaken during the upcoming season will occur, the NMFS 
will provide the public a period of 30 days for review and comment on 
the request.
    (c) A notice of issuance or denial of a renewal of a Letter of 
Authorization will be published in the Federal Register.
    (d) Adaptive Management--NMFS may modify or augment the existing 
mitigation or monitoring measures (after consulting with the Navy 
regarding the practicability of the modifications) if doing so creates a 
reasonable likelihood of more effectively accomplishing the goals of 
mitigation 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 decision to modify the mitigation or monitoring 
measures:
    (1) Results from the Navy's monitoring from the previous year 
(either from the NWTRC Study Area or other locations).
    (2) Findings of the Monitoring Workshop that the Navy will convene 
in 2011.
    (3) Compiled results of Navy funded research and development (R&D) 
studies (presented pursuant to the Integrated Comprehensive Monitoring 
Plan).
    (4) Results from specific stranding investigations (either from the 
NWTRC Study Area or other locations, and involving coincident MFAS/HFAS 
or explosives training or not involving coincident use).
    (5) Results from the Long Term Prospective Study described in the 
preamble to these regulations.
    (6) Results from general marine mammal and sound research (funded by 
the Navy or otherwise).
    (7) 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.

[75 FR 45547, Aug. 3, 2010, as amended at 77 FR 4924, Feb. 1, 2012]



Sec.  218.119  Modifications to Letters of Authorization.

    (a) Except as provided in paragraph (b) of this section, no 
substantive modification (including withdrawal or suspension) to the 
Letter of Authorization by NMFS, issued pursuant to Sec.Sec. 216.106 
and 218.117 of this chapter and subject to the provisions of this 
subpart, shall be made until after notification and an opportunity for 
public comment has been provided. For purposes of this paragraph, a 
renewal of a Letter of Authorization underSec. 218.118, without 
modification (except for the period of validity), is not considered a 
substantive modification.
    (b) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species or 
stocks of marine mammals specified inSec. 218.112(c), a Letter of 
Authorization issued pursuant to Sec.Sec. 216.106 and 218.117 of this 
chapter may be substantively modified without prior notification and an 
opportunity for public comment. Notification will be published in the 
Federal Register within 30 days subsequent to the action.



Subpart N_Taking and Importing Marine Mammals; Gulf of Alaska Temporary 
                   Maritime Activities Area (GoA TMAA)

    Source: 76 FR 25505, May 4, 2011, unless otherwise noted.

    Effective Date Note: At 76 FR 25505, May 4, 2011, subpart N was 
added, effective May 4, 2011 through May 4, 2016.

[[Page 220]]



Sec.  218.120  Specified activity and geographical area.

    (a) Regulations in this subpart apply only to the U.S. Navy for the 
taking of marine mammals that occurs in the area outlined in paragraph 
(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 Navy is only authorized if 
it occurs within the Gulf of Alaska Temporary Maritime Activities Area 
(GoA TMAA) (as depicted in Figure 1-1 in the Navy's application for GoA 
TMAA), which is bounded by a hexagon with the following six corners: 
57[deg]30[min] N. lat., 141[deg]30[min] W. long.; 59[deg]36[min] N. 
lat., 148[deg]10[min] W. long.; 58[deg]57[min] N. lat., 150[deg]04[min] 
W. long.; 58[deg]20[min] N. lat., 151[deg]00[min] W. long.; 
57[deg]16[min] N. lat., 151[deg]00[min] W. long.; and 55[deg]30[min] N. 
lat., 142[deg]00[min] W. long.
    (c) The taking of marine mammals by the Navy is only authorized if 
it occurs incidental to the following activities:
    (1) The use of the following mid-frequency active sonar (MFAS) 
sources, high-frequency active sonar (HFAS) sources, or similar sources 
for Navy training activities (estimated amounts below):
    (i) AN/SQS-53 (hull-mounted active sonar)--up to 2,890 hours over 
the course of 5 years (an average of 578 hours per year);
    (ii) AN/SQS-56 (hull-mounted active sonar)--up to 260 hours over the 
course of 5 years (an average of 52 hours per year);
    (iii) AN/SSQ-62 (Directional Command Activated Sonobuoy System 
(DICASS) sonobuoys)--up to 1,330 sonobuoys over the course of 5 years 
(an average of 266 sonobuoys per year);
    (iv) AN/AQS-22 (helicopter dipping sonar)--up to 960 ``dips'' over 
the course of 5 years (an average of 192 ``dips'' per year);
    (v) AN/BQQ-10 (submarine hull-mounted sonar)--up to 240 hours over 
the course of 5 years (an average of 48 hours per year);
    (vi) MK-48 (torpedo)--up to 10 torpedoes over the course of 5 years 
(a maximum of 2 torpedoes per year);
    (vii) AN/SSQ-110A (IEER)--up to 400 buoys deployed over the course 
of 5 years (an average of 80 per year maximum combined use of AN/SSQ-
110A or AN/SSQ-125);
    (viii) AN/SSQ-125 (MAC)--up to 400 buoys deployed over the course of 
5 years (an average of 80 per year maximum combined use of AN/SSQ-110A 
or AN/SSQ-125);
    (ix) Range Pingers--up to 400 hours over the course of 5 years (an 
average of 80 hours per year);
    (x) SUS MK-84--up to 120 devices over the course of 5 years (an 
average of 24 per year);
    (xi) PUTR Transponder--up to 400 hours over the course of 5 years 
(an average of 80 hours per year); and
    (xii) MK-39 EMATT Targets--up to 60 devices over the course of 5 
years (an average of 12 per year).
    (2) The detonation of the underwater explosives indicated in 
paragraph (c)(2)(i) of this section, or similar explosives, conducted as 
part of the training exercises indicated in paragraph (c)(2)(ii) of this 
section:
    (i) Underwater Explosives (Net Explosive Weight (NEW)):
    (A) 5[sec] Naval Gunfire (9.5 lbs NEW);
    (B) 76 mm rounds (1.6 lbs NEW);
    (C) Maverick (78.5 lbs NEW);
    (D) MK-82 (238 lbs NEW);
    (E) MK-83 (238 lbs NEW);
    (F) MK-83 (574 lbs NEW);
    (G) MK-84 (945 lbs NEW);
    (H) MK-48 (851 lbs NEW);
    (I) AN/SSQ-110A (IEER explosive sonobuoy--5 lbs NEW);
    (ii) Training Events:
    (A) Gunnery Exercises (S-S GUNEX)--up to 60 exercises over the 
course of 5 years (an average of 12 per year);
    (B) Bombing Exercises (BOMBEX)--up to 180 exercises over the course 
of 5 years (an average of 36 per year);
    (C) Sinking Exercises (SINKEX)--up to 10 exercises over the course 
of 5 years (a maximum of 2 per year);
    (D) Extended Echo Ranging and Improved Extended Echo Ranging (EER/
IEER) Systems--up to 400 deployments over the course of 5 years (an 
average of 80 per year);
    (E) Missile exercises (A-S MISSILEX)--up to 20 exercises over the 
course of 5 years (an average of 4 per year).
    (d) The taking of marine mammals may be authorized in an LOA for the

[[Page 221]]

activities and sources listed inSec. 218.120(c) should the amounts 
(i.e., hours, dips, number of exercises) vary from those estimated in 
Sec.  218.120(c), provided that the variation does not result in 
exceeding the amount of take indicated inSec. 218.122(c).



Sec.  218.121  Effective dates.

    Amended regulations in this subpart are effective February 1, 2012, 
through May 4, 2016.

[77 FR 4925, Feb. 1, 2012]



Sec.  218.122  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec.Sec. 
216.106 and 218.127 of this chapter, the Holder of the Letter of 
Authorization (hereinafter ``Navy'') may incidentally, but not 
intentionally, take marine mammals within the area described inSec. 
218.120(b), provided the activity is in compliance with all terms, 
conditions, and requirements of these regulations and the appropriate 
Letter of Authorization.
    (b) The activities identified inSec. 218.120(c) must be conducted 
in a manner that minimizes, to the greatest extent practicable, any 
adverse impacts on marine mammals and their habitat.
    (c) The incidental take of marine mammals under the activities 
identified inSec. 218.120(c) is limited to the species listed below in 
paragraphs (c)(4) and (5) of this section by the indicated method of 
take and the indicated number of times (estimated based on the 
authorized amounts of sound source operation), but with the following 
allowances for annual variation in activities:
    (1) In any given year, annual take, by harassment, of any species of 
marine mammal may not exceed the amount identified in paragraphs (c)(4) 
and (5) of this section, for that species by more than 25 percent (a 
post-calculation/estimation of which must be provided in the annual LOA 
application);
    (2) In any given year, annual take by harassment of all marine 
mammal species combined may not exceed the estimated total of all 
species combined, indicated in paragraphs (c)(4) and (5) of this 
section, by more than 10 percent; and
    (3) Over the course of the effective period of this subpart, total 
take, by harassment, of any species may not exceed the 5-year amounts 
indicated in paragraphs (c)(4) and (5) of this section by more than 10 
percent. A running calculation/estimation of takes of each species over 
the course of the years covered by the rule must be maintained.
    (4) Level B Harassment:
    (i) Mysticetes:
    (A) Humpback whale (Megaptera novaeangliae)--6,975 (an average of 
1,395 annually);
    (B) Fin whale (Balaenoptera physalus)--55185 (an average of 11,037 
annually);
    (C) Blue whale (Balaenoptera musculus)--10 (an average of 2 
annually);
    (D) Sei whale (Balaenoptera borealis)--40 (an average of 8 
annually);
    (E) Minke whale (Balaenoptera acutorostrata)--3,405 (an average of 
681 annually);
    (F) Gray whale (Eschrichtius robustus)--1,940 (an average of 388 
annually); and
    (G) North Pacific right whale (Eubalaena japonica)--10 (an average 
of 2 annually).
    (ii) Odontocetes:
    (A) Sperm whales (Physeter macrocephalus)--1,645 (an average of 329 
annually);
    (B) Killer whale (Orcinus orca)--53,245 (an average of 10,649 
annually);
    (C) Harbor porpoise (Phocoena phocoena)--27,200 (an average of 5,440 
annually);
    (D) Baird's beaked whales (Berardius bairdii)--2,435 (an average of 
487 annually);
    (E) Cuvier's beaked whales (Ziphius cavirostris)--11,560 (an average 
of 2,312 annually);
    (F) Stejneger's beaked whales (Mesoplodon stejnegeri)--11,565 (an 
average of 2,313 annually);
    (G) Pacific white-sided dolphin (Lagenorhynchus obliquidens)--84,955 
(an average of 16,991 annually); and
    (H) Dall's porpoise (Phocoenoides dalli)--1,031,870 (an average of 
206,374 annually).
    (iii) Pinnipeds:

[[Page 222]]

    (A) Steller sea lion (Eumetopias jubatus)--55,540 (an average of 
11,108 annually)
    (B) California sea lion (Zalophus californianus)--10 (an average of 
2 annually);
    (C) Harbor seal (Phoca vitulina richardsi)--10 (an average of 2 
annually);
    (D) Northern elephant seal (Mirounga angustirostris)--10,345 (an 
average of 2,069 annually); and
    (E) Northern fur seal (Callorhinus ursinus)--771,010 (an average of 
154,202 annually).
    (5) Level A Harassment and/or mortality of no more than 15 beaked 
whales (total), of any of the species listed inSec. 
218.122(c)(1)(ii)(D) through (F) over the course of the 5-year 
regulations.



Sec.  218.123  Prohibitions.

    No person in connection with the activities described inSec. 
218.120 may:
    (a) Take any marine mammal not specified inSec. 218.122(c);
    (b) Take any marine mammal specified inSec. 218.122(c) other than 
by incidental take as specified in Sec.Sec. 218.122(c)(1), (c)(2), and 
(c)(3);
    (c) Take a marine mammal specified inSec. 218.122(c) if such 
taking results in more than a negligible impact on the species or stocks 
of such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of these regulations or a Letter of Authorization issued 
under Sec.Sec. 216.106 and 218.127 of this chapter.



Sec.  218.124  Mitigation.

    (a) When conducting training and utilizing the sound sources or 
explosives identified inSec. 218.120(c), the mitigation measures 
contained in a Letter of Authorization issued under Sec.Sec. 216.106 
and 218.127 of this chapter must be implemented. These mitigation 
measures include, but are not limited to:
    (1) Personnel Training (for all Training Types):
    (i) All commanding officers (COs), executive officers (XOs), 
Lookouts, Officers of the Deck (OODs), junior OODs (JOODs), maritime 
patrol aircraft aircrews, and Anti-Submarine Warfare (ASW) helicopter 
crews shall complete the NMFS-approved Marine Species Awareness Training 
(MSAT) by viewing the U.S. Navy MSAT digital versatile disk (DVD). All 
bridge Lookouts shall complete both parts one and two of the MSAT; part 
two is optional for other personnel.
    (ii) Navy Lookouts shall undertake extensive training in order to 
qualify as a watchstander in accordance with the Lookout Training 
Handbook (Naval Education and Training Command [NAVEDTRA] 12968-D).
    (iii) Lookout training shall include on-the-job instruction under 
the supervision of a qualified, experienced Lookout. Following 
successful completion of this supervised training period, Lookouts shall 
complete the Personal Qualification Standard Program, certifying that 
they have demonstrated the necessary skills (such as detection and 
reporting of partially submerged objects). Personnel being trained as 
Lookouts can be counted among required Lookouts as long as supervisors 
monitor their progress and performance.
    (iv) Lookouts shall be trained in the most effective means to ensure 
quick and effective communication within the command structure in order 
to facilitate implementation of protective measures if marine species 
are spotted.
    (v) All Lookouts onboard platforms involved in ASW training events 
shall review the NMFS-approved Marine Species Awareness Training 
material prior to use of mid-frequency active sonar.
    (vi) All COs, XOs, and officers standing watch on the bridge shall 
have reviewed the Marine Species Awareness Training material prior to a 
training event employing the use of MFAS/HFAS.
    (2) General Operating Procedures (for all Training Types):
    (i) Prior to major exercises, a Letter of Instruction, Mitigation 
Measures Message or Environmental Annex to the Operational Order shall 
be issued to further disseminate the personnel training requirement and 
general marine species protective measures.
    (ii) COs shall make use of marine species detection cues and 
information to

