50 C.F.R. Subpart Q—Taking of Marine Mammals Incidental to Navy Operations of Surveillance Towed Array Sensor System Low Frequency Active (SURTASS LFA) Sonar
Title 50 - Wildlife and Fisheries
Source: 67 FR 46785, July 16, 2002, unless otherwise noted.
Effective Date Note: At 67 FR 46785, July 16, 2002, subpart Q, consisting of §§216.180 through 216.191 were added, effective Aug. 15, 2002, through Aug. 15, 2007.
Regulations in this subpart apply only to the incidental taking of those marine mammal species specified in paragraph (b) of this section by the U.S. Navy, Department of Defense, while engaged in the operation of no more than two SURTASS LFA sonar systems conducting active sonar operations, in areas specified in paragraph (a) of this section. The authorized activities, as specified in a Letter of Authorization issued under §§216.106 and 216.188, include the transmission of low frequency sounds from the SURTASS LFA sonar and the transmission of high frequency sounds from the mitigation sonar described in §216.185 during training, testing, and routine military operations of SURTASS LFA sonar. (a) With the exception of those areas specified in §216.183(d), the incidental taking by harassment may be authorized in the following areas as specified in a Letter of Authorization: (1) Atlantic Polar Biome: (i) Boreal Polar Province (1/BPLR)(i.e., LFA sonar 180-dB exclusion zone); (ii) Atlantic Arctic Province (2/ARCT); (iii) Atlantic Subarctic Province (3/SARC); (2) North Atlantic Coastal Biome: (i) Northeast Atlantic Shelves Province (11/NECS), (A) North/Irish Sea Subprovince, (B) English Channel Subprovince, (C) Southern Outer Shelf Subprovince, (D) Northern Outer Shelf Subprovince, and (E) Baltic Subprovince; and (ii) Northwest Atlantic Shelves Province (15/NWCS), (A) Newfoundland/Nova Scotia Shelf Subprovince, (B) Gulf of St. Lawrence Coastal Subprovince, (C) Gulf of Maine/Bay of Fundy Coastal Subprovince, (D) Georges Bank/New York Bight Coastal Subprovince, (E) Middle Atlantic Bight Coastal Subprovince, (F) South Atlantic Bight Coastal Subprovince; (3) South Atlantic Coastal Biome: (i) Benguela Current Coastal Province (22/BENG); (ii) Brazil Current Coastal Province (20/BRAZ); (iii) Eastern (Canary) Coastal Province (12/CNRY); (iv) Southwest Atlantic Shelves Province (21/FKLD); (v) Guianas Coastal Province (14/GUIA); (vi) Guinea Current Coastal Province (13/GUIN), (A) Guiana Coastal Subprovince, and (B) Central African Coastal Subprovince; (4) Atlantic Westerly Winds Biome: (i) Gulf Stream Province (5/GFST); (ii) North Atlantic Drift Province (4/NADR); (iii) North Atlantic Subtropical Gyral East Province (18/NASTE); and (iv) North Atlantic Subtropical Gyral West Province (6/NASTW); (5) Atlantic Trade Wind Biome: (i) Caribbean Province (17/CARB); (A) Gulf of Mexico Subprovince; (B) Caribbean Sea Subprovince; (ii) Eastern Tropical Atlantic Province (9/ETRA); (iii) North Atlantic Tropical Gyral Province (7/NATR); (iv) South Atlantic Gyral Province (10/SATL); (v) Western Tropical Atlantic Province (8/WTRA); (6) Mediterranean/Black Sea Biome: (i) Mediterranean Sea Province (16A/MEDI); (ii) Black Sea Province (16B/BLSE); (7) Indian Ocean Coastal Biome: (i) Australia/Indonesia Coastal Province (37/AUSW); (ii) Eastern India Coastal Province (35/INDE); (iii) Northwestern Arabian Upwelling Province (34/ARAB); (iv) Eastern Africa Coastal Province (32/EAFR); (v) Western India Coastal Province (36/INDW); (vi) Red Sea, Persian Gulf Province (33/REDS); (8) Indian Ocean Trade Wind Biome: (i) Indian South Subtropical Gyre Province (31/ISSG); (ii) Indian Monsoon Gyres Province (30/MONS); (9) North Pacific Coastal Biome: (i) Alaska Downwelling Coastal Province (65/ALSK), (A) Canadian/Alaskan Coastal Subprovince, (B) Aleutian Stream Coastal Subprovince, (ii) California Current Province (66/CALC), (A) Oregon-British Columbia Coastal Subprovince, (B) Point Conception/Cape Mendicino Coastal Subprovince, (C) Southern California Bight Subprovince, and (D) Baja California Subprovince; (iii) Central American Coastal Province (67/CAMR); (iv) China Sea Coastal Province (69/CHIN); (10) South Pacific Coastal