[Title 50 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2017 Edition]
[From the U.S. Government Publishing Office]



[[Page i]]

          

          Title 50

Wildlife and Fisheries


________________________

Parts 200 to 227

                         Revised as of October 1, 2017

          Containing a codification of documents of general 
          applicability and future effect

          As of October 1, 2017
                    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........................    1035
      Alphabetical List of Agencies Appearing in the CFR......    1055
      List of CFR Sections Affected...........................    1065

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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, October 1, 2017), 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 
Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001, 
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 
the daily Federal Register.
    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 
Archives and Records Administration, 8601 Adelphi Road, College Park, MD 
20740-6001 or e-mail [email protected]

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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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information. Connect to NARA's web site at www.archives.gov/federal-
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 Publishing Office. It is 
available at www.ecfr.gov.

    Oliver A. Potts,
    Director,
    Office of the Federal Register.
    October 1, 2017.

                                
                                      
                            

  

[[Page ix]]



                               THIS TITLE

    Title 50--Fish and Wildlife is composed of thirteen volumes. The 
parts in these volumes are arranged in the following order: Parts 1-16; 
part 17 (17.1 to 17.95(a)), part 17 (17.95(b)), part (17.95(c) to (e)), 
part 17 (17.95(f) to end of 17.95), part 17 (17.96 to 17.98), part 17 
(17.99(a) to 17.99(h)), part 17 (17.99(i) to end of part 17), parts 18-
199, parts 200-227, parts 228-599, parts 600-659, and part 660 to end. 
The first nine volumes consist of parts 1-16, part 17 (17.1 to 
17.95(a)), part 17 (17.95(b)), part 17 (17.95(c) to (e)), part 17 
(17.95(f) to end of 17.95), part 17 (17.96 to 17.98), part 17 (17.99(a) 
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 tenth volume 
(parts 200-227) contains the current regulations issued under chapter 
II--the National Marine Fisheries Service, National Oceanic and 
Atmospheric Administration. The eleventh volume (parts 228-599) contains 
the remaining current regulations issued under chapter II--National 
Marine Fisheries Service, National Oceanic and Atmospheric 
Administration, Department of Commerce; and the current regulations 
issued under 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 twelfth and thirteenth 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, 2017.

    Alphabetical listings of endangered and threatened wildlife and 
plants appear in Secs. 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, Kenneth R. Payne was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of John 
Hyrum Martinez, assisted by Stephen J. Frattini.

[[Page 1]]



                    TITLE 50--WILDLIFE AND FISHERIES




                  (This book contains parts 200 to 227)

  --------------------------------------------------------------------
                                                                    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
Part                                                                Page
200             Small Business Size Standards Established by 
                    NMFS for Regulatory Flexibility Act 
                    Compliance Purposes Only................           5
       SUBCHAPTER B--NORTH PACIFIC COMMERCIAL FISHERIES [RESERVED]
                      SUBCHAPTER C--MARINE MAMMALS
216             Regulations governing the taking and 
                    importing of marine mammals.............           6
217             Regulations governing the take of marine 
                    mammals incidental to specified 
                    activities..............................          86
218             Regulations governing the taking and 
                    importing of marine mammals.............         159
219             Regulations governing the taking and 
                    importing of marine mammals.............         238
220             [Reserved]

221             Conditions and prescriptions in FERC 
                    hydropower licenses.....................         263
222             General endangered and threatened marine 
                    species.................................         285
223             Threatened marine and anadromous species....         312
224             Endangered marine and anadromous species....         384
225             [Reserved]

226             Designated critical habitat.................         426
227             [Reserved]

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                     SUBCHAPTER A_GENERAL PROVISIONS





PART 200_SMALL BUSINESS SIZE STANDARDS ESTABLISHED BY NMFS FOR
REGULATORY FLEXIBILITY ACT COMPLIANCE PURPOSES ONLY--Table of Contents



Sec.
200.1  Purpose and scope.
200.2  Small business size standards and frequency of review.

    Authority: 5 U.S.C. 601 et seq.

    Source: 80 FR 81198, Dec. 29, 2015, unless otherwise noted.



Sec. 200.1  Purpose and scope.

    (a) This part sets forth the National Marine Fisheries Service 
(NMFS) small business size standards for NMFS to use in conducting 
Regulatory Flexibility Act (RFA) analyses for NMFS actions subject to 
the RFA. This part also sets forth the timeframe for NMFS to review its 
small business size standards.
    (b) NMFS has established the alternative size standards in this 
part, for RFA compliance purposes only, in order to simplify the RFA 
analyses done in support of NMFS' rules, better meet the RFA's intent by 
more accurately representing expected disproportionate effects of NMFS' 
rules between small and large businesses, create a standard that more 
accurately reflects the size distribution of all businesses in the 
industry, and allow NMFS to determine when changes to the standard are 
necessary and appropriate.



Sec. 200.2  Small business size standards and frequency of review.

    (a) NMFS' small business size standard for businesses, including 
their affiliates, whose primary industry is commercial fishing is $11 
million in annual gross receipts. This standard applies to all 
businesses classified under North American Industry Classification 
System (NAICS) code 11411 for commercial fishing, including all 
businesses classified as commercial finfish fishing (NAICS 114111), 
commercial shellfish fishing (NAICS 114112), and other commercial marine 
fishing (NAICS 114119) businesses.
    (b) NMFS will review each of the small business size standards in 
paragraph (a) of this section at least once every 5 years to determine 
if a change is warranted. A change may be warranted because of changes 
in industry structure, market conditions, inflation, or other relevant 
factors.



       SUBCHAPTER B_NORTH PACIFIC COMMERCIAL FISHERIES [RESERVED]



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                       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.
216.18  Approaching humpback whales in Alaska.
216.19  Special restrictions for humpback whales in waters surrounding 
          the islands of Hawaii.

                      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 in commercial fishing operations 
          including 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 subsistence fur seal harvests.
216.73  Disposition of fur seal parts.
216.74  Cooperation between fur seal harvesters, tribal and 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.
216.102  Scope.
216.103  Definitions.

[[Page 7]]

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.

Subparts J-X[Reserved]

Figure 1 to Part 216--Northern Fur Seal Breeding Areas (Rookeries) and 
          Hauling Grounds on St. George Island, Alaska

    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 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 in Sec. 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

[[Page 8]]

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 
to Sec. 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 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 to Sec. 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).
    Bycatch limit means the calculation of a potential biological 
removal level for a particular marine mammal stock, as defined in 
Sec. 229.2 of this chapter, or comparable scientific metric established 
by the harvesting nation or applicable regional fishery management 
organization or intergovernmental agreement.
    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

[[Page 9]]

hire, persons are legally permitted to conduct sportfishing activities.
    Comparability finding means a finding by the Assistant Administrator 
that the harvesting nation for an export or exempt fishery has met the 
applicable conditions specified in Sec. 216.24(h)(6)(iii) subject to the 
additional considerations for comparability determinations set out in 
Sec. 216.24(h)(7).
    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 N. latitude, 40 S. latitude, 160 W. 
longitude and the coastlines of North, Central and South America.
    Exempt fishery means a foreign commercial fishing operation 
determined by the Assistant Administrator to be the source of exports of 
commercial fish and fish products to the United States and to have a 
remote likelihood of, or no known, incidental mortality and serious 
injury of marine mammals in the course of commercial fishing operations. 
A commercial fishing operation that has a remote likelihood of causing 
incidental mortality and serious injury of marine mammals is one that 
collectively with other foreign fisheries exporting fish and fish 
products to the United States causes the annual removal of:
    (1) Ten percent or less of any marine mammal stock's bycatch limit; 
or
    (2) More than 10 percent of any marine mammal stock's bycatch limit, 
yet that fishery by itself removes 1 percent or less of that stock's 
bycatch limit annually; or
    (3) Where reliable information has not been provided by the 
harvesting nation on the frequency of incidental mortality and serious 
injury of marine mammals caused by the commercial fishing operation, the 
Assistant Administrator may determine whether the likelihood of 
incidental mortality and serious injury is ``remote'' by evaluating 
information concerning factors such as fishing techniques, gear used, 
methods used to deter marine mammals, target species, seasons and areas 
fished, qualitative data from logbooks or fisher reports, stranding 
data, the species and distribution of marine mammals in the area, or 
other factors at the discretion of the Assistant Administrator. A 
foreign fishery will not be classified as an exempt fishery unless the 
Assistant Administrator has reliable information from the harvesting 
nation, or other information to support such a finding.
    Exemption period means the one-time, five-year period that commences 
January 1, 2017, during which commercial fishing operations that are the 
source of exports of commercial fish and fish products to the United 
States will be exempt from the prohibitions of Sec. 216.24(h)(1).
    Export fishery means a foreign commercial fishing operation 
determined by the Assistant Administrator to be the source of exports of 
commercial fish and fish products to the United States and to have more 
than a remote likelihood of incidental mortality and serious injury of 
marine mammals (as defined in the definition of an ``exempt fishery'') 
in the course of its commercial fishing operations. Where reliable 
information has not been provided by the harvesting nation on the 
frequency of incidental mortality and serious injury of marine mammals 
caused by the commercial fishing operation, the Assistant Administrator 
may determine whether the likelihood of incidental

[[Page 10]]

mortality and serious injury is more than ``remote'' by evaluating 
information concerning factors such as fishing techniques, gear used, 
methods used to deter marine mammals, target species, seasons and areas 
fished, qualitative data from logbooks or fisher reports, stranding 
data, and the species and distribution of marine mammals in the area, or 
other factors at the discretion of the Assistant Administrator that may 
inform whether the likelihood of incidental mortality and serious injury 
of marine mammals caused by the commercial fishing operation is more 
than ``remote.'' Commercial fishing operations not specifically 
identified in the current List of Foreign Fisheries as either exempt or 
export fisheries are deemed to be export fisheries until the next List 
of Foreign Fisheries is published unless the Assistant Administrator has 
reliable information from the harvesting nation to properly classify the 
foreign commercial fishing operation. Additionally, the Assistant 
Administrator, may request additional information from the harvesting 
nation and may consider other relevant information as set forth in 
Sec. 216.24(h)(3) about such commercial fishing operations and the 
frequency of incidental mortality and serious injury of marine mammals, 
to properly classify the foreign commercial fishing operation.
    Facility means, in the context specific to captive marine mammals,: 
(1) One or more permanent primary enclosures used to hold marine mammals 
captive (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.
    Fish and fish product means any marine finfish, mollusk, crustacean, 
or other form of marine life other than marine mammals, reptiles, and 
birds, whether fresh, frozen, canned, pouched, or otherwise prepared.
    Fisheries Certificate of Origin, or FCO, means NOAA Form 370, as 
described in Sec. 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

[[Page 11]]

landing, bringing, or introduction constitutes an importation within the 
Customs laws of the United States; except that, for the purpose of any 
ban on the importation of fish or fish products issued under the 
authority of 16 U.S.C. 1371(a)(2)(B), the definition of ``import'' in 
Sec. 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.
    Intermediary nation means a nation that imports fish or fish 
products from a fishery on the List of Foreign Fisheries and re-exports 
such fish or fish products to the United States.
    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.
    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.

[[Page 12]]

    List of Foreign Fisheries means the most recent list, organized by 
harvesting nation, of foreign commercial fishing operations exporting 
fish or fish products to the United States, that is published in the 
Federal Register by the Assistant Administrator and that classifies 
commercial fishing operations according to the frequency and likelihood 
of incidental mortality and serious injury of marine mammals during such 
commercial fishing operations as either an exempt fishery or an export 
fishery.
    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 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.

[[Page 13]]

    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 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.
    Transboundary stock means a marine mammal stock occurring in the:
    (1) Exclusive economic zones or territorial sea of the United States 
and one or more other coastal States; or
    (2) Exclusive economic zone or territorial sea of the United States 
and on the high seas.
    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.
    U.S. regulatory program means the regulatory program governing the 
incidental mortality and serious injury of marine mammals in the course 
of commercial fishing operations as specified in the Marine Mammal 
Protection Act and its implementing regulations.

[[Page 14]]

    Yellowfin tuna means the species Thunnus albacares (synonomy: 
Neothunnus macropterus).

[39 FR 1852, Jan. 15, 1974]

    Editorial Note: For Federal Register citations affecting Sec. 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 to 
Sec. 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 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,

[[Page 15]]

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 
(see Sec. 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 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 Secs. 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.

[[Page 16]]

    (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;
    (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.

[[Page 17]]

    (d) This section has no application to any marine mammal or marine 
mammal product intended to be imported pursuant to Secs. 216.21, 216.31 
or Sec. 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 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.
    (j) Sakhalin Bay-Nikolaya Bay-Amur River beluga whales 
(Delphinapterus leucas). The stock includes all beluga whales primarily 
occurring in, but not limited to, waters of Sakhalin Bay, Nikolaya Bay, 
and Amur River in the Sea of Okhotsk.

[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; 81 FR 74719, Oct. 27, 2016]



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 to Sec. 216.45(b);
    (b) Violate any term or condition imposed pursuant to 
Sec. 216.45(d).

[59 FR 50376, Oct. 3, 1994]



Sec. 216.17  General prohibitions.

    It is unlawful for any person to:
    (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]



Sec. 216.18  Approaching humpback whales in Alaska.

    (a) Prohibitions. Except as provided under paragraph (b) of this 
section, it is unlawful for any person subject to the jurisdiction of 
the United States to commit, to attempt to commit, to solicit another to 
commit, or to cause to be committed, within 200 nautical miles (370.4 
km) of Alaska, or within inland waters of the state, any of the

[[Page 18]]

acts in paragraphs (a)(1) through (a)(3) of this section with respect to 
humpback whales (Megaptera novaeangliae):
    (1) Approach, by any means, including by interception (i.e., placing 
a vessel in the path of an oncoming humpback whale so that the whale 
surfaces within 100 yards (91.4 m) of the vessel), within 100 yards 
(91.4 m) of any humpback whale;
    (2) Cause a vessel or other object to approach within 100 yards 
(91.4 m) of a humpback whale; or
    (3) Disrupt the normal behavior or prior activity of a whale by any 
other act or omission. A disruption of normal behavior may be manifested 
by, among other actions on the part of the whale, a rapid change in 
direction or speed; escape tactics such as prolonged diving, underwater 
course changes, underwater exhalation, or evasive swimming patterns; 
interruptions of breeding, nursing, or resting activities, attempts by a 
whale to shield a calf from a vessel or human observer by tail swishing 
or by other protective movement; or the abandonment of a previously 
frequented area.
    (b) Exceptions. The following exceptions apply, but any person who 
claims the applicability of an exception has the burden of proving that 
the exception applies:
    (1) Paragraph (a) of this section does not apply if an approach is 
authorized by the National Marine Fisheries Service through a permit 
issued under subpart D of this part (Special Exceptions) or through a 
similar authorization.
    (2) Paragraph (a) of this section does not apply to the extent that 
a vessel is restricted in its ability to maneuver and, because of the 
restriction, cannot comply with paragraph (a) of this section.
    (3) Paragraph (a) of this section does not apply to commercial 
fishing vessels lawfully engaged in actively setting, retrieving or 
closely tending commercial fishing gear. For purposes of this section, 
commercial fishing means taking or harvesting fish or fishery resources 
to sell, barter, or trade. Commercial fishing does not include 
commercial passenger fishing operations (i.e., charter operations or 
sport fishing activities).
    (4) Paragraph (a) of this section does not apply to state, local, or 
Federal government vessels operating in the course of official duty.
    (5) Paragraph (a) of this section does not affect the rights of 
Alaska Natives under 16 U.S.C. 1539(e).
    (6) This section shall not take precedence over any more restrictive 
conflicting Federal regulation pertaining to humpback whales, including 
the regulations at 36 CFR 13.1102-13.1188 that pertain specifically to 
the waters of Glacier Bay National Park and Preserve.
    (c) General measures. Notwithstanding the prohibitions and 
exceptions in paragraphs (a) and (b) of this section, to avoid 
collisions with humpback whales, vessels must operate at a slow, safe 
speed when near a humpback whale. ``Safe speed'' has the same meaning as 
the term is defined in 33 CFR 83.06 and the International Regulations 
for Preventing Collisions at Sea 1972 (see 33 U.S.C. 1602), with respect 
to avoiding collisions with humpback whales.

[81 FR 62020, Sept. 8, 2016]



Sec. 216.19  Special restrictions for humpback whales in waters
surrounding the islands of Hawaii.

    (a) Prohibitions. Except as noted in paragraph (b) of this section, 
it is unlawful for any person subject to the jurisdiction of the United 
States to commit, to attempt to commit, to solicit another to commit, or 
to cause to be committed, within 200 nautical miles (370.4 km) of the 
islands of Hawaii, any of the following acts with respect to humpback 
whales (Megaptera novaeangliae):
    (1) Operate any aircraft within 1,000 feet (304.8 m) of any humpback 
whale;
    (2) Approach, by any means, within 100 yards (91.4 m) of any 
humpback whale;
    (3) Cause a vessel, person, or other object to approach within 100 
yards (91.4 m) of a humpback whale;
    (4) Approach a humpback whale by interception (i.e., placing an 
aircraft, vessel, person, or other object in the path of a humpback 
whale so that the whale approaches within 1,000 feet (304.8 m) of the 
aircraft or 100 yards

[[Page 19]]

(91.4 m) of the vessel, person, or object); or
    (5) Disrupt the normal behavior or prior activity of a whale by any 
other act or omission. A disruption of normal behavior may be manifested 
by, among other actions on the part of the whale, a rapid change in 
direction or speed; escape tactics such as prolonged diving, underwater 
course changes, underwater exhalation, or evasive swimming patterns; 
interruptions of breeding, nursing, or resting activities, attempts by a 
whale to shield a calf from a vessel or human observer by tail swishing 
or by other protective movements; or the abandonment of a previously 
frequented area.
    (b) Exceptions. The prohibitions of paragraph (a) of this section do 
not apply to:
    (1) Federal, State, or local government vessels or persons operating 
in the course of their official duties such as law enforcement, search 
and rescue, or public safety;
    (2) Vessel operations necessary to avoid an imminent and serious 
threat to a person, vessel, or the environment;
    (3) Vessels restricted in their ability to maneuver, and because of 
this restriction are not able to comply with approach restrictions; or
    (4) Vessels or persons authorized under permit or authorization 
issued by NMFS to conduct scientific research or response efforts that 
may result in taking of humpback whales.
    (c) Affirmative defense. (1) In connection with any action alleging 
a violation of this section, any person claiming the benefit of any 
exemption, exception, or permit listed in paragraph (b) of this section 
has the burden of proving that the exemption or exception is applicable, 
or that the permit was granted and was valid and in force at the time of 
the alleged violation.
    (2) [Reserved]

[81 FR 62017, Sept. 8, 2016]



                      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.

[[Page 20]]

    (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.
    (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

[[Page 21]]

    (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 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

[[Page 22]]

    (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;
    (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 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

[[Page 23]]

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 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 in Sec. 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 under 
Sec. 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

[[Page 24]]

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 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'' growth    ``Low'' growth rate     Mortality
                                                                                                     rate                                       Limit
--------------------------------------------------------------------------------------------------------------------------------------------------------
Less than 350..............................................                             0                        0                        0            -
350-399....................................................          8 strikes in 5 years     5 strikes in 5 years     5 strikes in 5 years           21
400-449....................................................          9 strikes in 5 years     8 strikes in 5 years     5 strikes in 5 years           24
450-499....................................................         10 strikes in 5 years     8 strikes in 5 years     5 strikes in 5 years           27
500-524....................................................         14 strikes in 5 years     9 strikes in 5 years     5 strikes in 5 years           30
525-549....................................................         16 strikes in 5 years    10 strikes in 5 years     5 strikes in 5 years           32

[[Page 25]]

 
550-574....................................................         20 strikes in 5 years    15 strikes in 5 years     5 strikes in 5 years           33
575-599....................................................         22 strikes in 5 years    16 strikes in 5 years     5 strikes in 5 years           35
600-624....................................................         24 strikes in 5 years    17 strikes in 5 years     6 strikes in 5 years           36
625-649....................................................         26 strikes in 5 years    18 strikes in 5 years     6 strikes in 5 years           38
650-699....................................................         28 strikes in 5 years    19 strikes in 5 years     7 strikes in 5 years           39
700-779....................................................         32 strikes in 5 years    20 strikes in 5 years     7 strikes in 5 years           42
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 in commercial fishing operations
including 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 in Sec. 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.

[[Page 26]]

    (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.
    (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 
under Sec. 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 
under Sec. 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

[[Page 27]]

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.
    (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 under Sec. 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 in 
Sec. 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 in Sec. 300.22(b)(4) of this title.
    (C) The owner or managing owner of a purse seine vessel that is 
permitted and authorized under an alternative international tuna purse 
seine fisheries management regime in the Pacific Ocean must submit the 
vessel assessment fee, as established by the IATTC or other approved 
observer program, to the Administrator, West Coast Region, prior to 
obtaining an observer and entering the ETP to fish. Consistent with 
Sec. 300.22(b)(1) of this title, this class of purse seine vessels is 
not required to be listed on the Vessel Register under Sec. 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 under Sec. 300.22(b)(4)(i) 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 under Sec. 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 under Sec. 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

[[Page 28]]

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 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

[[Page 29]]

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.
    (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

[[Page 30]]

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 under Sec. 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 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

[[Page 31]]

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.
    (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]

[[Page 32]]

    (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 
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

[[Page 33]]

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 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

[[Page 34]]

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 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

[[Page 35]]

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 ``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 and an 
International Fisheries Trade Permit. Shipments of tuna, tuna products, 
and certain other fish products identified in paragraphs (f)(2)(i) 
through (iii) of this section may not be imported into the United States 
unless: a scanned copy of a properly completed Fisheries Certificate of 
Origin (FCO), NOAA Form 370, associated certifications and statements 
described in Sec. 216.91(a), and required data set are filed 
electronically with U.S. Customs and Border Protection (CBP) at the time 
of, or in advance of, importation as required under Sec. 300.323; and 
the importer of record designated on the entry summary (Customs Form 
7501) holds a valid International Fisheries Trade Permit as specified at 
Sec. 300.322 of this title. ``Required data set'' has the same meaning 
as Sec. 300.321 of this title (see definition of ``Documentation and 
data sets required'').
    (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, other, frozen, except whole, head-on, 
          fillets, livers and roes
0304.87.0000  Tuna fish fillets, frozen, not elsewhere specified or 
          indicated (NESOI)
0304.99.1190  Tuna, frozen, in bulk or in immediate containers weighing 
          with their contents over 6.8 kg each

  (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).

0511.91.0090  Fish, shellfish products unfit for human consumption
1604.20.1000  Fish pastes
1604.20.1500  Fish balls, cakes and puddings, in oil
1604.20.2000  Fish balls, cakes and puddings, not in oil, less than 6.8 
          kg, in airtight containers
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

[[Page 36]]

1604.20.4000  Fish sticks, not cooked, nor in oil
1604.20.5010  Fish sticks, cooked and frozen
1604.20.5090  Fish sticks, NESOI
2309.10.0010  Dog or cat food, in airtight containers

    (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
0303.45.0110  Atlantic Bluefin, frozen, except fillets, livers and roes
0303.45.0150  Pacific Bluefin, frozen, except fillets, livers and roes
0303.46.0000  Southern bluefin tunas, frozen, except fillets, livers and 
          roes
0303.49.0200  Tunas, frozen, except fillets, livers and roes, NESOI
0304.87.0000  Tuna fish fillets, frozen, NESOI
0304.99.1190  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
  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).

0511.91.0090  Fish, shellfish products unfit for human consumption
1604.20.1000  Fish pastes
1604.20.1500  Fish balls, cakes and puddings, in oil
1604.20.2000  Fish balls, cakes and puddings, not in oil, less than 6.8 
          kg, in airtight containers
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
1604.20.4000  Fish sticks, not cooked, nor in oil
1604.20.5010  Fish sticks, cooked and frozen
1604.20.5090  Fish sticks, NESOI
2309.10.0010  Dog or cat food, in airtight containers

    (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

[[Page 37]]

accompanied by an FCO and the official statement described in paragraph 
(f)(4)(xiii) of this section.
    (A) Frozen:

0303.11.0000  Sockeye (red) salmon (Oncorhynchus nerka), frozen, except 
          fillets, livers and roes
0303.12.0012  Chinook (King) salmon (Oncorhynchus tschawytscha), frozen, 
          except fillets, livers and roes
0303.12.0022  Chum (dog) salmon (Oncorhynchus keta), frozen, except 
          fillets, livers and roes
0303.12.0032  Pink (humpie) salmon (Oncorhynchus gorbuscha), frozen, 
          except fillets, livers and roes
0303.12.0052  Coho (silver) salmon (Oncorhynchus kisutch), frozen, 
          except fillets, livers and roes
0303.12.0062  Pacific salmon (Oncorhynchus masou, Oncorhynchus 
          rhodurus), frozen, except fillets, livers and roes, NESOI
0303.13.0000  Atlantic salmon (Salmo salar) and Danube salmon (Hucho 
          hucho), frozen, except fillets, livers and roes
0303.14.0000  Trout (Salmo trutta; Oncorhynchus mykiss, clarki, 
          aguabonita, gilae, apache, and chrysogaster), frozen, except 
          fillets, livers and roes
0303.19.0100  Salmonidae, frozen, except fillets, livers and roes, NESOI
0303.57.0010  Swordfish steaks, frozen, except fillets
0303.57.0090  Swordfish, frozen, except steaks, fillets, livers and roes
0303.81.0010  Dogfish (Squalus spp.), frozen, except fillets, livers and 
          roes
0303.81.0090  Sharks, frozen, except dogfish, fillets, livers and roes
0303.89.0079  Fish, other, frozen, except fillets, livers and roes, 
          NESOI
0304.81.5010  Atlantic Salmonidae (Salmo salar) fillets, frozen, NESOI
0304.81.5090  Salmonidae fillets, frozen, except Atlantic salmon, NESOI
0304.89.1090  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
0304.91.1000  Swordfish, frozen, in bulk or in immediate containers 
          weighing over 6.8 kg each
0304.91.9000  Swordfish, frozen, NESOI
0304.99.9191  Fish fillets, ocean, frozen, NESOI
0307.49.0010  Squid fillets, frozen
0307.49.0022  Squid, Loligo opalescens, NESOI
0307.49.0024  Squid, Loligo pealei, NESOI
0307.49.0029  Squid, Loligo, other, NESOI
0307.49.0050  Squid, other, NESOI

    (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
1604.19.2100  Fish, NESOI, not in oil, in airtight containers
1604.19.3100  Fish, NESOI, in oil, in airtight containers
1605.54.6020  Squid, Loligo, prepared or preserved
1605.54.6030  Squid, except Loligo, prepared or preserved

    (C) Other:

0305.39.6080  Fish fillets, dried, salted or in brine, but not smoked, 
          NESOI
0305.41.0000  Pacific salmon (Oncorhynchus spp.), Atlantic salmon (Salmo 
          salar), and Danube salmon (Hucho hucho), including fillets, 
          smoked
0305.49.4041  Fish including fillets, smoked, NESOI
0305.59.0000  Fish, dried, whether or not salted but not smoked, NESOI
0305.69.4000  Salmon, salted but not dried or smoked; in brine
0305.69.5001  Fish in immediate containers weighing with their contents 
          6.8 kg or less each, salted but not dried or smoked; in brine, 
          NESOI
0305.69.6001  Fish, salted but not dried or smoked; in brine, NESOI
0305.71.0000  Shark fins, dried, whether or not salted but not smoked
0305.49.0010  Squid, frozen, fillets
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  Squid, Loligo, frozen (except fillets), dried, salted or 
          in brine, NESOI
0307.49.0050  Squid, other, 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, West Coast Region, or downloaded from the

[[Page 38]]

Internet at http://www.nmfs.noaa.gov/pr/dolphinsafe/noaa370.htm.
    (i) A properly completed FCO, and its attached certifications and 
statements as described in Sec. 216.91(a), must accompany the required 
CBP entry documents that are filed at the time of, or in advance of, 
importation.
    (ii) FCOs and associated certifications and statements as described 
in Sec. 216.91(a) must be provided electronically to CBP as indicated in 
paragraph (f)(2) of this section.
    (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, West Coast Region, by 
the last endorser when all required endorsements are completed. Such 
FCOs must be submitted as specified in Sec. 216.93(d)(2).
    (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, 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 in Sec. 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

[[Page 39]]

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 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

[[Page 40]]

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
    (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

[[Page 41]]

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 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

[[Page 42]]

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.
    (h) Taking and related acts of marine mammals in foreign commercial 
fishing operations not governed by the provisions related to tuna purse 
seine vessels in the eastern tropical Pacific Ocean--(1) Prohibitions. 
(i) As provided in section 101(a)(2) and 102(c)(3)of the MMPA, the 
importation of commercial fish or fish products which have been caught 
with commercial fishing technology which results in the incidental kill 
or incidental serious injury of ocean mammals in excess of U.S. 
standards or caught in a manner which the Secretary has proscribed for 
persons subject to the jurisdiction of the United States are prohibited. 
For purposes of paragraph (h) of this section, a fish or fish product 
caught with commercial fishing technology which results in the 
incidental mortality or incidental serious injury of marine mammals in 
excess of U.S. standards is any fish or fish product harvested in an 
exempt or export fishery for which a valid comparability finding is not 
in effect.
    (ii) Accordingly, it is unlawful for any person to import, or 
attempt to import, into the United States for commercial purposes any 
fish or fish product if such fish or fish product:
    (A) Was caught or harvested in a fishery that does not have a valid 
comparability finding in effect at the time of import; or
    (B) Is not accompanied by a Certification of Admissibility where 
such Certification is required pursuant to paragraph (h)(9)(iv) of this 
section or by such other documentation as the Assistant Administrator 
may identify and announce in the Federal Register that indicates the 
fish or fish product was not caught or harvested in a fishery subject to 
an import prohibition under paragraphs (h)(1) and (h)(9)(i) of this 
section.
    (iii) It is unlawful for any person, including exporters, 
transshippers, importers, processors, or wholesalers/distributors to 
possess, sell, purchase, offer for sale, re-export, transport, or ship 
in interstate or foreign commerce in the United States, any fish or fish 
product imported in violation of paragraph (h) of this section.
    (2) Exemptions. (i) Exempt fisheries are exempt from requirements of 
paragraphs (h)(6)(iii)(B) through (E) of this section.
    (A) For the purposes of paragraph (h) of this section, harvesting 
nation means the country under whose flag or jurisdiction one or more 
fishing vessels or other entity engaged in commercial fishing operations 
are documented, or which has by formal declaration or agreement asserted 
jurisdiction over one or more authorized or certified charter vessels, 
and from such vessel(s) or entity(ies) fish are caught or harvested that 
are a part of any cargo or shipment of fish or fish products to be 
imported into the United States, regardless of any intervening 
transshipments, exports or re-exports.
    (B) [Reserved]
    (ii) The prohibitions of paragraph (h)(1) of this section shall not 
apply during the exemption period.
    (iii) Paragraph (h) of this section shall not apply to a commercial 
fishing operation subject to section 101(a)(2)(B) of the MMPA and its 
implementing regulations set out in the relevant provisions of paragraph 
(f) of this section which govern the incidental take of delphinids in 
course of commercial purse seine fishing operations for yellowfin tuna 
in the eastern tropical Pacific Ocean and restrictions on importation 
and sale of fish and fish products caught or harvested in that 
commercial fishing operation. Paragraph (h) of this section shall not 
apply with respect to large-scale driftnet fishing, which is governed by 
paragraph (f)(7) of this section and the restrictions it sets out on 
importation and sale of fish and

[[Page 43]]

fish products harvested by using a large-scale driftnet.
    (3) Procedures to identify foreign commercial fishing operations 
with incidental mortality and serious injury of marine mammals as exempt 
or export fisheries. In developing the List of Foreign Fisheries in 
paragraph (h)(4) of this section, the Assistant Administrator:
    (i) Shall periodically analyze imports of fish and fish products and 
identify commercial fishing operations that are the source of exports of 
such fish and fish products to the United States that have or may have 
incidental mortality or serious injury of marine mammals in the course 
of their commercial fishing operations.
    (A) For the purposes of paragraph (h) of this section, a commercial 
fishing operation means vessels or entities that catch, take, or harvest 
fish (as defined in section 3 of the Magnuson-Stevens Fishery 
Conservation and Management Act (16 U.S.C. 1802)) from the marine 
environment (or other areas where marine mammals occur) that results in 
the sale or barter of all or part of the fish caught, taken or 
harvested. The term includes aquaculture activities that interact with 
or occur in marine mammal habitat.
    (B) [Reserved]
    (ii) Shall notify, in consultation with the Secretary of State, each 
harvesting nation that has commercial fishing operations identified 
pursuant to paragraph (h)(3)(i) of this section and request that within 
90 days of notification the harvesting nation submit reliable 
information about the commercial fishing operations identified, 
including as relevant the number of participants, number of vessels, 
gear type, target species, area of operation, fishing season, any 
information regarding the frequency of marine mammal incidental 
mortality and serious injury and any programs (including any relevant 
laws, decrees, regulations or measures) to assess marine mammal 
populations and to reduce incidental mortality and serious injury of 
marine mammals in those fisheries or prohibit the intentional killing or 
injury of marine mammals.
    (iii) Shall review each harvesting nation's submission, evaluate any 
information it contains (including descriptions of its regulatory 
programs) and, if necessary, request additional information.
    (iv) May consider other readily available and relevant information 
about such commercial fishing operations and the frequency of incidental 
mortality and serious injury of marine mammals, including: fishing 
vessel records; reports of on-board fishery observers; information from 
off-loading facilities, port-side officials, enforcement agents and 
officers, transshipment vessel workers and fish importers; government 
vessel registries; regional fisheries management organizations documents 
and statistical document programs; and appropriate certification 
programs. Other sources may include published literature and reports on 
fishing vessels with incidental mortality and serious injury of marine 
mammals from government agencies; foreign, state, and local governments; 
regional fishery management organizations; nongovernmental 
organizations; industry organizations; academic institutions; and 
citizens and citizen groups.
    (4) List of Foreign Fisheries. (i) Within one year of January 1, 
2017, and the year prior to the expiration of the exemption period and 
every four years thereafter, the Assistant Administrator, based on the 
information obtained in paragraph (h)(3) of this section, will publish 
in the Federal Register:
    (A) A proposed List of Foreign Fisheries by harvesting nation for 
notice and comment; and
    (B) A final List of Foreign Fisheries, effective upon publication in 
the Federal Register.
    (ii) To the extent that information is available, the List of 
Foreign Fisheries shall:
    (A) Classify each commercial fishing operation that is the source of 
exports of fish and fish products to the United States based on the 
definitions for export fishery and exempt fishery set forth in 
Sec. 216.3 and identified in the List of Foreign Fisheries by harvesting 
nation and other defining factors including geographic location of 
harvest, gear-type, target species or a combination thereof;

[[Page 44]]

    (B) Include fishing gear type, target species, and number of vessels 
or other entities engaged in each commercial fishing operation;
    (C) List the marine mammals that interact with each commercial 
fishing operation and indicate the level of incidental mortality and 
serious injury of marine mammals in each commercial fishing operation;
    (D) Provide a description of the harvesting nation's programs to 
assess marine mammal stocks and estimate and reduce marine mammal 
incidental mortality and serious injury in its export fisheries; and
    (E) List the harvesting nations that prohibit, in the course of 
commercial fishing operations that are the source of exports to the 
United States, the intentional mortality or serious injury of marine 
mammals unless the intentional mortality or serious injury of a marine 
mammal is imminently necessary in self-defense or to save the life of a 
person in immediate danger.
    (5) Consultations with Harvesting Nations with Commercial Fishing 
Operations on the List of Foreign Fisheries. (i) Within 90 days of 
publication of the final List of Foreign Fisheries in the Federal 
Register, the Assistant Administrator, in consultation with the 
Secretary of State, shall consult with harvesting nations with 
commercial fishing operations identified as export or exempt fisheries 
as defined in Sec. 216.3 for purposes of notifying the harvesting nation 
of the requirements of the Marine Mammal Protection Act and this 
subpart.
    (ii) The Assistant Administrator, in consultation with the Secretary 
of State, may consult with harvesting nations for the purposes of 
providing notifications of deadlines under this section, ascertaining or 
reviewing the progress of the harvesting nation's development, adoption, 
implementation, or enforcement of its regulatory program governing the 
incidental mortality and serious injury of marine mammals in the course 
of commercial fishing operations for an export fishery, supplementing or 
clarifying information needed in conjunction with the List of Foreign 
Fisheries in paragraphs (h)(3) and (4) of this section, the progress 
report in paragraph (h)(10) of this section or an application for or 
reconsideration of a comparability finding in paragraphs (h)(6) and (8) 
of this section.
    (iii) The Assistant Administrator shall, in consultation with the 
Secretary of State and the United States Trade Representative, consult 
with any harvesting nations that failed to receive a comparability 
finding for one or more of commercial fishing operations or for which a 
comparability finding is terminated and encourage the harvesting nation 
to take corrective action and reapply for a comparability finding in 
accordance with paragraph (h)(9)(iii) of this section.
    (6) Procedure and conditions for a comparability finding--(i) 
Procedures to apply for a comparability finding. On March 1st of the 
year when the exemption period or comparability finding is to expire, a 
harvesting nation shall submit to the Assistant Administrator an 
application for each of its export and exempt fisheries, along with 
documentary evidence demonstrating that the harvesting nation has met 
the conditions specified in paragraph (h)(6)(iii) of this section for 
each of such fishery, including reasonable proof as to the effects on 
marine mammals of the commercial fishing technology in use in the 
fishery for fish or fish products exported from such nation to the 
United States. The Assistant Administrator may request the submission of 
additional supporting documentation or other verification of statements 
made in an application for a comparability finding.
    (ii) Procedures to issue a comparability finding. No later than 
November 30th of the year when the exemption period or comparability 
finding is to expire, the Assistant Administrator, in response to an 
application from a harvesting nation for an export or exempt fishery, 
shall determine whether to issue to the harvesting nation, in accordance 
with the procedures set forth in paragraph (h)(8) of this section, a 
comparability finding for the fishery. In making this determination, the 
Assistant Administrator shall consider documentary evidence provided by 
the harvesting nation and relevant information readily available from 
other sources. If a harvesting nation provides insufficient

[[Page 45]]

documentary evidence in support of its application, the Assistant 
Administrator shall draw reasonable conclusions regarding the fishery 
based on readily available and relevant information from other sources, 
including where appropriate information concerning analogous fisheries 
that use the same or similar gear-type under similar conditions as the 
fishery, in determining whether to issue the harvesting nation a 
comparability finding for the fishery.
    (iii) Conditions for a comparability finding. The following are 
conditions for the Assistant Administrator to issue a comparability 
finding for the fishery, subject to the additional considerations set 
out in paragraph (h)(7) of this section:
    (A) For an exempt or export fishery, the harvesting nation:
    (1) Prohibits the intentional mortality or serious injury of marine 
mammals in the course of commercial fishing operations in the fishery 
unless the intentional mortality or serious injury of a marine mammal is 
imminently necessary in self-defense or to save the life of a person in 
immediate danger; or
    (2) Demonstrates that it has procedures to reliably certify that 
exports of fish and fish products to the United States are not the 
product of an intentional killing or serious injury of a marine mammal 
unless the intentional mortality or serious injury of a marine mammal is 
imminently necessary in self-defense or to save the life of a person in 
immediate danger; and
    (B) For an export fishery, the harvesting nation maintains a 
regulatory program with respect to the fishery that is comparable in 
effectiveness to the U.S. regulatory program with respect to incidental 
mortality and serious injury of marine mammals in the course of 
commercial fishing operations, in particular by maintaining a regulatory 
program that includes, or effectively achieves comparable results as, 
the conditions in paragraph (h)(6)(iii)(C), (D), or (E) of this section 
as applicable (including for transboundary stocks).
    (C) Conditions for an export fishery operating under the 
jurisdiction of a harvesting nation within its EEZ (or the equivalent) 
or territorial sea. In making the finding in paragraph (h)(6)(ii) of 
this section, with respect to an export fishery operating under the 
jurisdiction of a harvesting nation within its EEZ (or the equivalent) 
or territorial sea, the Assistant Administrator shall determine whether 
the harvesting nation maintains a regulatory program that provides for, 
or effectively achieves comparable results as, the following:
    (1) Marine mammal assessments that estimate population abundance for 
marine mammal stocks in waters under the harvesting nation's 
jurisdiction that are incidentally killed or seriously injured in the 
export fishery.
    (2) An export fishery register containing a list of all fishing 
vessels participating in the export fishery, including information on 
the number of vessels participating, the time or season and area of 
operation, gear type and target species.
    (3) Regulatory requirements that include:
    (i) A requirement for the owner or operator of a vessel 
participating in the export fishery to report all intentional and 
incidental mortality and injury of marine mammals in the course of 
commercial fishing operations; and
    (ii) A requirement to implement measures in the export fishery 
designed to reduce the total incidental mortality and serious injury of 
a marine mammal stock below the bycatch limit; and
    (iii) with respect to any transboundary stock or any other marine 
mammal stocks interacting with the export fishery, measures to reduce 
the incidental mortality and serious injury of that stock that the 
United States requires its domestic fisheries to take with respect to 
that transboundary stock or marine mammal stock.
    (4) Implementation of monitoring procedures in the export fishery 
designed to estimate incidental mortality or serious injury in the 
export fishery, and to estimate the cumulative incidental mortality and 
serious injury of marine mammal stocks in waters under its jurisdiction 
resulting from the export fishery and other export fisheries interacting 
with the

[[Page 46]]

same marine mammal stocks, including an indication of the statistical 
reliability of those estimates.
    (5) Calculation of bycatch limits for marine mammal stocks in waters 
under its jurisdiction that are incidentally killed or seriously injured 
in the export fishery.
    (6) Comparison of the incidental mortality and serious injury of 
each marine mammal stock or stocks that interact with the export fishery 
in relation to the bycatch limit for each stock; and comparison of the 
cumulative incidental mortality and serious injury of each marine mammal 
stock or stocks that interact with the export fishery and any other 
export fisheries of the harvesting nation showing that these export 
fisheries:
    (i) Do not exceed the bycatch limit for that stock or stocks; or
    (ii) Exceed the bycatch limit for that stock or stocks, but the 
portion of incidental marine mammal mortality or serious injury for 
which the export fishery is responsible is at a level that, if the other 
export fisheries interacting with the same marine mammal stock or stocks 
were at the same level, would not result in cumulative incidental 
mortality and serious injury in excess of the bycatch limit for that 
stock or stocks.
    (D) Conditions for a harvesting nation's export fishery operating 
within the jurisdiction of another state. In making the finding in 
paragraph (h)(6)(ii) of this section, with respect to a harvesting 
nation's export fishery operating within the jurisdiction of another 
state, the Assistant Administrator shall determine whether the 
harvesting nation maintains a regulatory program that provides for, or 
effectively achieves comparable results as, the following:
    (1) Implementation in the export fishery of:
    (i) With respect to any transboundary stock interacting with the 
export fishery, any measures to reduce the incidental mortality and 
serious injury of that stock that the United States requires its 
domestic fisheries to take with respect that transboundary stock; and
    (ii) With respect to any other marine mammal stocks interacting with 
the export fishery while operating within the jurisdiction of the state, 
any measures to reduce incidental mortality and serious injury that the 
United States requires its domestic fisheries to take with respect to 
that marine mammal stock; and
    (2) For an export fishery not subject to management by a regional 
fishery management organization:
    (i) An assessment of marine mammal abundance of stocks interacting 
with the export fishery, the calculation of a bycatch limit for each 
such stock, an estimation of incidental mortality and serious injury for 
each stock and reduction in or maintenance of the incidental mortality 
and serious injury of each stock below the bycatch limit. This data 
included in the application may be provided by the state or another 
source; and
    (ii) Comparison of the incidental mortality and serious injury of 
each marine mammal stock or stocks that interact with the export fishery 
in relation to the bycatch limit for each stock; and comparison of the 
cumulative incidental mortality and serious injury of each marine mammal 
stock or stocks that interact with the export fishery and any other 
export fisheries of the harvesting nation showing that these export 
fisheries do not exceed the bycatch limit for that stock or stocks; or 
exceed the bycatch limit for that stock or stocks, but the portion of 
incidental marine mammal mortality or serious injury for which the 
export fishery is responsible is at a level that, if the other export 
fisheries interacting with the same marine mammal stock or stocks were 
at the same level, would not result in cumulative incidental mortality 
and serious injury in excess of the bycatch limit for that stock or 
stocks; or
    (3) For an export fishery that is subject to management by a 
regional fishery management organization, implementation of marine 
mammal data collection and conservation and management measures 
applicable to that fishery required under any applicable 
intergovernmental agreement or regional fisheries management 
organization to which the United States is a party.
    (E) Conditions for a harvesting nation's export fishery operating on 
the high seas

[[Page 47]]

under the jurisdiction of the harvesting nation or another state. In 
making the finding in paragraph (h)(6)(ii) of this section, with respect 
to a harvesting nation's export fishery operating on the high seas under 
the jurisdiction of the harvesting nation or another state, the 
Assistant Administrator shall determine whether the harvesting nation 
maintains a regulatory program that provides for, or effectively 
achieves comparable results as, the U.S. regulatory program with respect 
to the following:
    (1) Implementation in the fishery of marine mammal data collection 
and conservation and management measures applicable to that fishery 
required under any applicable intergovernmental agreement or regional 
fisheries management organization to which the United States is a party; 
and
    (2) Implementation in the export fishery of:
    (i) With respect to any transboundary stock interacting with the 
export fishery, any measures to reduce the incidental mortality and 
serious injury of that stock that the United States requires its 
domestic fisheries to take with respect that transboundary stock; and
    (ii) With respect to any other marine mammal stocks interacting with 
the export fishery while operating on the high seas, any measures to 
reduce incidental mortality and serious injury that the United States 
requires its domestic fisheries to take with respect to that marine 
mammal stock when they are operating on the high seas.
    (7) Additional considerations for comparability finding 
determinations. When determining whether to issue any comparability 
finding for a harvesting nation's export fishery the Assistant 
Administrator shall also consider:
    (i) U.S. implementation of its regulatory program for similar marine 
mammal stocks and similar fisheries (e.g., considering gear or target 
species), including transboundary stocks governed by regulations 
implementing a take reduction plan (Sec. 229.2 of this chapter), and any 
other relevant information received during consultations;
    (ii) The extent to which the harvesting nation has successfully 
implemented measures in the export fishery to reduce the incidental 
mortality and serious injury of marine mammals caused by the harvesting 
nation's export fisheries to levels below the bycatch limit;
    (iii) Whether the measures adopted by the harvesting nation for its 
export fishery have reduced or will likely reduce the cumulative 
incidental mortality and serious injury of each marine mammal stock 
below the bycatch limit, and the progress of the regulatory program 
toward achieving its objectives;
    (iv) Other relevant facts and circumstances, which may include the 
history and nature of interactions with marine mammals in this export 
fishery, whether the level of incidental mortality and serious injury 
resulting from the fishery or fisheries exceeds the bycatch limit for a 
marine mammal stock, the population size and trend of the marine mammal 
stock, and the population level impacts of the incidental mortality or 
serious injury of marine mammals in a harvesting nation's export 
fisheries and the conservation status of those marine mammal stocks 
where available;
    (v) The record of consultations under paragraph (h)(5) of this 
section with the harvesting nation, results of these consultations, and 
actions taken by the harvesting nation and under any applicable 
intergovernmental agreement or regional fishery management organization 
to reduce the incidental mortality and serious injury of marine mammals 
in its export fisheries;
    (vi) Information gathered during onsite inspection by U.S. 
government officials of a fishery's operations;
    (vii) For export fisheries operating on the high seas under an 
applicable intergovernmental agreement or regional fishery management 
organization to which the United States is a party, the harvesting 
nation's record of implementation of or compliance with measures adopted 
by that regional fishery management organization or intergovernmental 
agreement for data collection, incidental mortality and serious injury 
mitigation or the conservation and management of marine mammals; whether 
the harvesting nation is a party or cooperating non-party to such

[[Page 48]]

intergovernmental agreement or regional fishery management organization; 
the record of United States implementation of such measures; and whether 
the United States has imposed additional measures on its fleet not 
required by an intergovernmental agreement or regional fishery 
management organization; or
    (viii) For export fisheries operating on the high seas under an 
applicable intergovernmental agreement or regional fisheries management 
organization to which the United States is not a party, the harvesting 
nation's implementation of and compliance with measures, adopted by that 
regional fisheries management organization or intergovernmental 
agreement, and any additional measures implemented by the harvesting 
nation for data collection, incidental mortality and serious injury 
mitigation or the conservation and management of marine mammals and the 
extent to which such measures are comparable in effectiveness to the 
U.S. regulatory program for similar fisheries.
    (8) Comparability finding determinations--(i) Publication. No later 
than November 30th of the year when the exemption period or 
comparability finding is to expire, the Assistant Administrator shall 
publish in the Federal Register, by harvesting nation, a notice of the 
harvesting nations and fisheries for which it has issued or denied a 
comparability finding and the specific fish and fish products that as a 
result are subject to import prohibitions under paragraphs (h)(1) and 
(9) of this section.
    (ii) Notification. Prior to publication in the Federal Register, the 
Assistant Administrator, in consultation with the Secretary of State 
and, in the event of a denial of a comparability finding, with the 
Office of the U.S. Trade Representative, shall notify each harvesting 
nation in writing of the fisheries of the harvesting nation for which 
the Assistant Administrator is:
    (A) Issuing a comparability finding;
    (B) Denying a comparability finding with an explanation for the 
reasons for the denial of such comparability finding; and
    (C) Specify the fish and fish products that will be subject to 
import prohibitions under paragraphs (h)(1) and (9) of this section on 
account of a denial of a comparability finding and the effective date of 
such import prohibitions.
    (iii) Preliminary comparability finding consultations. (A) Prior to 
denying a comparability finding under paragraph (h)(8)(ii) of this 
section or terminating a comparability finding under paragraph 
(h)(8)(vii) of this section, the Assistant Administrator shall:
    (1) Notify the harvesting nation that it is preliminarily denying or 
terminating its comparability finding and explain the reasons for that 
preliminary denial or termination;
    (2) Provide the harvesting nation a reasonable opportunity to submit 
reliable information to refute the preliminary denial or termination of 
the comparability finding and communicate any corrective actions it is 
taking to meet the applicable conditions for a comparability finding set 
out in paragraph (h)(6)(iii) of this section subject to the additional 
considerations set out in paragraph (h)(7) of this section.
    (B) The Assistant Administrator shall take into account any 
information it receives from the harvesting nation and issue a final 
comparability finding determination, notifying the harvesting nation 
pursuant to paragraph (h)(8)(ii) of this section of its determination 
and, if a denial or termination, an explanation of the reasons for the 
denial or termination of the comparability finding.
    (C) A preliminary denial or termination of a comparability finding 
shall not result in import prohibitions pursuant to paragraphs (h)(1) 
and (9) of this section.
    (iv) Duration of a comparability finding. Unless terminated in 
accordance with paragraph (h)(8)(vii) of this section or issued for a 
specific period pursuant to a re-application under paragraph (h)(9)(iii) 
of this section, a comparability finding shall remain valid for 4 years 
from publication or for such other period as the Assistant Administrator 
may specify.
    (v) Renewal of comparability finding. To seek renewal of a 
comparability finding, every 4 years or prior to the expiration of a 
comparability finding, the harvesting nation must submit to

[[Page 49]]

the Assistant Administrator the application and the documentary evidence 
required pursuant to paragraph (h)(6)(i) of this section, including, 
where applicable, reasonable proof as to the effects on marine mammals 
of the commercial fishing technology in use in the fishery for fish or 
fish products exported to the United States, by March 1 of the year when 
its current comparability finding is due to expire.
    (vi) Procedures for a comparability finding for new foreign 
commercial fishing operations wishing to export to the United States. 
(A) For foreign commercial fishing operations not on the List of Foreign 
Fisheries that are the source of new exports to the United States, the 
harvesting nation must notify the Assistant Administrator that the 
commercial fishing operation wishes to export fish and fish products to 
the United States.
    (B) Upon notification the Assistant Administrator shall issue a 
provisional comparability finding allowing such imports for a period not 
to exceed 12 months.
    (C) At least 120 days prior to the expiration of the provisional 
comparability finding the harvesting nation must submit to the Assistant 
Administrator the reliable information specified in paragraph (h)(3)(ii) 
of this section and the application and the applicable documentary 
evidence required pursuant to paragraph (h)(6)(i) of this section.
    (D) Prior to expiration of the provisional comparability finding, 
the Assistant Administrator shall review the application and information 
provided and classify the commercial fishing operation as either an 
exempt or export fishery in accordance with paragraphs (h)(3)(iii) 
through (iv) and (h)(4)(ii) of this section and determine whether to 
issue the harvesting nation a comparability finding for the fishery in 
accordance with paragraph (h)(6)(ii) through (iii) of this section.
    (E) If the harvesting nation submits the reliable information 
specified in paragraph (h)(3)(ii) of this section at least 180 days 
prior to expiration of the provisional comparability finding, the 
Assistant Administrator will review that information and classify the 
fishery as either an exempt or export fishery.
    (vii) Discretionary review of comparability findings. (A) The 
Assistant Administrator may reconsider a comparability finding that it 
has issued at any time based upon information obtained by the Assistant 
Administrator including any progress report received from a harvesting 
nation; or upon request with the submission of information from the 
harvesting nation, any nation, regional fishery management 
organizations, nongovernmental organizations, industry organizations, 
academic institutions, citizens or citizen groups that the harvesting 
nation's exempt or export fishery no longer meets the applicable 
conditions in paragraph (h)(6)(iii) of this section. Upon receiving a 
request, the Assistant Administrator has the discretion to determine 
whether to proceed with a review or reconsideration.
    (B) After such review or reconsideration and consultation with the 
harvesting nation, the Assistant Administrator shall, if the Assistant 
Administrator determines that the basis for the comparability finding no 
longer applies, terminate a comparability finding.
    (C) The Assistant Administrator shall notify in writing the 
harvesting nation and publish in the Federal Register a notice of the 
termination and the specific fish and fish products that as a result are 
subject to import prohibitions under paragraphs (h)(1) and (9) of this 
section.
    (9) Imposition of import prohibitions. (i) With respect to a 
harvesting nation for which the Assistant Administrator has denied or 
terminated a comparability finding for a fishery, the Assistant 
Administrator, in cooperation with the Secretaries of the Treasury and 
Homeland Security, shall identify and prohibit the importation of fish 
and fish products into the United States from the harvesting nation 
caught or harvested in that fishery. Any such import prohibition shall 
become effective 30 days after the of publication of the Federal 
Register notice referenced in paragraph (h)(8)(i) of this section and 
shall only apply to fish and fish products caught or harvested in that 
fishery.

[[Page 50]]

    (ii) Duration of import restrictions and removal of import 
restrictions. (A) Any import prohibition imposed pursuant to paragraphs 
(h)(1) and (9) of this section with respect to a fishery shall remain in 
effect until the Assistant Administrator issues a comparability finding 
for the fishery.
    (B) A harvesting nation with an export fishery with a comparability 
finding that expired, was denied or terminated may re-apply for a 
comparability finding at any time by submitting an application to the 
Assistant Administrator, along with documentary evidence demonstrating 
that the harvesting nation has met the conditions specified in paragraph 
(h)(6)(iii) of this section, including, as applicable, reasonable proof 
as to the effects on marine mammals of the commercial fishing technology 
in use in the fishery for the fish or fish products exported from such 
nation to the United States.
    (C) The Assistant Administrator shall make a determination whether 
to issue the harvesting nation that has re-applied for a comparability 
finding for the fishery within 90 days from the submission of complete 
information to the Assistant Administrator. The Assistant Administrator 
shall issue a comparability finding for the fishery for a specified 
period where the Assistant Administrator finds that the harvesting 
nation meets the applicable conditions in paragraph (h)(6)(iii) of this 
section, subject to the additional consideration for a comparability 
finding in paragraph (h)(7) of this section.
    (D) Upon issuance of a comparability finding to the harvesting 
nation with respect to the fishery and notification in writing to the 
harvesting nation, the Assistant Administrator, in cooperation with the 
Secretaries of Treasury and Homeland Security, shall publish in the 
Federal Register a notice of the comparability finding and the removal 
of the corresponding import prohibition effective on the date of 
publication in the Federal Register.
    (iii) Certification of admissibility. (A) If fish or fish products 
are subject to an import prohibition under paragraphs (h)(1) and (9) of 
this section, the Assistant Administrator, to avoid circumvention of the 
import prohibition, may require that the same or similar fish and fish 
products caught or harvested in another fishery of the harvesting nation 
and not subject to the prohibition be accompanied by a certification of 
admissibility by paper or electronic equivalent filed through the 
National Marine Fisheries Service message set required in the 
International Trade Data System. No certification of admissibility shall 
be required for a fish product for which it is infeasible to 
substantiate the attestation that the fish or fish products do not 
contain fish or fish products caught or harvested in a fishery subject 
to an import prohibition. The certification of admissibility may be in 
addition to any other applicable import documentation requirements.
    (B) The Assistant Administrator shall notify the harvesting nation 
of the fisheries and the fish and fish products to be accompanied by a 
certification of admissibility and provide the necessary documents and 
instruction.
    (C) The Assistant Administrator, in cooperation with the Secretaries 
of Treasury and Homeland Security, shall as part of the Federal Register 
notice referenced in paragraph (h)(8)(i) of this section, publish a list 
of fish and fish products, organized by harvesting nation, required to 
be accompanied by a certification of admissibility. Any requirement for 
a certification of admissibility shall be effective 30 days after the 
publication of such notice in the Federal Register.
    (D) For each shipment, the certification of admissibility must be 
properly completed and signed by a duly authorized official or agent of 
the harvesting nation and subject to validation by a responsible 
official(s) designated by the Assistant Administrator. The certification 
must also be signed by the importer of record and submitted in a format 
(electronic facsimile [fax], the Internet, etc.) specified by the 
Assistant Administrator.
    (iv) Intermediary nation. (A) For purposes of this paragraph (h)(9), 
and in applying the definition of an ``intermediary nation,'' an import 
into the intermediary nation occurs when the fish or fish product is 
released from a harvesting nation's customs jurisdiction and enters the 
customs jurisdiction of the intermediary nation or

[[Page 51]]

when the fish and fish products are entered into a foreign trade zone of 
the intermediary nation for processing or transshipment. For other 
purposes, ``import'' is defined in Sec. 216.3.
    (B) No fish or fish products caught or harvested in a fishery 
subject to an import prohibition under paragraphs (h)(1) and (9) of this 
section, may be imported into the United States from any intermediary 
nation.
    (C) Within 30 days of publication of the Federal Register notice 
described in paragraph (h)(8)(i) of this section specifying fish and 
fish products subject to import prohibitions under paragraphs (h)(1) and 
(9) of this section, the Assistant Administrator shall, based on readily 
available information, identify intermediary nations that may import, 
and re-export to the United States, fish and fish products from a 
fishery subject to an import prohibition under paragraphs (h)(1) and 
(h)(9)(i) of this section and notify such nations in writing that they 
are subject to action under paragraph (h)(9)(iv)(D) of this section with 
respect to the fish and fish products for which the Assistant Administer 
identified them.
    (D) Within 60 days from the date of notification, an intermediary 
nation notified pursuant to paragraph (h)(9)(iv)(C) of this section must 
certify to the Assistant Administrator that it:
    (1) Does not import, or does not offer for import into the United 
States, fish or fish products subject to an import prohibition under 
paragraphs (h)(1) and (h)(9)(i) of this section; or
    (2) Has procedures to reliably certify that exports of fish and fish 
products from the intermediary nation to the United States do not 
contain fish or fish products caught or harvested in a fishery subject 
to an import prohibition under paragraphs (h)(1) and (h)(9)(i) of this 
section.
    (E) The intermediary nation must provide documentary evidence to 
support its certification including information demonstrating that:
    (1) It has not imported in the preceding 6 months the fish and fish 
products for which it was notified under paragraph (h)(9)(iv)(C) of this 
section; or
    (2) It maintains a tracking, verification, or other scheme to 
reliably certify on either a global, individual shipment or other 
appropriate basis that fish and fish products from the intermediary 
nation offered for import to the United States do not contain fish or 
fish products caught or harvested in a fishery subject to an import 
prohibition under paragraphs (h)(1) and (h)(9)(i) of this section and 
for which it was notified under paragraph (h)(9)(iv)(C) of this section.
    (F) No later than 120 days after a notification pursuant to 
paragraph (h)(9)(iv)(C) of this section, the Assistant Administrator 
will review the documentary evidence provided by the intermediary nation 
under paragraphs (h)(9)(iv)(D) and (E) of this section and determine 
based on that information or other readily available information whether 
the intermediary nation imports, or offers to import into the United 
States, fish and fish products subject import prohibitions and, if so, 
whether the intermediary nation has procedures to reliably certify that 
exports of fish and fish products from the intermediary nation to the 
United States do not contain fish or fish products subject to import 
prohibitions under paragraphs (h)(1) and (9) of this section, and notify 
the intermediary nation of its determination.
    (G) If the Assistant Administrator determines that the intermediary 
nation does not have procedures to reliably certify that exports of fish 
and fish products from the intermediary nation to the United States do 
not contain fish or fish products caught or harvested in a fishery 
subject to an import prohibition under paragraphs (h)(1) and (h)(9)(i) 
of this section, the Assistant Administrator, in cooperation with the 
Secretaries of the Treasury and Homeland Security, will file with the 
Office of the Federal Register a notice announcing the fish and fish 
products exported from the intermediary nation to the United States that 
are of the same species as, or similar to, fish or fish products subject 
to an import prohibition under paragraphs (h)(1) and (h)(9)(i) of this 
section that may not be imported into the United States as a result of 
the determination. A prohibition under this

[[Page 52]]

paragraph shall not apply to any fish or fish product for which the 
intermediary nation was not identified under paragraph (h)(9)(iv)(C) of 
this section.
    (H) The Assistant Administrator will review determinations 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. 
Based upon such information and other relevant information, the 
Assistant Administrator may determine that the intermediary nation 
should no longer be subject to an import prohibition under paragraph 
(h)(9)(iv)(G) of this section. If the Assistant Administrator makes such 
a determination, the Assistant Administrator, in cooperation with the 
Secretaries of the Treasury and Homeland Security, shall lift the import 
prohibition under this paragraph and publish notification of such action 
in the Federal Register.
    (10) Progress report for harvesting nations with export fisheries. 
(i) A harvesting nation shall submit, with respect to an exempt or 
export fishery, a progress report to the Assistant Administrator 
documenting actions taken to:
    (A) Develop, adopt and implement its regulatory program; and
    (B) Meet the conditions in paragraph (h)(6)(iii) of this section, 
including with respect to reducing or maintaining incidental mortality 
and serious injury of marine mammals below the bycatch limit for its 
fisheries.
    (ii) The progress report should include the methods the harvesting 
nation is using to obtain information in support of a comparability 
finding and a certification by the harvesting nation of the accuracy and 
authenticity of the information contained in the progress report.
    (iii) The first progress report will be due two years prior to the 
end of exemption period and every four years thereafter on or before 
July 31.
    (iv) The Assistant Administrator may review the progress report to 
monitor progress made by a harvesting nation in developing its 
regulatory program or to reconsider a comparability finding in 
accordance with paragraph (h)(8)(vi) of this section.
    (11) International cooperation and assistance. Consistent with the 
authority granted under Marine Mammal Protection Act at 16 U.S.C. 1378 
and the availability of funds, the Assistant Administrator may:
    (i) Provide appropriate assistance to harvesting nations identified 
by the Assistant Administrator under paragraph (h)(5) of this section 
with respect to the financial or technical means to develop and 
implement the requirements of this section;
    (ii) Undertake, where appropriate, cooperative research on marine 
mammal assessments for abundance, methods to estimate incidental 
mortality and serious injury and technologies and techniques to reduce 
marine mammal incidental mortality and serious injury in export 
fisheries;
    (iii) Encourage and facilitate, as appropriate, the voluntary 
transfer of appropriate technology on mutually agreed terms to assist 
harvesting nations in qualifying for a comparability finding under 
paragraph (h)(6) of this section; and
    (iv) Initiate, through the Secretary of State, negotiations for the 
development of bilateral or multinational agreements with harvesting 
nations to conserve marine mammals and reduce the incidental mortality 
and serious injury of marine mammals in the course of commercial fishing 
operations.
    (12) Consistency with international obligations. The Assistant 
Administrator shall ensure, in consultation with the Department of State 
and the Office of the United States Trade Representative that any action 
taken under this section, including any action to deny a comparability 
finding or to prohibit imports, is consistent with the international 
obligations of the United States, including under the World Trade 
Organization Agreement.

[69 FR 55297, Sept. 13, 2004, as amended at 70 FR 19008, Apr. 12, 2005; 
74 FR 1613, Jan. 13, 2009; 81 FR 36184, June 6, 2016; 81 FR 51132, Aug. 
3, 2016; 81 FR 54413, Aug. 15, 2016]

[[Page 53]]



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 in Sec. 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 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 with Sec. 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 at Sec. 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

[[Page 54]]

    (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.
    (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,

[[Page 55]]

holds an applicable permit, or an application for such a special 
exception permit under Sec. 216.33 or a request for a major amendment 
under Sec. 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 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 under 
Sec. 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

[[Page 56]]

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.
    (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 
in Sec. 216.35 and Sec. 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.

[[Page 57]]

    (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. 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 at Sec. 216.34;
    (ii) All purpose-specific issuance criteria as appropriate set forth 
at Sec. 216.41, Sec. 216.42, and Sec. 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.

[[Page 58]]

    (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 at Sec. 216.35 and any purpose-specific restrictions as 
appropriate set forth at Sec. 216.41, Sec. 216.42, and Sec. 216.43;
    (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 in Sec. 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;

[[Page 59]]

    (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 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;

[[Page 60]]

    (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
    (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 under Sec. 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 under Sec. 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

[[Page 61]]

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 at Sec. 216.34, and, 
as appropriate, Sec. 216.41, Sec. 216.42, and Sec. 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 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 Secs. 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.

[[Page 62]]

    (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 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

[[Page 63]]

    (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 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 in 
Sec. 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 in Sec. 216.3, for purposes of bona fide 
scientific research Provided, That:
    (i) They submit a letter of intent in accordance with the 
requirements of

[[Page 64]]

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 at Sec. 222.23 through Sec. 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 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 in 
Sec. 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

[[Page 65]]

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 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 
in Sec. 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

[[Page 66]]

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.
    (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

[[Page 67]]

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 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

[[Page 68]]

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 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]



Secs. 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 subsistence fur seal harvests.

    (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.