[[Page 223]]

limit interaction with marine mammals to the maximum extent possible 
consistent with safety of the ship.
    (iii) While underway, surface vessels shall have at least two 
Lookouts with binoculars; surfaced submarines shall have at least one 
Lookout with binoculars. Lookouts already posted for safety of 
navigation and man-overboard precautions may be used to fill this 
requirement. As part of their regular duties, Lookouts shall watch for 
and report to the OOD the presence of marine mammals.
    (iv) On surface vessels equipped with mid-frequency active sonar, 
pedestal mounted ``Big Eye'' (20x110) binoculars shall be properly 
installed and in good working order to assist in the detection of marine 
mammals in the vicinity of the vessel.
    (v) Personnel on Lookout shall employ visual search procedures 
employing a scanning methodology in accordance with the Lookout Training 
Handbook (NAVEDTRA 12968-D).
    (vi) After sunset and prior to sunrise, Lookouts shall employ Night 
Lookouts Techniques in accordance with the Lookout Training Handbook 
(NAVEDTRA 12968-D).
    (vii) While in transit, naval vessels shall be alert at all times, 
use extreme caution, and proceed at a ``safe speed,'' which means the 
speed at which the CO can maintain crew safety and effectiveness of 
current operational directives, so that the vessel can take action to 
avoid a collision with any marine mammal.
    (viii) When marine mammals have been sighted in the area, Navy 
vessels shall increase vigilance and take all reasonable and practicable 
actions to avoid collisions and activities that might result in close 
interaction of naval assets and marine mammals. Such action may include 
changing speed and/or direction and are dictated by environmental and 
other conditions (e.g., safety, weather).
    (ix) Navy aircraft participating in exercises at sea shall conduct 
and maintain surveillance for marine mammals as long as it does not 
violate safety constraints or interfere with the accomplishment of 
primary operational duties.
    (x) All marine mammal detections shall be immediately reported to 
assigned Aircraft Control Unit for further dissemination to ships in the 
vicinity of the marine species as appropriate when it is reasonable to 
conclude that the course of the ship will likely result in a closing of 
the distance to the detected marine mammal.
    (xi) Naval vessels shall maneuver to keep at least 1,500 ft (500 yd 
or 457 m) away from any observed whale in the vessel's path and avoid 
approaching whales head-on. These requirements do not apply if a 
vessel's safety is threatened, such as when change of course will create 
an imminent and serious threat to a person, vessel, or aircraft, and to 
the extent vessels are restricted in their ability to maneuver. 
Restricted maneuverability includes, but is not limited to, situations 
when vessels are engaged in dredging, submerged activities, launching 
and recovering aircraft or landing craft, minesweeping activities, 
replenishment while underway and towing activities that severely 
restrict a vessel's ability to deviate course. Vessels shall take 
reasonable steps to alert other vessels in the vicinity of the whale. 
Given rapid swimming speeds and maneuverability of many dolphin species, 
naval vessels would maintain normal course and speed on sighting 
dolphins unless some condition indicated a need for the vessel to 
maneuver.
    (3) Operating Procedures (for Anti-submarine Warfare (ASW) 
Operations):
    (i) On the bridge of surface ships, there shall always be at least 
three people on watch whose duties include observing the water surface 
around the vessel.
    (ii) All surface ships participating in ASW training events shall 
have, in addition to the three personnel on watch noted in paragraph 
(i), at least two additional personnel on watch as Lookouts at all times 
during the exercise.
    (iii) Personnel on Lookout and officers on watch on the bridge shall 
have at least one set of binoculars available for each person to aid in 
the detection of marine mammals.
    (iv) Personnel on Lookout shall be responsible for reporting all 
objects or anomalies sighted in the water (regardless of the distance 
from the vessel) to

[[Page 224]]

the Officer of the Deck, since any object or disturbance (e.g., trash, 
periscope, surface disturbance, discoloration) in the water may be 
indicative of a threat to the vessel and its crew or indicative of a 
marine mammal that may need to be avoided as warranted.
    (v) All personnel engaged in passive acoustic sonar operation 
(including aircraft, surface ships, or submarines) shall monitor for 
marine mammal vocalizations and report the detection of any marine 
mammal to the appropriate watch station for dissemination and 
appropriate action.
    (vi) During mid-frequency active sonar operations, personnel shall 
utilize all available sensor and optical systems (such as night vision 
goggles) to aid in the detection of marine mammals.
    (vii) Aircraft with deployed sonobuoys shall use only the passive 
capability of sonobuoys when marine mammals are detected within 200 yd 
(183 m) of the sonobuoy.
    (viii) Helicopters shall observe/survey the vicinity of an ASW 
exercise for 10 minutes before the first deployment of active (dipping) 
sonar in the water.
    (ix) Helicopters shall not dip their sonar within 200 yd (183 m) of 
a marine mammal and shall cease pinging if a marine mammal closes within 
200 yd (183 m) of the sound source after pinging has begun.
    (x) Safety Zones--When marine mammals are detected by any means 
(aircraft, shipboard Lookout, or acoustically) within 1,000 yd (914 m) 
of the sonar dome (the bow), the ship or submarine shall limit active 
transmission levels to at least 6 decibels (dB) below normal operating 
levels for that source (i.e., limit to at most 229 dB for AN/SQS-53 and 
219 for AN/SQS-56, etc.).
    (A) Ships and submarines shall continue to limit maximum 
transmission levels by this 6-dB factor until the animal has been seen 
to leave the 1,000-yd (914 m) exclusion zone, has not been detected for 
30 minutes, or the vessel has transited more than 2,000 yds (1,829 m) 
beyond the location of the last detection.
    (B) Should a marine mammal be detected within 500 yd (457 m) of the 
sonar dome, active sonar transmissions shall be limited to at least 10 
dB below the equipment's normal operating level (i.e., limit to at most 
225 dB for AN/SQS-53 and 215 for AN/SQS-56, etc.). Ships and submarines 
shall continue to limit maximum ping levels by this 10-dB factor until 
the animal has been seen to leave the 500-yd (457 m) safety zone (at 
which point the 6-dB powerdown applies until the animal leaves the 
1,000-yd (914 m) safety zone), has not been detected for 30 minutes, or 
the vessel has transited more than 2,000 yd (1,829 m) beyond the 
location of the last detection.
    (C) Should the marine mammal be detected within 200 yd (183 m) of 
the sonar dome, active sonar transmissions shall cease. Sonar shall not 
resume until the animal has been seen to leave the 200-yd (183 m) safety 
zone (at which point the 10-dB or 6-dB powerdowns apply until the animal 
leaves the 500-yd (457 m) or 1,000-yd (914 m) safety zone, 
respectively), has not been detected for 30 minutes, or the vessel has 
transited more than 2,000 yd (1,829 m) beyond the location of the last 
detection.
    (D) Special conditions applicable for dolphins and porpoises only: 
If, after conducting an initial maneuver to avoid close quarters with 
dolphins or porpoises, the OOD concludes that dolphins or porpoises are 
deliberately closing to ride the vessel's bow wave, no further 
mitigation actions are necessary while the dolphins or porpoises 
continue to exhibit bow wave riding behavior.
    (xi) Prior to start up or restart of active sonar, operators shall 
check that the Safety Zone radius around the sound source is clear of 
marine mammals.
    (xii) Active sonar levels (generally)--Navy shall operate active 
sonar at the lowest practicable level, not to exceed 235 dB, except as 
required to meet tactical training objectives.
    (xiii) Submarine sonar operators shall review detection indicators 
of close-aboard marine mammals prior to the commencement of ASW training 
events involving MFAS.

    Note to paragraph (a)(3): If the need for power-down should arise 
(as detailed in 218.114(a)(3)(x)) when the Navy is operating a hull-
mounted or sub-mounted source above 235 db (infrequent), the Navy shall 
follow the

[[Page 225]]

requirements as though they were operating at 235 dB--the normal 
operating level (i.e., the first power-down will be to 229 dB, 
regardless of at what level above 235 dB active sonar was being 
operated).

    (4) Sinking Exercise:
    (i) All weapons firing shall be conducted during the period 1 hour 
after official sunrise to 30 minutes before official sunset.
    (ii) An exclusion zone with a radius of 1.0 nm (1.9 km) shall be 
established around each target. An additional buffer of 0.5 nm (0.9 km) 
will be added to account for errors, target drift, and animal movements. 
Additionally, a safety zone, which will extend beyond the buffer zone by 
an additional 0.5 nm (0.9 km), shall be surveyed. Together, the zones 
extend out 2 nm (3.7 km) from the target.
    (iii) A series of surveillance over-flights shall be conducted 
within the exclusion and the safety zones, prior to and during the 
exercise, when feasible. Survey protocol shall be as follows:
    (A) Overflights within the exclusion zone shall be conducted in a 
manner that optimizes the surface area of the water observed. This may 
be accomplished through the use of the Navy's Search and Rescue Tactical 
Aid, which provides the best search altitude, ground speed, and track 
spacing for the discovery of small, possibly dark objects in the water 
based on the environmental conditions of the day. These environmental 
conditions include the angle of sun inclination, amount of daylight, 
cloud cover, visibility, and sea state.
    (B) All visual surveillance activities shall be conducted by Navy 
personnel trained in visual surveillance. At least one member of the 
mitigation team shall have completed the Navy's marine mammal training 
program for Lookouts.
    (C) In addition to the overflights, the exclusion zone shall be 
monitored by passive acoustic means, when assets are available. This 
passive acoustic monitoring shall be maintained throughout the exercise. 
Potential assets include sonobuoys, which can be utilized to detect any 
vocalizing marine mammals (particularly sperm whales) in the vicinity of 
the exercise. The sonobuoys shall be re-seeded as necessary throughout 
the exercise. Additionally, if submarines are present, passive sonar 
onboard submarines may be utilized to detect any vocalizing marine 
mammals in the area. The OCE shall be informed of any aural detection of 
marine mammals and shall include this information in the determination 
of when it is safe to commence the exercise.
    (D) On each day of the exercise, aerial surveillance of the 
exclusion and safety zones shall commence 2 hours prior to the first 
firing.
    (E) The results of all visual, aerial, and acoustic searches shall 
be reported immediately to the OCE. No weapons launches or firing may 
commence until the OCE declares the safety and exclusion zones free of 
marine mammals.
    (F) If a marine mammal is observed within the exclusion zone, firing 
shall be delayed until the animal is re-sighted outside the exclusion 
zone, or 30 minutes have elapsed. After 30 minutes, if the animal has 
not been re-sighted it can be assumed to have left the exclusion zone. 
The OCE shall determine if the marine mammal is in danger of being 
adversely affected by commencement of the exercise.
    (G) During breaks in the exercise of 30 minutes or more, the 
exclusion zone shall again be surveyed for any marine mammal. If marine 
mammals are sighted within the exclusion zone or buffer zone, the OCE 
shall be notified, and the procedure described above shall be followed.
    (H) Upon sinking of the vessel, a final surveillance of the 
exclusion zone shall be monitored for 2 hours, or until sunset, to 
verify that no marine mammals were harmed.
    (iv) Aerial surveillance shall be conducted using helicopters or 
other aircraft based on necessity and availability.
    (v) Where practicable, the Navy shall conduct the exercise in sea 
states that are ideal for marine mammal sighting, Beaufort Sea State 3 
or less. In the event of a Beaufort Sea State 4 or above, survey efforts 
shall be increased within the zones. This shall be accomplished through 
the use of an additional aircraft, if available, and conducting tight 
search patterns.

[[Page 226]]

    (vi) The exercise shall not be conducted unless the exclusion zone 
can be adequately monitored visually.
    (vii) In the event that any marine mammals are observed to be harmed 
in the area, NMFS shall be notified as soon as feasible following the 
stranding communication protocol. A detailed description of the animal 
shall be taken, the location noted, and if possible, photos taken of the 
marine mammal. This information shall be provided to NMFS via the Navy's 
regional environmental coordinator for purposes of identification (see 
the draft Stranding Plan for detail).
    (viii) An after action report detailing the exercise's time line, 
the time the surveys commenced and terminated, amount, and types of all 
ordnance expended, and the results of survey efforts for each event 
shall be submitted to NMFS.
    (5) Surface-to-Surface Gunnery (up to 5-inch Explosive Rounds):
    (i) For exercises using targets towed by a vessel, target-towing 
vessels shall maintain a trained Lookout for marine mammals when 
feasible. If a marine mammal is sighted in the vicinity, the tow vessel 
shall immediately notify the firing vessel, which shall suspend the 
exercise until the area is clear.
    (ii) A 600-yd (585 m) radius buffer zone shall be established around 
the intended target.
    (iii) From the intended firing position, trained Lookouts shall 
survey the buffer zone for marine mammals prior to commencement and 
during the exercise as long as practicable. Due to the distance between 
the firing position and the buffer zone, Lookouts are only expected to 
visually detect breaching whales, whale blows, and large pods of 
dolphins and porpoises.
    (iv) The exercise shall be conducted only when the buffer zone is 
visible and marine mammals are not detected within it.
    (6) Surface-to-Surface Gunnery (non-explosive rounds):
    (i) A 200-yd (183 m) radius buffer zone shall be established around 
the intended target.
    (ii) From the intended firing position, trained Lookouts shall 
survey the buffer zone for marine mammals prior to commencement and 
during the exercise as long as practicable.
    (iii) If available, target-towing vessels shall maintain a Lookout 
(unmanned towing vessels will not have a Lookout available). If a marine 
mammal is sighted in the vicinity of the exercise, the tow vessel shall 
immediately notify the firing vessel in order to secure gunnery firing 
until the area is clear.
    (iv) The exercise shall be conducted only when the buffer zone is 
visible and marine mammals are not detected within the target area and 
the buffer zone.
    (7) Surface-to-Air Gunnery (Explosive and Non-explosive Rounds):
    (i) Vessels shall orient the geometry of gunnery exercises in order 
to prevent debris from falling in the area of sighted marine mammals.
    (ii) Vessels shall expedite the attempt to recover any parachute 
deploying aerial targets to reduce the potential for entanglement of 
marine mammals.
    (iii) Target-towing aircraft shall maintain a Lookout if feasible. 
If a marine mammal is sighted in the vicinity of the exercise, the tow 
aircraft shall immediately notify the firing vessel in order to secure 
gunnery firing until the area is clear.
    (8) Air-to-Surface Gunnery (Explosive and Non-explosive Rounds):
    (i) A 200-yd (183 m) radius buffer zone shall be established around 
the intended target.
    (ii) If surface vessels are involved, Lookout(s) shall visually 
survey the buffer zone for marine mammals prior to commencement and 
during the exercise.
    (iii) Aerial surveillance of the buffer zone for marine mammals 
shall be conducted prior to commencement of the exercise. Aerial 
surveillance altitude of 500 ft to 1,500 ft (152-456 m) is optimum. 
Aircraft crew/pilot shall maintain visual watch during exercises. 
Release of ordnance through cloud cover is prohibited; aircraft must be 
able to actually see ordnance impact areas.
    (iv) The exercise shall be conducted only if marine mammals are not 
visible within the buffer zone.
    (9) Small Arms Training (Grenades, Explosive and Non-explosive 
Rounds)--