Biome: (i) East Australian Coastal Province (71/AUSE); (ii) Humboldt Current Coastal Province (68/HUMB); (A) Chilean Coastal Subprovince and (B) Peruvian Coastal Subprovince; (iii) New Zealand Coastal Province (72/NEWZ); (iv) Sunda/Arafura Shelves Province (70/SUND); (11) Pacific Polar Biome: (i) North Pacific Epicontinental Sea Province (50/BERS); (A) Bering Sea Subprovince; (B) Okhotsk Sea Subprovince; (ii) Reserved; (12) Pacific Trade Wind Biome: (i) Archipelagic Deep Basins Province (64/ARCH); (ii) North Pacific Tropical Gyre West Province (56/NPTGW); (iii) North Pacific Tropical Gyre East Province (60/NPTGE); (iv) Pacific Equatorial Divergence Province (62/PEQD); (v) North Pacific Equatorial Countercurrent Province (61/PNEC); (vi) South Pacific Subtropical Gyre Province (59/SPGS); (vii) Western Pacific Warm Pool Province (63/WARM); (13) Pacific Westerly Winds Biome: (i) Kuroshio Current Province (53/KURO); (ii) North Pacific Transition Zone Province (54/NPPF); (iii) Pacific Subarctic Gyres (East) Province (51/PSAGE); (iv) Pacific Subarctic Gyres (West) Province (52/PSAGW); (14) Antarctic Westerly Winds Biome: (i) Subantarctic Water Ring Province (81/SANT), (A) Atlantic Subantarctic Ring Subprovince; (B) Indian Ocean Subantarctic Ring Subprovince; (C) Pacific Ocean Subantarctic Water Ring Subprovince; (ii) Subtropical Convergence Province (80/SSTC), (A) Atlantic South Subtropical Convergence Subprovince; (B) Indian Ocean South Subtropical Convergence Subprovince; (C) Pacific Ocean South Subtropical Convergence Subprovince; (iii) Tasman Sea Province (58/TASM); (15) Antarctic Polar Biome: (SURTASS LFA sonar exclusion zone); (i) Antarctic Province (82/ANTA) (ii) Austral Polar Province (83/APLR). (b) The incidental take by Level A and Level B harassment of marine mammals under the activity identified in this section is limited to the following species and species groups: (1) Mysticete whales—blue whale (Balaenoptera musculus), fin whale (Balaenoptera physalus), minke whale (Balaenoptera acutorostrata), Bryde's whale (Balaenoptera edeni), sei whale (Balaenoptera borealis), humpback whale (Megaptera novaeangliae), northern right whale (Eubalaena glacialis), southern right whale (Eubalaena australis), pygmy right whale (Capera marginata), bowhead whale (Balaena mysticetus), and gray whales (Eschrichtius robustus). (2) Odontocete whales—Risso's dolphin (Grampus griseus), rough-toothed dolphin (Steno bredanensis), Fraser's dolphin (Lagenodelphis hosei), right-whale dolphin (Lissodelphis spp.), bottlenose dolphin (Tursiops truncatus), common dolphin (Delphinus delphis), Dall's porpoise (Phocoenoides dalli), harbor porpoise (Phocoena phocoena), beluga whale (Delphinapterus leucas), Stenella spp. Lagenorhynchus spp., Cephalorhynchus spp. melon-headed whale (Peponocephala spp.), beaked whales (Berardius spp., Hyperoodon spp., Mesoplodon spp.), Cuvier's beaked whale (Ziphius cavirostris), Shepard's beaked whale (Tasmacetus shepherdi), Longman's beaked whale (Indopacetus pacificus), killer whale (Orcinus orca), false killer whale (Pseudorca crassidens), pygmy killer whale (Feresa attenuata), sperm whale (Physeter macrocephalus), dwarf and pygmy sperm whales (Kogia simus and K. breviceps), and short-finned and long-finned pilot whales (Globicephala macrorhynchus and G. melas). (3) Pinnipeds—harbor seals (Phoca vitulina), spotted seals (P. largha), ribbon seals (P. fasciata), gray seals (Halichoerus grypus), hooded seal (Cystophora cristata), elephant seals (Mirounga angustirostris and M. leonina). Hawaiian monk seals (Monachus schauinslandi), Mediterranean monk seals (Monachus monachus), northern fur seals (Callorhinus ursinus); southern fur seals (Arctocephalus spp.), Steller sea lions (Eumetopias jubatus), California sea lions (Zalophus californianus), Australian sea lions (Neophoca cinerea), New Zealand sea lions (Phocarctos hookeri), and South American sea lions (Otaria flavescens). Regulations in this subpart are effective from August 15, 2002 through August 15, 2007. (a) Under Letters of Authorization issued pursuant to §§216.106 and 216.188, the Holder of the Letter of Authorization