[[Page 69]]

    (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.
    (c)[Reserved]
    (d) St. George Island. The subsistence fur seal harvest restrictions 
described in paragraphs (d)(1) through (d)(5) of this section apply 
exclusively to the harvest of sub-adult fur seals; restrictions that 
apply exclusively to the harvest of young of the year fur seals can be 
found in paragraphs (d)(6) through (d)(11) of this section.
    (1) Pribilovians may only harvest sub-adult male fur seals 124.5 
centimeters or less in length from June 23 through August 8 annually on 
St. George Island up to the lower end of the harvest range established 
in paragraph (b) of this section. When the lower end of the range has 
been reached paragraphs (f)(1)(iii) and (f)(3) of this section apply.
    (2) Pribilovians may harvest sub-adult male fur seals at the hauling 
grounds shown in Figure 1 to part 216. No hauling ground may be 
harvested more than twice per week.
    (3) Seals with tags and/or entangling debris may only be taken if so 
directed by NMFS scientists.
    (4) The scheduling of the sub-adult male 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. 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 sub-adult male fur seals to killing 
fields, unless the NMFS representatives determine, 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.
    (5) Any taking of adult fur seals or young of the year, or the 
intentional taking of sub-adult female fur seals is prohibited.
    (6) Pribilovians may only harvest male young of the year from 
September 16 through November 30 annually on St. George Island. 
Pribilovians may harvest up to 150 male fur seal young of the year 
annually up to the lower end of the harvest range established for St. 
George in the notice published pursuant to paragraph (b) of this 
section. When the lower end of the harvest range has been reached 
paragraphs (f)(1)(iii) and (f)(3) of this section apply.
    (7) No more than 50 male young of the year may be harvested from 
each of the following regions where fur seals congregate: East region 
includes the breeding areas known as East Reef and East Cliffs rookeries 
and the associated non-breeding hauling grounds; South region includes 
the breeding areas known as Zapadni and South rookeries and the 
associated non-breeding hauling grounds; and North region includes the 
breeding areas known as North and Staraya Artil rookeries and associated 
non-breeding hauling grounds, as shown in Figure 1 to part 216. No area 
may be harvested more than twice per week and must be in accordance with 
paragraph (d)(10) of this section.
    (8) The scheduling of the young of the year harvest is at the 
discretion of the Pribilovians, but must be such as to minimize stress 
to the harvested and un-harvested fur seals and minimize the take of 
female fur seals. The Pribilovians must give adequate advance notice of 
their harvest schedules to the NMFS representatives to allow for 
necessary monitoring activities. No fur seal may be taken except by 
sealers

[[Page 70]]

using the harvesting methods implemented to reduce disturbance, injury, 
and accidental mortality of female fur seals. Pribilovians may use, but 
are not limited to, organized drives of young of the year fur seals from 
congregating areas to inland killing fields. Methods of harvest must 
include identification of male young of the year, followed by stunning 
and immediate exsanguination, unless the NMFS representatives, in 
consultation with the Pribilovians conducting the harvest, determine 
that alternative methods will not result in increased stress to 
harvested and un-harvested fur seals, increased disturbance or injury to 
resting fur seals, or the accidental mortality of female seals.
    (9) Any harvest of sub adult or adult fur seals or intentional 
harvest of young of the year female fur seals is prohibited.
    (10) No young of the year fur seals may be taken from any designated 
breeding area or its associated hauling ground(s) where the most recent 
NMFS analysis projects that pup production has greater than a 5 percent 
probability of falling below a level capable of sustaining a harvest in 
10 years.
    (11) No more than 120 days after the final subsistence harvest each 
calendar year, NMFS representatives and St. George Island community 
members must review the implementation of the harvest and consider best 
harvest practices and determine if implementation can be improved to 
better meet the subsistence needs of the St. George Island community or 
reduce negative effects on fur seals.
    (e) 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.
    (1) The scheduling of the harvest is at the discretion of the 
Pribilovians, but must be such as to minimize stress to the harvested 
fur seals. The Pribilovians must give adequate advance notice of their 
harvest schedules to the NMFS representatives to allow for necessary 
monitoring activities.
    (2) No fur seal may be taken on the Pribilof Islands before June 23 
of each year.
    (3) 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.
    (4) Any taking of adult fur seals or pups, or the intentional taking 
of subadult female fur seals is prohibited.
    (5) Only subadult male fur seals 124.5 centimeters or less in length 
may be taken.
    (6) Seals with tags and/or entangling debris may only be taken if so 
directed by NMFS scientists.
    (f) Harvest suspension provisions. (1) The Assistant Administrator 
is required to suspend the take provided for in Secs. 216.71 and 216.72 
when:
    (i) (S)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) (S)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; or
    (iv) With regard to St. George Island, two female fur seals have 
been killed on St. George Island.
    (2) A suspension based on a determination under paragraph (f)(1)(ii) 
of this section may be lifted by the Assistant Administrator if (s)he 
finds that the conditions that 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 (f)(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 (f)(1)(i) of this section is warranted. If the harvest 
is not suspended under paragraph (f)(1)(i) of this section, the 
Assistant

[[Page 71]]

Administrator must provide a revised estimate of the number of seals 
required to satisfy the Pribilovians' subsistence needs.
    (4) A suspension based on a determination under paragraph (f)(1)(iv) 
of this section may be lifted by the Assistant Administrator if (s)he 
finds that the conditions that led to the killing of two female fur 
seals have been remedied and additional or improved methods to detect 
female fur seals in the harvest are being implemented.
    (g) Harvest termination provisions. (1) The Assistant Administrator 
shall terminate the annual take provided for in Sec. 216.71 on August 8 
for sub-adult males on St. Paul and St. George Islands and on November 
30 for male young of the year on St. George Island.
    (2) The Assistant Administrator shall terminate the take provided 
for in Sec. 216.71 when (s)he determines under paragraph (f)(1)(i) or 
(f)(1)(iii) of this section that the subsistence needs of the 
Pribilovians on the island have been satisfied or the upper end of the 
harvest range has been reached, whichever occurs first.
    (3) The Assistant Administrator shall terminate the take on St. 
George Island provided for in Sec. 216.71 if a total of three female fur 
seals are killed during the season on St. George Island.

[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, as 
amended at 79 FR 65337, Nov. 4, 2014]



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 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 between fur seal harvesters, tribal and
Federal Officials.

    (a) St. George Island. Federal scientists and Pribilovians 
cooperatively manage the subsistence harvest of northern fur seals under 
section 119 of the Marine Mammal Protection Act (16 U.S.C. 1388). The 
Federally recognized tribes on the Pribilof Islands have signed 
agreements describing a shared interest in the conservation and 
management of fur seals and the designation of co-management councils 
that meet and address the purposes of the co-management agreements for 
representatives from NMFS, St. George and St. Paul tribal governments. 
NMFS representatives are responsible for compiling information related 
to sources of human-caused mortality and serious injury of marine 
mammals. The Pribilovians are responsible for reporting their 
subsistence needs and actual level of subsistence take. This information 
is used to update stock assessment reports and make determinations under 
Sec. 216.72. Pribilovians who take fur seals for subsistence uses 
collaborate with NMFS representatives and the respective tribal 
representatives to consider best harvest practices under co-management 
and to facilitate scientific research.
    (b) St. Paul Island. The 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:
    (1) The number of seals taken each day in the subsistence harvest,
    (2) The extent of the utilization of fur seals taken, and

[[Page 72]]

    (3) Other information determined by the Assistant Administrator to 
be necessary for determining the subsistence needs of the Pribilovians 
or for making determinations under Sec. 215.32(e) of this chapter.

[79 FR 65338, Nov. 4, 2014]



                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
    (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]

[[Page 73]]



                  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 in Sec. 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, wholesaler/
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 under 
Secs. 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) Driftnet. By a vessel engaged in large-scale driftnet fishing; 
or
    (3) Other fisheries. By a vessel in a fishery other than one 
described in paragraph (a)(1) or (2) of this section unless such product 
is accompanied as described in Sec. 216.93(d), (e), or (f), as 
appropriate, by:
    (i) For tuna caught in a purse seine fishery outside the ETP by a 
vessel on a fishing trip that began before July 13, 2013, 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.
    (ii) For tuna caught by a vessel on a fishing trip that began on or 
after July 13, 2013, and before May 21, 2016, a written statement 
executed by the Captain of the vessel certifying:
    (A) For a purse seine vessel outside the ETP, 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;
    (B) For a vessel other than one described in paragraph (a)(3)(ii)(A) 
of this section, that no dolphins were killed or seriously injured in 
the sets or other gear deployments in which the tuna were caught.
    (iii) For tuna caught by a vessel on a fishing trip that began on or 
after May 21, 2016, a written statement executed by the Captain of the 
vessel certifying that:
    (A) No purse seine net or other fishing gear 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 or other gear deployments in which the 
tuna were caught; and
    (B) The Captain of the vessel has completed the NMFS Tuna Tracking 
and Verification Program dolphin-safe captain's training course. The 
NMFS Tuna Tracking and Verification Program dolphin-safe captain's 
training course is available on the Web site of the NMFS Tuna Tracking 
and Verification Program at http://www.nmfs.noaa.gov/pr/dolphinsafe.
    (iv) For tuna caught in a fishery where the Assistant Administrator 
has

[[Page 74]]

determined that observers participating in a national or international 
observer program are qualified and authorized to issue observer 
statements for purposes of the dolphin-safe labeling program, 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. Any determination by the Assistant Administrator shall be 
announced in a notice published in the Federal Register. Determinations 
under this paragraph (a)(3)(iv) will also be publicized on the Web site 
of the NMFS Tuna Tracking and Verification Program (http://
www.nnmfs.noaa.gov/pr/dolphinsafe). The written statement shall certify:
    (A) That no dolphins were killed or seriously injured in the sets or 
other gear deployments in which the tuna were caught; and,
    (B) In purse seine fisheries, that no purse seine net was 
intentionally deployed on or used to encircle dolphins during the trip 
on which the tuna were caught.
    (v) For tuna caught in a fishery in which the Assistant 
Administrator has determined that either a regular and significant 
association between dolphins and tuna (similar to the association 
between dolphins and tuna in the ETP) or a regular and significant 
mortality or serious injury of dolphins is occurring, 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, unless the Assistant Administrator determines 
an observer statement is unnecessary. Determinations under this 
paragraph (a)(3)(v) will also be publicized on the Web site of the NMFS 
Tuna Tracking and Verification Program (http://www.nmfs.noaa.gov/pr/
dolphinsafe). The written statement shall certify that:
    (A) No fishing gear was intentionally deployed on or used to 
encircle dolphins during the trip on which the tuna were caught;
    (B) No dolphins were killed or seriously injured in the sets or 
other gear deployments in which the tuna were caught; and
    (C) Any relevant requirements of paragraph (a)(4) of this section 
were complied with during the trip on which the tuna were caught.
    (4) Other fisheries--segregation. In a fishery other than one 
described in paragraph (a)(1) or (2) of this section on a fishing trip 
that began on or after July 13, 2013 unless the tuna caught in sets or 
gear deployments designated as dolphin-safe was stored physically 
separate from tuna caught in a non-dolphin-safe set or other gear 
deployment by the use of netting, other material, or separate storage 
areas from the time of capture through unloading. If tuna caught in a 
set or other gear deployment where a dolphin was killed or seriously 
injured is not stored physically separate from dolphin-safe tuna as 
stated in Sec. 216.93(c)(2)(i) or (c)(3)(i), as applicable, all tuna 
inside the storage well or other storage location shall be considered 
non-dolphin-safe.
    (5) Other fisheries--chain of custody recordkeeping. By a vessel in 
a fishery other than one described in paragraph (a)(1) or (2) of this 
section unless:
    (i) For tuna designated dolphin-safe that was harvested on a fishing 
trip that began on or after May 21, 2016, in addition to any other 
applicable requirements:
    (A) The importer of record or U.S. processor of tuna or tuna 
products, as applicable, maintains information on the complete chain of 
custody, including storage facilities, transshippers, processors, re-
processors, and wholesalers/distributors to enable dolphin-safe tuna to 
be distinguished from non-dolphin-safe tuna from the time it is caught 
to the time it is ready for retail sale;
    (B) The importer of record or the U.S. processor, as appropriate, 
ensures that information is readily available to NMFS upon request to 
allow it to trace any non-dolphin-safe tuna loaded onto the vessel back 
to one or more storage wells or other storage locations for a particular 
fishing trip and to show that such non-dolphin-safe tuna was kept 
physically separate from dolphin-safe tuna through unloading.
    (ii) For tuna designated dolphin-safe that was harvested in a 
fishery about

[[Page 75]]

which the Assistant Administrator made a determination under paragraph 
(a)(3)(v) of this section, and harvested on a fishing trip that begins 
on or after 60 days after the date of the Federal Register notice of 
that determination, the tuna or tuna products are accompanied by valid 
documentation signed by a representative of the vessel flag nation or 
the processing nation (if processed in another nation) certifying that:
    (A) The catch documentation is correct;
    (B) The tuna or tuna products meet the dolphin-safe labeling 
standards under this section; and
    (C) The chain of custody information is correct.
    (iii) The information referred to in paragraphs (a)(5)(i) and (ii) 
of this section is maintained at the place of business of the importer 
of record or the U.S. processor, as applicable, for a period of 2 years 
from the date of the import or receipt, and be made available to NMFS 
for inspection upon request.
    (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 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 
in Sec. 216.95, may not be labeled with any other label or mark that 
refers to dolphins, porpoises, or marine mammals.

[81 FR 15448, Mar. 23, 2016, as amended at 81 FR 15449, Mar. 23, 2016]



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 of Sec. 216.93; and
    (3) The tuna or tuna products meet the dolphin-safe labeling 
standards under Sec. 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 under Sec. 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 in 
Sec. 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

[[Page 76]]

    (B) The tuna contained in the shipment were caught according to the 
dolphin-safe labeling standards of Sec. 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 Secs. 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 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

[[Page 77]]

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.
    (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 under Sec. 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 under Sec. 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 under Sec. 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

[[Page 78]]

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 under Sec. 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 
under Sec. 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 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 in Sec. 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 by 
Sec. 216.24(f)(2). For tuna tracking purposes, copies of FCOs and 
associated certifications and statements must be submitted by the 
importer of record to U.S. Customs and Border Protection as described in 
and required by Sec. 216.24(f)(2).
    (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. At the time of, or in advance of, importation 
of a shipment of tuna or tuna products, any importer of tuna or tuna 
products must submit all corresponding FCOs and required certifications 
and statements for those tuna or tuna products as required by 
Sec. 216.24(f)(2).
    (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, as amended at 81 FR 51133, Aug. 3, 2016]

[[Page 79]]



Sec. 216.94  False statements or endorsements.

    Any person who knowingly and willfully makes a false statement or 
false endorsement required by Sec. 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 Secs. 216.91 through 216.94:
[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

[[Page 80]]

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 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 under Sec. 216.106, or 
requirements and conditions contained within an incidental harassment 
authorization issued under Sec. 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 in Sec. 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 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 in Sec. 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

[[Page 81]]

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;
    (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

[[Page 82]]

    (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.
    (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 in Sec. 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.

[[Page 83]]



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 under Sec. 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.
    (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 under 
Sec. 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

[[Page 84]]

    (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 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

[[Page 85]]

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 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.

Subparts J-X [Reserved]



Sec. Figure 1 to Part 216--Northern Fur Seal Breeding Areas (Rookeries) 
            and Hauling Grounds on St. George Island, Alaska
[GRAPHIC] [TIFF OMITTED] TR04NO14.000


[79 FR 65338, Nov. 4, 2014]

[[Page 86]]



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



  Subpart A_Taking Marine Mammals Incidental to Russian River Estuary 
                          Management Activities

Sec.
217.1  Specified activity and specified geographical region.
217.2  Effective dates.
217.3  Permissible methods of taking.
217.4  Prohibitions.
217.5  Mitigation requirements.
217.6  Requirements for monitoring and reporting.
217.7  Letters of Authorization.
217.8  Renewals and modifications of Letters of Authorization.
217.9-217.10  [Reserved]

 Subpart B_Taking of Marine Mammals Incidental to Commercial Fireworks 
                                Displays

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

Subparts C-E [Reserved]

  Subpart F_Taking of Marine Mammals Incidental to Target and Missile 
              Launch Activities From San Nicolas Island, CA

217.50  Specified activity and specified geographical region.
217.51  Effective dates.
217.52  Permissible methods of taking.
217.53  Prohibitions.
217.54  Mitigation.
217.55  Requirements for monitoring and reporting.
217.56  Applications for Letters of Authorization.
217.57  Letters of Authorization.
217.58  Renewal and modifications of Letters of Authorization.

    Subpart G_Taking of Marine Mammals Incidental to U.S. Air Force 
  Launches, Aircraft and Helicopter Operations, and Harbor Activities 
   Related to Launch Vehicles From Vandenberg Air Force Base (VAFB), 
                               California

217.60  Specified activity and specified geographical region.
217.61  Effective dates.
217.62  Permissible methods of taking.
217.63  Prohibitions.
217.64  Mitigation.
217.65  Requirements for monitoring and reporting.
217.66  Letters of Authorization.
217.67  Renewals and modifications of Letters of Authorization.

   Subpart H_Taking of Marine Mammals Incidental to Space Vehicle and 
                            Missile Launches

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  Letters of Authorization.
217.77  Renewals and modifications of Letters of Authorization.
217.78-217.79  [Reserved]

    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.

[[Page 87]]

Subparts J-K [Reserved]

   Subpart L_Taking Marine Mammals Incidental to Conducting Precision 
Strike Weapon and Air-to-Surface Gunnery Missions at Eglin Gulf Test and 
              Training Range (EGTTR) in the Gulf of Mexico

217.110  Specified activity and specified geographical region.
217.111  Effective dates.
217.112  Permissible methods of taking.
217.113  Prohibitions.
217.114  Mitigation.
217.115  Requirements for monitoring and reporting.
217.116  Applications for Letters of Authorization.
217.117  Letters of Authorization.
217.118  Renewals and Modifications of Letters of Authorization.

Subpart M [Reserved]

 Subpart N_Taking Marine Mammals Incidental to Seismic Surveys in Cook 
                              Inlet, Alaska

217.130  Specified activity and specified geographical region.
217.131  Effective dates.
217.132  Permissible methods of taking.
217.133  Prohibitions.
217.134  Mitigation requirements.
217.135  Requirements for monitoring and reporting.
217.136  Letters of Authorization.
217.137  Renewals and modifications of Letters of Authorization and 
          Adaptive Management.

 Subpart O_Taking of Marine Mammals Incidental to Operation of Offshore 
             Oil and Gas Facilities in the U.S. Beaufort Sea

217.140  Specified activity and specified geographical region.
217.141  Effective dates.
217.142  Permissible methods of taking.
217.143  Prohibitions.
217.144  Mitigation.
217.145  Measures to ensure availability of species for subsistence 
          uses.
217.146  Requirements for monitoring and reporting.
217.147  Applications for Letters of Authorization.
217.148  Letters of Authorization.
217.149  Renewal of Letters of Authorization and adaptive management.
217.150  Modifications of Letters of Authorization.

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.

Subparts Q-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.

   Subpart W_Taking and Importing Marine Mammals; Elliott Bay Seawall 
                                 Project

217.220  Specified activity and specified geographical region.
217.221  Effective dates and definitions.
217.222  Permissible methods of taking.
217.223  Prohibitions.
217.224  Mitigation.
217.225  Requirements for monitoring and reporting.
217.226  Letters of Authorization.
217.227  Renewals and Modifications of Letters of Authorization.

  Subpart X_Taking Marine Mammals Incidental to Rehabilitation of the 
Jetty System at the Mouth of the Columbia River in Oregon and Washington

217.230  Specified activity and specified geographical region.
217.231  Effective dates.
217.232  Permissible methods of taking.
217.233  Prohibitions.
217.234  Mitigation requirements.

[[Page 88]]

217.235  Requirements for monitoring and reporting.
217.236  Letters of Authorization.
217.237  Renewals and modifications of Letters of Authorization.

Subpart Y [Reserved]

     Subpart Z_Taking Marine Mammals Incidental to Navy Waterfront 
        Construction Activities at Naval Submarine Base Kings Bay

217.250  Specified activity and specified geographical region.
217.251  Effective dates.
217.252  Permissible methods of taking.
217.253  Prohibitions.
217.254  Mitigation requirements.
217.255  Requirements for monitoring and reporting.
217.256  Letters of Authorization.
217.257  Renewals and modifications of Letters of Authorization.
217.258-217.259  [Reserved]

Subpart AA-XXX [Reserved]

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

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



  Subpart A_Taking Marine Mammals Incidental to Russian River Estuary 
                          Management Activities

    Source: 82 FR 13774, Mar.15, 2017, unless otherwise noted.

    Effective Date Note: At 82 FR 13774, Mar.15, 2017, subpart A was 
added, effective Apr. 21, 2017, through Apr. 20, 2022. At 82 FR 27442, 
June 15, 2017, the expiration date was extended to July 3, 2022.



Sec. 217.1  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the Sonoma County 
Water Agency (SCWA) and those persons it authorizes or funds to conduct 
activities on its behalf for the taking of marine mammals that occurs in 
the area outlined in paragraph (b) of this section and that occurs 
incidental to estuary management activities.
    (b) The taking of marine mammals by SCWA may be authorized in a 
Letter of Authorization (LOA) only if it occurs at Goat Rock State Beach 
or in the Russian River estuary in California.



Sec. 217.2  Effective dates.

    Regulations in this subpart are effective from April 21, 2017, 
through April 20, 2022.



Sec. 217.3  Permissible methods of taking.

    Under LOAs issued pursuant to Secs. 216.106 and 217.7 of this 
chapter, the Holder of the LOA (hereinafter ``SCWA'') may incidentally, 
but not intentionally, take marine mammals within the area described in 
Sec. 217.1(b) by Level B harassment associated with estuary management 
activities, provided the activity is in compliance with all terms, 
conditions, and requirements of the regulations in this subpart and the 
appropriate LOA.



Sec. 217.4  Prohibitions.

    Notwithstanding takings contemplated in Sec. 217.1 and authorized by 
an LOA issued under Secs. 216.106 and 217.7 of this chapter, no person 
in connection with the activities described in Sec. 217.1 may:
    (a) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or an LOA issued under Secs. 216.106 and 
217.7 of this chapter;
    (b) Take any marine mammal not specified in such LOAs;
    (c) Take any marine mammal specified in such LOAs in any manner 
other than as specified;
    (d) Take a marine mammal specified in such LOAs if NMFS determines 
such taking results in more than a negligible impact on the species or 
stocks of such marine mammal; or
    (e) Take a marine mammal specified in such LOAs if NMFS determines 
such taking results in an unmitigable adverse impact on the species or 
stock of such marine mammal for taking for subsistence uses.



Sec. 217.5  Mitigation requirements.

    When conducting the activities identified in Sec. 217.1(a) of this 
chapter, the mitigation measures contained in any LOA issued under 
Secs. 216.106 and 217.7 of this chapter must be implemented. These 
mitigation measures shall include but are not limited to:

[[Page 89]]

    (a) General conditions. (1) A copy of any issued LOA must be in the 
possession of SCWA, its designees, and work crew personnel operating 
under the authority of the issued LOA; and
    (2) If SCWA observes a pup that may be abandoned, it shall contact 
the National Marine Fisheries Service (NMFS) West Coast Regional 
Stranding Coordinator immediately and also report the incident to NMFS 
Office of Protected Resources within 48 hours. Observers shall not 
approach or move the pup.
    (b) SCWA crews shall cautiously approach the haul-out ahead of heavy 
equipment.
    (c) SCWA staff shall avoid walking or driving equipment through the 
seal haul-out.
    (d) Crews on foot shall make an effort to be seen by seals from a 
distance.
    (e) During breaching events, all monitoring shall be conducted from 
the overlook on the bluff along Highway 1 adjacent to the haul-out.
    (f) A water level management event may not occur for more than two 
consecutive days unless flooding threats cannot be controlled.
    (g) All work shall be completed as efficiently as possible and with 
the smallest amount of heavy equipment possible.
    (h) Boats operating near river haul-outs during monitoring shall be 
kept within posted speed limits and driven as far from the haul-outs as 
safely possible.
    (i) SCWA shall implement the following mitigation measures during 
pupping season (March 15-June 30):
    (1) SCWA shall maintain a one week no-work period between water 
level management events (unless flooding is an immediate threat) to 
allow for an adequate disturbance recovery period. During the no-work 
period, equipment must be removed from the beach.
    (2) If a pup less than one week old is on the beach where heavy 
machinery will be used or on the path used to access the work location, 
the management action shall be delayed until the pup has left the site 
or the latest day possible to prevent flooding while still maintaining 
suitable fish rearing habitat. In the event that a pup remains present 
on the beach in the presence of flood risk, SCWA shall consult with NMFS 
and the California Department of Fish and Wildlife to determine the 
appropriate course of action. SCWA shall coordinate with the locally 
established seal monitoring program (Stewards of the Coast and Redwoods) 
to determine if pups less than one week old are on the beach prior to a 
breaching event.
    (3) Physical and biological monitoring shall not be conducted if a 
pup less than one week old is present at the monitoring site or on a 
path to the site.



Sec. 217.6  Requirements for monitoring and reporting.

    (a) Monitoring and reporting shall be conducted in accordance with 
the approved Pinniped Monitoring Plan.
    (b) Baseline monitoring shall be conducted each week, with two 
events per month occurring in the morning and two per month in the 
afternoon. These censuses shall continue for four hours, weather 
permitting; the census days shall be chosen to ensure that monitoring 
encompasses a low and high tide each in the morning and afternoon. All 
seals hauled out on the beach shall be counted every 30 minutes from the 
overlook on the bluff along Highway 1 adjacent to the haul-out using 
high-powered spotting scopes. Observers shall indicate where groups of 
seals are hauled out on the sandbar and provide a total count for each 
group. If possible, adults and pups shall be counted separately.
    (c) Peripheral coastal haul-outs shall be visited concurrently with 
baseline monitoring in the event that a lagoon outlet channel is 
implemented and maintained for a prolonged period of over 21 days.
    (d) During estuary management events, monitoring shall occur on all 
days that activity is occurring using the same protocols as described 
for baseline monitoring, with the difference that monitoring shall begin 
at least one hour prior to the crew and equipment accessing the beach 
work area and continue through the duration of the event, until at least 
one hour after the crew and equipment leave the beach. In addition, a 
one-day pre-event survey of the area shall be

[[Page 90]]

made within one to three days of the event and a one-day post-event 
survey shall be made after the event, weather permitting.
    (e) For all monitoring, the following information shall be recorded 
in 30-minute intervals:
    (1) Pinniped counts by species;
    (2) Behavior;
    (3) Time, source and duration of any disturbance, with takes 
incidental to SCWA actions recorded only for responses involving 
movement away from the disturbance or responses of greater intensity 
(e.g., not for alerts);
    (4) Estimated distances between source of disturbance and pinnipeds;
    (5) Weather conditions (e.g., temperature, percent cloud cover, and 
wind speed); and
    (6) Tide levels and estuary water surface elevation.
    (f) Reporting--(1) Annual reporting. (i) SCWA shall submit an annual 
summary report to NMFS not later than ninety days following the end of 
the reporting period established in any LOA issued under Sec. 217.7. 
SCWA shall provide a final report within thirty days following 
resolution of comments on the draft report.
    (ii) These reports shall contain, at minimum, the following:
    (A) The number of seals taken, by species and age class (if 
possible);
    (B) Behavior prior to and during water level management events;
    (C) Start and end time of activity;
    (D) Estimated distances between source and seals when disturbance 
occurs;
    (E) Weather conditions (e.g., temperature, wind, etc.);
    (F) Haul-out reoccupation time of any seals based on post-activity 
monitoring;
    (G) Tide levels and estuary water surface elevation;
    (H) Seal census from bi-monthly and nearby haul-out monitoring; and
    (I) Specific conclusions that may be drawn from the data in relation 
to the four questions of interest in SCWA's Pinniped Monitoring Plan, if 
possible.
    (2) SCWA shall submit a comprehensive summary report to NMFS in 
conjunction with any future submitted request for incidental take 
authorization.
    (g) Reporting of injured or dead marine mammals. (1) In the 
unanticipated event that the activity defined in Sec. 217.1(a) clearly 
causes the take of a marine mammal in a prohibited manner, SCWA shall 
immediately cease such activity and report the incident to the Office of 
Protected Resources (OPR), NMFS and the West Coast Regional Stranding 
Coordinator, NMFS. Activities shall not resume until NMFS is able to 
review the circumstances of the prohibited take. NMFS will work with 
SCWA to determine what measures are necessary to minimize the likelihood 
of further prohibited take and ensure MMPA compliance. SCWA may not 
resume their activities until notified by NMFS. The report must include 
the following information:
    (i) Time and date of the incident;
    (ii) Description of the incident;
    (iii) Environmental conditions;
    (iv) Description of all marine mammal observations in the 24 hours 
preceding the incident;
    (v) Species identification or description of the animal(s) involved;
    (vi) Fate of the animal(s); and
    (vii) Photographs or video footage of the animal(s).
    (2) In the event that SCWA discovers an injured or dead marine 
mammal and determines that the cause of the injury or death is unknown 
and the death is relatively recent (e.g., in less than a moderate state 
of decomposition), SCWA shall immediately report the incident to OPR and 
the West Coast Regional Stranding Coordinator, NMFS. The report must 
include the information identified in paragraph (g)(1) of this section. 
Activities may continue while NMFS reviews the circumstances of the 
incident. NMFS will work with SCWA to determine whether additional 
mitigation measures or modifications to the activities are appropriate.
    (3) In the event that SCWA discovers an injured or dead marine 
mammal and determines that the injury or death is not associated with or 
related to the activities defined in Sec. 217.1(a) (e.g., previously 
wounded animal, carcass with moderate to advanced decomposition, 
scavenger damage), SCWA shall report the incident to OPR and the West 
Coast Regional Stranding Coordinator,

[[Page 91]]

NMFS, within 24 hours of the discovery. SCWA shall provide photographs 
or video footage or other documentation of the stranded animal sighting 
to NMFS.
    (4) Pursuant to paragraphs (g)(2) and (3) of this section, SCWA may 
use discretion in determining what injuries (i.e., nature and severity) 
are appropriate for reporting. At minimum, SCWA must report those 
injuries considered to be serious (i.e., will likely result in death) or 
that are likely caused by human interaction (e.g., entanglement, 
gunshot). Also pursuant to sections paragraphs (g)(2) and (3) of this 
section, SCWA may use discretion in determining the appropriate vantage 
point for obtaining photographs of injured/dead marine mammals.



Sec. 217.7  Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to the regulations 
in this subpart, SCWA must apply for and obtain an LOA.
    (b) An LOA, unless suspended or revoked, may be effective for a 
period of time not to exceed the expiration date of the regulations in 
this subpart.
    (c) If an LOA expires prior to the expiration date of the 
regulations in this subpart, SCWA may apply for and obtain a renewal of 
the LOA.
    (d) In the event of projected changes to the activity or to 
mitigation and monitoring measures required by an LOA, SCWA must apply 
for and obtain a modification of the LOA as described in Sec. 217.8.
    (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 the regulations in this subpart.
    (g) Notice of issuance or denial of an LOA shall be published in the 
Federal Register within 30 days of a determination.



Sec. 217.8  Renewals and modifications of Letters of Authorization.

    (a) An LOA issued under Secs. 216.106 and 217.7 of this chapter for 
the activity identified in Sec. 217.1(a) 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 the regulations in this subpart 
(excluding changes made pursuant to the adaptive management provision in 
paragraph (c)(1) of this section); and
    (2) NMFS determines that the mitigation, monitoring, and reporting 
measures required by the previous LOA under the regulations in this 
subpart were implemented.
    (b) For an 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 in paragraph (c)(1) of this section) that do not change the 
findings made for the regulations or result in no more than a minor 
change in the total estimated number of takes (or distribution by 
species or years), NMFS may publish a notice of proposed LOA in the 
Federal Register, including the associated analysis of the change, and 
solicit public comment before issuing the LOA.
    (c) An LOA issued under Secs. 216.106 and 217.7 of this chapter for 
the activity identified in Sec. 217.1(a) 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 SCWA regarding the practicability of the modifications) if doing so 
creates a reasonable likelihood of more effectively accomplishing the 
goals of the mitigation and monitoring.
    (i) Possible sources of data that could contribute to the decision 
to modify the mitigation, monitoring, or reporting measures in an LOA 
are:

[[Page 92]]

    (A) Results from SCWA'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 the regulations in this 
subpart or subsequent LOAs.
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, NMFS will 
publish a 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 in LOAs issued pursuant to Secs. 216.106 and 
217.7 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 thirty days of the action.



Secs. 217.9-217.10  [Reserved]



 Subpart B_Taking of Marine Mammals Incidental to Commercial Fireworks 
                                Displays

    Source: 82 FR 27442, June 15, 2017, unless otherwise noted.

    Effective Date Note: At 82 FR 27442, June 15, 2017, subpart B was 
revised, effective July 4, 2017. At 82 FR 29010, June 27, 2017, the 
effective date was corrected to June 29, 2017, through June 28, 2022.



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 the MBNMS.



Sec. 217.12  Effective dates.

    Regulations in this subpart are effective from June 29, 2017, 
through June 28, 2022.

[82 FR 27442, June 15, 2017; 82 FR 29010, June 27, 2017]



Sec. 217.13  Permissible methods of taking.

    (a) Under LOAs issued pursuant to Sec. 216.106 of this chapter and 
Sec. 217.17, the Holder of the LOA (hereinafter ``MBNMS'') may 
incidentally, but not intentionally, take California sea lions 
(Eumatopias jubatus) and harbor seals (Phoca vitulina) within the area 
described in Sec. 217.11(b), provided the activity is in compliance with 
all terms, conditions, and requirements of the regulations in this 
subpart and the appropriate LOA.
    (b) [Reserved]



Sec. 217.14  Prohibitions.

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



Sec. 217.15  Mitigation requirements.

    (a) When conducting the activities identified in Sec. 217.11(a), the 
mitigation measures contained in any LOA issued under Sec. 216.106 of 
this chapter and

[[Page 93]]

Sec. 217.17 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 an average frequency of less than or equal to once every two 
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 per year across all four areas 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 five 
minutes of the display; the removal of plastic and aluminum labels and 
wrappings from fireworks; 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) [Reserved]



Sec. 217.16  Requirements for monitoring and reporting.

    (a) MBNMS is responsible for ensuring that all monitoring required 
under an LOA is conducted appropriately, including, but not limited to:
    (1) Counts of pinnipeds in the impact area prior to and after all 
displays. For the pre-event census, counts should be made as close to 
the start of the display as possible, with at least one conducted the 
day before the display and, if possible, another within 30 minutes of 
the fireworks display. For the post-census, counts should occur in 
conjunction with beach clean-ups the day following the fireworks 
display; and
    (2) Reporting to NMFS of all marine mammal injury, serious injury, 
or mortality encountered during debris cleanup the morning after each 
fireworks display.
    (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; and
    (2) Results of the monitoring required in paragraph (a) of this 
section, 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, the MBNMS must apply for and obtain an LOA.
    (b) An LOA, unless suspended or revoked, may be effective for a 
period of time not to exceed the expiration date of these regulations.
    (c) In the event of projected changes to the activity or to 
mitigation and monitoring measures required by an LOA, the MBNMS must 
apply for and obtain a modification of the LOA as described in 
Sec. 217.18.

[[Page 94]]

    (d) The LOA shall set forth:
    (1) The number of marine mammals, by species, authorized to be 
taken;
    (2) Permissible methods of incidental taking;
    (3) 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
    (4) Requirements for monitoring and reporting.
    (e) Issuance of the LOA shall be based on a determination that the 
level of taking will be consistent with the findings made for the total 
taking allowable under these regulations.
    (f) Notice of issuance or denial of an 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) An LOA issued under Sec. 216.106 of this chapter and Sec. 217.17 
for the activity identified in Sec. 217.11(a) shall be renewed or 
modified upon request by the applicant, provided that:
    (1) The specified activity and mitigation, monitoring, and reporting 
measures, as well as the anticipated impacts, are the same as those 
described and analyzed for the regulations in this subpart (excluding 
changes made pursuant to the adaptive management provision in paragraph 
(c)(1) of this section); and
    (2) NMFS determines that the 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 in paragraph (c)(1) of this section) that do not change the 
findings made for the regulations or result in no more than a minor 
change in the total estimated number of takes (or distribution by 
species or years), NMFS may publish a notice of proposed LOA in the 
Federal Register, including the associated analysis of the change, and 
solicit public comment before issuing the LOA.
    (c) An LOA issued under Secs. 217.106 and 217.17 for the activity 
identified in Sec. 217.11(a) 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.
    (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 the MBNMS's monitoring from the previous year(s);
    (B) Results from other marine mammal and/or sound research or 
studies; and
    (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 in an LOA issued pursuant to Sec. 216.106 of 
this chapter and Sec. 217.17, an LOA may be modified without prior 
notice or opportunity for public comment. The Notice would be published 
in the Federal Register within 30 days of the action.

Subparts C-E [Reserved]



  Subpart F_Taking of Marine Mammals Incidental To Target and Missile 
              Launch Activities From San Nicolas Island, CA

    Source: 79 FR 32684, June 3, 2014, unless otherwise noted.

    Effective Date Note: At 79 FR 32684, June 3, 2014, subpart F was 
added, effective June 3, 2014, through June 3, 2019.

[[Page 95]]



Sec. 217.50  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 the 
Naval Air Warfare Center Weapons Division, U.S. Navy, and those persons 
it authorizes to engage in target 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 vehicles (e.g., RAM, Coyote, MSST, 
Terrier, SM-3, or similar) from Alpha Launch Complex and smaller 
missiles and targets from Building 807 on San Nicolas Island, 
California.



Sec. 217.51  Effective dates.

    Regulations in this subpart are effective from June 3, 2014, through 
June 3, 2019.



Sec. 217.52  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec. 216.106 
and 217.57 of this chapter, the Holder of the Letter of Authorization 
may incidentally, but not intentionally, take marine mammals by 
harassment, within the area described in Sec. 217.50, provided the 
activity is in compliance with all terms, conditions, and requirements 
of the regulations and the appropriate Letter of Authorization.
    (b) The activities identified in Sec. 217.50 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 is authorized for the 
species listed in Sec. 217.50(b) and is limited to Level B Harassment.



Sec. 217.53  Prohibitions.

    Notwithstanding takings contemplated in Sec. 217.50 and authorized 
by a Letter of Authorization issued under Secs. 216.106 and 217.57 of 
this chapter, no person in connection with the activities described in 
Sec. 217.50 may:
    (a) Take any marine mammal not specified in Sec. 217.50(b);
    (b) Take any marine mammal specified in Sec. 217.50(b) other than by 
incidental, unintentional harassment;
    (c) Take a marine mammal specified in Sec. 217.50(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 
Secs. 216.106 and 217.57 of this chapter.



Sec. 217.54  Mitigation.

    (a) When conducting operations identified in Sec. 217.50(c), the 
mitigation measures contained in the Letter of Authorization issued 
under Secs. 216.106 and 217.57 must be implemented. These mitigation 
measures include, but are not limited to:
    (1) The holder of the Letter of Authorization must not enter 
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, whenever 
possible, launch activities during harbor seal pupping season (February 
to April), unless constrained by factors including, but not limited to, 
human safety, national security, or for vehicle launch trajectory 
necessary to meet mission objectives.
    (3) The holder of the Letter of Authorization must limit, whenever 
possible, launch activities during other pinniped pupping seasons, 
unless constrained by factors including, but not limited to, human 
safety, national security, or for vehicle launch trajectory necessary to 
meet mission objectives.
    (4) The holder of the Letter of Authorization must not launch 
vehicles 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.

[[Page 96]]

    (5) The holder of the Letter of Authorization must avoid, where 
practicable, launching multiple target missiles in quick succession over 
haul-out sites, especially when young pups are present.
    (6) The holder of the Letter of Authorization must limit launch 
activities during nighttime hours, except when required by the test 
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), 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. 217.55  Requirements for monitoring and reporting.

    (a) Unless specified otherwise in the Letter of Authorization, the 
Holder of the Letter of Authorization must notify the Administrator, 
West Coast 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 in Sec. 217.50 is thought to have 
resulted in the mortality or injury of any marine mammals or in any take 
of marine mammals not identified in Sec. 217.50(b), then the Holder of 
the Letter of Authorization must notify the Director, Office of 
Protected Resources, NMFS, or designee, by telephone (301-427-8401), and 
the Administrator, West Coast 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 
NMFS, 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 three 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, of pinniped presence and activity will 
be conducted and recorded in a field logbook a minimum of 2 hours prior 
to the estimated launch time and for no less than 1 hour immediately 
following the launch of target missiles.
    (iii) Systematic visual observations, by those individuals, 
described in paragraph (c) of this section, of pinniped presence and 
activity will be conducted and recorded in a field logbook a minimum of 
2 hours prior to launch, during launch, and for no less than 1 hour 
after the launch of the BQM-34, BQM-74, Tomahawk, RAM target and similar 
types of missiles.
    (iv) 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;

[[Page 97]]

    (E) Minimum distances between interacting and reacting pinnipeds;
    (F) Study location;
    (G) Local time;
    (H) Substratum type;
    (I) Substratum slope;
    (J) Weather condition;
    (K) Horizontal visibility; and
    (L) Tide state.
    (2) Acoustic monitoring. (i) During all target missile launches, 
calibrated recordings of the levels and characteristics of the received 
launch sounds will be obtained from three different locations of varying 
distances from the target missile's flight path. To the extent 
practicable, these acoustic recording locations will correspond with the 
haul-out sites where video and human observer monitoring is done.
    (ii) Acoustic recordings will be supplemented by the use of radar 
and telemetry systems to obtain the trajectory of target missiles in 
three dimensions.
    (iii) Acoustic equipment used to record launch sounds will be 
suitable for collecting a wide range of parameters, including the 
magnitude, characteristics, and duration of each target missile.
    (e) The holder of the Letter of Authorization must implement the 
following reporting requirements:
    (1) For each target missile launch, the lead contractor or lead 
observer for the holder of the Letter of Authorization must provide a 
status report to NMFS, West Coast Regional Office, providing reporting 
items found under the Letter of Authorization, unless other arrangements 
for monitoring are agreed upon in writing.
    (2) The Navy shall submit an annual report describing their 
activities and including the following information:
    (i) Timing, number, and nature of launch operations;
    (ii) Summary of mitigation and monitoring implementation;
    (iii) Summary of pinniped behavioral observations; and
    (iv) Estimate of the amount and nature of all takes by harassment or 
by other means.
    (3) The Navy shall submit a draft comprehensive technical report to 
the Office of Protected Resources and West Coast Regional Office, NMFS, 
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 
regulations.
    (4) A revised final comprehensive technical report, including all 
monitoring results during the entire period of validity 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) The final report will be subject to review and comment by NMFS. 
Any recommendations made by NMFS must be addressed in the final 
comprehensive technical report prior to acceptance by NMFS.
    (f) Activities related to the monitoring described in paragraphs (c) 
and (d) of this section, or in the Letter of Authorization issued under 
Secs. 216.106 and 217.57 of this chapter, 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, the NMFS may, at its discretion, 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. 217.56  Applications for Letters of Authorization.

    To incidentally take marine mammals pursuant to the regulations in 
this subpart, the U.S. citizen (as defined by Sec. 216.6 of this 
chapter) conducting the activity identified in Sec. 217.50 (the U.S. 
Navy) must apply for and obtain either an initial LOA in accordance with 
Sec. 217.57 or a renewal under Sec. 217.58.



Sec. 217.57  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.
    (b) Each Letter of Authorization will set forth:
    (1) Permissible methods of incidental taking;

[[Page 98]]

    (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. 217.58  Renewals and Modifications of Letters of Authorization.

    (a) A Letter of Authorization issued under Secs. 216.106 and 217.57 
of this chapter for the activity identified in Sec. 217.50 will be 
renewed or modified upon request of 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 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 measures (excluding changes made pursuant to the adaptive 
management provision 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 comments before issuing the LOA.
    (c) An LOA issued under Secs. 216.106 and 217.57 of this chapter for 
the activity identified in Sec. 217.50 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 the Navy 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 could contribute to the decision to 
modify the mitigation, monitoring, and reporting measures in an LOA:
    (A) Results from the Navy's monitoring from the previous year(s);
    (B) Results from other marine mammal and/or sound research or 
studies; or
    (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 in Sec. 217.50(b), a Letter of Authorization 
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 G_Taking of Marine Mammals Incidental to U.S. Air Force 
  Launches, Aircraft and Helicopter Operations, and Harbor Activities 
   Related to Launch Vehicles From Vandenberg Air Force Base (VAFB), 
                               California

    Source: 79 FR 10026, Feb. 24, 2014, unless otherwise noted.

    Effective Date Note: At 79 FR 10026, Feb. 24, 2014, subpart G was 
added, effective from Mar. 26, 2014, through Mar. 26, 2019.



Sec. 217.60  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the 30th Space Wing, 
United

[[Page 99]]

States Air Force (USAF), at Vandenberg Air Force Base 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 occurs incidental to:
    (1) Launching up to 15 space and each year from Vandenberg Air Force 
Base, for a total of up to 75 missiles over the 5-year period of these 
regulations,
    (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 
these regulations,
    (3) Aircraft flight test operations,
    (4) Helicopter operations from Vandenberg Air Force Base, and
    (5) Delta Mariner (or a similar vessel) operations, cargo unloading 
activities, and harbor maintenance dredging.
    (b) The taking of marine mammals by the USAF may be authorized in a 
Letter of Authorization only if it occurs from the space launch 
complexes, launch facilities, and test pads on north and south 
Vandenberg Air Force Base and the Vandenberg Air Force Base harbor on 
South Base.



Sec. 217.61  Effective dates.

    Regulations in this subpart are effective from March 26, 2014 
through March 26, 2019.



Sec. 217.62  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Secs. 216.106 
and 217.60 of this chapter, the Holder of the Letter of Authorization 
(herein after the USAF) may incidentally, but not intentionally, take 
marine mammals by harassment, within the area described in 
Sec. 217.60(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 activities identified in Sec. 217.60(a) 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 in Sec. 217.60(a) of this chapter is limited to the indicated 
number of Level B harassment takes on an annual basis of the following 
species:
    (1) Harbor seals (Phoca vitulina)--31,161;
    (2) California sea lions (Zalophus californianus)--465,129;
    (3) Northern elephant seals (Mirounga angustirostris)--80,024;
    (4) Northern fur seals (Callorhinus ursinus)--62,500; and
    (5) Steller sea lions (Eumetopias jubatus)--1,824.



Sec. 217.63  Prohibitions.

    Notwithstanding takings contemplated in Sec. 217.62(c) and 
authorized by a Letter of Authorization issued under Secs. 216.106 and 
217.66 of this chapter, no person in connection with the activities 
described in Sec. 217.60 may:
    (a) Take any marine mammal not specified in Sec. 217.62(c);
    (b) Take any marine mammal specified in Sec. 217.62(c) other than by 
incidental, unintentional Level B harassment;
    (c) Take a marine mammal specified in Sec. 217.62(c) if NMFS 
determines 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 
Secs. 216.106 and 217.66 of this chapter.



Sec. 217.64  Mitigation.

    (a) When conducting the activities identified in Sec. 217.60(a), the 
mitigation measures contained in the Letter of Authorization issued 
under Secs. 216.106 and 217.66 of this chapter 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,

[[Page 100]]

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, the launch procedure and the 
monitoring methods must be reviewed, in cooperation with the National 
Marine Fisheries Service (NMFS), and appropriate changes must be made 
through modification to a Letter of Authorization, prior to conducting 
the next launch under that Letter of Authorization.
    (5) Delta Mariner (or a similar vessel) operations, cargo unloading, 
and harbor maintenance dredging measures:
    (i) If activities occur during nighttime hours, turn on lighting 
equipment before dusk. Lights must remain on for the entire night to 
avoid startling pinnipeds.
    (ii) Initiate operations before dusk.
    (iii) Keep construction noises at a constant level (i.e., not 
interrupted by periods of quiet in excess of 30 minutes) while pinnipeds 
are present.
    (iv) Initiate a gradual start-up of activities to ensure a gradual 
increase in noise levels if activities cease for longer than 30 minutes 
and pinnipeds are in the area.
    (v) Conduct visual monitor, by a qualified observer, of the harbor 
seals on the beach adjacent to the harbor and on rocks for any flushing 
or other behaviors as a result of activities described in 
Sec. 217.60(a).
    (vi) The Delta Mariner and accompanying vessels must enter the 
harbor only when the tide is too high for harbor seals to haul-out on 
the rocks; reducing speed to 1.5 to 2 knots (1.5-2 nm/hr; 2.8-3.7 km/hr) 
once the vessel is within 3 mi (4.83 km) of the harbor. The vessel must 
enter the harbor stern first, approaching the wharf and moorings at less 
than 0.75 knot (1.4 km/hr).
    (vii) Explore alternate dredge methods and introduce quieter 
techniques and equipment as they become available.
    (6) Additional mitigation measures as contained in a Letter of 
Authorization.
    (b) [Reserved]



Sec. 217.65  Requirements for monitoring and reporting.

    (a) Unless specified otherwise in the Letter of Authorization, the 
USAF must notify the Administrator, West Coast 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 in 
Sec. 217.60(a) is thought to have resulted in the mortality or injury of 
any marine mammals or in any take of marine mammals not identified in 
Sec. 217.62(c), then the USAF must notify the Director, Office of 
Protected Resources, NMFS, or designee, by telephone (301-427-8401), 
within 48 hours of the discovery of the injured or dead animal.
    (b) To conduct monitoring of launch activities, the USAF must 
designate qualified, on-site individuals approved in advance by NMFS, as 
specified in the Letter of Authorization, to:
    (1) Conduct observations on pinniped 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 is 
predicted to impact one of the Islands between March 1 and June 30, 
greater than 1.5 psf between July 1 and September 30, and greater than 2 
psf between October 1

[[Page 101]]

and February 28. Monitoring will be conducted at the haul-out site 
closest to the predicted sonic boom impact area.
    (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) To conduct monitoring of harbor activities, the USAF must 
designate qualified, on-site individuals approved in advance by NMFS, as 
specified in the Letter of Authorization. During nighttime activities, 
the harbor area will be illuminated, and the observer will use a night 
vision scope. Monitoring activities will consist of the following:
    (1) Conducting baseline observation of pinnipeds in the project area 
prior to initiating project activities.
    (2) Conducting and recording observations on pinnipeds in the 
vicinity of the harbor for the duration of the activity occurring when 
tides are low enough (less than or equal to 2 ft (0.61 m) for pinnipeds 
to haul out.
    (3) Conducting post-construction observations of pinniped haul-outs 
in the project area to determine whether animals disturbed by the 
project activities return to the haul-out.
    (d) Holders of Letters of Authorization must conduct additional 
monitoring as required under a Letter of Authorization.
    (e) The USAF must submit a report to the West Coast Regional 
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.
    (f) An annual report must be submitted on March 1 of each year.
    (g) 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 the activities specified in Sec. 217.60(a), and
    (4) State the date(s), location(s), and findings of any research 
activities related to monitoring the effects on launch noise, sonic 
booms, and harbor activities on marine mammal populations.



Sec. 217.66  Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, the USAF must apply for and obtain a Letter of 
Authorization.
    (b) A Letter of Authorization, unless suspended or revoked, may be 
effective for a period of time not to exceed the expiration date of 
these regulations.
    (c) If a Letter of Authorization expires prior to the expiration 
date of these regulations, the USAF must

[[Page 102]]

apply for and obtain a renewal of the Letter of Authorization.
    (d) In the event of projected changes to the activity or to 
mitigation and monitoring measures required by a Letter of 
Authorization, the USAF must apply for and obtain a modification of the 
Letter of Authorization as described in Sec. 217.67.
    (e) The Letter of Authorization will 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 Letter of Authorization 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 Letter of Authorization shall 
be published in the Federal Register within 30 days of a determination.



Sec. 217.67  Renewals and modifications of Letters of Authorization.

    (a) A Letter of Authorization issued under Sec. 216.106 and 
Sec. 217.66 of this chapter for the activity identified in 
Sec. 217.60(a) 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 in Sec. 217.67(c)(1) 
of this chapter), and
    (2) NMFS determines that the mitigation, monitoring, and reporting 
measures required by the previous Letter of Authorization under these 
regulations were implemented.
    (b) For Letter of Authorization 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 in Sec. 217.67(c)(1)) 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 Letter of 
Authorization in the Federal Register, including the associated analysis 
illustrating the change, and solicit public comment before issuing the 
Letter of Authorization.
    (c) A Letter of Authorization issued under Sec. 216.106 and 
Sec. 217.66 of this chapter for the activity identified in 
Sec. 217.60(a) 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 the USAF 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 a Letter 
of Authorization:
    (A) Results from the USAF'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 Letters of Authorization.
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, NMFS will 
publish a notice of proposed Letter of Authorization in the Federal 
Register and solicit public comment.
    (2) Emergencies--If NMFS determines that an emergency exists that 
poses a significant risk to the well-being of the species or stocks of 
marine mammals specified in Sec. 217.62(c) of this chapter, a Letter of 
Authorization 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.

[[Page 103]]



   Subpart H_Taking of Marine Mammals Incidental to Space Vehicle and 
                            Missile Launches

    Source: 82 FR 15003, Mar. 24, 2017, unless otherwise noted.

    Effective Date Note: At 82 FR 15003, Mar. 24, 2017, subpart H was 
added, effective from Apr. 24, 2017, through Apr. 25, 2022.



Sec. 217.70  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the Alaska Aerospace 
Corporation (AAC) and those persons it authorizes to conduct activities 
on its behalf for the taking of marine mammals that occurs in the area 
identified in paragraph (b) of this section and that occurs incidental 
to conducting up to nine space vehicle launches each year from PSCA, for 
a total of 45 launches over the period of these regulations.
    (b) The taking of marine mammals by AAC may be authorized in a 
Letter of Authorization (LOA) only if it occurs at the Pacific Spaceport 
Alaska Complex (PSCA) on Kodiak Island, AK.



Sec. 217.71  Effective dates.

    Regulations in this subpart are effective from April 24, 2017, 
through April 25, 2022.



Sec. 217.72  Permissible methods of taking.

    Under an LOA issued pursuant to Sec. 216.106 of this chapter and 
Sec. 217.70, the Holder of the LOA (hereinafter ``AAC'') and its 
contractors may incidentally, but not intentionally, take harbor seals 
(Phoca vitulina) by Level B harassment in the course of conducting space 
vehicle and missile launch operations within the area described in 
Sec. 217.70(b), provided the activity is in compliance with all terms, 
conditions, and requirements of the regulations in this subpart and the 
applicable LOA.



Sec. 217.73  Prohibitions.

    Notwithstanding authorization under these regulations and any LOA 
issued under Sec. 216.106 of this chapter and Sec. 217.76, no person 
conducting the activities described in Sec. 217.70 may:
    (a) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or an LOA issued under Sec. 216.106 of this 
chapter and Sec. 217.76;
    (b) Take any marine mammal not specified in such LOA;
    (c) Take any marine mammal specified in such LOA in any manner other 
than as specified;
    (d) Take a marine mammal specified in such LOA if NMFS determines 
such taking results in more than a negligible impact on the species or 
stocks of such marine mammal; or
    (e) Take a marine mammal specified in such LOA if NMFS determines 
such taking results in an unmitigable adverse impact on the species or 
stock of such marine mammal for taking for subsistence uses.



Sec. 217.74  Mitigation.

    (a) When conducting operations identified in Sec. 217.70(a), the 
mitigation measures contained in any LOA issued under Sec. 216.106 of 
this chapter and Sec. 217.76 must be implemented. These mitigation 
measures include:
    (1) Security overflights immediately associated with the launch 
shall not approach pinniped haulouts on Ugak Island by closer than 0.25 
mi (0.4 km), and shall maintain a vertical distance of 1,000 ft (305 m) 
from the haulouts when within 0.5 mi (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; and
    (2) All Castor 120 equivalent launches shall be conducted at LP1.
    (b) [Reserved]



Sec. 217.75  Requirements for monitoring and reporting.

    (a) If the authorized activity identified in Sec. 217.70(a) is 
thought to have resulted in the mortality or injury of any marine 
mammals or take of marine mammals not identified in Sec. 217.70(b), then 
the Holder of the LOA must notify NMFS Office of Protected Resources and 
NMFS Alaska Regional Office, within 48 hours of the injury or death.
    (b) Holders of LOAs must designate qualified, on-site individuals, 
technical

[[Page 104]]

experts who have implemented time-lapsed photography technology for 
wildlife studies, approved in advance by NMFS Office of Protected 
Resources to:
    (1) Install time-lapsed photography systems designed to monitor 
pinniped abundance and detect pinniped responses to rocket launches at 
each of the pinniped haulout locations around Ugak Island. The number of 
camera systems, equipment capabilities, placement of the systems to be 
used, and the daily photo frequency shall be determined through a 
cooperative effort between AAC, NMFS Office of Protected Resources, and 
the technical experts;
    (2) Ensure the time-lapsed photography systems shall be in place and 
operating in locations that allow for visual monitoring of all pinniped 
haulouts during launches;
    (3) Relocate the time-lapsed photography systems in cooperation with 
NMFS after five launches if the system is not accurately capturing all 
pinniped haulouts and total pinniped abundance during the launches;
    (4) Monitor and review the effectiveness of these systems, comparing 
the results to aerial surveys for pinniped presence, abundance, 
behavior, and re-occupation time from the data obtained from the time-
lapsed photography systems for the first five launches and report 
results to NMFS Office of Protected Resources within 90 days (after the 
5th launch); and
    (5) Conduct a study in coordination with NMFS Office of Protected 
Resources to evaluate the effectiveness of the time-lapsed photography 
systems (specifically, the accuracy of the photography systems compared 
with aerial count surveys). The results of this study shall determine 
the need to continue aerial surveys. The study shall be conducted 
through a minimum of five launches.
    (c) AAC shall conduct one pre-launch aerial survey and one post-
launch aerial survey for each launch to obtain data on pinniped 
presence, abundance, and behavior at all pinniped haulouts. Results of 
these pre- and post-launch surveys shall be reported to NMFS Office of 
Protected Resources once as part of the year-end summary report required 
under paragraph (e) of this section.
    (d) AAC shall conduct quarterly aerial surveys, ideally during mid-
day 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 capturing all pinniped haulouts. Results 
of these quarterly surveys shall be reported to NMFS Office of Protected 
Resources once as part of the year-end summary report required under 
paragraph (e) of this section.
    (e) A year-end summary report must be submitted on March 1 of each 
year to NMFS Office of Protected Resources that shall include results of 
the pre- and post-launch aerial surveys, quarterly aerial survey trend 
counts of pinnipeds, and comparison of the results using the time-lapsed 
photography systems on Ugak Island. Future aerial surveys may be reduced 
if the time-lapsed photography systems capture similar or better data 
than aerial surveys. This report must contain the following information:
    (1) Date(s) and time(s) of the launches;
    (2) Locations of the time-lapsed photography systems;
    (3) Design of the monitoring program for the time-lapsed photography 
systems and a description of how data is stored and analyzed; and
    (4) Results of the monitoring program for pre- and post-launch 
aerial surveys, quarterly aerial surveys, and the time-lapsed 
photography systems, 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 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

[[Page 105]]

    (v) Other behavioral modifications by pinnipeds that were likely the 
result of launch noise.
    (f) A final 5-year report must be submitted to NMFS Office of 
Protected Resources at least 90 days prior to expiration of these 
regulations if new regulations are sought or 180 days after expiration 
of regulations. This report shall:
    (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;
    (3) Assess the cumulative impacts on pinnipeds and other marine 
mammals from multiple rocket launches; and
    (4) State the date(s), location(s), and findings of any research 
activities related to monitoring using time-lapsed photography systems 
on marine mammal populations
    (g) AAC shall conduct quarterly aerial surveys in the event no 
launch occurs during a calendar year. These quarterly surveys shall be 
reported in the year-end summary report as described in paragraph (e) of 
this section; and
    (h) If NMFS believes that 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 
shall 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.



Sec. 217.76  Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, AAC must apply for and obtain an LOA.
    (b) An 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, AAC 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, AAC must apply 
for and obtain a modification of the LOA as described in Sec. 217.77.
    (e) The LOA shall set forth:
    (1) The number of marine mammals, by species, authorized to be 
taken;
    (2) Permissible methods of incidental taking;
    (3) Means of effecting the least practicable adverse impact (i.e., 
mitigation) on the species of marine mammals authorized for taking, its 
habitat, and on the availability of the species for subsistence uses; 
and
    (4) Requirements for monitoring and reporting.
    (f) Issuance of an LOA shall be based on a determination that the 
level of taking shall be consistent with the findings made for the total 
taking allowable under these regulations.
    (g) Notice of issuance or denial of an LOA shall be published in the 
Federal Register within 30 days of a determination.



Sec. 217.77  Renewals and modifications of Letters of Authorization.

    (a) An LOA issued under Sec. 216.106 of this chapter and Sec. 217.76 
for the activity identified in Sec. 217.70(a) shall be renewed or 
modified upon request by the applicant, provided that:
    (1) The 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 in paragraph (c)(1) of 
this section), and
    (2) NMFS determines that the mitigation, monitoring, and reporting 
measures required by the previous LOA under these regulations were 
implemented.
    (b) For an LOA modification or renewal request by the applicant that 
includes changes to the activity or the mitigation, monitoring, or 
reporting (excluding changes made pursuant to the adaptive management 
provision in paragraph (c)(1) of this section) that do not change the 
findings made for the regulations or result in no more than a minor 
change in the total estimated

[[Page 106]]

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) An LOA issued under Sec. 216.106 of this chapter and Sec. 217.76 
for the activity identified in Sec. 217.70(a) 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 AAC 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 AAC's monitoring from the previous year(s);
    (B) Results from other marine mammal and/or sound research or 
studies; and
    (C) Any information that reveals marine mammals may have been taken 
in a manner, extent or number not authorized by these regulations or any 
LOA issued under Secs. 216.106 and 217.76 of this chapter.
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, NMFS 
shall 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 in Secs. 217.70(b) and 217.72(a), an LOA may be 
modified without prior notice or opportunity for public comment. A 
notice shall be published in the Federal Register within 30 days of the 
action.



Sec. 217.78-217.79  [Reserved]



    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 Test and Training Range at property

[[Page 107]]

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 North, ^86.808838 West
    (ii) 29.539011 North, ^84.995536 West
    (iii) 28.03949 North, ^85.000147 West
    (iv) 28.027598 North, ^85.199395 West
    (v) 28.505304 North, ^86.799043 West
    (2) The latitude/longitude of corners of W-151A in the Eglin Gulf 
Test and Training Range are:
    (i) 30.24006 North, ^86.808838 West
    (ii) 30.07499 North, ^85.999327 West
    (iii) 29.179968 North, ^85.996341 West
    (iv) 29.384439 North, ^86.802579 West



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 to Sec. 216.106 
of this chapter and Sec. 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 in Sec. 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 in Sec. 217.80 and authorized 
by a Letter of Authorization issued under Secs. 216.106 of this chapter 
and 217.87, no person in connection with the activities described in 
Sec. 217.80 may:
    (a) Take any marine mammal not specified in Sec. 217.80(b);
    (b) Take any marine mammal specified in Sec. 217.80(b) other than by 
incidental take as specified in Sec. 217.82(a) through (d);
    (c) Take a marine mammal specified in Sec. 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 
Secs. 216.106 of this chapter and 217.87.



Sec. 217.84  Mitigation.

    (a) The activity identified in Sec. 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 in Sec. 217.80(a), the mitigation measures contained in the 
Letter of Authorization issued under Secs. 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:

[[Page 108]]

    (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

[[Page 109]]

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 to Sec. 216.106 of 
this chapter and Sec. 217.87 for activities described in Sec. 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 in Sec. 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 in Sec. 217.80(b), then the Holder of 
the Letter of Authorization must, in addition to complying with the 
requirements of Sec. 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

[[Page 110]]

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 in Sec. 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

[[Page 111]]

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 by Sec. 216.103) conducting 
the activity identified in Sec. 217.80(a) must apply for and obtain 
either an initial Letter of Authorization in accordance with Sec. 217.87 
or a renewal under Sec. 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:

[[Page 112]]

    (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 under Sec. 216.106 of this 
chapter and Sec. 217.87 for the activity identified in Sec. 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 under Sec. 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 under Sec. 217.85(d) and (e) and the Letter of Authorization 
issued under Sec. 217.87;
    (3) NMFS determines that the mitigation, monitoring, and reporting 
measures required under Secs. 217.84 and 217.85 and the Letter of 
Authorization issued under Secs. 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 by Sec. 217.87(c).
    (b) If either a request for a renewal of a Letter of Authorization 
issued under Sec. 216.106 of this chapter and Sec. 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 113]]

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 to Sec. 216.106 of this 
chapter and Sec. 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 under Sec. 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 in Sec. 217.80(b), a Letter of 
Authorization issued pursuant to Sec. 216.106 of this chapter and 
Sec. 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-K [Reserved]



   Subpart L_Taking Marine Mammals Incidental to Conducting Precision 
Strike Weapon and Air-to-Surface Gunnery Missions at Eglin Gulf Test and 
              Training Range (EGTTR) in the Gulf of Mexico

    Source: 79 FR 13588, Mar. 11, 2014, unless otherwise noted.



Sec. 217.110  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the U.S. Air Force for 
the incidental 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 Air Force is only authorized 
if it occurs within the Eglin Air Force Base Gulf Test and Training 
Range (as depicted in Figure 1-9 of the Air Force's Request for a Letter 
of Authorization). The EGTTR is the airspace over the Gulf of Mexico 
beyond 3 nm from shore that is controlled by Eglin Air Force Base. The 
specified activities will take place within the boundaries of Warning 
Area W-151. The inshore and offshore boundaries of W-151 are roughly 
parallel to the shoreline contour. The shoreward boundary is 3 nm from 
shore, while the seaward boundary extends approximately 85 to 100 nm 
offshore, depending on the specific location. W-151 has a surface area 
of approximately 10,247 nm\2\ (35,145 km\2\), and includes water depths 
ranging from approximately 20 to 700 m.
    (c) The taking of marine mammals by the Air Force is only authorized 
of it occurs incidental to the following activities within the 
designated amounts of use:
    (1) The use of the following Precision Strike Weapons (PSWs) for PSW 
training activities, in the amounts indicated below:
    (i) Joint Air-to-Surface Stand-Off Missile (JASSM) AGM-158 A and B--
two live shots (single) and 4 inert shots (single) per year;
    (ii) Small-diameter bomb (SDB) GBU-39/B--six live shots per year, 
with two of the shots occurring simultaneously, and 12 inert shots per 
year, with up to two occurring simultaneously.
    (2) The use of the following ordnance for daytime Air-to-Surface 
(AS) Gunnery training activities, in the amounts indicated below:
    (i) 105 mm HE Full Up (FU)--25 missions per year with 30 rounds per 
mission;
    (ii) 40 mm HE--25 missions per year with 64 rounds per mission;

[[Page 114]]

    (iii) 25 mm HE--25 mission per year with 560 rounds per mission.
    (3) The use of the following ordnance for nighttime Air-to-Surface 
(AS) Gunnery training activities, in the amounts indicated below:
    (i) 105 mm HE Training Round (TR)--45 missions per year with 30 
rounds per mission;
    (ii) 40 mm HE--45 missions per year with 64 rounds per mission;
    (iii) 25 mm HE--45 mission per year with 560 rounds per mission.



Sec. 217.111  Effective dates.

    Regulations in this subpart are effective March 11, 2014 and 
applicable to Eglin AFB March 5, 2014, through March 4, 2019.



Sec. 217.112  Permissible methods of taking.

    (a) Under a Letter of Authorization issued pursuant to Secs. 216.106 
and 217.117 of this chapter, the Holder of the Letter of Authorization 
may incidentally, but not intentionally, take marine mammals by Level A 
and Level B harassment within the area described in Sec. 217.110(b) of 
this chapter, provided the activity is in compliance with all terms, 
conditions, and requirements of this subpart and the appropriate Letter 
of Authorization.
    (b) The activities identified in Sec. 217.110(c) of this chapter 
must be conducted in a manner that minimizes, to the greatest extent 
practicable, any adverse impact on marine mammals and their habitat.
    (c) The incidental take of marine mammals under the activities 
identified in Sec. 217.110(c) is limited to the following species, by 
the indicated method of take and the indicated number:
    (1) Level B Harassment:
    (i) Atlantic bottlenose dolphin (Tursiops truncatus)--2,200 (an 
average of 444 annually);
    (ii) Atlantic spotted dolphin (Stenella frontalis)--1,765 (an 
average of 353 annually);
    (iii) Pantropical spotted dolphin (S. attenuate)--15 (an average of 
3 annually);
    (iv) Spinner dolphin (S. longirostris)--15 (an average of 3 
annually);
    (v) Dwarf or pygmy sperm whale (Kogia simus or Kogia breviceps)--10 
(an average of 2 annually).
    (2) Level A Harassment:
    (i) Atlantic bottlenose dolphin (Tursiops truncatus)--25 (an average 
of 5 annually);
    (ii) Atlantic spotted dolphin (Stenella frontalis)--20 (an average 
of 4 annually).



Sec. 217.113  Prohibitions.

    No person in connection with the activities described in 
Sec. 217.110 shall:
    (a) Take any marine mammal not specified in Sec. 217.112(c);
    (b) Take any marine mammal specified in Sec. 217.112(c) other than 
by incidental take as specified in Sec. 217.112(c)(1) and (c)(2);
    (c) Take a marine mammal specified in Sec. 217.112(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 this subpart or a Letter of Authorization issued under 
Secs. 216.106 and 217.117 of this chapter.



Sec. 217.114  Mitigation.