[[Page 227]]

Lookouts shall visually survey for marine mammals. Weapons shall not be 
fired in the direction of known or observed marine mammals.
    (10) Air-to-Surface At-sea Bombing Exercises (explosive bombs and 
rockets):
    (i) If surface vessels are involved, trained Lookouts shall survey 
for marine mammals. Ordnance shall not be targeted to impact within 
1,000 yd (914 m) of known or observed marine mammals.
    (ii) A 1,000-yd (914 m) radius buffer zone shall be established 
around the intended target.
    (iii) Aircraft shall visually survey the target and buffer zone for 
marine mammals prior to and during the exercise. The survey of the 
impact area shall be made by flying at 1,500 ft (457 m) or lower, if 
safe to do so, and at the slowest safe speed. Release of ordinance 
through cloud cover is prohibited: Aircraft must be able to see ordnance 
impact areas. Survey aircraft shall employ most effective search tactics 
and capabilities.
    (iv) The exercise shall be conducted only if marine mammals are not 
visible within the buffer zone.
    (11) Air-to-Surface At-Sea Bombing Exercises (Non-explosive Bombs 
and Rockets):
    (i) If surface vessels are involved, trained Lookouts shall survey 
for marine mammals. Ordnance shall not be targeted to impact within 
1,000 yd (914 m) of known or observed marine mammals.
    (ii) A 1,000-yd (914 m) radius buffer zone shall be established 
around the intended target.
    (iii) Aircraft shall visually survey the target and buffer zone for 
marine mammals prior to and during the exercise. The survey of the 
impact area shall be made by flying at 1,500 ft (457 m) or lower, if 
safe to do so, and at the slowest safe speed. Release of ordnance 
through cloud cover is prohibited: Aircraft must be able to actually see 
ordnance impact areas. Survey aircraft shall employ most effective 
search tactics and capabilities.
    (iv) The exercise shall be conducted only if marine mammals and are 
not visible within the buffer zone.
    (12) Air-to-Surface Missile Exercises (explosive and non-explosive):
    (i) Aircraft shall visually survey the target area for marine 
mammals. Visual inspection of the target area shall be made by flying at 
1,500 ft (457 m) or lower, if safe to do so, and at the slowest safe 
speed. Firing or range clearance aircraft must be able to actually see 
ordnance impact areas.
    (ii) Explosive ordnance shall not be targeted to impact within 1,800 
yd (1646 m) of sighted marine mammals.
    (13) Aircraft Training Activities Involving Non-Explosive Devices:
    (i) Non-explosive devices such as some sonobuoys and inert bombs 
involve aerial drops of devices that have the potential to hit marine 
mammals if they are in the immediate vicinity of a floating target. The 
exclusion zone (200 yd), therefore, shall be clear of marine mammals and 
around the target location.
    (ii) [Reserved]
    (14) Extended Echo Ranging/Improved Extended Echo Ranging (EER/
IEER):
    (i) Crews shall conduct visual reconnaissance of the drop area prior 
to laying their intended sonobuoy pattern. This search shall be 
conducted at an altitude below 500 yd (457 m) at a slow speed, if 
operationally feasible and weather conditions permit. In dual aircraft 
operations, crews are allowed to conduct coordinated area clearances.
    (ii) Crews shall conduct a minimum of 30 minutes of visual and aural 
monitoring of the search area prior to commanding the first post 
detonation. This 30-minute observation period may include pattern 
deployment time.
    (iii) For any part of the intended sonobuoy pattern where a post 
(source/receiver sonobuoy pair) shall be deployed within 1,000 yd (914 
m) of observed marine mammal activity, the Navy shall deploy the 
receiver ONLY and monitor while conducting a visual search. When marine 
mammals are no longer detected within 1,000 yd (914 m) of the intended 
post position, the Navy shall co-locate the explosive source sonobuoy 
(AN/SSQ-110A) (source) with the receiver.
    (iv) When operationally feasible, Navy crews shall conduct 
continuous visual and aural monitoring of marine mammal activity. This 
is to include

[[Page 228]]

monitoring of own-aircraft sensors from first sensor placement to 
checking off station and out of RF range of these sensors.
    (v) Aural Detection--If the presence of marine mammals is detected 
aurally, then that shall cue the Navy aircrew to increase the diligence 
of their visual surveillance. Subsequently, if no marine mammals are 
visually detected, then the crew may continue multi-static active 
search.
    (vi) Visual Detection--If marine mammals are visually detected 
within 1,000 yd (914 m) of the explosive source sonobuoy (AN/SSQ-110A) 
intended for use, then that payload shall not be detonated. Aircrews may 
utilize this post once the marine mammals have not been re-sighted for 
30 minutes, or are observed to have moved outside the 1,000-yd (914 m) 
safety buffer. Aircrews may shift their multi-static active search to 
another post, where marine mammals are outside the 1,000-yd (914 m) 
safety buffer.
    (vii) Aircrews shall make every attempt to manually detonate the 
unexploded charges at each post in the pattern prior to departing the 
operations area by using the ``Payload 1 Release'' command followed by 
the ``Payload 2 Release'' command. Aircrews shall refrain from using the 
``Scuttle'' command when two payloads remain at a given post. Aircrews 
shall ensure that a 1,000-yd (914 m) safety buffer, visually clear of 
marine mammals, is maintained around each post as is done during active 
search operations.
    (viii) Aircrews shall only leave posts with unexploded charges in 
the event of a sonobuoy malfunction, an aircraft system malfunction, or 
when an aircraft must immediately depart the area due to issues such as 
fuel constraints, inclement weather, and in-flight emergencies. In these 
cases, the sonobuoy shall self-scuttle using the secondary or tertiary 
method.
    (ix) The Navy shall ensure all payloads are accounted for. Explosive 
source sonobuoys (AN/SSQ-110A) that cannot be scuttled shall be reported 
as unexploded ordnance via voice communications while airborne, then 
upon landing via naval message.
    (x) Marine mammal monitoring shall continue until out of own-
aircraft sensor range.
    (15) The Navy shall abide by the letter of the ``Stranding Response 
Plan for Major Navy Training Exercises in the GoA TMAA'' (available at: 
http://www.nmfs.noaa.gov/pr/permits/incidental.htm), which is 
incorporated herein by reference, to include the following measures:
    (i) Shutdown Procedures--When an Uncommon Stranding Event (USE--
defined inSec. 216.271) occurs during a Major Training Exercise (MTE) 
(as defined in the Stranding Plan, meaning including Multi-strike group 
exercises, Joint Expeditionary exercises, and Marine Air Ground Task 
Force exercises in the GoA TMAA), the Navy shall implement the 
procedures described below.
    (A) The Navy shall implement a Shutdown (as defined in the Stranding 
Response Plan for GoA TMAA) when advised by a NMFS Office of Protected 
Resources Headquarters Senior Official designated in the GoA TMAA 
Stranding Communication Protocol that a USE (as defined in the Stranding 
Response Plan for the GoA TMAA) involving live animals has been 
identified and that at least one live animal is located in the water. 
NMFS and Navy shall communicate, as needed, regarding the identification 
of the USE and the potential need to implement shutdown procedures.
    (B) Any shutdown in a given area shall remain in effect in that area 
until NMFS advises the Navy that the subject(s) of the USE at that area 
die or are euthanized, or that all live animals involved in the USE at 
that area have left the area (either of their own volition or herded).
    (C) If the Navy finds an injured or dead marine mammal floating at 
sea during an MTE, the Navy shall notify NMFS immediately or as soon as 
operational security considerations allow. The Navy shall provide NMFS 
with the species or description of the animal(s), the condition of the 
animal(s) including carcass condition if the animal(s) is/are dead), 
location, time of first discovery, observed behavior(s) (if alive), and 
photo or video of the animal(s) (if available). Based on the information 
provided, NMFS shall determine if, and

[[Page 229]]

advise the Navy whether a modified shutdown is appropriate on a case-by-
case basis.
    (D) In the event, following a USE, that: Qualified individuals are 
attempting to herd animals back out to the open ocean and animals are 
not willing to leave, or animals are seen repeatedly heading for the 
open ocean but turning back to shore, NMFS and the Navy shall coordinate 
(including an investigation of other potential anthropogenic stressors 
in the area) to determine if the proximity of MFAS/HFAS activities or 
explosive detonations, though farther than 14 nm from the distressed 
animal(s), is likely decreasing the likelihood that the animals return 
to the open water. If so, NMFS and the Navy shall further coordinate to 
determine what measures are necessary to further minimize that 
likelihood and implement those measures as appropriate.
    (ii) Within 72 hrs of NMFS notifying the Navy of the presence of a 
USE, the Navy shall provide available information to NMFS (per the GoA 
TMAA Communication Protocol) regarding the location, number and types of 
acoustic/explosive sources, direction and speed of units using MFAS/
HFAS, and marine mammal sightings information associated with training 
activities occurring within 80 nm (148 km) and 72 hrs prior to the USE 
event. Information not initially available regarding the 80 nm (148 km) 
and 72 hrs prior to the event shall be provided as soon as it becomes 
available. The Navy shall provide NMFS investigative teams with 
additional relevant unclassified information as requested, if available.
    (iii) Memorandum of Agreement (MOA)--The Navy and NMFS shall develop 
a MOA, or other mechanism, that will establish a framework whereby the 
Navy can (and provide the Navy examples of how they can best) assist 
NMFS with stranding investigations in certain circumstances.
    (b) [Reserved]



Sec.  218.125  Requirements for monitoring and reporting.

    (a) General Notification of Injured or Dead Marine Mammals--Navy 
personnel shall ensure that NMFS is notified immediately ((see 
Communication Plan) or as soon as clearance procedures allow) if an 
injured, stranded, or dead marine mammal is found during or shortly 
after, and in the vicinity of, any Navy training exercise utilizing 
MFAS, HFAS, or underwater explosive detonations. The Navy shall provide 
NMFS with the species or description of the animal(s), the condition of 
the animal(s) (including carcass condition if the animal is dead), 
location, time of first discovery, observed behavior(s) (if alive), and 
photo or video of the animal(s) (if available). In the event that an 
injured, stranded, or dead marine mammal is found by the Navy that is 
not in the vicinity of, or during or shortly after, MFAS, HFAS, or 
underwater explosive detonations, the Navy shall report the same 
information as listed above as soon as operationally feasible and 
clearance procedures allow.
    (b) General Notification of Ship Strike--In the event of a ship 
strike by any Navy vessel, at any time or place, the Navy shall do the 
following:
    (1) Immediately report to NMFS the species identification (if 
known), location (lat/long) of the animal (or the strike if the animal 
has disappeared), and whether the animal is alive or dead, or whether 
its status is unknown.
    (2) Report to NMFS as soon as operationally feasible the size and 
length of animal, an estimate of the injury status (e.g., dead, injured 
but alive, injured and moving, unknown, etc)., vessel class/type and 
operational status.
    (3) Report to NMFS the vessel length, speed, and heading as soon as 
feasible.
    (4) Provide NMFS a photo or video of the animal(s), if equipment is 
available.
    (c) The Navy must conduct all monitoring and/or research required 
under the Letter of Authorization including abiding by the GoA TMAA 
Monitoring Plan. (http://www.nmfs.noaa.gov/pr/permits/
incidental.htm#applications)
    (d) Report on Monitoring required in paragraph (c) of this section--
The Navy shall submit a report annually on December 15 describing the 
implementation and results (through October of the same year) of the 
monitoring required in paragraph (c) of this section.

[[Page 230]]

The Navy shall standardize data collection methods across ranges to 
allow for comparison in different geographic locations.
    (e) Sonar Exercise Notification--The Navy shall submit to the NMFS 
Office of Protected Resources (specific contact information to be 
provided in LOA) either an electronic (preferably) or verbal report 
within 15 calendar days after the completion of any MTER indicating:
    (1) Location of the exercise;
    (2) Beginning and end dates of the exercise; and
    (3) Type of exercise.
    (f) Annual GoA TMAA Report--The Navy shall submit an Annual Exercise 
GoA TMAA Report on December 15 of every year (covering data gathered 
through October). This report shall contain the subsections and 
information indicated below.
    (1) MFAS/HFAS Training Exercises--This section shall contain the 
following information for the following Coordinated and Strike Group 
exercises: Joint Multi-strike Group Exercises; Joint Expeditionary 
Exercises; and Marine Air Ground Task Force GoA TMAA:
    (i) Exercise Information (for each exercise):
    (A) Exercise designator;
    (B) Date that exercise began and ended;
    (C) Location;
    (D) Number and types of active sources used in the exercise;
    (E) Number and types of passive acoustic sources used in exercise;
    (F) Number and types of vessels, aircraft, etc., participating in 
exercise;
    (G) Total hours of observation by watchstanders;
    (H) Total hours of all active sonar source operation;
    (I) Total hours of each active sonar source (along with explanation 
of how hours are calculated for sources typically quantified in 
alternate way (buoys, torpedoes, etc.)); and
    (J) Wave height (high, low, and average during exercise).
    (ii) Individual marine mammal sighting info (for each sighting in 
each exercise):
    (A) Location of sighting;
    (B) Species (if not possible--indication of whale/dolphin/pinniped);
    (C) Number of individuals;
    (D) Calves observed (y/n);
    (E) Initial Detection Sensor;
    (F) Indication of specific type of platform observation made from 
(including, for example, what type of surface vessel; i.e., FFG, DDG, or 
CG);
    (G) Length of time observers maintained visual contact with marine 
mammal(s);
    (H) Wave height (ft);
    (I) Visibility;
    (J) Sonar source in use (y/n);
    (K) Indication of whether animal is <200 yd, 200-500 yd, 500-1,000 
yd, 1,000-2,000 yd, or 2,000 yd from sonar source in (x) 
above;
    (L) Mitigation Implementation--Whether operation of sonar sensor was 
delayed, or sonar was powered or shut down, and how long the delay was;
    (M) If source in use (x) is hull-mounted, true bearing of animal 
from ship, true direction of ship's travel, and estimation of animal's 
motion relative to ship (opening, closing, parallel); and
    (N) Observed behavior--Watchstanders shall report, in plain language 
and without trying to categorize in any way, the observed behavior of 
the animals (such as animal closing to bow ride, paralleling course/
speed, floating on surface and not swimming, etc.).
    (iii) An evaluation (based on data gathered during all of the 
exercises) of the effectiveness of mitigation measures designed to avoid 
exposing marine mammals to MFAS. This evaluation shall identify the 
specific observations that support any conclusions the Navy reaches 
about the effectiveness of the mitigation.
    (2) ASW Summary--This section shall include the following 
information as summarized from non-major training exercises (unit-level 
exercises, such as TRACKEXs):
    (i) Total Hours--Total annual hours of each type of sonar source 
(along with explanation of how hours are calculated for sources 
typically quantified in alternate way (buoys, torpedoes, etc.)).