may incidentally, but not intentionally, take marine mammals by Level A and Level B harassment within the areas described in §216.180(a), provided the activity is in compliance with all terms, conditions, and requirements of these regulations and the appropriate Letter of Authorization. (b) The activities identified in §216.180 must be conducted in a manner that minimizes, to the greatest extent practicable, any adverse impacts on marine mammals, their habitat, and the availability of marine mammals for subsistence uses. Notwithstanding takings authorized by §216.180 and by a Letter of Authorization issued under §§216.106 and 216.188, no person in connection with the activities described in §216.180 shall: (a) Take any marine mammal not specified in §216.180(b); (b) Take any marine mammal specified in §216.180(b) other than by incidental, unintentional Level A and Level B harassment; (c) Take any marine mammal by receiving a sound pressure level greater than 180 dB while operating under a Letter of Authorization in any geographic area for which a Letter of Authorization has not been issued; (d) Take a marine mammal specified in §216.180(b) if such taking results in more than a negligible impact on the species or stocks of such marine mammal; or (e) Violate, or fail to comply with, the terms, conditions, and requirements of the regulations in this subpart or any Letter of Authorization issued under §§216.106 and 216.188. The activity identified in §216.180(a) must be conducted in a manner that minimizes, to the greatest extent practicable, adverse impacts on marine mammals and their habitats. When conducting operations identified in §216.180, the mitigation measures described in this section and in any Letter of Authorization issued under §§216.106 and 216.188 must be implemented. (a) Through monitoring described under §216.185, the Holder of a Letter of Authorization will ensure, to the greatest extent practicable, that no marine mammal is subjected to a sound pressure level of 180 dB or greater. (b) If a marine mammal is detected within the area subjected to sound pressure levels of 180 dB or greater (safety zone) or within the 1 km (0.5 nm) (buffer) zone extending beyond the 180-dB safety zone, SURTASS LFA sonar transmissions will be immediately delayed or suspended. Transmissions will not resume earlier than 15 minutes after: (1) All marine mammals have left the area of the safety and buffer zones; and (2) There is no further detection of any marine mammal within the safety and buffer zones as determined by the visual and/or passive or active acoustic monitoring described in §216.185. (c) The high-frequency marine mammal monitoring sonar (HF/M3) described in §216.185 will be ramped-up slowly to operating levels over a period of no less than 5 minutes: (1) At least 30 minutes prior to any SURTASS LFA sonar transmissions; (2) Prior to any SURTASS LFA sonar calibrations or testings that are not part of regular SURTASS LFA sonar transmissions described in paragraph (c)(1) of this section; and (3) Anytime after the HF/M3 source has been powered down for more than 2 minutes. (d) The HF/M3 source will not increase its sound pressure level once a marine mammal is detected; ramp-up may proceed once marine mammals are no longer detected. (e) The Holder of a Letter of Authorization will not operate the SURTASS LFA sonar while under a Letter of Authorization, such that the SURTASS LFA sonar sound field exceeds 180 dB (re 1 µPa(rms)): (1) At a distance of 12 nautical miles (nm) (22 kilometers (km)) from any coastline, including offshore islands; (2) Within any offshore area that has been designated as biologically important for marine mammals under §216.183(f), during the biologically important season for that particular area; (3) Within the offshore boundaries that extend beyond 12 nm (22 km) of the following National Marine Sanctuaries: (i) Monterey Bay, (ii) Gulf of the Farallones, and (iii) Cordell Bank; (4) Within 23 nm (37.4 km) during the months of December, January, March, and May of each year in the Olympic Coast National Marine Sanctuary. (f) The following areas have been