    (a) The activities identified in Sec. 217.110(c) must be conducted 
in a manner that minimizes, to the greatest extent practicable, adverse 
impacts on marine mammals and their habitats. When conducting operations 
identified in Sec. 217.110(c), the mitigation measures contained in the 
Letter of Authorization issued under Secs. 216.106 and 217.117 of this 
chapter must be implemented.
    (b) Precision Strike Weapon Missions:
    (1) Safety Zones;
    (i) For the JASSM, the Air Force must establish and monitor a safety 
zone for marine mammals with a radius of 2.0 nm (3.7 km) from the center 
of the detonation and a buffer zone with a radius of 1.0 nm (1.85 km) 
radius from the outer edge of the safety zone.,
    (ii) For the SDB, the holder of the Letter of Authorization must 
establish and monitor a safety zone for marine mammals with a radius of 
no less than 5 nm (9.3 km) for single bombs and 10 nm (18.5 km) for 
double bombs and a buffer zone from the outer edge of the safety zone 
with a radius of at least 2.5

[[Page 115]]

nm (4.6 km) for single bombs and 5 nm (18.5 km) for double bombs.
    (2) For PSW missions, the holder of the Letter of Authorization must 
comply with the monitoring requirements, including pre-mission 
monitoring, set forth in Sec. 217.115(c).
    (3) When detonating explosives:
    (i) If any marine mammals or sea turtles are observed within the 
designated safety zone or the buffer zone prescribed in the condition in 
paragraph (b)(1) of this section or that are on a course that will put 
them within the safety zone prior to JASSM or SDB launch, the launching 
must be delayed until all marine mammals are no longer within the 
designated safety zone.
    (ii) If any marine mammals are detected in the buffer zone and 
subsequently cannot be reacquired, the mission launch will not continue 
until the next verified location is outside of the safety zone and the 
animal is moving away from the mission area.
    (iii) If large Sargassum rafts or large concentrations of jellyfish 
are observed within the safety zone, the mission launch will not 
continue until the Sargassum rafts or jellyfish that caused the 
postponement are confirmed to be outside of the safety zone due to the 
current and/or wind moving them out of the mission area.
    (iv) If weather and/or sea conditions preclude adequate aerial 
surveillance for detecting marine mammals or sea turtles, detonation 
must be delayed until adequate sea conditions exist for aerial 
surveillance to be undertaken. Adequate sea conditions means the sea 
state does not exceed Beaufort sea state 3.5 (i.e., whitecaps on 33 to 
50 percent of surface; 0.6 m (2 ft) to 0.9 m (3 ft) waves), the 
visibility is 5.6 km (3 nm) or greater, and the ceiling is 305 m (1,000 
ft) or greater.
    (v) To ensure adequate daylight for pre- and post-detonation 
monitoring, mission launches may not take place earlier than 2 hours 
after sunrise, and detonations may not take place later than 2 hours 
prior to sunset, or whenever darkness or weather conditions will 
preclude completion of the post-test survey effort described in 
Sec. 217.115.
    (vi) If post-detonation surveys determine that a serious injury or 
lethal take of a marine mammal has occurred, the test procedure and the 
monitoring methods must be reviewed with the National Marine Fisheries 
Service and appropriate changes to avoid unauthorized take must be made 
prior to conducting the next mission detonation.
    (vii) Mission launches must be delayed if aerial or vessel 
monitoring programs described under Sec. 217.115 cannot be fully carried 
out.
    (c) Air-to-Surface Gunnery Missions:
    (1) Sea State Restrictions:
    (i) If daytime weather and/or sea conditions preclude adequate 
aerial surveillance for detecting marine mammals and other marine life, 
air-to-surface gunnery exercises must be delayed until adequate sea 
conditions exist for aerial surveillance to be undertaken. Daytime air-
to-surface gunnery exercises will be conducted only when sea surface 
conditions do not exceed Beaufort sea state 4 (i.e., wind speed 13-18 
mph (11-16 knots); wave height 1 m (3.3 ft)), the visibility is 5.6 km 
(3 nm) or greater, and the ceiling is 305 m (1,000 ft) or greater.
    (ii) [Reserved]
    (2) Pre-mission and Mission Monitoring:
    (i) The aircrews of the air-to-surface gunnery missions will 
initiate location and surveillance of a suitable firing site immediately 
after exiting U.S. territorial waters (>12 nm).
    (ii) Prior to each firing event, the aircraft crew will conduct a 
visual and/or instrument survey of the 5-nm (9.3-km) wide prospective 
target area to locate any marine mammals that may be present.
    (A) The AC-130 gunship will conduct at least two complete orbits at 
a minimum safe airspeed around a prospective target area at an altitude 
of approximately 6,000 ft (1,829 m).
    (B) If marine mammals are not detected, the AC-130 can then continue 
orbiting the selected target point as it climbs to the mission testing 
altitude.
    (C) During the low altitude orbits and the climb to testing 
altitude, aircraft crew will scan the sea surface within the aircraft's 
orbit circle for the presence of marine mammals.
    (D) The AC-130's optical and electronic sensors must be employed for

[[Page 116]]

target detection, especially at night when visibility will be poor.
    (E) If any marine mammals are detected within the AC-130's orbit 
circle, either during initial clearance or after commencement of live 
firing, the mission will be immediately halted and relocated as 
necessary or suspended until the marine mammal has left the area. If 
relocated to another target area, the clearance procedures described in 
paragraph (c)(2)(ii) of this section must be repeated.
    (F) If multiple firing events occur within the same flight, these 
clearance procedures must precede each event.
    (iii) If no marine mammals are detected, gunnery exercises may begin 
with the deployment of MK-25 flares into the center of the designated 5-
nm target area.
    (3) Operational Mitigation Measures:
    (i) Ramp-up air-to-surface gunnery firing activities by beginning 
with the lowest caliber monition and proceeding to the highest, which 
means the munitions would be fired in the following order: 25 mm; 40 mm; 
and 105 mm.
    (ii) Air-to-surface gunnery exercises conducted after sunset must 
use the 105-mm training round instead of the 105-mm full up round.
    (iii) One mission per year may be conducted beyond the 200 m 
isobaths, which is south of a line delineating the shelf break with 
coordinates of 2942.73 N, 8648.27 W and 2912.73 N, 8559.88 W 
(Figure 1-12 in Eglin AFB's LOA application). The single mission beyond 
the shelf break will occur during daylight hours only.
    (4) Post-mission Monitoring:
    (i) Aircrews will initiate the post-mission clearance procedures 
beginning at the operational altitude of approximately 15,000 to 20,000 
ft (4572 to 6096 m) elevation, and then initiate a spiraling descent 
down to an observation altitude of approximately 6,000 ft (1,829 m) 
elevation. Rates of descent will occur over a 3- to 5-minute time frame.
    (ii) If post-detonation surveys determine that an injury or lethal 
take of a marine mammal has occurred, the test procedure and the 
monitoring methods must be reviewed with the National Marine Fisheries 
Service and appropriate changes to avoid unauthorized take must be made, 
prior to conducting the next air-to-surface gunnery exercise.



Sec. 217.115  Requirements for monitoring and reporting.

    (a) The Holder of the Letter of Authorization issued pursuant to 
Secs. 216.106 and 217.117 of this chapter for activities described in 
Sec. 217.110(c) is required to conduct the monitoring and reporting 
measures specified in this section and Sec. 217.114 and any additional 
monitoring measures contained in the Letter of Authorization.
    (b) The Holder of the Letter of Authorization is required to 
cooperate with the National Marine Fisheries Service, and any other 
Federal, state or local agency monitoring the impacts of the activity on 
marine mammals. Unless specified otherwise in the Letter of 
Authorization, the Holder of the Letter of Authorization must notify the 
Director, Office of Protected Resources, National Marine Fisheries 
Service, or designee, by letter or telephone (301-427-8401), at least 2 
weeks prior to any modification to the activity identified in 
Sec. 217.110(c) that has the potential to result in the serious injury, 
mortality or Level A or Level B harassment of a marine mammal that was 
not identified and addressed previously.
    (c) Monitoring Procedures for PSW Missions:
    (1) The Holder of this Authorization must:
    (i) Designate qualified on-site individual(s) to record the effects 
of mission launches on marine mammals that inhabit the northern Gulf of 
Mexico;
    (ii) Have on-site individuals, approved in advance by the National 
Marine Fisheries Service, to conduct the mitigation, monitoring and 
reporting activities specified in this subpart and in the Letter of 
Authorization issued pursuant to Secs. 216.106 and 217.117 of this 
chapter.
    (iii) Conduct aerial surveys to reduce impacts on protected species. 
The aerial survey/monitoring team will consist of two experienced marine 
mammal observers, approved in advance by the Southeast Region, National 
Marine Fisheries Service. The aircraft will also have a data recorder 
who would be

[[Page 117]]

responsible for relaying the location, the species if possible, the 
direction of movement, and the number of animals sighted.
    (iv) Conduct shipboard monitoring to reduce impacts to protected 
species. Trained observers will conduct monitoring from the highest 
point possible on each mission or support vessel(s). The observer on the 
vessel must be equipped with optical equipment with sufficient 
magnification (e.g., 25x power ``Big-Eye'' binoculars).
    (2) The aerial and shipboard monitoring teams will maintain proper 
lines of communication to avoid communication deficiencies. The 
observers from the aerial team and operations vessel will have direct 
communication with the lead scientist aboard the operations vessel.
    (3) Pre-mission Monitoring: Approximately 5 hours prior to the 
mission, or at daybreak, the appropriate vessel(s) would be on-site in 
the primary test site near the location of the earliest planned mission 
point. Observers onboard the vessel will assess the suitability of the 
test site, based on visual observation of marine mammals and sea 
turtles, the presence of large Sargassum mats, seabirds and jellyfish 
aggregations and overall environmental conditions (visibility, sea 
state, etc.). This information will be relayed to the lead scientist.
    (4) Three Hours Prior to Mission:
    (i) Approximately three hours prior to the mission launch, aerial 
monitoring will commence within the test site to evaluate the test site 
for environmental suitability. Evaluation of the entire test site would 
take approximately 1 to 1.5 hours. The aerial monitoring team will begin 
monitoring the safety zone and buffer zone around the target area.
    (ii) Shipboard observers will monitor the safety and buffer zone, 
and the lead scientist will enter all marine mammals and sea turtle 
sightings, including the time of sighting and the direction of travel, 
into a marine animal tracking and sighting database.
    (5) One to 1.5 Hours Prior to Mission Launch:
    (i) Depending upon the mission, aerial and shipboard viewers will be 
instructed to leave the area and remain outside the safety area. The 
aerial team will report all marine animals spotted and their directions 
of travel to the lead scientist onboard the vessel.
    (ii) The shipboard monitoring team will continue searching the 
buffer zone for protected species as it leaves the safety zone. The 
surface vessels will continue to monitor from outside of the safety area 
until after impact.
    (6) Post-mission monitoring:
    (i) The vessels will move into the safety zone from outside the 
safety zone and continue monitoring for at least two hours, 
concentrating on the area down current of the test site.
    (ii) The holder of the Letter of Authorization will closely 
coordinate mission launches with marine animal stranding networks.
    (iii) The monitoring team will document any dead or injured marine 
mammals or turtles and, if practicable, recover and examine any dead 
animals.
    (d) Monitoring Procedures for A-S Gunnery Missions:
    (1) In addition to the monitoring requirements in 217.114(c), the 
holder of the Letter of Authorization must:
    (i) Cooperate with the National Marine Fisheries Service and any 
other Federal, state or local agency monitoring the impacts of the 
activity on marine mammals.
    (ii) Require aircrews to initiate the post-mission clearance 
procedures beginning at the operational altitude of approximately 15,000 
to 20,000 ft (4572 to 6096 m) elevation, and then initiate a spiraling 
descent down to an observation altitude of approximately 6,000 ft (1,829 
m) elevation. Rates of descent will occur over a 3- to 5-minute time 
frame.
    (iii) Track their use of the EGTTR for test firing missions and 
marine mammal observations, through the use of mission reporting forms.
    (iv) Coordinate air-to-surface gunnery exercises with future flight 
activities to provide supplemental post-mission observations of marine 
mammals in the operations area of the exercise.
    (2) [Reserved]
    (e) In accordance with provisions in Sec. 217.118(b)(2), the Holder 
of the Letter

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of Authorization must conduct the research required under the Letter of 
Authorization.
    (f) Reporting:
    (1) Unless specified otherwise in the Letter of Authorization, the 
Holder of the Letter of Authorization must conduct all of the monitoring 
and reporting required under the LOA and submit an annual report to the 
Director, Office of Protected Resources, National Marine Fisheries 
Service by a date certain specified in the LOA. This report must include 
the following information:
    (i) Date and time of each PSW/air-to-surface gunnery exercise;
    (ii) A complete description of the pre-exercise and post-exercise 
activities related to mitigating and monitoring the effects of PSW/air-
to-surface gunnery exercises on marine mammal populations;
    (iii) Results of the monitoring program, including numbers by 
species/stock of any marine mammals noted injured or killed as a result 
of the training exercises and number of marine mammals (by species if 
possible) that may have been harassed due to presence within the 
applicable safety zone;
    (iv) A detailed assessment of the effectiveness of sensor-based 
monitoring in detecting marine mammals in the area of air-to-surface 
gunnery operations; and
    (v) Results of coordination with coastal marine mammal stranding 
networks.
    (2) The final comprehensive report on all marine mammal monitoring 
and research conducted during the applicability period of this subpart 
must be submitted to the Director, Office of Protected Resources, 
National Marine Fisheries Service at least 240 days prior to expiration 
of applicability of this subpart or 240 days after the expiration of 
applicability of this subpart if new regulations will not be requested.



Sec. 217.116  Applications for Letters of Authorization.

    To incidentally take marine mammals pursuant to this subpart, the 
U.S. citizen (as defined at Sec. 216.103 of this chapter) conducting the 
activities identified in Sec. 217.110(c) must apply for and obtain 
either an initial Letter of Authorization in accordance with 
Secs. 216.106 and 217.117 of this chapter or a renewal under 
Sec. 217.118.



Sec. 217.117  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the period of validity of this 
subpart.
    (b) Each Letter of Authorization will set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least 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.
    (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 species or stock of affected marine mammals.



Sec. 217.118  Renewals and Modifications of Letters of Authorization.

    (a) A Letter of Authorization issued under Sec. 216.106 and 
Sec. 217.117 of this chapter for the activities identified in 
Sec. 217.110(c) will be renewed or modified upon request of 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 this subpart (excluding changes made 
pursuant to adaptive management) and
    (2) NMFS determines that the mitigation, monitoring, and reporting 
measures required by the previous Letter of Authorization under this 
subpart were implemented.
    (b) For Letter of Authorization modifications or renewal requests by 
the applicant that include changes to the activity or the mitigation, 
monitoring, or reporting (excluding changes made pursuant to adaptive 
management) that do not change the findings made for the regulations or 
result in no more than a minor change in the total estimated number of 
takes (or distribution by species or years), NMFS may publish a notice 
of a proposed Letter of

[[Page 119]]

Authorization in the Federal Register, including the associate analysis 
illustrating the change, and solicit public comment before issuing the 
Letter of Authorization.
    (c) A Letter of Authorization issued under Secs. 216.106 and 217.117 
of this chapter for the activity identified in Sec. 217.110(c) may be 
modified by NMFS under the following circumstances:
    (1) Adaptive Management--NMFS may modify or augment the existing 
mitigation or monitoring measures (after consulting with the U.S. Air 
Force regarding the practicability of the modifications) if doing so 
creates a reasonable likelihood of more 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:
    (i) Results from the U.S. Air Force's monitoring from the previous 
year;
    (ii) Results from marine mammal and sound research; or
    (iii) Any information which reveals that marine mammals may have 
been taken in a manner, extent or number not authorized by this subpart 
or subsequent Letters of Authorization.
    (2) Emergencies. If NMFS determines that an emergency exists that 
poses a significant risk to the well-being of the species or stocks of 
marine mammals specified in Sec. 217.112(c), a Letter of Authorization 
issued pursuant to Secs. 216.106 and 217.117 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 M [Reserved]



 Subpart N_Taking Marine Mammals Incidental to Seismic Surveys in Cook 
                              Inlet, Alaska

    Source: 81 FR 47275, July 20, 2016, unless otherwise noted.

    Effective Date Note: At 81 FR 47275, July 20, 2016, subpart N was 
added, effective Aug. 19, 2016, through July 20, 2021.



Sec. 217.130  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to Apache Alaska 
Corporation (Apache), 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 incidental to 
Apache's oil and gas exploration seismic survey program operations.
    (b) The taking of marine mammals by Apache may be authorized in a 
Letter of Authorization (LOA) only if it occurs in Cook Inlet, Alaska.



Sec. 217.131  Effective dates.

    Regulations in this subpart are effective from August 19, 2016 
through July 20, 2021.



Sec. 217.132  Permissible methods of taking.

    (a) Under LOAs issued pursuant to Sec. 216.106 of this chapter and 
Sec. 217.136, the Holder of the LOA (hereinafter ``Apache'') may 
incidentally, but not intentionally, take marine mammals within the area 
described in Sec. 217.130(b), 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 in Sec. 217.130(a) is limited to the indicated number of 
takes of individuals of the following species and is limited to Level B 
harassment:
    (1) Cetaceans:
    (i) Beluga whale (Delphinapterus leucas)--150 over the five-year 
period, with no more than 30 in any year;
    (ii) Harbor porpoise (Phocoena phocoena)--1,455 over the five-year 
period, with an average of 283 annually;
    (iii) Killer whale (Orcinus orca)--350 over the five-year period, 
with an average of 70 annually;
    (iv) Gray whale (Eschrichtius robustus)--40 over the five-year 
period, with an average of 8 annually;
    (v) Humpback whale (Megaptera noveangliae)--10 over the five-year 
period, with an average of 2 annually;
    (vi) Minke whale (Balaenoptera acutorostra)--5 over the five-year 
period, with an average of 1 annually;

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    (vii) Dall's porpoise (Phocoenoides dalli)--85 over the five-year 
period, with an average of 17 annually;
    (2) Pinnipeds:
    (i) Harbor seal (Phoca vitulina)--28, 625 over the five-year period, 
with no more than 5,725 in any year; and
    (ii) Steller sea lion (Eumetopias jubatus)--20.



Sec. 217.133  Prohibitions.

    Notwithstanding takings contemplated in Sec. 217.130 and authorized 
by a LOA issued under Sec. 216.106 of this chapter and Sec. 217.136, no 
person in connection with the activities described in Sec. 217.130 may:
    (a) Take any marine mammal not specified in Sec. 217.132(b);
    (b) Take any marine mammal specified in Sec. 217.132(b) other than 
by incidental Level B harassment;
    (c) Take any marine mammal in excedance of the numbers specified in 
217.132(b)(1);
    (d) Take a marine mammal specified in Sec. 217.132(b) if the 
National Marine Fisheries Service (NMFS) determines such taking is 
resulting or will result in more than a negligible impact on the species 
or stocks of such marine mammal;
    (e) Take a marine mammal specified in Sec. 217.132(b) if NMFS 
determines such taking is resulting in or will result in an unmitigable 
adverse impact on the species or stock of such marine mammal for taking 
for subsistence uses; or
    (f) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or an LOA issued under Sec. 216.106 and 
Sec. 217.136 of this chapter.



Sec. 217.134  Mitigation requirements.

    When conducting the activities identified in Sec. 217.130(a), the 
mitigation measures contained in any LOA issued under Sec. 216.106 and 
Sec. 217.136 of this chapter must be implemented. These mitigation 
measures include but are not limited to:
    (a) General conditions:
    (1) If any marine mammal species not listed in Sec. 217.132(b) are 
observed during conduct of the activities identified in Sec. 217.130(a) 
and are likely to be exposed to sound pressure levels (SPLs) greater 
than or equal to 160 dB re 1 mPa (rms), Apache must avoid such exposure 
(e.g., by altering speed or course or by power down or shutdown of the 
sound source).
    (2) If the allowable number of takes on an annual basis listed for 
any marine mammal species in Sec. 217.132(b) is exceeded, or if any 
marine mammal species not listed in Sec. 217.132(b) is exposed to SPLs 
greater than or equal to 160 dB re 1 mPa (rms), Apache shall immediately 
cease survey operations involving the use of active sound sources (e.g., 
airguns and pingers), record the observation, and notify NMFS Office of 
Protected Resources.
    (3) Apache must notify the Office of Protected Resources, NMFS, at 
least 48 hours prior to the start of seismic survey activities each 
year.
    (4) Apache shall conduct briefings as necessary between vessel 
crews, marine mammal monitoring team, and other relevant personnel prior 
to the start of all survey activity, and when new personnel join the 
work, in order to explain responsibilities, communication procedures, 
marine mammal monitoring protocol, operational procedures, and reporting 
requirements.
    (b) Visual monitoring. (1) Apache shall establish zones 
corresponding to the area around the source within which SPLs are 
expected to equal or exceed relevant acoustic criteria for Level A and 
Level B harassment. These zones shall be established as exclusion zones 
(shutdown zones, described in in Sec. 217.134 (c)(2)) to avoid Level A 
harassment of any marine mammal, Level B harassment of beluga whales, or 
Level B harassment of aggregations of five or more killer whales or 
harbor porpoises. For all marine mammals other than beluga whales or 
aggregations of five or more harbor porpoises or killer whales, the 
Level B harassment zone shall be established as a disturbance zone and 
monitored as described in Sec. 217.135(a)(1). These zones shall be 
defined in each annual LOA to allow for incorporation of new field 
measurements.
    (2) Vessel-based monitoring for marine mammals must be conducted 
before, during, and after all activity identified in Sec. 217.130(a) 
that is conducted during daylight hours (defined as nautical twilight-
dawn to nautical twilight-dusk), and shall begin at least

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thirty minutes prior to the beginning of survey activity, continue 
throughout all survey activity that occurs during daylight hours, and 
conclude no less than thirty minutes following the cessation of survey 
activity. Apache shall use a sufficient number of qualified protected 
species observers (PSO), at least two PSOs per vessel, to ensure 
continuous visual observation coverage during all periods of daylight 
survey operations with maximum limits of four consecutive hours on watch 
and twelve hours of watch time per day per PSO. One PSO must be a 
supervisory field crew leader. A minimum of two qualified PSOs shall be 
on watch at all times during daylight hours on each source and support 
vessel (except during brief meal and restroom breaks, when at least one 
PSO shall be on watch).
    (i) A qualified PSO is a third-party trained biologist, with prior 
experience as a PSO during seismic surveys and the following minimum 
qualifications:
    (A) Visual acuity in both eyes (correction is permissible) 
sufficient for discernment of moving targets at the water's surface with 
ability to estimate target size and distance; use of binoculars may be 
necessary to correctly identify the target;
    (B) Advanced education in biological science or related field 
(undergraduate degree or higher required);
    (C) Experience and ability to conduct field observations and collect 
data according to assigned protocols (this may include academic 
experience);
    (D) Experience or training in the field identification of marine 
mammals, including the identification of behaviors;
    (E) Sufficient training, orientation, or experience with the survey 
operation to provide for personal safety during observations;
    (F) Writing skills sufficient to prepare a report of observations 
including but not limited to the number and species of marine mammals 
observed; dates and times when survey activities were conducted; dates 
and times when survey activities were suspended to avoid exposure of 
marine mammals to sound within defined exclusion zones; and marine 
mammal behavior; and
    (G) Ability to communicate orally, by radio or in person, with 
project personnel to provide real-time information on marine mammals 
observed in the area as necessary.
    (ii) PSOs must have access to binoculars (7 x 50 with reticle 
rangefinder; Fujinon or equivalent quality), and optical rangefinders, 
and shall scan the surrounding waters from the best available suitable 
vantage point with the naked eye and binoculars. At least one PSO shall 
scan the surrounding waters during all daylight hours using bigeye 
binoculars.
    (iii) PSOs shall also conduct visual monitoring:
    (A) While the airgun array and nodes are being deployed or recovered 
from the water; and
    (B) During periods of good visibility when the sound sources are not 
operating for comparison of animal abundance and behavior.
    (iv) PSOs shall be on watch at all times during daylight hours when 
survey 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.
    (3) Survey activity must begin during periods of good visibility, 
which is defined as daylight hours when weather (e.g., fog, rain) does 
not obscure the relevant exclusion zones within maximum line-of-sight. 
In order to begin survey activity, the relevant taxa-specific exclusion 
zones must be clear of marine mammals for not less than thirty minutes. 
If marine mammals are present within or are observed approaching the 
relevant exclusion zone during this thirty-minute pre-clearance period, 
the start of survey activity shall be delayed until the animals are 
observed leaving the zone of their own volition and/or outside the zone 
or until fifteen minutes (for pinnipeds and harbor porpoises) or thirty 
minutes (for beluga whales, killer whales, and gray whales) have elapsed 
without observing the animal. While activities will be permitted to 
continue during low-visibility conditions, they must have been

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initiated following proper clearance of the exclusion zone under 
acceptable observation conditions and must be restarted, if shut down 
for greater than ten minutes for any reason, using the appropriate 
exclusion zone clearance procedures.
    (c) Ramp-up and shutdown. (1) Survey activity involving the full-
power airgun array or shallow-water source must be initiated, following 
appropriate clearance of the exclusion zone, using accepted ramp-up 
procedures. Ramp-up is required at the start of survey activity and at 
any time following a shutdown of ten minutes or greater. Ramp-up shall 
be implemented by starting the smallest single gun available and 
increasing the operational array volume in a defined sequence such that 
the source level of the array shall increase in steps not exceeding 
approximately 6 dB per five-minute period. PSOs shall continue 
monitoring the relevant exclusion zones throughout the ramp-up process 
and, if marine mammals are observed within or approaching the zones, a 
power down or shutdown shall be implemented and ramp-up restarted 
following appropriate exclusion zone clearance procedures as described 
in paragraph (b)(3) of this section.
    (2) Apache must shut down or power down the source, as appropriate, 
immediately upon detection of any marine mammal approaching or within 
the relevant Level A exclusion zone or upon detection of any beluga 
whale or aggregation of five or more harbor porpoises or killer whales 
approaching or within the relevant Level B exclusion zone. Power down is 
defined as reduction of total airgun array volume from either the full-
power airgun array (2,400 in\3\) or the shallow-water source (440 in\3\) 
to a single mitigation gun (maximum 10 in\3\). Power down must be 
followed by shutdown in the event that the animal(s) approach the 
exclusion zones defined for the mitigation gun. Detection of any marine 
mammal within an exclusion zone shall be recorded and reported weekly, 
as described in Sec. 217.135(c)(2), to NMFS Office of Protected 
Resources.
    (i) When a requirement for power down or shutdown is triggered, the 
call for implementation shall be made by the lead PSO on duty and Apache 
shall comply. Any disagreement with a determination made by the lead PSO 
on duty shall be discussed after implementation of power down or 
shutdown, as appropriate.
    (ii) Following a power down or shutdown not exceeding ten minutes, 
Apache shall follow the ramp-up procedure described in paragraph (c)(1) 
of this section to return to full-power operation.
    (iii) Following a shutdown exceeding ten minutes, Apache shall 
follow the exclusion zone clearance, described in paragraph (b)(3) of 
this section, and ramp-up procedures, described in paragraph (c)(1) of 
this section, before returning to full-power operation.
    (3) Survey operations may be conducted during low-visibility 
conditions (e.g., darkness, fog, rain) only when such activity was 
initiated following proper clearance of the exclusion zone under 
acceptable observation conditions, as described in paragraph (b)(3) of 
this section, and there has not been a shutdown exceeding ten minutes. 
Passive acoustic monitoring is required during all non-daylight hours. 
Following a shutdown exceeding ten minutes during low-visibility 
conditions, survey operations must be suspended until the return of good 
visibility or the use of passive acoustic monitoring must be 
implemented. Use of a NMFS-approved passive acoustic monitoring scheme, 
which will be detailed in each LOA, monitored by a trained PSO, will be 
used to listen for marine mammal vocalizations. If no vocalizations are 
observed for 30 minutes, Apache may consider the zone clear and commence 
ramp-up of airguns. During low-visibility conditions, vessel bridge crew 
must implement shutdown procedures if marine mammals are observed.
    (d) Additional mitigation. (1) The mitigation airgun must be 
operated at no more than approximately one shot per minute, and use of 
the gun may not exceed three consecutive hours. Ramp-up may not be used 
to circumvent the three-hour limitation on mitigation gun usage by 
returning guns to higher power momentarily and then returning to 
mitigation airgun.
    (2) Apache shall alter speed or course during seismic operations if 
a marine

[[Page 123]]

mammal, based on its position and relative motion, appears likely to 
enter the relevant exclusion zone and such alteration may result in the 
animal not entering the zone. If speed or course alteration is not safe 
or practicable, or if after alteration the marine mammal still appears 
likely to enter the zone, power down or shutdown must be implemented.
    (3) Apache shall not operate airguns within 16 km of the Mean Lower 
low water (MLLW) line of the Susitna Delta (Beluga River to the Little 
Susitna River) between April 15 and October 15.
    (4) Apache must suspend survey operations if a live marine mammal 
stranding is reported within a distance of two times the 160dB isopleth 
of the seismic source vessel coincident to or within 72 hours of survey 
activities involving the use of airguns, regardless of any suspected 
cause of the stranding. A live stranding event is defined as a marine 
mammal found on a beach or shore and unable to return to the water; on a 
beach or shore and able to return to the water but in apparent need of 
medical attention; or in the water but unable to return to its natural 
habitat under its own power or without assistance.
    (i) Apache must immediately implement a shutdown of the airgun array 
upon becoming aware of the live stranding event within 19 km of the 
seismic array.
    (ii) Shutdown procedures shall remain in effect until NMFS 
determines that all live animals involved in the stranding have left the 
area (either of their own volition or following responder assistance).
    (iii) Within 48 hours of the notification of the live stranding 
event, Apache must inform NMFS where and when they were operating 
airguns, beginning 72 hours before the stranding was first observed, and 
at what discharge volumes.
    (iv) Apache must appoint a contact who can be reached at any time 
for notification of live stranding events. Immediately upon notification 
of the live stranding event, this person must order the immediate 
shutdown of the survey operations.



Sec. 217.135  Requirements for monitoring and reporting.

    (a) Visual monitoring program. (1) Disturbance zones shall be 
established as described in Sec. 217.134(b)(1), and shall encompass the 
Level B harassment zones not defined as exclusion zones in 
Sec. 217.134(b)(1). These zones shall be monitored to maximum line-of-
sight distance from established vessel- and shore-based monitoring 
locations. If belugas or groups of five or more killer whales or harbor 
porpoises are observed approaching the 180 dB exclusion zone, operations 
will power down or shut down. If marine mammals other than beluga whales 
or aggregations of five or greater harbor porpoises or killer whales are 
observed within the 160 dB disturbance zone, the observation shall be 
recorded and communicated as necessary to other PSOs responsible for 
implementing shutdown/power down requirements and any behaviors 
documented.
    (2) Apache shall utilize a shore-based station to visually monitor 
for marine mammals. The shore-based station must be staffed by PSOs 
under the same minimum requirements described in Sec. 217.134(b)(2), 
must be located at an appropriate height to monitor the area ensonified 
by that day's survey operations, must be of sufficient height to observe 
marine mammals within the ensonified area; and must be equipped with 
pedestal-mounted bigeye (25 x 150) binoculars. The shore-based PSOs 
shall scan the defined exclusion and disturbance zones prior to, during, 
and after survey operations, and shall be in contact with vessel-based 
PSOs via radio to communicate sightings of marine mammals approaching or 
within the defined zones.
    (3) When weather conditions allow for safety, Apache shall utilize 
helicopter or fixed-wing aircraft to conduct daily aerial surveys of the 
area that they expect to survey prior to the commencement of operations 
in order to identify locations of beluga whale aggregations (five or 
more whales) or cow-calf pairs. Daily surveys that cover all the area 
potentially surveyed by vessel in that particular day shall be scheduled 
to occur at least thirty but no more than 120 minutes prior to any 
seismic survey-related activities (including but

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not limited to node laying/retrieval or airgun operations) and surveys 
of similar size shall also occur on days when there may be no seismic 
activities. Additionally, weekly comprehensive aerial surveys shall 
occur along and parallel to the shoreline throughout the project area as 
well as the eastern and western shores of central and northern Cook 
Inlet in the vicinity of the survey area.
    (i) When weather conditions allow for safety, aerial surveys shall 
fly at an altitude of 305 m (1,000 ft). In the event of a marine mammal 
sighting, aircraft shall attempt to maintain a lateral distance of 457 m 
(1,500 ft) from the animal(s). Aircraft shall avoid approaching marine 
mammals head-on, flying over or passing the shadow of the aircraft over 
the animal(s).
    (ii) [Reserved]
    (4) PSOs must use NMFS-approved data forms and shall record the 
following information:
    (i) Effort information, including vessel name; PSO name; survey 
type; date; time when survey (observing and activities) began and ended; 
vessel location (latitude/longitude) when survey (observing and 
activities) began and ended; vessel heading and speed (knots).
    (ii) Environmental conditions while on visual survey, including wind 
speed and direction, Beaufort sea state, Beaufort wind force, swell 
height, weather conditions, ice cover (percent of surface, ice type, and 
distance to ice if applicable), cloud cover, sun glare, and overall 
visibility to the horizon (in distance).
    (iii) Factors that may be contributing to impaired observations 
during each PSO shift change or as needed as environmental conditions 
change (e.g., vessel traffic, equipment malfunctions).
    (iv) Activity information, such as the number and volume of airguns 
operating in the array, tow depth of the array, and any other notes of 
significance (e.g., pre-ramp-up survey, ramp-up, power down, shutdown, 
testing, shooting, ramp-up completion, end of operations, nodes).
    (v) When a marine mammal is observed, the following information 
shall be recorded:
    (A) Information related to the PSO including: Watch status (sighting 
made by PSO on/off effort, opportunistic, crew, alternate vessel/
platform, aerial, land); PSO who sighted the animal; time of sighting;
    (B) Vessel information including: Vessel location at time of 
sighting; water depth; direction of vessel's travel (compass direction);
    (C) Mammal-specific physical observations including: Direction of 
animal's travel relative to the vessel (drawing is preferred); pace of 
the animal; estimated distance to the animal and its heading relative to 
vessel at initial sighting; identification of the animal (genus/species/
sub-species, lowest possible taxonomic level, or unidentified; also note 
the composition of the group if there is a mix of species); estimated 
number of animals (high/low/best); estimated number of animals by cohort 
(when possible; adults, yearlings, juveniles, calves, group composition, 
etc.); description (as many distinguishing features as possible of each 
individual seen, including length, shape, color, pattern, scars or 
markings, shape and size of dorsal fin, shape of head, and blow 
characteristics);
    (D) Mammal-specific behavioral observations including: Detailed 
behavioral observations (e.g., number of blows, number of surfaces, 
breaching, spyhopping, diving, feeding, traveling; as explicit and 
detailed as possible; note any observed changes in behavior); animal's 
closest point of approach and/or closest distance from the center point 
of the airgun array; platform activity at time of sighting (e.g., 
deploying, recovering, testing, shooting, data acquisition, other).
    (vi) Description of any actions implemented in response to the 
sighting (e.g., delays, power down, shutdown, ramp-up, speed or course 
alteration); time and location of the action should also be recorded.
    (vii) If mitigation action was not implemented when required, 
description of circumstances.
    (viii) Description of all use of mitigation gun including running 
time, start and stop time, and reason for implementation.
    (5) The data listed in Sec. 217.135(a)(4)(i) and (ii) shall also be 
recorded at the

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start and end of each watch and during a watch whenever there is a 
change in one or more of the variables.
    (b) Onshore seismic effort. (1) When conducting onshore seismic 
effort, in the event that a shot hole charge depth of 10 m is not 
consistently attainable due to loose sediments collapsing the bore hole, 
a sound source verification study must be conducted on the new land-
based charge depths.
    (2) [Reserved]
    (c) Reporting. (1) Apache must immediately report to NMFS at such 
time as 25 total beluga whales (cumulative total during period of 
validity of annual LOA) have been detected within the 160-dB re 1 mPa 
(rms) exclusion zone, regardless of shutdown or power down procedures 
implemented, during seismic survey operations.
    (2) Apache must submit a weekly field report to NMFS Office of 
Protected Resources each Thursday during the weeks when in-water seismic 
survey activities take place. The weekly field reports shall summarize 
species detected (number, location, distance from seismic vessel, 
behavior), in-water activity occurring at the time of the sighting 
(discharge volume of array at time of sighting, seismic activity at time 
of sighting, visual plots of sightings, and number of power downs and 
shutdowns), behavioral reactions to in-water activities, and the number 
of marine mammals exposed to sound at or exceeding relevant thresholds. 
Additionally, Apache must include which km\2\ grid cells were surveyed 
during that week and the resulting number of belugas that may have been 
taken using the Goetz et al. (2012) model. Apache must provide the 
cells, corresponding density, and possible number of beluga exposures 
using the Goetz model for that week, as well as the total from the 
preceding weeks.
    (3) Apache must submit a monthly report, no later than the fifteenth 
of each month, to NMFS Office of Protected Resources for all months 
during which in-water seismic survey activities occur. These reports 
must summarize the information described in paragraph (a)(4) of this 
section and shall also include:
    (i) An estimate of the number (by species) of:
    (A) Pinnipeds that have been exposed to sound (based on visual 
observation) at received levels greater than or equal to 160 dB re 1 mPa 
(rms) and/or 190 dB re 1 mPa (rms) with a discussion of any specific 
behaviors those individuals exhibited; and
    (B) Cetaceans that have been exposed to sound (based on visual 
observation) at received levels greater than or equal to 160 dB re 1 mPa 
(rms) and/or 180 dB re 1 mPa (rms) with a discussion of any specific 
behaviors those individuals exhibited.
    (ii) A description of the implementation and effectiveness of the 
terms and conditions of the Biological Opinion's Incidental Take 
Statement and mitigation measures of the LOA. For the Biological 
Opinion, the report shall confirm the implementation of each Term and 
Condition, as well as any conservation recommendations, and describe 
their effectiveness in minimizing the adverse effects of the action on 
Endangered Species Act-listed marine mammals.
    (4) Apache shall submit an annual report to NMFS Office of Protected 
Resources covering a given calendar year by October 31st annually. The 
annual report shall include summaries of the information described in 
paragraph (a)(4) of this section and shall also include:
    (i) Summaries of monitoring effort (e.g., total hours, total 
distances, and marine mammal distribution through the study period, 
accounting for sea state and other factors affecting visibility and 
detectability of marine mammals);
    (ii) Analyses of the effects of various factors influencing 
detectability of marine mammals (e.g., sea state, number of observers, 
and fog/glare);
    (iii) Species composition, occurrence, and distribution of marine 
mammal sightings, including date, water depth, numbers, age/size/gender 
categories (if determinable), group sizes, and ice cover;
    (iv) Analyses of the effects of survey operations; and
    (v) Sighting rates of marine mammals during periods with and without 
seismic survey activities (and other variables that could affect 
detectability), such as:

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    (A) Initial sighting distances versus survey activity state;
    (B) Closest point of approach versus survey activity state;
    (C) Observed behaviors and types of movements versus survey activity 
state;
    (D) Numbers of sightings/individuals seen versus survey activity 
state;
    (E) Distribution around the source vessels versus survey activity 
state; and
    (F) Numbers of marine mammals (by species) detected in the 160, 180, 
and 190 dB re 1 mPa (rms) zones.
    (5) Apache shall submit a final annual report to the Office of 
Protected Resources, NMFS, within thirty days after receiving comments 
from NMFS on the draft report, by November 30th annually.
    (d) Notification of dead or injured marine mammals. (1) In the event 
that the specified activity clearly causes the take of a marine mammal 
in a manner prohibited by this Authorization, such as an injury (Level A 
harassment), serious injury, or mortality, Apache shall immediately 
cease the specified activities and report the incident to the Office of 
Protected Resources, NMFS, and the Alaska Regional Stranding 
Coordinator, NMFS. The report must include the following information:
    (i) Time, date, and location (latitude/longitude) of the incident;
    (ii) Description of the incident;
    (iii) Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, and visibility);
    (iv) Description of marine mammal observations in the 24 hours 
preceding the incident;
    (v) Species identification or description of the animal(s) involved;
    (vi) Status of all sound source use in the 24 hours preceding the 
incident;
    (vii) Water depth;
    (viii) Fate of the animal(s); and
    (ix) Photographs or video footage of the animal(s).
    (2) Activities shall not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS will work with Apache to 
determine what measures are necessary to minimize the likelihood of 
further prohibited take and ensure MMPA compliance. Apache may not 
resume their activities until notified by NMFS that they may do so.
    (3) In the event that Apache 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), Apache shall immediately report the 
incident to the Office of Protected Resources, NMFS, and the Alaska 
Regional Stranding Coordinator, NMFS. The report must include the same 
information identified in Sec. 217.135(d)(1). If the observed marine 
mammal is dead, activities may continue while NMFS reviews the 
circumstances of the incident. If the observed marine mammal is injured, 
measures described in Sec. 217.134(d)(4) must be implemented. NMFS will 
work with Apache to determine whether additional mitigation measures or 
modifications to the activities are appropriate.
    (4) In the event that Apache 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, scavenger damage), Apache shall report the incident to 
the Office of Protected Resources, NMFS, and the Alaska Regional 
Stranding Coordinator, NMFS, within 24 hours of the discovery. Apache 
shall provide photographs or video footage or other documentation of the 
stranded animal sighting to NMFS. If the observed marine mammal is dead, 
activities may continue while NMFS reviews the circumstances of the 
incident. If the observed marine mammal is injured, measures described 
in Sec. 217.134(d)(4) must be implemented and Apache may not resume 
activities until notified by NMFS that they may do so.



Sec. 217.136  Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to this subpart, 
Apache must apply for and obtain an LOA, as required by Sec. 216.106 of 
this chapter.

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    (b) LOAs issued to Apache, unless suspended or revoked, may be 
effective for a period of time not to exceed one year or the period of 
validity of this subpart.
    (c) An LOA application must be submitted to the Director, Office of 
Protected Resources, NMFS, by December 31st of the year preceding the 
desired start date.
    (d) An LOA application must include the following information:
    (1) The date(s), duration, and the area(s) where the activity will 
occur;
    (2) The species and/or stock(s) of marine mammals likely to be found 
within each area;
    (3) The estimated percentage and numbers of marine mammal species/
stocks potentially affected in each area for the period of effectiveness 
of the Letter of Authorization.
    (4) If an application is for an LOA renewal, it must meet the 
requirements set forth in Sec. 217.137.
    (e) In the event of projected changes to the activity or to 
mitigation and monitoring measures required by an LOA, Apache must apply 
for and obtain a modification of the Letter of Authorization as 
described in Sec. 217.137.
    (f) An LOA will set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact (i.e., 
mitigation) on the species, their habitat, and on the availability of 
the species for subsistence uses; and
    (3) Requirements for monitoring and reporting.
    (g) Issuance of an LOA (including renewals and modifications) will 
be based on a determination by NMFS that the level of taking will be 
consistent with the findings made for the total taking allowable under 
this subpart.
    (h) If NMFS determines that the level of taking is resulting or may 
result in more than a negligible impact on the species or stocks of such 
marine mammal, the LOA may be modified or suspended after notice and a 
public comment period.
    (i) Notice of issuance or denial of a LOA shall be published in the 
Federal Register within 30 days of a determination.



Sec. 217.137  Renewals and modifications of Letters of Authorization
and Adaptive Management.

    (a) An LOA issued under Sec. 216.106 of this chapter and 
Sec. 217.136 for the activity identified in Sec. 217.130(a) may be 
renewed or modified upon request by the applicant, provided the 
following are met (in addition to the determination in Sec. 216.136(e)):
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec. 217.130(a) will be undertaken and that 
there will not be a substantial modification to the described work, 
mitigation or monitoring undertaken during the upcoming or remaining LOA 
period;
    (2) Timely receipt (by the dates indicated) of monitoring reports, 
as required under Sec. 217.135(c)(3).
    (3) A determination by the NMFS that the mitigation, monitoring and 
reporting measures required under Sec. 217.135(c) and the LOA issued 
under Sec. 216.106 and Sec. 217.136, were undertaken and are expected to 
be undertaken during the period of validity of the LOA.
    (b) If a request for a renewal of a Letter of Authorization 
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 as well as the proposed 
modification to the LOA. Review and comment on renewals of Letters of 
Authorization are restricted to:
    (1) New cited information and data indicating that the original 
determinations made for the regulations are in need of reconsideration, 
and
    (2) Proposed changes to the mitigation and monitoring requirements 
contained in this subpart 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) An LOA issued under Sec. 216.106 of this chapter and 
Sec. 217.136 for the activity identified in Sec. 217.130 may be modified 
by NMFS under the following circumstances:

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    (1) Adaptive management. NMFS, in response to new information and in 
consultation with Apache, 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.
    (i) Possible sources of new data that could contribute to the 
decision to modify the mitigation or monitoring measures include:
    (A) Results from Apache's monitoring from the previous year(s).
    (B) Results from 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 this subpart or 
subsequent LOAs.
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, NMFS will 
publish a notice of proposed LOA in the Federal Register and solicit 
public comment.
    (2) NMFS will withdraw or suspend an LOA if, after notice and 
opportunity for public comment, NMFS determines this subpart is not 
being substantially complied with or that the taking allowed is or may 
be having more than a negligible impact on an affected species or stock 
specified in Sec. 217.132(b) or an unmitigable adverse impact on the 
availability of the species or stock for subsistence uses. The 
requirement for notice and comment will not apply if NMFS determines 
that an emergency exists that poses a significant risk to the well-being 
of the species or stocks of marine mammals. Notice would be published in 
the Federal Register within 30 days of such action.



 Subpart O_Taking of Marine Mammals Incidental to Operation of Offshore 
             Oil and Gas Facilities in the U.S. Beaufort Sea

    Source: 78 FR 75507, Dec. 12, 2013, unless otherwise noted.

    Effective Date Note: At 78 FR 75507, Dec. 12, 2013, subpart O was 
added, effective Jan. 13, 2014, through Jan. 14, 2019.



Sec. 217.140  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to BP Exploration 
(Alaska) Inc. (BP) 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 occurs incidental to 
operation of offshore oil and gas facilities in the U.S. Beaufort Sea, 
Alaska, in the Northstar Development Area.
    (b) The taking of marine mammals by BP may be authorized in a Letter 
of Authorization only if it occurs in the geographic region that 
encompasses the Northstar Oil and Gas Development area within state and/
or Federal waters in the U.S. Beaufort Sea.



Sec. 217.141  Effective dates.

    Regulations in this subpart are effective from January 13, 2014 
through January 14, 2019.



Sec. 217.142  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Secs. 216.106 
and 217.148 of this chapter, the Holder of the Letter of Authorization 
(hereinafter ``BP'') may incidentally, but not intentionally, take 
marine mammals within the area described in Sec. 217.140(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 activities identified in Sec. 217.140(a) 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 in Sec. 217.140(a) is limited to the following species and by 
the indicated method and amount of take:
    (1) Level B Harassment:
    (i) Cetaceans:
    (A) Bowhead whale (Balaena mysticetus)--75 (an average of 15 
annually)
    (B) Gray whale (Eschrichtius robustus)--10 (an average of 2 
annually)
    (C) Beluga whale (Delphinapterus leucas)--100 (an average of 20 
annually)

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    (ii) Pinnipeds:
    (A) Ringed seal (Phoca hispida)--155 (an average of 31 annually)
    (B) Bearded seal (Erignathus barbatus)--25 (an average of 5 
annually)
    (C) Spotted seal (Phoca largha)--25 (an average of 5 annually)
    (2) Level A Harassment and Mortality: Ringed seal--25 (an average of 
5 annually)



Sec. 217.143  Prohibitions.

    Notwithstanding takings contemplated in Sec. 217.140 and authorized 
by a Letter of Authorization issued under Secs. 216.106 and 217.148 of 
this chapter, no person in connection with the activities described in 
Sec. 217.140 may:
    (a) Take any marine mammal not specified in Sec. 217.142(c);
    (b) Take any marine mammal specified in Sec. 217.142(c) other than 
by incidental take as specified in Sec. 217.142(c)(1) and (c)(2);
    (c) Take a marine mammal specified in Sec. 217.172(c) if such taking 
results in more than a negligible impact on the species or stocks of 
such marine mammal;
    (d) Take a marine mammal specified in Sec. 217.172(c) if such taking 
results in an unmitigable adverse impact on the species or stock for 
taking for subsistence uses; or
    (e) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or a Letter of Authorization issued under 
Secs. 216.106 and 217.148 of this chapter.



Sec. 217.144  Mitigation.

    (a) When conducting the activities identified in Sec. 217.140(a), 
the mitigation measures contained in the Letter of Authorization issued 
under Secs. 216.106 and 217.148 of this chapter must be implemented. 
These mitigation measures include but are not limited to:
    (1) Ice-covered Season:
    (i) In order to reduce the taking of ringed seals to the lowest 
level practicable, BP must begin winter construction activities, 
principally ice roads, as soon as possible once weather and ice 
conditions permit such activity.
    (ii) Any ice roads or other construction activities that are 
initiated after March 1, in previously undisturbed areas in waters 
deeper than 10 ft (3 m), must be surveyed, using trained dogs in order 
to identify and avoid ringed seal structures by a minimum of 492 ft (150 
m).
    (iii) After March 1 of each year, activities should avoid, to the 
greatest extent practicable, disturbance of any located seal structure.
    (2) Open-water Season:
    (i) BP will establish and monitor, during all daylight hours, a 190 
dB re 1 mPa (rms) exclusion zone for seals around the island for all 
activities with sound pressure levels (SPLs) that are expected to exceed 
that level in waters beyond the Northstar facility on Seal Island.
    (ii) BP will establish and monitor, during all daylight hours, a 180 
dB re 1 mPa (rms) exclusion zone for cetaceans around the island for all 
activities with SPLs that are expected to exceed that level in waters 
beyond the Northstar facility at Seal Island.
    (iii) If any marine mammals are observed within the relevant 
exclusion zone, described in Sec. 217.144(a)(2)(i) or (a)(2)(ii), the 
activity creating the noise will shutdown or reduce its SPL sufficiently 
(i.e., power down) to ensure that received SPLs do not exceed those 
prescribed SPL intensities at the affected marine mammal. The shutdown 
or reduced SPL shall be maintained until such time as the observed 
marine mammal(s) has been seen to have left the applicable exclusion 
zone or until 15 minutes have elapsed in the case of a pinniped or 
odontocete or 30 minutes in the case of a mysticete without resighting, 
whichever occurs sooner.
    (iv) The entire exclusion zones prescribed in Sec. 217.144(a)(2)(i) 
or (a)(2)(ii) must be visible during the entire 30-minute pre-activity 
monitoring time period in order for the activity to begin.
    (v) BP shall employ a ramp-up technique 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.
    (A) If a vibratory driver is used, BP is 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

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two additional times before full energy may be achieved.
    (B) If a non-diesel impact hammer is used, BP is 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.
    (C) If a diesel impact hammer is used, BP is required to turn on the 
sound attenuation device for 15 seconds prior to initiating pile 
driving.
    (vi) New drilling into oil-bearing strata shall not take place 
during either open-water or spring-time broken ice conditions.
    (vii) All non-essential boats, barge, and air traffic will be 
scheduled to avoid periods when bowhead whales are migrating through the 
area where they may be affected by noise from these activities.
    (3) Helicopter flights to support Northstar activities must be 
limited to a corridor from Seal Island to the mainland, and, except when 
limited by weather or personnel safety, must maintain a minimum altitude 
of 1,000 ft (305 m), except during takeoff and landing.
    (4) Additional mitigation measures as contained in a Letter of 
Authorization issued under Secs. 216.106 and 217.148 of this chapter.
    (b) [Reserved]



Sec. 217.145  Measures to ensure availability of species for 
subsistence uses.

    When applying for a Letter of Authorization pursuant to Sec. 217.147 
or a renewal of a Letter of Authorization pursuant to Sec. 217.149, BP 
must submit a Plan of Cooperation that identifies what measures have 
been taken and/or will be taken to minimize any adverse effects on the 
availability of marine mammal species or stocks for taking for 
subsistence uses. A plan shall include the following:
    (a) A statement that the applicant has notified and met with the 
affected subsistence communities to discuss proposed activities and to 
resolve potential conflicts regarding timing and methods of operation;
    (b) A description of what measures BP has taken and/or will take to 
ensure that the proposed activities will not interfere with subsistence 
whaling or sealing; and
    (c) What plans BP has to continue to meet with the affected 
communities to notify the communities of any changes in operation.



Sec. 217.146  Requirements for monitoring and reporting.

    (a) BP must notify the Alaska Regional Office, NMFS, within 48 hours 
of starting ice road construction, cessation of ice road usage, and the 
commencement of icebreaking activities for the Northstar facility.
    (b) BP must designate qualified, on-site individuals, approved in 
advance by NMFS, to conduct the mitigation, monitoring, and reporting 
activities specified in the Letter of Authorization issued under 
Secs. 216.106 and 217.148 of this chapter.
    (c) Monitoring measures during the ice-covered season shall include, 
but are not limited to, the following:
    (1) After March 1, trained dogs must be used to detect seal lairs in 
previously undisturbed areas that may be potentially affected by on-ice 
construction activity, if any. Surveys for seal structures should be 
conducted to a minimum distance of 492 ft (150 m) from the outer edges 
of any disturbance.
    (2) If ice road construction occurs after March 1, conduct a follow-
up assessment in May of that year of the fate of all seal structures 
located during monitoring conducted under paragraph (c)(1) of this 
section near the physically disturbed areas.
    (3) BP shall conduct acoustic measurements to document sound levels, 
characteristics, and transmissions of airborne sounds with expected 
source levels of 90 dBA or greater created by on-ice activity at 
Northstar that have not been measured in previous years. In addition, BP 
shall conduct acoustic measurements to document sound levels, 
characteristics, and transmissions of airborne sounds for sources on 
Northstar Island with expected received levels at the water's edge that 
exceed 90 dBA that have not been measured in previous years.
    (d) Monitoring measures during the open-water season shall include, 
but are not limited to, the following:

[[Page 131]]

    (1) Acoustic monitoring of the bowhead whale migration.
    (2) BP shall monitor the exclusion zones of activities capable of 
producing pulsed underwater sound with levels $180 or $190 dB re 1 mPa 
(rms) at locations where cetaceans or seals could be exposed. At least 
one on-island observer shall be stationed at a location providing an 
unobstructed view of the predicted exclusion zone. The observer(s) shall 
scan the exclusion zone continuously for marine mammals for 30 minutes 
prior to the operation of the sound source. Observations shall continue 
during all periods of operation and for 30 minutes after the cessation 
of the activity. The observer shall record the: species and numbers of 
marine mammals seen within the 180 or 190 dB zones; bearing and distance 
of the marine mammals from the observation point; and behavior of marine 
mammals and any indication of disturbance reactions to the monitored 
activity.
    (e) BP shall conduct any additional monitoring measures contained in 
a Letter of Authorization issued under Secs. 216.106 and 217.148 of this 
chapter.
    (f) BP shall submit an annual report to NMFS within the time period 
specified in a Letter of Authorization issued under Secs. 216.106 and 
217.148 of this chapter.
    (g) If specific mitigation and monitoring are required for 
activities on the sea ice initiated after March 1 (requiring searches 
with dogs for lairs), during the operation of strong sound sources 
(requiring visual observations and shutdown procedures), or for the use 
of new sound sources that have not previously been measured, then a 
preliminary summary of the activity, method of monitoring, and 
preliminary results shall be submitted to NMFS within 90 days after the 
cessation of that activity. The complete description of methods, 
results, and discussion shall be submitted as part of the annual report 
described in paragraph (f) of this section.
    (h) BP shall submit a draft comprehensive report to NMFS, Office of 
Protected Resources, and NMFS, Alaska Regional Office (specific contact 
information to be provided in Letter of Authorization), no later than 
240 days prior to the expiration of the regulations in this subpart. 
This comprehensive technical report shall provide full documentation of 
methods, results, and interpretation of all monitoring during the first 
four and a quarter years of the LOA. Before acceptance by NMFS as a 
final comprehensive report, the draft comprehensive report shall be 
subject to review and modification by NMFS scientists.
    (i)(1) In the unanticipated event that Northstar operations clearly 
causes the death of more than five ringed seals annually or the take of 
a marine mammal in a manner prohibited by this final rule, such as an 
injury (Level A harassment), serious injury or mortality (e.g., ship-
strike, gear interaction), BP shall immediately take steps to cease the 
operations that caused the unauthorized take and report the incident as 
soon as practicable and no later than 24 hours after the incident to the 
Chief of the Permits and Conservation Division, Office of Protected 
Resources, NMFS, or his designee, the Alaska Regional Office, and the 
Alaska Regional Stranding Coordinators (specific contact information to 
be provided in Letter of Authorization). The report must include the 
following information:
    (i) Time, date, and location (latitude/longitude) of the incident;
    (ii) The type of equipment involved in the incident;
    (iii) Description of the incident;
    (iv) Water depth, if relevant;
    (v) Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, and visibility);
    (vi) Species identification or description of the animal(s) 
involved;
    (vii) The fate of the animal(s); and
    (viii) Photographs or video footage of the animal (if equipment is 
available).
    (2) Activities shall not resume until NMFS is able to review the 
circumstances causing the exceedance of the authorized take. NMFS will 
work with BP to identify additional measures to minimize the likelihood 
that more than five ringed seals will not be killed each year (or other 
marine mammal species that may have been injured, seriously injured, or 
killed) from BP's activities. BP may not resume

[[Page 132]]

their activities until notified by NMFS via letter, email, or telephone.
    (3) In the event that BP discovers an injured or dead marine mammal, 
and it is determined that the cause of the injury or death is unknown 
and the death is relatively recent (i.e., in less than a moderate state 
of decomposition as described in the next paragraph), BP will report the 
incident/discovery as soon as practicable and no later than 24 hours 
after the incident/discovery to the Chief of the Permits and 
Conservation Division, Office of Protected Resources, NMFS, by phone or 
email, the Alaska Regional Office, and the NMFS Alaska Stranding Hotline 
and/or by email to the Alaska Regional Stranding Coordinators (specific 
contact information to be provided in Letter of Authorization). The 
report must include the same information identified in 
Sec. 217.146(i)(1). Activities may continue while NMFS reviews the 
circumstances of the incident. NMFS will work with BP to determine 
whether modifications in the activities are appropriate.
    (4) In the event that BP discovers an injured or dead marine mammal, 
and it is determined that the injury or death is not associated with or 
related to the activities authorized in this final rule (e.g., 
previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), BP shall report the incident to the 
Chief of the Permits and Conservation Division, Office of Protected 
Resources, NMFS, by phone or email and the NMFS Alaska Stranding Hotline 
and/or by email to the Alaska Regional Stranding Coordinators (specific 
contact information to be provided in Letter of Authorization), as soon 
as practicable and no later than 24 hours after the discovery. BP shall 
provide photographs or video footage (if available) or other 
documentation of the stranded animal sighting to NMFS and the Marine 
Mammal Stranding Network. Activities may continue while NMFS reviews the 
circumstances of the incident.



Sec. 217.147  Applications for Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, the U.S. Citizen (as defined by Sec. 216.103 of this 
chapter) conducting the activity identified in Sec. 217.140(a) (i.e., 
BP) must apply for and obtain either an initial Letter of Authorization 
in accordance with Sec. 217.148 or a renewal under Sec. 217.149.
    (b) [Reserved]



Sec. 217.148  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) and will not have an 
unmitigable adverse impact on the availability of species or stocks of 
marine mammals for taking for subsistence uses.



Sec. 217.149  Renewal of Letters of Authorization and adaptive
management.

    (a) A Letter of Authorization issued under Sec. 216.106 and 
Sec. 217.148 of this chapter for the activity identified in 
Sec. 217.140(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 under Sec. 217.147 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 receives the monitoring reports required under 
Sec. 217.146(f) and (g); and

[[Page 133]]

    (3) NMFS determines that the mitigation, monitoring and reporting 
measures required under Secs. 217.144 and 217.146 and the Letter of 
Authorization issued under Secs. 216.106 and 217.148 of this chapter 
were undertaken and will be undertaken during the upcoming period of 
validity of a renewed Letter of Authorization.
    (b) If either a request for a renewal of a Letter of Authorization 
issued under Secs. 216.106 and 217.149 of this chapter 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 BP 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 BP'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. 217.150  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 Secs. 216.106 and 
217.148 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 under Sec. 217.149, without modification 
(except for the period of validity), is not considered a substantive 
modification.
    (b) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species or 
stocks of marine mammals specified in Sec. 217.142(c), a Letter of 
Authorization issued pursuant to Secs. 216.106 and 217.148 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 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

[[Page 134]]

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 Secs. 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 in Sec. 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 in Sec. 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 in Sec. 217.151 of this chapter 
and authorized by a LOA issued under Secs. 216.106 and 217.157 of this 
chapter, no person in connection with the activities described in 
Sec. 217.151 of this chapter may:
    (a) Take any marine mammal not specified in Sec. 217.153(b) of this 
chapter;
    (b) Take any marine mammal specified in Sec. 217.153(b) of this 
chapter other than by incidental, unintentional Level B Harassment;
    (c) Take a marine mammal specified in Sec. 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 Secs. 216.106 and 
217.157 of this chapter.



Sec. 217.155  Mitigation.

    (a) When conducting the activities identified in Sec. 217.151(a) of 
this chapter, the mitigation measures contained in any LOA issued under 
Secs. 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:

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    (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 mPa 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 in Sec. 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 mPa rms. For all other activities these zones shall 
include all areas where underwater SPLs are anticipated to equal or 
exceed 120 dB re: 1 mPa 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, 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 in Sec. 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

[[Page 136]]

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.
    (ii) Additional mitigation measures as contained in a LOA issued 
under Secs. 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

[[Page 137]]

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 under Sec. 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 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 in Sec. 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

[[Page 138]]

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, 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 in 
Sec. 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 Secs. 216.106 and 217.157 of this chapter for 
the activity identified in Sec. 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

[[Page 139]]

described and analyzed for these regulations (excluding changes made 
pursuant to the adaptive management provision in Sec. 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 in Sec. 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 Secs. 216.106 and 217.157 of this chapter for 
the activity identified in Sec. 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).
    (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 in Sec. 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-T [Reserved]



 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 in Sec. 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 to Sec. 216.106 
of this chapter and Sec. 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 in 
Sec. 217.200, provided the activity is in compliance with all terms, 
conditions, and requirements of these regulations and the appropriate 
Letter of Authorization.

[[Page 140]]

    (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 in Sec. 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 in Sec. 217.202(b) and 
authorized by a Letter of Authorization issued under Sec. 216.106 of 
this chapter and Sec. 217.207, no person in connection with the 
activities described in Sec. 217.200 may:
    (a) Take any marine mammal not specified in Sec. 217.202(b);
    (b) Take any marine mammal specified in Sec. 217.202(b) other than 
by incidental, unintentional Level B harassment;
    (c) Take a marine mammal specified in Sec. 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 and Sec. 217.207.



Sec. 217.204  Mitigation.

    (a) When conducting operations identified in Sec. 217.200(a), the 
mitigation measures contained in the Letter of Authorization, issued 
under Sec. 216.106 of this chapter and Sec. 217.207, must be 
implemented. These mitigation measures are:
    (1) Through monitoring described under Sec. 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 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

[[Page 141]]

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 to 
Sec. 216.106 of this chapter and Sec. 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 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 in Sec. 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 in Sec. 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;

[[Page 142]]

    (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 by Sec. 216.103 of this 
chapter) conducting the activity identified in Sec. 217.200(a) (the Port 
of Anchorage and MARAD) must apply for and obtain either an initial 
Letter of Authorization in accordance with Sec. 217.207 or a renewal 
under Sec. 217.208.
    (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 in Sec. 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 in Sec. 217.208.
    (b) Each Letter of Authorization will set forth:
    (1) Permissible methods of incidental taking; and

[[Page 143]]

    (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 in Sec. 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 under Sec. 216.106 of this 
chapter and Sec. 217.207 for the activity identified in Sec. 217.200(a) 
will be renewed annually upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec. 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 under 
Sec. 217.205(d) and (e), and the Letter of Authorization issued under 
Sec. 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 Secs. 217.204 and 217.205 and the 
Letter of Authorization issued under Sec. 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 in 
Sec. 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 
under Sec. 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 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 to Sec. 216.106 of this 
chapter and Sec. 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 under Sec. 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 in Sec. 217.202(b), a Letter of 
Authorization issued pursuant to Sec. 216.106 of this chapter and 
Sec. 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.

[[Page 144]]



Subpart W_Taking of Marine Mammals Incidental to the Elliott Bay Seawall 
                                 Project

    Source: 78 FR 63402, Oct. 24, 2013, unless otherwise noted.

    Effective Date Note: At 78 FR 63402, Oct. 24, 2013, subpart W was 
added, effective Oct. 21, 2013, through Oct. 21, 2018.



Sec. 217.220  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the Elliott Bay 
Seawall project 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 incidental to seawall 
construction associated with the Elliott Bay Seawall project.
    (b) The taking of marine mammals by the City of Seattle's Department 
of Transportation (SDOT) may be authorized in a Letter of Authorization 
(LOA) only if it occurs in Elliott Bay, Washington.



Sec. 217.221  Effective dates.

    This subpart is effective October 21, 2013, through October 21, 
2018.



Sec. 217.222  Permissible methods of taking.

    (a) Under LOAs issued pursuant to Secs. 216.106 and 217.226 of this 
chapter, the Holder of the LOA (hereinafter ``SDOT'' and ``City'') may 
incidentally, but not intentionally, take marine mammals within the area 
described in Sec. 217.220(b), 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 in Sec. 217.220(a) is limited to the indicated number of 
Level B harassment takes of the following species/stocks:
    (1) Harbor seal (Phoca vitulina)--3,500 (an average of 700 animals 
per year)
    (2) California sea lion (Zalophus californianus)--875 (an average of 
175 animals per year)
    (3) Steller sea lion (Eumetopias jubatus)--875 (an average of 175 
animals per year)
    (4) Harbor porpoise (Phocoena phocoena)--1,575 (an average of 315 
animals per year)
    (5) Dall's porpoise (Phocoenoides dalli)--350 (an average of 70 
animals per year)
    (6) Killer whale (Orcinus orca), Eastern North Pacific Southern 
resident--80 (a maximum of 16 animals per year)
    (7) Killer whale (Orcinus orca), Eastern North Pacific transient--
120 (an average of 24 animals per year)
    (8) Gray whale (Eschrichtius robustus)--40 (an average of 8 animals 
per year)
    (9) Humpback whale (Megaptera novaeangliae)--20 (an average of 4 
animals per year)



Sec. 217.223  Prohibitions.

    Notwithstanding takings contemplated in Sec. 217.222(b) and 
authorized by an LOA issued under Sec. 216.106 and Sec. 217.226 of this 
chapter, no person in connection with the activities described in 
Sec. 217.220 may:
    (a) Take any marine mammal not specified in Sec. 217.222(b);
    (b) Take any marine mammal specified in Sec. 217.222(b) other than 
by incidental, unintentional Level B harassment;
    (c) Take a marine mammal specified in Sec. 217.222(b) if NMFS 
determines such taking results in more than a negligible impact on the 
species or stock of such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or an LOA issued under Secs. 216.106 and 
217.226 of this chapter.



Sec. 217.224  Mitigation.

    (a) When conducting the activities identified in Sec. 217.220(a), 
the mitigation measures contained in the LOA issued under Secs. 216.106 
and 217.226 of this chapter must be implemented. These mitigation 
measures include:
    (1) Limited Impact Pile Driving. (i) All sheet piles shall be 
installed using a vibratory driver, unless impact driving is required to 
install piles that encounter consolidated sediments or for proofing load 
bearing sections.
    (ii) Any impact driver used in conjunction with vibratory pile 
driving

[[Page 145]]

shall employ sound attenuation devices, where applicable.
    (iii) Any attenuation devices that become available for vibratory 
pile driving shall be considered for additional mitigation.
    (2) Containment of Impact Pile Driving. The majority of permanent 
concrete piles shall be driven behind the temporary containment wall.
    (3) Additional Attenuation Measures. In the event that underwater 
sound monitoring shows that noise generation from pile installation 
exceeds the levels originally expected, SDOT shall immediately notify 
NMFS so it can evaluate the need for implementation of additional 
attenuation devices or other mitigation measures.
    (4) Ramp-up. (i) Ramp-up shall be used at the beginning of each 
day's in-water pile-related activities or if pile driving has ceased for 
more than 1 hour.
    (ii) If a vibratory hammer is used, contractors shall initiate sound 
from vibratory hammers for 15 seconds at reduced energy followed by a 1-
minute waiting period. This procedure shall be repeated two additional 
times before full energy may be achieved.
    (iii) If a non-diesel impact hammer is used, contractors shall 
provide an initial set of strikes from the impact hammer at reduced 
energy, followed by a 1-minute waiting period, then two subsequent sets.
    (iv) Ramp-up shall be implemented if pile driving or removal is 
delayed or shutdown for >15 minutes due to the presence of a delphinid 
or pinniped within or approaching the exclusion zone, or if pile driving 
or removal is delayed or shutdown for >30 minutes due to the presence of 
a large whale.
    (5) Marine Mammal Exclusion Zones. (i) The following exclusion zones 
shall be established to prevent the Level A harassment of all marine 
mammals and to reduce the Level B harassment of large whales:
    (A) An exclusion zone for delphinids or pinnipeds shall be 
established with a radius of 200 feet (61 meters) waterward of each 
steel sheet pile during impact pile driving;
    (B) An exclusion zone for delphinids and pinnipeds shall be 
established with a radius of 50 feet (15 meters) waterward of each 
concrete pile during impact pile driving;
    (C) An exclusion zone for large whales shall be established with a 
radius of 3,280 feet (1,000 meters) waterward of each steel sheet or 
concrete pile during impact pile driving;
    (D) An exclusion zone for large whales shall be established with a 
radius of 2.5 miles (3,981 meters) waterward of each steel sheet pile 
during vibratory pile driving.
    (ii) Temporary buoys shall be used, as feasible, to mark the 
distance to each exclusion zone during in-water pile-related activities.
    (iii) The exclusion zones shall be used to provide a physical 
threshold for the shutdown of in-water pile-related activities.
    (iv) At the start of in-water pile related activities each day, a 
minimum of one qualified protected species observer shall be staged on 
land (or an adjacent pier) near the location of in-water pile-related 
activities to document and report any marine mammal that approaches or 
enters a relevant exclusion zone throughout the day.
    (v) Additional land-based observers shall be deployed if needed to 
ensure the construction area is adequately monitored.
    (vi) Observers shall monitor for the presence of marine mammals 30 
minutes before, during, and for 30 minutes after any in-water pile-
related activities.
    (vii) In-water pile-related activities shall not occur if any part 
of the exclusion zones are obscured by fog or poor lighting conditions.
    (6) Shutdown and Delay Procedures. (i) If a marine mammal is seen 
approaching or entering a relevant exclusion zone (as specified in 
Sec. 217.224(5)(i)), observers will immediately notify the construction 
personnel operating the pile-related equipment to shut down pile-related 
activities.
    (ii) If a marine mammal(s) is present within the applicable 
exclusion zone prior to in-water pile-related activities, pile driving/
removal shall be delayed until the animal(s) has left the exclusion zone 
or until 15 minutes (pinniped or small cetacean) or 30 minutes (large 
cetacean) have elapsed without observing the animal.