[[Page 231]]

    (ii) Cumulative Impacts--To the extent practicable, the Navy, in 
coordination with NMFS, shall develop and implement a method of annually 
reporting other training (i.e., Unit Level Training (ULT)) utilizing 
hull-mounted sonar. The report shall present an annual (and seasonal, 
where practicable) depiction of non-major training exercises 
geographically across the GoA TMAA. The Navy shall include (in the GoA 
TMAA annual report) a brief annual progress update on the status of the 
development of an effective and unclassified method to report this 
information until an agreed-upon (with NMFS) method has been developed 
and implemented.
    (3) Sinking Exercises (SINKEXs)--This section shall include the 
following information for each SINKEX completed that year:
    (i) Exercise info:
    (A) Location;
    (B) Date and time exercise began and ended;
    (C) Total hours of observation by watchstanders before, during, and 
after exercise;
    (D) Total number and types of rounds expended/explosives detonated;
    (E) Number and types of passive acoustic sources used in exercise;
    (F) Total hours of passive acoustic search time;
    (G) Number and types of vessels, aircraft, etc., participating in 
exercise;
    (H) Wave height in feet (high, low, and average during exercise); 
and
    (I) Narrative description of sensors and platforms utilized for 
marine mammal detection and timeline illustrating how marine mammal 
detection was conducted.
    (ii) Individual marine mammal observation during SINKEX (by Navy 
Lookouts) information:
    (A) Location of sighting;
    (B) Species (if not possible--indication of whale/dolphin/pinniped);
    (C) Number of individuals;
    (D) Calves observed (y/n);
    (E) Initial detection sensor;
    (F) Length of time observers maintained visual contact with marine 
mammal;
    (G) Wave height (ft);
    (H) Visibility;
    (I) Whether sighting was before, during, or after detonations/
exercise, and how many minutes before or after;
    (J) Distance of marine mammal from actual detonations (or target 
spot if not yet detonated)--use four categories to define distance:
    (1) The modeled injury threshold radius for the largest explosive 
used in that exercise type in that OPAREA (762 m for SINKEX in the GoA 
TMAA);
    (2) The required exclusion zone (1 nm for SINKEX in the GoA TMAA);
    (3) The required observation distance (if different than the 
exclusion zone (2 nm for SINKEX in the GoA TMAA); and
    (4) Greater than the required observed distance. For example, in 
this case, the observer shall indicate if <762 m, from 762 m-1 nm, from 
1 nm-2 nm, and 2 nm.
    (K) Observed behavior--Watchstanders shall report, in plain language 
and without trying to categorize in any way, the observed behavior of 
the animals (such as animal closing to bow ride, paralleling course/
speed, floating on surface and not swimming etc.), including speed and 
direction.
    (L) Resulting mitigation implementation--Indicate whether explosive 
detonations were delayed, ceased, modified, or not modified due to 
marine mammal presence and for how long.
    (M) If observation occurs while explosives are detonating in the 
water, indicate munitions type in use at time of marine mammal 
detection.
    (4) Improved Extended Echo-Ranging System (IEER) Summary:
    (i) Total number of IEER events conducted in the GoA TMAA;
    (ii) Total expended/detonated rounds (buoys); and
    (iii) Total number of self-scuttled IEER rounds.
    (5) Explosives Summary--The Navy is in the process of improving the 
methods used to track explosive use to provide increased granularity. To 
the extent practicable, the Navy shall provide the information described 
below for all of their explosive exercises. Until the Navy is able to 
report in full the information below, they shall provide an annual 
update on the Navy's

[[Page 232]]

explosive tracking methods, including improvements from the previous 
year.
    (i) Total annual number of each type of explosive exercise (of those 
identified as part of the ``specified activity'' in this final rule) 
conducted in the GoA TMAA; and
    (ii) Total annual expended/detonated rounds (missiles, bombs, etc.) 
for each explosive type.
    (g) GoA TMAA 5-Yr Comprehensive Report--The Navy shall submit to 
NMFS a draft report that analyzes and summarizes all of the multi-year 
marine mammal information gathered during ASW and explosive exercises 
for which annual reports are required (Annual GoA TMAA Exercise Reports 
and GoA TMAA Monitoring Plan Reports). This report shall be submitted at 
the end of the fourth year of the rule (December 2014), covering 
activities that have occurred through October 2014.
    (h) Comprehensive National ASW Report--By June, 2014, the Navy shall 
submit a draft National Report that analyzes, compares, and summarizes 
the active sonar data gathered (through January 1, 2014) from the 
watchstanders and pursuant to the implementation of the Monitoring Plans 
for the Northwest Training Range Complex, the Southern California Range 
Complex, the Atlantic Fleet Active Sonar Training, the Hawaii Range 
Complex, the Mariana Islands Range Complex, and the Gulf of Alaska.
    (i) The Navy shall comply with the Integrated Comprehensive 
Monitoring Program (ICMP) Plan and continue to improve the program in 
consultation with NMFS.



Sec.  218.126  Applications for Letters of Authorization.

    To incidentally take marine mammals pursuant to these regulations, 
the U.S. Citizen (as defined bySec. 216.103 of this chapter) 
conducting the activity identified inSec. 218.120(c) (i.e., the Navy) 
must apply for and obtain either an initial Letter of Authorization in 
accordance withSec. 218.127 or a renewal underSec. 218.128.



Sec.  218.127  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the periods of validity of this 
subpart, but may be renewed or modified sooner subject to the renewal 
conditions inSec. 218.128 and the modification conditions inSec. 
218.129.
    (b) Each Letter of Authorization shall set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable 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 Letter of Authorization shall 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 affected species or stock of marine mammal(s).

[76 FR 25505, May 4, 2011, as amended at 77 FR 4925, Feb. 1, 2012]



Sec.  218.128  Renewal of Letters of Authorization and adaptive
management.

    (a) A Letter of Authorization issued underSec. 216.106 of this 
chapter andSec. 218.127 for the activity identified inSec. 
218.120(c) will be renewed upon:
    (1) Notification to NMFS that the activity described in the 
application submitted underSec. 218.126 will be undertaken and that 
there will not be a substantial modification to the desired work, 
mitigation, or monitoring undertaken during the upcoming period of 
validity;
    (2) Receipt of the monitoring reports and notifications within the 
indicated timeframes required underSec. 218.125(b through j); and
    (3) A determination by NMFS that the mitigation, monitoring and 
reporting measures required underSec. 218.124 and the Letter of 
Authorization issued underSec. 216.106 of this chapter andSec. 
218.127, were undertaken and will be undertaken during the upcoming 
period of validity of a renewed Letter of Authorization.
    (b) If a request for a renewal of a Letter of Authorization issued 
under Sec.Sec. 216.126 and 216.128 indicates that a substantial 
modification, as determined by NMFS, to the described work, mitigation 
or monitoring undertaken

[[Page 233]]

during the upcoming season will occur, NMFS will provide the public a 
period of 30 days for review and comment on the request. Review and 
comment on renewals of Letters of Authorization 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 changes to the mitigation and monitoring requirements 
contained 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 Register.
    (d) Adaptive Management--NMFS may modify or augment the existing 
mitigation or monitoring measures (after consulting with the Navy 
regarding the practicability of the modifications) if doing so creates a 
reasonable likelihood of more effectively accomplishing the goals of 
mitigation 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 decision to modify the mitigation or monitoring 
measures:
    (1) Results from the Navy's monitoring from the previous year 
(either from the GoA TMAA or other locations).
    (2) Findings of the Monitoring Workshop that the Navy will convene 
in 2011.
    (3) Compiled results of Navy-funded research and development (R&D) 
studies (presented pursuant to the Integrated Comprehensive Monitoring 
Plan).
    (4) Results from specific stranding investigations (either from the 
GoA TMAA or other locations, and involving coincident MFAS/HFAS or 
explosives training or not involving coincident use).
    (5) Results from the Long Term Prospective Study described in the 
preamble to these regulations.
    (6) Results from general marine mammal and sound research (funded by 
the Navy (described below) or otherwise).

[76 FR 25505, May 4, 2011, as amended at 77 FR 4925, Feb. 1, 2012]



Sec.  218.129  Modifications to Letters of Authorization.

    (a) Except as provided in paragraph (b) of this section, no 
substantive modification (including withdrawal or suspension) to the 
Letter of Authorization by NMFS, issued pursuant to Sec.Sec. 216.126 
and 218.127 of this chapter and subject to the provisions of this 
subpart, shall be made until after notification and an opportunity for 
public comment has been provided. For purposes of this paragraph, a 
renewal of a Letter of Authorization underSec. 218.128, without 
modification (except for the period of validity), is not considered a 
substantive modification.
    (b) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species or 
stocks of marine mammals specified inSec. 218.120(b), a Letter of 
Authorization issued pursuant to Sec.Sec. 216.126 and 218.127 of this 
chapter may be substantively modified without prior notification and an 
opportunity for public comment. Notification will be published in the 
Federal Register within 30 days subsequent to the action.

Subparts O-Q [Reserved]



   Subpart R_Taking Marine Mammals Incidental to U.S. Navy Research, 
  Development, Test, and Evaluation Activities in the Naval Sea System 
  Command (NAVSEA) Naval Undersea Warfare Center (NUWC) Keyport Range 
        Complex and the Associated Proposed Extensions Study Area

    Source: 76 FR 20274, Apr. 12, 2011, unless otherwise noted.

    Effective Date Note: At 76 FR 20274, Apr. 12, 2011, subpart R was 
added, effective Apr. 11, 2011 through Apr. 11, 2016.



Sec.  218.170  Specified activity and specified geographical area 
and effective dates.

    (a) Regulations in this subpart apply only to the U.S. Navy for the 
taking of marine mammals that occur in the area outlined in paragraph 
(b) of this

[[Page 234]]

section and that occur incidental to the activities described in 
paragraph (c) of this section.
    (b) These regulations apply only to the taking of marine mammals by 
the Navy that occurs within the Keyport Range Complex Action Area, which 
includes the extended Keyport Range Site, the extended Dabob Bay Range 
Complex (DBRC) Site, and the extended Quinault Underwater Tracking Range 
(QUTR) Site, as presented in the Navy's LOA application. The NAVSEA NUWC 
Keyport Range Complex is divided into open ocean/offshore areas and in-
shore areas:
    (1) Open Ocean Area--air, surface, and subsurface areas of the 
NAVSEA NUWC Keyport Range Complex Extension that lie outside of 12 
nautical miles (nm) from land.
    (2) Offshore Area--air, surface, and subsurface ocean areas within 
12 nm of the Pacific Coast.
    (3) In-shore--air, surface, and subsurface areas within the Puget 
Sound, Port Orchard Reach, Hood Canal, and Dabob Bay.
    (c) These regulations apply only to the taking of marine mammals by 
the Navy if it occurs incidental to the following activities, or similar 
activities, and sources, or similar sources (estimate amounts of use 
below):
    (1) Range Activities Using Active Acoustic Devices:
    (i) General range tracking: Narrow frequency output between 10 to 
100 kHz with source levels (SL) between 195-203 dB re 1 microPa @ 1 m--
up to 504.5 hours per year.
    (ii) UUV Payloads: Operating frequency of 10 to 100 kHz with SLs 
less than 195 dB re 1 microPa @ 1 m at all range sites--up to 166 hours 
per year.
    (iii) Torpedo Sonars: Operating frequency from 10 to 100 kHz with SL 
under 233 dB re 1 microPa @ 1 m--up to 21 hours per year.
    (iv) Range Targets and Special Test Systems: 5 to 100 kHz frequency 
range with a SL less than 195 dB re 1 microPa @ 1 m at the Keyport Range 
Site and SL less than 238 dB re microPa @ 1 m at the DBRC and QUTR 
sites--up to 9 hours per year.
    (v) Special Sonars (non-Navy, shore/pire static testing, diver 
activities) and Fleet Aircraft (active sonobuoys and dipping sonars): 
Frequencies vary from 100 to 2,500 kHz with SL less than 235 dB re 1 
microPa @ 1 m--up to 321 hours per year.
    (vi) Side Scan Sonar: Multiple frequencies typically at 100 to 700 
kHz with SLs less than 235 dB re 1 microPa @ 1 m--up to 166 hours per 
year.
    (vii) Other Acoustic Sources:
    (A) Acoustic Modems: Emit pulses at frequencies from 10 to 300 kHz 
with SLs less than 210 dB re 1 microPa @ 1 m--up to 166 hours per year.
    (B) Sub-bottom Profilers: Operate at 2 to 7 kHz at SLs less than 210 
dB re 1 microPa @ 1 m, and 35 to 45 kHz at SLs less than 220 dB re 1 
microPa @ 1 m--up to 192 hours per year.
    (C) Target simulator (surface vessels, submarines, torpedoes, and 
UUV engine noise): Acoustic energy from engines usually from 50 Hz to 10 
kHz at SLs less than 170 dB re 1 microPa @ 1 m--up to 24.5 hours per 
year.
    (2) Increased Tempo and Activities due to Range Extension: Estimates 
of annual range activities and operations are listed in the following 
table, but may vary provided that the variation does not result in 
exceeding the amount of take indicated inSec. 218.171(c):

----------------------------------------------------------------------------------------------------------------
                                                                      Proposed number of activities/year \1\
                                                                 -----------------------------------------------
            Range activity                Platform/system used     Keyport range
                                                                       site          DBRC site       QUTR site
----------------------------------------------------------------------------------------------------------------
Test Vehicle Propulsion...............  Thermal propulsion                     5             130              30
                                         systems.                             55             140              30
                                        Electric/Chemical
                                         propulsion systems.
Other Testing Systems and Activities..  Submarine testing.......               0              45              15
                                        Inert mine detection,                  5              20              10
                                         classification and
                                         localization.
                                        Non-Navy testing........               5               5               5
                                        Acoustic & non-acoustic               20              10               5
                                         sensors (magnetic
                                         array, oxygen).
                                        Countermeasure test.....               5              50               5
                                        Impact testing..........               0              10               5
                                        Static in-water testing.              10              10               6
                                        UUV test................              45             120              40

[[Page 235]]

 
                                        Unmanned Aerial System                 0               2               2
                                         (UAS) test.
Fleet Activities \2\ (excluding RDT&E)  Surface Ship activities.               1              10              10
                                        Aircraft activities.....               0              10              10
                                        Submarine activities....               0              30              30
                                        Diver activities........              45               5              15
Deployment Systems (RDT&E)............  Range support vessels:..  ..............  ..............
                                           Surface launch craft.              35             180              30
                                           Special purpose                    25              75               0
                                            barges.
                                        Fleet vessels \3\.......              15              20              20
                                        Aircraft (rotary and                   0              10              20
                                         fixed wing).
                                        Shore and pier..........              45              30             30
----------------------------------------------------------------------------------------------------------------
\1\ There may be several activities in 1 day. These numbers provide an estimate of types of range activities
  over the year.
\2\ Fleet activities in the NAVSEA NUWC Keyport Range Complex do not include the use of surface ship and
  submarine hull-mounted active sonars.
\3\ As previously noted, Fleet vessels can include very small craft such as SEAL Delivery Vehicles.