designated by NMFS as offshore areas of critical biological importance for marine mammals (by season if appropriate): (a) In order to mitigate the taking of marine mammals by SURTASS LFA sonar to the greatest extent practicable, the Holder of a Letter of Authorization issued pursuant to §§216.106 and 216.188 must: (1) Conduct visual monitoring from the ship's bridge during all daylight hours; (2) Use low frequency passive SURTASS LFA sonar to listen for vocalizing marine mammals; and (3) Use the HF/M3 sonar to locate and track marine mammals in relation to the SURTASS LFA sonar vessel and the sound field produced by the SURTASS LFA sonar source array. (b) Monitoring under paragraph (a) of this section must: (1) Commence at least 30 minutes before the first SURTASS LFA sonar transmission; (2) Continue between transmission pings; and (3) Continue either for at least 15 minutes after completion of the SURTASS LFA sonar transmission exercise, or, if marine mammals are exhibiting unusual behavioral patterns, for a period of time until behavior patterns return to normal or conditions prevent continued observations; (c) Holders of Letters of Authorization for activities described in §216.180 are required to cooperate with the National Marine Fisheries Service and any other federal agency for monitoring the impacts of the activity on marine mammals. (d) Holders of Letters of Authorization must designate qualified on-site individuals to conduct the mitigation, monitoring and reporting activities specified in the Letter of Authorization. (e) Holders of Letters of Authorization must conduct all monitoring and research required under the Letter of Authorization. (a) The Holder of the Letter of Authorization must submit quarterly mission reports to the Director, Office of Protected Resources, NMFS, no later than 30 days after the end of each quarter beginning on the date of effectiveness of a Letter of Authorization or as specified in the appropriate Letter of Authorization. Each quarterly mission report will include all active-mode missions completed during that quarter. At a minimum, each classified mission report must contain the following information: (1) Dates, times, and location of the vessel during the mission; (2) Information on sonar transmissions as detailed in the Letter of Authorization; and (3) Results of the marine mammal monitoring program specified in the Letter of Authorization. (b) The Holder of a Letter of Authorization must submit an annual report to the Director, Office of Protected Resources, NMFS, no later than 90 days prior to expiration of a Letter of Authorization. This report must contain all the information required by the Letter of Authorization. (c) A final comprehensive report must be submitted to the Director, Office of Protected Resources, NMFS at least 240 days prior to expiration of these regulations. In addition to containing all the information required by any final year Letter of Authorization, this report must contain an analysis of new passive technologies and an assessment of whether such a system is feasible as an alternative to SURTASS LFA sonar. (a) To incidentally take marine mammals pursuant to these regulations, the U.S. Navy authority conducting the activity identified in §216.180 must apply for and obtain a Letter of Authorization in accordance with §216.106. (b) The application for an initial or a renewal of a Letter of Authorization must be submitted to the Director, Office of Protected Resources, NMFS, at least 60 days before the date that either the vessel is scheduled to begin conducting SURTASS LFA sonar operations or the previous Letter of Authorization is scheduled to expire. (c) All applications for a Letter of Authorization must include the following information: (1) The date(s), duration, and the specified geographical region where the vessel's activity will occur; (2) The species and/or stock(s) of marine mammals likely to be found within each specified geographical region; (3) The type of incidental taking authorization requested (i.e., take by Level A and/or Level B harassment); (4) The estimated percentage of marine mammal