[[Page 146]]

    (7) Additional mitigation measures as contained in an LOA issued 
under Secs. 216.106 and 217.226 of this chapter.



Sec. 217.225  Requirements for monitoring and reporting.

    (a) When conducting the activities identified in Sec. 217.220(a), 
the monitoring and reporting measures contained in the LOA issued under 
Secs. 216.106 and 217.226 of this chapter must be implemented. These 
measures include:
    (1) Visual Monitoring. (i) In addition to the mitigation monitoring 
described in Sec. 217.224 of this chapter, at least two protected 
species observers shall be positioned on land near the 2.5 mile 
exclusion zone to monitor for marine mammals during vibratory pile-
related activities or any other construction activities that may pose a 
threat to marine mammals.
    (A) Observers shall use the naked eye, wide-angle binoculars with 
reticles, and any other necessary equipment to scan the Level B 
harassment isopleth.
    (B) Observers shall work, on average, eight hours per day and shall 
be relieved by a fresh observer if pile driving lasts longer than usual 
(i.e., 12-16 hours).
    (C) The number of observers shall be increased and/or positions 
changed to ensure full visibility of the Level B harassment isopleth.
    (D) Land-based visual monitoring shall be conducted during all days 
of vibratory pile driving.
    (E) All land-based monitoring shall begin at least 30 minutes prior 
to the start of in-water pile-related activities, and continue during 
active construction and for 30 minutes following the end of in-water 
pile-related activities.
    (ii) At a minimum, observers shall record the following information:
    (A) Date of observation period, monitoring type (land-based/boat-
based), observer name and location, climate and weather conditions, and 
tidal conditions;
    (B) Environmental conditions that could confound marine mammal 
detections and when/where they occurred;
    (C) For each marine mammal sighting, the time of initial sighting 
and duration to the end of the sighting period;
    (D) Observed species, number, group composition, distance to pile-
related activities, and behavior of animals throughout the sighting;
    (E) Discrete behavioral reactions, if apparent;
    (F) Initial and final sighting locations marked on a grid map; and
    (G) Pile-related activities taking place during each sighting and 
if/why a shutdown was or was not triggered.
    (2) Acoustic Monitoring. (i) Acoustic monitoring shall be conducted 
during in-water pile-related activities to identify or confirm noise 
levels for pile-related activities during in-water construction.
    (A) Acoustic data shall be collected using hydrophones connected to 
a drifting boat to reduce the effect of flow noise and an airborne 
microphone. There shall be a direct line of acoustic transmission 
through the water column between the pile and the hydrophones in all 
cases, without any interposing structures, including other piles.
    (B) A stationary two-channel hydrophone recording system shall be 
deployed to record a representative sample (subset of piles) during the 
monitoring period. Acoustic data shall be collected 1 m below the water 
surface and 1 m above the sea floor.
    (ii) Background noise recordings (in the absence of pile driving) 
shall be collected to provide a baseline background noise profile. The 
results and conclusions of the study shall be summarized and presented 
to NMFS with recommendations for any modifications to the monitoring 
plan or exclusion zones.
    (iii) All sensors, signal conditioning equipment, and sampling 
equipment shall be calibrated at the start of the monitoring period and 
rechecked at the start of each day.
    (iv) Prior to monitoring, water depth measurements shall be taken to 
ensure that hydrophones do not drag on the bottom during tidal changes.
    (v) Underwater and airborne acoustic monitoring shall occur for the 
first five steel sheet pile and the first five concrete piles during the 
duration of pile driving. If a representative sample has not been 
achieved after the five piles have been monitored (e.g., if there is

[[Page 147]]

high variability of sound levels between pilings), acoustic monitoring 
shall continue until a representative acoustic sample has been 
collected.
    (vi) Acoustic data shall be downloaded periodically (i.e., daily or 
on another appropriate schedule) and analyzed following the first year 
of construction. Post-analysis of underwater sound level signals shall 
include the following:
    (A) RMS values (average, standard deviation/error, minimum, and 
maximum) for each recorded pile. The 10-second RMS averaged values will 
be used for determining the source value and extent of the 120 dB 
underwater isopleth;
    (B) Frequency spectra for each functional hearing group; and
    (C) Standardized underwater source levels to a reference distance of 
10 m (33 ft).
    (vii) Post-analysis of airborne noise would be presented in an 
unweighted format and include:
    (A) The unweighted RMS values (average, minimum, and maximum) for 
each recorded pile. The average values would be used for determining the 
extent of the airborne isopleths relative to species-specific criteria;
    (B) Frequency spectra from 10 Hz to 20 kHz for representative pile-
related activity; and
    (C) Standardized airborne source levels to a reference distance of 
approximately 15 m (50 ft).
    (viii) In the event noise levels surpass estimated levels for 
extended periods of time, construction shall be stopped and NMFS shall 
be contacted to discuss the cause and potential solutions.
    (3) General Reporting. (i) All marine mammal sightings shall be 
documented by observers on a NMFS-approved sighting form.
    (ii) Marine mammal reporting shall include all data described 
previously under Proposed Monitoring, including observation dates, 
times, and conditions, and any correlations of observed marine mammal 
behavior with activity type and received levels of sound, to the extent 
possible.
    (iii) A report with the results of all acoustic monitoring shall 
include the following:
    (A) Size and type of piles;
    (B) A detailed description of any sound attenuation device used, 
including design specifications;
    (C) The impact hammer energy rating used to drive the piles, make 
and model of the hammer(s), and description of the vibratory hammer;
    (D) A description of the sound monitoring equipment;
    (E) The distance between hydrophones and depth of water and the 
hydrophone locations;
    (F) The depth of the hydrophones;
    (G) The distance from the pile to the water's edge;
    (H) The depth of water in which the pile was driven;
    (I) The depth into the substrate that the pile was driven;
    (J) The physical characteristics of the bottom substrate into which 
the pile were driven;
    (K) The total number of strikes to drive each pile;
    (L) The results of the hydroacoustic monitoring, including the 
frequency spectrum, ranges and means for the peak and RMS sound pressure 
levels, and an estimation of the distance at which RMS values reach the 
relevant marine mammal thresholds and background sound levels.
    (M) Vibratory driving results would include the maximum and overall 
average RMS calculated from 30-s RMS values during the drive of the 
pile; and
    (N) A description of any observable marine mammal behavior in the 
immediate area and, if possible, correlation to underwater sound levels 
occurring at that time.
    (iv) An annual report on monitoring and mitigation shall be 
submitted to NMFS, Office of Protected Resources, and NMFS, Northwest 
Regional Office. The annual reports shall summarize include data 
collected for each marine mammal species observed in the project area, 
including descriptions of marine mammal behavior, overall numbers of 
individuals observed, frequency of observation, any behavioral changes 
and the context of the changes relative to activities would also be 
included in the annual reports, date and time of marine mammal 
detections, weather conditions, species identification, approximate 
distance from the

[[Page 148]]

source, and activity at the construction site when a marine mammal is 
sighted.
    (v) A draft comprehensive report on monitoring and mitigation shall 
be submitted to NMFS, Office of Protected Resources, and NMFS, Northwest 
Regional Office, 180 days prior to the expiration of the regulations. 
The comprehensive technical report shall provide full documentation of 
methods, results, and interpretation of all monitoring during the first 
4.5 years of the regulations. A revised final comprehensive technical 
report, including all monitoring results during the entire period of the 
regulations, shall be due 90 days after the end of the period of 
effectiveness of the regulations.
    (4) 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 an LOA (if issued), such as 
an injury (Level A harassment), serious injury, or mortality, the Holder 
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 Northwest Regional Stranding 
Coordinator. 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).
    (ii) Activities shall not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS will work with the Holder to 
determine what measures are necessary to minimize the likelihood of 
further prohibited take and ensure MMPA compliance. The Holder may not 
resume their activities until notified by NMFS.
    (iii) In the event that the Holder discovers an injured or dead 
marine mammal, and the lead protected species observer 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), the 
Holder shall immediately report the incident to the Chief of the Permits 
and Conservation Division, Office of Protected Resources, NMFS, and the 
Northwest Regional Stranding Coordinator. The report must include the 
same information identified in Sec. 217.225(a)(3) of this chapter. 
Activities may continue while NMFS reviews the circumstances of the 
incident. NMFS will work with the Holder to determine whether additional 
mitigation measures or modifications to the activities are appropriate.
    (iv) In the event that the Holder discovers an injured or dead 
marine mammals, and the lead protected species observer 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), the Holder 
shall report the incident to the Chief of the Permits and Conservation 
Division, Office of Protected Resources, NMFS, and the Northwest 
Regional Stranding Coordinator, within 24 hours of the discovery. The 
Holder shall provide photographs or video footage or other documentation 
of the stranding animal sighting to NMFS.



Sec. 217.226  Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, the applicant must apply for and obtain an LOA.
    (b) An 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, the Holder 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, the Holder must 
apply for and obtain a modification of the LOA as described in 
Sec. 217.227.
    (e) The LOA shall set forth:

[[Page 149]]

    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact (i.e., 
mitigation) on the species and its habitat; 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 an LOA shall be published in the 
Federal Register within 30 days of a determination.



Sec. 217.227  Renewals and Modifications of Letters of Authorization.

    (a) An LOA issued under Secs. 216.106 and 217.226 of this chapter 
for the activity identified in Sec. 217.220(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 in 
Sec. 217.227(c)(1)), 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 in Sec. 217.227(c)(1)) that do not change the findings made 
for the regulations or that 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 comments before issuing the LOA.
    (c) An LOA issued under Secs. 216.106 and 217.226 of this chapter 
for the activity identified in Sec. 217.220(a) 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 the Holder 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 
include the following:
    (A) Results from the Holder'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 comments.
    (2) Emergencies--If NMFS determines that an emergency exists that 
poses a significant risk to the well-being of the species or stocks of 
marine mammals specified in Sec. 217.222(b), an LOA may be modified 
without prior notice or opportunity for public comment. Notice of such 
action will be published in the Federal Register within 30 days of the 
action.

[74 FR 35143, July 20, 2009, as amended at 76 FR 16318, Mar. 23, 2011; 
76 FR 34172, June 13, 2011; 77 FR 31544, May 29, 2012; 78 FR 20816, Apr. 
8, 2013; 78 FR 63402, Oct. 24, 2013; 78 FR 75507, Dec. 12, 2013; 79 FR 
10026, Feb. 24, 2014; 79 FR 32684, June 6, 2014]



  Subpart X_Taking Marine Mammals Incidental to Rehabilitation of the 
Jetty System at the Mouth of the Columbia River in Oregon and Washington

    Source: 82 FR 10306, Feb. 10, 2017, unless otherwise noted.

[[Page 150]]


    Effective Date Note: At 82 FR 10306, Feb. 10, 2017, subpart X was 
added, effective May 1, 2017, through Apr. 30, 2022.



Sec. 217.230  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the U.S. Army Corps of 
Engineers (Corps) 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 occurs incidental to 
the jetty rehabilitation program.
    (b) The taking of marine mammals by the Corps may be authorized in a 
Letter of Authorization (LOA) only if it occurs within the nearshore 
marine environment at the Mouth of the Columbia River in Oregon and 
Washington.



Sec. 217.231  Effective dates.

    Regulations in this subpart are effective May 1, 2017 through April 
30, 2022.



Sec. 217.232  Permissible methods of taking.

    Under LOAs issued pursuant to Sec. 216.106 of this chapter and 
Sec. 217.236, the Holder of the LOA (hereinafter ``Corps'') may 
incidentally, but not intentionally, take marine mammals within the area 
described in Sec. 217.230(b), provided the activity is in compliance 
with all terms, conditions, and requirements of the regulations in this 
subpart and the appropriate LOA.



Sec. 217.233  Prohibitions.

    (a) Notwithstanding takings contemplated in Sec. 217.230 and 
authorized by an LOA issued under Sec. 216.106 of this chapter and 
Sec. 217.236, no person in connection with the activities described in 
Sec. 217.230 may:
    (1) Take any marine mammal not specified in Sec. 217.236;
    (2) Take any marine mammal specified in Sec. 217.236(a) other than 
by incidental Level B harassment;
    (3) Take a marine mammal specified in Sec. 217.236 if the National 
Marine Fisheries Service (NMFS) determines such taking results in more 
than a negligible impact on the species or stocks of such marine mammal;
    (4) Take a marine mammal specified in Sec. 217.236 if NMFS 
determines such taking results in an unmitigable adverse impact on the 
species or stock of such marine mammal for taking for subsistence uses; 
or
    (5) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or an LOA issued under Sec. 216.106 of this 
chapter and Sec. 217.236.
    (b) [Reserved]



Sec. 217.234  Mitigation requirements.

    (a) When conducting the activities identified in Sec. 217.130(a), 
the mitigation measures contained in any LOA issued under Sec. 216.106 
of this chapter and Sec. 217.236 must be implemented. These mitigation 
measures include, but are not limited to:
    (1) General conditions:
    (i) The Corps shall conduct briefings as necessary between vessel 
crews, the marine mammal monitoring team, and other relevant personnel 
prior to the start of all pile driving and removal activity, and when 
new personnel join the work, in order to explain responsibilities, 
communication procedures, marine mammal monitoring protocol, and 
operational procedures;
    (ii) Each Marine Mammal Observer (MMO) will maintain a copy of the 
LOA at their respective monitoring location, as well as a copy in the 
main construction office;
    (iii) Pile activities are limited to the use of a vibratory hammer. 
Impact hammers are prohibited;
    (iv) Pile installation/maintenance/removal activities are limited to 
the time frame starting May 1 and ending September 30 each season; and
    (v) The Corps must notify NMFS' West Coast Regional Office (562-980-
3232), at least 24-hours prior to start of activities impacting marine 
mammals.
    (2) [Reserved]
    (b) Establishment of Level B harassment zone:
    (1) The Corps shall establish Level B behavioral harassment Zone of 
Influence (ZOI) where received underwater sound pressure levels (SPLs) 
are higher than 120 dB (rms) re 1 mPa for non-pulse sources (i.e., 
vibratory hammer). The ZOI delineates where Level B harassment would 
occur; and

[[Page 151]]

    (2) For vibratory driving, the level B harassment area is comprised 
of a radius between the shutdown zone for a specified species and 7.35 
km from driving operations.
    (c) Establishment of shutdown zone:
    (1) Under LOAs issued pursuant to Sec. 216.106 of this chapter and 
Sec. 217.236, the Corps shall establish shutdown zones that are in 
compliance with all terms, conditions, and requirements of the 
regulations in this subpart and the appropriate LOA;
    (2) For in-water heavy machinery work other than pile driving 
(using, e.g., standard barges, tug boats, barge-mounted excavators, or 
clamshell equipment used to place or remove material), operations shall 
cease if a marine mammal comes within 20 m and vessels shall reduce 
speed to the minimum level required to maintain steerage and safe 
working conditions;
    (3) If a marine mammal approaches or enters the shutdown zone during 
the course of vibratory pile driving operations, the activity will be 
halted and delayed until the animal has voluntarily left and been 
visually confirmed beyond the shutdown zone or 15 minutes have passed 
with the animal being resighted;
    (4) If a marine mammal is seen above water within or approaching a 
shutdown zone then dives below, the contractor would wait 15 minutes. If 
no marine mammals are seen by the observer in that time it will be 
assumed that the animal has moved beyond the exclusion zone;
    (5) If the shutdown zone is obscured by fog or poor lighting 
conditions, pile driving shall not be initiated until the entire 
shutdown zone is visible;
    (6) Disturbance zones shall be established as described in paragraph 
(b) of this section, and shall encompass the Level B harassment zones 
established by LOAs issued pursuant to Sec. 216.106 of this chapter and 
Sec. 217.236 provided the activity is in compliance with all terms, 
conditions, and requirements of the regulations in this subpart and the 
appropriate LOA. These zones shall be monitored to maximum line-of-sight 
distance from established vessel- and shore-based monitoring locations. 
If marine mammals other than those listed in Sec. 216.106 and 
Sec. 217.236 are observed within the disturbance zone, the observation 
shall be recorded and communicated as necessary to other MMOs 
responsible for implementing shutdown/power down requirements and any 
behaviors documented;
    (7) Between May 1 and July 1, the observation of any killer whales 
within the ZOI shall result in immediate shut-down all of pile 
installation, removal, or maintenance activities. Pile driving shall not 
resume until all killer whales have moved outside of the ZOI; and
    (8) After July 1, no shutdown is required for Level B killer whale 
take, but animals must be recorded as Level B take in the monitoring 
forms described below.
    (d) If the allowable number of takes for any marine mammal species 
in Sec. 216.106 of this chapter and Sec. 217.236 is exceeded, or if any 
marine mammal species not listed in Sec. 216.236 is exposed to SPLs 
greater than or equal to 120 dB re 1 mPa (rms), the Corps shall 
immediately shutdown activities involving the use of active sound 
sources (e.g., vibratory pile driving equipment), record the 
observation, and notify NMFS Office of Protected Resources.



Sec. 217.235  Requirements for monitoring and reporting.

    (a) Monitoring. (1) Qualified Marine Mammal Observers (MMOs) shall 
be used for both shore and vessel-based monitoring;
    (2) All MMOs must be approved by NMFS;
    (3) A qualified MMO is a third-party trained biologist with the 
following minimum qualifications:
    (i) Visual acuity in both eyes (correction is permissible) 
sufficient to discern moving targets at the water's surface with ability 
to estimate target size and distance. Use of binoculars or spotting 
scope may be necessary to correctly identify the target;
    (ii) Advanced education in biological science, wildlife management, 
mammalogy or related fields (Bachelor's degree or higher is preferred);
    (iii) Experience and ability to conduct field observations and 
collect data according to assigned protocols (this may include academic 
experience);

[[Page 152]]

    (iv) Experience or training in the field identification of marine 
mammals (cetaceans and pinnipeds);
    (v) Sufficient training, orientation or experience with vessel 
operation and pile driving operations to provide for personal safety 
during observations;
    (vi) Writing skills sufficient to prepare a report of observations; 
and
    (vii) Ability to communicate orally, by radio, or in-person with 
project personnel to provide real time information on marine mammals 
observed in the area, as needed.
    (4) MMOs must be equipped with the following:
    (i) Binoculars (10x42 or similar), laser rangefinder, GPS, big eye 
binoculars and/or spotting scope 20-60 zoom or equivalent; and
    (ii) Camera and video capable of recording any necessary take 
information, including data required in the event of an unauthorized 
take; and
    (5) MMOs shall conduct monitoring as follows;
    (i) During all pile driving and removal activities;
    (ii) Only during daylight hours from sunrise to sunset when it is 
possible to visually monitor mammals;
    (iii) Scan the waters for 30 minutes before and during all pile 
driving. If any species for which take is not authorized are observed 
within the area of potential sound effects during or 30 minutes before 
pile driving, the MMO(s) will immediately notify the on-site supervisor 
or inspector, and require that pile driving either not initiate or 
temporarily cease until the animals have moved outside of the area of 
potential sound effects;
    (iv) If weather or sea conditions restrict the observer's ability to 
observe, or become unsafe for the monitoring vessel(s) to operate, pile 
installation shall not begin or shall cease until conditions allow for 
monitoring to resume;
    (v) Trained land-based observers will be placed at the best vantage 
points practicable. The observers' position(s) will either be from the 
top of jetty or adjacent barge at the location of the pile activities 
and from Cape Disappointment Visitors Center during work at North and 
South Jetty, and Clatsop Spit for work at Jetty A;
    (vi) Vessel-based monitoring for marine mammals must be conducted 
for all pile-driving activities at the North Jetty and two South Jetty 
offloading facilities. Two vessels may be utilized as necessary to 
adequately monitor the offshore ensonified zone;
    (vii) Any marine mammals listed in Sec. 217.236 entering into the 
Level B harassment zone will be recorded as take by the MMO and listed 
on the appropriate monitoring forms described below;
    (viii) During pedestrian surveys, personnel will avoid as much as 
possible direct approach towards pinnipeds that are hauled out. If it is 
absolutely necessary to make movements towards pinnipeds, personnel will 
approach in a slow and steady manner to reduce the behavioral harassment 
to the animals as much as possible; and
    (ix) Hydroacoustic monitoring shall be performed using methodology 
described in the November 2016 Addendum containing the Hydroacoustic 
Monitoring Plan.
    (b) Reporting. (1) MMOs must use NMFS-approved monitoring forms and 
shall record the following information when a marine mammal is observed:
    (i) Date and time that pile removal and/or installation begins and 
ends;
    (ii) Construction activities occurring during each observation 
period;
    (iii) Weather parameters (e.g., percent cover, visibility);
    (iv) Water conditions [e.g., sea state, tidal state (incoming, 
outgoing, slack, low, and high)];
    (v) Species, numbers, and, if possible, sex and age class of marine 
mammals;
    (vi) Marine mammal behavior patterns observed, including bearing and 
direction of travel, and, if possible, the correlation to SPLs;
    (vii) Distance from pile removal and/or installation activities to 
marine mammals and distance from the marine mammal to the observation 
point;
    (viii) Locations of all marine mammal observations; and
    (ix) Other human activity in the area.
    (2) [Reserved]
    (c) Annual report. (1) The Corps shall submit a draft annual report 
to NMFS Office of Protected Resources covering a given calendar year 
within 90 days of

[[Page 153]]

the last day of pile driving operations. The annual report shall include 
summaries of the information described in paragraph (b)(1) of this 
section.
    (2) The Corps shall submit a final annual report to the Office of 
Protected Resources, NMFS, within 30 days after receiving comments from 
NMFS on the draft report.
    (d) Notification of dead or injured marine mammals. (1) In the 
unanticipated event that the specified activity clearly causes the take 
of a marine mammal in a manner prohibited by this Authorization, such as 
an injury, serious injury, or mortality, The Corps shall immediately 
cease the specified activities and report the incident to the Office of 
Protected Resources, NMFS, and the West Coast Regional Stranding 
Coordinator, NMFS.
    (i) The report must include the following information:
    (A) Time, date, and location (latitude/longitude) 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 marine mammal observations in the 24 hours 
preceding the incident;
    (E) Species identification or description of the animal(s) involved;
    (F) Status of all sound source use in the 24 hours preceding the 
incident;
    (G) Fate of the animal(s); and
    (H) 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 shall work with the Corps to determine what 
measures are necessary to minimize the likelihood of further prohibited 
take and ensure MMPA compliance. The Corps may not resume their 
activities until notified by NMFS.
    (ii) In the event that the Corps discovers an injured or dead marine 
mammal, and the lead MMO 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), the Corps shall immediately report 
the incident to the Office of Protected Resources, NMFS, and the West 
Coast Regional Stranding Coordinator, NMFS. The report must include the 
same information identified in this paragraph (d). If the observed 
marine mammal is dead, activities may continue while NMFS reviews the 
circumstances of the incident. If the observed marine mammal is injured, 
measures described in this paragraph (d) must be implemented. NMFS will 
work with the Corps to determine whether additional mitigation measures 
or modifications to the activities are appropriate.
    (iii) In the event that the Corps discovers an injured or dead 
marine mammal, and the lead MMO 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, scavenger damage), the Corps shall report the incident to 
the Office of Protected Resources, NMFS, and the West Coast Regional 
Stranding Coordinator, NMFS, within 24 hours of the discovery. The Corps 
shall provide photographs or video footage or other documentation of the 
stranded animal sighting to NMFS. If the observed marine mammal is dead, 
activities may continue while NMFS reviews the circumstances of the 
incident. If the observed marine mammal is injured, measures described 
in this paragraph (d) must be implemented. In this case, NMFS will 
notify the Corps when activities may resume.



Sec. 217.236  Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, the Corps must apply for and obtain an LOA.
    (b) An 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, the Corps may apply for and obtain a renewal of the Letter 
of Authorization.
    (d) In the event of projected changes to the activity or to 
mitigation and monitoring measures required by an LOA, the Corps must 
apply for and obtain a modification of the Letter of Authorization as 
described in Sec. 217.237.
    (e) The LOA shall set forth:

[[Page 154]]

    (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 an LOA shall be published in the 
Federal Register within thirty days of a determination.



Sec. 217.237  Renewals and modifications of Letters of Authorization.

    (a) An LOA issued under Sec. 216.106 of this chapter and 
Sec. 217.236 for the activity identified in Sec. 217.230(a) shall be 
renewed or modified upon request by the applicant, provided that:
    (1) The 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 in paragraph (c)(1) of 
this section); 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 in Sec. 217.247(c)(1)) 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 LOA in the Federal Register, including the 
associated analysis of the change, and solicit public comment before 
issuing the LOA.
    (c) An LOA issued under Sec. 216.106 of this chapter and 
Sec. 217.236 for the activity identified in Sec. 217.230(a) 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 the Corps 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 the Corps' monitoring from the previous year(s);
    (B) Results from other marine mammal and/or sound research or 
studies; and
    (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; and
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, NMFS will 
publish a notice of LOA in the Federal Register and solicit public 
comment; and
    (2) Emergencies--If NMFS determines that an emergency exists that 
poses a significant risk to the well-being of the species or stocks of 
marine mammals specified in Sec. 217.236, an LOA may be modified without 
prior notice or opportunity for public comment. Notice will be published 
in the Federal Register within thirty days of the action.



                          Subpart Y [Reserved]

    Effective Date Note: At 82 FR 26373, June 7, 2017, subpart Y was 
added, effective July 12, 2017, through July 11, 2022.



     Subpart Z_Taking Marine Mammals Incidental to Navy Waterfront 
        Construction Activities at Naval Submarine Base Kings Bay

    Source: 82 FR 26373, June 7, 2017, unless otherwise noted.

[[Page 155]]


    Effective Date Note: At 82 FR 26373, June 7, 2017, subpart Z was 
added, effective July 12, 2017, through July 11, 2022.



Sec. 217.250  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the U.S. Navy (Navy), 
and those persons it authorizes or funds 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 occurs incidental to 
waterfront construction activities.
    (b) The taking of marine mammals by Navy may be authorized in a 
Letter of Authorization (LOA) only if it occurs within waters adjacent 
to Naval Submarine Base Kings Bay and Crab Island.



Sec. 217.251  Effective dates.

    Regulations in this subpart are effective from July 12, 2017, 
through July 11, 2022.



Sec. 217.252  Permissible methods of taking.

    Under LOAs issued pursuant to Sec. 216.106 of this chapter and 
Sec. 217.256, the Holder of the LOA (hereinafter ``Navy'') may 
incidentally, but not intentionally, take marine mammals within the area 
described in Sec. 217.250(b) by Level B harassment associated with 
waterfront construction activities, provided the activity is in 
compliance with all terms, conditions, and requirements of the 
regulations in this subpart and the appropriate LOA.



Sec. 217.253  Prohibitions.

    Notwithstanding takings contemplated in Sec. 217.250 and authorized 
by a LOA issued under Sec. 216.106 of this chapter and Sec. 217.256, no 
person in connection with the activities described in Sec. 217.250 may:
    (a) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or a LOA issued under Sec. 216.106 of this 
chapter and Sec. 217.256;
    (b) Take any marine mammal not specified in such LOAs;
    (c) Take any marine mammal specified in such LOAs in any manner 
other than as specified;
    (d) Take a marine mammal specified in such LOAs if NMFS determines 
such taking results in more than a negligible impact on the species or 
stocks of such marine mammal; or
    (e) Take a marine mammal specified in such LOAs if NMFS determines 
such taking results in an unmitigable adverse impact on the species or 
stock of such marine mammal for taking for subsistence uses.



Sec. 217.254  Mitigation requirements.

    When conducting the activities identified in Sec. 217.250, the 
mitigation measures contained in any LOA issued under Sec. 216.106 of 
this chapter and Sec. 217.256 must be implemented. These mitigation 
measures shall include but are not limited to:
    (a) General conditions:
    (1) A copy of any issued LOA must be in the possession of the Navy, 
its designees, and work crew personnel operating under the authority of 
the issued LOA.
    (2) The Navy shall conduct briefings for construction supervisors 
and crews, marine mammal monitoring team, acoustic monitoring team, and 
Navy staff prior to the start of the first pile driving activity 
conducted pursuant to this chapter, and when new personnel join the 
work, in order to explain responsibilities, communication procedures, 
marine mammal monitoring protocol, and operational procedures.
    (b) Except for pile driving covered under paragraphs (c) and (d) of 
this section, for all pile driving activity, the Navy shall implement a 
minimum shutdown zone of 15 m radius around the pile. If a marine mammal 
comes within or approaches the shutdown zone, such operations shall 
cease.
    (c) For impact pile driving associated with Project 3F (Warping 
Wharf with Capstan), the Navy shall implement a minimum shutdown zone of 
40 m radius around the pile. If a marine mammal comes within or 
approaches the shutdown zone, such operations shall cease.
    (d) For impact pile driving associated with Project 4B (Small Craft 
Berth Site VI), the Navy shall implement a minimum shutdown zone of 20 m 
radius around the pile. If a marine mammal comes within or approaches 
the shutdown zone, such operations shall cease.

[[Page 156]]

    (e) The Navy shall deploy marine mammal observers as indicated in 
the final Marine Mammal Monitoring Plan and as described in Sec. 217.255 
of this chapter.
    (1) For all pile driving activities, a minimum of one observer shall 
be stationed at the active pile driving rig or within reasonable 
proximity of the rig in order to monitor the shutdown zone.
    (2) Monitoring shall take place from 15 minutes prior to initiation 
of pile driving activity through 30 minutes post-completion of pile 
driving activity. Pre-activity monitoring shall be conducted for 15 
minutes to ensure that the shutdown zone is clear of marine mammals, and 
pile driving may commence when observers have declared the shutdown zone 
clear of marine mammals. In the event of a delay or shutdown of activity 
resulting from marine mammals in the shutdown zone, animals shall be 
allowed to remain in the shutdown zone (i.e., must leave of their own 
volition) and their behavior shall be monitored and documented. 
Monitoring shall occur throughout the time required to drive a pile. The 
entire shutdown zone must be visible before it can be deemed clear of 
marine mammals.
    (3) If a marine mammal approaches or enters the shutdown zone, all 
pile driving activities at that location shall be halted. If pile 
driving is halted or delayed due to the presence of a marine mammal, the 
activity may not commence or resume until either the animal has 
voluntarily left and been visually confirmed beyond the shutdown zone or 
fifteen minutes have passed without re-detection of the animal.
    (4) Monitoring shall be conducted by trained observers, who shall 
have no other assigned tasks during monitoring periods. Trained 
observers shall be placed from the best vantage point(s) practicable to 
monitor for marine mammals and implement shutdown or delay procedures 
when applicable through communication with the equipment operator.
    (f) The Navy shall use soft start techniques for impact pile 
driving. Soft start for impact drivers requires contractors to provide 
an initial set of strikes at reduced energy, followed by a thirty-second 
waiting period, then two subsequent reduced energy strike sets. Soft 
start shall be implemented at the start of each day's impact pile 
driving and at any time following cessation of impact pile driving for a 
period of thirty minutes or longer.
    (g) Pile driving shall only be conducted during daylight hours.



Sec. 217.255  Requirements for monitoring and reporting.

    (a) Trained observers shall complete applicable portions of the 
Navy's Marine Species Awareness Training, as well as a general 
environmental awareness briefing conducted by Navy staff. At minimum, 
training shall include identification of bottlenose dolphins and 
relevant mitigation and monitoring requirements. All observers shall 
have no other construction-related tasks while conducting monitoring.
    (b) For shutdown zone monitoring, the Navy shall report on 
implementation of shutdown or delay procedures, including whether the 
procedures were not implemented and why (when relevant).
    (c) The Navy shall deploy additional observers to monitor 
disturbance zones according to the minimum requirements defined in this 
chapter. These observers shall collect sighting data and behavioral 
responses to pile driving for marine mammal species observed in the 
region of activity during the period of activity, and shall communicate 
with the shutdown zone observer as appropriate with regard to the 
presence of marine mammals. All observers shall be trained in 
identification and reporting of marine mammal behaviors.
    (1) During Project 1A (Tug Pier), Navy shall deploy a minimum of 
three additional marine mammal monitoring observers on a minimum of ten 
days of vibratory pile driving activity.
    (2) During Project 2 (UMC Layberth (P-661)), Navy shall deploy a 
minimum of two additional marine mammal monitoring observers on a 
minimum of three days of impact pile driving activity.
    (3) During the fiscal year 2022 phase of Project 3A (Explosives 
Handling

[[Page 157]]

Wharf #2), Navy shall deploy a minimum of three additional marine mammal 
monitoring observers on a minimum of three days of vibratory pile 
driving activity.
    (4) During Project 3B ((Dry Dock) Interface Wharf), Navy shall 
deploy a minimum of three additional marine mammal monitoring observers 
on a minimum of five days of vibratory pile driving activity.
    (5) During Projects 3C, 3D, and 3E (Refit Wharves #1-3), Navy shall 
deploy a minimum of two additional marine mammal monitoring observers on 
all days of pile driving activity.
    (6) During Project 3F (Warping Wharf with Capstan), Navy shall 
deploy a minimum of three additional marine mammal monitoring observers 
on a minimum of two days of vibratory pile driving activity.
    (7) During Project 3G (Tug Pier), Navy shall deploy a minimum of 
three additional marine mammal monitoring observers on a minimum of four 
days of vibratory pile driving activity.
    (8) During Project 4A (Transit Protection System (TPS) Pier), Navy 
shall deploy a minimum of four additional marine mammal monitoring 
observers on a minimum of eight days of vibratory pile driving activity.
    (9) During Project 4B (Small Craft Berth Site VI), Navy shall deploy 
a minimum of four additional marine mammal monitoring observers on a 
minimum of three days of vibratory pile driving activity.
    (10) During Project 5 (Magnetic Silencing Facility Repairs), Navy 
shall deploy a minimum of four additional marine mammal monitoring 
observers on a minimum of three days of vibratory pile driving activity.
    (11) During Projects 6A (Demolition of TPS Pier) and 6B (Demolition 
of North Trestle), Navy shall deploy a minimum of five additional marine 
mammal monitoring observers on a minimum of twelve days of vibratory 
pile driving activity.
    (d) The Navy shall conduct acoustic data collection (sound source 
verification and propagation loss), in accordance with NMFS's 
guidelines, in conjunction with Project 1A (Tug Pier), Project 2 
(Unspecified Minor Construction Layberth Fender Pile Modification), 
Project 4A (TPS Pier), and Project 5 (Magnetic Silencing Facility).
    (e) Reporting:
    (1) Annual reporting:
    (i) Navy shall submit an annual summary report to NMFS not later 
than ninety days following the end of in-water work for each project. 
Navy shall provide a final report within thirty days following 
resolution of comments on the draft report.
    (ii) These reports shall contain, at minimum, the following:
    (A) Date and time that monitored activity begins or ends;
    (B) Construction activities occurring during each observation 
period;
    (C) Weather parameters (e.g., wind speed, percent cloud cover, 
visibility);
    (D) Water conditions (e.g., sea state, tide state);
    (E) Species, numbers, and, if possible, sex and age class of marine 
mammals;
    (F) Description of any observable marine mammal behavior patterns, 
including bearing and direction of travel and distance from pile driving 
activity;
    (G) Distance from pile driving activities to marine mammals and 
distance from the marine mammals to the observation point;
    (H) Description of implementation of mitigation measures (e.g., 
shutdown or delay);
    (I) Locations of all marine mammal observations; and
    (J) Other human activity in the area.
    (2) Navy shall submit a comprehensive summary report to NMFS no 
later than 90 days following the conclusion of marine mammal monitoring 
efforts described in this chapter.
    (3) Navy shall submit acoustic monitoring reports as necessary 
pursuant to Sec. 217.255(d).
    (f) Reporting of injured or dead marine mammals:
    (1) In the unanticipated event that the activity defined in 
Sec. 217.250 clearly causes the take of a marine mammal in a prohibited 
manner, Navy shall immediately cease such activity and report the 
incident to the Office of Protected Resources (OPR), NMFS, and to the 
Southeast Regional Stranding Coordinator, NMFS. Activities shall not 
resume until NMFS is able to review the circumstances of the prohibited 
take.

[[Page 158]]

NMFS will work with Navy to determine what measures are necessary to 
minimize the likelihood of further prohibited take and ensure MMPA 
compliance. Navy may not resume their activities until notified by NMFS. 
The report must include the following information:
    (i) Time, date, and location (latitude/longitude) of the incident;
    (ii) Description of the incident;
    (iii) Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, visibility);
    (iv) Description of all marine mammal observations in the 24 hours 
preceding the incident;
    (v) Species identification or description of the animal(s) involved;
    (vi) Fate of the animal(s); and
    (vii) Photographs or video footage of the animal(s). Photographs may 
be taken once the animal has been moved from the waterfront area.
    (2) In the event that Navy discovers an injured or dead marine 
mammal and determines that the cause of the injury or death is unknown 
and the death is relatively recent (e.g., in less than a moderate state 
of decomposition), Navy shall immediately report the incident to OPR and 
the Southeast Regional Stranding Coordinator, NMFS. The report must 
include the information identified in paragraph (f)(1) of this section. 
Activities may continue while NMFS reviews the circumstances of the 
incident. NMFS will work with Navy to determine whether additional 
mitigation measures or modifications to the activities are appropriate.
    (3) In the event that Navy discovers an injured or dead marine 
mammal and determines that the injury or death is not associated with or 
related to the activities defined in Sec. 217.250 (e.g., previously 
wounded animal, carcass with moderate to advanced decomposition, 
scavenger damage), Navy shall report the incident to OPR and the 
Southeast Regional Stranding Coordinator, NMFS, within 24 hours of the 
discovery. Navy shall provide photographs or video footage or other 
documentation of the stranded animal sighting to NMFS. Photographs may 
be taken once the animal has been moved from the waterfront area.



Sec. 217.256  Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, Navy 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 a LOA expires prior to the expiration date of these 
regulations, Navy may apply for and obtain a renewal of the LOA.
    (d) In the event of projected changes to the activity or to 
mitigation and monitoring measures required by a LOA, Navy must apply 
for and obtain a modification of the LOA as described in Sec. 217.257.
    (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 thirty days of a determination.



Sec. 217.257  Renewals and modifications of Letters of Authorization.

    (a) A LOA issued under Sec. 216.106 of this chapter and Sec. 217.256 
for the activity identified in Sec. 217.250 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 in paragraph (c)(1) 
of this section), and
    (2) NMFS determines that the mitigation, monitoring, and reporting 
measures required by the previous LOA

[[Page 159]]

under these regulations were implemented.
    (b) For a 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 in paragraph (c)(1) of this section) that do not change the 
findings made for the regulations or that 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. 216.106 of this chapter and Sec. 217.256 
for the activity identified in Sec. 217.250 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 Navy 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 a LOA:
    (A) Results from Navy's monitoring from previous years.
    (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 in a LOA issued pursuant to Sec. 216.106 of 
this chapter and Sec. 217.256, a LOA may be modified without prior 
notice or opportunity for public comment. Notice would be published in 
the Federal Register within thirty days of the action.



Secs. 217.258-217.259  [Reserved]

Subpart AA-XXX [Reserved]



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



Subpart A [Reserved]

 Subpart B_Takes of Marine Mammals Incidental to Specified Activities; 
U.S. Navy Joint Logistics Over-the-Shore (JLOTS) Training Activities in 
                       Virginia and North Carolina

218.10  Specified activity and region.
218.11  Effective dates.
218.12  Permissible methods of taking.
218.13  Prohibitions.
218.14  Mitigation.
218.15  Requirements for monitoring and reporting.
218.16  Applications for Letters of Authorization.
218.17  Letters of Authorization.
218.18  Modifications to Letters of Authorization.

Subparts C-D [Reserved]

Subpart E_Taking Marine Mammals Incidental to U.S. Marine Corps Training 
Exercises at Brant Island Bombing Target and Piney Island Bombing Range, 
                      Pamlico Sound, North Carolina

218.40  Specified activity and location of specified activities.
218.41  Effective dates.
218.42  Permissible methods of taking.
218.43  Prohibitions.
218.44  Mitigation.
218.45  Requirements for monitoring and reporting.
218.46  Applications for Letters of Authorization.
218.47  Letter of Authorization.

[[Page 160]]

218.48  Renewal and Modifications of Letters of Authorization.

 Subpart F_Taking of Marine Mammals Incidental to the U.S. Air Force 86 
  Fighter Weapons Squadron Conducting Long Range Strike Weapons System 
   Evaluation Program at the Pacific Missile Range Facility at Kauai, 
                                 Hawaii

218.50  Specified activity and specified geographical region.
218.51  Effective dates.
218.52  Permissible methods of taking.
218.53  Prohibitions.
218.54  Mitigation requirements.
218.55  Requirements for monitoring and reporting.
218.56  Letters of Authorization.
218.57  Renewals and Modifications of Letters of Authorization.
218.58-218.59  [Reserved]

Subpart G [Reserved]

   Subpart H_Taking and Importing Marine Mammals; U.S. Navy's Hawaii-
             Southern California Training and Testing (HSTT)

218.70  Specified activity and specified geographical region.
218.71  Effective dates and definitions.
218.72  Permissible methods of taking.
218.73  Prohibitions.
218.74  Mitigation.
218.75  Requirements for monitoring and reporting.
218.76  Applications for Letters of Authorization.
218.77  Letters of Authorization.
218.78  Renewals and modifications of Letters of Authorization and 
          Adaptive Management.

  Subpart I_Taking and Importing Marine Mammals; U.S. Navy's Atlantic 
                    Fleet Training and Testing (AFTT)

218.80  Specified activity and specified geographical region.
218.81  Effective dates and definitions.
218.82  Permissible methods of taking.
218.83  Prohibitions.
218.84  Mitigation.
218.85  Requirements for monitoring and reporting.
218.86  Applications for Letters of Authorization.
218.87  Letters of Authorization.
218.88  Renewals and Modifications of Letters of Authorization and 
          Adaptive Management.

   Subpart J_Taking and Importing Marine Mammals; U.S. Navy's Mariana 
                   Islands Training and Testing (MITT)

218.90  Specified activity and specified geographical region.
218.91  Effective dates and definitions.
218.92  Permissible methods of taking.
218.93  Prohibitions.
218.94  Mitigation.
218.95  Requirements for monitoring and reporting.
218.96  Applications for Letters of Authorization.
218.97  Letter of Authorization.
218.98  Renewal and modifications of Letters of Authorization.

Subparts K-N [Reserved]

  Subpart O_Taking and Importing Marine Mammals; U.S. Navy's Northwest 
                 Training and Testing (NWTT) Study Area

218.140  Specified activity and specified geographical region.
218.141  Applicability dates.
218.142  Permissible methods of taking.
218.143  Prohibitions.
218.144  Mitigation.
218.145  Requirements for monitoring and reporting.
218.146  Applications for Letters of Authorization
218.147  Letters of Authorization.
218.148  Renewal and Modifications of Letters of Authorization and 
          Adaptive Management.

   Subpart P_Taking and Importing Marine Mammals; U.S. Navy's Gulf of 
     Alaska Temporary Maritime Activities Area (GOA TMAA) Study Area

218.150  Specified activity and specified geographical region.
218.151  Effective dates and definitions.
218.152  Permissible methods of taking.
218.153  Prohibitions.
218.154  Mitigation.
218.155  Requirements for monitoring and reporting.
218.156  Applications for letters of authorization (LOA).
218.157  Letters of authorization (LOA).
218.158  Renewal and modifications of letters of authorization (LOA) and 
          adaptive management.

Subparts Q-X [Reserved]

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

[[Page 161]]


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

Subpart A [Reserved]



 Subpart B_Takes of Marine Mammals Incidental to Specified Activities; 
U.S. Navy Joint Logistics Over-the-Shore (JLOTS) Training Activities in 
                       Virginia and North Carolina

    Source: 80 FR 31321, June 2, 2015, unless otherwise noted.

    Effective Date Note: At 80 FR 31321, June 2, 2015, subpart B was 
added, effective June 2, 2015, through June 2, 2020.



Sec. 218.10  Specified activity and 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 JLOTS training areas, which is in nearshore shallow 
waters at the Joint Expeditionary Base (JEB) Little Creek-Fort Story in 
Virginia and at Camp Lejeune in North Carolina.
    (c) The taking of marine mammals by the Navy is only authorized if 
it occurs incidental to the JLOTS training activities in the JLOTS 
training areas, which may occur any time of year, but not more than once 
annually at JEB Little Creek-Fort Story, and once annually at Camp 
Lejeune.



Sec. 218.11  Effective dates.

    Regulations in this subpart are effective June 2, 2015, through June 
2, 2020.



Sec. 218.12  Permissible methods of taking.

    (a) Under Letters of Authorization (LOAs) issued pursuant to 
Sec. 218.17, the Holder of the Letter of Authorization may incidentally, 
but not intentionally, take marine mammals by sound in the water from 
pile driving activities within the area described in Sec. 218.10, 
provided the activity is in compliance with all terms, conditions, and 
requirements of these regulations and the appropriate LOA.
    (b) The activities identified in Sec. 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 in Sec. 218.10(c) is limited to Level B behavioral 
harassment:
    (1) Bottlenose dolphin (Tursiops truncatus)/Northern North Carolina 
Estuarine System: 250 (50 per year);
    (2) Bottlenose dolphin (Tursiops truncatus)/Southern North Carolina 
Estuarine System: 300 (60 per year); and
    (3) Atlantic spotted dolphin (Stenella frontalis)/Western North 
Atlantic: 250 (50 per year).



Sec. 218.13  Prohibitions.

    Notwithstanding takings contemplated in Sec. 218.12 and authorized 
by an LOA issued under Sec. 216.106 of this chapter and Sec. 218.17, no 
person in connection with the activities described in Sec. 218.10 may:
    (a) Take any marine mammal not specified in Sec. 218.12(c);
    (b) Take any marine mammal specified in Sec. 218.12(c) other than by 
incidental take as specified in Sec. 218.12(c);
    (c) Take a marine mammal specified in Sec. 218.12(c) if a finding is 
made that such taking is having 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 an LOA issued under Sec. 216.106 of 
this chapter and Sec. 218.17.



Sec. 218.14  Mitigation.

    (a) When conducting training and testing activities identified in 
Sec. 218.10, the mitigation measures contained in the LOA issued under 
Sec. 216.106 of this chapter and Sec. 218.17 must be implemented. These 
mitigation measures include, but are not limited to:
    (1) Establishing mitigation zone. (i) A mitigation zone of 60 yards 
(55 m) around the pile being driven must be established.
    (ii) Visual observation must be conducted starting 30 minutes prior 
to, during, and until 30 minutes after the

[[Page 162]]

ELCAS (M) exercise within the mitigation zone. The exercise must not 
commence if concentrations of floating vegetation (Sargassum) are 
observed in the mitigation zone.
    (2) Soft starts. (i) Soft starts, or gradually ramping up the power 
of pile driving hammer, must be performed during impact installation 
each day.
    (ii) During a soft start, an initial set of strikes from the impact 
hammer at reduced energy are performed before it is able to be operated 
at full power and speed.
    (3) Shutdown measures. (i) Pile driving must cease if a marine 
mammal is visually detected within or approaching the mitigation zone.
    (ii) Pile driving may resume if any one of the following conditions 
is met:
    (A) The animal is observed exiting the mitigation zone,
    (B) The animal is thought to have exited the mitigation zone based 
on its course and speed, or
    (C) The mitigation zone has been clear from any additional sightings 
for a period of 30 minutes.
    (b) Marine species awareness training. (1) All personnel standing 
watch on the bridge, Commanding Officers, Executive Officers, and 
Lookouts must successfully complete the Marine Species Awareness 
Training prior to standing watch or serving as a Lookout.
    (2) The Marine Species Awareness Training must be designed to 
improve the effectiveness of visual observations for marine resources, 
including marine mammals.
    (3) The training must provide information on sighting cues, visual 
observation tools and techniques, and sighting notification procedures.
    (c) Vessels. Vessels must avoid approaching marine mammals head on 
and must maneuver to maintain a mitigation zone of 500 yards (457 m) 
around observed whales and 200 yards (183 m) around all other marine 
mammals (except bow riding dolphins), providing it is safe to do so.
    (d) North Atlantic Right Whale Protection. When transiting within 
the following areas between November 1 and April 30, the Navy must 
practice increased vigilance, exercise extreme caution, and proceed at 
the slowest speed that is consistent with safety, mission, and training 
objectives:
    (1) Chesapeake Bay: Within a 20 nm radius of the following (as 
measured seaward from the COLREGS lines): 370036.9" North/0755750.5" 
West.
    (2) Morehead City, North Carolina: Within a 20 nm radius of the 
following (as measured seaward from the COLREGS lines): 344132.0" 
North/0764008.3" West.
    (3) Wilmington, North Carolina, through South Carolina, and to 
Brunswick, Georgia: Within a continuous area 20 nautical miles from 
shore and west back to shore bounded by 341030" North/0774912" West; 
335642" North/0773130" West; 333630" North/0774706" West; 
332824" North/0783230" West; 325906" North/0785018" West; 
315000" North/0803312" West; 312700" North/0805136" West.



Sec. 218.15  Requirements for monitoring and reporting.

    (a) Monitoring measures--(1) Standard watch personnel. (i) Ships 
operated by or for the Navy must have personnel assigned to stand watch 
at all times, day and night, when moving through the water.
    (ii) Watch personnel must undertake extensive training in accordance 
with the U.S. Navy Lookout Training Handbook or civilian equivalent, 
including on-the-job instruction and a formal Personal Qualification 
Standard program (or equivalent program for supporting contractors or 
civilians), to certify that they have demonstrated all necessary skills 
(such as detection and reporting of floating or partially submerged 
objects).
    (iii) While on watch, watch personnel must employ visual search 
techniques, including the use of binoculars, using a scanning method in 
accordance with the U.S. Navy Lookout Training Handbook or civilian 
equivalent.
    (iv) After sunset and prior to sunrise, watch personnel must employ 
night visual search techniques, which could include the use of night 
vision devices.
    (v) A primary duty of watch personnel is to detect and report all 
objects and disturbances sighted in the water that may be indicative of 
a threat to the ship and its crew, such as

[[Page 163]]

debris, a periscope, surfaced submarine, or surface disturbance.
    (vi) Per safety requirements, watch personnel also report any marine 
mammals sighted that have the potential to be in the direct path of the 
ship as a standard collision avoidance procedure. Because watch 
personnel are primarily posted for safety of navigation, range 
clearance, and man-overboard precautions, they are not normally posted 
while ships are moored to a pier.
    (vii) When anchored or moored to a buoy, a watch team is still 
maintained but with fewer personnel than when underway.
    (viii) When moored or at anchor, watch personnel may maintain 
security and safety of the ship by scanning the water for any 
indications of a threat.
    (ix) While underway, Navy ships (with the exception of submarines) 
greater than 65 ft. (20 m) in length have at least two watch personnel; 
Navy ships less than 65 ft. (20 m) in length, surfaced submarines, and 
contractor ships have at least one watch person. While underway, watch 
personnel are alert at all times and have access to binoculars. Due to 
limited manning and space limitations, small boats and some craft 
transferring cargo from ship to shore do not have dedicated watch 
personnel, and the boat crew is responsible for maintaining the safety 
of the boat and surrounding environment.
    (x) All vessels use extreme caution and proceed at a ``safe speed'' 
so they can take proper and effective action to avoid a collision with 
any sighted object or disturbance and can be stopped within a distance 
appropriate to the prevailing circumstances and conditions.
    (2) Lookouts. (i) Lookouts must perform similar duties to standard 
watch personnel, and are also responsible for satisfying mitigation 
requirements.
    (ii) The Navy must have one Lookout positioned on the platform 
(which could include a small boat, the elevated causeway, or the shore) 
that must maximize the potential for sightings during pile driving and 
pile removal.
    (iii) The Lookout positioned on the elevated causeway or the shore 
must be dedicated solely to diligent observation of the air and surface 
of the water. They must have multiple observation objectives, which 
include but are not limited to detecting the presence of biological 
resources and recreational or fishing boats, observing the mitigation 
zone, and monitoring for equipment and personnel safety concerns.
    (iv) A Lookout positioned on a small boat may include a member of 
the boat crew, and may be responsible for tasks in addition to observing 
the air or surface of the water (e.g., navigation of a rigid hull 
inflatable boat). However, a boat Lookout must, to the maximum extent 
practicable and consistent with safety and training requirements, comply 
with the observation objectives described above for a Lookout positioned 
on the elevated causeway or the shore.
    (v) Lookouts must also perform visual observation starting 30 
minutes prior to, during, and 30 minutes after the exercise within a 
mitigation zone of 60 yards (55 m) around the pile being driven.
    (3) Integrated comprehensive monitoring program. (i) The Navy must 
use the existing Integrated Comprehensive Monitoring Program (ICMP) and 
its new ``study-based'' approach.
    (ii) [Reserved]
    (b) Reporting measures--(1) General notification of injured or dead 
marine mammals. (i) Navy personnel must 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.
    (ii) The Navy must provide NMFS with species identification 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 photographs or video (if 
available).
    (2) Annual monitoring and exercise report. (i) Reports from 
individual monitoring events, results of analyses, publications, and 
periodic progress reports for specific monitoring projects must be 
posted to the Navy's Marine Species Monitoring web portal as they become 
available.

[[Page 164]]

    (ii) Progress and results from all monitoring activity conducted 
within the JLOTS training area must be summarized in an annual report. 
This report must detail the monitoring protocol, summarize the data 
recorded during monitoring, and estimate the number of marine mammals 
that may have been harassed.
    (iii) Draft reports should be combined with the Navy's Atlantic 
Fleet Training and Testing exercise and monitoring reports and submitted 
to NMFS for review by February 13 (for exercises) and April 1 (for 
monitoring) each year. NMFS will review the report and provide comments 
for incorporation within 3 months.



Sec. 218.16  Applications for Letters of Authorization.

    To incidentally take marine mammals pursuant to the regulations in 
this subpart, the U.S. Navy must apply for and obtain either an initial 
LOA in accordance with Sec. 218.17.



Sec. 218.17  Letters of Authorization.

    (a) An LOA, unless suspended or revoked, must be valid for a period 
of time not to exceed the period of validity of this subpart.
    (b) Each LOA must 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 of the LOA will be based on a determination that the 
total number of marine mammals taken by the activity as a whole must 
have no more than a negligible impact on the affected species or stock 
of marine mammal(s).



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 LOA 
by NMFS, issued pursuant to Sec. 216.106 of this chapter and Sec. 218.17 
and subject to the provisions of this subpart must be made until after 
notification and an opportunity for public comment has been provided.
    (b) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species or 
stocks of marine mammals specified in Sec. 218.12(c), an LOA issued 
pursuant to Sec. 216.106 of this chapter and Sec. 218.17 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-D [Reserved]



Subpart E_Taking Marine Mammals Incidental to U.S. Marine Corps Training 
Exercises at Brant Island Bombing Target and Piney Island Bombing Range, 
                      Pamlico Sound, North Carolina

    Source: 80 FR 13284, Mar. 13, 2015, unless otherwise noted.

    Effective Date Note: At 80 FR 13284, Mar. 13, 2015, subpart E was 
added, effective March 13, 2015, through March 12, 2020.



Sec. 218.40  Specified activity and location of specified activities.

    (a) Regulations in this subpart apply only to the U.S. Marine Corps 
(Marine Corps) for the incidental taking of marine mammals that occurs 
in the area outlined in paragraph (b) of this section incidental to the 
activities described in paragraph (c) of this section.
    (b) The taking of marine mammals by the Marine Corps is only 
authorized if it occurs within the Brant Island Target (BT-9) and Piney 
Island Bombing Range (BT-11) bombing targets at the Marine Corps Air 
Station Cherry Point Range Complex located within Pamlico Sound, North 
Carolina (as depicted in Figure 3-1 of the Marine Corps' request for 
regulations and Letter of Authorization). The BT-9 area is a water-based 
bombing target and mining exercise area located approximately 52 
kilometers (km) (32.3 miles (mi)) northeast of Marine Air Corps Station 
Cherry Point. The BT-11 area

[[Page 165]]

encompasses a total of 50.6 square kilometers (km\2\) (19.5 square miles 
(mi\2\)) on Piney Island located in Carteret County, North Carolina.
    (c) The taking of marine mammals by the Marine Corps is only 
authorized if it occurs incidental to the following activities within 
the annual amounts of use:
    (1) The level of training activities in the amounts indicated here:
    (i) Surface-to-Surface Exercises--up to 471 vessel-based sorties 
annually at BT-9 and BT-11; and
    (ii) Air-to-Surface Exercises--up to 14,586 air-based based sorties 
annually at BT-9 and BT-11.
    (2) The use of the following live ordnance for Marine Corps training 
activities at BT-9, in the total amounts over the course of the five-
year rule indicated here:
    (i) 30 mm HE--17,160 rounds;
    (ii) 40 mm HE--52,100 rounds;
    (iii) 2.75-inch Rocket--1,100 rounds;
    (iv) 5-inch Rocket--340 rounds; and
    (v) G911 Grenade--720 rounds.
    (3) The use of the following inert ordnance for Marine Corps 
training activities at BT-9 and BT-11, in the total amounts over the 
course of the five-year rule indicated here:
    (i) Small arms excluding .50 cal (7.62 mm)--2,628,050 rounds at BT-9 
and 3,054,785 rounds at BT-11;
    (ii) 0.50 Caliber arms--2,842,575 rounds at BT-9 and 1,833,875 
rounds at BT-11;
    (iii) Large arms (up to 25 mm)--602,025 rounds at BT-9 and 1,201,670 
rounds at BT-11;
    (iv) Rockets, inert (2.75-inch rocket, 2.75-inch illumination, 2.75-
inch white phosphorus, 2.75-inch red phosphorus; 5-inch rocket, 5-inch 
illumination, 5-inch white phosphorus, 5-inch red phosphorus)--4,220 
rounds at BT-9 and 27,960 rounds at BT-11;
    (v) Bombs, inert (BDU-45 practice bomb, MK-76 practice bomb, MK-82 
practice bomb, MK-83 practice bomb)--4,055 rounds at BT-9 and 22,114 
rounds at BT-11; and
    (vi) Pyrotechnics--4,496 rounds at BT-9 and 8,912 at BT-11.



Sec. 218.41  Effective dates.

    Regulations in this subpart are effective from March 13, 2015 until 
March 12, 2020.



Sec. 218.42  Permissible methods of taking.

    (a) Under a Letter of Authorization issued pursuant to Sec. 216.106 
of this chapter and Sec. 218.47, the Holder of the Letter of 
Authorization may incidentally, but not intentionally, take marine 
mammals by Level A and Level B harassment only within the area described 
in Sec. 218.40(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 in Sec. 218.40(c) is limited to the following species, by the 
indicated method of take and the indicated number over a five-year 
period:
    (1) Level B Harassment:
    (i) Atlantic bottlenose dolphin (Tursiops truncatus)--1,615.
    (ii) [Reserved]
    (2) Level A Harassment:
    (i) Atlantic bottlenose dolphin--170.
    (ii) [Reserved]



Sec. 218.43  Prohibitions.

    No person in connection with the activities described in Sec. 218.40 
shall:
    (a) Take any marine mammal not specified in Sec. 218.42(c);
    (b) Take any marine mammal specified in Sec. 218.42(c) other than by 
incidental take as specified in Sec. 218.42(c)(1) and (2);
    (c) Take a marine mammal specified in Sec. 218.42(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. 216.106 of this chapter and Sec. 218.47.



Sec. 218.44  Mitigation.

    (a) When conducting operations identified in Sec. 218.40(c), the 
mitigation measures contained in the Letter of Authorization issued 
under Sec. 216.106 of this chapter and Sec. 218.47 must be implemented. 
These mitigation measures include, but are not limited to:
    (b) Training Exercises at BT-9 and BT-11:
    (1) Safety Zone:

[[Page 166]]

    (i) The Marine Corps shall establish and monitor a safety zone for 
marine mammals comprising the entire Rattan Bay area at BT-11.
    (ii) The Marine Corps shall establish and monitor a safety zone for 
marine mammals comprising a radius of 914 meters (m) (3,000 feet) around 
the target area at BT-9.
    (2) For training exercises, the Marine Corps shall comply with the 
monitoring requirements, including pre-mission and post-mission 
monitoring, set forth in Sec. 218.45(c).
    (3) When detonating explosives or delivering ordnance:
    (i) If personnel observe any marine mammals within the safety zone 
prescribed in paragraph (b)(1) of this section, or if personnel observe 
marine mammals that are on a course that will put them within the 
designated safety zone prior to surface-to-surface or air-to-surface 
training exercises, the Marine Corps shall delay ordnance delivery and/
or explosives detonations until all marine mammals are no longer within 
the designated safety zone.
    (ii) If personnel cannot reacquire marine mammals detected in the 
safety zone after delaying training missions, the Marine Corps shall not 
commence activities until the next verified location of the animal is 
outside of the safety zone and the animal is moving away from the 
mission area.
    (iii) If personnel are unable to monitor the safety zone prescribed 
in paragraph (b)(1) of this section, then the Marine Corps shall delay 
training exercises.
    (iv) If daytime weather and/or sea conditions preclude adequate 
surveillance for detecting marine mammals, then the Marine Corps shall 
postpone training exercises until adequate sea conditions exist for 
adequate monitoring of the safety zone prescribed in paragraph (b)(1) of 
this section.
    (4) Pre-Mission and Post-Mission Monitoring:
    (i) Range operators shall conduct or direct visual surveys to 
monitor BT-9 or BT-11 for marine mammals before and after each exercise. 
Range operation and control personnel shall monitor the target area 
through two tower-mounted safety and surveillance cameras.
    (ii) Range operators shall use the surveillance camera's night 
vision (i.e., infrared) capabilities to monitor BT-9 or BT-11 for marine 
mammals during night-time exercises.
    (iii) For BT-9, in the event that a marine mammal is sighted within 
the 914-m (3,000-ft) radius around the target area, personnel shall 
declare the area as fouled and cease training exercises. Personnel shall 
commence operations in BT-9 only until the marine mammal moves beyond 
and on a path away from the 914-m (3,000 ft) radius from the BT-9 
target.
    (iv) For BT-11, in the event that a marine mammal is sighted 
anywhere within the confines of Rattan Bay, personnel shall declare the 
water-based targets within Rattan Bay as fouled and cease training 
exercises. Personnel shall commence operations in BT-11 only after the 
animal has moved out of Rattan Bay.
    (5) Range Sweeps for Safety Zone Monitoring and Delay of Exercises:
    (i) The Marine Corps shall conduct a range sweep the morning of each 
exercise day prior to the commencement of range operations.
    (ii) The Marine Corps shall also conduct a range sweep after each 
exercise following the conclusion of range operations.
    (iii) Marine Corps Air Station personnel shall conduct the sweeps by 
aircraft at an altitude of 100 to 300 m (328 to 984 ft) above the water 
surface, at airspeeds between 60 to 100 knots.
    (iv) The path of the sweeps shall run down the western side of BT-
11, circle around BT-9, and then continue down the eastern side of BT-9 
before leaving the area.
    (v) The maximum number of days that shall elapse between pre- and 
post-exercise monitoring events shall be approximately 3 days, and will 
normally occur on weekends.
    (6) Cold Pass by Aircraft:
    (i) For waterborne targets, the pilot must perform a low-altitude 
visual check immediately prior to ordnance delivery at the bombing 
targets both day and night to ensure the target area is clear of marine 
mammals. This is referred to as a ``cold'' or clearing pass.

[[Page 167]]

    (ii) Pilots shall conduct the cold pass with the aircraft 
(helicopter or fixed-winged) flying straight and level at altitudes of 
61 to 914 m (200 to 3,000 ft) over the target area.
    (iii) If marine mammals are present in the target area during a 
range sweep, cold pass, or visual surveillance with the camera, the 
Range Controller shall deny ordnance delivery to the target as 
conditions warrant. If marine mammals are not present in the target 
area, the Range Controller may grant clearance to the pilot as 
conditions warrant.
    (7) Vessel Operation:
    (i) All vessels used during training operations shall abide by NMFS' 
Southeast Regional Viewing Guidelines designed to prevent harassment to 
marine mammals (http://www.nmfs.noaa.gov/pr/education/southeast/).
    (ii) [Reserved]



Sec. 218.45  Requirements for monitoring and reporting.

    (a) The Holder of the Letter of Authorization issued pursuant to 
Sec. 216.106 of this chapter and Sec. 218.47 for activities described in 
Sec. 218.40(c) is required to conduct the monitoring and reporting 
measures specified in this section and Sec. 218.44 and any additional 
monitoring measures contained in the Letter of Authorization.
    (b) The Holder of the Letter of Authorization is required to 
cooperate with the National Marine Fisheries Service, and any other 
Federal, state, or local agency monitoring the impacts of the activity 
on marine mammals. Unless specified otherwise in the Letter of 
Authorization, the Holder of the Letter of Authorization must notify the 
Director, Office of Protected Resources, National Marine Fisheries 
Service, or designee, by letter or telephone (301-427-8401), at least 2 
weeks prior to any modification to the activity identified in 
Sec. 218.40(c) that has the potential to result in the serious injury, 
mortality, or Level A or Level B harassment of a marine mammal that was 
not identified and addressed previously.
    (c) Monitoring Procedures for Missions at BT-9 and BT-11:
    (1) The Holder of this Authorization shall:
    (i) Designate qualified on-site individual(s) to record the effects 
of training exercises on marine mammals that inhabit Pamlico Sound;
    (ii) Require operators of small boats, and other personnel 
monitoring for marine mammals from watercraft to take the Marine Species 
Awareness Training (Version 2), provided by the Department of the Navy.
    (iii) Instruct pilots conducting range sweeps on marine mammal 
observation techniques during routine Range Management Department 
briefings. This training would make personnel knowledgeable of marine 
mammals, protected species, and visual cues related to the presence of 
marine mammals and protected species.
    (iv) Continue the Long-Term Monitoring Program to obtain abundance, 
group dynamics (e.g., group size, age census), behavior, habitat use, 
and acoustic data on the bottlenose dolphins which inhabit Pamlico 
Sound, specifically those around BT-9 and BT-11.
    (v) Continue the Passive Acoustic Monitoring (PAM) Program to 
provide additional insight into how dolphins use BT-9 and BT-11 and to 
monitor for vocalizations.
    (vi) Continue to refine the real-time passive acoustic monitoring 
system at BT-9 to allow automated detection of bottlenose dolphin 
whistles.
    (d) Reporting:
    (1) Unless specified otherwise in the Letter of Authorization, the 
Holder of the Letter of Authorization shall conduct all of the 
monitoring and reporting required under the LOA and shall submit an 
annual and comprehensive report to the Director, Office of Protected 
Resources, National Marine Fisheries Service by a date certain to be 
specified in the LOA. This report must include the following 
information:
    (i) Date and time of each training exercise;
    (ii) A complete description of the pre-exercise and post-exercise 
activities related to mitigating and monitoring the effects of the 
training exercises on marine mammal populations;

[[Page 168]]

    (iii) Results of the Marine Corps monitoring, including numbers by 
species/stock of any marine mammals injured or killed as a result of the 
training exercises and number of marine mammals (by species, if 
possible) that may have been harassed due to presence within the 
applicable safety zone;
    (iv) A detailed assessment of the effectiveness of the sensor-based 
monitoring in detecting marine mammals in the area of the training 
exercises; and
    (v) Results of coordination with coastal marine mammal stranding 
networks. The Marine Corps shall coordinate with the local NMFS 
Stranding Coordinator to discuss any unusual marine mammal behavior and 
any stranding, beached (live or dead), or floating marine mammals that 
may occur at any time during training activities or within 24 hours 
after completion of training.
    (2) The Marine Corps will submit an annual report to NMFS by June 
1st of each year starting in 2016. The first report will cover the time 
period from issuance of the March 2015 Letter of Authorization through 
March 12, 2016. Each annual report after that time will cover the time 
period from March 13 through March 12, annually.
    (3) The Marine Corps shall submit a draft comprehensive report on 
all marine mammal monitoring and research conducted during the period of 
these regulations to the Director, Office of Protected Resources, NMFS 
at least 180 days prior to expiration of these regulations or 180 days 
after the expiration of these regulations if the Marine Corps will not 
request new regulations.
    (i) The draft comprehensive report will be subject to review and 
comment by NMFS. Prior to acceptance by NMFS, the Marine Corps must 
address any recommendations made by NMFS, within 60 days of its receipt, 
in the final comprehensive report.
    (ii) [Reserved]
    (4) General Notification of Injured or Dead Marine Mammals:
    (i) The Marine Corps shall systematically observe training 
operations for injured or disabled marine mammals. In addition, the 
Marine Corps shall monitor the principal marine mammal stranding 
networks and other media to correlate analysis of any dolphin strandings 
that could potentially be associated with BT-9 or BT-11 training 
operations.
    (ii) Marine Corps personnel shall notify NMFS immediately, or as 
soon as clearance procedures allow, if personnel find an injured, 
stranded, or dead marine mammal during or shortly after, and in the 
vicinity of, any training operations. The Marine Corps 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).
    (iii) In the event that an injured, stranded, or dead marine mammal 
is found by Marine Corps personnel that is not in the vicinity of, or 
found during or shortly after operations, the Marine Corps personnel 
will report the same information listed above as soon as operationally 
feasible and clearance procedures allow.
    (5) General Notification of a Ship Strike:
    (i) In the event of a vessel strike, at any time or place, the 
Marine Corps shall do the following:
    (ii) 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);
    (iii) Report to NMFS as soon as operationally feasible the size and 
length of the animal, an estimate of the injury status (e.g., dead, 
injured but alive, injured and moving, unknown, etc.), vessel class/
type, and operational status;
    (iv) Report to NMFS the vessel length, speed, and heading as soon as 
feasible; and
    (v) Provide NMFS with a photo or video, if equipment is available.



