50 C.F.R. Subpart P—Taking of Marine Mammals Incidental To Operating a Low Frequency Acoustic Source by the North Pacific Acoustic Laboratory
Title 50 - Wildlife and Fisheries
Source: 66 FR 43458, Aug. 17, 2001, unless otherwise noted.
Effective Date Note: At 66 FR 43458, Aug. 17, 2001, subpart P, consisting of §§216.170 through 216.178 were added, effective Sept. 17, 2001, to Sept. 17, 2006.
(a) Regulations in this subpart apply only to the incidental taking of small numbers of marine mammals specified in paragraph (b) of this section by U.S. citizens engaged in conducting acoustic research using a moored, low-frequency acoustic source by the North Pacific Acoustic Laboratory off Kauai, Hawaii. (b) The incidental harassment of marine mammals under the activity identified in paragraph (a) of this section is limited to small numbers of the following species: humpback whales (Megaptera novaengliae), fin whales (Balaenoptera physalus), blue whales (B. musculus), Bryde's whales (B. edeni), minke whales (B. acutorostrata), North Pacific right whales (Balaena japonicus), sperm whales (Physeter macrocephalus), short-finned pilot whales (Globicephala macrorhynchus), beaked whales (Ziphius cavirostris, Berardius bairdi, and Mesoplodon spp.), spinner dolphins (Stenella longirostris), spotted dolphins (Stenella attenuata), striped dolphins (Stenella coeruleoalba), bottlenose dolphins (Tursiops truncatus), rough-toothed dolphins (Steno bredanensis), pygmy sperm whales (Kogia breviceps), dwarf sperm whales (Kogia simus), killer whales (Orcinus orca), false killer whales (Pseudorca crassidens), pygmy killer whales (Feresa attenuata), and melon-headed whales (Peponocephala electra). and Hawaiian monk seals (Monachus schauinslandi). Regulations in this subpart are effective from September 17, 2001, through September 17, 2006. (a) Under a Letter of Authorization issued pursuant to §§216.106 and 216.176, the Holder of this Letter of Authorization may incidentally, but not intentionally, take marine mammals by harassment within the area described in §216.170(a), provided the activity is in compliance with all terms, conditions, and requirements of these regulations and the Letter of Authorization. (b) The activities identified in §216.170(a) must be conducted in a manner that minimizes, to the greatest extent practicable, any adverse impacts on marine mammals and their habitat. Notwithstanding takings authorized by §216.170(b) and by a Letter of Authorization issued under §§216.106 and 216.176, no person in connection with the activities described in §216.170(a) shall: (a) Take any marine mammal not specified in §216.170(b); (b) Take any marine mammal specified in §216.170(b) other than by incidental, unintentional harassment; (c) Take any marine mammal specified in §216.170(b) if such take results in more than a negligible impact on the species or stocks of such marine mammal; or (d) Violate, or fail to comply with, the terms, conditions, and requirements of these regulations or a Letter of Authorization issued under §§216.106 and 216.176. As described in the Letter of Authorization issued under §§216.106 and 216.176., the North Pacific Acoustic Laboratory acoustic source must: (a) Operate at the minimum duty cycle necessary for conducting large-scale acoustic thermometry and long-range propagation objectives. (b) Not increase the duty cycle during the months of January through April. (c) Operate at the minimum power level necessary for conducting large-scale acoustic thermometry and long-range propagation objectives, but no more than 260 Watts. (d) Precede all transmissions from the acoustic source by a 5-minute ramp-up of the acoustic source's power. (a) The holder of the Letter of Authorization is required to cooperate with the National Marine Fisheries Service and any other Federal, state or local agency monitoring the impacts of the activity on marine mammals. The holder must notify the Southwest Regional Administrator at least 2 weeks prior to commencing monitoring activities. (b) The Holder of this Authorization must conduct a minimum of eight surveys each year from February through early April in the area off the north shore of Kauai, Hawaii, as specified in the Letter of Authorization issued under §§216.106 and 216.176. (c) The Holder of this Authorization must, through coordination with marine mammal stranding networks in Hawaii, monitor strandings of marine mammals to detect long-term trends in stranding and the potential relationship to the North Pacific Acoustic Laboratory acoustic source. (d) Activities related to the monitoring described in paragraphs (b) and (c) of this section, or in the Letter of Authorization issued under §§216.106 and 216.176 may be conducted without the need for a separate scientific research permit. (e) In coordination and compliance with marine mammal researchers operating under this subpart, at its discretion, the National Marine Fisheries Service