species/stocks potentially affected in each specified geographic region for the 12-month period of effectiveness of the Letter of Authorization; and (5) The means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and the level of taking or impacts on marine mammal populations. (d) The National Marine Fisheries Service will review an application for a Letter of Authorization in accordance with §216.104(b) and, if adequate and complete, issue a Letter of Authorization. (a) A Letter of Authorization, unless suspended or revoked will be valid for a period of time not to exceed one year, but may be renewed annually subject to annual renewal conditions in §216.189. (b) Each Letter of Authorization will set forth: (1) Permissible methods of incidental taking; (2) Authorized geographic areas for incidental takings; (3) Means of effecting the least practicable adverse impact on the species of marine mammals authorized for taking, their habitat, and the availability of the species for subsistence uses; and (4) Requirements for monitoring and reporting incidental takes. (c) Issuance of each Letter of Authorization will be based on a determination that the number of marine mammals taken by the activity will be small, that the total number of marine mammals taken by the activity specified in §216.180 as a whole will have no more than a negligible impact on the species or stock of affected marine mammal(s), and that the total taking will not have an unmitigable adverse impact on the availability of species or stocks of marine mammals for taking for subsistence uses. (d) Notice of issuance or denial of an application for a Letter of Authorization will be published in the (a) A Letter of Authorization issued under §216.106 and §216.188 for the activity identified in §216.180 will be renewed annually upon: (1) Notification to NMFS that the activity described in the application submitted under §216.187 will be undertaken and that there will not be a substantial modification to the described work, mitigation or monitoring undertaken during the upcoming season; (2) Notification to NMFS of the information identified in §216.187(c), including the planned geographic area(s), and anticipated duration of each SURTASS LFA sonar operation; (3) Timely receipt of the monitoring reports required under §216.185, which have been reviewed by NMFS and determined to be acceptable; (4) A determination by NMFS that the mitigation, monitoring and reporting measures required under §§216.184 and 216.185 and the Letter of Authorization were undertaken and will be undertaken during the upcoming annual period of validity of a renewed Letter of Authorization; and (5) A determination by NMFS that the number of marine mammals taken by the activity continues to be small, that the total number of marine mammals taken by the activity specified in §216.180, as a whole will have no more than a negligible impact on the species or stock of affected marine mammal(s), and that the total taking will not have an unmitigable adverse impact on the availability of species or stocks of marine mammals for taking for subsistence uses. (b) If a request for a renewal of a Letter of Authorization issued under §§216.106 and 216.188 indicates that a substantial modification to the described work, mitigation or monitoring will occur, or if NMFS proposes a substantial modification to the Letter of Authorization, NMFS will provide a period of 30 days for public review and comment on the proposed modification. Amending the list of areas for upcoming SURTASS LFA sonar operations is not considered a substantial modification to the Letter of Authorization. (c) A notice of issuance or denial of a renewal of a Letter of Authorization will be published in the (a) Except as provided in paragraph (b) of this section, no substantial modification (including withdrawal or suspension) to a Letter of Authorization issued pursuant to §§216.106 and 216.188 and subject to the provisions of this subpart shall be made by NMFS until after notification and an opportunity for public comment has been provided. For purposes of this paragraph, a renewal of a Letter of