Sec. 218.46  Applications for Letters of Authorization.

    To incidentally take marine mammals pursuant to these regulations, 
the U.S. citizen (as defined at Sec. 216.103 of this chapter) conducting 
the activities identified in Sec. 218.40 must apply for and obtain 
either an initial Letter of Authorization in accordance with 
Sec. 216.106

[[Page 169]]

of this chapter and Sec. 218.47 or a renewal under Sec. 218.48.



Sec. 218.47  Letter of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, the Marine Corps must apply for and obtain a Letter of 
Authorization.
    (b) A Letter of Authorization, unless suspended or revoked, may be 
effective for a period of time not to exceed the expiration date of 
these regulations.
    (c) If a Letter of Authorization expires prior to the expiration 
date of these regulations, the Marine Corps must apply for and obtain a 
renewal of the Letter of Authorization.
    (d) In the event of any changes to the activity or to mitigation and 
monitoring measures required by a Letter of Authorization, the Marine 
Corps must apply for and obtain a modification of the Letter of 
Authorization as described in Sec. 218.48.
    (e) The Letter of Authorization 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 Letter of Authorization 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 Letter of Authorization shall 
be published in the Federal Register within 30 days of a determination.



Sec. 218.48  Renewals and Modifications of Letters of Authorization.

    (a) A Letter of Authorization issued under Sec. 216.106 of this 
chapter and Sec. 218.47 for the activity identified in Sec. 218.40 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 in 
Sec. 218.47(c)(1)), and
    (2) NMFS determines that the mitigation, monitoring, and reporting 
measures required by the previous Letter of Authorization under these 
regulations were implemented.
    (b) For Letter of Authorization 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 in Sec. 218.47(c)(1)) 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 Letter of 
Authorization in the Federal Register, including the associated analysis 
illustrating the change, and solicit public comment before issuing the 
Letter of Authorization.
    (c) A Letter of Authorization issued under Sec. 216.106 of this 
chapter and Sec. 218.47 for the activity identified in Sec. 218.40 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 the Marine Corps 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 a Letter 
of Authorization include:
    (A) Results from the Marine Corps' monitoring from the previous 
year(s);
    (B) Results from other marine mammal and/or sound research or 
studies; or
    (C) Any information that reveals marine mammals may have been taken 
in a manner, extent, or number not authorized by these regulations or 
subsequent Letters of Authorization.
    (ii) If, through adaptive management, the modifications to the 
mitigation,

[[Page 170]]

monitoring, or reporting measures are substantial, NMFS shall publish a 
notice of proposed Letter of Authorization in the Federal Register and 
solicit public comment.
    (2) Emergencies--If NMFS determines that an emergency exists that 
poses a significant risk to the well-being of the species or stocks of 
marine mammals specified in Sec. 218.42(c), a Letter of Authorization 
may be modified without prior notice or opportunity for public comment. 
NMFS will publish a notice in the Federal Register within 30 days 
subsequent to the action.



 Subpart F_Taking of Marine Mammals Incidental to the U.S. Air Force 86 
  Fighter Weapons Squadron Conducting Long Range Strike Weapons System 
   Evaluation Program at the Pacific Missile Range Facility at Kauai, 
                                 Hawaii

    Effective Date Note: At 82 FR 39698, Aug. 22, 2017, subpart F was 
added, effective Aug. 21, 2017, through Aug. 22, 2022.



Sec. 218.50  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the 86 Fighter Weapons 
Squadron (86 FWS) and those persons it authorizes to conduct activities 
on its behalf, for the taking of marine mammals as outlined in paragraph 
(b) of this section and incidental to Long Range Strike Weapons System 
Evaluation Program (LRS WSEP) missions.
    (b) The taking of marine mammals by 86 FWS pursuant to a Letter of 
Authorization (LOA) is authorized only if it occurs at the Barking Sands 
Underwater Range Expansion (BSURE) area of the Pacific Missile Range 
Facility (PMRF) off Kauai, Hawaii.



Sec. 218.51  Effective dates.

    Regulations in this subpart are effective August 21, 2017, through 
August 22, 2022.



Sec. 218.52  Permissible methods of taking.

    Under a LOA issued pursuant to Sec. 216.106 of this chapter and 
Sec. 218.56, the Holder of the LOA (herein after 86 FWS) may 
incidentally, but not intentionally, take marine mammals by Level A and 
Level B harassment associated with LRS WSEP activities within the area 
described in Sec. 218.50, provided the activities are in compliance with 
all terms, conditions, and requirements of these regulations in this 
subpart and the associated LOA.



Sec. 218.53  Prohibitions.

    Notwithstanding takings contemplated in Sec. 218.50 and authorized 
by an LOA issued under Sec. 216.106 of this chapter and Sec. 218.56, no 
person in connection with the activities described in Sec. 218.50 may:
    (a) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or the LOA issued under Sec. 216.106 of 
this chapter and Sec. 218.56.
    (b) Take a marine mammal species or stock not specified in the LOA; 
and
    (c) Take a marine mammal species or stock specified in the LOA in 
any manner other than as specified.



Sec. 218.54  Mitigation requirements.

    When conducting activities identified in Sec. 218.50, the mitigation 
measures contained in the LOA issued under Sec. 216.106 of this chapter 
and Sec. 218.56 must be implemented. These mitigation measures shall 
include but are not limited to the following general conditions:
    (a) Execute missions during day-light hours only, no more than four 
hours per day, no more than one day during 2017, no more than four days 
per year for 2018 through 2022 over a five-day period, on weekdays, and 
only during summer (June through August) or fall (September through 
November) months.
    (b) Delay live munition detonations if a marine mammal is observed 
within the designated exclusion zone (2.3 mile (mi) (3,704 m) from the 
weapon impact site), resuming only after the animal is observed exiting 
the exclusion zone or the exclusion zone has been clear of any 
additional sightings for a period of 30 minutes.
    (c) Delay live munition detonations if a marine mammal is observed 
in an impact zone but outside of the 2.3 mi

[[Page 171]]

exclusion zone and if the manner of taking is not authorized (e.g., 
animal is observed in Level A impact zone for that species and no Level 
A take is authorized), resuming only after the animal is observed 
exiting the zone.
    (d) Shift the target site as far as possible from an observed marine 
mammal's location (but within the two-mile wide weapon impact area) if a 
marine mammal is observed during the pre-mission survey or during 
missions and continuing the mission will not result in an unauthorized 
take of a marine mammal.
    (e) Suspend live munition detonations if an unauthorized take of a 
marine mammal occurs, and report the incident to NMFS Office of 
Protected Resources (OPR), NMFS Pacific Islands Regional Office (PIRO), 
and the Pacific Islands Region Marine Mammal Stranding Network 
representative immediately followed by a report to NMFS within 24 hours.
    (f) Implement a best management practice, on a daily basis, of 
conducting inert munition training or small bomb detonations prior to 
detonating large bombs if the Project Engineer/Commanding Office 
determines this practice does not interfere with mission training.
    (g) Additional mitigation measures as contained in an LOA.



Sec. 218.55  Requirements for monitoring and reporting.

    (a) Holders of LOAs issued pursuant to Sec. 218.56 for activities 
described in Sec. 218.50(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 LOA, the Holder of the LOA must notify the Pacific Islands Region 
Stranding Coordinator, NMFS, by email, at least 72 hours prior to LRS 
WSEP missions.
    (b) All marine mammal monitoring will be carried out in compliance 
with the 86 FWS Marine Mammal Mitigation and Monitoring Plan, dated 
August 2017.
    (c) Aerial Surveys: The 86 FWS will conduct pre-, during, and post-
training surveys each mission day.
    (1) The marine mammal survey monitoring area will extend no less 
than approximately 8 mi (13 kilometers (km)) from the designated impact 
site.
    (2) Surveys will utilize military aircraft equipped with advanced 
targeting sensor pods (e.g., SNIPER pods) at altitudes and speeds ideal 
for detecting marine mammals using such equipment; aircraft will fly 
transect lines covering the entire eight mi monitoring area. A 
helicopter-based survey may substitute the military aircraft survey 
platform and use of sensor pods only if a sensor pod is not be 
available.
    (3) A pre-mission marine mammal survey will commence no later than 
30 minutes prior to beginning training activities.
    (4) Aircraft personnel will also observe for marine mammals during 
training (e.g., on approach to weapon launch location).
    (5) Aircraft personnel will conduct a post-mission survey for marine 
mammals immediately following the end of training each mission day. A 
helicopter may be used in lieu of mission aircraft only if sensor pod is 
not available.
    (d) Range Camera Surveys: 86 FWS personnel will use the Makaha Ridge 
range cameras to monitor for marine mammals within the weapon impact 
area at least 30 minutes prior to, during, and immediately after 
training activities.
    (e) Helicopter surveys: If military aircraft equipped with a sensor 
pod cannot be used for marine mammal surveys, the 86 FWS may substitute 
a helicopter as the survey platform. The helicopter will fly at an 
approximately 200 feet altitude and will cover the 8 mi monitoring area. 
If adverse weather conditions preclude the ability for aircraft to 
safely operate, missions would either be delayed until the weather 
clears or cancelled for the day.
    (f) Acoustic Monitoring:
    (1) The 86 FWS will comply with all acoustic monitoring as described 
in the 86 FWS Mitigation and Monitoring Plan.
    (2) Acoustic data from the PRMF hydrophones will be collected and 
stored by the 86 FWS. Data will be analyzed to better understand the 
effects of LRS WSEP missions. The results of the

[[Page 172]]

analysis will accompany any subsequent LOA request or, if no request is 
made, no later than 90 after expiration of the LOA.
    (g) The 86 FWS will contact the Pacific Islands Region stranding 
coordinator, NMFS, by email, at least 72 hours prior to mission onset 
and one business day after completion of missions to declare that 
missions are complete.
    (h) The Holder of the LOA is required to:
    (1) Submit a draft report to NMFS OPR on all monitoring conducted 
under the LOA within 90 days of the completion of marine mammal 
monitoring or accompanying a subsequent application for regulations. A 
final report shall be prepared and submitted within 30 days following 
resolution of comments on the draft report from NMFS. This report must 
contain the informational elements described in the Monitoring Plan, and 
shall also include:
    (i) Date and time of each LRS WSEP mission;
    (ii) A complete description of the pre-exercise, exercise, and post-
exercise activities related to mitigating and monitoring the effects of 
LRS WSEP missions on marine mammals; and;
    (iii) Results of the monitoring program, including numbers by 
species/stock of any marine mammals noted injured or killed as a result 
of the LRS WSEP mission and number of marine mammals (by species if 
possible) that may have been harassed due to presence within the 
designated harassment zones.
    (iv) The draft report will be subject to review and comment by NMFS. 
Any recommendations made by NMFS must be addressed in the final report 
prior to acceptance by NMFS. The draft report will be considered the 
final report for this activity under the LOA if NMFS has not provided 
comments and recommendations within 90 days of receipt of the draft 
report.
    (2) Report 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 the LOA, 
such as an injury for species not authorized (Level A harassment), 
serious injury, or mortality, the 86 FWS shall immediately cease the 
specified activities and immediately report the incident to Pacific 
Islands Regional Stranding Coordinator (888-256-9840), NMFS followed by 
a report submitted to NMFS Office of Protected Resources and the Pacific 
Islands Regional Office within 24 hours. 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).
    (ii) Activities shall not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS will work with 86 FWS to 
determine what measures are necessary to minimize the likelihood of 
further prohibited take and ensure MMPA compliance. The 86 FWS may not 
resume their activities until notified by NMFS.
    (iii) In the event that 86 FWS discovers an injured or dead marine 
mammal, and the lead observer 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), 86 FWS shall immediately report the 
incident to the Pacific Islands Regional Stranding Coordinator, followed 
by a report to NMFS Office of Protected Resources and the Pacific Island 
Regional Office within 24 hours of the discovery. The report must 
include the same information identified in paragraph (h)(2)(i) of this 
section. Activities may continue while NMFS reviews the circumstances of 
the incident. NMFS will work with 86 FWS to determine whether additional 
mitigation measures or modifications to the activities are appropriate.
    (iv) In the event that 86 FWS discovers an injured or dead marine 
mammal, and the lead observer determines

[[Page 173]]

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, scavenger damage), 86 
FWS shall report the incident to the Office of Protected Resources, 
NMFS, and the Pacific Islands Regional Stranding Coordinator, NMFS, 
within 24 hours of the discovery. The 86 FWS shall provide photographs 
or video footage or other documentation of the stranded animal sighting 
to NMFS.
    (3) Additional Conditions:
    (i) The Holder of the LOA must inform the Director, Office of 
Protected Resources, NMFS, (301-427-8400) or designee (301-427-8401) 
prior to the initiation of any changes to the monitoring plan for a 
specified mission activity.
    (ii) A copy of the LOA must be in the possession of the safety 
officer on duty each mission day.
    (iii) The LOA may be modified, suspended or withdrawn if the holder 
fails to abide by the conditions prescribed herein, or if NMFS 
determines the authorized taking is having more than a negligible impact 
on the species or stock of affected marine mammals.



Sec. 218.56  Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, 86 FWS must apply for and obtain an LOA.
    (b) An 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, 86 FWS 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, 86 FWS must apply 
for and obtain a modification of the LOA as described in Sec. 218.57.
    (e) The LOA will set forth:
    (1) Permissible methods of incidental taking;
    (2) The number of marine mammals, by species and stock, authorized 
to be taken;
    (3) Means of effecting the least practicable adverse impact (i.e., 
mitigation) on the species of marine mammals authorized for taking, on 
its habitat, and on the availability of the species for subsistence 
uses; and
    (4) Requirements for monitoring and reporting.
    (f) Issuance of an 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 an LOA will be published in the 
Federal Register within 30 days of a determination.



Sec. 218.57  Renewals and Modifications of Letters of Authorization.

    (a) An LOA issued under Sec. 216.106 of this chapter and Sec. 218.56 
for the activity identified in Sec. 218.50(a) will 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 in paragraph (c)(1) 
of this section), and
    (2) NMFS determines that the mitigation, monitoring, and reporting 
measures required by the previous LOA under these regulations were 
implemented.
    (b) For an LOA modification or renewal request by the applicant that 
include changes to the activity or the mitigation, monitoring, or 
reporting (excluding changes made pursuant to the adaptive management 
provision in paragraph (c)(1) of this section) that do not change the 
findings made for the regulations or result in no more than a minor 
change in the total estimated number of takes (or distribution by 
species or years), NMFS may publish a notice of proposed LOA in the 
Federal Register, including the associated analysis illustrating the 
change, and solicit public comment before issuing the LOA.
    (c) An LOA issued under Sec. 216.106 of this chapter and Sec. 218.56 
for the activity identified in Sec. 218.50(a) may be modified by NMFS 
under the following circumstances:

[[Page 174]]

    (1) Adaptive Management--NMFS may modify and augment the existing 
mitigation, monitoring, or reporting measures (after consulting with the 
86 FWS regarding the practicability of the modifications) if doing so 
creates a reasonable likelihood of more effectively accomplishing the 
goals of the mitigation and monitoring.
    (i) Possible sources of data that could contribute to the decision 
to modify the mitigation, monitoring, and reporting measures in an LOA 
include, but is not limited to:
    (A) Results of new range-to-effects models based on maximum amount 
of weapons, by type, utilized during each mission;
    (B) Results from 86 FWS's monitoring from the previous year(s);
    (C) Results from other marine mammal and/or sound research or 
studies; or
    (D) Any information that reveals marine mammals may have been taken 
in a manner, extent, or number not authorized by the regulations or 
subsequent LOA.
    (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 in the LOA issued pursuant to Sec. 216.106 of 
this chapter and Sec. 218.50, 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.



Secs. 218.58-218.59  [Reserved]

Subpart G [Reserved]



   Subpart H_Taking and Importing Marine Mammals; U.S. Navy's Hawaii-
             Southern California Training and Testing (HSTT)

    Source: 78 FR 78152, Dec. 24, 2013, unless otherwise noted.

    Effective Date Note: At 78 FR 78152, Dec. 24, 2013, subpart H was 
added, effective Dec. 24, 2013, through Dec. 24, 2018.



Sec. 218.70  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 HSTT Study Area, which is comprised of established 
operating and warning areas across the north-central Pacific Ocean, from 
Southern California west to Hawaii and the International Date Line (see 
Figure 1-1 in the Navy's application). The Study Area includes three 
existing range complexes: the Southern California (SOCAL) Range Complex, 
Hawaii Range Complex (HRC), and Silver Strand Training Complex (SSTC). 
In addition, the Study Area includes other areas where training and 
testing activities occur, including the pierside locations in San Diego 
Bay and Pearl Harbor, the transit corridor between SOCAL and Hawaii, and 
throughout the San Diego Bay.
    (c) The taking of marine mammals by the Navy is only authorized if 
it occurs incidental to the following activities:
    (1) Non-impulsive Sources Used During Training:
    (i) Mid-frequency (MF) Source Classes:
    (A) MF1--an average of 11,588 hours per year.
    (B) MF1K--an average of 88 hours per year.
    (C) MF2--an average of 3,060 hours per year.
    (D) MF2K--an average of 34 hours per year.
    (E) MF3--an average of 2,336 hours per year.
    (F) MF4--an average of 888 hours per year.
    (G) MF5--an average of 13,718 items per year.
    (H) MF11--an average of 1,120 hours per year.
    (I) MF12--an average of 1,094 hours per year.

[[Page 175]]

    (ii) High-frequency (HF) and Very High-frequency (VHF) Source 
Classes:
    (A) HF1--an average of 1,754 hours per year.
    (B) HF4--an average of 4,848 hours per year.
    (iii) Anti-Submarine Warfare (ASW) Source Classes:
    (A) ASW1--an average of 224 hours per year.
    (B) ASW2--an average of 1,800 items per year.
    (C) ASW3--an average of 16,561 hours per year.
    (D) ASW4--an average of 1,540 items per year.
    (iv) Torpedoes (TORP) Source Classes:
    (A) TORP1--an average of 170 items per year.
    (B) TORP2--an average of 400 items per year.
    (2) Non-impulsive Sources Used During Testing:
    (i) Low-frequency (LF) Source Classes:
    (A) LF4--an average of 52 hours per year.
    (B) LF5--an average of 2,160 hours per year.
    (C) LF6--an average of 192 hours per year.
    (ii) Mid-frequency (MF):
    (A) MF1--an average of 180 hours per year.
    (B) MF1K--an average of 18 hours per year.
    (C) MF2--an average of 84 hours per year.
    (D) MF3--an average of 392 hours per year.
    (E) MF4--an average of 693 hours per year.
    (F) MF5--an average of 5,024 items per year.
    (G) MF6--an average of 540 items per year.
    (H) MF8--an average of 2 hours per year.
    (I) MF9--an average of 3,039 hours per year.
    (J) MF10--an average of 35 hours per year.
    (K) MF12--an average of 336 hours per year.
    (iii) High-frequency (HF) and Very High-frequency (VHF):
    (A) HF1--an average of 1,025 hours per year.
    (B) HF3--an average of 273 hours per year.
    (C) HF4--an average of 1,336 hours per year.
    (D) HF5--an average of 1,094 hours per year.
    (E) HF6--an average of 3,460 hours per year.
    (iv) ASW:
    (A) ASW1--an average of 224 hours per year.
    (B) ASW2--an average of 2,260 items per year.
    (C) ASW2--an average of 255 hours per year.
    (D) ASW3--an average of 1,278 hours per year.
    (E) ASW4--an average of 477 items per year.
    (v) TORP:
    (A) TORP1--an average of 701 items per year.
    (B) TORP2--an average of 732 items per year.
    (vi) Acoustic Modems (M):
    (A) M3--an average of 4,995 hours per year.
    (B) [Reserved]
    (vii) Swimmer Detection Sonar (SD):
    (A) SD1--an average of 38 hours per year.
    (B) [Reserved]
    (viii) Airguns (AG):
    (A) AG--an average of 5 airgun uses per year.
    (B) [Reserved]
    (ix) Synthetic Aperture Sonar (SAS):
    (A) SAS1--an average of 2,700 hours per year.
    (B) SAS2--an average of 4,956 hours per year.
    (C) SAS3--an average of 3,360 hours per year.
    (3) Annual Number of Impulsive Source Detonations During Training:
    (i) Explosive Classes:
    (A) E1 (0.1 lb to 0.25 lb NEW)--an average of 19,840 detonations per 
year.
    (B) E2 (1.26 lb to 0.5 lb NEW)--an average of 1,044 detonations per 
year.
    (C) E3 (>0.5 lb to 2.5 lb NEW)--an average of 3,020 detonations per 
year.
    (D) E4 (>2.5 lb to 5 lb NEW)--an average of 668 detonations per 
year.
    (E) E5 (>5 lb to 10 lb NEW)--an average of 8,154 detonations per 
year.
    (F) E6 (>10 lb to 20 lb NEW)--an average of 538 detonations per 
year.
    (G) E7 (>20 lb to 60 lb NEW)--an average of 407 detonations per 
year.

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    (H) E8 (>60 lb to 100 lb NEW)--an average of 64 detonations per 
year.
    (I) E9 (>100 lb to 250 lb NEW)--an average of 16 detonations per 
year.
    (J) E10 (>250 lb to 500 lb NEW)--an average of 19 detonations per 
year.
    (K) E11 (>500 lb to 650 lb NEW)--an average of 8 detonations per 
year.
    (L) E12 (>650 lb to 1,000 lb NEW)--an average of 224 detonations per 
year.
    (M) E13 (>1,000 lb to 1,740 lb NEW)--an average of 9 detonations per 
year.
    (ii) [Reserved]
    (4) Impulsive Source Detonations During Testing:
    (i) Explosive Classes:
    (A) E1 (0.1 lb to 0.25 lb NEW)--an average of 14,501 detonations per 
year.
    (B) E2 (0.26 lb to 0.5 lb NEW)--an average of 0 detonations per 
year.
    (C) E3 (>0.5 lb to 2.5 lb NEW)--an average of 2,990 detonations per 
year.
    (D) E4 (>2.5 lb to 5 lb NEW)--an average of 753 detonations per 
year.
    (E) E5 (>5 lb to 10 lb NEW)--an average of 202 detonations per year.
    (F) E6 (>10 lb to 20 lb NEW)--an average of 37 detonations per year.
    (G) E7 (>20 lb to 60 lb NEW)--an average of 21 detonations per year.
    (H) E8 (>60 lb to 100 lb NEW)--an average of 12 detonations per 
year.
    (I) E9 (>100 lb to 250 lb NEW)--an average of 0 detonations per 
year.
    (J) E10 (>250 lb to 500 lb NEW)--an average of 31 detonations per 
year.
    (K) E11 (>500 lb to 650 lb NEW)--an average of 14 detonations per 
year.
    (L) E12 (>650 lb to 1,000 lb NEW)--an average of 0 detonations per 
year.
    (M) E13 (>1,000 lb to 1,740 lb NEW)--an average of 0 detonations per 
year.
    (ii) Pile Driving: No more than four events per year.



Sec. 218.71  Effective dates and definitions.

    (a) The regulations in this subpart are effective December 24, 2013, 
through December 24, 2018.
    (b) The following definitions are utilized in this subpart:
    (1) Uncommon Stranding Event (USE)--A stranding event that takes 
place within an OPAREA where a Major Training Event (MTE) occurs 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 paragraph 
(b)(1)(ii) of this section 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, Kogia spp., 
Risso's dolphin, melon-headed whale, pilot whale, humpback whale, sperm 
whale, blue whale, fin whale, sei whale, or monk seal.
    (iii) A group of two or more cetaceans of any species exhibiting 
indicators of distress.
    (2) Shutdown--The cessation of active sonar operation or detonation 
of explosives within 14 nautical miles of any live, in the water, animal 
involved in a USE.



Sec. 218.72  Permissible methods of taking.

    (a) Under Letters of Authorization (LOAs) issued pursuant to 
Sec. 218.77, the Holder of the Letter of Authorization may incidentally, 
but not intentionally, take marine mammals within the area described in 
Sec. 218.70, provided the activity is in compliance with all terms, 
conditions, and requirements of these regulations and the appropriate 
LOA.
    (b) The incidental take of marine mammals under the activities 
identified in Sec. 218.70(c) is limited to the following species, by the 
identified method of take:
    (1) Harassment (Level A and Level B) for all Training and Testing 
Activities:
    (i) Mysticetes:
    (A) Blue whale (Balaenoptera musculus)--23,699.
    (B) Bryde's whale (Balaenoptera edeni)--1,287.
    (C) Fin whale (Balaenoptera physalus)--9,656.
    (D) Gray whale (Eschrichtius robustus), Eastern North Pacific--
60,590.
    (E) Gray whale (Eschrichtius robustus), Western North Pacific--60.
    (F) Humpback whale (Megaptera novaeangliae)--51,000.
    (G) Minke whale (Balaenoptera acutorostrata)--4,425.
    (H) Sei whale (Balaenoptera borealis)--3,251.

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    (ii) Odontocetes:
    (A) Baird's beaked whale (Berardius bairdii)--27,325.
    (B) Blainville's beaked whale (Mesoplodon densirostris)--52,972.
    (C) Bottlenose dolphin (Tursiops truncatus), California Coastal--
5,600.
    (D) Bottlenose dolphin (Tursiops truncatus), CA/OR/WA--145,125.
    (E) Bottlenose dolphin (Tursiops truncatus), Hawaii pelagic--20,995.
    (F) Bottlenose dolphin (Tursiops truncatus), Oahu--3,879.
    (G) Bottlenose dolphin (Tursiops truncatus), 4-Islands region--999.
    (H) Bottlenose dolphin (Tursiops truncatus), Kauai and Niihau--960.
    (I) Bottlenose dolphin (Tursiops truncatus), Hawaii Island--666.
    (J) Cuvier's beaked whale (Ziphius cavirostris)--349,130.
    (K) Dwarf sperm whale (Kogia sima)--113,525.
    (L) Dall's porpoise (Phocoenoidea dalli)--210,925.
    (M) False killer whale (Pseudorca crassidens), Main Hawaiian Islands 
insular--240.
    (N) False killer whale (Pseudorca crassidens)--3,147.
    (O) Fraser's dolphin (Lagenodelphis hosei)--9,034.
    (P) Killer whale (Orcinus orca)--2,762.
    (Q) Kogia spp.--71,070.
    (R) Long-beaked common dolphin (Delphinus capensis)--604,715.
    (S) Longman's beaked whale (Indopacetus pacificus)--19,476.
    (T) Melon-headed whale (Peponocephala electra)--7,353.
    (U) Mesoplodon beaked whales--11,695.
    (V) Northern right whale dolphin (Lissodelphis borealis)--286,635.
    (W) Pacific white-sided dolphin (Lagenorhynchus obliquidens)--
216,885.
    (X) Pantropical spotted dolphin (Stenella attenuata)--51,864.
    (Y) Pygmy killer whale (Feresa attenuata)--2,908.
    (Z) Pygmy sperm whale (Kogia breviceps)--1,683.
    (AA) Risso's dolphin (Grampus griseus)--481,677.
    (BB) Rough-toothed dolphin (Steno bredanensis)--24,815.
    (CC) Short-beaked common dolphin (Delphinus delphis)--5,610,700.
    (DD) Short-finned pilot whale (Globicephala macrorhynchus)--46,680.
    (EE) Sperm whale (Physeter macrocephalus)--17,235.
    (FF) Spinner dolphin (Stenella longirostris)--11,900.
    (GG) Striped dolphin (Stenella coerulealba)--39,487.
    (iii) Pinnipeds:
    (A) California sea lion (Zalophus californianus)--699,605.
    (B) Guadalupe fur seal (Arctocephalus townsendi)--14,360.
    (C) Harbor seal (Phoca vitulina)--34,025.
    (D) Hawaiian monk seal (Monachus schauinslandi)--8,124.
    (E) Northern elephant seal (Mirounga angustirostris)--126,275.
    (F) Northern fur seal (Callorhinus ursinus)--105,895.
    (3) Mortality (or lesser Level A injury) for all Training and 
Testing Activities:
    (i) No more than 130 mortalities applicable to any small odontocete 
(i.e., dolphin) or pinniped (with the exception of Hawaiian monk seal) 
species from an impulse source.
    (ii) No more than 10 beaked whale mortalities.
    (iii) No more than 15 large whale injuries or mortalities or serious 
injuries from vessel strike.



Sec. 218.73  Prohibitions.

    Notwithstanding takings contemplated in Sec. 218.72 and authorized 
by an LOA issued under Secs. 216.106 and 218.77 of this chapter, no 
person in connection with the activities described in Sec. 218.70 may:
    (a) Take any marine mammal not specified in Sec. 218.72(c);
    (b) Take any marine mammal specified in Sec. 218.72(c) other than by 
incidental take as specified in Sec. 218.72(c);
    (c) Take a marine mammal specified in Sec. 218.72(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 an LOA issued under Secs. 216.106 
and 218.77.

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Sec. 218.74  Mitigation.

    (a) When conducting training and testing activities, as identified 
in Sec. 218.70, the mitigation measures contained in the LOA issued 
under Secs. 216.106 and 218.77 of this chapter must be implemented. 
These mitigation measures include, but are not limited to:
    (1) Lookouts--The following are protective measures concerning the 
use of Lookouts.
    (i) Lookouts positioned on ships will be dedicated solely to 
diligent observation of the air and surface of the water. Their 
observation objectives will include, but are not limited to, detecting 
the presence of biological resources and recreational or fishing boats, 
observing mitigation zones, and monitoring for vessel and personnel 
safety concerns.
    (ii) Lookouts positioned in aircraft or on small boats will, to the 
maximum extent practicable and consistent with aircraft and boat safety 
and training and testing requirements, comply with the observation 
objectives described above in Sec. 218.74 (a)(1)(i).
    (iii) Lookout measures for non-impulsive sound:
    (A) With the exception of ships less than 65 ft (20 m) in length and 
ships which are minimally manned, ships using low-frequency or hull-
mounted mid-frequency active sonar sources associated with anti-
submarine warfare and mine warfare activities at sea will have two 
Lookouts at the forward position of the ship. For the purposes of this 
rule, low-frequency active sonar does not include surveillance towed 
array sensor system low-frequency active sonar.
    (B) While using low-frequency or hull-mounted mid-frequency active 
sonar sources associated with anti-submarine warfare and mine warfare 
activities at sea, vessels less than 65 ft (20 m) in length and ships 
which are minimally manned will have one Lookout at the forward position 
of the vessel due to space and manning restrictions.
    (C) Ships conducting active sonar activities while moored or at 
anchor (including pierside testing or maintenance) will maintain one 
Lookout.
    (D) Surface ships or aircraft conducting high-frequency or non-hull-
mounted mid-frequency active sonar activities associated with anti-
submarine warfare and mine warfare activities at sea will have one 
Lookout.
    (iv) Lookout measures for explosives and impulsive sound:
    (A) Aircraft conducting IEER sonobuoy activities will have one 
Lookout.
    (B) Explosive sonobuoys with 0.6 to 2.5 lb net explosive weight will 
have one Lookout.
    (C) Surface vessels conducting anti-swimmer grenade activities will 
have one Lookout.
    (D) During general mine countermeasure and neutralization activities 
using up to a 500-lb net explosive weight detonation (bin E10 and 
below), vessels greater than 200 ft will have two Lookouts, while 
vessels less than 200 ft or aircraft will have one Lookout.
    (E) General mine countermeasure and neutralization activities using 
a 501 to 650-lb net explosive weight detonation (bin E11), will have two 
Lookouts. One Lookout will be positioned in an aircraft and one in a 
support vessel.
    (F) During activities involving diver-placed mines under positive 
control, activities using up to a 500 lb net explosive weight (bin E10) 
detonation will have a total of two Lookouts (one Lookout positioned on 
two small boats, or one small boat in combination with either a 
helicopter or shore-based. The shore-based observer would be stationed 
at an elevated on-shore position and would only be used during 
activities conducted in very shallow waters.
    (G) When mine neutralization activities using diver-placed charges 
with up to a 29-lb net explosive weight detonation (bin E7) are 
conducted with a time-delay firing device, four Lookouts will be used. 
Two Lookouts will be positioned in each of two small rigid hull 
inflatable boats or on one boat. In addition, when aircraft are used, 
the pilot or member of the aircrew will serve as an additional Lookout. 
The divers placing the charges on mines will report all marine mammal 
sightings to their dive support vessel or Range Safety Officer.
    (H) Surface vessels or aircraft conducting small- and medium-caliber 
gunnery exercises against a surface target will have one Lookout.

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    (I) Surface vessels conducting large-caliber gunnery exercises 
against a surface target will have one Lookout.
    (J) Aircraft conducting missile exercises (including rockets) 
against surface targets will have one Lookout.
    (K) Aircraft conducting bombing exercises will have one Lookout.
    (L) During explosive torpedo testing, one Lookout will be used and 
positioned in an aircraft.
    (M) During sinking exercises, two Lookouts will be used. One Lookout 
will be positioned in an aircraft and one on a surface vessel.
    (N) Each surface vessel supporting at-sea explosive testing will 
have at least one Lookout.
    (O) During pile driving, one Lookout will be used and positioned on 
the platform that will maximize the potential for marine mammal 
sightings (e.g., the shore, an elevated causeway, or on a small boat).
    (P) Surface vessels conducting explosive and non-explosive large-
caliber gunnery exercises will have one Lookout. This may be the same 
Lookout used during large-caliber gunnery exercises with a surface 
target.
    (v) Lookout measures for physical strike and disturbance:
    (A) While underway, surface ships will have at least one Lookout.
    (B) During activities using towed in-water devices, when towed from 
a manned platform, one Lookout will be used.
    (C) Activities involving non-explosive practice munitions (e.g., 
small-, medium-, and large-caliber gunnery exercises) using a surface 
target will have one Lookout.
    (D) During activities involving non-explosive bombing exercises, one 
Lookout positioned in an aircraft will be used.
    (E) During activities involving non-explosive missile exercises 
(including rockets) using a surface target, one Lookout will be used.
    (2) Mitigation Zones--The following are protective measures 
concerning the implementation of mitigation zones.
    (i) Mitigation zones will be measured as the radius from a source 
and represent a distance to be monitored.
    (ii) Visual detections of marine mammals within a mitigation zone 
will be communicated immediately to a watch station for information 
dissemination and appropriate action.
    (iii) Mitigation zones for non-impulsive sound: \1\
---------------------------------------------------------------------------

    \1\ The mitigation zone would be 200 yd (183 m) for low-frequency 
non-hull mounted sources in bins LF4 and LF5.
---------------------------------------------------------------------------

    (A) When marine mammals are visually detected, the Navy shall ensure 
that low-frequency and hull-mounted mid-frequency active sonar 
transmission levels are limited to at least 6 dB below normal operating 
levels, for sources that can be powered down, if any detected marine 
mammals are within 1,000 yd (914 m) of the sonar dome (the bow).
    (B) The Navy shall ensure that low-frequency and hull-mounted mid-
frequency active sonar transmissions are limited to at least 10 dB below 
the equipment's normal operating level, for sources that can be powered 
down, if any detected marine mammals are within 500 yd (457 m) of the 
sonar dome.
    (C) The Navy shall ensure that low-frequency sonar and hull-mounted 
mid-frequency active sonar transmissions are ceased, for sources that 
can be turned off during the activity, if any visually detected marine 
mammals are within 200 yd (183 m) of the sonar dome. Transmissions will 
not resume until one of the following conditions is met: the animal is 
observed exiting the mitigation zone; the animal is thought to have 
exited the mitigation zone based on a determination of its course and 
speed and the relative motion between the animal and the source; the 
mitigation zone has been clear from any additional sightings for a 
period of 30 minutes; the ship has transited more than 2,000 yd (1.8 km) 
beyond the location of the last sighting; or the ship concludes that 
dolphins are deliberately closing in on the ship to ride the ship's bow 
wave (and there are no other marine mammal sightings within the 
mitigation zone). Active transmission may resume when dolphins are bow 
riding because they are out of the main transmission axis of the active 
sonar while in the shallow-wave area of the bow.

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    (D) The Navy shall ensure that low-frequency and hull-mounted mid-
frequency active sonar transmissions are ceased for sources that cannot 
be powered down during the activity, if any visually detected marine 
mammals are within 200 yd (183 m) of the source. Transmissions will not 
resume until one of the following conditions is met: the animal is 
observed exiting the mitigation zone; the animal is thought to have 
exited the mitigation zone based on a determination of its course and 
speed and the relative motion between the animal and the source; the 
mitigation zone has been clear from any additional sightings for a 
period of 30 minutes; the ship has transited more than 400 yd (366 m) 
beyond the location of the last sighting.
    (E) When marine mammals are visually detected, the Navy shall ensure 
that high-frequency and non-hull-mounted mid-frequency active sonar 
transmission levels are ceased if any visually detected marine mammals 
are within 200 yd (183 m) of the source. Transmissions will not resume 
until one of the following conditions is met: the animals is observed 
exiting the mitigation zone; the animal is thought to have exited the 
mitigation zone based on a determination of its course and speed and the 
relative motion between the animal and the source; the mitigation zone 
has been clear from any additional sightings for a period of 10 minutes 
for an aircraft-deployed source; the mitigation zone has been clear from 
any additional sightings for a period of 30 minutes for a vessel-
deployed source; the vessel or aircraft has repositioned itself more 
than 400 yd (366 m) away from the location of the last sighting; or the 
vessel concludes that dolphins are deliberately closing to ride the 
vessel's bow wave (and there are no other marine mammal sightings within 
the mitigation zone).
    (iv) Mitigation zones for explosive and impulsive sound:
    (A) A mitigation zone with a radius of 600 yd (549 m) shall be 
established for IEER sonobuoys (bin E4).
    (B) A mitigation zone with a radius of 350 yd (320 m) shall be 
established for explosive sonobuoys using 0.6 to 2.5 lb net explosive 
weight (bin E3).
    (C) A mitigation zone with a radius of 200 yd (183 m) shall be 
established for anti-swimmer grenades (bin E2).
    (D) A mitigation zone ranging from 600 yd (549 m) to 2,100 yd (1.9 
km), dependent on charge size, shall be established for general mine 
countermeasure and neutralization activities using positive control 
firing devices. Mitigation zone distances are specified for charge size 
in Table 11-2 of the Navy's application.
    (E) A mitigation zone ranging from 350 yd (320 m) to 850 yd (777 m), 
dependent on charge size, shall be established for mine countermeasure 
and neutralization activities using diver-placed positive control firing 
devices. Mitigation zone distances are specified for charge size in 
Table 11-2 of the Navy's application.
    (F) A mitigation zone with a radius of 1,000 yd (914 m) shall be 
established for mine neutralization diver placed mines using time-delay 
firing devices (bin E7).
    (G) A mitigation zone with a radius of 200 yd (183 m) shall be 
established for small- and medium-caliber gunnery exercises with a 
surface target (bin E2).
    (H) A mitigation zone with a radius of 600 yd (549 m) shall be 
established for large-caliber gunnery exercises with a surface target 
(bin E5).
    (I) A mitigation zone with a radius of 900 yd (823 m) shall be 
established for missile exercises (including rockets) with up to 250 lb 
net explosive weight and a surface target (up to bin E9).
    (J) A mitigation zone with a radius of 2,000 yd (1.8 km) shall be 
established for missile exercises with 251 to 500 lb net explosive 
weight and a surface target (E10).
    (K) A mitigation zone with a radius of 2,500 yd (2.3 km) shall be 
established for bombing exercises (up to bin E12).
    (L) A mitigation zone with a radius of 2,100 yd (1.9 km) shall be 
established for torpedo (explosive) testing (up to bin E11).
    (M) A mitigation zone with a radius of 2.5 nautical miles shall be 
established for sinking exercises (up to bin E12).
    (N) A mitigation zone with a radius of 1,600 yd (1.4 km) shall be 
established for at-sea explosive testing (up to bin E5).

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    (O) A mitigation zone with a radius of 60 yd (55 m) shall be 
established for elevated causeway system pile driving.
    (P) A mitigation zone with a radius of 70 yd (64 m) within 30 
degrees on either side of the gun target line on the firing side of the 
vessel for explosive and non-explosive large-caliber gunnery exercises.
    (v) Mitigation zones for vessels and in-water devices:
    (A) A mitigation zone of 500 yd (457 m) for observed whales and 200 
yd (183 m) for all other marine mammals (except bow riding dolphins) 
shall be established for all vessel movement, providing it is safe to do 
so.
    (B) A mitigation zone of 250 yd (229 m) for any observed marine 
mammal shall be established for all towed in-water devices that are 
towed from a manned platform, providing it is safe to do so.
    (vi) Mitigation zones for non-explosive practice munitions:
    (A) A mitigation zone of 200 yd (183 m) shall be established for 
small, medium, and large caliber gunnery exercises using a surface 
target with non-explosive practice munitions.
    (B) A mitigation zone of 1,000 yd (914 m) shall be established for 
bombing exercises with non-explosive practice munitions.
    (C) A mitigation zone of 900 yd (823 m) shall be established for 
missile exercises (including rockets) using a surface target.
    (vii) Mitigation zones for the use of Navy sea lions:
    (A) If a monk seal is seen approaching or within 100 m of a Navy sea 
lion, the handler will hold the Navy sea lion in the boat or recall the 
Navy sea lion immediately if it has already been released.
    (3) Humpback Whale Cautionary Area:
    (i) The Navy will maintain a 5-km (3.1-mi) buffer zone between 
December 15 and April 15 where conducting mid-frequency active sonar 
exercises will require authorization by the Commander, U.S. Pacific 
Fleet (CPF).
    (ii) If authorized, the CPF will provide specific direction on 
required mitigation prior to operational units transiting to and 
training in the area.
    (iii) The Navy will provide NMFS with advance notification of any 
mid-frequency active sonar training and testing activities in the 
humpback whale cautionary area between December 15 and April 15.
    (4) Stranding Response Plan:
    (i) The Navy shall abide by the letter of the ``Stranding Response 
Plan for Major Navy Training Exercises in the HSTT Study Area,'' to 
include the following measures:
    (A) Shutdown Procedures--When an Uncommon Stranding Event (USE--
defined in Sec. 218.71 (b)(1)) occurs during a Major Training Exercise 
(MTE) in the HSTT Study Area, the Navy shall implement the procedures 
described below.
    (1) The Navy shall implement a shutdown (as defined Sec. 218.71 
(b)(2)) when advised by a NMFS Office of Protected Resources 
Headquarters Senior Official designated in the HSTT Study Area 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 the 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, NFMS 
will determine if, and advise the Navy whether a modified shutdown is 
appropriate on a case-by-case basis.

[[Page 182]]

    (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 mid-frequency active sonar 
training activities or explosive detonations, though farther than 14 
nautical miles 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 HSTT 
Study Area Communication Protocol) regarding the location, number and 
types of acoustic/explosive sources, direction and speed of units using 
mid-frequency active sonar, and marine mammal sightings information 
associated with training activities occurring within 80 nautical miles 
(148 km) and 72 hours prior to the USE event. Information not initially 
available regarding the 80-nautical miles (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.
    (b) [Reserved]



Sec. 218.75  Requirements for monitoring and reporting.

    (a) As outlined in the HSTT Study Area Stranding Communication Plan, 
the Holder of the Authorization must notify NMFS immediately (or as soon 
as operational security considerations allow) if the specified activity 
identified in Sec. 218.70 is thought to have resulted in the mortality 
or injury of any marine mammals, or in any take of marine mammals not 
identified in Sec. 218.71.
    (b) The Holder of the LOA must conduct all monitoring and required 
reporting under the LOA, including abiding by the HSTT Monitoring Plan.
    (c) General Notification of Injured or Dead Marine Mammals--Navy 
personnel shall ensure that NMFS (regional stranding coordinator) is 
notified immediately (or as soon as operational security considerations 
allow) if an injured or dead marine mammal is found during or shortly 
after, and in the vicinity of, an Navy training or testing activity 
utilizing mid- or high-frequency active sonar, 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.
    (d) Vessel Strike--In the event that a Navy vessel strikes a whale, 
the Navy shall do the following:
    (1) Immediately report to NMFS (pursuant to the established 
Communication Protocol) the:
    (i) Species identification if known;
    (ii) Location (latitude/longitude) of the animal (or location of the 
strike if the animal has disappeared);
    (iii) Whether the animal is alive or dead (or unknown); and
    (iv) The time of the strike.
    (2) As soon as feasible, the Navy shall report to or provide to 
NMFS, the:
    (i) Size, length, and description (critical if species is not known) 
of animal;
    (ii) An estimate of the injury status (e.g., dead, injured but 
alive, injured and moving, blood or tissue observed in the water, status 
unknown, disappeared, etc.);
    (iii) Description of the behavior of the whale during event, 
immediately after the strike, and following the strike (until the report 
is made or the animal is no long sighted);
    (iv) Vessel class/type and operation status;
    (v) Vessel length
    (vi) Vessel speed and heading; and
    (vii) To the best extent possible, obtain

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    (3) Within 2 weeks of the strike, provide NMFS:
    (i) A detailed description of the specific actions of the vessel in 
the 30-minute timeframe immediately preceding the strike, during the 
event, and immediately after the strike (e.g., the speed and changes in 
speed, the direction and changes in the direction, other maneuvers, 
sonar use, etc., if not classified); and
    (ii) A narrative description of marine mammal sightings during the 
event and immediately after, and any information as to sightings prior 
to the strike, if available; and
    (iii) Use established Navy shipboard procedures to make a camera 
available to attempt to capture photographs following a ship strike.
    (e) Annual HSTT Monitoring Plan Report--(1) The Navy shall submit an 
annual report for the HSTT Monitoring Plan in April of each year, 
describing the implementation and results from the previous calendar 
year. Data collection methods will be standardized across range 
complexes and study areas to allow for comparison in different 
geographic locations. Although additional information will be gathered, 
the protected species observers collecting marine mammal data pursuant 
to the HSTT Monitoring Plan shall, at a minimum, provide the same marine 
mammal observation data required in Sec. 218.75. (2) As an alternative, 
the Navy may submit a multi-Range Complex annual Monitoring Plan report 
to fulfill this requirement. Such a report would describe progress of 
knowledge made with respect to monitoring plan study questions across 
all Navy ranges associated with the ICMP. Similar study questions shall 
be treated together so that progress on each topic shall be summarized 
across all Navy ranges. The report need not include analyses and content 
that does not provide direct assessment of cumulative progress on the 
monitoring plan study questions.
    (f) Annual HSTT Exercise and Testing Reports--The Navy shall submit 
preliminary reports detailing the status of authorized sound sources 
within 21 days after the end of the annual authorization cycle. The Navy 
shall submit detailed reports 3 months after the anniversary of the date 
of issuance of the LOA. The detailed annual reports shall contain 
information on Major Training Exercises (MTE), Sinking Exercise (SINKEX) 
events, and a summary of sound sources used, as described below. The 
analysis in the detailed reports will be based on the accumulation of 
data from the current year's report and data collected from previous 
reports. The detailed reports shall contain information identified in 
paragraphs (e)(1) through (e)(5) of this section.
    (1) Major Training Exercises/SINKEX:
    (i) This section shall contain the reporting requirements for 
Coordinated and Strike Group exercises and SINKEX. Coordinated and 
Strike Group Major Training Exercises include:
    (A) Sustainment Exercise (SUSTAINEX).
    (B) Integrated ASW Course (IAC).
    (C) Composite Training Unit Exercises (COMPTUEX).
    (D) Joint Task Force Exercises (JTFEX).
    (E) Undersea Warfare Exercise (USWEX).
    (ii) Exercise information for each MTE:
    (A) Exercise designator.
    (B) Date that exercise began and ended.
    (C) Location (operating area).
    (D) Number of items or hours (per the LOA) of each sound source bin 
(impulsive and non-impulsive) used in the exercise.
    (E) Number and types of vessels, aircraft, etc., participating in 
exercise.
    (F) Individual marine mammal sighting information for each sighting 
when mitigation occurred during each MTE:
    (1) Date/time/location of sighting.
    (2) Species (if not possible, indication of whale/dolphin/pinniped).
    (3) Number of individuals.
    (4) Initial detection sensor.
    (5) Indication of specific type of platform the observation was made 
from (including, for example, what type of surface vessel or testing 
platform).
    (6) Length of time observers maintained visual contact with marine 
mammal(s).
    (7) Sea state.

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    (8) Visibility.
    (9) Sound source in use at the time of sighting.
    (10) Indication of whether animal is <200 yd, 200-500 yd, 500-1,000 
yd, 1,000-2,000 yd, or >2,000 yd from sound source.
    (11) Mitigation implementation--whether operation of sonar sensor 
was delayed, or sonar was powered or shut down, and how long the delay 
was; or whether navigation was changed or delayed.
    (12) If source in use is a hull-mounted sonar, relative bearing of 
animal from ship and estimation of anima's motion relative to ship 
(opening, closing, parallel).
    (13) 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 closing to bow ride, paralleling 
course/speed, floating on surface and not swimming, etc.), and if any 
calves present.
    (G) An evaluation (based on data gathered during all of the MTEs) of 
the effectiveness of mitigation measures designed to minimize the 
received level to which marine mammals may be exposed. This evaluation 
shall identify the specific observations that support any conclusions 
the Navy reaches about the effectiveness of the mitigation.
    (iii) Exercise information for each SINKEX:
    (A) List of the vessels and aircraft involved in the SINKEX.
    (B) Location (operating area).
    (C) Chronological list of events with times, including time of 
sunrise and sunset, start and stop time of all marine species surveys 
that occur before, during, and after the SINKEX, and ordnance used.
    (D) Visibility and/or weather conditions, wind speed, cloud cover, 
etc. throughout exercise if it changes.
    (E) Aircraft used in the surveys, flight altitude, and flight speed 
and the area covered by each of the surveys, given in coordinates, map, 
or square miles.
    (F) Passive acoustic monitoring details (number of sonobuoys, area 
and depth that was heard, detections of biologic activity, etc.).
    (G) Individual marine mammal sighting info for each sighting that 
required mitigation to be implemented:
    (1) Date/time/location of sighting.
    (2) Species (if not possible, indication of whale/dolphin/pinniped).
    (3) Number of individuals.
    (4) Initial detection sensor.
    (5) Indication of specific type of platform the observation was made 
from (including, for example what type of surface vessel or platform).
    (6) Length of time observers maintained visual contact with marine 
mammal(s).
    (7) Sea state.
    (8) Visibility.
    (9) Indication of whether animal is <200 yd, 200-500 yd, 500-1,000 
yd, 1,000-2,000 yd, or >2,000 yd from the target.
    (10) Mitigation implementation--whether the SINKEX was stopped or 
delayed and length of delay.
    (11) 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.), and if any 
calves present.
    (H) List of the ordnance used throughout the SINKEX and net 
explosive weight (NEW) of each weapon and the combined ordnance NEW.
    (2) Summary of Sources Used.
    (i) This section shall include the following information summarized 
from the authorized sound sources used in all training and testing 
events:
    (A) Total annual hours or quantity (per the LOA) of each bin of 
sonar or other non-impulsive source;
    (B) Total annual expended/detonated rounds (missiles, bombs, etc.) 
for each explosive bin;
    (C) Total annual airgun use; and
    (D) Improved Extended Echo-Ranging System (IEER)/sonobuoy summary, 
including:
    (1) Total expended/detonated rounds (buoys).
    (2) Total number of self-scuttled IEER rounds.
    (3) Sonar Exercise Notification--The Navy shall submit to NMFS 
(specific contact information to be provided in LOA) either an 
electronic (preferably)

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or verbal report within fifteen calendar days after the completion of 
any major exercise (RIMPAC, USWEX, or Multi Strike Group) indicating:
    (i) Location of the exercise.
    (ii) Beginning and end dates of the exercise.
    (iii) Type of exercise (e.g., RIMPAC, USWEX, or Multi Strike Group).
    (4) Geographic Information Presentation--The reports shall present 
an annual (and seasonal, where practical) depiction of training 
exercises and testing bin usage geographically across the Study Area.
    (5) Special Reporting Requirements--To the extent practicable, and 
as it applies to the specific Study Area, these reports will also 
include:
    (i) The total hours (from 15 December through 15 April) of hull-
mounted active sonar operation occurring in the dense humpback areas 
generally shown on the Mobley map (73 FR 35510, 35520) plus a 5-km 
buffer, but not including the Pacific Missile Range Facility (as 
illustrated in the HSTT FEIS/OEIS).
    (ii) The total estimated annual hours of hull-mounted active sonar 
operation conducted in the Humpback Whale Cautionary Area between 15 
December and 15 April.
    (6) 5-year Close-out Exercise and Testing Report--This report will 
be included as part of the 2019 annual exercise or testing report. This 
report will provide the annual totals for each sound source bin with a 
comparison to the annual allowance and the 5-year total for each sound 
source bin with a comparison to the 5-year allowance. Additionally, if 
there were any changes to the sound source allowance, this report will 
include a discussion of why the change was made and include the analysis 
to support how the change did or did not result in a change in the FEIS 
and final rule determinations. The report will be submitted 3 months 
after the expiration of the rule. NMFS will submit comments on the draft 
close-out report, if any, within 3 months of receipt. The report will be 
considered final after the Navy has addressed NMFS' comments, or 3 
months after the submittal of the draft if NMFS does not provide 
comments.

[78 FR 78152, Dec. 24, 2013, as amended at 80 FR 73622, Nov. 24, 2015]



Sec. 218.76  Applications for Letters of Authorization.

    To incidentally take marine mammals pursuant to the regulations in 
this subpart, the U.S. citizen (as defined by Sec. 216.106) conducting 
the activity identified in Sec. 218.70(c) (the U.S. Navy) must apply for 
and obtain either an initial LOA in accordance with Sec. 218.77 or a 
renewal under Sec. 218.78.



Sec. 218.77  Letters of Authorization.

    (a) An LOA, unless suspended or revoked, will be valid for a period 
of time not to exceed the period of validity of this subpart.
    (b) Each LOA 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 LOA 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. 218.78  Renewals and modifications of Letters of Authorization.

    (a) A Letter of Authorization issued under Secs. 216.106 and 218.77 
for the activity identified in Sec. 218.70(c) will be renewed or 
modified upon request of 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 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

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adaptive management provision 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. 216.106 and Sec. 218.77 of this chapter 
for the activity identified in Sec. 218.70(c) 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 the Navy 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, and reporting measures in an LOA:
    (A) Results from Navy's monitoring form the previous year(s);
    (B) Results from other marine mammal and/or sound research or 
studies; or
    (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 in Sec. 218.72(c) 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 I_Taking and Importing Marine Mammals; U.S. Navy's Atlantic 
                    Fleet Training and Testing (AFTT)

    Source: 78 FR 73065, Dec. 4, 2013, unless otherwise noted.



Sec. 218.80  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 AFTT Study Area, which is comprised of established 
operating and warning areas across the North Atlantic Ocean and the Gulf 
of Mexico (see Figure 1-1 in the Navy's application). In addition, the 
Study Area also includes U.S. Navy pierside locations where sonar 
maintenance and testing occurs within the Study Area, and areas on the 
high seas that are not part of the range complexes, where training and 
testing may occur during vessel transit.
    (c) The taking of marine mammals by the Navy is only authorized if 
it occurs incidental to the following activities:
    (1) Active Acoustic Sources Used During Annual Training:
    (i) Mid-frequency (MF) Source Classes:
    (A) MF1--an average of 9,844 hours per year.
    (B) MF1K--an average of 163 hours per year.
    (C) MF2--an average of 3,150 hours per year.
    (D) MF2K--an average of 61 hours per year.
    (E) MF3--an average of 2,058 hours per year.
    (F) MF4--an average of 927 hours per year.
    (G) MF5--an average of 14,556 sonobuoys per year.
    (H) MF11--an average of 800 hours per year.
    (I) MF12--an average of 687 hours per year.

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    (ii) High-frequency (HF) and Very High-frequency (VHF) Source 
Classes:
    (A) HF1--an average of 1,676 hours per year.
    (B) HF4--an average of 8,464 hours per year.
    (iii) Anti-Submarine Warfare (ASW) Source Classes:
    (A) ASW1--an average of 128 hours per year.
    (B) ASW2--an average of 2,620 sonobuoys per year.
    (C) ASW3--an average of 13,586 hours per year.
    (D) ASW4--an average of 1,365 devices per year.
    (iv) Torpedoes (TORP) Source Classes:
    (A) TORP1--an average of 54 torpedoes per year.
    (B) TORP2--an average of 80 torpedoes year.
    (2) Active Acoustic Sources Used During Annual Testing:
    (i) LF:
    (A) LF4--an average of 254 hours per year.
    (B) LF5--an average of 370 hours per year.
    (ii) MF:
    (A) MF1--an average of 220 hours per year.
    (B) MF1K--an average of 19 hours per year.
    (C) MF2--an average of 36 hours per year.
    (D) MF3--an average of 434 hours per year.
    (E) MF4--an average of 776 hours per year.
    (F) MF5--an average of 4,184 sonobuoys per year.
    (G) MF6--an average of 303 items per year.
    (H) MF8--an average of 90 hours per year.
    (I) MF9--an average of 13,034 hours per year.
    (J) MF10--an average of 1,067 hours per year.
    (K) MF12--an average of 144 hours per year.
    (iii) HF and VHF:
    (A) HF1--an average of 1,243 hours per year.
    (B) HF3--an average of 384 hours per year.
    (C) HF4--an average of 5,572 hours per year.
    (D) HF5--an average of 1,206 hours per year.
    (E) HF6--an average of 1,974 hours per year.
    (F) HF7--an average of 366 hours per year.
    (iv) ASW:
    (A) ASW1--an average of 96 hours per year.
    (B) ASW2--an average of 2,743 sonobuoys per year.
    (C) ASW2--an average of 274 hours per year.
    (D) ASW3--an average of 948 hours per year.
    (E) ASW4--an average of 483 devices per year.
    (v) TORP:
    (A) TORP1--an average of 581 torpedoes per year.
    (B) TORP2--an average of 521 torpedoes per year.
    (vi) Acoustic Modems (M):
    (A) M3--an average of 461 hours per year.
    (B) [Reserved]
    (vii) Swimmer Detection Sonar (SD):
    (A) SD1 and SD2--an average of 230 hours per year.
    (B) [Reserved]
    (viii) Forward Looking Sonar (FLS):
    (A) FLS2 and FLS3--an average of 365 hours per year.
    (B) [Reserved]
    (ix) Synthetic Aperture Sonar (SAS):
    (A) SAS1--an average of 6 hours per year.
    (B) SAS2--an average of 3,424 hours per year.
    (3) Explosive Sources Used During Annual Training:
    (i) Explosive Classes:
    (A) E1 (0.1 to 0.25 lb NEW)--an average of 124,552 detonations per 
year.
    (B) E2 (0.26 to 0.5 lb NEW)--an average of 856 detonations per year.
    (C) E3 (>0.5 to 2.5 lb NEW)--an average of 3,132 detonations per 
year.
    (D) E4 (>2.5 to 5 lb NEW)--an average of 2,190 detonations per year.
    (E) E5 (>5 to 10 lb NEW)--an average of 14,370 detonations per year.
    (F) E6 (>10 to 20 lb NEW)--an average of 500 detonations per year.
    (G) E7 (>20 to 60 lb NEW)--an average of 322 detonations per year.
    (H) E8 (>60 to 100 lb NEW)--an average of 77 detonations per year.
    (I) E9 (>100 to 250 lb NEW)--an average of 2 detonations per year.

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    (J) E10 (>250 to 500 lb NEW)--an average of 8 detonations per year.
    (K) E11 (>500 to 650 lb NEW)--an average of 1 detonations per year.
    (L) E12 (>650 to 1,000 lb NEW)--an average of 133 detonations per 
year.
    (ii) [Reserved]
    (4) Explosive Sources Used During Annual Testing:
    (i) Explosive Classes:
    (A) E1 (0.1 to 0.25 lb NEW)--an average of 25,501 detonations per 
year.
    (B) E2 (0.26 to 0.5 lb NEW)--an average of 0 detonations per year.
    (C) E3 (>0.5 to 2.5 lb NEW)--an average of 2,912 detonations per 
year.
    (D) E4 (>2.5 to 5 lb NEW)--an average of 1,432 detonations per year.
    (E) E5 (>5 to 10 lb NEW)--an average of 495 detonations per year.
    (F) E6 (>10 to 20 lb NEW)--an average of 54 detonations per year.
    (G) E7 >20 to 60 lb NEW)--an average of 0 detonations per year.
    (H) E8 (>60 to 100 lb NEW)--an average of 11 detonations per year.
    (I) E9 (>100 to 250 lb NEW)--an average of 0 detonations per year.
    (J) E10 (>250 to 500 lb NEW)--an average of 10 detonations per year.
    (K) E11 (>500 to 650 lb NEW)--an average of 27 detonations per year.
    (L) E12 (>650 to 1,000 lb NEW)--an average of 0 detonations per 
year.
    (M) E13 (>1,000 to 1,740 lb NEW)--an average of 0 detonations per 
year.
    (N) E14 (>1,714 to 3,625 lb NEW)--an average of 4 detonations per 
year.
    (ii) [Reserved]
    (5) Active Acoustic Source Used During Non-Annual Training:
    (i) HF4--an average of 192 hours.
    (ii) [Reserved]
    (6) Active Acoustic Sources Used During Non-Annual Testing:
    (i) LF5--an average of 240 hours.
    (ii) MF9--an average of 480 hours.
    (iii) HF5--an average of 240 hours.
    (iv) HF6--an average of 720 hours.
    (v) HF7--an average of 240 hours.
    (vi) FLS2 and FLS3--an average of 240 hours.
    (vii) SAS2--an average of 720 hours.
    (7) Explosive Sources Used During Non-Annual Training:
    (i) E2 (0.26 to 0.5 lbs NEW)--an average of 2.
    (ii) E4 (2.6 to 5 lbs NEW)--an average of 2.
    (8) Explosive Sources Used During Non-Annual Testing:
    (i) E1 (0.1 to 0.25 lbs NEW)--an average of 600.
    (ii) E16 (7,251 to 14,500 lbs NEW)--an average of 12.
    (iii) E17 (14,501 to 58,000 lbs NEW)--an average of 4.



Sec. 218.81  Effective dates and definitions.

    (a) Regulations are effective December 3, 2013 and applicable to the 
Navy November 14, 2013 through November 13, 2018.
    (b) The following definitions are utilized in these regulations:
    (1) Uncommon Stranding Event (USE)--A stranding event that takes 
place within an OPAREA where a major training event (MTE) occurs 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 
Sec. 218.81(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, Kogia spp., 
Risso's dolphin, melon-headed whale, pilot whale, North Atlantic right 
whale, humpback whale, sperm whale, blue whale, fin whale, or sei whale.
    (iii) A group of two or more cetaceans of any species exhibiting 
indicators of distress.
    (2) Shutdown--The cessation of MFAS/HFAS operation or detonation of 
explosives within 14 nautical miles of any live, in the water, animal 
involved in a USE.



Sec. 218.82  Permissible methods of taking.

    (a) Under Letters of Authorization (LOAs) issued pursuant to 
Sec. 218.87, the Holder of the Letter of Authorization may incidentally, 
but not intentionally, take marine mammals within the area described in 
Sec. 218.80, provided the activity is in compliance with all terms, 
conditions, and requirements of these regulations and the appropriate 
LOA.

[[Page 189]]

    (b) The incidental take of marine mammals under the activities 
identified in Sec. 218.80(c) is limited to the following species, by the 
identified method of take:
    (1) Harassment (Level A and Level B) for all Training and Testing 
Activities:
    (i) Mysticetes:
    (A) Blue whale (Balaenoptera musculus)--817.
    (B) Bryde's whale (Balaenoptera edeni)--5,079.
    (C) Fin whale (Balaenoptera physalus)--25,239.
    (D) North Atlantic right whale (Eubalaena glacialis)--955.
    (E) Humpback whale (Megaptera novaeangliae)--9,196.
    (F) Minke whale (Balaenoptera acutorostrata)--336,623.
    (G) Sei whale (Balaenoptera borealis)--54,766.
    (ii) Odontocetes:
    (A) Atlantic spotted dolphin (Stenella frontalis)--994,221.
    (B) Atlantic white-sided dolphin (Lagenorhynchus acutus)--206,144.
    (C) Blainville's beaked whale (Mesoplodon densirostris)--164,454.
    (D) Bottlenose dolphin (Tursiops truncatus)--1,570,031.
    (E) Clymene dolphin (Stenella clymene)--108,199.
    (F) Common dolphin (Delphinus spp.)--2,562,969.
    (G) Cuvier's beaked whale (Ziphius cavirostris)--204,945.
    (H) False killer whale (Pseudorca crassidens)--4,062.
    (I) Fraser's dolphin (Lagenodelphis hosei)--11,816.
    (J) Gervais' beaked whale (Mesoplodon europaeus)--164,663.
    (K) Harbor porpoise (Phocoena phocoena)--11,072,415.
    (L) Killer whale (Orcinus orca)--77,448.
    (M) Kogia spp.--31,095.
    (N) Melon-headed whale (Peponocephala electra)--111,360.
    (O) Northern bottlenose whale (Hyperoodon ampullatus)--152,201.
    (P) Pantropical spotted dolphin (Stenella attenuata)--393,316.
    (Q) Pilot whale (Globicephala spp.)--581,032.
    (R) Pygmy killer whale (Feresa attenuata)--8,041.
    (S) Risso's dolphin (Grampus griseus)--1,306,404.
    (T) Rough-toothed dolphin (Steno bredanensis)--5,911.
    (U) Sowerby's beaked whale (Mesoplodon bidens)--63,156.
    (V) Sperm whale (Physeter macrocephalus)--82,282.
    (W) Spinner dolphin (Stenella longirostris)--115,310.
    (X) Striped dolphin (Stenella coerulealba)--1,222,149.
    (Y) True's beaked whale (Mesoplodon mirus)--99,123.
    (Z) White-beaked dolphin (Lagenorhynchus albirostris)--16,400.
    (iii) Pinnipeds:
    (A) Gray seal (Halichoerus grypus)--14,511.
    (B) Harbor seal (Phoca vitulina)--39,519.
    (C) Harp seal (Pagophilus groenlanica)--16,319.
    (D) Hooded seal (Cystophora cristata)--1,472.
    (E) Ringed seal (Pusa hispida)--1,795.
    (F) Bearded seal (Erignathus barbatus)--161.
    (2) Mortality (or lesser Level A injury) for all Training and 
Testing Activities:
    (i) No more than 140 mortalities applicable to any small odontocete 
species from an impulse source.
    (ii) No more than 10 beaked whale mortalities (2 per year).
    (iii) No more than 11 large whale mortalities from vessel strike.
    (iv) No more than 25 mortalities (no more than 20 in any given year) 
applicable to any small odontocete species from Ship Shock trials.



