Title 50—Wildlife and Fisheries--Volume 1
PART 217—REGULATIONS GOVERNING THE TAKE OF MARINE MAMMALS INCIDENTAL TO SPECIFIED ACTIVITIES
§ 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.
§ 217.2   Effective dates.
Regulations in this subpart are effective from April 21, 2022, through April 20, 2027.
§ 217.3   Permissible methods of taking.
(a) Under LOAs issued pursuant to §§ 216.106 of this chapter and 217.7, the Holder of the LOA (hereinafter “SCWA”) may incidentally, but not intentionally, take marine mammals within the area described in § 217.1(b) of this chapter 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.
(b) [Reserved]
§ 217.4   Prohibitions.
Except for the takings contemplated in § 217.3 and authorized by an LOA issued under §§ 216.106 of this chapter and 217.7, it is unlawful for any person to do any of the following in connection with the activities described in § 217.1 of this chapter:
(a) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or an LOA issued under §§ 216.106 of this chapter and 217.7;
(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.
§ 217.5   Mitigation requirements.
When conducting the activities identified in § 217.1(a), the mitigation measures contained in any LOA issued under §§ 216.106 of this chapter and 217.7 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 SCWA, its designees, and work crew personnel operating under the authority of the issued LOA.
(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) All work shall be completed as efficiently as possible and with the smallest amount of heavy equipment possible.
(f) 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.
(g) 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) A water level management event may not occur for more than two consecutive days unless flooding threats cannot be controlled.
(3) 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 determine if pups less than one week old are on the beach prior to a breaching event.
(4) 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.
§ 217.6   Requirements for monitoring and reporting.
(a) Monitoring and reporting shall be conducted in accordance with the approved Pinniped Monitoring Plan.
(b) Reporting:
(1) Annual reporting:
(i) SCWA shall submit an annual summary report to NMFS not later than ninety days following the end of a given calendar year. 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; and
(H) Seal census from haul-out monitoring.
(2) [Reserved]
(c) Reporting of injured or dead marine mammals:
(1) In the unanticipated event that the activity defined in § 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 (c)(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 § 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, 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 (c)(2-3) 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 (c)(2-3) of this section, SCWA may use discretion in determining the appropriate vantage point for obtaining photographs of injured/dead marine mammals.
§ 217.7   Letters of Authorization.
(a) To incidentally take marine mammals pursuant to these regulations, 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 these regulations.
(c) If an LOA expires prior to the expiration date of these regulations, 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 § 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 these regulations.
(g) Notice of issuance or denial of an LOA shall be published in the Federal Register within 30 days of a determination.
§ 217.8   Renewals and modifications of Letters of Authorization.
(a) An LOA issued under §§ 216.106 of this chapter and 217.7 for the activity identified in § 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 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 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 §§ 216.106 of this chapter and 217.7 for the activity identified in § 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 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 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 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 LOAs issued pursuant to §§ 216.106 of this chapter and 217.7, 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.
§§ 217.9-217.10   [Reserved]
§ 217.30   Specified activity and specified geographical region.
(a) Regulations in this subpart apply only to Hilcorp LLC (Hilcorp) and those persons it authorizes or funds to conduct activities on its behalf for the taking of marine mammals that occurs in the areas outlined in paragraph (b) of this section and that occurs incidental to construction, maintenance, and operation of the Liberty Drilling and Production Island (LDPI) and associated infrastructure.
(b) The taking of marine mammals by Hilcorp may be authorized in a Letter of Authorization (LOA) only if it occurs within the Beaufort Sea, Alaska.
§ 217.31   Effective dates.
Regulations in this subpart are effective from December 1, 2021, through November 30, 2026.
§ 217.32   Permissible methods of taking.
Under LOAs issued pursuant to §§ 216.106 of this chapter and 217.36, the Holder of the LOA (hereinafter “Hilcorp”) may incidentally, but not intentionally, take marine mammals within the area described in § 217.30(b) by mortality, serious injury, Level A harassment, or Level B harassment associated with the LDPI construction and operation activities, including associated infrastructure, provided the activities are in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA.