    (d) Amended regulations are effective February 1, 2012, through 
April 11, 2016.
    (e) The taking of marine mammals may be authorized in an LOA for the 
activities and sources listed inSec. 218.170(c) should the amounts 
(e.g., hours, number of exercises) vary from those estimated inSec. 
218.170(c), provided that the variation does not result in exceeding the 
amount of take indicated inSec. 218.171(c).

[76 FR 20274, Apr. 12, 2011, as amended at 77 FR 4925, Feb. 1, 2012]



Sec.  218.171  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec.Sec. 
216.106 and 218.176 of this chapter, the Holder of the Letter of 
Authorization may incidentally, but not intentionally, take marine 
mammals within the area described inSec. 218.170(b), provided the 
activity is in compliance with all terms, conditions, and requirements 
of these regulations and the appropriate Letter of Authorization.
    (b) The activities identified inSec. 218.170(c) must be conducted 
in a manner that minimizes, to the greatest extent practicable, any 
adverse impacts on marine mammals and their habitat.
    (c) The incidental take of marine mammals under the activities 
identified inSec. 218.170(c) is limited to the following species, by 
Level B harassment only and the indicated number of times:
    (1) Harbor porpoise (Phocoena phocoena)--56,415 (an average of 
11,283 annually);
    (2) Northern fur seal (Callorhinus ursinus)--220 (an average of 44 
annually);
    (3) California sea lion (Zalophus californianus)--570 (an average of 
114 annually);
    (4) Northern elephant seal (Mirounga angustirostris)--70 (an average 
of 14 annually);
    (5) Harbor seal (Phoca vitulina richardsi) (Washington Inland Waters 
stock)--27,340 (an average of 5,468 annually); and
    (6) Harbor seal (P. v. richardsi) (Oregon/Washington Coastal 
stock)--505 (an average of 101 annually).



Sec.  218.172  Prohibitions.

    Notwithstanding takings contemplated inSec. 218.171 and authorized 
by a Letter of Authorization issued underSec. 216.106 of this chapter 
andSec. 218.176, no person in connection with the activities described 
inSec. 218.170 may:
    (a) Take any marine mammal not specified inSec. 218.171(c);
    (b) Take any marine mammal specified inSec. 218.171(c) other than 
by incidental take as specified inSec. 218.171 (c);
    (c) Take a marine mammal specified inSec. 218.171(c) if such 
taking results in more than a negligible impact on the species or stocks 
of such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of these regulations or a Letter

[[Page 236]]

of Authorization issued underSec. 216.106 of this chapter andSec. 
218.176.



Sec.  218.173  Mitigation.

    When conducting RDT&E activities identified inSec. 218.170(c), the 
mitigation measures contained in this subpart and subsequent Letters of 
Authorization issued underSec. 216.106 of this chapter andSec. 
218.176 must be implemented. These mitigation measures include, but are 
not limited to:
    (a) Marine mammal observers training:
    (1) All range personnel shall be trained in marine mammal 
recognition.
    (2) Marine mammal observer training shall be conducted by qualified 
organizations approved by NMFS.
    (b) Lookouts onboard vessels:
    (1) Vessels on a range shall use lookouts during all hours of range 
activities.
    (2) Lookout duties include looking for marine mammals.
    (3) All sightings of marine mammals shall be reported to the Range 
Officer in charge of overseeing the activity.
    (c) Visual surveillance shall be conducted just prior to all in-
water exercises.
    (1) Surveillance shall include, as a minimum, monitoring from all 
participating surface craft and, where available, adjacent shore sites.
    (2) When cetaceans have been sighted in the vicinity of the 
operation, all range participants increase vigilance and take reasonable 
and practicable actions to avoid collisions and activities that may 
result in close interaction of naval assets and marine mammals.
    (3) Actions may include changing speed and/or direction, subject to 
environmental and other conditions (e.g., safety, weather).
    (d) An ``exclusion zone'' shall be established and surveillance will 
be conducted to ensure that there are no marine mammals within this 
exclusion zone prior to the commencement of each in-water exercise.
    (1) For cetaceans, the exclusion zone shall extend out 1,000 yards 
(914.4 m) from the intended track of the test unit.
    (2) For pinnipeds, the exclusion zone shall extend out 100 yards (91 
m) from the intended track of the test unit.
    (e) Range craft shall not approach within 100 yards (91 m) of marine 
mammals, to the extent practicable considering human and vessel safety 
priorities. This includes marine mammals ``hauled-out'' on islands, 
rocks, and other areas such as buoys.
    (f) In the event of a collision between a Navy vessel and a marine 
mammal, NUWC Keyport activities shall notify immediately the Navy chain 
of Command, which shall notify NMFS immediately.
    (g) Passive acoustic monitoring for cetaceans will be implemented 
throughout the NUWC Keyport Range Complex during RDT&E testing 
activities involving active sonar transmissions when passive acoustic 
monitoring capabilities are being operated during the testing activity.
    (h) Procedures for reporting marine mammal sightings on the NAVSEA 
NUWC Keyport Range Complex shall be promulgated, and sightings shall be 
entered into the Range Operating System and forwarded to NOAA/NMML 
Platforms of Opportunity Program.
    (i) If there is clear evidence that a marine mammal is injured or 
killed as a result of the proposed Navy RDT&E activities, the Naval 
activities shall be immediately suspended and the situation immediately 
reported by personnel involved in the activity to the Ranger Officer, 
who will follow Navy procedures for reporting the incident to NMFS 
through the Navy's chain-of-command.
    (j) For nighttime RDT&E activities of active acoustic transmissions 
in the Keyport Range proposed extension area, the Navy shall conduct 
passive acoustic monitoring within the Agate Pass and south of 
University Point in southern Port Orchard Reach. If Southern Resident 
killer whales are detected in the vicinity of the Keyport Range Site, 
the Range Office shall be notified immediately and the active acoustic 
sources must be shutdown if killer whales are confirmed to approach at 
1,000 yards from the source.

[[Page 237]]



Sec.  218.174  Requirements for monitoring and reporting.

    (a) The Holder of the Letter of Authorization issued pursuant to 
Sec.  216.106 of this chapter andSec. 218.176 for activities described 
inSec. 218.170(c) is required to cooperate with the NMFS when 
monitoring the impacts of the activity on marine mammals.
    (b) The Holder of the Authorization must notify NMFS immediately (or 
as soon as clearance procedures allow) if the specified activity 
identified inSec. 218.170(c) is thought to have resulted in the 
mortality or injury of any marine mammals, or in any take of marine 
mammals not identified or authorized inSec. 218.171(c).
    (c) The Navy must conduct all monitoring and required reporting 
under the Letter of Authorization, including abiding by the NAVSEA NUWC 
Keyport Range Complex Monitoring Plan, which is incorporated herein by 
reference, and which requires the Navy to implement, at a minimum, the 
monitoring activities summarized below:
    (1) Visual Surveys:
    (i) The Holder of this Authorization shall conduct a minimum of 2 
special visual surveys per year to monitor HFAS and MFAS respectively at 
the DBRC Range site.
    (ii) For specified events, shore-based and vessel surveys shall be 
used 1 day prior to and 1-2 days post activity.
    (A) Shore-based Surveys:
    (1) Shore-based monitors shall observe test events that are planned 
in advance to occur adjacent to near shore areas where there are 
elevated topography or coastal structures, and shall use binoculars or 
theodolite to augment other visual survey methods.
    (2) Shore-based surveys of the test area and nearby beaches shall be 
conducted for stranded marine animals following nearshore events. If any 
distressed, injured or stranded animals are observed, an assessment of 
the animal's condition (alive, injured, dead, or degree of 
decomposition) shall be reported immediately to the Navy and the 
information shall be transmitted immediately to NMFS through the 
appropriate chain of command.
    (B) Vessel-based Surveys:
    (1) Vessel-based surveys shall be designed to maximize detections of 
marine mammals near mission activity event.
    (2) Post-analysis shall focus on how the location, speed and vector 
of the range craft and the location and direction of the sonar source 
(e.g. Navy surface vessel) relates to the animal.
    (3) Any other vessels or aircraft observed in the area shall also be 
documented.
    (iii) Surveys shall include the range site with special emphasis 
given to the particular path of the test run. When conducting a 
particular survey, the survey team shall collect the following 
information.
    (A) Species identification and group size;
    (B) Location and relative distance from the acoustic source(s);
    (C) The behavior of marine mammals including standard environmental 
and oceanographic parameters;
    (D) Date, time and visual conditions associated with each 
observation;
    (E) Direction of travel relative to the active acoustic source; and
    (F) Duration of the observation.
    (iv) Animal sightings and relative distance from a particular active 
acoustic source shall be used post-survey to determine potential 
received energy (dB re 1 micro Pa-sec). This data shall be used, post-
survey, to estimate the number of marine mammals exposed to different 
received levels (energy based on distance to the source, bathymetry, 
oceanographic conditions and the type and power of the acoustic source) 
and their corresponding behavior.
    (2) Passive Acoustic Monitoring (PAM):
    (i) The Navy shall deploy a hydrophone array in the Keyport Range 
Complex Study Area for PAM.
    (ii) The array shall be utilized during the two special monitoring 
surveys in DBRC as described inSec. 218.174(c)(1)(i).
    (iii) The array shall have the capability of detecting low frequency 
vocalizations (<1,000 Hz) for baleen whales and relatively high 
frequency (up to 30 kHz) for odontocetes.
    (iv) Acoustic data collected from the PAM shall be used to detect 
acoustically active marine mammals as appropriate.

[[Page 238]]

    (3) Marine Mammal Observers on range craft or Navy vessels:
    (i) Navy Marine mammal observers (NMMOs) may be placed on a range 
craft or Navy platform during the event being monitored.
    (ii) The NMMO must possess expertise in species identification of 
regional marine mammal species and experience collecting behavioral 
data.
    (iii) NMMOs may be placed alongside existing lookouts during the two 
specified monitoring events as described inSec. 218.174(c)(1)(i).
    (iv) NMMOs shall inform the lookouts of any marine mammal sighting 
so that appropriate action may be taken by the chain of command. NMMOs 
shall schedule their daily observations to duplicate the lookouts' 
schedule.
    (v) NMMOs shall observe from the same height above water as the 
lookouts, and they shall collect the same data collected by lookouts 
listed inSec. 218.174(c)(1)(iii).
    (d) The Navy shall complete an Integrated Comprehensive Monitoring 
Program (ICMP) Plan in 2009. This planning and adaptive management tool 
shall include:
    (1) A method for prioritizing monitoring projects that clearly 
describes the characteristics of a proposal that factor into its 
priority.
    (2) A method for annually reviewing, with NMFS, monitoring results, 
Navy R&D, and current science to use for potential modification of 
mitigation or monitoring methods.
    (3) A detailed description of the Monitoring Workshop to be convened 
in 2011 and how and when Navy/NMFS will subsequently utilize the 
findings of the Monitoring Workshop to potentially modify subsequent 
monitoring and mitigation.
    (4) An adaptive management plan.
    (5) A method for standardizing data collection for NAVSEA NUWC 
Keyport Range Complex Extension and across range complexes.
    (e) Notification of Injured or Dead Marine Mammals--Navy personnel 
shall ensure that NMFS (regional stranding coordinator) is notified 
immediately (or as soon as clearance procedures allow) if an injured or 
dead marine mammal is found during or shortly after, and in the vicinity 
of, any Navy activities utilizing sonar. The Navy shall provide NMFS 
with species or description of the animal(s), the condition of the 
animal(s) (including carcass condition if the animal is dead), location, 
time of first discovery, observed behaviors (if alive), and photo or 
video (if available).
    (f) Annual Keyport Range Complex Monitoring Plan Report--The Navy 
shall submit a report annually by December 1 describing the 
implementation and results (through September 1 of the same year) of the 
Keyport Range Complex Monitoring Plan. Data collection methods will be 
standardized across range complexes to allow for comparison in different 
geographic locations. Although additional information will also be 
gathered, the NMMOs collecting marine mammal data pursuant to the 
Keyport Range Complex Monitoring Plan shall, at a minimum, provide the 
same marine mammal observation data required inSec. 218.174(c). The 
Keyport Range Complex Monitoring Plan Report may be provided to NMFS 
within a larger report that includes the required Monitoring Plan 
Reports from Keyport Range Complex and multiple range complexes.
    (g) Keyport Range Complex 5-yr Comprehensive Report--The Navy shall 
submit to NMFS a draft comprehensive report that analyzes and summarizes 
all of the multi-year marine mammal information gathered during tests 
involving active acoustic sources for which individual reports are 
required inSec. 218.174 (d)-(f). This report will be submitted at the 
end of the fourth year of the rule (June 2013), covering activities that 
have occurred through September 1, 2013.
    (h) The Navy shall respond to NMFS comments and requests for 
additional information or clarification on the Keyport Range Complex 
Extension Comprehensive Report, the Annual Keyport Range Complex 
Monitoring Plan Report (or the multi-Range Complex Annual Monitoring 
Report, it that is how the Navy chooses to submit the information) if 
submitted within 3 months of receipt. The report will be considered 
final after the Navy has addressed NMFS' comments, or three

[[Page 239]]

months after the submittal of the draft if NMFS does not comment by 
then.
    (i) In 2011, the Navy shall convene a Monitoring Workshop in which 
the Monitoring Workshop participants will be asked to review the Navy's 
Monitoring Plans and monitoring results and make individual 
recommendations (to the Navy and NMFS) of ways of improving the 
Monitoring Plans. The recommendations shall be reviewed by the Navy, in 
consultation with NMFS, and modifications to the Monitoring Plan shall 
be made, as appropriate.