Sec. 218.83  Prohibitions.

    Notwithstanding takings contemplated in Sec. 218.82 and authorized 
by an LOA issued under Secs. 216.106 of this chapter and 218.87, no 
person in connection with the activities described in Sec. 218.80 may:
    (a) Take any marine mammal not specified in Sec. 218.82(c);
    (b) Take any marine mammal specified in Sec. 218.82(c) other than by 
incidental take as specified in Sec. 218.82(c);
    (c) Take a marine mammal specified in Sec. 218.82(c) if such taking 
results in more than a negligible impact on the

[[Page 190]]

species or stocks of such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of these regulations or an LOA issued under Secs. 216.106 
of this chapter and 218.87.



Sec. 218.84  Mitigation.

    (a) When conducting training and testing activities, as identified 
in Sec. 218.80, the mitigation measures contained in the LOA issued 
under Secs. 216.106 and 218.87 must be implemented. These mitigation 
measures include, but are not limited to:
    (1) Lookouts. The following are protective measures concerning the 
use of lookouts.
    (i) Lookouts positioned on ships will be dedicated solely to 
diligent observation of the air and surface of the water. Their 
observation objectives will include, but are not limited to, detecting 
the presence of biological resources and recreational or fishing boats, 
observing mitigation zones, and monitoring for vessel and personnel 
safety concerns.
    (ii) Lookouts positioned in aircraft or on small boats will, to the 
maximum extent practicable and consistent with aircraft and boat safety 
and training and testing requirements, comply with the observation 
objectives described in Sec. 218.84 (a)(1)(i).
    (iii) Lookout measures for non-impulsive sound:
    (A) With the exception of ships less than 65 ft (20 m) in length and 
ships that are minimally manned, ships using low-frequency or hull-
mounted mid-frequency active sonar sources associated with anti-
submarine warfare and mine warfare activities at sea will have two 
Lookouts at the forward position of the ship. For the purposes of this 
rule, low-frequency active sonar does not include surveillance towed 
array sensor system low-frequency active sonar.
    (B) While using low-frequency or hull-mounted mid-frequency active 
sonar sources associated with anti-submarine warfare and mine warfare 
activities at sea, vessels less than 65 ft (20 m) in length and ships 
that are minimally manned will have one Lookout at the forward position 
of the vessel due to space and manning restrictions.
    (C) Ships conducting active sonar activities while moored or at 
anchor (including pierside testing or maintenance) will maintain one 
Lookout.
    (D) Surface ships or aircraft conducting high-frequency or non-hull-
mounted mid-frequency active sonar activities associated with anti-
submarine warfare and mine warfare activities at sea will have one 
Lookout.
    (E) Surface ships or aircraft conducting high-frequency active sonar 
activities associated with anti-submarine warfare and mine warfare 
activities at sea will have one Lookout.
    (iv) Lookout measures for explosives and impulsive sound:
    (A) Aircraft conducting activities with IEER sonobuoys and explosive 
sonobuoys with 0.6 to 2.5 lbs net explosive weight will have one 
Lookout.
    (B) Surface vessels conducting anti-swimmer grenade activities will 
have one Lookout.
    (C) During general mine countermeasure and neutralization activities 
using up to a 500-lb net explosive weight detonation (bin E10 and 
below), vessels greater than 200 ft will have two Lookouts, while 
vessels less than 200 ft or aircraft will have one Lookout.
    (D) General mine countermeasure and neutralization activities using 
a 501 to 650-lb net explosive weight detonation (bin E11), will have two 
Lookouts. One Lookout will be positioned in an aircraft and one in a 
support vessel.
    (E) Mine neutralization activities involving diver-placed charges 
using up to 100-lb net explosive weight detonation (E8) conducted with a 
positive control device will have a total of two Lookouts. One Lookout 
will be positioned in each of the two support vessels, or one in a 
support vessel and one in a helicopter. All divers placing the charges 
on mines will support the Lookouts while performing their regular 
duties. The divers placing the charges on mines will report all marine 
mammal sightings to their dive support vessel or Range Safety Officer.
    (F) When mine neutralization activities using diver-placed charges 
with up to a 20-lb net explosive weight detonation (bin E6) are 
conducted with a

[[Page 191]]

time-delay firing device, four Lookouts will be used. Two Lookouts will 
be positioned in each of two small rigid hull inflatable boats. In 
addition, when aircraft are used, the pilot or member of the aircrew 
will serve as an additional Lookout. The divers placing the charges on 
mines will report all marine mammal sightings to their dive support 
vessel or Range Safety Officer.
    (G) Surface vessels conducting line charge testing will have one 
Lookout.
    (H) Surface vessels or aircraft conducting small- and medium-caliber 
gunnery exercises against a surface target will have one Lookout.
    (I) Surface vessels conducting large-caliber gunnery exercises 
against a surface target will have one Lookout.
    (J) Aircraft conducting missile exercises (including rockets) 
against surface targets will have one Lookout.
    (K) Aircraft conducting bombing exercises will have one Lookout.
    (L) During explosive torpedo testing, one Lookout will be used and 
positioned in an aircraft.
    (M) During sinking exercises, two Lookouts will be used. One Lookout 
will be positioned in an aircraft and one on a surface vessel.
    (N) Prior to commencing, during, and after completion of ship shock 
trials using up to 10,000 lb. HBX charges, the Navy will have at least 
10 Lookouts or trained marine species observers (or a combination 
thereof) positioned either in an aircraft or on multiple vessels (i.e., 
a Marine Animal Response Team boat and the test ship). If aircraft are 
used, there will be Lookouts or trained marine species observers 
positioned in an aircraft and positioned on multiple vessels. If vessels 
are the only platform, a sufficient number of additional Lookouts or 
trained marine species observers will be used to provide visual 
observation of the mitigation zone comparable to that achieved by aerial 
surveys.''
    (O) Prior to commencing, during, and after completion of ship shock 
trials using up to 40,000 lb. HBX charges, the Navy will have at least 
10 Lookouts or trained marine species observers (or a combination 
thereof) positioned in an aircraft and on multiple vessels (i.e., a 
Marine Animal Response Team boat and the test ship).
    (P) Each surface vessel supporting at-sea explosive testing will 
have at least one lookout.
    (Q) Surface vessels conducting explosive and non-explosive large-
caliber gunnery exercises will have one lookout. This may be the same 
lookout used during large-caliber gunnery exercises with a surface 
target as described in Sec. 218.84(a)(1)(iv)(I) and (a)(1)(v)(C).
    (v) Lookout measures for physical strike and disturbance:
    (A) While underway, surface ships will have at least one lookout.
    (B) During activities using towed in-water devices that are towed 
from a manned platform, one lookout will be used.
    (C) Activities involving non-explosive practice munitions (e.g., 
small-, medium-, and large-caliber gunnery exercises) using a surface 
target will have one lookout.
    (D) During activities involving non-explosive bombing exercises, one 
lookout will be used.
    (E) During activities involving non-explosive missile exercises 
(including rockets) using a surface target, one lookout will be used.
    (2) Mitigation Zones. The following are protective measures 
concerning the implementation of mitigation zones.
    (i) Mitigation zones will be measured as the radius from a source 
and represent a distance to be monitored.
    (ii) Visual detections of marine mammals within a mitigation zone 
will be communicated immediately to a watch station for information 
dissemination and appropriate action.
    (iii) Mitigation zones for non-impulsive sound:
    (A) When marine mammals are visually detected, the Navy shall ensure 
that low-frequency and hull-mounted mid-frequency active sonar 
transmission levels are limited to at least 6 dB below normal operating 
levels, for sources that can be powered down, if any detected marine 
mammals are within 1,000 yd (914 m) of the sonar dome (the bow).
    (B) The Navy shall ensure that low-frequency and hull-mounted mid-
frequency active sonar transmissions are limited to at least 10 dB below 
the equipment's normal operating levels, for sources that can be powered 
down,

[[Page 192]]

if any detected marine mammals are within 500 yd (457 m) of the sonar 
dome.
    (C) The Navy shall ensure that low-frequency and hull-mounted mid-
frequency active sonar transmissions are ceased, for sources that can be 
turned off during the activity, if any visually detected marine mammals 
are within 200 yd (183 m) of the sonar dome. Transmissions will not 
resume until one of the following conditions is met: the animal is 
observed exiting the mitigation zone, the animal is thought to have 
exited the mitigation zone based on a determination of its course and 
speed and the relative motion between the animal and the source, the 
mitigation zone has been clear from any additional sightings for a 
period of 30 min., the ship has transited more than 2,000 yd (1.8 km) 
beyond the location of the last sighting, or the ship concludes that 
dolphins are deliberately closing in on the ship to ride the ship's bow 
wave (and there are no other marine mammal sightings within the 
mitigation zone). Active transmission may resume when dolphins are bow 
riding because they are out of the main transmission axis of the active 
sonar while in the shallow-wave area of the bow.
    (D) The Navy shall ensure that low-frequency and hull-mounted mid-
frequency active sonar transmissions are ceased, for sources that cannot 
be powered down during the activity, if any visually detected marine 
mammals are within 200 yd (183 m) of the source. Transmissions will not 
resume until one of the following conditions is met: the animal is 
observed exiting the mitigation zone, the animal is thought to have 
exited the mitigation zone based on a determination of its course and 
speed and the relative motion between the animal and the source, the 
mitigation zone has been clear from any additional sightings for a 
period of 30 min., the ship has transited more than 400 yd (366 m) 
beyond the location of the last sighting.
    (E) When marine mammals are visually detected, the Navy shall ensure 
that high-frequency and non-hull-mounted mid-frequency active sonar 
transmission levels are ceased if any visually detected marine mammals 
are within 200 yd (183 m) of the source. Transmissions will not resume 
until one of the following conditions is met: the animal is observed 
exiting the mitigation zone, the animal is thought to have exited the 
mitigation zone based on a determination of its course and speed and the 
relative motion between the animal and the source, the mitigation zone 
has been clear from any additional sightings for a period of 10 min. for 
an aircraft-deployed source, the mitigation zone has been clear from any 
additional sightings for a period of 30 min. for a vessel-deployed 
source, the vessel or aircraft has repositioned itself more than 400 yd. 
(366 m) away from the location of the last sighting, or the vessel 
concludes that dolphins are deliberately closing in to ride the vessel's 
bow wave (and there are no other marine mammal sightings within the 
mitigation zone).
    (iv) Mitigation zones for explosive and impulsive sound:
    (A) A mitigation zone with a radius of 600 yd (549 m) shall be 
established for IEER sonobuoys (bin E4).
    (B) A mitigation zone with a radius of 350 yd (320 m) shall be 
established for explosive sonobuoys using 0.6 to 2.5 lb net explosive 
weight (bin E3).
    (C) A mitigation zone with a radius of 200 yd (183 m) shall be 
established for anti-swimmer grenades (up to bin E2).
    (D) A mitigation zone ranging from 600 yd (549 m) to 2,100 yd (1.9 
km), dependent on charge size, shall be established for general mine 
countermeasure and neutralization activities using positive control 
firing devices. Mitigation zone distances are specified for charge size 
in Table 11-2 of the Navy's application.
    (E) A mitigation zone ranging from 350 yd (320 m) to 850 yd (777 m), 
dependent on charge size, shall be established for mine countermeasure 
and neutralization activities using diver placed positive control firing 
devices. Mitigation zone distances are specified for charge size in 
Table 11-2 of the Navy's application.
    (F) A mitigation zone with a radius of 1,000 yd (914 m) shall be 
established for mine neutralization diver placed mines using time-delay 
firing devices (up to bin E6).
    (G) A mitigation zone with a radius of 900 yd (823 m) shall be 
established for

[[Page 193]]

ordnance testing (line charge testing) (bin E4).
    (H) A mitigation zone with a radius of 200 yd (183 m) shall be 
established for small- and medium-caliber gunnery exercises with a 
surface target (up to bin E2).
    (I) A mitigation zone with a radius of 600 yd (549 m) shall be 
established for large-caliber gunnery exercises with a surface target 
(bin E5).
    (J) A mitigation zone with a radius of 900 yd (823 m) shall be 
established for missile exercises (including rockets) with up to 250 lb 
net explosive weight and a surface target (up to bin E9).
    (K) A mitigation zone with a radius of 2,000 yd (1.8 km) shall be 
established for missile exercises with 251 to 500 lb net explosive 
weight and a surface target (E10).
    (L) A mitigation zone with a radius of 2,500 yd (2.3 km) shall be 
established for bombing exercises (up to bin E12).
    (M) A mitigation zone with a radius of 2,100 yd (1.9 km) shall be 
established for torpedo (explosive) testing (up to bin E11).
    (N) A mitigation zone with a radius of 2.5 nautical miles shall be 
established for sinking exercises (up to bin E12).
    (O) A mitigation zone with a radius of 1,600 yd (1.4 km) shall be 
established for at-sea explosive testing (up to bin E5).
    (P) A mitigation zone with a radius of 3.5 nautical miles shall be 
established for a shock trial.
    (Q) A mitigation zone with a radius of 70 yd (64 m), within 30 
degrees on either side of the gun target line on the firing side of the 
ship, shall be established for all explosive and non-explosive large-
caliber gunnery exercises.
    (v) Mitigation zones for vessels and in-water devices:
    (A) A mitigation zone of 500 yd (457 m) for observed whales and 200 
yd (183 m) for all other marine mammals (except bow riding dolphins) 
shall be established for all vessel movement, providing it is safe to do 
so.
    (B) A mitigation zone of 250 yd (229 m) for any observed marine 
mammal shall be established for all towed in-water devices that are 
towed from a manned platform, providing it is safe to do so.
    (vi) Mitigation zones for non-explosive practice munitions:
    (A) A mitigation zone of 200 yd (183 m) shall be established for 
small, medium, and large caliber gunnery exercises using a surface 
target.
    (B) A mitigation zone of 1,000 yd (914 m) shall be established for 
bombing exercises.
    (C) A mitigation zone of 900 yd (823 m) shall be established for 
missile exercises (including rockets) using a surface target.
    (3) Protective Measures Specific to North Atlantic Right Whales:
    (i) North Atlantic Right Whale Calving Habitat off the Southeast 
United States.
    (A) The Southeast Right Whale Mitigation Area is defined by a 5 nm 
(9.3 km) buffer around the coastal waters between 31-15 N. lat. and 30-
15 N. lat. extending from the coast out 15 nm (27.8 km), and the coastal 
waters between 30-15 N. lat. to 28-00 N. lat. from the coast out to 5 nm 
(9.3 km).
    (B) Between November 15 and April 15, the following activities are 
prohibited within the Southeast Right Whale Mitigation Area:
    (1) Low-frequency and hull-mounted mid-frequency active sonar 
(except in Sec. 218.84(a)(3)(i)(C).
    (2) High-frequency and non-hull mounted mid-frequency active sonar 
(except helicopter dipping).
    (3) Missile activities (explosive and non-explosive).
    (4) Bombing exercises (explosive and non-explosive).
    (5) Underwater detonations.
    (6) Improved extended echo ranging sonobuoy exercises.
    (7) Torpedo exercises (explosive).
    (8) Small-, medium-, and large-caliber gunnery exercises.
    (C) Between November 15 and April 15, use of the following systems 
is to be minimized to the maximum extent practicable within the 
Southeast Right Whale Mitigation Area:
    (1) Helicopter dipping using active sonar.
    (2) Low-frequency and hull-mounted mid-frequency active sonar used 
for navigation training.
    (3) Low-frequency and hull-mounted mid-frequency active sonar used 
for object detection exercises.

[[Page 194]]

    (D) Prior to transiting or training or testing in the Southeast 
Right Whale Mitigation Area, ships shall contact Fleet Area Control and 
Surveillance Facility, Jacksonville, to obtain the latest whale 
sightings and other information needed to make informed decisions 
regarding safe speed and path of intended movement. Submarines shall 
contact Commander, Submarine Force United States Atlantic Fleet for 
similar information.
    (E) The following specific mitigation measures apply to activities 
occurring within the Southeast Right Whale Mitigation Area:
    (1) When transiting within the Southeast Right Whale Mitigation 
Area, 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 North 
Atlantic right whale is sighted by a vessel, when the vessel is within 9 
km (5 nm) of a sighting reported within the past 12 hours, or when 
operating at night or during periods of poor visibility.
    (3) Vessels shall avoid head-on approaches to North Atlantic right 
whales(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 
their ability to maneuver.
    (4) Vessels shall minimize to the extent practicable north-south 
transits through the Southeast Right Whale Mitigation Area. If transit 
in a north-south direction is required during training or testing 
activities, the Navy shall implement the measures described in 
Sec. 218.84(a)(3)(i)(E)(1) through (3).
    (5) Ship, surfaced subs, and aircraft shall report any North 
Atlantic right whale sightings to Fleet Area Control and Surveillance 
Facility, Jacksonville, by the most convenient and fastest means. The 
sighting report shall include the time, latitude/longitude, direction of 
movement and number and description of whale (i.e., adult/calf).
    (ii) North Atlantic Right Whale Foraging Habitat off the Northeast 
United States:
    (A) The Northeast Right Whale Mitigation Area consists of two areas: 
the Great South Channel and Cape Cod Bay. The Great South Channel is 
defined by the following coordinates: 41-40 N. Lat., 69-45 W. Long.; 41-
00 N. Lat., 69-05 W. Long.; 41-38 N. Lat., 68-13 W. Long.; and 42-10 N. 
Lat., 68-31 W. Long. Cape Cod Bay is defined by the following 
coordinates: 42-04.8 N. Lat., 70-10 W. Long.; 42-10 N. Lat., 70-15 W. 
Long.; 42-12 N. Lat., 70-30 W. Long.; 41-46.8 N. Lat., 70-30 W. Long.; 
and on the south and east by the interior shoreline of Cape Cod.
    (B) Year-round, the following activities are prohibited within the 
Northeast Right Whale Mitigation Area:
    (1) Improved extended echo ranging sonobuoy exercises in or within 
5.6 km (3 nm) of the mitigation area.
    (2) Bombing exercises (explosive and non-explosive).
    (3) Underwater detonations.
    (4) Torpedo exercises (explosive).
    (C) Year-round, use of the following systems is to be minimized to 
the maximum extent practicable within the Northeast Right Whale 
Mitigation Area:
    (1) Low-frequency and hull-mounted mid-frequency active sonar.
    (2) High-frequency and non-hull mounted mid-frequency active sonar, 
including helicopter dipping.
    (D) Prior to transiting or training in the Northeast Right Whale 
Mitigation Area, ships and submarines shall contact the Northeast Right 
Whale Sighting Advisory System to obtain the latest whale sightings and 
other information needed to make informed decisions regarding safe speed 
and path of intended movement.
    (E) The following specific mitigation measures apply to activities 
occurring within the Northeast Right Whale Mitigation Area:
    (1) When transiting within the Northeast Right Whale Mitigation 
Area, vessels shall exercise extreme caution and proceed at a slow safe 
speed. The speed shall be the slowest safe speed that is

[[Page 195]]

consistent with mission, training, and operations.
    (2) Speed reductions (adjustments) are required when a North 
Atlantic right whale is sighted by a vessel, when the vessel is within 9 
km (5 nm) of a sighting reported within the past week, or when operating 
at night or during periods of poor visibility.
    (3) When conducting TORPEXs, the following additional speed 
restrictions shall be required: during transit, surface vessels and 
submarines shall maintain a speed of no more than 19 km/hour (10 knots); 
during torpedo firing exercises, vessel speeds should, where feasible, 
not exceed 10 knots; when a submarine is used as a target, vessel speeds 
should, where feasible, not exceed 18 knots; when surface vessels are 
used as targets, vessels may exceed 18 knots for a short period of time 
(e.g., 10-15 minutes).
    (4) Vessels shall avoid head-on approaches to North Atlantic right 
whales(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 
their ability to maneuver.
    (5) Non-explosive torpedo testing shall be conducted during daylight 
hours only in Beaufort sea states of 3 or less to increase the 
probability of marine mammal detection.
    (6) Non-explosive torpedo testing activities shall not commence if 
concentrations of floating vegetation (Sargassum or kelp patties) are 
observed in the vicinity.
    (7) Non-explosive torpedo testing activities shall cease if a marine 
mammal is visually detected within the immediate vicinity of the 
activity. The tests may recommence when any one of the following 
conditions are met: the animal is observed exiting the immediate 
vicinity of the activity; the animal is thought to have exited the 
immediate vicinity based on a determination of its course and speed and 
the relative motion between the animal and the source; or the immediate 
vicinity of the activity has been clear from any additional sightings 
for a period of 30 minutes.
    (iii) North Atlantic Right Whale Mid-Atlantic Migration Corridor:
    (A) The Mid-Atlantic Right Whale Mitigation Area consists of the 
following areas:
    (1) Block Island Sound: the area bounded by 40-51-53.7 N. Lat., 70-
36-44.9 W. Long.; 41-20-14.1 N. Lat., 70-49-44.1 W. Long; 41-4-16.7 N. 
Lat., 71-51-21 W. Long.; 41-35-56.5 N. Lat., 71-38-25.1 W. Long; then 
back to first set of coordinates.
    (2) New York and New Jersey: within a 37 km (20 nm) radius of the 
following (as measured seaward from the COLREGS lines) 40-29-42.2 N. 
Lat., 73-55-57.6 W. Long.
    (3) Delaware Bay: within a 37 km (20 nm) radius of the following (as 
measured seaward from the COLREGS lines) 38-52-27.4 N. Lat., 75-01-32.1 
W. Long.
    (4) Chesapeake Bay: within a 37 km (20 nm) radius of the following 
(as measured seaward from the COLREGS lines) 37-00-36.9 N. Lat., 75-57-
50.5 W. Long.
    (5) Morehead City, North Carolina: within a 37 km (20 nm) radius of 
the following (as measured seaward from the COLREGS lines) 34-41-32 N. 
Lat., 76-40-08.3 W. Long.
    (6) Wilmington, North Carolina, through South Carolina, and to 
Brunswick, Georgia: within a continuous area 37 km (20 nm) from shore 
and west back to shore bounded by 34-10-30 N. Lat., 77-49-12 W. Long.; 
33-56-42 N. Lat., 77-31-30 W. Long.; 33-36-30 N. Lat., 77-47-06 W. 
Long.; 33-28-24 N. Lat., 78-32-30 W. Long.; 32-59-06 N. Lat., 78-50-18 
W. Long.; 31-50 N. Lat., 80-33-12 W. Long.; 31-27 N. Lat., 80-51-36 W. 
Long.
    (B) Between November 1 and April 30, when transiting within the Mid-
Atlantic Right Whale Mitigation Area, 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.
    (iv) Planning Awareness Areas:
    (A) The Navy shall avoid planning major training exercises involving 
the use of active sonar in the specified planning awareness areas 
(PAAs--see Figure 5.3-1 in the AFTT FEIS/OEIS)

[[Page 196]]

where feasible. Should national security require the conduct of more 
than four major exercises (C2X, JTFEX, or similar scale event) in these 
areas (meaning all or a portion of the exercise) per year, or more than 
one within the Gulf of Mexico areas per year, the Navy shall provide 
NMFS with prior notification and include the information in any 
associated after-action or monitoring reports.
    (4) Stranding Response Plan:
    (i) The Navy shall abide by the current Stranding Response Plan for 
Major Navy Training Exercises in the Study Area, to include the 
following measures:
    (A) Shutdown Procedures--When an Uncommon Stranding Event (USE--
defined in Sec. 218.71 (b)(1)) occurs during a Major Training Exercise 
(MTE) in the AFTT Study Area, the Navy shall implement the procedures 
described. in paragraphs (a)(4)(i)(A)(1) through (4) of this section.
    (1) The Navy shall implement a shutdown (as defined 
Sec. 218.81(b)(2)) when advised by a NMFS Office of Protected Resources 
Headquarters Senior Official designated in the AFTT Study Area 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 the 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, NFMS 
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 mid-frequency active sonar 
training activities or explosive detonations, though farther than 14 
nautical miles 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 AFTT 
Study Area Communication Protocol) regarding the location, number and 
types of acoustic/explosive sources, direction and speed of units using 
mid-frequency active sonar, and marine mammal sightings information 
associated with training activities occurring within 80 nautical miles 
(148 km) and 72 hours prior to the USE event. Information not initially 
available regarding the 80-nautical miles (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.
    (ii) [Reserved]



Sec. 218.85  Requirements for monitoring and reporting.

    (a) As outlined in the AFTT Study Area 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. 218.80

[[Page 197]]

is thought to have resulted in the mortality or injury of any marine 
mammals, or in any take of marine mammals not identified in Sec. 218.81.
    (b) The Holder of the LOA must conduct all monitoring and required 
reporting under the LOA, including abiding by the AFTT Monitoring Plan.
    (c) 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 a Navy training or testing activity utilizing mid- or 
high-frequency active sonar or underwater explosive detonations. The 
Navy shall provide NMFS with species identification 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.
    (d) Annual AFTT Monitoring Plan Report--The Navy shall submit an 
annual report of the AFTT Monitoring Plan on April 1 of each year 
describing the implementation and results from the previous calendar 
year. Data collection methods will be standardized across range 
complexes and study areas to allow for comparison in different 
geographic locations. Although additional information will be gathered, 
the protected species observers collecting marine mammal data pursuant 
to the AFTT Monitoring Plan shall, at a minimum, provide the same marine 
mammal observation data required in Sec. 218.85. As an alternative, the 
Navy may submit a multi-Range Complex annual Monitoring Plan report to 
fulfill this requirement. Such a report would describe progress of 
knowledge made with respect to monitoring plan study questions across 
all Navy ranges associated with the ICMP. Similar study questions shall 
be treated together so that progress on each topic shall be summarized 
across all Navy ranges. The report need not include analyses and content 
that do not provide direct assessment of cumulative progress on the 
monitoring plan study questions.
    (e) Vessel Strike--In the event that a Navy vessel strikes a whale, 
the Navy shall do the following:
    (1) Immediately report to NMFS (pursuant to the established 
Communication Protocol) the:
    (i) Species identification if known;
    (ii) Location (latitude/longitude) of the animal (or location of the 
strike if the animal has disappeared);
    (iii) Whether the animal is alive or dead (or unknown); and
    (iv) The time of the strike.
    (2) As soon as feasible, the Navy shall report to or provide to 
NMFS, the:
    (i) Size, length, and description (critical if species is not known) 
of animal;
    (ii) An estimate of the injury status (e.g., dead, injured but 
alive, injured and moving, blood or tissue observed in the water, status 
unknown, disappeared, etc.);
    (iii) Description of the behavior of the whale during event, 
immediately after the strike, and following the strike (until the report 
is made or the animal is no long sighted);
    (iv) Vessel class/type and operation status;
    (v) Vessel length
    (vi) Vessel speed and heading; and
    (vii) To the best extent possible, obtain
    (3) Within 2 weeks of the strike, provide NMFS:
    (i) A detailed description of the specific actions of the vessel in 
the 30-minute timeframe immediately preceding the strike, during the 
event, and immediately after the strike (e.g., the speed and changes in 
speed, the direction and changes in the direction, other maneuvers, 
sonar use, etc., if not classified); and
    (ii) A narrative description of marine mammal sightings during the 
event and immediately after, and any information as to sightings prior 
to the strike, if available; and
    (iii) Use established Navy shipboard procedures to make a camera 
available to attempt to capture photographs following a ship strike.
    (f) Annual AFTT Exercise and Testing Report--The Navy shall submit

[[Page 198]]

``quick-look'' reports detailing the status of authorized sound sources 
within 21 days after the end of the annual authorization cycle. The Navy 
shall submit detailed reports 3 months after the anniversary of the date 
of issuance of the LOA. The annual reports shall contain information on 
Major Training Exercises (MTE), Sinking Exercise (SINKEX) events, and a 
summary of sound sources used, as described in paragraphs (f)(2)(i)(A) 
through (C) of this section. The analysis in the reports will be based 
on the accumulation of data from the current year's report and data 
collected from previous reports. These reports shall contain information 
identified in paragraphs (e)(1) through (5) of this section.
    (1) Major Training Exercises/SINKEX--
    (i) This section shall contain the reporting requirements for 
Coordinated and Strike Group exercises and SINKEX. Coordinated and 
Strike Group Major Training Exercises:
    (A) Sustainment Exercise (SUSTAINEX).
    (B) Integrated ASW Course (IAC).
    (C) Joint Task Force Exercises (JTFEX).
    (D) Composite Training Unit Exercises (COMPTUEX).
    (ii) Exercise information for each MTE:
    (A) Exercise designator.
    (B) Date that exercise began and ended.
    (C) Location (operating area).
    (D) Number of items or hours (per the LOA) of each sound source bin 
(impulsive and non-impulsive) used in the exercise.
    (E) Number and types of vessels, aircraft, etc., participating in 
exercise.
    (F) Individual marine mammal sighting information for each sighting 
when mitigation occurred during each MTE:
    (1) Date/time/location of sighting.
    (2) Species (if not possible, indication of whale/dolphin/pinniped).
    (3) Number of individuals.
    (4) Initial detection sensor.
    (5) Indication of specific type of platform the observation was made 
from (including, for example, what type of surface vessel or testing 
platform).
    (6) Length of time observers maintained visual contact with marine 
mammal(s).
    (7) Sea state.
    (8) Visibility.
    (9) Sound source in use at the time of sighting.
    (10) Indication of whether animal is <200 yd, 200-500 yd, 500-1,000 
yd, 1,000-2,000 yd, or >2,000 yd from sound source.
    (11) Mitigation implementation--whether operation of sonar sensor 
was delayed, or sonar was powered or shut down, and how long the delay 
was; or whether navigation was changed or delayed.
    (12) If source in use is a hull-mounted sonar, relative bearing of 
animal from ship and estimation of animal's motion relative to ship 
(opening, closing, parallel).
    (13) 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 closing to bow ride, paralleling 
course/speed, floating on surface and not swimming, etc.), and if any 
calves present.
    (G) An evaluation (based on data gathered during all of the MTEs) of 
the effectiveness of mitigation measures designed to minimize the 
received level to which marine mammals may be exposed. This evaluation 
shall identify the specific observations that support any conclusions 
the Navy reaches about the effectiveness of the mitigation.
    (iii) Exercise information for each SINKEX:
    (A) List of the vessels and aircraft involved in the SINKEX.
    (B) Location (operating area).
    (C) Chronological list of events with times, including time of 
sunrise and sunset, start and stop time of all marine species surveys 
that occur before, during, and after the SINKEX, and ordnance used.
    (D) Visibility and/or weather conditions, wind speed, cloud cover, 
etc. throughout exercise if it changes.
    (E) Aircraft used in the surveys, flight altitude, and flight speed 
and the area covered by each of the surveys, given in coordinates, map, 
or square miles.

[[Page 199]]

    (F) Passive acoustic monitoring details (number of sonobuoys, 
detections of biologic activity, etc.).
    (G) Individual marine mammal sighting info for each sighting that 
required mitigation to be implemented:
    (1) Date/time/location of sighting.
    (2) Species (if not possible, indication of whale/dolphin/pinniped).
    (3) Number of individuals.
    (4) Initial detection sensor.
    (5) Indication of specific type of platform the observation was made 
from (including, for example what type of surface vessel or platform).
    (6) Length of time observers maintained visual contact with marine 
mammal(s).
    (7) Sea state.
    (8) Visibility.
    (9) Indication of whether animal is <200 yd, 200-500 yd, 500-1,000 
yd, 1,000-2,000 yd, or >2,000 yd from the target.
    (10) Mitigation implementation--whether the SINKEX was stopped or 
delayed and length of delay.
    (11) 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.), and if any 
calves present.
    (H) List of the ordnance used throughout the SINKEX and net 
explosive weight (NEW) of each weapon and the combined ordnance NEW.
    (2) Summary of Sources Used.
    (i) This section shall include the following information summarized 
from the authorized sound sources used in all training and testing 
events:
    (A) Total annual hours or quantity (per the LOA) of each bin of 
sonar or other non-impulsive source.
    (B) Total annual expended/detonated rounds (missiles, bombs, etc.) 
for each explosive bin.
    (C) Improved Extended Echo-Ranging System (IEER)/sonobuoy summary, 
including:
    (1) Total expended/detonated rounds (buoys).
    (2) Total number of self-scuttled IEER rounds.
    (3) Sonar Exercise Notification--The Navy shall submit to NMFS 
(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 indicating:
    (i) Location of the exercise.
    (ii) Beginning and end dates of the exercise.
    (iii) Type of exercise.
    (4) Geographic Information Presentation--The reports shall present 
an annual (and seasonal, where practical) depiction of training 
exercises and testing bin usage geographically across the Study Area.
    (g) 5-yr Close-out Exercise and Testing Report--This report will be 
included as part of the 2019 annual exercise or testing report. This 
report will provide the annual totals for each sound source bin with a 
comparison to the annual allowance and the 5-year total for each sound 
source bin with a comparison to the 5-year allowance. Additionally, if 
there were any changes to the sound source allowance, this report will 
include a discussion of why the change was made and include the analysis 
to support how the change did or did not result in a change in the FEIS 
and final rule determinations. The report will be submitted April 1 
following the expiration of the rule. NMFS will submit comments on the 
draft close-out report, if any, within 3 months of receipt. The report 
will be considered final after the Navy has addressed NMFS' comments, or 
3 months after the submittal of the draft if NMFS does not provide 
comments.
    (h) Ship Shock Trial Report--The reporting requirements will be 
developed in conjunction with the individual test-specific mitigation 
plan for each ship shock trial. This will allow both the Navy and NMFS 
to take into account specific information regarding location, assets, 
species, and seasonality.

[78 FR 73065, Dec. 4, 2013, as amended at 80 FR 73622, Nov. 24, 2015]



Sec. 218.86  Applications for Letters of Authorization.

    To incidentally take marine mammals pursuant to the regulations in 
this subpart, the U.S. citizen (as defined by Sec. 216.106) conducting 
the activity identified in Sec. 218.80(c) (the U.S. Navy) must apply for 
and obtain either

[[Page 200]]

an initial LOA in accordance with Sec. 218.87 or a renewal under 
Sec. 218.88.



Sec. 218.87  Letters of Authorization.

    (a) An LOA, unless suspended or revoked, will be valid for a period 
of time not to exceed the period of validity of this subpart.
    (b) Each LOA will set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact on the 
species (i.e., mitigation), its habitat, and on the availability of the 
species for subsistence uses; and
    (3) Requirements for mitigation, monitoring and reporting.
    (c) Issuance and renewal of the LOA 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. 218.88  Renewals and Modifications of Letters of Authorization.

    (a) An LOA issued under Secs. 216.106 of this chapter and 218.87 for 
the activity identified in Sec. 218.80(c) will be renewed or modified 
upon request of 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 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 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. 216.106 and Sec. 218.87 of this chapter 
for the activity identified in Sec. 218.80(c) 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 Navy 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 Navy'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 in Sec. 218.82(c) 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 J_Taking and Importing Marine Mammals; U.S. Navy's Mariana 
                   Islands Training and Testing (MITT)

    Source: 80 FR 46163, Aug. 3, 2015, unless otherwise noted.

[[Page 201]]


    Effective Date Note: At 80 FR 46163, Aug. 3, 2015, subpart J was 
added, effective from Aug. 3, 2015, through Aug. 3, 2020.



Sec. 218.90  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 MITT Study Area, which includes the Mariana Islands 
Range Complex (MIRC) and areas to the north and west. The Study Area 
includes established ranges, operating areas, warning areas, and special 
use airspace in the region of the Mariana Islands that are part of the 
MIRC, its surrounding seas, and a transit corridor to the Hawaii Range 
Complex. The Study Area also includes Navy pierside locations where 
sonar maintenance and testing may occur.
    (c) The taking of marine mammals by the Navy is only authorized if 
it occurs incidental to the following activities within the designated 
amounts of use:
    (1) Non-impulsive Sources Used During Training and Testing:
    (i) Low-frequency (LF) Source Classes:
    (A) LF4--an average of 123 hours per year.
    (B) LF5--an average of 11 hours per year.
    (C) LF6--an average of 40 hours per year.
    (ii) Mid-frequency (MF) Source Classes:
    (A) MF1--an average of 1,872 hours per year.
    (B) MF2--an average of 625 hours per year.
    (C) MF3--an average of 192 hours per year.
    (D) MF4--an average of 214 hours per year.
    (E) MF5--an average of 2,588 items per year.
    (F) MF6--an average of 33 items per year.
    (G) MF8--an average of 123 hours per year.
    (H) MF9--an average of 47 hours per year.
    (I) MF10--an average of 231 hours per year.
    (J) MF11--an average of 324 hours per year.
    (K) MF12--an average of 656 hours per year.
    (iii) High-frequency (HF) and Very High-frequency (VHF) Source 
Classes:
    (A) HF1--an average of 113 hours per year.
    (B) HF4--an average of 1,060 hours per year.
    (C) HF5--an average of 336 hours per year.
    (D) HF6--an average of 1,173 hours per year.
    (iv) Anti-Submarine Warfare (ASW) Source Classes:
    (A) ASW1--an average of 144 hours per year.
    (B) ASW2--an average of 660 items per year.
    (C) ASW3--an average of 3,935 hours per year.
    (D) ASW4--an average of 32 items per year.
    (v) Torpedoes (TORP) Source Classes:
    (A) TORP1--an average of 115 items per year.
    (B) TORP2--an average of 62 items per year.
    (vi) Acoustic Modems (M):
    (A) M3--an average of 112 hours per year.
    (B) [Reserved]
    (vii) Swimmer Detection Sonar (SD):
    (A) SD1--an average 2,341 hours per year.
    (B) [Reserved]
    (2) Impulsive Source Detonations During Training and Testing:
    (i) Explosive Classes:
    (A) E1 (0.1 to 0.25 lb NEW)--an average of 10,140 detonations per 
year.
    (B) E2 (0.26 to 0.5 lb NEW)--an average of 106 detonations per year.
    (C) E3 (>0.5 to 2.5 lb NEW)--an average of 932 detonations per year.
    (D) E4 (>2.5 to 5 lb NEW)--an average of 420 detonations per year.
    (E) E5 (>5 to 10 lb NEW)--an average of 684 detonations per year.
    (F) E6 (>10 to 20 lb NEW)--an average of 76 detonations per year.
    (G) E8 (>60 to 100 lb NEW)--an average of 16 detonations per year.
    (H) E9 (>100 to 250 lb NEW)--an average of 4 detonations per year.

[[Page 202]]

    (I) E10 (>250 to 500 lb NEW)--an average of 12 detonations per year.
    (J) E11 (>500 to 650 lb NEW)--an average of 6 detonations per year.
    (K) E12 (>650 to 2,000 lb NEW)--an average of 184 detonations per 
year.
    (ii) [Reserved]



Sec. 218.91  Effective dates and definitions.

    (a) Regulations in this subpart are effective August 3, 2015 through 
August 3, 2020.
    (b) The following definitions are utilized in these regulations:
    (1) Uncommon Stranding Event (USE)--A stranding event that takes 
place within an OPAREA where a Major Training Exercise (MTE) occurs 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 paragraph 
(b)(1)(ii) of this section) 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 mammal species of concern: Beaked whale of any species, Kogia 
spp., Risso's dolphin, melon-headed whale, pilot whale, humpback whale, 
sperm whale, blue whale, fin whale, or sei whale.
    (iii) A group of two or more cetaceans of any species exhibiting 
indicators of distress.
    (2) Shutdown--The cessation of active sonar operation or detonation 
of explosives within 14 nautical miles of any live, in the water, animal 
involved in a USE.



Sec. 218.92  Permissible methods of taking.

    (a) Under a Letter of Authorization (LOA) issued pursuant to 
Sec. 218.97, the Holder of the Letter of Authorization may incidentally, 
but not intentionally, take marine mammals within the area described in 
Sec. 218.90, provided the activity is in compliance with all terms, 
conditions, and requirements of these regulations and the appropriate 
LOA.
    (b) The activities identified in Sec. 218.90(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 in Sec. 218.90(c) is limited to the following species, by the 
identified method of take:
    (1) Level B Harassment for all Training and Testing Activities:
    (i) Mysticetes:
    (A) Blue whale (Balaenoptera musculus)--140 (an average of 28 
annually)
    (B) Bryde's whale (Balaenoptera edeni)--1,990 (an average of 398 
annually)
    (C) Fin whale (Balaenoptera physalus)--140 (an average of 28 
annually)
    (D) Humpback whale (Megaptera novaeangliae)--4,300 (an average of 
860 annually)
    (E) Minke whale (Balaenoptera acutorostrata)--505 (an average of 101 
annually)
    (F) Sei whale (Balaenoptera borealis)--1,595 (an average of 319 
annually)
    (G) Omura's whale (Balaenoptera omurai)--515 (an average of 103 
annually)
    (ii) Odontocetes:
    (A) Blainville's beaked whale (Mesoplodon densirostris)--22,130 (an 
average of 4,426 annually)
    (B) Bottlenose dolphin (Tursiops truncatus)--3,705 (an average of 
741 annually)
    (C) Cuvier's beaked whale (Ziphius cavirostris)--112,705 (an average 
of 22,541 annually)
    (D) Dwarf sperm whale (Kogia sima)--71,085 (an average of 14,217 
annually)
    (E) False killer whale (Pseudorca crassidens)--2,775 (an average of 
555 annually)
    (F) Fraser's dolphin (Lagenodelphis hosei)--12,860 (an average of 
2,572 annually)
    (G) Gingko-toothed beaked whale (Mesoplodon ginkgodens)--19,485 (an 
average of 3,897 annually)
    (H) Killer whale (Orcinus orca)--420 (an average of 84 annually)
    (I) Longman's beaked whale (Indopacetus pacificus)--9,620 (an 
average of 1,924 annually)
    (J) Melon-headed whale (Peponocephala electra)--10,425 (an average 
of 2,085 annually)

[[Page 203]]

    (K) Pantropical spotted dolphin (Stenella attenuata)--64,055 (an 
average of 12,811 annually)
    (L) Pygmy killer whale (Feresa attenuata)--525 (an average of 105 
annually)
    (M) Pygmy sperm whale (Kogia breviceps)--27,895 (an average of 5,579 
annually)
    (N) Risso's dolphin (Grampus griseus)--2,525 (an average of 505 
annually)
    (O) Rough-toothed dolphin (Steno bredanensis)--9,095 (an average of 
1,819 annually)
    (P) Short-finned pilot whale (Globicephala macrorhynchus)--9,075 (an 
average of 1,815 annually)
    (Q) Sperm whale (Physeter macrocephalus)--2,530 (an average of 506 
annually)
    (R) Spinner dolphin (Stenella longirostris)--2,945 (an average of 
589 annually)
    (S) Striped dolphin (Stenella coerulealba)--16,490 (an average of 
3,298 annually)
    (2) Level A Harassment for all Training and Testing Activities:
    (i) Odontocetes:
    (A) Dwarf sperm whale (Kogia sima)--205 (an average of 41 annually)
    (B) Pygmy sperm whale (Kogia breviceps)--75 (an average of 15 
annually)
    (ii) [Reserved]



Sec. 218.93  Prohibitions.

    Notwithstanding takings contemplated in Sec. 218.92 and authorized 
by an LOA issued under Secs. 216.106 and 218.97 of this chapter, no 
person in connection with the activities described in Sec. 218.90 may:
    (a) Take any marine mammal not specified in Sec. 218.92(c);
    (b) Take any marine mammal specified in Sec. 218.92(c) other than by 
incidental take as specified in Sec. 218.92(c);
    (c) Take a marine mammal specified in Sec. 218.92(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 an LOA issued under Secs. 216.106 
and 218.97.



Sec. 218.94  Mitigation.

    (a) When conducting training and testing activities, as identified 
in Sec. 218.90, the mitigation measures contained in the LOA issued 
under Secs. 216.106 and 218.97 of this chapter must be implemented. 
These mitigation measures include, but are not limited to:
    (1) Lookouts. The following are protective measures concerning the 
use of lookouts.
    (i) Lookouts positioned on surface ships will be dedicated solely to 
diligent observation of the air and surface of the water. Their 
observation objectives will include, but are not limited to, detecting 
the presence of biological resources and recreational or fishing boats, 
observing mitigation zones, and monitoring for vessel and personnel 
safety concerns.
    (ii) Lookouts positioned in aircraft or on boats will, to the 
maximum extent practicable and consistent with aircraft and boat safety 
and training and testing requirements, comply with the observation 
objectives described in paragraph (a)(1)(i) of this section.
    (iii) Lookout measures for non-impulse sound:
    (A) With the exception of vessels less than 65 ft (20 m) in length 
and ships that are minimally manned, ships using low-frequency or hull-
mounted mid-frequency active sonar sources associated with anti-
submarine warfare and mine warfare activities at sea will have two 
lookouts at the forward position. For the purposes of this rule, low-
frequency active sonar does not include surface towed array surveillance 
system low-frequency active sonar.
    (B) While using low-frequency or hull-mounted mid-frequency active 
sonar sources associated with anti-submarine warfare and mine warfare 
activities at sea, ships less than 65 ft (20 m) in length and ships that 
are minimally manned will have one lookout at the forward position of 
the vessel due to space and manning restrictions.
    (C) Ships conducting active sonar activities while moored or at 
anchor (including pierside testing or maintenance) will maintain one 
lookout.
    (D) Surface ships or aircraft conducting high-frequency or non-hull 
mounted mid-frequency active sonar

[[Page 204]]

activities associated with anti-submarine warfare and mine warfare 
activities at sea will have one lookout.
    (iv) Lookout measures for explosives and impulse sound:
    (A) Aircraft conducting IEER sonobuoy activities and explosive 
sonobuoy exercises will have one lookout.
    (B) Surface vessels conducting anti-swimmer grenade activities will 
have one lookout.
    (C) During general mine countermeasure and neutralization activities 
using up to a 20-lb net explosive weight detonation (bin E6 and below), 
vessels greater than 200 ft (61 m) will have two lookouts, while vessels 
less than 200 ft (61 m) or aircraft will have one lookout.
    (D) Mine neutralization activities involving positive control diver-
placed charges using up to a 20-lb net explosive weight detonation will 
have two lookouts. The divers placing the charges on mines will report 
all marine mammal sightings to their supporting small boat or Range 
Safety Officer.
    (E) When mine neutralization activities using diver-placed charges 
with up to a 20-lb net explosive weight detonation are conducted with a 
time-delay firing device, four lookouts will be used. Two lookouts will 
be positioned in each of two small rigid hull inflatable boats. When 
aircraft are used, the pilot or member of the aircrew will serve as an 
additional lookout. The divers placing the charges on mines will report 
all marine mammal sightings to their supporting small boat or Range 
Safety Officer.
    (F) Surface vessels or aircraft conducting small- or medium-caliber 
gunnery exercises against a surface target will have one lookout.
    (G) Aircraft conducting missile exercises (including rockets) 
against surface targets will have one lookout.
    (H) Aircraft conducting bombing exercises will have one lookout.
    (I) During explosive torpedo testing, one lookout will be used and 
positioned in an aircraft.
    (J) During sinking exercises, two lookouts will be used. One lookout 
will be positioned in an aircraft and one on a surface vessel.
    (K) Surface vessels conducting explosive and non-explosive large-
caliber gunnery exercises will have one lookout.
    (v) Lookout measures for physical strike and disturbance:
    (A) While underway, surface ships will have at least one lookout.
    (B) During activities using towed in-water devices, that are towed 
from a manned platform, one lookout will be used.
    (C) Non-explosive small-, medium-, and large-caliber gunnery 
exercises using a surface target will have one lookout.
    (D) Non-explosive bombing exercises will have one lookout.
    (2) Mitigation zones. The following are protective measures 
concerning the implementation of mitigation zones.
    (i) Mitigation zones will be measured as the radius from a source 
and represent a distance to be monitored.
    (ii) Visual detections of marine mammals within a mitigation zone 
will be communicated immediately to a watch station for information 
dissemination and appropriate action.
    (iii) Mitigation zones for non-impulse sound:
    (A) When marine mammals are visually detected, the Navy shall ensure 
that low-frequency and hull-mounted mid-frequency active sonar 
transmission levels are limited to at least 6 dB below normal operating 
levels (for sources that can be powered down during the activity) if any 
visually detected marine mammals are within 1,000 yd (914 m) of the 
source (i.e., the bow).
    (B) The Navy shall ensure that low-frequency and hull-mounted mid-
frequency active sonar transmissions are limited to at least 10 dB below 
the equipment's normal operating level (for sources that can be powered 
down during the activity) if any detected marine mammals are sighted 
within 500 yd (457 m) of the source.
    (C) The Navy shall ensure that low-frequency and hull-mounted mid-
frequency active sonar transmissions (for sources that can be turned off 
during the activity) are ceased if any visually detected marine mammals 
are within 200 yd (183 m) of the sonar dome. Active transmission will 
recommence if any one of the following conditions is met: The animal is 
observed exiting the

[[Page 205]]

mitigation zone; the animal is thought to have exited the mitigation 
zone based on a determination of its course and speed and the relative 
motion between the animal and the source; the mitigation zone has been 
clear from any additional sightings for a period of 30 minutes; the ship 
has transited more than 2,000 yd. (1.8 kilometers [km]) beyond the 
location of the last sighting; or the ship concludes that dolphins are 
deliberately closing in on the ship to ride the ship's bow wave (and 
there are no other marine mammal sightings within the mitigation zone).
    (D) If the source is not able to be powered down during the activity 
(e.g., low-frequency sources within bins LF4 and LF5), mitigation will 
involve ceasing active transmission if a marine mammal is sighted within 
200 yd. (183 m). Active transmission will recommence if any one of the 
following conditions is met: The animal is observed exiting the 
mitigation zone; the animal is thought to have exited the mitigation 
zone based on a determination of its course and speed and the relative 
motion between the animal and the source; the mitigation zone has been 
clear from any additional sightings for a period of 30 minutes; or the 
ship has transited more than 400 yd. (366 m) beyond the location of the 
last sighting.
    (E) With the exception of activities involving platforms operating 
at high altitudes, when marine mammals are visually detected, the Navy 
shall ensure that high-frequency and non-hull-mounted mid-frequency 
active sonar transmission (for sources that can be turned off during the 
activity) is ceased if any visually detected marine mammals are within 
200 yd (183 m) of the source. Active transmission will recommence if any 
one of the following conditions is met: The animal is observed exiting 
the mitigation zone, the animal is thought to have exited the mitigation 
zone based on a determination of its course and speed and the relative 
motion between the animal and the source, the mitigation zone has been 
clear from any additional sightings for a period of 10 minutes for an 
aircraft-deployed source, the mitigation zone has been clear from any 
additional sightings for a period of 30 minutes for a vessel-deployed 
source, the vessel or aircraft has repositioned itself more than 400 yd. 
(366 m) away from the location of the last sighting, or the vessel 
concludes that dolphins are deliberately closing in to ride the vessel's 
bow wave (and there are no other marine mammal sightings within the 
mitigation zone).
    (F) Prior to start up or restart of active sonar, operators shall 
check that the mitigation zone radius around the sound source is clear 
of marine mammals.
    (G) Generally, the Navy shall operate sonar at the lowest 
practicable level, not to exceed 235 dB, except as required to meet 
tactical training objectives.
    (iv) Mitigation zones for explosive and impulse sound:
    (A)(1) A mitigation zone with a radius of 600 yd (549 m) shall be 
established for IEER sonobuoys (bin E4). Mitigation would include pre-
exercise aerial observation and passive acoustic monitoring, which would 
begin 30 minutes before the first source/receiver pair detonation and 
continue throughout the duration of the exercise. The pre-exercise 
aerial observation would include the time it takes to deploy the 
sonobuoy pattern (deployment is conducted by aircraft dropping sonobuoys 
in the water). Explosive detonations would cease if a marine mammal is 
sighted within the mitigation zone. Detonations would recommence if any 
one of the following conditions is met: The animal is observed exiting 
the mitigation zone, the animal is thought to have exited the mitigation 
zone based on its course and speed and the relative motion between the 
animal and the source, or the mitigation zone has been clear from any 
additional sightings for a period of 30 minutes.
    (2) Passive acoustic monitoring would be conducted with Navy assets, 
such as sonobuoys, already participating in the activity. These assets 
would only detect vocalizing marine mammals within the frequency bands 
monitored by Navy personnel. Passive acoustic detections would not 
provide range or bearing to detected animals, and therefore cannot 
provide locations of these animals. Passive acoustic detections would be 
reported to lookouts posted in aircraft and on vessels in

[[Page 206]]

order to increase vigilance of their visual observation.
    (B)(1) A mitigation zone with a radius of 350 yd (320 m) shall be 
established for explosive sonobuoys using 0.5-2.5 lb net explosive 
weight (bin E3). Mitigation would include pre-exercise aerial monitoring 
during deployment of the field of sonobuoy pairs (typically up to 20 
minutes) and continuing throughout the duration of the exercise within a 
mitigation zone of 350 yd (320 m) around an explosive sonobuoy. 
Explosive detonations would cease if a marine mammal is sighted within 
the mitigation zone. Detonations would recommence if any one of the 
following conditions is met: The animal is observed exiting the 
mitigation zone, the animal is thought to have exited the mitigation 
zone based on its course and speed and the relative motion between the 
animal and the source, or the mitigation zone has been clear from any 
additional sightings for a period of 10 minutes.
    (2) Passive acoustic monitoring would also be conducted with Navy 
assets, such as sonobuoys, already participating in the activity. These 
assets would only detect vocalizing marine mammals within the frequency 
bands monitored by Navy personnel. Passive acoustic detections would not 
provide range or bearing to detected animals, and therefore cannot 
provide locations of these animals. Passive acoustic detections would be 
reported to lookouts posted in aircraft in order to increase vigilance 
of their visual observation.
    (C) A mitigation zone with a radius of 200 yd (183 m) shall be 
established for anti-swimmer grenades (bin E2). Mitigation would include 
visual observation from a small boat immediately before and during the 
exercise within a mitigation zone of 200 yd (183 m) around an anti-
swimmer grenade. Explosive detonations would cease if a marine mammal is 
sighted within the mitigation zone. Detonations would recommence if any 
one of the following conditions is met: The animal is observed exiting 
the mitigation zone, the animal is thought to have exited the mitigation 
zone based on its course and speed and the relative motion between the 
animal and the source, the mitigation zone has been clear from any 
additional sightings for a period of 30 minutes, or the activity has 
been repositioned more than 400 yd (366 m) away from the location of the 
last sighting.
    (D) A mitigation zone ranging from 350 yd (320 m) to 800 yd (732 m), 
dependent on charge size and if the activity involves the use of diver-
placed charges, shall be established for mine countermeasure and 
neutralization activities using positive control firing devices. 
Mitigation zone distances are specified for charge size in the following 
table.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         General mine countermeasure and neutralization       Mine countermeasure and neutralization
                                                            activities using positive control firing       activities using diver placed charges under
                                                                          devices \1\                                  positive control \2\
                                                       -------------------------------------------------------------------------------------------------
        Charge size net explosive weight (bins)          Predicted   Predicted   Predicted                Predicted   Predicted   Predicted
                                                          average     average     maximum   Recommended    average     average     maximum   Recommended
                                                         range to    range to    range to    mitigation   range to    range to    range to    mitigation
                                                            TTS         PTS         PTS         zone         TTS         PTS         PTS         zone
--------------------------------------------------------------------------------------------------------------------------------------------------------
2.5-5 lb. (1.2-2.3 kg) (E4)...........................      434 yd      197 yd      563 yd       600 yd      545 yd      169 yd      301 yd      350 yd.
                                                           (474 m)     (180 m)     (515 m)      (549 m)     (498 m)     (155 m)     (275 m)     (320 m).
5-10 lb. (2.7-4.5 kg) (E5)............................      525 yd      204 yd      649 yd       800 yd      587 yd      203 yd      464 yd      500 yd.
                                                           (480 m)     (187 m)     (593 m)      (732 m)     (537 m)     (185 m)     (424 m)     (457 m).
>10-20 lb. (5-9.1 kg) (E6)............................      766 yd      288 yd      648 yd       800 yd      647 yd      232 yd      469 yd      500 yd.
                                                           (700 m)     (263 m)     (593 m)      (732 m)     (592 m)     (212 m)     (429 m)     (457 m).
--------------------------------------------------------------------------------------------------------------------------------------------------------
PTS: permanent threshold shift; TTS: temporary threshold shift.
\1\ These mitigation zones are applicable to all mine countermeasure and neutralization activities conducted in all locations specified in Chapter 2 of
  the Navy's LOA application.
\2\ These mitigation zones are only applicable to mine countermeasure and neutralization activities involving the use of diver placed charges. These
  activities are conducted in shallow-water and the mitigation zones are based only on the functional hearing groups with species that occur in these
  areas (mid-frequency cetaceans and sea turtles).

    (1) During general mine countermeasure and neutralization 
activities, mitigation would include visual observation from one or more 
small boats or

[[Page 207]]

aircraft beginning 30 minutes before, during, and 30 minutes after (when 
helicopters are not involved in the activity) or 10 minutes before, 
during, and 10 minutes after (when helicopters are involved in the 
activity) the completion of the exercise within the mitigation zones 
around the detonation site.
    (2) For activities involving diver-placed charges, visual 
observation would be conducted by either two small boats, or one small 
boat in combination with one helicopter. Boats would position themselves 
near the mid-point of the mitigation zone radius (but always outside the 
detonation plume radius and human safety zone) and travel in a circular 
pattern around the detonation location. When using two boats, each boat 
would be positioned on opposite sides of the detonation location, 
separated by 180 degrees. If used, helicopters would travel in a 
circular pattern around the detonation location.
    (3) For both general and diver-placed positive control mine 
countermeasure and neutralization activities, explosive detonations will 
cease if a marine mammal is sighted within the mitigation zone. 
Detonations will recommence if any one of the following conditions is 
met: The animal is observed exiting the mitigation zone, the animal is 
thought to have exited the mitigation zone based on a determination of 
its course and speed and the relative motion between the animal and the 
source, the mitigation zone has been clear from any additional sightings 
for a period of 30 minutes, when helicopters are not involved in the 
activity or the mitigation zone has been clear from any additional 
sightings for a period of 10 minutes when helicopters are involved in 
the activity.
    (E) A mitigation zone with a radius of 1,000 yd (914 m) shall be 
established for mine countermeasure and neutralization activities using 
diver-placed time-delay firing devices (bin E6). Mine neutralization 
activities involving diver-placed charges would not include time-delay 
longer than 10 minutes. Mitigation would include visual observation from 
small boats or aircraft commencing 30 minutes before, during, and until 
30 minutes after the completion of the exercise within a mitigation zone 
of 1,000 yd (914 m) around the detonation site. During activities using 
time-delay firing devices involving up to a 20 lb net explosive weight 
charge, visual observation will take place using two small boats. Fuse 
initiation would recommence if any one of the following conditions is 
met: The animal is observed exiting the mitigation zone, the animal is 
thought to have exited the mitigation zone based on its course and speed 
and the relative motion between the animal and the source, or the 
mitigation zone has been clear from any additional sightings for a 
period of 30 minutes.
    (1) Survey boats would position themselves near the mid-point of the 
mitigation zone radius (but always outside the detonation plume radius/
human safety zone) and travel in a circular pattern around the 
detonation location. One lookout from each boat would look inward toward 
the detonation site and the other lookout would look outward away from 
the detonation site. When using two small boats, each boat would be 
positioned on opposite sides of the detonation location, separated by 
180 degrees. If available for use, helicopters would travel in a 
circular pattern around the detonation location.
    (2) [Reserved]
    (F) A mitigation zone with a radius of 200 yd (183 m) shall be 
established for small- and medium-caliber gunnery exercises with a 
surface target (bin E2). Mitigation would include visual observation 
from a vessel or aircraft immediately before and during the exercise 
within a mitigation zone of 200 yd (183 m) around the intended impact 
location. Vessels would observe the mitigation zone from the firing 
position. When aircraft are firing, the aircrew would maintain visual 
watch of the mitigation zone during the activity. Firing would cease if 
a marine mammal is sighted within the mitigation zone. Firing would 
recommence if any one of the following conditions is met: The animal is 
observed exiting the mitigation zone, the animal is thought to have 
exited the mitigation zone based on its course and speed and the 
relative motion between the animal and the source, the mitigation zone 
has been clear from any additional sightings for a period of 10 minutes 
for

[[Page 208]]

a firing aircraft, the mitigation zone has been clear from any 
additional sightings for a period of 30 minutes for a firing vessel, or 
the intended target location has been repositioned more than 400 yd (366 
m) away from the location of the last sighting.
    (G) A mitigation zone with a radius of 600 yd (549 m) shall be 
established for large-caliber gunnery exercises with a surface target 
(bin E5). Mitigation would include visual observation from a ship 
immediately before and during the exercise within a mitigation zone of 
600 yd (549 m) around the intended impact location. Ships would observe 
the mitigation zone from the firing position. Firing would cease if a 
marine mammal is sighted within the mitigation zone. Firing would 
recommence if any one of the following conditions is met: The animal is 
observed exiting the mitigation zone, the animal is thought to have 
exited the mitigation zone based on its course and speed and the 
relative motion between the animal and the source, or the mitigation 
zone has been clear from any additional sightings for a period of 30 
minutes.
    (H) A mitigation zone with a radius of 900 yd (823 m) around the 
deployed target shall be established for missile exercises involving 
aircraft firing up to 250 lb net explosive weight using and a surface 
target (bin E9). When aircraft are firing, mitigation would include 
visual observation by the aircrew or supporting aircraft prior to 
commencement of the activity within a mitigation zone of 900 yd (823 m) 
around the deployed target. Firing would recommence if any one of the 
following conditions is met: The animal is observed exiting the 
mitigation zone, the animal is thought to have exited the mitigation 
zone based on its course and speed and the relative motion between the 
animal and the source, or the mitigation zone has been clear from any 
additional sightings for a period of 10 minutes or 30 minutes (depending 
on aircraft type).
    (I) A mitigation zone with a radius of 2,000 yd (1.8 km) shall be 
established for missile exercises involving aircraft firing >250 to 500 
lb net explosive weight using and a surface target (bin E10). When 
aircraft are firing, mitigation would include visual observation by the 
aircrew prior to commencement of the activity within a mitigation zone 
of 2,000 yd (1.8 km) around the intended impact location. Firing would 
cease if a marine mammal is sighted within the mitigation zone. Firing 
would recommence if any one of the following conditions is met: The 
animal is observed exiting the mitigation zone, the animal is thought to 
have exited the mitigation zone based on its course and speed and the 
relative motion between the animal and the source, or the mitigation 
zone has been clear from any additional sightings for a period of 10 
minutes or 30 minutes (depending on aircraft type).
    (J) A mitigation zone with a radius of 2,500 yd (2.3 km) shall be 
established for bombing exercises (bin E12). Mitigation would include 
visual observation from the aircraft immediately before the exercise and 
during target approach within a mitigation zone of 2,500 yd (2.3 km) 
around the intended impact location. Bombing would cease if a marine 
mammal is sighted within the mitigation zone. Bombing would recommence 
if any one of the following conditions is met: The animal is observed 
exiting the mitigation zone, the animal is thought to have exited the 
mitigation zone based on its course and speed and the relative motion 
between the animal and the source, or the mitigation zone has been clear 
from any additional sightings for a period of 10 minutes.
    (K)(1) A mitigation zone with a radius of 2,100 yd (1.9 km) shall be 
established for torpedo (explosive) testing (except for aircraft 
operating at high altitudes) (bin E11). Mitigation would include visual 
observation by aircraft immediately before, during, and after the 
exercise within a mitigation zone of 2,100 yd (1.9 km) around the 
intended impact location. Firing would cease if a marine mammal is 
sighted within the mitigation zone. Firing would recommence if any one 
of the following conditions is met: The animal is observed exiting the 
mitigation zone, the animal is thought to have exited the mitigation 
zone based on its course and speed and the relative motion between the

[[Page 209]]

animal and the source, or the mitigation zone has been clear from any 
additional sightings for a period of 10 minutes or 30 minutes (depending 
on aircraft type).
    (2) In addition to visual observation, passive acoustic monitoring 
would be conducted with Navy assets, such as passive ships sonar systems 
or sonobuoys, already participating in the activity. Passive acoustic 
observation would be accomplished through the use of remote acoustic 
sensors or expendable sonobuoys, or via passive acoustic sensors on 
submarines when they participate in the proposed action. These assets 
would only detect vocalizing marine mammals within the frequency bands 
monitored by Navy personnel. Passive acoustic detections would not 
provide range or bearing to detected animals, and therefore cannot 
provide locations of these animals. Passive acoustic detections would be 
reported to the lookout posted in the aircraft in order to increase 
vigilance of the visual observation and to the person in control of the 
activity for their consideration in determining when the mitigation zone 
is free of visible marine mammals.
    (L) A mitigation zone with a radius of 2.5 nautical miles around the 
target ship hulk shall be established for sinking exercises (bin E12). 
Mitigation would include aerial observation beginning 90 minutes before 
the first firing, visual observations from vessels throughout the 
duration of the exercise, and both aerial and vessel observation 
immediately after any planned or unplanned breaks in weapons firing of 
longer than 2 hours. Prior to conducting the exercise, the Navy would 
review remotely sensed sea surface temperature and sea surface height 
maps to aid in deciding where to release the target ship hulk.
    (1) The Navy would also monitor using passive acoustics during the 
exercise. Passive acoustic monitoring would be conducted with Navy 
assets, such as passive ships sonar systems or sonobuoys, already 
participating in the activity. These assets would only detect vocalizing 
marine mammals within the frequency bands monitored by Navy personnel. 
Passive acoustic detections would not provide range or bearing to 
detected animals, and therefore cannot provide locations of these 
animals. Passive acoustic detections would be reported to lookouts 
posted in aircraft and on vessels in order to increase vigilance of 
their visual observation. Lookouts will also increase observation 
vigilance before the use of torpedoes or unguided ordnance with a net 
explosive weight of 500 lb or greater, or if the Beaufort sea state is a 
4 or above.
    (2) The exercise would cease if a marine mammal is sighted within 
the mitigation zone. The exercise would recommence if any one of the 
following conditions is met: The animal is observed exiting the 
mitigation zone, the animal is thought to have exited the mitigation 
zone based on its course and speed and the relative motion between the 
animal and the source, or the mitigation zone has been clear from any 
additional sightings for a period of 30 minutes. Upon sinking the 
vessel, the Navy would conduct post-exercise visual observation of the 
mitigation zone for 2 hours (or until sunset, whichever comes first).
    (M) A mitigation zone with a radius of 70 yd (64 m) within 30 
degrees on either side of the gun target line on the firing side of the 
vessel for explosive and non-explosive large-caliber gunnery exercises 
conducted from a ship. Firing would cease if a marine mammal is sighted 
within the mitigation zone. Firing would recommence if any one of the 
following conditions is met: The animal is observed exiting the 
mitigation zone, the animal is thought to have exited the mitigation 
zone based on its course and speed and the relative motion between the 
animal and the source, the mitigation zone has been clear from any 
additional sightings for a period of 30 minutes, or the vessel has 
repositioned itself more than 140 yd (128 m) away from the location of 
the last sighting.
    (v) Mitigation zones for vessels and in-water devices:
    (A) A mitigation zone of 500 yd (457 m) for observed whales and 200 
yd (183 m) for all other marine mammals (except bow riding dolphins) 
shall be established for all vessel movement, providing it is safe to do 
so.