may place an observer on any aircraft involved in marine mammal surveys in order to monitor the impact on marine mammals. (f) The holder of a Letter of Authorization must annually submit a report to the Director, Office of Protected Resources, National Marine Fisheries Service, no later than 120 days after the conclusion of the humpback whale aerial survey monitoring program. This report must contain all the information required by the Letter of Authorization, including the results, if any, of coordination with coastal marine mammal stranding networks. (g) A final comprehensive report must be submitted to the Director, Office of Protected Resources, National Marine Fisheries Service no later than 240 days after completion of the final year of humpback whale aerial survey monitoring conducted under §216.175. This report must contain all the information required by the Letter of Authorization. (a) A Letter of Authorization, unless suspended or revoked, will be valid for a period of time specified in the Letter of Authorization but may not exceed the period of validity of this subpart. (b) A Letter of Authorization with a period of validity less than the period of validity of this subpart may be renewed subject to renewal conditions in §216.177. (c) A Letter of Authorization will set forth: (1) Permissible methods of incidental taking; (2) Authorized geographic area for taking; (3) Means of effecting the least practicable adverse impact on the species of marine mammals authorized for taking and its habitat; and (4) Requirements for monitoring and reporting incidental takes. (d) Issuance of a Letter of Authorization will be based on a determination that the number of marine mammals taken by the activity will be small, and that the number of marine mammals taken by the activity, specified in §216.170(b), as a whole, will have no more than a negligible impact on the species or stocks of affected marine mammal(s). (e) Notice of issuance or denial of a Letter of Authorization will be published in the (a) A Letter of Authorization issued under §216.106 and §216.176 for the activity identified in §216.170(a) will be renewed annually upon: (1) Notification to the National Marine Fisheries Service that the activity described in the application for a Letter of Authorization submitted under §216.176 will be undertaken and that there will not be a substantial modification to the described work, mitigation, or monitoring undertaken during the upcoming season; (2) Timely receipt of the monitoring reports required under §216.175, which have been reviewed by the National Marine Fisheries Service and determined to be acceptable; (3) A determination by the National Marine Fisheries Service that the mitigation, monitoring, and reporting measures required under §§216.174 and 216.175 and the Letter of Authorization were undertaken and will be undertaken during the upcoming period of validity of a renewed Letter of Authorization; and (4) Renewal of a Letter of Authorization will be based on a determination that the number of marine mammals taken by the activity continues to be small and that the number of marine mammals taken by the activity, specified in §216.170(b), will have no more than a negligible impact on the species or stock of affected marine mammal(s). (b) A notice of issuance or denial of a renewal of a Letter of Authorization will be published in the (a) In addition to complying with the provisions of §§216.106 and 216.176, except as provided in paragraph (b) of this section, no substantive modification (including withdrawal or suspension) to the Letter of Authorization issued pursuant to §§216.106 and 216.176 and subject to the provisions of this subpart shall be made by the National Marine Fisheries Service until after a notification and an opportunity for public comment has been provided. For purposes of this paragraph, a renewal of a Letter of Authorization under §216.177 without modification, except for the period of validity, is not considered a substantive modification. (b) If the Assistant Administrator determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in §216.170(b), a Letter of Authorization issued pursuant to §§216.106 and 216.176 may be substantively modified without prior notification and an opportunity for public comment. Notification will be published in the
Title 50: Wildlife and Fisheries
PART 216—REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE MAMMALS
Subpart P—Taking of Marine Mammals Incidental To Operating a Low Frequency Acoustic Source by the North Pacific Acoustic Laboratory
§ 216.170 Specified activity and specified geographical region.
§ 216.171 Effective dates.
§ 216.172 Permissible methods of taking.
§ 216.173 Prohibitions.
§ 216.174 Mitigation.
§ 216.175 Requirements for monitoring and reporting.
§ 216.176 Letter of authorization.
§ 216.177 Renewal of a letter of authorization.
§ 216.178 Modifications to a letter of authorization.