Sec.  218.175  Applications for Letters of Authorization.

    To incidentally take marine mammals pursuant to these regulations 
for the activities identified inSec. 218.170(c), the U.S. Navy must 
apply for and obtain either an initial Letter of Authorization in 
accordance withSec. 218.176 or a renewal underSec. 218.177.



Sec.  218.176  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the period of validity of this 
subpart, but may be renewed or modified sooner subject to the renewal 
conditions inSec. 218.177 and the modification conditions inSec. 
218.178.
    (b) Each Letter of Authorization will set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable 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 Letter 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 affected species or stock of marine mammal(s).

[76 FR 20274, Apr. 12, 2011, as amended at 77 FR 4925, Feb. 1, 2012]



Sec.  218.177  Renewal of Letters of Authorization and adaptive management.

    (a) A Letter of Authorization issued under Sec.Sec. 216.106 of 
this chapter and 218.176 for the activity identified inSec. 218.170(c) 
will be renewed upon:
    (1) Notification to NMFS that the activity described in the 
application submitted underSec. 218.175 will be undertaken and that 
there will not be a substantial modification to the desired work, 
mitigation, or monitoring undertaken during the upcoming period of 
validity;
    (2) Timely receipt of the monitoring reports required underSec. 
218.174(b); and
    (3) A determination by NMFS that the mitigation, monitoring and 
reporting measures required underSec. 218.173 and the Letter of 
Authorization issued underSec. 216.106 of this chapter andSec. 
218.176, were undertaken and will be undertaken during the upcoming 
period of validity of a renewed Letter of Authorization.
    (b) If a request for a renewal of a Letter of Authorization issued 
under Sec.Sec. 216.106 and 218.177 indicates that a substantial 
modification to the described work, mitigation or monitoring undertaken 
during the upcoming season will occur, the NMFS will provide the public 
a period of 30 days for review and comment on the request. Public 
comment on renewals of Letters of Authorization 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 changes to the mitigation and monitoring requirements 
contained 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 Register.
    (d) NMFS, in response to new information and in consultation with 
the Navy, may modify the mitigation or monitoring measures in subsequent 
LOAs if doing so creates a reasonable likelihood of more effectively 
accomplishing the goals of mitigation 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 decision to modify the mitigation 
or monitoring measures:
    (1) Results from the Navy's monitoring from the previous year 
(either

[[Page 240]]

from Keyport Range Complex Study Area or other locations).
    (2) Findings of the Monitoring Workshop that the Navy will convene 
in 2011 (Sec.  218.174(i)).
    (3) Compiled results of Navy funded research and development (R&D) 
studies (presented pursuant to the ICMP (Sec.  218.174(d)).
    (4) Results from specific stranding investigations (either from the 
Keyport Range Complex Study Area or other locations).
    (5) Results from the Long Term Prospective Study described in the 
preamble to these regulations.
    (6) Results from general marine mammal and sound research (funded by 
the Navy (described below) or otherwise).
    (7) 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.

[76 FR 20274, Apr. 12, 2011, as amended at 77 FR 4925, Feb. 1, 2012]



Sec.  218.178  Modifications to Letters of Authorization.

    (a) Except as provided in paragraph (b) of this section andSec. 
218.177(d), no substantive modification (including withdrawal or 
suspension) to the Letter of Authorization by NMFS, issued pursuant to 
Sec.  216.106 of this chapter andSec. 218.176 and subject to the 
provisions of this subpart shall be made until after notification and an 
opportunity for public comment has been provided. For purposes of this 
paragraph, a renewal of a Letter of Authorization underSec. 218.177, 
without modification (except for the period of validity), is not 
considered a substantive modification.
    (b) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species or 
stocks of marine mammals specified inSec. 218.171(b), a Letter of 
Authorization issued pursuant toSec. 216.106 of this chapter andSec. 
218.176 may be substantively modified without prior notification and an 
opportunity for public comment. Notification will be published in the 
Federal Register within 30 days subsequent to the action.



    Subpart S_Taking Marine Mammals Incidental to U.S. Navy Mission 
   Activities in the Naval Surface Warfare Center Panama City Division

    Source: 75 FR 3410, Jan. 21, 2010, unless otherwise noted.

    Effective Date Note: At 75 FR 3410, Jan. 21, 2010, Sec.Sec. 
218.180-218.188 (Subpart S) were added, effective Jan. 21, 2010, through 
Jan. 21, 2015.



Sec.  218.180  Specified activity and specified geographical area 
and effective dates.

    (a) Regulations in this subpart apply only to the U.S. Navy for the 
taking of marine mammals that occurs in the area outlined in paragraph 
(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 Navy is only authorized if 
it occurs within the NSWC PCD Study Area, which includes St. Andrew Bay 
(SAB) and military warning areas (areas within the GOM subject to 
military operations) W-151 (includes Panama City Operating Area), W-155 
(includes Pensacola Operating Area), and W-470, as described in Figures 
2-1 and 2-2 of the Navy's application for the Letter of Authorization 
(LOA). The NSWC PCD Study Area includes a Coastal Test Area, a Very 
Shallow Water Test Area, and Target and Operational Test Fields. The 
NSWC PCD Research, Development, Test, and Evaluation (RDT&E) activities 
may be conducted anywhere within the existing military operating areas 
and SAB from the mean high water line (average high tide mark) out to 
222 km (120 nm) offshore. The locations and environments include:
    (1) Test area control sites adjacent to NSWC PCD.
    (2) Wide coastal shelf 97 km (52 nm) distance offshore to 183 m (600 
ft), including bays and harbors.
    (c) The taking of marine mammals by the Navy is only authorized if 
it occurs incidental to the following activities:
    (1) The use of the following mid-frequency active sonar (MFAS) and 
high frequency active sonar (HFAS) sources,

[[Page 241]]

or similar sources, for Navy mission activities in territorial waters 
(estimated amounts below):
    (i) AN/SQS-53/56 Kingfisher--up to 15 hours over the course of 5 
years (an average of 3 hours per year);
    (ii) Sub-bottom profiler (2-9 kHz)--up to 105 hours over the course 
of 5 years (an average of 21 hours per year);
    (iii) REMUS SAS-LF (center frequency 15 kHz)--up to 60 hours over 
the course of 5 years (an average of 12 hours per year);
    (iv) REMUS Modem--up to 125 hours over the course of 5 years (an 
average of 25 hours per year);
    (v) Sub-bottom profiler (2-16 kHz)--up to 120 hours over the course 
of 5 years (an average of 24 hours per year);
    (vi) AN/SQQ-32--up to 150 hours over the course of 5 years (an 
average of 30 hours per year);
    (vii) REMUS-SAS-LF (center frequency 20 kHz)--up to 100 hours over 
the course of 5 years (an average of 20 hours per year);
    (viii) SAS-LF--up to 175 hours over the course of 5 years (an 
average of 35 hours per year);
    (ix) AN/WLD-1 RMS-ACL--up to 168 hours over the course of 5 years 
(an average of 33.5 hours per year);
    (x) BPAUV Sidescan (center frequency 75 kHz)--up to 125 hours over 
the course of 5 years (an average of 25 hours per year);
    (xi) TVSS--up to 75 hours over the course of 5 years (an average of 
15 hours per year);
    (xii) F84Y--up to 75 hours over the course of 5 years (an average of 
15 hours per year);
    (xiii) BPAUV Sidescan (center frequency 102.5 kHz)--up to 125 hours 
over the course of 5 years (an average of 25 hours per year);
    (xiv) REMUS-SAS-HF--up to 50 hours over the course of 5 years (an 
average of 10 hours per year);
    (xv) SAS-HF--up to 58 hours over the course of 5 years (an average 
of 11.5 hours per year);
    (xvi) AN/SQS-20--up to 2725 hours over the course of 5 years (an 
average of 545 hours per year);
    (xvii) AN/WLD-11 RMS Navigation--up to 75 hours over the course of 5 
years (an average of 15 hours per year); and
    (xviii) BPAUV Sidescan (center frequency 120 kHz)--up to 150 hours 
over the course of 5 years (an average of 30 hours per year).
    (2) The use of the following mid-frequency active sonar (MFAS) and 
high frequency active sonar (HFAS) sources, or similar sources, for Navy 
mission activities in non-territorial waters (estimated amounts below):
    (i) AN/SQS-53/56 Kingfisher--up to 5 hours over the course of 5 
years (an average of 1 hour per year);
    (ii) Sub-bottom profiler (2-9 kHz)--up to 5 hours over the course of 
5 years (an average of 1 hour per year);
    (iii) REMUS Modem--up to 60 hours over the course of 5 years (an 
average of 12 hours per year);
    (iv) Sub-bottom profiler (2-16 kHz)--up to 5 hours over the course 
of 5 years (an average of 1 hour per year);
    (v) AN/SQQ-32--up to 5 hours over the course of 5 years (an average 
of 1 hour per year);
    (vi) SAS-LF--up to 75 hours over the course of 5 years (an average 
of 15 hours per year);
    (vii) AN/WLD-1 RMS-ACL--up to 25 hours over the course of 5 years 
(an average of 5 hours per year);
    (viii) BPAUV Sidescan (center frequency 75 kHz)--up to 190 hours 
over the course of 5 years (an average of 38 hours per year);
    (ix) TVSS--up to 83 hours over the course of 5 years (an average of 
16.5 hours per year);
    (x) F84Y--up to 75 hours over the course of 5 years (an average of 
15 hours per year);
    (xi) REMUS-SAS-HF--up to 125 hours over the course of 5 years (an 
average of 25 hours per year);
    (xii) SAS-HF--up to 75 hours over the course of 5 years (an average 
of 15 hours per year);
    (xiii) AN/AQS-20--up to 75 hours over the course of 5 years (an 
average of 15 hours per year); and
    (xiv) BPAUV Sidescan (center frequency 120 kHz)--up to 125 hours 
over the course of 5 years (an average of 25 hours per year).
    (3) Ordnance operations, or similar operations, for Navy mission 
activities in territorial waters (estimated amounts below):

[[Page 242]]

    (i) Range 1 (0-10 lb)--up to 255 detonations over the course of 5 
years (an average of 51 detonations per year);
    (ii) Range 2 (11-75 lb)--up to 15 detonations over the course of 5 
years (an average of 3 detonations per year); and
    (iii) Line charges--up to 15 detonations over the course of 5 years 
(an average of 3 detonations per year).
    (4) Ordnance operations, or similar operations, for Navy mission 
activities in non-territorial waters (estimated amounts below):
    (i) Range 3 (76-600 lb)--up to 80 detonations over the course of 5 
years (an average of 16 detonations per year).
    (ii) Reserved.
    (5) Projectile firing operations, or similar operations, for Navy 
mission activities in non-territorial waters (estimated amounts below):
    (i) 5 in. Naval gunfire--up to 300 rounds over the course of 5 years 
(an average of 60 rounds per year);
    (ii) 40 mm rounds--up to 2,400 rounds over the course of 5 years (an 
average of 480 rounds per year);
    (iii) 30 mm rounds--up to 3,000 rounds over the course of 5 years 
(an average of 600 rounds per year);
    (iv) 20 mm rounds--up to 14,835 rounds over the course of 5 years 
(an average of 2,967 rounds per year);
    (v) 76 mm rounds--up to 1,200 rounds over the course of 5 years (an 
average of 240 rounds per year);
    (vi) 25 mm rounds--up to 2,625 rounds over the course of 5 years (an 
average of 525 rounds per year); and
    (vii) Small arms--up to 30,000 rounds over the course of 5 years (an 
average of 6,000 rounds per year).
    (d) Amended regulations are effective February 1, 2012, through 
January 21, 2015.
    (e) The taking of marine mammals may be authorized in an LOA for the 
activities and sources listed inSec. 218.180(c) should the amounts 
(e.g., hours, number of exercises) vary from those estimated inSec. 
218.180(c), provided that the variation does not result in exceeding the 
amount of take indicated inSec. 218.181(b).

[75 FR 3410, Jan. 21, 2010, as amended at 77 FR 4925, Feb. 1, 2012]



Sec.  218.181  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec.Sec. 
216.106 and 218.186 of this chapter, the Holder of the Letter of 
Authorization may incidentally, but not intentionally, take marine 
mammals within the area described inSec. 218.180(b), provided the 
activity is in compliance with all terms, conditions, and requirements 
of these regulations and the appropriate Letter of Authorization.
    (b) The incidental take of marine mammals under the activities 
identified inSec. 218.180(c) is limited to the following species, by 
the indicated method of take and the indicated number of times:
    (1) Level B Harassment:
    (i) Sperm whale (Physeter macrocephalus)--10 (an average of 2 
annually),
    (ii) Risso's dolphin (Grampus griseus)--10 (an average of 2 
annually);
    (iii) Bottlenose dolphin (Tursiops truncatus)--3,070 (an average of 
614 annually);
    (iv) Atlantic spotted dolphin (Stenella frontalis)--2,355 (an 
average of 471 annually);
    (v) Pantropical spotted dolphin (S. attenuata)--115 (an average of 
23 annually);
    (vi) Striped dolphin (S. coeruleoalba)--25 (an average of 5 
annually);
    (vii) Spinner dolphin (S. longirostris)--115 (an average of 23 
annually);
    (viii) Melon-headed whale (Peponocephala electra)--10 (an average of 
2 annually);
    (ix) Short-finned pilot whale (Globicephala macrorhynchus)--5 (an 
average of 1 annually);
    (x) Clymene dolphin (S. clymene)--25 (an average of 5 annually);
    (2) Level A Harassment:
    (i) Bottlenose dolphin (Tursiops truncatus)--10 (an average of 2 
annually);
    (ii) Atlantic spotted dolphin (Stenella frontalis)--10 (an average 
of 2 annually);
    (iii) Pantropical spotted dolphin (S. attenuata)--5 (an average of 1 
annually);
    (ix) Spinner dolphin (S. longirostris)--5 (an average of 1 
annually).