[[Page 210]]

    (B) A mitigation zone of 250 yd (229 m) shall be established for all 
towed in-water devices that are towed from a manned platform, providing 
it is safe to do so.
    (vi) Mitigation zones for non-explosive practice munitions:
    (A) A mitigation zone of 200 yd (183 m) shall be established for 
non-explosive small-, medium-, and large-caliber gunnery exercises using 
a surface target. Mitigation would include visual observation 
immediately before and during the exercise within a mitigation zone of 
200 m around the intended impact location. Firing would cease if a 
marine mammal is visually detected within the mitigation zone. Firing 
would recommence if any one of the following conditions are met: The 
animal is observed exiting the mitigation zone, the animal is thought to 
have exited the mitigation zone based on its course and speed and the 
relative motion between the animal and the source, the mitigation zone 
has been clear from any additional sightings for a period of 10 minutes 
for a firing aircraft, the mitigation zone has been clear from any 
additional sightings for a period of 30 minutes for a firing vessel, or 
the intended target location has been repositioned more than 400 yd (366 
m) away from the location of the last sighting and the animal's 
estimated course direction.
    (B) A mitigation zone of 1,000 yd (914 m) shall be established for 
non-explosive bombing exercises. Mitigation would include visual 
observation from the aircraft immediately before the exercise and during 
target approach within a mitigation zone of 1000 yd (914 m) around the 
intended impact location. Bombing would cease if a marine mammal is 
visually detected within the mitigation zone. Bombing would recommence 
if any one of the following conditions are met: The animal is observed 
exiting the mitigation zone, the animal is thought to have exited the 
mitigation zone based on its course and speed and the relative motion 
between the animal and the source, or the mitigation zone has been clear 
from any additional sightings for a period of 10 minutes.
    (3) Stranding Response Plan:
    (i) The Navy shall abide by the letter of the ``Stranding Response 
Plan for Major Navy Training Exercises in the MITT Study Area,'' to 
include the following measures:
    (A) Shutdown Procedures--When an Uncommon Stranding Event (USE--
defined in Sec. 218.91) occurs during a Major Training Exercise (MTE) in 
the MITT Study Area, the Navy shall implement the procedures described 
below.
    (1) The Navy shall implement a shutdown (as defined Sec. 218.91) 
when advised by a NMFS Office of Protected Resources Headquarters Senior 
Official designated in the MITT Study Area 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 the 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, NFMS 
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

[[Page 211]]

Navy shall coordinate (including an investigation of other potential 
anthropogenic stressors in the area) to determine if the proximity of 
mid-frequency active sonar training activities or explosive detonations, 
though farther than 14 nautical miles 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.
    (5) Within 72 hours of NMFS notifying the Navy of the presence of a 
USE, the Navy shall provide available information to NMFS (per the MITT 
Study Area Communication Protocol) regarding the location, number and 
types of acoustic/explosive sources, direction and speed of units using 
mid-frequency active sonar, and marine mammal sightings information 
associated with training activities occurring within 80 nautical miles 
(148 km) and 72 hours prior to the USE event. Information not initially 
available regarding the 80-nautical miles (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.
    (b) [Reserved]



Sec. 218.95  Requirements for monitoring and reporting.

    (a) As outlined in the MITT Study Area Stranding Communication Plan, 
the Holder of the Authorization must notify NMFS immediately (or as soon 
as operational security considerations allow) if the specified activity 
identified in Sec. 218.90 is thought to have resulted in the mortality 
or injury of any marine mammals, or in any take of marine mammals not 
identified in Sec. 218.91.
    (b) The Holder of the LOA must conduct all monitoring and required 
reporting under the LOA, including abiding by the MITT Monitoring 
Project Description.
    (c) General notification of injured or dead marine mammals. Navy 
personnel shall ensure that NMFS (regional stranding coordinator) is 
notified immediately (or as soon as operational security considerations 
allow) if an injured or dead marine mammal is found during or shortly 
after, and in the vicinity of, an Navy training or testing activity 
utilizing mid- or high-frequency active sonar, 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.
    (d) Vessel strike. In the event that a Navy vessel strikes a whale, 
the Navy shall do the following:
    (1) Immediately report to NMFS (pursuant to the established 
Communication Protocol) the:
    (i) Species identification if known;
    (ii) Location (latitude/longitude) of the animal (or location of the 
strike if the animal has disappeared);
    (iii) Whether the animal is alive or dead (or unknown); and
    (iv) The time of the strike.
    (2) As soon as feasible, the Navy shall report to or provide to 
NMFS, the:
    (i) Size, length, and description (critical if species is not known) 
of animal;
    (ii) An estimate of the injury status (e.g., dead, injured but 
alive, injured and moving, blood or tissue observed in the water, status 
unknown, disappeared, etc.);
    (iii) Description of the behavior of the whale during event, 
immediately after the strike, and following the strike (until the report 
is made or the animal is no long sighted);
    (iv) Vessel class/type and operation status;
    (v) Vessel length
    (vi) Vessel speed and heading; and
    (vii) To the best extent possible, obtain
    (3) Within 2 weeks of the strike, provide NMFS:
    (i) A detailed description of the specific actions of the vessel in 
the 30-minute timeframe immediately preceding the strike, during the 
event, and immediately after the strike (e.g., the

[[Page 212]]

speed and changes in speed, the direction and changes in the direction, 
other maneuvers, sonar use, etc., if not classified); and
    (ii) A narrative description of marine mammal sightings during the 
event and immediately after, and any information as to sightings prior 
to the strike, if available; and
    (iii) Use established Navy shipboard procedures to make a camera 
available to attempt to capture photographs following a ship strike.
    (e) Annual MITT monitoring program report. (1) The Navy shall submit 
an annual report describing the implementation and results of the MITT 
Monitoring Program, described in Sec. 218.95. Data standards will be 
consistent to the extent appropriate across range complexes and study 
areas to allow for comparison in different geographic locations. 
Although additional information will be gathered, the protected species 
observers collecting marine mammal data pursuant to the MITT Monitoring 
Program shall, at a minimum, provide the same marine mammal observation 
data required in this section.
    (2) As an alternative, the Navy may submit a multi-range complex 
annual monitoring plan report to fulfill this requirement. Such a report 
would describe progress of knowledge made with respect to monitoring 
plan study questions across multiple Navy ranges associated with the 
ICMP. Similar study questions shall be treated together so that progress 
on each topic shall be summarized across all Navy ranges. The report 
need not include analyses and content that does not provide direct 
assessment of cumulative progress on the monitoring plan study 
questions. The report shall be submitted either 90 days after the 
calendar year, or 90 days after the conclusion of the monitoring year 
date to be determined by the Adaptive Management process.
    (f) Sonar exercise notification. The Navy shall submit to NMFS 
(specific contact information to be provided in the LOA) either an 
electronic (preferably) or verbal report within 15 calendar days after 
the completion of any major exercise indicating:
    (1) Location of the exercise.
    (2) Beginning and end dates of the exercise.
    (3) Type of exercise.
    (g) Annual MITT exercise and testing report. The Navy shall submit 
preliminary reports detailing the status of authorized sound sources 
within 21 days after the anniversary of the date of issuance of the LOA. 
The Navy shall submit a detailed report 3 months after the anniversary 
of the date of issuance of the LOA. The detailed annual report shall 
contain information on Major Training Exercises (MTE), Sinking Exercise 
(SINKEX) events, and a summary of sound sources used, as described 
below. The analysis in the detailed report will be based on the 
accumulation of data from the current year's report and data collected 
from previous reports. The detailed report shall contain information 
identified in Sec. 218.95(e)(1) and (2).
    (1) Major Training Exercises/SINKEX:
    (i) This section shall contain the reporting requirements for 
Coordinated and Strike Group exercises and SINKEX. Coordinated and 
Strike Group Major Training Exercises include:
    (A) Joint Multi-Strike Group Exercise (Valiant Shield).
    (B) Joint Expeditionary Exercise
    (ii) Exercise information for each MTE:
    (A) Exercise designator.
    (B) Date that exercise began and ended.
    (C) Location (operating area).
    (D) Number of items or hours (per the LOA) of each sound source bin 
(impulsive and non-impulsive) used in the exercise.
    (E) Number and types of vessels, aircraft, etc., participating in 
exercise.
    (F) Individual marine mammal sighting information for each sighting 
when mitigation occurred during each MTE:
    (1) Date/time/location of sighting.
    (2) Species (if not possible, indication of whale/dolphin).
    (3) Number of individuals.
    (4) Initial detection sensor.
    (5) Indication of specific type of platform the observation was made 
from (including, for example, what type of surface vessel or testing 
platform).

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    (6) Length of time observers maintained visual contact with marine 
mammal(s).
    (7) Sea state.
    (8) Visibility.
    (9) Sound source in use at the time of sighting.
    (10) Indication of whether animal is <200 yd, 200 to 500 yd, 500 to 
1,000 yd, 1,000 to 2,000 yd, or >2,000 yd from sound source.
    (11) Mitigation Implementation--Whether operation of sonar sensor 
was delayed, or sonar was powered or shut down, and how long the delay 
was; or whether navigation was changed or delayed.
    (12) If source in use is a hull-mounted sonar, relative bearing of 
animal from ship, and estimation of animal's motion relative to ship 
(opening, closing, parallel).
    (13) 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.) 
and if any calves present.
    (iii) An evaluation (based on data gathered during all of the MTEs) 
of the effectiveness of mitigation measures designed to minimize the 
received level to which marine mammals may be exposed. This evaluation 
shall identify the specific observations that support any conclusions 
the Navy reaches about the effectiveness of the mitigation.
    (iv) Exercise information for each SINKEX:
    (A) List of the vessels and aircraft involved in the SINKEX.
    (B) Location (operating area).
    (C) Chronological list of events with times, including time of 
sunrise and sunset, start and stop time of all marine species surveys 
that occur before, during, and after the SINKEX, and ordnance used.
    (D) Visibility and/or weather conditions, wind speed, cloud cover, 
etc. throughout exercise if it changes.
    (E) Aircraft used in the surveys, flight altitude, and flight speed 
and the area covered by each of the surveys, given in coordinates, map, 
or square miles.
    (F) Passive acoustic monitoring details (number of sonobuoys, area, 
detections of biologic activity, etc.).
    (G) Individual marine mammal sighting info for each sighting that 
required mitigation to be implemented:
    (1) Date/time/location of sighting.
    (2) Species (if not possible, indication of whale/dolphin).
    (3) Number of individuals.
    (4) Initial detection sensor.
    (5) Indication of specific type of platform the observation was made 
from (including, for example, what type of surface vessel or platform).
    (6) Length of time observers maintained visual contact with marine 
mammal(s).
    (7) Sea state.
    (8) Visibility.
    (9) Indication of whether animal is <200 yd, 200-500 yd, 500-1,000 
yd, 1,000-2,000 yd, or >2,000 yd from the target.
    (10) Mitigation implementation--Whether the SINKEX was stopped or 
delayed and length of delay.
    (11) 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.), and if any 
calves present.
    (H) List of the ordnance used throughout the SINKEX and net 
explosive weight (NEW) of each weapon and the combined NEW.
    (2) Summary of sources used. (i) This section shall include the 
following information summarized from the authorized sound sources used 
in all training and testing events:
    (A) Total annual or quantity (per the LOA) of each bin of sonar or 
other non-impulsive source;
    (B) Total annual expended/detonated rounds (missiles, bombs, etc.) 
for each explosive bin; and
    (C) Improved Extended Echo-Ranging System (IEER)/sonobuoy summary, 
including:
    (1) Total expended/detonated rounds (buoys).
    (2) Total number of self-scuttled IEER rounds.

[[Page 214]]

    (3) Geographic information presentation. The reports shall present 
an annual (and seasonal, where practical) depiction of training 
exercises and testing bin usage geographically across the Study Area.
    (h) Five-year close-out exercise and testing report.--This report 
will be included as part of the 2020 annual exercise or testing report. 
This report will provide the annual totals for each sound source bin 
with a comparison to the annual allowance and the 5-year total for each 
sound source bin with a comparison to the 5-year allowance. 
Additionally, if there were any changes to the sound source allowance, 
this report will include a discussion of why the change was made and 
include the analysis to support how the change did or did not result in 
a change in the FEIS and final rule determinations. The report will be 
submitted 3 months after the expiration of the rule. NMFS will submit 
comments on the draft close-out report, if any, within 3 months of 
receipt. The report will be considered final after the Navy has 
addressed NMFS' comments, or 3 months after the submittal of the draft 
if NMFS does not provide comments.

[80 FR 46163, Aug. 3, 2015, as amended at 80 FR 73622, Nov. 24, 2015]



Sec. 218.96  Applications for Letters of Authorization.

    To incidentally take marine mammals pursuant to the regulations in 
this subpart, the U.S. citizen (as defined by Sec. 216.106 of this 
chapter) conducting the activity identified in Sec. 218.90(c) (the U.S. 
Navy) must apply for and obtain either an initial LOA in accordance with 
Sec. 218.97 or a renewal under Sec. 218.98.



Sec. 218.97  Letters of Authorization.

    (a) An LOA, unless suspended or revoked, will be valid for a period 
of time not to exceed the period of validity of this subpart.
    (b) The LOA will set forth:
    (1) Permissible methods and extent 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 of the LOA 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. 218.98  Renewals and modifications of Letters of Authorization.

    (a) A Letter of Authorization issued under Secs. 216.106 and 218.97 
of this chapter for the activity identified in Sec. 218.90(c) will be 
renewed or modified upon request of the applicant, provided that:
    (1) The proposed specified activity and mitigation, monitoring, and 
reporting measures, as well as the anticipated impacts, are within the 
scope of those described and analyzed for these regulations (excluding 
changes made pursuant to the adaptive management provision 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 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) An LOA issued under Secs. 216.106 and 218.97 of this chapter for 
the activity identified in Sec. 218.94 of this chapter may be modified 
by NMFS under the following circumstances:
    (1) Adaptive management. NMFS may modify (including augmenting, 
changing, or reducing) the existing mitigation, monitoring, or reporting 
measures (after consulting with the Navy regarding the practicability of 
the

[[Page 215]]

modifications) if doing so creates a reasonable likelihood of more 
effectively accomplishing the goals of the mitigation and monitoring.
    (i) Possible sources of data that could contribute to the decision 
to modify the mitigation, monitoring, and reporting measures in an LOA:
    (A) Results from Navy's monitoring from the previous year(s);
    (B) Results from other marine mammal and/or sound research or 
studies; or
    (C) Any information that reveals marine mammals may have been taken 
in a manner, extent, or number not authorized by these regulations or 
subsequent LOA.
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, NMFS 
would 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 in Sec. 218.92(c), an LOA may be modified 
without prior notification and an opportunity for public comment. 
Notification would be published in the Federal Register within 30 days 
of the action.

Subparts K-N [Reserved]



  Subpart O_Taking and Importing Marine Mammals; U.S. Navy's Northwest 
                 Training and Testing (NWTT) Study Area

    Source: 80 FR 73622, Nov. 24, 2015, unless otherwise noted.



Sec. 218.140  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 NWTT Study Area, which is composed of established 
maritime operating and warning areas in the eastern North Pacific Ocean 
region, including areas of the Strait of Juan de Fuca, Puget Sound, and 
Western Behm Canal in southeastern Alaska. The Study Area includes air 
and water space within and outside Washington state waters, and outside 
state waters of Oregon and Northern California. The Study Area includes 
four existing range complexes and facilities: The Northwest Training 
Range Complex (NWTRC), the Keyport Range Complex, Carr Inlet Operations 
Area, and SEAFAC. In addition to these range complexes, the Study Area 
also includes Navy pierside locations where sonar maintenance and 
testing occurs as part of overhaul, modernization, maintenance and 
repair activities at NAVBASE Kitsap, Bremerton; NAVBASE Kitsap, Bangor; 
and Naval Station Everett.
    (c) The taking of marine mammals by the Navy is only authorized if 
it occurs incidental to the following activities within the designated 
amounts of use:
    (1) Sonar and other Active Sources Used During Training:
    (i) Mid-frequency (MF) Source Classes:
    (A) MF1--an average of 166 hours per year.
    (B) MF3--an average of 70 hours per year.
    (C) MF4--an average of 4 hours per year.
    (D) MF5--an average of 896 items per year.
    (E) MF11--an average of 16 hours per year.
    (ii) High-frequency (HF) Source Classes:
    (A) HF1--an average of 48 hours per year.
    (B) HF4--an average of 384 hours per year.
    (C) HF6--an average of 192 hours per year
    (iii) Anti-Submarine Warfare (ASW) Source Classes:
    (A) ASW2--an average of 720 items per year per year.
    (B) ASW3--an average of 78 hours per year.
    (2) Sonar and other Active Sources Used During Testing:

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    (i) Low-frequency (LF) Source Classes:
    (A) LF4--an average of 110 hours per year.
    (B) LF5--an average of 71 hours per year.
    (ii) Mid-frequency (MF):
    (A) MF1--an average of 32 hours per year
    (B) MF3--an average of 145 hours per year.
    (C) MF4--an average of 10 hours per year.
    (D) MF5--an average of 273 items per year.
    (E) MF6--an average of 12 items per year.
    (F) MF8--an average of 40 hours per year.
    (G) MF9--an average of 1,183 hours per year.
    (H) MF10--an average of 1,156 hours per year.
    (I) MF11--an average of 34 hours per year.
    (J) MF12--an average of 24 hours per year.
    (iii) High-frequency (HF) and Very High-frequency (VHF):
    (A) HF1--an average of 161 hours per year.
    (B) HF3--an average of 145 hours per year.
    (C) HF5--an average of 360 hours per year.
    (D) HF6--an average of 2,099 hours per year.
    (iv) VHF:
    (A) VHF2--an average of 35 hours per year.
    (B) [Reserved]
    (v) ASW:
    (A) ASW1--an average of 16 hours per year.
    (B) ASW2--an average of 64 hours per year.
    (C) ASW2--an average of 170 items per year.
    (D) ASW3--an average of 444 hours per year.
    (E) ASW4--an average of 1,182 items per year.
    (vi) Acoustic Modems (M):
    (A) M3--an average of 1,519 hours per year.
    (B) [Reserved]
    (vii) Torpedoes (TORP):
    (A) TORP1--an average of 315 items per year.
    (B) TORP2--an average of 299 items per year.
    (viii) Swimmer Detection Sonar (SD):
    (A) SD1--an average of 757 hours per year.
    (B) [Reserved]
    (ix) Synthetic Aperture Sonar (SAS):
    (A) SAS2--an average of 798 hours per year.
    (B) [Reserved]
    (3) Impulsive Source Detonations During Training:
    (i) Explosive Classes:
    (A) E1 (0.1 to 0.25 pound [lb] NEW)--an average of 48 detonations 
per year.
    (B) E3 (>0.5 to 2.5 lb NEW)--an average of 6 detonations per year.
    (C) E5 (>5 to 10 lb NEW)--an average of 80 detonations per year.
    (D) E10 (>250 to 500 lb NEW)--an average of 4 detonations per year.
    (E) E12 (>650 to 1,000 lb NEW)--an average of 10 detonations per 
year.
    (ii) [Reserved]
    (4) Impulsive Source Detonations During Testing:
    (i) Explosive Classes:
    (A) E3 (>0.5 to 2.5 lb NEW)--an average of 72 detonations per year.
    (B) E4 (>2.5 to 5 lb NEW)--an average of 140 detonations (70 
sonobuoys) per year.
    (C) E8 (>60 to 100 lb NEW)--an average of 3 detonations per year.
    (D) E11 (>500 to 650 lb NEW)--an average of 3 detonations per year.
    (ii) [Reserved]



Sec. 218.141  Applicability dates.

    Regulations in this subpart are applicable November 9, 2015, through 
November 8, 2020.



Sec. 218.142  Permissible methods of taking.

    (a) Under Letters of Authorization (LOAs) issued pursuant to 
Sec. 218.147, the Holder of, and those operating under, the LOA may 
incidentally, but not intentionally, take marine mammals within the area 
described in Sec. 218.140, provided the activity is in compliance with 
all terms, conditions, and requirements of these regulations and the 
appropriate LOA.

[[Page 217]]

    (b) The activities identified in Sec. 218.140(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 in Sec. 218.140(c) is limited to the following species, by 
the identified method of take and the indicated number of times:
    (1) Level B Harassment for all Training Activities:
    (i) Mysticetes:
    (A) Blue whale (Balaenoptera musculus), Eastern North Pacific--25 
(an average of 5 per year).
    (B) Fin whale (Balaenoptera physalus), California, Oregon, and 
Washington (CA/OR/WA)--125 (an average of 25 per year).
    (C) Gray whale (Eschrichtius robustus), Eastern North Pacific--30 
(an average of 6 per year).
    (D) Humpback whale (Megaptera novaeangliae), CA/OR/WA--60 (an 
average of 12 per year).
    (E) Minke whale (Balaenoptera acutorostrata), CA/OR/WA--90 (an 
average of 18 per year).
    (ii) Odontocetes:
    (A) Baird's beaked whale (Berardius bairdii), CA/OR/WA--2,955 (an 
average of 591 per year).
    (B) Mesoplodont beaked whale (Mesoplodon spp.), CA/OR/WA--7,085 (an 
average of 1,417 per year).
    (C) Cuvier's beaked whale (Ziphius cavirostris), CA/OR/WA--1,765 (an 
average of 353 per year).
    (D) Dall's porpoise (Phocoenoidea dalli), CA/OR/WA--18,178 (an 
average of 3,730 per year).
    (E) Harbor porpoise (Phocoena phocoena), Northern OR/WA Coast--
175,030 (an average of 35,006 per year).
    (F) Harbor porpoise (Phocoena phocoena), Northern CA/Southern OR--
262,545 (an average of 52,509 per year).
    (G) Harbor porpoise (Phocoena phocoena), WA Inland Waters--4,409 (an 
average of 1,417 per year).
    (H) Killer whale (Orcinus orca), West Coast Transient--39 (an 
average of 9 per year).
    (I) Killer whale (Orcinus orca), Eastern North Pacific Offshore--65 
(an average of 13 per year).
    (J) Killer whale (Orcinus orca), Eastern North Pacific Southern 
Resident--6 (an average of 2 per year).
    (K) Kogia spp., CA/OR/WA--365 (an average of 73 per year).
    (L) Northern right whale dolphin (Lissodelphis borealis), CA/OR/WA--
6,660 (an average of 1,332 per year).
    (M) Pacific white-sided dolphin (Lagenorhynchus obliquidens), CA/OR/
WA--17,408 (an average of 3,482 per year).
    (N) Risso's dolphin (Grampus griseus), CA/OR/WA--3,285 (an average 
of 657 per year).
    (O) Short-beaked common dolphin (Delphinus delphis), CA/OR/WA--3,670 
(an average of 734 per year).
    (P) Sperm whale (Physeter macrocephalus), CA/OR/WA--405 (an average 
of 81 per year).
    (Q) Striped dolphin (Stenella coerulealba), CA/OR/WA--110 (an 
average of 22 per year).
    (iii) Pinnipeds:
    (A) California sea lion (Zalophus californianus), U.S.--4,038 (an 
average of 814 per year).
    (B) Steller sea lion (Eumetopias jubatus), Eastern U.S.--1,986 (an 
average of 404 per year).
    (C) Guadalupe fur seal (Arctocephalus townsendi), Mexico--35 (an 
average of 7 per year).
    (D) Harbor seal (Phoca vitulina), WA Northern Inland Waters--1,855 
(an average of 427 per year).
    (E) Harbor seal (Phoca vitulina), Southern Puget Sound--252 (an 
average of 58 per year).
    (F) Harbor seal (Phoca vitulina), Hood Canal--2,054 (an average of 
452 per year).
    (G) Northern elephant seal (Mirounga angustirostris), CA Breeding--
6,353 (an average of 1,271 per year).
    (H) Northern fur seal (Callorhinus ursinus), Eastern Pacific--12,475 
(an average of 2,495 per year).
    (I) Northern fur seal (Callorhinus ursinus), California--185 (an 
average of 37 per year).
    (2) Level A Harassment for all Training Activities:
    (i) Mysticetes:
    (A)-(B) [Reserved]
    (ii) Odontocetes:

[[Page 218]]

    (A) Dall's porpoise (Phocoenoidea dalli), CA/OR/WA--20 (an average 
of 4 per year).
    (B) Harbor porpoise (Phocoena phocoena), WA Inland Waters--5 (an 
average of 1 per year).
    (iii) Pinnipeds:
    (A) Harbor seal (Phoca vitulina), WA Northern Inland Waters--20 (an 
average of 4 per year).
    (B) Harbor seal (Phoca vitulina), Hood Canal--10 (an average of 2 
per year).
    (C) [Reserved]
    (3) Level B Harassment for all Testing Activities:
    (i) Mysticetes:
    (A) Blue whale (Balaenoptera musculus), Eastern North Pacific--30 
(an average of 6 per year).
    (B) Fin whale (Balaenoptera physalus), CA/OR/WA--170 (an average of 
34 per year).
    (C) Fin whale (Balaenoptera physalus), Northeast Pacific--10 (an 
average of 2 per year).
    (D) Gray whale (Eschrichtius robustus), Eastern North Pacific--60 
(an average of 12 per year).
    (E) Humpback whale (Megaptera novaeangliae), Central North Pacific--
5 (an average of 1 per year).
    (F) Humpback whale (Megaptera novaeangliae), CA/OR/WA--220 (an 
average of 44 per year).
    (G) Minke whale (Balaenoptera acutorostrata), CA/OR/WA--90 (an 
average of 18 per year).
    (H) Sei whale (Balaenoptera borealis), Eastern North Pacific--10 (an 
average of 2 per year).
    (ii) Odontocetes:
    (A) Baird's beaked whale (Berardius bairdii), Alaska--125 (an 
average of 25 per year).
    (B) Baird's beaked whale (Berardius bairdii), CA/OR/WA--745 (an 
average of 149 per year).
    (C) Mesoplodont beaked whale (Mesoplodon spp.), CA/OR/WA--1,845 (an 
average of 369 per year).
    (D) Cuvier's beaked whale (Ziphius cavirostris), Alaska--75 (an 
average of 15 per year).
    (E) Cuvier's beaked whale (Ziphius cavirostris), CA/OR/WA--455 (an 
average of 91 per year).
    (F) Dall's porpoise (Phocoenoidea dalli), Alaska--6,000 (an average 
of 1,200 per year).
    (G) Dall's porpoise (Phocoenoidea dalli), CA/OR/WA--50,785 (an 
average of 10,157 per year).
    (H) Harbor porpoise (Phocoena phocoena), Southeast Alaska--4,630 (an 
average of 926 per year).
    (I) Harbor porpoise (Phocoena phocoena), Northern OR/WA Coast--
86,060 (an average of 17,212 per year).
    (J) Harbor porpoise (Phocoena phocoena), Northern CA/Southern OR--
129,095 (an average of 25,819 per year).
    (K) Harbor porpoise (Phocoena phocoena), WA Inland Waters--27,045 
(an average of 5,409 per year).
    (L) Killer whale (Orcinus orca), Alaska Resident--10 (an average of 
2 per year).
    (M) Killer whale (Orcinus orca), West Coast Transient--1,035 (an 
average of 207 per year).
    (N) Killer whale (Orcinus orca), Eastern North Pacific Offshore--110 
(an average of 22 per year).
    (O) Kogia spp., CA/OR/WA--530 (an average of 106 per year).
    (P) Northern right whale dolphin (Lissodelphis borealis), CA/OR/WA--
10,190 (an average of 2,038 per year).
    (Q) Pacific white-sided dolphin (Lagenorhynchus obliquidens), North 
Pacific--15 (an average of 3 per year).
    (R) Pacific white-sided dolphin (Lagenorhynchus obliquidens), CA/OR/
WA--24,345 (an average of 4,869 per year).
    (S) Risso's dolphin (Grampus griseus), CA/OR/WA--5,770 (an average 
of 1,154 per year).
    (T) Short-beaked common dolphin (Delphinus delphis), CA/OR/WA--8,140 
(an average of 1,628 per year).
    (U) Sperm whale (Physeter macrocephalus), CA/OR/WA--390 (an average 
of 78 per year).
    (V) Striped dolphin (Stenella coerulealba), CA/OR/WA--70 (an average 
of 14 per year).
    (iii) Pinnipeds:
    (A) California sea lion (Zalophus californianus), U.S.--10,730 (an 
average of 2,146 per year).
    (B) Steller sea lion (Eumetopias jubatus), Eastern U.S.--2,605 (an 
average of 521 per year).
    (C) Guadalupe fur seal (Arctocephalus townsendi), Mexico--15 (an 
average of 3 per year).

[[Page 219]]

    (D) Harbor seal (Phoca vitulina), Southeast Alaska (Clarence 
Sound)--110 (an average of 22 per year).
    (E) Harbor seal (Phoca vitulina), OR/WA Coast--8,275 (an average of 
1,655 per year).
    (F) Harbor seal (Phoca vitulina), WA Northern Inland Waters--9,115 
(an average of 1,823 per year).
    (G) Harbor seal (Phoca vitulina), Southern Puget Sound--980 (an 
average of 196 per year).
    (H) Harbor seal (Phoca vitulina), Hood Canal--296,085 (an average of 
59,217 per year).
    (I) Northern elephant seal (Mirounga angustirostris), CA Breeding--
6,625 (an average of 1,325 per year).
    (J) Northern fur seal (Callorhinus ursinus), Eastern Pacific--9,150 
(an average of 1,830 per year).
    (K) Northern fur seal (Callorhinus ursinus), California--135 (an 
average of 27 per year).
    (4) Level A Harassment for all Testing Activities:
    (i) Mysticetes:
    (A) Gray whale (Eschrichtius robustus), Eastern North Pacific--5 (an 
average of 1 per year).
    (B) [Reserved]
    (ii) Odontocetes:
    (A) Kogia spp., CA/OR/WA--5 (an average of 1 per year).
    (B) Dall' porpoise (Phocoenoidea dalli), CA/OR/WA--215 (an average 
of 43 per year).
    (C) Harbor porpoise (Phocoena phocoena), Northern OR/WA Coast--75 
(an average of 15 per year).
    (D) Harbor porpoise (Phocoena phocoena), Northern CA/Southern OR--
115 (an average of 23 per year).
    (E) Harbor porpoise (Phocoena phocoena), WA Inland Waters--30 (an 
average of 6 per year).
    (iii) Pinnipeds:
    (A) Harbor seal (Phoca vitulina), OR/WA Coast--20 (an average of 4 
per year).
    (B) Harbor seal (Phoca vitulina), WA Northern Inland Waters--110 (an 
average of 22 per year).
    (C) Harbor seal (Phoca vitulina), Southern Puget Sound--5 (an 
average of 1 per year).
    (D) Harbor seal (Phoca vitulina), Hood Canal--335 (an average of 67 
per year).
    (E) Northern elephant seal (Mirounga angustirostris), CA Breeding--
10 (an average of 2 per year).
    (F) [Reserved]



Sec. 218.143  Prohibitions.

    Notwithstanding takings contemplated in Sec. 218.142 and authorized 
by an LOA issued under Secs. 216.106 and 218.147 of this chapter, no 
person in connection with the activities described in Sec. 218.140 may:
    (a) Take any marine mammal not specified in Sec. 218.142(c);
    (b) Take any marine mammal specified in Sec. 218.142(c) other than 
by incidental take as specified in Sec. 218.142(c);
    (c) Take a marine mammal specified in Sec. 218.142(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 an LOA issued under Secs. 216.106 
and 218.147.



Sec. 218.144  Mitigation.

    (a) When conducting training and testing activities, as identified 
in Sec. 218.140, the mitigation measures contained in the LOA issued 
under Secs. 216.106 and 218.147 of this chapter must be implemented. 
These mitigation measures include, but are not limited to:
    (1) Lookouts--The following are protective measures concerning the 
use of Lookouts.
    (i) Lookouts positioned on surface ships will be dedicated solely to 
diligent observation of the air and surface of the water. Their 
observation objectives will include, but are not limited to, detecting 
the presence of biological resources and recreational or fishing boats, 
observing mitigation zones, and monitoring for vessel and personnel 
safety concerns.
    (ii) Lookouts positioned ashore, in aircraft or on boats will, to 
the maximum extent practicable and consistent with aircraft and boat 
safety and training and testing requirements, comply with the 
observation objectives described in paragraph (a)(1)(i) of this section.
    (iii) Lookout Measures for Non-Impulsive Sound:

[[Page 220]]

    (A) With the exception of vessels less than 65 ft (20 m) in length 
or minimally manned vessels, ships using low-frequency or hull-mounted 
mid-frequency active sonar sources associated with anti-submarine 
warfare and mine warfare activities at sea will have two Lookouts at the 
forward position of the vessel. For the purposes of this rule, low-
frequency active sonar does not include surface towed array surveillance 
system low-frequency active sonar.
    (B) While using low-frequency or hull-mounted mid-frequency active 
sonar sources associated with anti-submarine warfare and mine warfare 
activities at sea, vessels less than 65 ft (20 m) in length or minimally 
manned vessels will have one Lookout at the forward position of the 
vessel due to space and manning restrictions.
    (C) Ships conducting active sonar activities while moored or at 
anchor (including pierside or shore-based testing or maintenance) will 
maintain one Lookout.
    (D) Minimally manned vessels conducting hull-mounted mid-frequency 
testing will employ one Lookout.
    (E) Ships, small boats, range craft, or aircraft conducting non-
hull-mounted mid-frequency active sonar, such as helicopter dipping 
sonar systems, will maintain one Lookout.
    (F) Surface ships or aircraft conducting high-frequency or non-hull-
mounted mid-frequency active sonar activities associated with anti-
submarine warfare and mine warfare activities at sea will have one 
Lookout.
    (iv) Lookout measures for impulsive sound (e.g., explosives):
    (A) Aircraft conducting improved extended echo ranging sonobuoy 
activities will have one Lookout.
    (B) Aircraft conducting explosive sonobuoy activities using >0.5 to 
2.5-lb net explosive weight (NEW) will have one Lookout.
    (C) General mine countermeasure and neutralization activities 
involving positive control diver placed charges using >0.5 to 2.5 lb NEW 
will have a total of two Lookouts (one Lookout positioned in each of the 
two support vessels). All divers placing the charges on mines will 
support the Lookouts while performing their regular duties. The divers 
and Lookouts will report all marine mammal sightings to their dive 
support vessel.
    (D) Surface vessels or aircraft conducting small-, medium-, and 
large-caliber gunnery exercises will have one Lookout. Towing vessels, 
if applicable, will also maintain one Lookout.
    (E) Aircraft conducting missile exercises against a surface target 
will have one Lookout.
    (F) Aircraft conducting explosive bombing exercises will have one 
Lookout and any surface vessels involved will have trained Lookouts.
    (G) During explosive torpedo testing from aircraft one Lookout will 
be used and positioned in an aircraft. During explosive torpedo testing 
from a surface ship the Lookout procedures implemented for hull-mounted 
mid-frequency active sonar activities will be used.
    (H) To mitigate effects from weapon firing noise, ships conducting 
explosive and non-explosive large-caliber gunnery exercises will have 
one Lookout. This may be the same Lookout used for small, medium, and 
large-caliber gunnery exercises using a surface target when that 
activity is conducted from a ship against a surface target.
    (v) Lookout measures for physical strike and disturbance:
    (A) While underway, surface ships and range craft will have at least 
one Lookout.
    (B) During activities using towed in-water devices towed from a 
manned platform, one Lookout will be used. During activities in which 
in-water devices are towed by unmanned platforms, a manned escort vessel 
will be included and one Lookout will be employed.
    (C) Activities involving non-explosive practice munitions (e.g., 
small-, medium-, and large-caliber gunnery exercises) using a surface 
target will have one Lookout.
    (D) During non-explosive bombing exercises one Lookout will be 
positioned in an aircraft and trained Lookouts will be positioned in any 
surface vessels involved.
    (2) Mitigation zones--The following are protective measures 
concerning the implementation of mitigation zones.

[[Page 221]]

    (i) Mitigation zones will be measured as the radius from a source 
and represent a distance to be monitored.
    (ii) Visual detections of marine mammals (or sea turtles) within a 
mitigation zone will be communicated immediately to a watch station for 
information dissemination and appropriate action.
    (iii) Mitigation Zones for Non-Impulsive Sound:
    (A) The Navy shall ensure that hull-mounted mid-frequency active 
sonar transmission levels are limited to at least 6 dB below normal 
operating levels if any detected marine mammals (or sea turtles) are 
within 1,000 yd. (914 m) of the sonar dome (the bow).
    (B) The Navy shall ensure that hull-mounted mid-frequency active 
sonar transmissions are limited to at least 10 dB below the equipment's 
normal operating level if any detected marine mammals (or sea turtles) 
are within 500 yd. (457 m) of the sonar dome.
    (C) The Navy shall ensure that hull-mounted mid-frequency active 
sonar transmissions are ceased if any detected cetaceans (or sea 
turtles) are within 200 yd. (183 m) and pinnipeds are within 100 yd. (91 
m) of the sonar dome. Transmissions will not resume until the marine 
mammal has been observed exiting the mitigation zone, is thought to have 
exited the mitigation zone based on its course and speed, has not been 
detected for 30 minutes, the vessel has transited more than 2,000 yd. 
beyond the location of the last detection, or the Lookout concludes that 
dolphins are deliberately closing in on the ship to ride the ship's bow 
wave (and there are no other marine mammal sightings within the 
mitigation zone). Active transmission may resume when dolphins are bow 
riding because they are out of the main transmission axis of the active 
sonar while in the shallow-wave area of the ship bow. The pinniped 
mitigation zone does not apply to pierside sonar in the vicinity of 
pinnipeds hauled out on or in the water near man-made structures and 
vessels.
    (D) The Navy shall ensure that low-frequency active sonar 
transmission levels are ceased if any detected cetaceans (or sea 
turtles) are within 200 yd. (183 m) and pinnipeds are within 100 yd. (91 
m) of the source. Transmissions will not resume until the marine mammal 
has been observed exiting the mitigation zone, is thought to have exited 
the mitigation zone based on its course and speed, has not been detected 
for 30 minutes, or the vessel has transited more than 2,000 yd. beyond 
the location of the last detection. The pinniped mitigation zone does 
not apply for pierside sonar in the vicinity of pinnipeds hauled out on 
or in the water near man-made structures and vessels.
    (E) For training, the Navy shall ensure that high-frequency and non-
hull-mounted mid-frequency active sonar transmission levels are ceased 
if any detected marine mammals are within 200 yd. (183 m) of the source. 
For testing, the Navy shall ensure that high-frequency and non-hull-
mounted mid-frequency active sonar transmission levels are ceased if any 
detected cetaceans are within 200 yd. (183 m) and pinnipeds are within 
100 yd. (91 m) of the source. Transmissions will not resume until the 
marine mammal has been observed exiting the mitigation zone, is thought 
to have exited the mitigation zone based on its course and speed, the 
mitigation zone has been clear from any additional sightings for a 
period of 10 minutes for an aircraft-deployed source, the mitigation 
zone has been clear from any additional sightings for a period of 30 
minutes for a vessel-deployed source, the vessel or aircraft has 
repositioned itself more than 400 yd. (370 m) away from the location of 
the last sighting, or the vessel concludes that dolphins are 
deliberately closing in to ride the vessel's bow wave (and there are no 
other marine mammal sightings within the mitigation zone). The pinniped 
mitigation zone does not apply for pierside or shore-based testing in 
the vicinity of pinnipeds hauled out on or in the water near man-made 
structures and vessels.
    (iv) Mitigation Zones and Procedures for Explosive and Impulsive 
Sound:
    (A) For activities using IEER sonobuoys, mitigation will include 
pre-exercise aerial observation and passive acoustic monitoring, which 
will begin 30 minutes before the first source/receiver pair detonation 
and continue

[[Page 222]]

throughout the duration of the exercise. IEER sonobuoys will not be 
deployed if concentrations of floating vegetation (kelp paddies) are 
observed in the mitigation zone around the intended deployment location. 
Explosive detonations will cease if a marine mammal, sea turtle, or 
concentrations of floating vegetation are sighted within a 600-yd. (549 
m) mitigation zone. Detonations will recommence if the animal is 
observed exiting the mitigation zone, the animal is thought to have 
exited the mitigation zone based on its course and speed, or the 
mitigation zone has been clear from any additional sightings for a 
period of 30 minutes.
    (B) A mitigation zone with a radius of 350 yd. (320 m) shall be 
established for explosive signal underwater sonobuoys using >0.5 to 2.5 
lb net explosive weight. Mitigation will include pre-exercise aerial 
monitoring of the mitigation zone during deployment. Explosive SUS buoys 
will not be deployed if concentrations of floating vegetation (kelp 
paddies) are observed within the mitigation zone around the intended 
deployment location. A SUS detonation will cease if a marine mammal or 
sea turtle is sighted within the mitigation zone. Detonations will 
recommence if the animal is observed exiting the mitigation zone, the 
animal is thought to have exited the mitigation zone based on its course 
and speed, or the mitigation zone has been clear from any additional 
sightings for a period of 10 minutes.
    (C) A mitigation zone with a radius of 400 yd. (366 m) shall be 
established for mine countermeasures and neutralization activities using 
positive control firing devices. For Demolition and 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, or from the air, and 
personnel shall be alert to the presence of any marine mammal or sea 
turtle. Should a marine mammal or sea turtle 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. Explosive detonations will cease if a marine mammal is sighted in 
the water portion of the mitigation zone (i.e., not on shore). 
Detonations will recommence if the animal is observed exiting the 
mitigation zone, the animal is thought to have exited the mitigation 
zone based on its course and speed, or the mitigation zone has been 
clear from any additional sightings for a period of 30 minutes.
    (D) A mitigation zone with a radius of 200 yd. (183 m) shall be 
established for small- and medium-caliber gunnery exercises with a 
surface target. Vessels will observe the mitigation zone from the firing 
position. When aircraft are firing, the aircrew will maintain visual 
watch of the mitigation zone during the activity. The exercise will not 
commence if concentrations of floating vegetation (kelp paddies) are 
observed within the mitigation zone. Firing will cease if a marine 
mammal or sea turtle is sighted within the mitigation zone. Firing will 
recommence if the animal is observed exiting the mitigation zone, the 
animal is thought to have exited the mitigation zone based on its course 
and speed, the mitigation zone has been clear from any additional 
sightings for a period of 10 minutes for a firing aircraft, the 
mitigation zone has been clear from any additional sightings for a 
period of 30 minutes for a firing ship, or the intended target location 
has been repositioned more than 400 yd. (370 m) away from the location 
of the last sighting.
    (E) A mitigation zone with a radius of 600 yd. (549 m) shall be 
established for large-caliber gunnery exercises with a surface target. 
Ships will observe the mitigation zone from the firing position. The 
exercise will not commence if concentrations of floating vegetation 
(kelp paddies) are observed in the mitigation zone. Firing will cease if 
a marine mammal or sea turtle is sighted within the mitigation zone. 
Firing will recommence if the animal is observed exiting the mitigation 
zone, the animal is thought to have exited the mitigation zone based on 
its course and speed, or the mitigation zone has been clear from any 
additional sightings for a period of 30 minutes.

[[Page 223]]

    (F) A mitigation zone with a radius of 2,000 yd. (1.8 km) shall be 
established for missile exercises up to 500 lb NEW using a surface 
target. When aircraft are involved in the missile firing, mitigation 
will include visual observation by the aircrew prior to commencement of 
the activity within a mitigation zone of 2,000 yd. (1.8 km) around the 
intended impact location. The exercise will not commence if 
concentrations of floating vegetation (kelp paddies) are observed in the 
mitigation zone. Firing will not commence or will cease if a marine 
mammal or sea turtle is sighted within the mitigation zone. Firing will 
recommence if the animal is observed exiting the mitigation zone, the 
animal is thought to have exited the mitigation zone based on its course 
and speed, or the mitigation zone has been clear from any additional 
sightings for a period of 10 minutes or 30 minutes (depending on 
aircraft type).
    (G) A mitigation zone with a radius of 2,500 yd. (2.3 km) for 
explosive bombs and a mitigation zone of 1,000 yd (914 m) for non-
explosive bombs around the intended impact location shall be established 
for bombing exercises. Aircraft shall visually survey the target and 
buffer zone for marine mammals prior to and during the exercise. The 
exercise will not commence if concentrations of floating vegetation 
(kelp paddies) are observed in the mitigation zone. Bombing will not 
commence or will cease if a marine mammal or sea turtle is sighted 
within the mitigation zone. Bombing will recommence if the animal is 
observed exiting the mitigation zone, the animal is thought to have 
exited the mitigation zone based on its course and speed, or the 
mitigation zone has been clear from any additional sightings for a 
period of 10 minutes.
    (H) A mitigation zone with a radius of 2,100 yd. (1.9 km) shall be 
established for torpedo (explosive) testing. Mitigation will include 
visual observation by aircraft immediately before, during, and after the 
event of the mitigation zone. The exercise will not commence if 
concentrations of floating vegetation (kelp paddies) are sighted within 
the mitigation zone. Firing will not commence or will cease if a marine 
mammal, sea turtle, or aggregation of jellyfish is sighted within the 
mitigation zone. Firing will recommence if the animal is observed 
exiting the mitigation zone, the animal is thought to have exited the 
mitigation zone based on its course and speed, or the mitigation zone 
has been clear from any additional sightings for a period of 10 minutes 
or 30 minutes (depending on aircraft type). In addition to visual 
observation, passive acoustic monitoring shall be conducted by Navy 
assets, such as passive ship sonar systems or sonobuoys already 
participating in the activity. These assets would only detect vocalizing 
marine mammals within the frequency band monitored by Navy personnel. 
Passive acoustic detections would not provide range or bearing to 
detected animals, and therefore cannot provide locations of these 
animals. Passive acoustic detections shall be reported to the Lookout 
posted in the aircraft in order to increase vigilance of the visual 
surveillance, and to the person in control of the activity for their 
consideration in determining when the mitigation zone is determined free 
of visible marine mammals.
    (I) A mitigation zone with a radius of 70 yd. (46 m) within 30 
degrees on either side of the gun target line on the firing side shall 
be established for weapons firing noise during large-caliber gunnery 
exercises. Mitigation shall include visual observation immediately 
before and during the exercise. The exercise will not commence if 
concentrations of floating vegetation (kelp paddies) are observed in the 
mitigation zone. Firing will cease if a marine mammal or sea turtle is 
sighted within the mitigation zone. Firing will recommence if the animal 
is observed exiting the mitigation zone, the animal is thought to have 
exited the mitigation zone based on its course and speed, the mitigation 
zone has been clear from any additional sightings for a period of 30 
minutes, or the vessel has repositioned itself more than 140 yd. (128 m) 
away from the location of the last sighting.
    (v) Mitigation Zones for Vessels and In-Water Devices:
    (A) For all training activities and for testing activities involving 
surface ships, vessels shall avoid approaching marine mammals head on 
and shall maneuver to keep at least 500 yd. (457

[[Page 224]]

m) away from observed whales and 200 yd (183 m) away from all other 
marine mammals (except bow riding dolphins, and pinnipeds hauled out on 
man-made navigational and port structures and vessels) during vessel 
movements. These requirements shall not apply if a vessel's safety is 
threatened and to the extent that 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.
    (B) For testing activities not involving surface ships (e.g. range 
craft) vessels shall maneuver to keep at least 100 yd. (91 m) away from 
marine mammals (except bow-riding dolphins, pinnipeds hauled out on man-
made navigational and port structures and vessels, and pinnipeds during 
test body retrieval) during vessel movements. This requirement shall not 
apply if a vessel's safety is threatened and to the extent that 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.
    (C) The Navy shall ensure that towed in-water devices being towed 
from manned platforms avoid coming within a mitigation zone of 250 yd. 
(230 m) for all training events and testing activities involving surface 
ships, and a mitigation zone of 100 yd (91 m) for testing activities not 
involving surface ships (e.g. range craft) around any observed marine 
mammal, providing it is safe to do so.
    (vi) Mitigation zones for non-explosive practice munitions:
    (A) A mitigation zone of 200 yd. (183 m) shall be established for 
small-, medium, and large-caliber gunnery exercises using a surface 
target. Mitigation will include visual observation from a vessel or 
aircraft immediately before and during the exercise within the 
mitigation zone of the intended impact location. The exercise will not 
commence if concentrations of floating vegetation (kelp paddies) are 
observed in the mitigation zone. Firing will cease if a marine mammal is 
sighted within the mitigation zone. Firing will recommence if the animal 
is observed exiting the mitigation zone, the animal is thought to have 
exited the mitigation zone based on its course and speed, the mitigation 
zone has been clear from any additional sightings for a period of 10 
minutes for a firing aircraft, the mitigation zone has been clear from 
any additional sightings for a period of 30 minutes for a firing ship, 
or the intended target location has been repositioned more than 400 yd. 
(370 m) away from the location of the last sighting.
    (B) A mitigation zone of 1,000 yd. (914 m) shall be established for 
non-explosive bombing exercises. Mitigation shall include visual 
observation from the aircraft immediately before the exercise and during 
target approach within the mitigation zone around the intended impact 
location. The exercise will not commence if concentrations of floating 
vegetation (kelp paddies) are observed within the mitigation zone. 
Bombing will not commence or will cease if a marine mammal is sighted 
within the mitigation zone. Bombing will recommence if the animal is 
observed exiting the mitigation zone, the animal is thought to have 
exited the mitigation zone based on its course and speed, or the 
mitigation zone has been clear from any additional sightings for a 
period of 10 minutes.
    (3) NWTT-Specific Mitigation--The following are additional measures 
the Navy shall comply with when conducting training or testing 
activities in the NWTT Study Area:
    (i) Maritime Homeland Defense/Security Mine Countermeasure 
Integrated Exercises--The Navy shall conduct pre-event planning and 
training to ensure environmental awareness of all exercise participants. 
When this event is proposed to be conducted in Puget Sound, Navy event 
planners shall consult with Navy biologists who shall contact NMFS 
during the planning

[[Page 225]]

process in order to determine likelihood of gray whale or southern 
resident killer whale presence in the proposed exercise area as planners 
consider specifics of the event.
    (ii) Small Boat Attack Gunnery Exercises--The Navy shall conduct 
pre-event planning and training to ensure environmental awareness of all 
exercise participants. When this event is proposed to be conducted in 
and around Naval Station Everett, Naval Base Kitsap Bangor, or Naval 
Base Kitsap Bremerton in Puget Sound, Navy event planners shall consult 
with Navy biologists who shall contact NMFS early in the planning 
process in order to determine the extent marine mammals may be present 
in the immediate vicinity of the proposed exercise area as planners 
consider the specifics of the event.
    (iii) Missile Exercise--The Navy shall conduct Missile Exercises 
using high explosives at least 50 nm from shore in the NWTT Offshore 
Area.
    (iv) BOMBEX--The Navy shall conduct BOMBEX (high explosive 
munitions) greater than 50 nm from shore.
    (v) BOMBEX (non-explosive practice munitions)--The Navy shall 
conduct BOMBEX (non-explosive practice munitions) events at least 20 nm 
from shore and shall not conduct BOMBEX events within the Olympic Coast 
National Marine Sanctuary.
    (vi) Mine Countermeasure and Neutralization Underwater Detonations--
The Navy shall require approval from U.S. Third Fleet prior to 
conducting mine countermeasure and neutralization underwater detonations 
at Hood Canal or Crescent Harbor.
    (vii) Hull Mounted Mid-Frequency Active Sonar Training--The Navy 
shall require approval from U.S. Pacific Fleet's designated authority 
prior to conducting hull-mounted mid-frequency active sonar on vessels 
while training underway in Puget Sound and the Strait of Juan de Fuca.
    (viii) Pierside Maintenance or Testing of Sonar Systems--The Navy 
shall require approval from U.S. Pacific Fleet's designated authority or 
Systems Command designated authority (as applicable to ship and 
submarine active sonar use) prior to conducting pierside maintenance or 
testing in Puget Sound or the Strait of Juan de Fuca.
    (b) [Reserved]



Sec. 218.145  Requirements for monitoring and reporting.

    (a) The Navy is required to cooperate with the NMFS, and any other 
Federal, state or local agency monitoring the impacts of the activity on 
marine mammals.
    (b) General Notification of Injured or Dead Marine Mammals--Navy 
personnel shall ensure that NMFS is notified immediately (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 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.
    (c) 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), 
and the time of the strike.
    (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.
    (5) Within 2 weeks of the strike, provide NMFS with a detailed 
description

[[Page 226]]

of the specific actions of the vessel in the 30-minute timeframe 
immediately preceding the strike, during the event, and immediately 
after the strike (e.g., the speed and changes in speed, the direction 
and changes in direction, other maneuvers, sonar use, etc., if not 
classified); a narrative description of marine mammal sightings during 
the event and immediately after, and any information as to sightings 
prior to the strike, if available; and use established Navy shipboard 
procedures to make a camera available to attempt to capture photographs 
following a ship strike.
    (d) 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.
    (e) The Navy must conduct all monitoring and/or research required 
under the Letter of Authorization including abiding by the NWTT 
monitoring plan. (http://www.nmfs.noaa.gov /pr/permits /incidental /
military.htm).
    (f) Annual NWTT Monitoring Report--The Navy shall submit an annual 
report of the NWTT monitoring describing the implementation and results 
of the NWTT monitoring efforts from the previous calendar year. Data 
collection methods will be standardized across range complexes and study 
areas to allow for comparison in different geographic locations. 
Although additional information will be gathered, the protected species 
observers collecting marine mammal data pursuant to the NWTT monitoring 
plan shall, at a minimum, provide the same marine mammal observation 
data required in this section. The report shall be submitted either 90 
days after the calendar year, or 90 days after the conclusion of the 
monitoring year to be determined by the Adaptive Management process. The 
NWTT Monitoring Report may be provided to NMFS within a larger report 
that includes the required Monitoring Plan reports from multiple range 
complexes and study areas (the multi-Range Complex Annual Monitoring 
Report). Such a report would describe progress of knowledge made with 
respect to monitoring plan study questions across all Navy ranges 
associated with the Integrated Comprehensive Monitoring Program. Similar 
study questions shall be treated together so that progress on each topic 
shall be summarized across all Navy ranges. The report need not include 
analyses and content that does not provide direct assessment of 
cumulative progress on the monitoring plan study questions.
    (g) Annual NWTT Exercise and Testing Reports--The Navy shall submit 
preliminary reports detailing the status of authorized sound sources 
within 21 days after the anniversary of the date of issuance of the LOA. 
The Navy shall submit detailed reports 3 months after the annual 
anniversary of the date of issuance of the LOA. The detailed annual 
reports shall describe the level of training and testing conducted 
during the reporting period, and a summary of sound sources used (total 
annual hours or quantity [per the LOA] of each bin of sonar or other 
non-impulsive source; total annual number of each type of explosive 
exercises; total annual expended/detonated rounds [missiles, bombs, 
etc.] for each explosive bin; and improved Extended Echo-Ranging System 
(IEER)/sonobuoy summary, including total number of IEER events conducted 
in the Study Area, total expended/detonated rounds (buoys), and total 
number of self-scuttled IEER rounds. The analysis in the detailed 
reports will be based on the accumulation of data from the current 
year's report and data collected from previous reports. The annual 
classified exercise reports will also include the amount of hull-mounted 
mid-frequency and high frequency active sonar use during training and 
testing activities in the Olympic Coast National Marine Sanctuary and in 
the months specified for the following three feeding areas (to the 
extent that active sonar training or testing does occur in these areas): 
The Humpback Whale Northern Washington feeding area (May through 
November); the Stonewall and Heceta Bank feeding area (May through 
November) and the Gray Whale Northern

[[Page 227]]

Puget Sound Feeding Area (March through May).
    (h) 5-year Close-out Exercise and Testing Report--This report will 
be included as part of the 2020 annual exercise or testing report. This 
report will provide the annual totals for each sound source bin with a 
comparison to the annual allowance and the 5-year total for each sound 
source bin with a comparison to the 5-year allowance. Additionally, if 
there were any changes to the sound source allowance, this report will 
include a discussion of why the change was made and include the analysis 
to support how the change did or did not result in a change in the EIS 
and final rule determinations. The report will be submitted 3 months 
after the expiration of the rule. NMFS will submit comments on the draft 
close-out report, if any, within 3 months of receipt. The report will be 
considered final after the Navy has addressed NMFS' comments, or 3 
months after the submittal of the draft if NMFS does not provide 
comments.



Sec. 218.146  Applications for Letters of Authorization.

    To incidentally take marine mammals pursuant to the regulations in 
this subpart, the U.S. citizen (as defined by Sec. 216.106) conducting 
the activity identified in Sec. 218.140(c) (the U.S. Navy) must apply 
for and obtain either an initial LOA in accordance with Sec. 218.147 or 
a renewal under Sec. 218.148.



Sec. 218.147  Letters of Authorization.

    (a) An LOA, unless suspended or revoked, will be valid for a period 
of time not to exceed the period of validity of this subpart.
    (b) Each LOA 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, modification, or renewals of LOAs 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. 218.148  Renewals and Modifications of Letters of Authorization
and Adaptive Management.

    (a) A Letter of Authorization issued under Secs. 216.106 and 218.147 
of this chapter for the activity identified in Sec. 218.140(c) will be 
renewed or modified upon request of 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 of this chapter), 
and;
    (2) NMFS determines that the mitigation, monitoring, and reporting 
measures required by the previous LOA under these regulations were 
adequately 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 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) An LOA issued under Secs. 216.106 and 218.147 of this chapter 
for the activity identified in Sec. 218.144 of this chapter may be 
modified by NMFS under the following circumstances:
    (1) Adaptive Management--NMFS may modify (including add to, change, 
or remove) the existing mitigation, monitoring, or reporting 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 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

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the mitigation, monitoring, and reporting measures in an LOA include 
(but are not limited to):
    (A) Results from Navy's monitoring from the previous year(s);
    (B) Results from other marine mammal and/or sound research or 
studies; or
    (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 
would 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 in Sec. 218.142(c), an LOA may be modified 
without prior notification and an opportunity for public comment. 
Notification would be published in the Federal Register within 30 days 
of the action.



   Subpart P_Taking and Importing Marine Mammals; U.S. Navy's Gulf of 
     Alaska Temporary Maritime Activities Area (GOA TMAA) Study Area

    Source: 82 FR 19601, Apr. 27, 2017, unless otherwise noted.

    Effective Date Note: At 82 FR 19601, Apr. 27, 2017, subpart P was 
added, effective Apr. 26, 2017, through Apr. 26, 2022.



Sec. 218.150  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 GOA TMAA Study Area, which is bounded by a hexagon 
with the following six corners: 5730 N. lat., 14130 W. long.; 
5936 N. lat., 14810 W. long.; 5857 N. lat., 15004 W. long.; 
5820 N. lat., 15100 W. long.; 5716 N. lat., 15100 W. long.; 
and 5530 N. lat., 14200 W. long.
    (c) The taking of marine mammals by the Navy is only authorized if 
it occurs incidental to the following activities:
    (1) Sonar and other active sources used during training--(i) Mid-
frequency (MF) source classes. (A) MF1--an average of 271 hours per 
year.
    (B) MF3--an average of 24 hours per year.
    (C) MF4--an average of 26 hours per year.
    (D) MF5--an average of 126 items per year.
    (E) MF6--an average of 11 items per year.
    (F) MF11--an average of 39 hours per year.
    (ii) High-frequency (HF) source classes. (A) HF1--an average of 12 
hours per year.
    (B) HF6--an average of 40 items per year.
    (iii) Anti-Submarine Warfare (ASW) source classes. (A) ASW2--an 
average of 40 hours per year.
    (B) ASW3--an average of 273 hours per year.
    (C) ASW4--an average 6 items per year.
    (iv) Torpedoes (TORP). (A) TORP2--an average of 0 items per year.
    (B) [Reserved]
    (2) Impulsive source detonations during training--(i) Explosive 
classes. (A) E5 (>5 to 10 pound (lb) net explosive weight (NEW))--an 
average of 56 detonations per year.
    (B) E9 (>100 to 250 lb NEW)--an average of 64 detonations per year.
    (C) E10 (>250 to 500 lb NEW)--an average of 6 detonations per year.
    (D) E12 (>650 to 1,000 lb NEW)--an average of 2 detonations per 
year.
    (ii) [Reserved]



Sec. 218.151  Effective dates and definitions.

    (a) Regulations in this subpart are effective April 26, 2017 through 
April 26, 2022.
    (b) The following definitions are utilized in these regulations:

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    (1) Uncommon Stranding Event (USE). A stranding event that takes 
place during a Major Training Exercise (MTE) and involves any one of the 
following:
    (i) Two or more individuals of any cetacean species (i.e., could be 
two different species, but not including mother/calf pairs, unless of 
species of concern listed in next bullet) found dead or live on shore 
within a three- to four-day period and within 10 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, North Pacific 
right whale, humpback whale, sperm whale, blue whale, fin whale, sei 
whale, Cook Inlet beluga whale, Northern fur seal, and Steller sea lion.
    (iii) A group of two or more cetaceans of any species exhibiting 
indicators of distress.
    (2) [Reserved]



Sec. 218.152  Permissible methods of taking.

    (a) Under letter of authorization (LOA) issued pursuant to 
Sec. 216.106 of this chapter and Sec. 218.157, the holder of the LOA may 
incidentally, but not intentionally, take marine mammals within the area 
described in Sec. 218.150, provided the activity is in compliance with 
all terms, conditions, and requirements of these regulations and the 
LOA.
    (b) The activities identified in Sec. 218.150(c) must be conducted 
in a manner that minimizes, to the greatest extent practicable, any 
adverse impacts on marine mammal species or stocks and their habitat.
    (c) The incidental take of marine mammals under the activities 
identified in Sec. 218.150(c) is limited to the following species, by 
the identified method of take and the indicated number of times:
    (1) Level B harassment for all training activities--(i) Mysticetes. 
(A) Blue whale (Balaenoptera musculus), Eastern North Pacific--235 (an 
average of 47 per year).
    (B) Fin whale (Balaenoptera physalus), Northeast Pacific--6,455 (an 
average of 1,291 per year).
    (C) Humpback whale (Megaptera novaeangliae), Central North Pacific--
305 (an average of 61 per year).
    (D) Humpback whale (Megaptera novaeangliae), Western North Pacific--
5 (an average of 1 per year).
    (E) Humpback whale (Megaptera novaeangliae), CA/OR/WA--35 (an 
average of 7 per year).
    (F) Minke whale (Balaenoptera acutorostrata), Alaska--215 (an 
average of 43 per year).
    (G) North Pacific right whale (Eubalaena japonica), Eastern North 
Pacific--15 (an average of 3 per year).
    (H) Sei whale (Balaenoptera borealis), Eastern North Pacific--30 (an 
average of 6 per year).
    (ii) Odontocetes. (A) Baird's beaked whale (Berardius bairdii), 
Alaska--1,000 (an average of 200 per year).
    (B) Cuvier's beaked whale (Ziphius cavirostris), Alaska--6,355 (an 
average of 1,271 per year).
    (C) Dall's porpoise (Phocoenoidea dalli), Alaska--41,350 (an average 
of8,270 per year).
    (D) Harbor porpoise (Phocoena phocoena), GOA--13,710 (an average of 
2,742 per year).
    (E) Harbor porpoise (Phocoena phocoena), Southeast Alaska--4,815 (an 
average of 963 per year).
    (F) Killer whale (Orcinus orca), Alaska Resident--1,405 (an average 
of 281 per year).
    (G) Killer whale (Orcinus orca), Eastern North Pacific Offshore--130 
(an average of 26 per year).
    (H) Killer whale (Orcinus orca), GOA, Aleutian Island, and Bearing 
Sea Transient--360 (an average of 72 per year).
    (I) Pacific white-sided dolphin (Lagenorhynchus obliquidens), North 
Pacific--4,905 (an average of 981 per year).
    (J) Stejneger's beaked whale (Mesoplodon stejnegeri), Alaska--2,880 
(an average of 576 per year).
    (K) Sperm whale (Physeter macrocephalus), North Pacific--490 (an 
average of 98 per year).
    (iii) Pinnipeds. (A) California sea lion (Zalophus californianus), 
U.S.--10 (an average of 2 per year).
    (B) Steller sea lion (Eumetopias jubatus), Eastern U.S.--1,675 (an 
average of 335 per year).

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    (C) Steller sea lion (Eumetopias jubatus), Western U.S.--1,430 (an 
average of 286 per year).
    (D) Harbor seal (Phoca vitulina), South Kodiak--5 (an average of 1 
per year).
    (E) Harbor seal (Phoca vitulina), Prince William Sound--5 (an 
average of 1 per year).
    (F) Northern elephant seal (Mirounga angustirostris), California 
Breeding--610 (an average of 122 per year).
    (G) Northern fur seal (Callorhinus ursinus), Eastern Pacific--3,565 
(an average of 713 per year).
    (2) Level A harassment for all training activities--(i) Odontocetes. 
(A) Dall's porpoise (Phocoenoidea dalli), Alaska--12 (an average of 4 
per year).
    (B) [Reserved]
    (ii) [Reserved]



Sec. 218.153  Prohibitions.

    Notwithstanding takings contemplated in Sec. 218.152 and authorized 
by an LOA issued under Sec. 216.106 of this chapter and Sec. 218.157, no 
person in connection with the activities described in Sec. 218.150 may:
    (a) Take any marine mammal not specified in Sec. 218.152(c);
    (b) Take any marine mammal specified in Sec. 218.152(c) other than 
by incidental take as specified in Sec. 218.152(c);
    (c) Take a marine mammal specified in Sec. 218.152(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 an LOA issued under Sec. 216.106 of 
this chapter and Sec. 218.157.



Sec. 218.154  Mitigation.

    (a) After review of best available science, the following mitigation 
was determined to result in the least practicable adverse effect on 
marine mammal species or stocks. When conducting training activities, as 
identified in Sec. 218.150, the mitigation measures contained in the LOA 
issued under Sec. 216.106 of this chapter and Sec. 218.157 must be 
implemented. These mitigation measures include, but are not limited to:
    (1) Lookouts. The Navy shall have two types of lookouts for the 
purposes of conducting visual observations: Those positioned on ships; 
and those positioned ashore, in aircraft, or on boats. The following are 
protective measures concerning the use of lookouts.
    (i) Lookouts positioned on surface ships shall be dedicated solely 
to diligent observation of the air and surface of the water. Their 
observation objectives shall include, but are not limited to, detecting 
the presence of biological resources and recreational or fishing boats, 
observing mitigation zones, and monitoring for vessel and personnel 
safety concerns.
    (ii) Due to manning and space restrictions on aircraft, small boats, 
and some Navy ships, lookouts for these platforms may be supplemented by 
the aircraft crew or pilot, boat crew, range site personnel, or shore-
side personnel. Lookouts positioned in minimally manned platforms may be 
responsible for tasks in addition to observing the air or surface of the 
water (e.g., navigation of a helicopter or small boat). However, all 
lookouts shall, considering personnel safety, practicality of 
implementation, and impact on the effectiveness of the activity, comply 
with the observation objectives described in paragraph (a)(1)(i) of this 
section for lookouts positioned on ships.
    (iii) All personnel standing watch on the bridge, Commanding 
Officers, Executive Officers, maritime patrol aircraft aircrews, anti-
submarine warfare helicopter crews, civilian equivalents, and lookouts 
shall successfully complete the United States Navy Marine Species 
Awareness Training prior to standing watch or serving as a lookout.
    (iv) Lookout measures for non-impulsive sound. (A) With the 
exception of vessels less than 65 ft (20 m) in length, ships using hull-
mounted mid-frequency active sonar sources associated with anti-
submarine warfare activities at sea shall have two Lookouts at the 
forward position of the vessel.
    (B) While using hull-mounted mid-frequency active sonar sources 
associated with anti-submarine warfare activities at sea, vessels less 
than 65 ft (20 m) in length shall have one lookout at the forward 
position of the vessel due to space and manning restrictions.

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    (C) During non-hull mounted mid-frequency active sonar training 
activities, 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. Helicopters shall observe/survey the vicinity of an anti-
submarine warfare training event for 10 minutes before the first 
deployment of active (dipping) sonar in the water.
    (D) Ships or aircraft conducting non-hull-mounted mid-frequency 
active sonar, such as helicopter dipping sonar systems, shall maintain 
one lookout.
    (E) Ships conducting high-frequency active sonar shall maintain one 
lookout.
    (v) Lookout measures for explosives and impulsive sound. (A) 
Aircraft conducting explosive signal underwater sound buoy activities 
using >0.5-2.5 lb. NEW shall have one lookout.
    (B) Surface vessels or aircraft conducting small-, medium-, or 
large-caliber gunnery exercises against a surface target shall have one 
Lookout. From the intended firing position, trained Lookouts shall 
survey the mitigation zone for marine mammals prior to commencement and 
during the exercise as long as practicable. Towing vessels, if 
applicable, shall also maintain one 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.
    (C) Aircraft conducting explosive bombing exercises shall have one 
lookout and any surface vessels involved shall have trained Lookouts. If 
surface vessels are involved, Lookouts shall survey for floating kelp 
and marine mammals. 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 (460 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) When aircraft are conducting missile exercises against a surface 
target, the Navy shall have one Lookout positioned in an aircraft. 
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.
    (E) Ships conducting explosive and non-explosive gunnery exercises 
shall have one Lookout on the ship. This may be the same lookout 
described in paragraph (a)(1)(v)(B) of this section for surface vessels 
conducting small-, medium-, or large-caliber gunnery exercises when that 
activity is conducted from a ship against a surface target.
    (vi) Lookout measures for physical strike and disturbance. (A) While 
underway, surface ships shall have at least one Lookout with binoculars, 
and 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 Officer of the 
Deck the presence of marine mammals.
    (B) [Reserved]
    (vii) Lookout measures for non-explosive practice munitions. (A) 
Gunnery exercises using non-explosive practice munitions (e.g., small-, 
medium-, and large-caliber) using a surface target shall have one 
Lookout.
    (B) During non-explosive bombing exercises one Lookout shall be 
positioned in an aircraft and trained lookouts shall be positioned in 
any surface vessels involved.
    (C) When aircraft are conducting non-explosive missile exercises 
(including exercises using rockets) against a surface target, the Navy 
shall have one Lookout positioned in an aircraft.
    (2) Mitigation zones. The following are protective measures 
concerning the implementation of mitigation zones.
    (i) Mitigation zones shall be measured as the radius from a source 
and represent a distance to be monitored.

