50 C.F.R. Subpart R—Taking of Marine Mammals Incidental to Construction and Operation of Offshore Oil and Gas Facilities in the U.S. Beaufort Sea
Title 50 - Wildlife and Fisheries
Source: 71 FR 11322, Mar. 7, 2006, unless otherwise noted.
Effective Date Note: At 71 FR 11322, Mar. 7, 2006, subpart R, consisting of §§216.200 through 216.210 were added, effective Apr. 6, 2006 through Apr. 6, 2011.
Regulations in this subpart apply only to the incidental taking of those marine mammal species specified in paragraph (b) of this section by U.S. citizens engaged in oil and gas development activities in areas within state and/or Federal waters in the U.S. Beaufort Sea specified in paragraph (a) of this section. The authorized activities as specified in a Letter of Authorization issued under §§216.106 and 216.208 include, but may not be limited to, site construction, including ice road and pipeline construction, vessel and helicopter activity; and oil production activities, including ice road construction, and vessel and helicopter activity, but excluding seismic operations. (a)(1) Northstar Oil and Gas Development; and (2) [Reserved] (b) The incidental take by Level A harassment, Level B harassment or mortality of marine mammals under the activity identified in this section is limited to the following species: bowhead whale (Balaena mysticetus), gray whale (Eschrichtius robustus), beluga whale (Delphinapterus leucas), ringed seal (Phoca hispida), spotted seal (Phoca largha) and bearded seal (Erignathus barbatus). Regulations in this subpart are effective from April 6, 2006 through April 6, 2011. (a) Under Letters of Authorization issued pursuant to §§216.106 and 216.208, the Holder of the Letter of Authorization may incidentally, but not intentionally, take marine mammals by Level A and Level B harassment and mortality within the area described in §216.200(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 §216.200 must be conducted in a manner that minimizes, to the greatest extent practicable, any adverse impacts on marine mammals, their habitat, and on the availability of marine mammals for subsistence uses. Notwithstanding takings contemplated in §216.200 and authorized by a Letter of Authorization issued under §§216.106 and 216.208, no person in connection with the activities described in §216.200 shall: (a) Take any marine mammal not specified in §216.200(b); (b) Take any marine mammal specified in §216.200(b) other than by incidental, unintentional Level A or Level B harassment or mortality; (c) Take a marine mammal specified in §216.200(b) if such taking results in more than a negligible impact on the species or stocks of such marine mammal; or (d) Violate, or fail to comply with, the terms, conditions, and requirements of these regulations or a Letter of Authorization issued under §216.106. The activity identified in §216.200(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 §216.200, the mitigation measures contained in the Letter of Authorization issued under §§216.106 and 216.208 must be utilized. When applying for a Letter of Authorization pursuant to §216.207, or a renewal of a Letter of Authorization pursuant to §216.209, the applicant 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 mammals for subsistence uses. A plan must 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 the applicant has taken and/or will take to ensure that oil development activities will not interfere with subsistence whaling or sealing; (c) What plans the applicant has to continue to meet with the affected communities to notify the communities of any changes in operation. (a) Holders of Letters of Authorization issued pursuant to §§216.106 and 216.208 for activities described in §216.200 are 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 Administrator, Alaska Region, National Marine Fisheries Service, or his/her designee, by letter or telephone, at least 2 weeks prior to initiating new activities potentially involving the taking of marine mammals. (b) Holders of Letters of Authorization must designate qualified on-site individuals, approved in advance by the National Marine Fisheries Service, to conduct the mitigation, monitoring and reporting activities specified in the Letter of Authorization issued pursuant to §216.106 and §216.208. (c) Holders of Letters of Authorization must conduct all monitoring and/or research required under the Letter of Authorization. (d) Unless specified otherwise in the Letter of Authorization, the Holder of that Letter of Authorization must submit an annual report to the Director, Office of Protected Resources, National Marine Fisheries Service, no later than March 31 of the year following the conclusion of the previous open water monitoring season. This report must contain all information required by the Letter of Authorization. (e) A final annual comprehensive report must be submitted within the time period specified in the governing Letter of Authorization. (f) A final comprehensive report on all marine mammal monitoring and research conducted during the period of these regulations must be submitted to the Director, Office of Protected Resources, National Marine Fisheries Service at least 240 days prior to expiration of these regulations or 240 days after the expiration of these regulations if renewal of the regulations will not be requested. (a) To incidentally take bowhead whales and other marine mammals pursuant to these regulations, the U.S. citizen (see definition at §216.103) conducting the activity identified in §216.200 must apply for and obtain either an initial Letter of Authorization in accordance with §§216.106 and 216.208, or a renewal under §216.209. (b) The application for an initial Letter of Authorization must be submitted to the National Marine Fisheries Service at least 180 days before the activity is scheduled to begin. (c) Applications for initial Letters of Authorization must include all information items identified in §216.104(a). (d) NMFS will review an application for an initial Letter of Authorization in accordance with §216.104(b) and, if adequate and complete, will publish a notice of receipt of a request for incidental taking and a proposed amendment to §216.200(a). In conjunction with amending §216.200(a), the National Marine Fisheries Service will provide for public comment on the application for an initial Letter of Authorization. (e) Upon receipt of a complete application for an initial Letter of Authorization, and at its discretion, the National Marine Fisheries Service may submit the monitoring plan to members of a peer review panel for review and/or schedule a workshop to review the plan. Unless specified in the Letter of Authorization, the applicant must submit a final monitoring plan to the Assistant Administrator prior to the issuance of an initial Letter 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 §216.209. (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, including any requirements for the independent peer-review of proposed monitoring plans. (c) Issuance and renewal 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 as a whole will have no more than a negligible impact on the species or stock of affected 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. (d) 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 §216.208 for the activity identified in §216.200 will be renewed annually upon: (1) Notification to the National Marine Fisheries Service that the activity described in the application submitted under §216.207 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 §216.205, and the Letter of Authorization issued under §216.208, which have been reviewed and accepted by the National Marine Fisheries Service, and of the Plan of Cooperation required under §216.205; and (3) A determination by the National Marine Fisheries Service that the mitigation, monitoring and reporting measures required under §216.204 and the Letter of Authorization issued under §§216.106 and 216.208, were undertaken and will be undertaken during the upcoming annual period of validity of a renewed Letter of Authorization. (b) If a request for a renewal of a Letter of Authorization issued under §§216.106 and 216.208 indicates that a substantial modification to the described work, mitigation or monitoring undertaken during the upcoming season will occur, the National Marine Fisheries Service will provide the public a minimum 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 that indicates that the determinations made in this document are in need of reconsideration, (2) The Plan of Cooperation, and (3) The proposed monitoring plan. (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 substantive modification (including withdrawal or suspension) to the Letter of Authorization by the National Marine Fisheries Service, issued pursuant to §§216.106 and 216.208 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 §216.209, 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 §216.200(b), a Letter of Authorization issued pursuant to §§216.106 and 216.208 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 R—Taking of Marine Mammals Incidental to Construction and Operation of Offshore Oil and Gas Facilities in the U.S. Beaufort Sea
§ 216.200 Specified activity and specified geographical region.
§ 216.201 Effective dates.
§ 216.202 Permissible methods of taking.
§ 216.203 Prohibitions.
§ 216.204 Mitigation.
§ 216.205 Measures to ensure availability of species for subsistence uses.
§ 216.206 Requirements for monitoring and reporting.
§ 216.207 Applications for Letters of Authorization.
§ 216.208 Letters of Authorization.
§ 216.209 Renewal of Letters of Authorization.
§ 216.210 Modifications to Letters of Authorization.