[[Page 243]]



Sec.  218.182  Prohibitions.

    Notwithstanding takings contemplated inSec. 218.181 and authorized 
by a Letter of Authorization issued underSec. 216.106 of this chapter 
andSec. 218.186, no person in connection with the activities described 
inSec. 218.180 may:
    (a) Take any marine mammal not specified inSec. 218.181(b);
    (b) Take any marine mammal specified inSec. 218.181(b) other than 
by incidental take as specified inSec. 218.181(b)(1) and (2);
    (c) Take a marine mammal specified inSec. 218.181(b) if such 
taking results in more than a negligible impact on the species or stocks 
of such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of these regulations or a Letter of Authorization issued 
underSec. 216.106 of this chapter andSec. 218.186.



Sec.  218.183  Mitigation.

    When conducting RDT&E activities identified inSec. 218.180(c), the 
mitigation measures contained in this subpart and subsequent Letters of 
Authorization issued under Sec.Sec. 216.106 of this chapter andSec. 
218.186 must be implemented. These mitigation measures include, but are 
not limited to:
    (a) Mitigation Measures for HFAS/MFAS Operations: (1) Personnel 
Training: (i) All marine observers onboard platforms involved in NSWC 
PCD RDT&E activities shall complete Marine Species Awareness Training 
(MSAT).
    (ii) Marine observers shall be trained in the most effective means 
to ensure quick and effective communication within the command structure 
in order to facilitate implementation of mitigation measures if marine 
species are spotted.
    (2) Marine Observer Responsibilities:
    (i) On the bridge of surface vessels, there shall always be at least 
one to three marine species awareness trained observer(s) on watch whose 
duties include observing the water surface around the vessel.
    (A) For vessels with length under 65 ft (20 m), there shall always 
be at least one marine observer on watch.
    (B) For vessels with length between 65-200 ft (20-61 m), there shall 
always be at least two marine observers on watch.
    (C) For vessels with length above 200 ft (61 m), there shall always 
be at least three marine observers on watch.
    (ii) Each marine observer shall have at their disposal at least one 
set of binoculars available to aid in the detection of marine mammals.
    (iii) On surface vessels equipped with AN/SQQ-53C/56, pedestal 
mounted ``Big Eye'' (20x110) binoculars shall be present and in good 
working order to assist in the detection of marine mammals in the 
vicinity of the vessel.
    (iv) Marine observers shall employ visual search procedures 
employing a scanning methodology in accordance with the Lookout Training 
Handbook (NAVEDTRA 12968-D).
    (v) Marine observers shall scan the water from the vessel to the 
horizon and be responsible for ensuring that all contacts in their 
sector follow the below protocols:
    (A) In searching the assigned sector, the marine observer shall 
always start at the forward part of the sector and search aft (toward 
the back).
    (B) To search and scan, the marine observer shall hold the 
binoculars steady so the horizon is in the top third of the field of 
vision and direct the eyes just below the horizon.
    (C) The marine observer shall scan for approximately five seconds in 
as many small steps as possible across the field seen through the 
binoculars.
    (D) The marine observer shall search the entire sector in 
approximately five-degree steps, pausing between steps for approximately 
five seconds to scan the field of view.
    (E) At the end of the sector search, the glasses would be lowered to 
allow the eyes to rest for a few seconds, and then the marine observer 
shall search back across the sector with the naked eye.
    (vi) After sunset and prior to sunrise, marine observers shall 
employ Night Lookout Techniques in accordance with the Lookout Training 
Handbook.
    (vii) At night, marine observers shall scan the horizon in a series 
of movements that would allow their eyes to come to periodic rests as 
they scan the sector. When visually searching at night, marine observers 
shall look a

[[Page 244]]

little to one side and out of the corners of their eyes, paying 
attention to the things on the outer edges of their field of vision.
    (viii) Marine observers shall be responsible for reporting all 
objects or anomalies sighted in the water (regardless of the distance 
from the vessel) to the Test Director or the Test Director's designee.
    (3) Operating Procedures:
    (i) The Test Director or the Test Director's designee shall maintain 
the logs and records documenting RDT&E activities should they be 
required for event reconstruction purposes. Logs and records will be 
kept for a period of 30 days following completion of a RDT&E mission 
activity.
    (ii) A Record of Environmental Consideration shall be included in 
the Test Plan prior to the test event to further disseminate the 
personnel testing requirement and general marine mammal mitigation 
measures.
    (iii) Test Directors shall make use of marine species detection cues 
and information to limit interaction with marine species to the maximum 
extent possible consistent with safety of the vessel.
    (iv) All personnel engaged in passive acoustic sonar operation 
(including aircraft or surface vessels) shall monitor for marine mammal 
vocalizations and report the detection of any marine mammal to the Test 
Director or the Test Director's designee for dissemination and 
appropriate action.
    (v) During HFAS/MFAS mission activities, personnel shall utilize all 
available sensor and optical systems (such as Night Vision Goggles) to 
aid in the detection of marine mammals.
    (vi) Navy aircraft participating in RDT&E activities at sea shall 
conduct and maintain surveillance for marine species of concern as long 
as it does not violate safety constraints or interfere with the 
accomplishment of primary operational duties.
    (vii) Marine mammal detections shall be immediately reported to the 
Test Director or the Test Director's designee for further dissemination 
to vessels in the vicinity of the marine species as appropriate where it 
is reasonable to conclude that the course of the vessel will likely 
result in a closing of the distance to the detected marine mammal.
    (viii) Safety Zones--When marine mammals are detected by any means 
(aircraft, shipboard marine observer, or acoustically) the Navy will 
ensure that HFAS/MFAS transmission levels are limited to at least 6 dB 
below normal operating levels if any detected marine mammals are within 
1,000 yards (914 m) of the sonar source (the bow).
    (A) Vessels shall continue to limit maximum HFAS/MFAS transmission 
levels by this 6-dB factor until the marine mammal has been seen to 
leave the area, has not been detected for 30 minutes, or the vessel has 
transited more than 2,000 yards (1,828 m) beyond the location of the 
last detection.
    (B) The Navy shall ensure that HFAS/MFAS transmissions will be 
limited to at least 10 dB below the equipment's normal operating level 
if any detected animals are within 500 yards (457 m) of the sonar 
source. Vessels will continue to limit maximum ping levels by this 10-dB 
factor until the marine mammal has been seen to leave the area, has not 
been detected for 30 minutes, or the vessel has transited more than 
2,000 yards (1,828 m) beyond the location of the last detection.
    (C) The Navy shall ensure that HFAS/MFAS transmissions are ceased if 
any detected marine mammals are within 200 yards (183 m) of the sonar 
source. HFAS/MFAS will not resume until the marine mammal has been seen 
to leave the area, has not been detected for 30 minutes, or the vessel 
has transited more than 2,000 yards (1,828 m) beyond the location of the 
last detection.
    (D) Special conditions applicable for dolphins only: If, after 
conducting an initial maneuver to avoid close quarters with dolphins, 
the Officer of the Deck concludes that dolphins are deliberately closing 
to ride the vessel's bow wave, no further mitigation actions are 
necessary while the dolphins continue to exhibit bow wave riding 
behavior.
    (E) If the need for power-down should arise as detailed in ``Safety 
Zones'' above, Navy shall follow the requirements as though they were 
operating at 235 dB--the normal operating level (i.e., the first power-
down will be to 229

[[Page 245]]

dB, regardless of at what level above 235 sonar was being operated).
    (ix) Prior to start up or restart of active sonar, operators will 
check that the Safety Zone radius around the sound source is clear of 
marine mammals.
    (x) Sonar levels (generally)--Navy shall operate sonar at the lowest 
practicable level, not to exceed 235 dB, except as required to meet 
RDT&E objectives.
    (b) Mitigation Measures for Ordnance and Projectile Firing: (1) No 
detonations over 34 kg (75 lb) shall be conducted in territorial waters, 
except the line charge detonation, which is a 107 m (350 ft).
    (2) The number of live mine detonations shall be minimized and the 
smallest amount of explosive material possible to achieve test 
objectives will be used.
    (3) Activities shall be coordinated through the Environmental Help 
Desk to allow potential concentrations of detonations in a particular 
area over a short time to be identified and avoided.
    (4) Visual surveys and aerial surveys of the clearance zones 
specified inSec. 218.183(b)(6)(i) through (iii) shall be conducted in 
accordance withSec. 218.184(c) for all test operations that involve 
detonation events with large net explosive weight (NEW). Any protected 
species sighted will be reported.
    (5) Line charge tests shall not be conducted during the nighttime.
    (6) Additional mitigation measures shall be determined through the 
NSWC PCD's Environmental Review Process based on test activities 
including the size of detonations, test platforms, and environmental 
effects documented in the Navy's EIS/OEIS. Clearance zones must be 
determined based on the upper limit of different ranges of net explosive 
weight (NEW) used in the tests, as listed below:
    (i) NEW between 76-600 lb: clearance zone is 2,863 m (9,393 ft);
    (ii) NEW between 11-75 lb: clearance zone is 997 m (2,865 ft); and
    (iii) NEW less than 11 lb--clearance zone is 345 m (1,132 ft).
    (c) Mitigation Measures for Surface Operations: (1) While underway, 
vessels shall have at least one to three marine species awareness 
trained observers (based on vessel length) with binoculars. As part of 
their regular duties, marine observers shall watch for and report to the 
Test Director or Test Director's designee the presence of marine 
mammals.
    (i) For vessels with length under 65 ft (20 m), there shall always 
be at least one marine observer on watch.
    (ii) For vessels with length between 65-200 ft (20-61 m), there 
shall always be at least two marine observers on watch.
    (iii) For vessels with length above 200 ft (61 m), there shall 
always be at least three marine observers on watch.
    (2) Marine observers shall employ visual search procedures employing 
a scanning method in accordance with the Lookout Training Handbook 
(NAVEDTRA 12968-D).
    (3) While in transit, naval vessels shall be alert at all times, use 
extreme caution, and proceed at a ``safe speed'' (the minimum speed at 
which mission goals or safety will not be compromised) so that the 
vessel can take proper and effective action to avoid a collision with 
any marine animal and can be stopped within a distance appropriate to 
the prevailing circumstances and conditions.
    (4) When marine mammals have been sighted in the area, Navy vessels 
shall increase vigilance and shall implement measures to avoid 
collisions with marine mammals and avoid activities that might result in 
close interaction of naval assets and marine mammals. Actions shall 
include changing speed and/or direction and are dictated by 
environmental and other conditions (e.g., safety, weather).
    (5) Naval vessels shall maneuver to keep at least 500 yd (460 m) 
away from any observed whale and avoid approaching whales head-on. This 
requirement does not apply if a vessel's safety is threatened, such as 
when change of course will create an imminent and serious threat to a 
person, vessel, or aircraft, and to the extent vessels are restricted in 
their ability to maneuver. Vessels shall take reasonable steps to alert 
other Navy vessels in the vicinity of the whale.
    (6) Where operationally feasible and safe, vessels shall avoid 
closing to

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within 200-yd (183 m) of marine mammals other than whales.



Sec.  218.184  Requirements for monitoring and reporting.

    (a) The Holder of the Letter of Authorization issued pursuant to 
Sec.Sec. 216.106 and 218.186 for activities described inSec. 
218.180(c) is required to cooperate with the NMFS when monitoring the 
impacts of the activity on marine mammals.
    (b) The Holder of the Authorization must notify NMFS immediately (or 
as soon as clearance procedures allow) if the specified activity 
identified inSec. 218.180(c) is thought to have resulted in the 
mortality or injury of any marine mammals, or in any take of marine 
mammals not identified or authorized inSec. 218.181(b).
    (c) The Holder of the Letter of Authorization must conduct all 
monitoring and required reporting under the Letter of Authorization, 
including abiding by the NSWC PCD Study Area Complex Monitoring Plan, 
which is incorporated herein by reference, and which requires the Navy 
to implement, at a minimum, the monitoring activities summarized below.
    (1) Visual Surveys--Vessel, Aerial and Shore-based: The Holder of 
this Authorization shall visually survey a minimum of 2 HFAS/MFAS 
activities and 2 explosive events per year. If the 53C sonar was being 
operated, such activity must be monitored as one of the HFAS/MFAS 
activities. For explosive events, one of the monitoring measures shall 
be focused on a multiple detonation event.
    (i) In accordance with all safety considerations, observations shall 
be maximized by working from all available platforms: Vessels, aircraft, 
land and/or in combination.
    (ii) Vessel and aerial surveys shall be conducted two days before, 
during, and one to five days after the NSWC PCD mission activities on 
commercial vessels and aircraft.
    (iii) Visual surveys shall be conducted during Navy mission 
activities that have been identified to provide the highest likelihood 
of success.
    (iv) The visual survey team shall collect the same data that are 
collected by Navy marine observers, including but not limited to:
    (A) Location of sighting;
    (B) Species (or to the lowest taxa possible);
    (C) Number of individuals;
    (D) Number of calves present, if any;
    (E) Duration of sighting;
    (F) Behavior of marine animals sighted;
    (G) Direction of travel;
    (H) Environmental information associated with sighting event 
including Beaufort sea state, wave height, swell direction, wind 
direction, wind speed, glare, percentage of glare, percentage of cloud 
cover; and
    (I) When in relation to Navy exercises did the sighting occur 
(before, during or after detonations/exercise).
    (v) Animal sightings and relative distance from a particular 
activity site shall be used post survey to estimate the number of marine 
mammals exposed to different received levels (energy and pressure of 
discharge based on distance to the source, bathymetry, oceanographic 
conditions and the type and size of detonation) and their corresponding 
behavior.
    (vi) Any digital photographs that are taken of marine mammals during 
visual surveys shall be provided to local researchers for their regional 
research.
    (vii) The Holder of the Letter of Authorization shall, when 
conducting RDT&E activities in the NSWC PCD Study Area, implement the 
following monitoring methods:
    (A) Aerial surveys:
    (1) During NSWC PCD sonar related mission activities, an aerial 
survey team shall fly transects relative to a Navy surface vessel that 
is conducting the mission activities.
    (2) The aerial survey team shall collect both visual sightings and 
behavioral observations of marine animals.
    (3) These transect data shall provide an opportunity to collect data 
of marine mammals at different received levels and their behavioral 
responses and movement relative to the Navy vessel's position.
    (4) Aerial surveys shall include time with and without test events 
in order to compare density, geographical distribution and behavioral 
observations.