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    (ii) Visual detections of marine mammals or sea turtles within a 
mitigation zone shall be communicated immediately to a watch station for 
information dissemination and appropriate action.
    (iii) Mitigation zones for non-impulsive sound. (A) The Navy shall 
ensure that hull-mounted mid-frequency active sonar transmission levels 
are limited to at least 6 dB below normal operating levels if any 
detected marine mammals or sea turtles are within 1,000 yd (914 m) of 
the sonar dome (the bow).
    (B) The Navy shall ensure that hull-mounted mid-frequency active 
sonar transmissions are limited to at least 10 dB below the equipment's 
normal operating level if any detected marine mammals or sea turtles are 
within 500 yd (457 m) of the sonar dome.
    (C) The Navy shall ensure that hull-mounted mid-frequency active 
sonar transmissions are ceased if any detected cetaceans or sea turtles 
are within 200 yd (183 m) and pinnipeds are within 100 yd (90 m) of the 
sonar dome. Transmissions shall not resume until the marine mammal has 
been observed exiting the mitigation zone, is thought to have exited the 
mitigation zone based on its course and speed, has not been detected for 
30 minutes, the vessel has transited more than 2,000 yd (1830 m) beyond 
the location of the last detection, or the ship concludes that dolphins 
are deliberately closing in on the ship to ride the ship's bow wave (and 
there are no other marine mammal sightings within the mitigation zone). 
Active transmission may resume when dolphins are bow riding because they 
are out of the main transmission axis of the active sonar while in the 
shallow-wave area of the ship bow.
    (D) The Navy shall ensure that high-frequency and non-hull-mounted 
mid-frequency active sonar transmission levels are ceased if any 
detected cetaceans are within 200 yd (183 m) and pinnipeds are within 
100 yd (90 m) of the source. Transmissions shall not resume until the 
marine mammal has been observed exiting the mitigation zone, is thought 
to have exited the mitigation zone based on its course and speed, the 
mitigation zone has been clear from any additional sightings for a 
period of 10 minutes for an aircraft-deployed source, the mitigation 
zone has been clear from any additional sightings for a period of 30 
minutes for a vessel-deployed source, the vessel or aircraft has 
repositioned itself more than 400 yd (370 m) away from the location of 
the last sighting, or the vessel concludes that dolphins are 
deliberately closing in to ride the vessel's bow wave (and there are no 
other marine mammal sightings within the mitigation zone).
    (iv) Mitigation zones for explosive and impulsive sound. (A) A 
mitigation zone with a radius of 350 yd (320 m) shall be established for 
explosive signal underwater sonobuoys using >0.5 to 2.5 lb NEW. 
Explosive signal underwater sonobuoys shall not be deployed if 
concentrations of floating vegetation (kelp paddies) are observed in the 
mitigation zone (around the intended deployment location). Explosive 
signal underwater sonobuoy deployment shall cease if a marine mammal is 
sighted within the mitigation zone. Detonations shall recommence if any 
one of the following conditions is met: The animal is observed exiting 
the mitigation zone, the animal is thought to have exited the mitigation 
zone based on its course and speed, or the mitigation zone has been 
clear from any additional sightings for a period of 10 minutes. Passive 
acoustic monitoring shall also be conducted with Navy assets, such as 
sonobuoys, already participating in the activity. These assets would 
only detect vocalizing marine mammals within the frequency bands 
monitored by Navy personnel. Passive acoustic detections would not 
provide range or bearing to detected animals, and therefore cannot 
provide locations of these animals. Passive acoustic detections would be 
reported to Lookouts posted in aircraft in order to increase vigilance 
of their visual surveillance.
    (B) A mitigation zone with a radius of 200 yd (183 m) shall be 
established for small- and medium-caliber gunnery exercises with a 
surface target. The exercise shall not commence if concentrations of 
floating vegetation (kelp paddies) are observed in the mitigation zone. 
Firing shall cease if a marine mammal is sighted within the mitigation 
zone. Firing shall recommence if any one of the following conditions is

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met: The animal is observed exiting the mitigation zone, the animal is 
thought to have exited the mitigation zone based on its course and 
speed, the mitigation zone has been clear from any additional sightings 
for a period of 10 minutes for a firing aircraft, the mitigation zone 
has been clear from any additional sightings for a period of 30 minutes 
for a firing ship, or the intended target location has been repositioned 
more than 400 yd (370 m) away from the location of the last sighting.
    (C) A mitigation zone with a radius of 600 yd (549 m) shall be 
established for large-caliber gunnery exercises with a surface target. 
The exercise shall not commence if concentrations of floating vegetation 
(kelp paddies) are observed in the mitigation zone. Firing shall cease 
if a marine mammal is sighted within the mitigation zone. Firing shall 
recommence if any one of the following conditions is met: The animal is 
observed exiting the mitigation zone, the animal is thought to have 
exited the mitigation zone based on its course and speed, or the 
mitigation zone has been clear from any additional sightings for a 
period of 30 minutes.
    (D) A mitigation zone with a radius of 2,500 yd (2.3 km) around the 
intended impact location for explosive bombs and 1000 yd (920 m) for 
non-explosive bombs shall be established for bombing exercises. The 
exercise shall not commence if concentrations of floating vegetation 
(kelp paddies) are observed in the mitigation zone. Bombing shall cease 
if a marine mammal is sighted within the mitigation zone. Bombing shall 
recommence if any one of the following conditions is met: The animal is 
observed exiting the mitigation zone, the animal is thought to have 
exited the mitigation zone based on its course and speed, or the 
mitigation zone has been clear from any additional sightings for a 
period of 10 minutes.
    (E) A mitigation zone of 70 yd (64 m) shall be established for all 
explosive large-caliber gunnery exercises conducted from a ship. The 
exercise shall not commence if concentrations of floating vegetation 
(kelp paddies) are observed in the mitigation zone. Firing shall cease 
if a marine mammal is sighted within the mitigation zone. Firing shall 
recommence if any one of the following conditions is met: The animal is 
observed exiting the mitigation zone, the animal is thought to have 
exited the mitigation zone based on its course and speed, the mitigation 
zone has been clear from any additional sightings for a period of 30 
minutes, or the vessel has repositioned itself more than 140 yd (128 m) 
away from the location of the last sighting.
    (v) Mitigation zones for vessels and in-water devices. (A) Vessels 
shall avoid approaching marine mammals head on and shall maneuver to 
keep at least 500 yd (457 m) away from observed whales and 200 yd (183 
m) away from all other marine mammals (except bow riding dolphins), 
providing it is safe to do so. These requirements shall not apply if a 
vessel's safety is threatened and to the extent that 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.
    (B) A mitigation zone of 250 yd (229 m) shall be established for all 
towed in-water devices, providing it is safe to do so.
    (vi) Mitigation zones for non-explosive practice munitions. (A) A 
mitigation zone of 200 yd (183 m) shall be established for small-, 
medium-, and large-caliber gunnery exercises using a surface target. The 
exercise shall not commence if concentrations of floating vegetation 
(kelp paddies) are observed in the mitigation zone. Firing shall cease 
if a marine mammal is sighted within the mitigation zone. Firing shall 
recommence if any one of the following conditions is met: The animal is 
observed exiting the mitigation zone, the animal is thought to have 
exited the mitigation zone based on its course and speed, the mitigation 
zone has been clear from any additional sightings for a period of 10 
minutes for a firing aircraft, the mitigation zone has been clear from 
any additional sightings for a period of 30 minutes for a firing ship, 
or the intended target location has been repositioned more than

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400 yd (370 m) away from the location of the last sighting.
    (B) A mitigation zone of 1,000 yd (920 m) shall be established for 
bombing exercises. Bombing shall cease if a marine mammal is sighted 
within the mitigation zone. The exercise shall not commence if 
concentrations of floating vegetation (kelp paddies) are observed in the 
mitigation zone. Bombing shall recommence if any one of the following 
conditions is met: the animal is observed exiting the mitigation zone, 
the animal is thought to have exited the mitigation zone based on its 
course and speed, or the mitigation zone has been clear from any 
additional sightings for a period of 10 minutes.
    (3) Cautionary Areas. The following are additional measures the Navy 
shall comply with when conducting training activities in the GOA TMAA 
Study Area:
    (i) The Navy shall avoid training activities using hull-mounted 
surface ship active sonar and explosive detonations within the North 
Pacific Right Whale Cautionary Area, defined as the portion of the NMFS-
identified biologically important feeding area for North Pacific right 
whale overlapping the GOA TMAA, except when required by national 
security needs.
    (ii) In the event of national security needs, the Navy shall seek 
approval in advance from the Commander, U.S. Third Fleet, prior to 
conducting training activities using hull-mounted active sonar or 
explosive detonations within the Cautionary Area.
    (4) Stranding response plan. (i) The Navy shall abide by the letter 
of the ``Stranding Response Plan for the Gulf of Alaska Temporary 
Maritime Activities Area,'' to include the following measures:
    (A) Shutdown procedures. When an Uncommon Stranding Event (USE--
defined in Sec. 218.151) occurs during an MTE in the Study Area, the 
Navy shall implement the procedures described in paragraphs 
(a)(4)(i)(A)(1) through (4) of this section:
    (1) The Navy shall implement a shutdown when advised by a NMFS 
Office of Protected Resources Headquarters Senior Official designated in 
the GOA TMAA Study Area 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 the Navy shall 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, NFMS 
shall 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 mid-frequency active sonar 
training activities or explosive detonations, though farther than 14 
nautical miles from the distressed animal(s), is likely contributing to 
the animals' refusal to return to the open water. If so, NMFS and the 
Navy shall 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 GOA 
TMAA Study Area Communication

[[Page 235]]

Protocol) regarding the location, number and types of acoustic/explosive 
sources, direction and speed of units using mid-frequency active sonar, 
and marine mammal sightings information associated with training 
activities occurring within 80 nautical miles (148 km) and 72 hours 
prior to the USE event. Information not initially available regarding 
the 80-nautical miles (148-km), 72-hour 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.
    (ii) [Reserved]
    (b) [Reserved]



Sec. 218.155  Requirements for monitoring and reporting.

    (a) The Holder of the Authorization must notify NMFS immediately (or 
as soon as operational security considerations allow) if the specified 
activity identified in Sec. 218.150 is thought to have resulted in the 
mortality or injury of any marine mammals, or in any take of marine 
mammals not identified in Sec. 218.152(c).
    (b) The Holder of the LOA must conduct all monitoring and required 
reporting under the LOA, including abiding by the GOA TMAA monitoring 
plan.
    (c) General notification of injured or dead marine mammals. Navy 
personnel shall ensure that NMFS (regional stranding coordinator) is 
notified immediately (or as soon as operational security considerations 
allow) if an injured or dead marine mammal is found by Navy personnel 
during or shortly after, and in the vicinity of, a Navy training 
activity utilizing mid- or high-frequency active sonar, 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). 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 in this paragraph (c) as 
soon as operationally feasible and clearance procedures allow.
    (d) 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), 
and the time of the strike.
    (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.
    (5) Within 2 weeks of the strike, provide NMFS with a detailed 
description of the specific actions of the vessel in the 30-minute 
timeframe immediately preceding the strike, during the event, and 
immediately after the strike (e.g., the speed and changes in speed, the 
direction and changes in direction, other maneuvers, sonar use, etc., if 
not classified); a narrative description of marine mammal sightings 
during the event and immediately after, and any information as to 
sightings prior to the strike, if available; and use established Navy 
shipboard procedures to make a camera available to attempt to capture 
photographs following a ship strike.
    (e) Communication plan. The Navy and NMFS 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 
information described in the notification measures in paragraphs (c) and 
(d) of this section.
    (f) Annual GOA TMAA monitoring report. The Navy shall submit an 
annual report of the GOA TMAA monitoring describing the implementation 
and results from the previous calendar year.

[[Page 236]]

Data collection methods shall be standardized across range complexes and 
study areas to allow for comparison in different geographic locations. 
The report shall be submitted either 90 days after the calendar year, or 
90 days after the conclusion of the monitoring year to be determined by 
the adaptive management process. The GOA TMAA Monitoring Report may be 
provided to NMFS within a larger report that includes the required 
Monitoring Plan reports from multiple range complexes and study areas 
(the multi-Range Complex Annual Monitoring Report). Such a report would 
describe progress of knowledge made with respect to monitoring plan 
study questions across all Navy ranges associated with the Integrated 
Comprehensive Monitoring Program. Similar study questions shall be 
treated together so that progress on each topic shall be summarized 
across all Navy ranges. The report need not include analyses and content 
that does not provide direct assessment of cumulative progress on the 
monitoring plan study questions.
    (g) Annual GOA TMAA exercise reports. Each year, the Navy shall 
submit a preliminary report detailing the status of authorized sound 
sources within 21 days after the anniversary of the date of issuance of 
the LOA. Each year, the Navy shall submit a detailed report within 3 
months after the anniversary of the date of issuance of the LOA. The 
annual report shall contain information on Major Training Exercises 
(MTEs) and a summary of all sound sources used, as described in 
paragraph (g)(3) of this section. The analysis in the detailed report 
shall be based on the accumulation of data from the current year's 
report and data collected from previous the report. The detailed reports 
shall contain information identified in paragraphs (g)(1) through (4) of 
this section.
    (1) MFAS/HFAS Major Training Exercises. This section shall contain 
the following information for Major Training Exercises conducted in the 
GOA TMAA:
    (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 lookouts.
    (H) Total hours of all active sonar source operation.
    (I) Total hours of each active sonar source bin.
    (J) Wave height (high, low, and average during exercise).
    (ii) Individual marine mammal sighting information for each sighting 
in each exercise when mitigation occurred:
    (A) Date/Time/Location of sighting.
    (B) Species (if not possible, indication of whale/dolphin/pinniped).
    (C) Number of individuals.
    (D) Initial Detection Sensor.
    (E) Indication of specific type of platform observation made from 
(including, for example, what type of surface vessel or testing 
platform).
    (F) Length of time observers maintained visual contact with marine 
mammal.
    (G) Sea state.
    (H) Visibility.
    (I) Sound source in use at the time of sighting.
    (J) Indication of whether animal is <200 yd, 200 to 500 yd, 500 to 
1,000 yd, 1,000 to 2,000 yd, or >2,000 yd from sonar source.
    (K) Mitigation implementation. Whether operation of sonar sensor was 
delayed, or sonar was powered or shut down, and how long the delay was.
    (L) If source in use 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).
    (M) Observed behavior. Lookouts 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 if any calves present.
    (iii) An evaluation (based on data gathered during all of the MTEs) 
of the effectiveness of mitigation measures

[[Page 237]]

designed to minimize the received level to which marine mammals may be 
exposed. This evaluation shall identify the specific observations that 
support any conclusions the Navy reaches about the effectiveness of the 
mitigation.
    (2) Summary of sources used. (i) This section shall include the 
following information summarized from the authorized sound sources used 
in all training events:
    (A) Total annual hours or quantity (per the LOA) of each bin of 
sonar or other non-impulsive source; and
    (B) Total annual number of each type of explosive exercises and 
total annual expended/detonated rounds (missiles, bombs, sonobuoys, 
etc.) for each explosive bin.
    (ii) [Reserved]
    (3) Geographic information presentation. The reports shall present 
an annual (and seasonal, where practical) depiction of training 
exercises and testing bin usage geographically across the Study Area.
    (h) MTE prior notification. The Navy shall submit to NMFS (contact 
as specified in the LOA and Stranding Plan) an electronic notice of 
pending MTEs 72 hours prior to the start of the MTE indicating:
    (1) Location of the exercise.
    (2) Beginning and end dates of the exercise.
    (3) Type of exercise.
    (i) Five-year close-out exercise report. This report shall be 
included as part of the 2021 annual exercise report. This report shall 
provide the annual totals for each sound source bin with a comparison to 
the annual allowance and the 5-year total for each sound source bin with 
a comparison to the 5-year allowance. Additionally, if there were any 
changes to the sound source allowance, this report shall include a 
discussion of why the change was made and include the analysis to 
support how the change did or did not result in a change in the SEIS and 
final rule determinations. The report shall be submitted 3 months after 
the expiration of this subpart. NMFS shall submit comments on the draft 
close-out report, if any, within 3 months of receipt. The report shall 
be considered final after the Navy has addressed NMFS' comments, or 3 
months after the submittal of the draft if NMFS does not provide 
comments.



Sec. 218.156  Applications for letters of authorization (LOA).

    To incidentally take marine mammals pursuant to the regulations in 
this subpart, the U.S. citizen (as defined by Sec. 216.106 of this 
chapter) conducting the activity identified in Sec. 218.150(c) (the U.S. 
Navy) must apply for and obtain either an initial LOA in accordance with 
Sec. 218.157 or a renewal under Sec. 218.158.



Sec. 218.157  Letters of authorization (LOA).

    (a) An LOA, unless suspended or revoked, shall be valid for a period 
of time not to exceed the period of validity of this subpart.
    (b) Each LOA 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 LOA 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. 218.158  Renewals and modifications of letters of authorization
(LOA) and adaptive management.

    (a) A letter of authorization issued under Sec. 216.106 of this 
chapter and Sec. 218.157 for the activity identified in Sec. 218.150(c) 
shall be renewed or modified upon request of 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 of this chapter); and
    (2) NMFS determines that the mitigation, monitoring, and reporting 
measures required by the previous LOA

[[Page 238]]

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 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) An LOA issued under Sec. 216.106 of this chapter and 
Sec. 218.157 for the activity identified in Sec. 218.154 may be modified 
by NMFS under the following circumstances:
    (1) Adaptive management. NMFS may modify and augment the existing 
mitigation, monitoring, or reporting 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 the mitigation and monitoring.
    (i) Possible sources of data that could contribute to the decision 
to modify the mitigation, monitoring, and reporting measures in an LOA:
    (A) Results from Navy's monitoring from the previous year(s);
    (B) Results from other marine mammal and/or sound research or 
studies; or
    (C) Any information that reveals marine mammals may have been taken 
in a manner, extent, or number not authorized by these regulations or 
subsequent LOA.
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, NMFS 
would 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 in Sec. 218.152(c), an LOA may be modified 
without prior notification and an opportunity for public comment. 
Notification would be published in the Federal Register within 30 days 
of the action.

Subparts Q-X [Reserved]



PART 219_REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS--Table of Contents



   Subpart A_Taking Marine Mammals Incidental to Southwest Fisheries 
       Science Center Fisheries Research in the California Current

Sec.
219.1  Specified activity and specified geographical region.
219.2  Effective dates.
219.3  Permissible methods of taking.
219.4  Prohibitions.
219.5  Mitigation requirements.
219.6  Requirements for monitoring and reporting.
219.7  Letters of Authorization.
219.8  Renewals and modifications of Letters of Authorization.
219.9-219.10  [Reserved]

   Subpart B_Taking Marine Mammals Incidental to Southwest Fisheries 
    Science Center Fisheries Research in the Eastern Tropical Pacific

219.11  Specified activity and specified geographical region.
219.12  Effective dates.
219.13  Permissible methods of taking.
219.14  Prohibitions.
219.15  Mitigation requirements.
219.16  Requirements for monitoring and reporting.
219.17  Letters of Authorization.
219.18  Renewals and modifications of Letters of Authorization.
219.19-219.20  [Reserved]

   Subpart C_Taking Marine Mammals Incidental to Southwest Fisheries 
           Science Center Fisheries Research in the Antarctic

219.21  Specified activity and specified geographical region.
219.22  Effective dates.
219.23  Permissible methods of taking.
219.24  Prohibitions.
219.25  Mitigation requirements.
219.26  Requirements for monitoring and reporting.
219.27  Letters of Authorization.
219.28  Renewals and modifications of Letters of Authorization.

[[Page 239]]

219.29-219.30  [Reserved]

   Subpart D_Taking Marine Mammals Incidental to Northeast Fisheries 
     Science Center Fisheries Research in the Atlantic Coast Region

219.31  Specified activity and specified geographical region.
219.32  Effective dates.
219.33  Permissible methods of taking.
219.34  Prohibitions.
219.35  Mitigation requirements.
219.36  Requirements for monitoring and reporting.
219.37  Letters of Authorization.
219.38  Renewals and modifications of Letters of Authorization.
219.39-219.40  [Reserved]

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

    Effective Date Note: At 80 FR 59004, Sept. 30, 2015, part 219 was 
added, effective Oct. 30, 2015, through Oct. 30, 2020.



   Subpart A_Taking Marine Mammals Incidental to Southwest Fisheries 
       Science Center Fisheries Research in the California Current



Sec. 219.1  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the National Marine 
Fisheries Service's (NMFS) Southwest Fisheries Science Center (SWFSC) 
and those persons it authorizes or funds 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 occurs incidental to research 
survey program operations.
    (b) The taking of marine mammals by SWFSC may be authorized in a 
Letter of Authorization (LOA) only if it occurs within the California 
Current Ecosystem.



Sec. 219.2  Effective dates.

    Regulations in this subpart are effective October 30, 2015, through 
October 30, 2020.



Sec. 219.3  Permissible methods of taking.

    (a) Under LOAs issued pursuant to Sec. 216.106 and Sec. 219.7 of 
this chapter, the Holder of the LOA (hereinafter ``SWFSC'') may 
incidentally, but not intentionally, take marine mammals within the area 
described in Sec. 219.1(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 in Sec. 219.1(a) of this chapter is limited to the indicated 
number of takes on an annual basis (by Level B harassment) or over the 
five-year period of validity of these regulations (by mortality) of the 
following species:
    (1) Level B harassment:
    (i) Cetaceans:
    (A) Gray whale (Eschrichtius robustus)--346;
    (B) Humpback whale (Megaptera novaeangliae)--14;
    (C) Minke whale (Balaenoptera acutorostrata)--13;
    (D) Sei whale (Balaenoptera borealis)--1;
    (E) Fin whale (Balaenoptera physalus)--33;
    (F) Blue whale (Balaenoptera musculus)--24;
    (G) Sperm whale (Physeter macrocephalus)--65;
    (H) Pygmy or dwarf sperm whale (Kogia spp.)--42;
    (I) Cuvier's beaked whale (Ziphius cavirostris)--146;
    (J) Baird's beaked whale (Berardius bairdii)--34;
    (K) Hubbs', Blainville's, ginkgo-toothed, Perrin's, lesser, or 
Stejneger's beaked whales (Mesoplodon spp.)--40;
    (L) Bottlenose dolphin (Tursiops truncatus)--32;
    (M) Striped dolphin (Stenella coeruleoalba)--301;
    (N) Long-beaked common dolphin (Delphinis capensis)--348;
    (O) Short-beaked common dolphin (Delphinis delphis)--5,592;
    (P) Pacific white-sided dolphin (Lagenorhynchus obliquidens)--378;
    (Q) Northern right whale dolphin (Lissodelphis borealis)--176;
    (R) Risso's dolphin (Grampus griseus)--188;
    (S) Killer whale (Orcinus orca)--13;
    (T) Short-finned pilot whale (Globicephala macrorhynchus)--12;
    (U) Harbor porpoise (Phocoena phocoena)--682; and
    (V) Dall's porpoise (Phocoenoides dalli)--1,365.
    (ii) Pinnipeds:

[[Page 240]]

    (A) Guadalupe fur seal (Arctocephalus philippii townsendi)--134;
    (B) Northern fur seal (Callorhinus ursinus), California stock--236;
    (C) Northern fur seal, Pribilof Islands/Eastern Pacific stock--
11,555;
    (D) California sea lion (Zalophus californianus)--4,302;
    (E) Steller sea lion (Eumetopias jubatus)--1,055;
    (F) Harbor seal (Phoca vitulina)--910; and
    (G) Northern elephant seal (Mirounga angustirostris)--4,743.
    (2) Mortality (midwater trawl gear only):
    (i) Cetaceans:
    (A) Bottlenose dolphin (California, Oregon, and Washington offshore 
stock)--8;
    (B) Bottlenose dolphin (California coastal stock)--3;
    (C) Striped dolphin--11;
    (D) Long-beaked common dolphin--11;
    (E) Short-beaked common dolphin--11;
    (F) Pacific white-sided dolphin--35;
    (G) Northern right whale dolphin--10;
    (H) Risso's dolphin--11;
    (I) Harbor porpoise--5;
    (J) Dall's porpoise--5;
    (K) Unidentified cetacean (Family Delphinidae or Family 
Phocoenidae)--1.
    (ii) Pinnipeds:
    (A) Northern fur seal--5;
    (B) California sea lion--20;
    (C) Steller sea lion--9;
    (D) Harbor seal--9;
    (E) Northern elephant seal--5; and
    (F) Unidentified pinniped--1.
    (3) Mortality (pelagic longline gear only):
    (i) Cetaceans:
    (A) Pygmy or dwarf sperm whale--1;
    (B) Bottlenose dolphin--1;
    (C) Striped dolphin--1;
    (D) Long-beaked common dolphin--1;
    (E) Short-beaked common dolphin--1;
    (F) Risso's dolphin--1; and
    (G) Short-finned pilot whale--1.
    (ii) Pinnipeds:
    (A) California sea lion--5;
    (B) Steller sea lion--1; and
    (C) Unidentified pinniped--1.



Sec. 219.4  Prohibitions.

    Notwithstanding takings contemplated in Sec. 219.1 of this chapter 
and authorized by a LOA issued under Secs. 216.106 and 219.7 of this 
chapter, no person in connection with the activities described in 
Sec. 219.1 of this chapter may:
    (a) Take any marine mammal not specified in Sec. 219.3(b) of this 
chapter;
    (b) Take any marine mammal specified in Sec. 219.3(b) of this 
chapter in any manner other than as specified;
    (c) Take a marine mammal specified in Sec. 219.3(b) of this chapter 
if NMFS determines such taking results in more than a negligible impact 
on the species or stocks of such marine mammal;
    (d) Take a marine mammal specified in Sec. 219.3(b) of this chapter 
if NMFS determines such taking results in an unmitigable adverse impact 
on the species or stock of such marine mammal for taking for subsistence 
uses; or
    (e) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or a LOA issued under Secs. 216.106 and 
219.7 of this chapter.



Sec. 219.5  Mitigation requirements.

    When conducting the activities identified in Sec. 219.1(a) of this 
chapter, the mitigation measures contained in any LOA issued under 
Secs. 216.106 and 219.7 of this chapter must be implemented. These 
mitigation measures shall include but are not limited to:
    (a) General conditions:
    (1) SWFSC shall take all necessary measures to coordinate and 
communicate in advance of each specific survey with the National Oceanic 
and Atmospheric Administration's (NOAA) Office of Marine and Aviation 
Operations (OMAO) or other relevant parties on non-NOAA platforms to 
ensure that all mitigation measures and monitoring requirements 
described herein, as well as the specific manner of implementation and 
relevant event-contingent decision-making processes, are clearly 
understood and agreed upon.
    (2) SWFSC shall coordinate and conduct briefings at the outset of 
each survey and as necessary between ship's crew (Commanding Officer/
master or

[[Page 241]]

designee(s), as appropriate) and scientific party in order to explain 
responsibilities, communication procedures, marine mammal monitoring 
protocol, and operational procedures.
    (3) SWFSC shall coordinate as necessary on a daily basis during 
survey cruises with OMAO personnel or other relevant personnel on non-
NOAA platforms to ensure that requirements, procedures, and decision-
making processes are understood and properly implemented.
    (4) When deploying any type of sampling gear at sea, SWFSC shall at 
all times monitor for any unusual circumstances that may arise at a 
sampling site and use best professional judgment to avoid any potential 
risks to marine mammals during use of all research equipment.
    (5) SWFSC shall implement handling and/or disentanglement protocols 
as specified in guidance provided to SWFSC survey personnel.
    (b) Midwater trawl survey protocols:
    (1) SWFSC shall conduct trawl operations as soon as is practicable 
upon arrival at the sampling station.
    (2) SWFSC shall initiate marine mammal watches (visual observation) 
no less than thirty minutes prior to sampling. Marine mammal watches 
shall be conducted by scanning the surrounding waters with the naked eye 
and rangefinding binoculars (or monocular). During nighttime operations, 
visual observation shall be conducted using the naked eye and available 
vessel lighting.
    (3) SWFSC shall implement the move-on rule. If one or more marine 
mammals are observed within 1 nm of the planned location in the thirty 
minutes before setting the trawl gear, SWFSC shall transit to a 
different section of the sampling area to maintain a minimum set 
distance of 1 nm from the observed marine mammals. If, after moving on, 
marine mammals remain within 1 nm, SWFSC may decide to move again or to 
skip the station. SWFSC may use best professional judgment in making 
this decision but may not elect to conduct midwater trawl survey 
activity when animals remain within the 1-nm zone.
    (4) SWFSC shall maintain visual monitoring effort during the entire 
period of time that midwater trawl gear is in the water (i.e., 
throughout gear deployment, fishing, and retrieval). If marine mammals 
are sighted before the gear is fully removed from the water, SWFSC shall 
take the most appropriate action to avoid marine mammal interaction. 
SWFSC may use best professional judgment in making this decision.
    (5) If trawling operations have been suspended because of the 
presence of marine mammals, SWFSC may resume trawl operations when 
practicable only when the animals are believed to have departed the 1 nm 
area. SWFSC may use best professional judgment in making this 
determination.
    (6) SWFSC shall implement standard survey protocols to minimize 
potential for marine mammal interactions, including maximum tow 
durations at target depth and maximum tow distance, and shall carefully 
empty the trawl as quickly as possible upon retrieval. Trawl nets must 
be cleaned prior to deployment.
    (7) SWFSC must install and use a marine mammal excluder device at 
all times when the Nordic 264 trawl net or other net for which the 
device is appropriate is used.
    (8) SWFSC must install and use acoustic deterrent devices whenever 
any midwater trawl net is used, with two to four devices placed along 
the footrope and/or headrope of the net. SWFSC must ensure that the 
devices are operating properly before deploying the net.
    (c) Pelagic longline survey protocols:
    (1) SWFSC shall deploy longline gear as soon as is practicable upon 
arrival at the sampling station.
    (2) SWFSC shall initiate marine mammal watches (visual observation) 
no less than thirty minutes prior to both deployment and retrieval of 
the longline gear. Marine mammal watches shall be conducted by scanning 
the surrounding waters with the naked eye and rangefinding binoculars 
(or monocular). During nighttime operations, visual observation shall be 
conducted using the naked eye and available vessel lighting.
    (3) SWFSC shall implement the move-on rule. If one or more marine 
mammals are observed within 1 nm of

[[Page 242]]

the planned location in the thirty minutes before gear deployment, SWFSC 
shall transit to a different section of the sampling area to maintain a 
minimum set distance of 1 nm from the observed marine mammals. If, after 
moving on, marine mammals remain within 1 nm, SWFSC may decide to move 
again or to skip the station. SWFSC may use best professional judgment 
in making this decision but may not elect to conduct pelagic longline 
survey activity when animals remain within the 1-nm zone. Implementation 
of the move-on rule is not required upon observation of five or fewer 
California sea lions.
    (4) SWFSC shall maintain visual monitoring effort during the entire 
period of gear deployment and retrieval. If marine mammals are sighted 
before the gear is fully deployed or retrieved, SWFSC shall take the 
most appropriate action to avoid marine mammal interaction. SWFSC may 
use best professional judgment in making this decision.
    (5) If deployment or retrieval operations have been suspended 
because of the presence of marine mammals, SWFSC may resume such 
operations when practicable only when the animals are believed to have 
departed the 1 nm area. SWFSC may use best professional judgment in 
making this decision.
    (6) SWFSC shall implement standard survey protocols, including 
maximum soak durations and a prohibition on chumming.



Sec. 219.6  Requirements for monitoring and reporting.

    (a) Visual monitoring program:
    (1) Dedicated marine mammal visual monitoring, conducted by trained 
SWFSC personnel with no other responsibilities during the monitoring 
period, shall occur:
    (i) For a minimum of thirty minutes prior to deployment of midwater 
trawl and pelagic longline gear;
    (ii) Throughout deployment of gear and active fishing of midwater 
trawl gear;
    (iii) For a minimum of thirty minutes prior to retrieval of pelagic 
longline gear; and
    (iv) Throughout retrieval of all research gear.
    (2) Marine mammal watches shall be conducted by watch-standers 
(those navigating the vessel and/or other crew) at all times when the 
vessel is being operated.
    (b) Marine mammal excluder device (MMED)--SWFSC shall conduct an 
evaluation of the feasibility of MMED development for the modified-Cobb 
midwater trawl net.
    (c) Analysis of bycatch patterns--SWFSC shall conduct an analysis of 
past bycatch patterns in order to better understand what factors might 
increase the likelihood of incidental take in research survey gear. This 
shall include an analysis of research trawl data for any link between 
trawl variables and observed marine mammal bycatch, as well as a review 
of historical fisheries research data to determine whether sufficient 
data exist for similar analysis.
    (d) Training:
    (1) SWFSC must conduct annual training for all chief scientists and 
other personnel who may be responsible for conducting dedicated marine 
mammal visual observations to explain mitigation measures and monitoring 
and reporting requirements, mitigation and monitoring protocols, marine 
mammal identification, completion of datasheets, and use of equipment. 
SWFSC may determine the agenda for these trainings.
    (2) SWFSC shall also dedicate a portion of training to discussion of 
best professional judgment, including use in any incidents of marine 
mammal interaction and instructive examples where use of best 
professional judgment was determined to be successful or unsuccessful.
    (3) SWFSC shall coordinate with NMFS' Northwest Fisheries Science 
Center (NWFSC) regarding surveys conducted in the California Current 
Ecosystem, such that training and guidance related to handling 
procedures and data collection is consistent.
    (e) Handling procedures and data collection:
    (1) SWFSC must develop and implement standardized marine mammal 
handling, disentanglement, and data collection procedures. These 
standard

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procedures will be subject to approval by NMFS' Office of Protected 
Resources (OPR).
    (2) When practicable, for any marine mammal interaction involving 
the release of a live animal, SWFSC shall collect necessary data to 
facilitate a serious injury determination.
    (3) SWFSC shall provide its relevant personnel with standard 
guidance and training regarding handling of marine mammals, including 
how to identify different species, bring an individual aboard a vessel, 
assess the level of consciousness, remove fishing gear, return an 
individual to water, and log activities pertaining to the interaction.
    (4) SWFSC shall record such data on standardized forms, which will 
be subject to approval by OPR. SWFSC shall also answer a standard series 
of supplemental questions regarding the details of any marine mammal 
interaction.
    (f) Reporting:
    (1) SWFSC shall report all incidents of marine mammal interaction to 
NMFS' Protected Species Incidental Take database within 48 hours of 
occurrence, and shall provide supplemental information to OPR upon 
request. Information related to marine mammal interaction (animal 
captured or entangled in research gear) must include details of survey 
effort, full descriptions of any observations of the animals, the 
context (vessel and conditions), decisions made, and rationale for 
decisions made in vessel and gear handling.
    (2) Annual reporting:
    (i) SWFSC shall submit an annual summary report to OPR not later 
than ninety days following the end of a given year. SWFSC shall provide 
a final report within thirty days following resolution of comments on 
the draft report.
    (ii) These reports shall contain, at minimum, the following:
    (A) Annual line-kilometers surveyed during which the EK60, ME70, 
SX90 (or equivalent sources) were predominant and associated pro-rated 
estimates of actual take;
    (B) Summary information regarding use of all longline (including 
bottom and vertical lines) and trawl (including bottom trawl) gear, 
including number of sets, hook hours, tows, etc., specific to each gear;
    (C) Accounts of all incidents of marine mammal interactions, 
including circumstances of the event, descriptions of any mitigation 
procedures implemented or not implemented and why, and, for interactions 
due to use of pelagic longline, whether the move-on rule was waived due 
to the presence of five or fewer California sea lions;
    (D) A written evaluation of the effectiveness of SWFSC mitigation 
strategies in reducing the number of marine mammal interactions with 
survey gear, including best professional judgment and suggestions for 
changes to the mitigation strategies, if any, and an assessment of the 
practice of discarding spent bait relative to interactions with pelagic 
longline, if any;
    (E) Final outcome of serious injury determinations for all incidents 
of marine mammal interactions where the animal(s) were released alive;
    (F) Updates as appropriate regarding the development/implementation 
of MMEDs and analysis of bycatch patterns; and
    (G) A summary of all relevant training provided by SWFSC and any 
coordination with NWFSC or NMFS' West Coast Regional Office.
    (g) Reporting of injured or dead marine mammals:
    (1) In the unanticipated event that the activity defined in 
Sec. 219.1(a) of this chapter clearly causes the take of a marine mammal 
in a prohibited manner, SWFSC personnel engaged in the research activity 
shall immediately cease such activity until such time as an appropriate 
decision regarding activity continuation can be made by the SWFSC 
Director (or designee). The incident must be reported immediately to OPR 
and the West Coast Regional Stranding Coordinator, NMFS. OPR will review 
the circumstances of the prohibited take and work with SWFSC to 
determine what measures are necessary to minimize the likelihood of 
further prohibited take and ensure MMPA compliance. The immediate 
decision made by SWFSC regarding continuation of the specified activity 
is subject to OPR concurrence. The report must include the following 
information:

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    (i) Time, date, and location (latitude/longitude) of the incident;
    (ii) Description of the incident;
    (iii) Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, visibility);
    (iv) Description of all marine mammal observations in the 24 hours 
preceding the incident;
    (v) Species identification or description of the animal(s) involved;
    (vi) Status of all sound source use in the 24 hours preceding the 
incident;
    (vii) Water depth;
    (viii) Fate of the animal(s); and
    (ix) Photographs or video footage of the animal(s).
    (2) In the event that SWFSC discovers an injured or dead marine 
mammal and determines that the cause of the injury or death is unknown 
and the death is relatively recent (e.g., in less than a moderate state 
of decomposition), SWFSC shall immediately report the incident to OPR 
and the West Coast Regional Stranding Coordinator, NMFS. The report must 
include the information identified in Sec. 219.6(g)(1) of this section. 
Activities may continue while OPR reviews the circumstances of the 
incident. OPR will work with SWFSC to determine whether additional 
mitigation measures or modifications to the activities are appropriate.
    (3) In the event that SWFSC discovers an injured or dead marine 
mammal and determines that the injury or death is not associated with or 
related to the activities defined in Sec. 219.1(a) of this chapter 
(e.g., previously wounded animal, carcass with moderate to advanced 
decomposition, scavenger damage), SWFSC shall report the incident to OPR 
and the West Coast Regional Stranding Coordinator, NMFS, within 24 hours 
of the discovery. SWFSC shall provide photographs or video footage or 
other documentation of the stranded animal sighting to OPR.



Sec. 219.7  Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, SWFSC must apply for and obtain an LOA.
    (b) An 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, SWFSC may apply for and obtain a renewal of the LOA.
    (d) In the event of projected changes to the activity or to 
mitigation and monitoring measures required by an LOA, SWFSC must apply 
for and obtain a modification of the LOA as described in Sec. 219.8 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 an LOA shall be published in the 
Federal Register within thirty days of a determination.



Sec. 219.8  Renewals and modifications of Letters of Authorization.

    (a) An LOA issued under Secs. 216.106 and 219.7 of this chapter for 
the activity identified in Sec. 219.1(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 in Sec. 219.8(c)(1) 
of this chapter), and
    (2) OPR determines that the mitigation, monitoring, and reporting 
measures required by the previous LOA under these regulations were 
implemented.
    (b) For an 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 in Sec. 219.8(c)(1) of this chapter) that do not

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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), OPR 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) An LOA issued under Secs. 216.106 and 219.7 of this chapter for 
the activity identified in Sec. 219.1(a) of this chapter may be modified 
by OPR under the following circumstances:
    (1) Adaptive Management--OPR may modify (including augment) the 
existing mitigation, monitoring, or reporting measures (after consulting 
with SWFSC 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 SWFSC'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, OPR will 
publish a notice of proposed LOA in the Federal Register and solicit 
public comment.
    (2) Emergencies--If OPR determines that an emergency exists that 
poses a significant risk to the well-being of the species or stocks of 
marine mammals specified in Sec. 219.2(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 thirty days of the 
action.



Secs. 219.9-219.10  [Reserved]



   Subpart B_Taking Marine Mammals Incidental to Southwest Fisheries 
    Science Center Fisheries Research in the Eastern Tropical Pacific



Sec. 219.11  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the National Marine 
Fisheries Service's (NMFS) Southwest Fisheries Science Center (SWFSC) 
and those persons it authorizes or funds 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 occurs incidental to research 
survey program operations.
    (b) The taking of marine mammals by SWFSC may be authorized in a 
Letter of Authorization (LOA) only if it occurs within the Eastern 
Tropical Pacific.



Sec. 219.12  Effective dates.

    Regulations in this subpart are effective October 30, 2015, through 
October 30, 2020.



Sec. 219.13  Permissible methods of taking.

    (a) Under LOAs issued pursuant to Secs. 216.106 and 219.17 of this 
chapter, the Holder of the LOA (hereinafter ``SWFSC'') may incidentally, 
but not intentionally, take marine mammals within the area described in 
Sec. 219.11(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 in Sec. 219.11(a) of this chapter is limited to the indicated 
number of takes on an annual basis (by Level B harassment) or over the 
five-year period of validity of these regulations (by mortality) of the 
following species:
    (1) Level B harassment:
    (i) Cetaceans:
    (A) Humpback whale (Megaptera novaeangliae)--1;
    (B) Bryde's whale (Balaenoptera edeni)--4;

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    (C) Blue whale (Balaenoptera musculus)--2;
    (D) Sperm whale (Physeter macrocephalus)--4;
    (E) Dwarf sperm whale (Kogia sima)--14;
    (F) Cuvier's beaked whale (Ziphius cavirostris)--24;
    (G) Longman's beaked whale (Indopacetus pacificus)--1;
    (H) Blainville's, ginkgo-toothed, or lesser beaked whales 
(Mesoplodon spp.)--30;
    (I) Rough-toothed dolphin (Steno bredanensis)--45;
    (J) Bottlenose dolphin (Tursiops truncatus)--139;
    (K) Striped dolphin (Stenella coeruleoalba)--401;
    (L) Pantropical spotted dolphin (Stenella attenuata)--1,088;
    (M) Spinner dolphin (Stenella longirostris)--442;
    (N) Long-beaked common dolphin (Delphinis capensis)--173;
    (O) Short-beaked common dolphin (Delphinis delphis)--1,300;
    (P) Fraser's dolphin (Lagenodelphis hosei)--121;
    (Q) Dusky dolphin (Lagenorhynchus obscurus)--18;
    (R) Risso's dolphin (Grampus griseus)--46;
    (S) Melon-headed whale (Peponocephala electra)--19;
    (T) Pygmy killer whale (Feresa attenuata)--17;
    (U) False killer whale (Pseudorca crassidens)--17;
    (V) Killer whale (Orcinus orca)--3; and
    (W) Short-finned pilot whale (Globicephala macrorhynchus)--723.
    (ii) Pinnipeds:
    (A) Guadalupe fur seal (Arctocephalus philippii townsendi)--66;
    (B) California sea lion (Zalophus californianus)--1,442;
    (C) South American sea lion (Otaria byronia)--1,442; and
    (D) Northern elephant seal (Mirounga angustirostris)--3,248.
    (2) Mortality (pelagic longline gear only):
    (i) Cetaceans:
    (A) Dwarf sperm whale--1;
    (B) Rough-toothed dolphin--1;
    (C) Bottlenose dolphin--1;
    (D) Striped dolphin--1;
    (E) Pantropical spotted dolphin--1;
    (F) Long-beaked common dolphin--1;
    (G) Short-beaked common dolphin--1;
    (H) Risso's dolphin--1;
    (I) False killer whale--1; and
    (J) Short-finned pilot whale--1.
    (ii) Pinnipeds:
    (A) California sea lion--5;
    (B) South American sea lion--5; and
    (C) Unidentified pinniped--1.



Sec. 219.14  Prohibitions.

    Notwithstanding takings contemplated in Sec. 219.11 of this chapter 
and authorized by a LOA issued under Secs. 216.106 and 219.17 of this 
chapter, no person in connection with the activities described in 
Sec. 219.11 of this chapter may:
    (a) Take any marine mammal not specified in Sec. 219.13(b) of this 
chapter;
    (b) Take any marine mammal specified in Sec. 219.13(b) of this 
chapter in any manner other than as specified;
    (c) Take a marine mammal specified in Sec. 219.13(b) of this chapter 
if NMFS determines such taking results in more than a negligible impact 
on the species or stocks of such marine mammal;
    (d) Take a marine mammal specified in Sec. 219.13(b) of this chapter 
if NMFS determines such taking results in an unmitigable adverse impact 
on the species or stock of such marine mammal for taking for subsistence 
uses; or
    (e) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or a LOA issued under Secs. 216.106 and 
219.17 of this chapter.



Sec. 219.15  Mitigation requirements.

    When conducting the activities identified in Sec. 219.11(a) of this 
chapter, the mitigation measures contained in any LOA issued under 
Secs. 216.106 and 219.17 of this chapter must be implemented. These 
mitigation measures shall include but are not limited to:
    (a) General conditions:
    (1) SWFSC shall take all necessary measures to coordinate and 
communicate in advance of each specific survey with the National Oceanic 
and Atmospheric Administration's (NOAA) Office of Marine and Aviation 
Operations (OMAO) or other relevant parties on non-NOAA platforms to 
ensure

[[Page 247]]

that all mitigation measures and monitoring requirements described 
herein, as well as the specific manner of implementation and relevant 
event-contingent decision-making processes, are clearly understood and 
agreed upon.
    (2) SWFSC shall coordinate and conduct briefings at the outset of 
each survey and as necessary between ship's crew (Commanding Officer/
master or designee(s), as appropriate) and scientific party in order to 
explain responsibilities, communication procedures, marine mammal 
monitoring protocol, and operational procedures.
    (3) SWFSC shall coordinate as necessary on a daily basis during 
survey cruises with OMAO personnel or other relevant personnel on non-
NOAA platforms to ensure that requirements, procedures, and decision-
making processes are understood and properly implemented.
    (4) When deploying any type of sampling gear at sea, SWFSC shall at 
all times monitor for any unusual circumstances that may arise at a 
sampling site and use best professional judgment to avoid any potential 
risks to marine mammals during use of all research equipment.
    (5) SWFSC shall implement handling and/or disentanglement protocols 
as specified in guidance provided to SWFSC survey personnel.
    (b) Pelagic longline survey protocols:
    (1) SWFSC shall deploy longline gear as soon as is practicable upon 
arrival at the sampling station.
    (2) SWFSC shall initiate marine mammal watches (visual observation) 
no less than thirty minutes prior to both deployment and retrieval of 
the longline gear. Marine mammal watches shall be conducted by scanning 
the surrounding waters with the naked eye and rangefinding binoculars 
(or monocular). During nighttime operations, visual observation shall be 
conducted using the naked eye and available vessel lighting.
    (3) SWFSC shall implement the move-on rule. If one or more marine 
mammals are observed within 1 nm of the planned location in the thirty 
minutes before gear deployment, SWFSC shall transit to a different 
section of the sampling area to maintain a minimum set distance of 1 nm 
from the observed marine mammals. If, after moving on, marine mammals 
remain within 1 nm, SWFSC may decide to move again or to skip the 
station. SWFSC may use best professional judgment in making this 
decision but may not elect to conduct pelagic longline survey activity 
when animals remain within the 1-nm zone.
    (4) SWFSC shall maintain visual monitoring effort during the entire 
period of gear deployment and retrieval. If marine mammals are sighted 
before the gear is fully deployed or retrieved, SWFSC shall take the 
most appropriate action to avoid marine mammal interaction. SWFSC may 
use best professional judgment in making this decision.
    (5) If deployment or retrieval operations have been suspended 
because of the presence of marine mammals, SWFSC may resume such 
operations when practicable only when the animals are believed to have 
departed the 1 nm area. SWFSC may use best professional judgment in 
making this determination.
    (6) SWFSC shall implement standard survey protocols, including 
maximum soak durations and a prohibition on chumming.



Sec. 219.16  Requirements for monitoring and reporting.

    (a) Visual monitoring program:
    (1) Dedicated marine mammal visual monitoring, conducted by trained 
SWFSC personnel with no other responsibilities during the monitoring 
period, shall occur:
    (i) For a minimum of thirty minutes prior to deployment of pelagic 
longline gear;
    (ii) Throughout deployment of gear;
    (iii) For a minimum of thirty minutes prior to retrieval of pelagic 
longline gear; and
    (iv) Throughout retrieval of all research gear.
    (2) Marine mammal watches shall be conducted by watch-standers 
(those navigating the vessel and/or other crew) at all times when the 
vessel is being operated.
    (b) Training:
    (1) SWFSC must conduct annual training for all chief scientists and

[[Page 248]]

other personnel who may be responsible for conducting dedicated marine 
mammal visual observations to explain mitigation measures and monitoring 
and reporting requirements, mitigation and monitoring protocols, marine 
mammal identification, completion of datasheets, and use of equipment. 
SWFSC may determine the agenda for these trainings.
    (2) SWFSC shall also dedicate a portion of training to discussion of 
best professional judgment, including use in any incidents of marine 
mammal interaction and instructive examples where use of best 
professional judgment was determined to be successful or unsuccessful.
    (c) Handling procedures and data collection:
    (1) SWFSC must develop and implement standardized marine mammal 
handling, disentanglement, and data collection procedures. These 
standard procedures will be subject to approval by NMFS' Office of 
Protected Resources (OPR).
    (2) When practicable, for any marine mammal interaction involving 
the release of a live animal, SWFSC shall collect necessary data to 
facilitate a serious injury determination.
    (3) SWFSC shall provide its relevant personnel with standard 
guidance and training regarding handling of marine mammals, including 
how to identify different species, bring an individual aboard a vessel, 
assess the level of consciousness, remove fishing gear, return an 
individual to water, and log activities pertaining to the interaction.
    (4) SWFSC shall record such data on standardized forms, which will 
be subject to approval by OPR. SWFSC shall also answer a standard series 
of supplemental questions regarding the details of any marine mammal 
interaction.
    (d) Reporting:
    (1) SWFSC shall report all incidents of marine mammal interaction to 
NMFS' Protected Species Incidental Take database within 48 hours of 
occurrence, and shall provide supplemental information to OPR upon 
request. Information related to marine mammal interaction (animal 
captured or entangled in research gear) must include details of survey 
effort, full descriptions of any observations of the animals, the 
context (vessel and conditions), decisions made, and rationale for 
decisions made in vessel and gear handling.
    (2) Annual reporting:
    (i) SWFSC shall submit an annual summary report to OPR not later 
than ninety days following the end of a given year. SWFSC shall provide 
a final report within thirty days following resolution of comments on 
the draft report.
    (ii) These reports shall contain, at minimum, the following:
    (A) Annual line-kilometers surveyed during which the EK60, ME70, 
SX90 (or equivalent sources) were predominant and associated pro-rated 
estimates of actual take;
    (B) Summary information regarding use of all longline gear, 
including number of sets, hook hours, etc.;
    (C) Accounts of all incidents of marine mammal interactions, 
including circumstances of the event and descriptions of any mitigation 
procedures implemented or not implemented and why;
    (D) A written evaluation of the effectiveness of SWFSC mitigation 
strategies in reducing the number of marine mammal interactions with 
survey gear, including best professional judgment and suggestions for 
changes to the mitigation strategies, if any; and an assessment of the 
practice of discarding spent bait relative to interactions with pelagic 
longline, if any;
    (E) Final outcome of serious injury determinations for all incidents 
of marine mammal interactions where the animal(s) were released alive; 
and
    (F) A summary of all relevant training provided by SWFSC.
    (e) Reporting of injured or dead marine mammals:
    (1) In the unanticipated event that the activity defined in 
Sec. 219.1(a) of this chapter clearly causes the take of a marine mammal 
in a prohibited manner, SWFSC personnel engaged in the research activity 
shall immediately cease such activity until such time as an appropriate 
decision regarding activity continuation can be made by the SWFSC 
Director (or designee). The incident must be reported immediately to 
OPR. OPR will review the circumstances of the prohibited take and

[[Page 249]]

work with SWFSC to determine what measures are necessary to minimize the 
likelihood of further prohibited take and ensure MMPA compliance. The 
immediate decision made by SWFSC regarding continuation of the specified 
activity is subject to OPR concurrence. The report must include the 
following information:
    (i) Time, date, and location (latitude/longitude) of the incident;
    (ii) Description of the incident;
    (iii) Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, visibility);
    (iv) Description of all marine mammal observations in the 24 hours 
preceding the incident;
    (v) Species identification or description of the animal(s) involved;
    (vi) Status of all sound source use in the 24 hours preceding the 
incident;
    (vii) Water depth;
    (viii) Fate of the animal(s); and
    (ix) Photographs or video footage of the animal(s).
    (2) In the event that SWFSC discovers an injured or dead marine 
mammal and determines that the cause of the injury or death is unknown 
and the death is relatively recent (e.g., in less than a moderate state 
of decomposition), SWFSC shall immediately report the incident to OPR. 
The report must include the same information identified in 
Sec. 219.16(e)(1) of this section. Activities may continue while OPR 
reviews the circumstances of the incident. OPR will work with SWFSC to 
determine whether additional mitigation measures or modifications to the 
activities are appropriate.
    (3) In the event that SWFSC discovers an injured or dead marine 
mammal and determines that the injury or death is not associated with or 
related to the activities defined in Sec. 219.11(a) of this chapter 
(e.g., previously wounded animal, carcass with moderate to advanced 
decomposition, scavenger damage), SWFSC shall report the incident to OPR 
within 24 hours of the discovery. SWFSC shall provide photographs or 
video footage or other documentation of the stranded animal sighting to 
OPR.



Sec. 219.17  Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, SWFSC must apply for and obtain an LOA.
    (b) An 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, SWFSC may apply for and obtain a renewal of the LOA.
    (d) In the event of projected changes to the activity or to 
mitigation and monitoring measures required by an LOA, SWFSC must apply 
for and obtain a modification of the LOA as described in Sec. 219.18 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 an LOA shall be published in the 
Federal Register within thirty days of a determination.



Sec. 219.18  Renewals and modifications of Letters of Authorization.

    (a) An LOA issued under Secs. 216.106 and 219.17 of this chapter for 
the activity identified in Sec. 219.11(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 in Sec. 219.18(c)(1) 
of this chapter), and
    (2) OPR determines that the mitigation, monitoring, and reporting 
measures required by the previous LOA

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under these regulations were implemented.
    (b) For an 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 in Sec. 219.18(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), OPR 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) An LOA issued under Secs. 216.106 and 219.17 of this chapter for 
the activity identified in Sec. 219.11(a) of this chapter may be 
modified by OPR under the following circumstances:
    (1) Adaptive Management--OPR may modify (including augment) the 
existing mitigation, monitoring, or reporting measures (after consulting 
with SWFSC 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 SWFSC'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, OPR will 
publish a notice of proposed LOA in the Federal Register and solicit 
public comment.
    (2) Emergencies--If OPR determines that an emergency exists that 
poses a significant risk to the well-being of the species or stocks of 
marine mammals specified in Sec. 219.12(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 thirty days of 
the action.



Secs. 219.19-219.20  [Reserved]



   Subpart C_Taking Marine Mammals Incidental to Southwest Fisheries 
           Science Center Fisheries Research in the Antarctic



Sec. 219.21  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the National Marine 
Fisheries Service's (NMFS) Southwest Fisheries Science Center (SWFSC) 
and those persons it authorizes or funds 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 occurs incidental to research 
survey program operations.
    (b) The taking of marine mammals by SWFSC may be authorized in a 
Letter of Authorization (LOA) only if it occurs within the Antarctic 
Marine Living Resources Ecosystem.



Sec. 219.22  Effective dates.

    Regulations in this subpart are effective October 30, 2015, through 
October 30, 2020.



Sec. 219.23  Permissible methods of taking.

    (a) Under LOAs issued pursuant to Secs. 216.106 and 219.27 of this 
chapter, the Holder of the LOA (hereinafter ``SWFSC'') may incidentally, 
but not intentionally, take marine mammals within the area described in 
Sec. 219.21(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 in Sec. 219.21(a) of this chapter is limited to the indicated 
number of takes on an annual basis of the following species and is 
limited to Level B harassment:
    (1) Cetaceans:
    (i) Southern right whale (Eubalaena australis)--1;

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    (ii) Humpback whale (Megaptera novaeangliae)--92;
    (iii) Antarctic minke whale (Balaenoptera bonaerensis)--6;
    (iv) Fin whale (Balaenoptera physalus)--114;
    (v) Sperm whale (Physeter macrocephalus)--3;
    (vi) Arnoux' beaked whale (Berardius arnuxii)--37;
    (vii) Southern bottlenose whale (Hyperoodon planifrons)--37;
    (viii) Hourglass dolphin (Lagenorhynchus cruciger)--12;
    (ix) Killer whale (Orcinus orca)--11;
    (x) Long-finned pilot whale (Globicephala melas)--43; and
    (xi) Spectacled porpoise (Phocoena dioptrica)--12.
    (2) Pinnipeds:
    (i) Antarctic fur seal (Arctocephalus philippii townsendi)--553;
    (ii) Southern elephant seal (Mirounga leonina)--6;
    (iii) Weddell seal (Leptonychotes weddellii)--4;
    (iv) Crabeater seal (Lobodon carcinophaga)--7; and
    (v) Leopard seal (Hydrurga leptonyx)--5.



Sec. 219.24  Prohibitions.

    Notwithstanding takings contemplated in Sec. 219.21 of this chapter 
and authorized by a LOA issued under Secs. 216.106 and 219.27 of this 
chapter, no person in connection with the activities described in 
Sec. 219.21 of this chapter may:
    (a) Take any marine mammal not specified in Sec. 219.23(b) of this 
chapter;
    (b) Take any marine mammal specified in Sec. 219.23(b) of this 
chapter in any manner other than as specified;
    (c) Take a marine mammal specified in Sec. 219.23(b) of this chapter 
if NMFS determines such taking results in more than a negligible impact 
on the species or stocks of such marine mammal;
    (d) Take a marine mammal specified in Sec. 219.23(b) of this chapter 
if NMFS determines such taking results in an unmitigable adverse impact 
on the species or stock of such marine mammal for taking for subsistence 
uses; or
    (e) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or a LOA issued under Secs. 216.106 and 
219.27 of this chapter.



Sec. 219.25  Mitigation requirements.

    When conducting the activities identified in Sec. 219.21(a), the 
mitigation measures contained in any LOA issued under Secs. 216.106 and 
219.27 of this chapter must be implemented. These mitigation measures 
shall include but are not limited to:
    (a) General conditions:
    (1) SWFSC shall take all necessary measures to coordinate and 
communicate in advance of each specific survey with the National Oceanic 
and Atmospheric Administration's (NOAA) Office of Marine and Aviation 
Operations (OMAO) or other relevant parties on non-NOAA platforms to 
ensure that all mitigation measures and monitoring requirements 
described herein, as well as the specific manner of implementation and 
relevant event-contingent decision-making processes, are clearly 
understood and agreed upon.
    (2) SWFSC shall coordinate and conduct briefings at the outset of 
each survey and as necessary between ship's crew (Commanding Officer/
master or designee(s), as appropriate) and scientific party in order to 
explain responsibilities, communication procedures, marine mammal 
monitoring protocol, and operational procedures.
    (3) SWFSC shall coordinate as necessary on a daily basis during 
survey cruises with OMAO personnel or other relevant personnel on non-
NOAA platforms to ensure that requirements, procedures, and decision-
making processes are understood and properly implemented.
    (4) When deploying any type of sampling gear at sea, SWFSC shall at 
all times monitor for any unusual circumstances that may arise at a 
sampling site and use best professional judgment to avoid any potential 
risks to marine mammals during use of all research equipment.
    (5) SWFSC shall implement handling and/or disentanglement protocols 
as specified in guidance provided to SWFSC survey personnel.
    (b) Trawl survey protocols--SWFSC shall conduct trawl operations as 
soon as is practicable upon arrival at the sampling station.

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Sec. 219.26  Requirements for monitoring and reporting.

    (a) Visual monitoring program:
    (1) Marine mammal watches shall be conducted by watch-standers 
(those navigating the vessel and/or other crew) at all times when the 
vessel is being operated.
    (2) SWFSC shall monitor any potential disturbance of pinnipeds on 
ice, paying particular attention to the distance at which different 
species of pinniped are disturbed. Disturbance shall be recorded 
according to a three-point scale representing increasing seal response 
to disturbance.
    (b) Training:
    (1) SWFSC must conduct annual training for all chief scientists and 
other personnel who may be responsible for conducting dedicated marine 
mammal visual observations to explain mitigation measures and monitoring 
and reporting requirements, mitigation and monitoring protocols, marine 
mammal identification, recording of count and disturbance observations, 
completion of datasheets, and use of equipment. SWFSC may determine the 
agenda for these trainings.
    (2) SWFSC shall also dedicate a portion of training to discussion of 
best professional judgment, including use in any incidents of marine 
mammal interaction and instructive examples where use of best 
professional judgment was determined to be successful or unsuccessful.
    (c) Handling procedures and data collection:
    (1) SWFSC must develop and implement standardized marine mammal 
handling, disentanglement, and data collection procedures. These 
standard procedures will be subject to approval by NMFS' Office of 
Protected Resources (OPR).
    (2) When practicable, for any marine mammal interaction involving 
the release of a live animal, SWFSC shall collect necessary data to 
facilitate a serious injury determination.
    (3) SWFSC shall provide its relevant personnel with standard 
guidance and training regarding handling of marine mammals, including 
how to identify different species, bring an individual aboard a vessel, 
assess the level of consciousness, remove fishing gear, return an 
individual to water, and log activities pertaining to the interaction.
    (4) SWFSC shall record such data on standardized forms, which will 
be subject to approval by OPR. SWFSC shall also answer a standard series 
of supplemental questions regarding the details of any marine mammal 
interaction.
    (d) Reporting:
    (1) SWFSC shall report all incidents of marine mammal interaction to 
NMFS' Protected Species Incidental Take database within 48 hours of 
occurrence, and shall provide supplemental information to OPR upon 
request. Information related to marine mammal interaction (animal 
captured or entangled in research gear) must include details of survey 
effort, full descriptions of any observations of the animals, the 
context (vessel and conditions), decisions made, and rationale for 
decisions made in vessel and gear handling.
    (2) Annual reporting:
    (i) SWFSC shall submit an annual summary report to OPR not later 
than ninety days following the end of a given year. SWFSC shall provide 
a final report within thirty days following resolution of comments on 
the draft report.
    (ii) These reports shall contain, at minimum, the following:
    (A) Annual line-kilometers surveyed during which the EK60, ME70, 
SX90 (or equivalent sources) were predominant and associated pro-rated 
estimates of actual take;
    (B) Summary information regarding use of all trawl gear, including 
number of tows, etc.;
    (C) Accounts of all incidents of marine mammal interactions, 
including circumstances of the event and descriptions of any mitigation 
procedures implemented or not implemented and why;
    (D) Summary information related to any on-ice disturbance of 
pinnipeds, including event-specific total counts of animals present, 
counts of reactions according to a three-point scale of response 
severity (1 = alert; 2 = movement; 3 = flight), and distance of closest 
approach;
    (E) A written evaluation of the effectiveness of SWFSC mitigation 
strategies in reducing the number of marine

[[Page 253]]

mammal interactions with survey gear, including best professional 
judgment and suggestions for changes to the mitigation strategies, if 
any;
    (F) Final outcome of serious injury determinations for all incidents 
of marine mammal interactions where the animal(s) were released alive; 
and
    (G) A summary of all relevant training provided by SWFSC.
    (e) Reporting of injured or dead marine mammals:
    (1) In the unanticipated event that the activity defined in 
Sec. 219.1(a) of this chapter clearly causes the take of a marine mammal 
in a prohibited manner, SWFSC personnel engaged in the research activity 
shall immediately cease such activity until such time as an appropriate 
decision regarding activity continuation can be made by the SWFSC 
Director (or designee). The incident must be reported immediately to 
OPR. OPR will review the circumstances of the prohibited take and work 
with SWFSC to determine what measures are necessary to minimize the 
likelihood of further prohibited take and ensure MMPA compliance. The 
immediate decision made by SWFSC regarding continuation of the specified 
activity is subject to OPR concurrence. The report must include the 
following information:
    (i) Time, date, and location (latitude/longitude) of the incident;
    (ii) Description of the incident;
    (iii) Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, visibility);
    (iv) Description of all marine mammal observations in the 24 hours 
preceding the incident;
    (v) Species identification or description of the animal(s) involved;
    (vi) Status of all sound source use in the 24 hours preceding the 
incident;
    (vii) Water depth;
    (viii) Fate of the animal(s); and
    (ix) Photographs or video footage of the animal(s).
    (2) In the event that SWFSC discovers an injured or dead marine 
mammal and determines that the cause of the injury or death is unknown 
and the death is relatively recent (e.g., in less than a moderate state 
of decomposition), SWFSC shall immediately report the incident to OPR. 
The report must include the same information identified in 
Sec. 219.26(e)(1) of this section. Activities may continue while OPR 
reviews the circumstances of the incident. OPR will work with SWFSC to 
determine whether additional mitigation measures or modifications to the 
activities are appropriate.
    (3) In the event that SWFSC discovers an injured or dead marine 
mammal and determines that the injury or death is not associated with or 
related to the activities defined in Sec. 219.21(a) of this chapter 
(e.g., previously wounded animal, carcass with moderate to advanced 
decomposition, scavenger damage), SWFSC shall report the incident to OPR 
within 24 hours of the discovery. SWFSC shall provide photographs or 
video footage or other documentation of the stranded animal sighting to 
OPR.



Sec. 219.27  Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, SWFSC must apply for and obtain an LOA.
    (b) An 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, SWFSC may apply for and obtain a renewal of the LOA.
    (d) In the event of projected changes to the activity or to 
mitigation and monitoring measures required by an LOA, SWFSC must apply 
for and obtain a modification of the LOA as described in Sec. 219.28 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 an LOA shall be published in the 
Federal

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Register within thirty days of a determination.



Sec. 219.28  Renewals and modifications of Letters of Authorization.

    (a) An LOA issued under Secs. 216.106 and 219.27 of this chapter for 
the activity identified in Sec. 219.21(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 in Sec. 219.28(c)(1) 
of this chapter), and
    (2) OPR determines that the mitigation, monitoring, and reporting 
measures required by the previous LOA under these regulations were 
implemented.
    (b) For an 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 in Sec. 219.28(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), OPR 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) An LOA issued under Secs. 216.106 and 219.27 of this chapter for 
the activity identified in Sec. 219.21(a) of this chapter may be 
modified by OPR under the following circumstances:
    (1) Adaptive Management--OPR may modify (including augment) the 
existing mitigation, monitoring, or reporting measures (after consulting 
with SWFSC 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 SWFSC'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, OPR will 
publish a notice of proposed LOA in the Federal Register and solicit 
public comment.
    (2) Emergencies--If OPR determines that an emergency exists that 
poses a significant risk to the well-being of the species or stocks of 
marine mammals specified in Sec. 219.22(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 thirty days of 
the action.



Secs. 219.29-219.30  [Reserved]



   Subpart D_Taking Marine Mammals Incidental to Northeast Fisheries 
     Science Center Fisheries Research in the Atlantic Coast Region

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

    Effective Date Note: At 81 FR 53085, Aug. 11, 2016, subpart D was 
added, effective from from Sept. 12, 2016, through Sept. 9, 2021.



Sec. 219.31  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the National Marine 
Fisheries Service's (NMFS) Northeast Fisheries Science Center (NEFSC) 
and those persons it authorizes or funds 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 occurs incidental to research 
survey program operations.
    (b) The taking of marine mammals by NEFSC may be authorized in a 
Letter of Authorization (LOA) only if it occurs within the Atlantic 
coast region.

[[Page 255]]



Sec. 219.32  Effective dates.

    Regulations in this subpart are effective September 12, 2016 through 
September 9, 2021.



Sec. 219.33  Permissible methods of taking.

    (a) Under LOAs issued pursuant to Sec. 216.106 of this chapter and 
Sec. 219.7, the Holder of the LOA (hereinafter ``NEFSC'') may 
incidentally, but not intentionally, take marine mammals within the area 
described in Sec. 219.31(b) by Level B harassment associated with use of 
active acoustic systems and physical or visual disturbance of hauled-out 
pinnipeds and by Level A harassment, serious injury, or mortality 
associated with use of trawl, dredge, bottom and pelagic longline, 
gillnet, pot and trap, fyke net, beach seine, and rotary screw trap 
gears, provided the activity is in compliance with all terms, 
conditions, and requirements of the regulations in this subpart and the 
appropriate LOA, provided th