Authorization under §216.189, without modification, except for the period of validity and a listing of planned operating areas, or for moving the authorized SURTASS LFA sonar system from one ship to another, is not considered a substantial modification. (b) If the National Marine Fisheries Service determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in §216.180(b), a Letter of Authorization issued pursuant to §§216.106 and 216.188 may be substantially modified without prior notice and opportunity for public comment. Notification will be published in the (a) Biologically important areas for marine mammals may be nominated under this paragraph by the National Marine Fisheries Service or by the public. (b) In order for the National Marine Fisheries Service to designate offshore areas of biological importance for marine mammals under this rule, proponents must petition NMFS by requesting an area be added to the list of biologically important areas in §216.184(f) and submitting the following information: (1) Geographic region proposed for consideration (including geographic boundaries); (2) A list of marine mammals within the proposed geographic region; (3) Whether the proposal is for year-round designation or seasonal, and if seasonal, months of years for proposed designation; (4) Detailed information on the biology of marine mammals within the area, including estimated population size, distribution, density, status, and the principal biological activity during the proposed period of designation sufficient for NMFS to make a preliminary determination that the area is biologically important for marine mammals; and (5) Detailed information on the area with regard to its importance for either primary feeding, breeding, or migration for those species of marine mammals that have the potential to be affected by low frequency sounds; (c) Areas within 12 nm (22 km) of any coastline, including offshore islands, or within non-operating areas for SURTASS LFA sonar are not eligible for consideration; (d) If a petition is received without sufficient information for the National Marine Fisheries Service to proceed, NMFS will determine whether the nominated area warrants further study. If so, NMFS will begin a scientific review of the area. (e)(1) If through a petition or independently, NMFS makes a preliminary determination that an area is biologically important for marine mammals and is not located within a previously designated area, NMFS will propose to add the area to §216.184(f) and provide a public comment period of at least 45 days from the date of publication in the (2) The National Marine Fisheries Service will publish its final determination in the
Title 50: Wildlife and Fisheries
PART 216—REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE MAMMALS
Subpart Q—Taking of Marine Mammals Incidental to Navy Operations of Surveillance Towed Array Sensor System Low Frequency Active (SURTASS LFA) Sonar
§ 216.180 Specified activity and specified geographical region.
§ 216.181 Effective dates.
§ 216.182 Permissible methods of taking.
§ 216.183 Prohibitions.
§ 216.184 Mitigation.
------------------------------------------------------------------------ Months of Name of area Location of area importance------------------------------------------------------------------------(1) 200-m isobath North American From 28° N. to Year-Round. East Coast. 50° N. west of 40° W.(2) Antarctic Convergence Zone.. 30° E. to October 1 through 80° E to March 31. 45° S. 80° E. to 150° E. to 55° S. 150° E. to 50° W. to 60° S. 50° W to 30° E. to 50° S.(3) Costa Rica Dome............. Centered at 9° Year-Round. N. and 88° W.(4) Penguin Bank................ Centered at November 1 through 21° N. and May 1. 157°30[min] W.------------------------------------------------------------------------
§ 216.185 Requirements for monitoring.
§ 216.186 Requirements for reporting.
§ 216.187 Applications for Letters of Authorization.
§ 216.188 Letters of Authorization.
§ 216.189 Renewal of Letters of Authorization.
§ 216.190 Modifications to Letters of Authorization.
§ 216.191 Designation of Biologically Important Marine Mammal Areas.