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    (5) Behavioral observation methods shall involve three 
professionally trained marine mammal observers and a pilot. Two 
observers shall observe behaviors, one with hand-held binoculars and one 
with the naked eye.
    (6) Detailed behavioral focal observations of cetaceans shall be 
recorded including the following variables where possible: species (or 
to the lowest taxa possible), group size and composition (number of 
calves, etc.), latitude/longitude, surface and dive durations and times, 
number and spacing/times of respirations, conspicuous behaviors (e.g., 
breach, tail slap, etc.), behavioral states, orientation and changes in 
orientation, estimated group travel speed, inter-individual distances, 
defecation, social interactions, aircraft speed, aircraft altitude, 
distance to focal group (using the plane's radar) and any unusual 
behaviors or apparent reactions.
    (B) Vessel Surveys:
    (1) Vessel surveys shall be designed to maximize detections of any 
target species near mission activity event for focal follows.
    (2) Systematic transects shall be used to locate marine mammals. In 
the course of conducting these surveys, the vessel(s) shall deviate from 
transect protocol to collect behavioral data particularly if a Navy 
vessel is visible on the horizon or closer.
    (3) While the Navy vessels are within view, attempts shall be made 
to position the dedicated survey vessel in the best possible way to 
obtain focal follow data in the presence of the Navy mission activities. 
If Navy vessels are not in view, then the vessel shall begin a 
systematic line transect surveys within the area to assess marine mammal 
occurrence and observe behavior.
    (4) Post-analysis shall focus on how the location, speed and vector 
of the survey vessel and the location and direction of the sonar source 
(e.g. Navy surface vessel) relates to the animal.
    (5) Any other vessels or aircraft observed in the area shall also be 
documented.
    (C) Shore-based Surveys:
    (1) Shore-based monitors shall observe explosive events that are 
planned in advance to occur adjacent to nearshore areas where there are 
elevated coastal structures (e.g. lookout tower at Eglin Air Force Base) 
or topography, and shall use binoculars or theodolite to augment other 
visual survey methods.
    (2) Shore-based surveys of the detonation area and nearby beaches 
shall be conducted for stranded marine animals following nearshore 
events. If any distressed, injured or stranded animals are observed, an 
assessment of the animal's condition (alive, injured, dead, or degree of 
decomposition) shall be reported immediately to the Navy for appropriate 
action and the information shall be transmitted immediately to NMFS.
    (3) If animals are observed prior to or during an explosion, a focal 
follow of that individual or group shall be conducted to record 
behavioral responses.
    (2) Passive Acoustic Monitoring (PAM): The Holder of this 
Authorization shall visually survey a minimum of 2 HFAS/MFAS activities 
and 2 explosive events per year. If the 53C sonar was being operated, 
such activity must be monitored as one of the HFAS/MFAS activities. For 
explosive events, one of the monitoring measures shall be focused on a 
multiple detonation event.
    (i) The Navy shall use towed or over-the-side passive acoustic 
monitoring device/hydrophone array when feasible in the NSWC PCD Study 
Area for PAM.
    (ii) The array shall be deployed for each of the days the ship is at 
sea.
    (iii) The array shall be able to detect low frequency vocalizations 
(less than 1,000 Hz) for baleen whales and relatively high frequency 
vocalizations (up to 30 kHz) for odontocetes.
    (iv) These buoys shall be left in place for a long enough duration 
(e.g. months) that data are collected before, during and outside of 
mission activities.
    (v) Acoustic data collected from the buoys shall be used in order to 
detect, locate, and potentially track calling whales/dolphins.
    (3) Marine Mammal Observers (MMOs) on Navy vessels:
    (i) Civilian MMOs aboard Navy vessels shall be used to research the 
effectiveness of Navy marine observers, as well as for data collection 
during other monitoring surveys.

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    (ii) MMOs shall be field-experienced observers that are Navy 
biologists or contracted observers.
    (iii) MMOs shall be placed alongside existing Navy marine observers 
during a sub-set of RDT&E events.
    (iv) MMOs shall inform the Navy marine observer of any marine mammal 
sighting so that appropriate action may be taken by the chain of 
command. For less biased data, it is recommended that MMOs schedule 
their daily observations to duplicate the marine observers' schedule.
    (v) MMOs shall monitor for marine mammals from the same height above 
water as the Navy marine observers (e.g. bridge wings) and as all visual 
survey teams, and they shall collect the same data collected by Navy 
marine observers, including but not limited to:
    (A) Location of sighting;
    (B) Species;
    (C) Number of individuals;
    (D) Number of calves present, if any;
    (E) Duration of sighting;
    (F) Behavior of marine animals sighted;
    (G) Direction of travel;
    (H) Environmental information associated with sighting event 
including Beaufort sea state, wave height, swell direction, wind 
direction, wind speed, glare, percentage of glare, percentage of cloud 
cover; and
    (I) When in relation to Navy RDT&E activities did the sighting occur 
(before, during or after detonations/exercise).
    (d) General Notification of Injured or Dead Marine Mammals--Navy 
personnel shall ensure that NMFS (regional stranding coordinator) is 
notified immediately (or as soon as clearance procedures allow) if an 
injured or dead marine mammal is found during or shortly after, and in 
the vicinity of, any Navy's RDT&E activities utilizing underwater 
explosive detonations. The Navy shall provide NMFS with species or 
description of the animal(s), the condition of the animal(s) (including 
carcass condition if the animal is dead), location, time of first 
discovery, observed behaviors (if alive), and photo or video (if 
available).
    (e) If there is clear evidence that a marine mammal is injured or 
killed as a result of the proposed Navy RDT&E activities (e.g., 
instances in which it is clear that munitions explosions caused the 
injury or death) the Naval activities shall be immediately suspended and 
the situation immediately reported by personnel involved in the activity 
to the Test Director or the Test Director's designee, who will follow 
Navy procedures for reporting the incident to NMFS through the Navy's 
chain-of-command.
    (f) Annual NSWC PCD Report--The Navy shall submit a report annually 
on October 1 describing the RDT&E activities conducted and 
implementation and results of the NSWC PCD Monitoring Plan (through 
August 1 of the same year) and RDT&E activities. Although additional 
information will also be gathered, the MMOs collecting marine mammal 
data pursuant to the NSWC PCD Monitoring Plan shall, at a minimum, 
provide the same marine mammal observation data listed below.
    (1) RDT&E Information:
    (i) Date and time test began and ended;
    (ii) Location;
    (iii) Number and types of active sources used in the test;
    (iv) Number and types of vessels, aircraft, etc., participated in 
the test;
    (v) Number and types of underwater detonations;
    (vi) Total hours of observation effort (including observation time 
when sonar was not operating).
    (vii) Total hours of all active sonar source operation;
    (viii) Total hours of each active sonar source; and
    (ix) Wave height (high, low, and average during the test) in feet.
    (2) Individual Marine Mammal Sighting Info:
    (i) Location of sighting;
    (ii) Species;
    (iii) Number of individuals;
    (iv) Calves observed (y/n);
    (v) Initial detection sensor;
    (vi) Indication of specific type of platform observation made from;
    (vii) Length of time observers maintained visual contact with marine 
mammal(s);
    (viii) Wave height (in feet);
    (ix) Visibility;
    (x) Sonar source in use (y/n);

[[Page 249]]

    (xi) Indication of whether animal is <200 yd, 200-500 yd, 500-1,000 
yd, 1,000-2,000 yd, or 2,000 yd from sonar source above;
    (xii) Mitigation implementation--Whether operation of sonar sensor 
was delayed, or sonar was powered or shut down, and how long the delay 
was;
    (xiii) If the active MFAS in use is hullmounted, true bearing of 
animal from ship, true direction of ship's travel, and estimation of 
animal's motion relative to ship (opening, closing, parallel);
    (xiv) Observed behavior--Marine observers shall report, in plain 
language and without trying to categorize in any way, the observed 
behavior of the animals (such as animal closing to bow ride, paralleling 
course/speed, floating on surface and not swimming, etc.); and
    (xv) An evaluation of the effectiveness of mitigation measures 
designed to avoid exposing marine mammals to HFAS/MFAS. This evaluation 
shall identify the specific observations that support any conclusions 
the Navy reaches about the effectiveness of the mitigation.
    (g) NSWC PCD Comprehensive Report--The Navy shall submit to NMFS a 
draft report that analyzes and summarizes all of the multi-year marine 
mammal information gathered during sonar operations and underwater 
explosive events for which individual reports are required inSec. 
218.184 (d-f). This report will be submitted at the end of the fourth 
year of the rule (December 2013), covering activities that have occurred 
through July 1, 2013.
    (h) The Navy shall respond to NMFS comments and requests for 
additional information or clarification on the NSWC PCD Comprehensive 
Report and the Annual NSWC PCD Report if submitted within 3 months of 
receipt. The report will be considered final after the Navy has 
addressed NMFS' comments or provided the requested information, or three 
months after the submittal of the draft if NMFS does not comment by 
then.
    (i) In 2011, the Navy shall convene a Monitoring Workshop in which 
the Monitoring Workshop participants will be asked to review the Navy's 
Monitoring Plans and monitoring results and make individual 
recommendations (to the Navy and NMFS) of ways of improving the 
Monitoring Plans. The recommendations shall be reviewed by the Navy, in 
consultation with NMFS, and modifications to the Monitoring Plan shall 
be made, as appropriate.



Sec.  218.185  Applications for Letters of Authorization.

    To incidentally take marine mammals pursuant to these regulations, 
the U.S. citizen (as defined bySec. 216.103 of this chapter) 
conducting the activity identified inSec. 218.180(c) (the U.S. Navy) 
must apply for and obtain either an initial Letter of Authorization in 
accordance withSec. 218.186 or a renewal underSec. 218.187.



Sec.  218.186  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the periods of validity of this 
subpart, but may be renewed or modified sooner subject to the renewal 
conditions inSec. 218.187 and the modification conditions inSec. 
218.188.
    (b) Each Letter of Authorization will set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable 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 Letter 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 affected species or stock of marine mammal(s).

[75 FR 3410, Jan. 21, 2010, as amended at 77 FR 4926, Feb. 1, 2012]



Sec.  218.187  Renewal of Letters of Authorization and adaptive 
management.

    (a) A Letter of Authorization issued underSec. 216.106 of this 
chapter andSec. 218.186 for the activity identified inSec. 
218.180(c) will be renewed upon:

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    (1) Notification to NMFS that the activity described in the 
application submitted underSec. 218.185 will be undertaken and that 
there will not be a substantial modification to the desired work, 
mitigation, or monitoring undertaken during the upcoming period of 
validity;
    (2) Timely receipt of the monitoring reports required underSec. 
218.184(b); and
    (3) A determination by NMFS that the mitigation, monitoring and 
reporting measures required underSec. 218.183 and the Letter of 
Authorization issued underSec. 216.106 of this chapter andSec. 
218.186, were undertaken and will be undertaken during the upcoming 
period of validity of a renewed Letter of Authorization.
    (b) If a request for a renewal of a Letter of Authorization issued 
under Sec.Sec. 216.106 of this chapter and 218.187 indicates that a 
substantial modification to the described work, mitigation or monitoring 
undertaken during the upcoming season will occur, the NMFS will provide 
the public a period of 30 days for review and comment on the request. 
Review and comment on renewals of Letters of Authorization 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 changes to the mitigation and monitoring requirements 
contained 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 Register.
    (d) NMFS, in response to new information and in consultation with 
the Navy, may modify the mitigation or monitoring measures in subsequent 
LOAs if doing so creates a reasonable likelihood of more effectively 
accomplishing the goals of mitigation 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 decision to modify the mitigation 
or monitoring measures:
    (1) Results from the Navy's monitoring from the previous year 
(either from NSWC PCD Study Area or other locations).
    (2) Findings of the Monitoring Workshop that the Navy will convene 
in 2011 (Sec.  218.184(i)).
    (3) Compiled results of Navy-funded research and development (R&D) 
studies.
    (4) Results from specific stranding investigations (either from the 
NSWC PCD Study Area or other locations).
    (5) Results from general marine mammal and sound research (funded by 
the Navy (described below) or otherwise).
    (6) 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.

[75 FR 3410, Jan. 21, 2010, as amended at 77 FR 4926, Feb. 1, 2012]



Sec.  218.188  Modifications to Letters of Authorization.

    (a) Except as provided in paragraph (b) of this section, no 
substantive modification (including withdrawal or suspension) to the 
Letter of Authorization by NMFS, issued pursuant toSec. 216.106 of 
this chapter andSec. 218.186 and subject to the provisions of this 
subpart shall be made until after notification and an opportunity for 
public comment has been provided. For purposes of this paragraph, a 
renewal of a Letter of Authorization underSec. 218.187, without 
modification (except for the period of validity), is not considered a 
substantive modification.
    (b) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species or 
stocks of marine mammals specified inSec. 218.181(b), a Letter of 
Authorization issued pursuant toSec. 216.106 of this chapter andSec. 
218.186 may be substantively modified without prior notification and an 
opportunity for public comment. Notification will be published in the 
Federal Register within 30 days subsequent to the action.

Subparts T-W [Reserved]

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  Subpart X_Taking and Importing of Marine Mammals; Navy Operations of 
  Surveillance Towed Array Sensor System Low Frequency Active (SURTASS 
                               LFA) Sonar

    Source: 77 FR 50316, Aug. 20, 2012, unless otherwise noted.