§ 217.33   Prohibitions.
Notwithstanding takings contemplated in § 217.32 and authorized by an LOA issued under §§ 216.106 of this chapter and 217.36, no person in connection with the activities described in § 217.30 may:
(a) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or an LOA issued under §§ 216.106 of this chapter and 217.36;
(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 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; 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.
§ 217.34   Mitigation requirements.
When conducting the activities identified in § 217.30(a), the mitigation measures contained in any LOA issued under § 216.106 of this chapter must be implemented. These mitigation measures shall include but are not limited to:
(a) General conditions. (1) Hilcorp must renew, on an annual basis, the Plan of Cooperation (POC), throughout the life of the regulations in this subpart;
(2) A copy of any issued LOA must be in the possession of Hilcorp, its designees, and work crew personnel operating under the authority of the issued LOA;
(3) Hilcorp must conduct briefings for construction and ice road supervisors and crews, and the marine mammal and acoustic monitoring teams prior to the start of annual ice road or LDPI construction, and when new personnel join the work, in order to explain responsibilities, communication procedures, the marine mammal monitoring protocol, and operational procedures;
(4) Hilcorp must allow subsistence hunters to use the LDPI for safe harbor during severe storms, if requested by hunters;
(5) In the unanticipated event of an oil spill during LDPI operational years, Hilcorp must notify NMFS of the spill within 48 hours, regardless of size, and implement measures contained within the Liberty Oil Spill Response Plan; and
(6) Hilcorp must strive to complete pile driving and pipeline installation during the ice-covered season.
(7) Except during takeoff and landing and in emergency situations, aircraft must maintain an altitude of at least 457 m (1,500 ft). If a marine mammal is observed, then a horizontal distance of 305 m (100 ft) of whales or seals will be maintained between the aircraft and the observed marine mammals.
(b) Ice road construction, maintenance, and operation. (1) Hilcorp must implement the NMFS-approved Ice Road and Ice Trail Best Management Practices (BMPs) and the Wildlife Action Plan. These documents may be updated as needed throughout the life of the regulations in this subpart, in consultation with NMFS.
(2) Hilcorp must not approach ringed seal structures ( i.e., lairs or breathing holes) within 150 m or ringed seals within 50 m.
(c) Liberty Drilling Production Island construction. (1) For all pile driving and construction activities involving heavy equipment, Hilcorp must implement a minimum shutdown zone of 10 meters (m) from any marine mammal in water or seals on land. If a marine mammal comes within or is about to enter the shutdown zone, such operations must cease immediately;
(2) For all pile driving activity, Hilcorp shall implement shutdown zones with radial distances as identified in any LOA issued under §§ 216.106 of this chapter and 217.36. If a marine mammal comes within or is about to enter the shutdown zone, such operations must cease immediately. NMFS may adjust the shutdown zones pending review and approval of an acoustic monitoring report (see § 217.35);
(3) Hilcorp must employ NMFS-approved protected species observers (PSOs) and designate monitoring zones with radial distances as identified in any LOA issued under §§ 216.106 of this chapter and 217.36. NMFS may adjust the monitoring zones pending review and approval of an acoustic monitoring report (see § 217.35);
(4) If a bowhead whale or other low frequency cetacean enters the Level A harassment zone, pile or pipe driving must be shut down immediately. If a beluga whale or pinniped enters the Level A harassment zone while pile driving is ongoing, work may continue until the pile is completed (estimated to require approximately 15-20 minutes), but additional pile driving must not be initiated until the animal has left the Level A harassment zone. During this time, PSOs must monitor the animal and record behavior;
(5) If a marine mammal is approaching a Level A harassment zone and pile driving has not commenced, pile driving must be delayed. Pile driving may not commence or resume until either the animal has voluntarily left and been visually confirmed beyond the shutdown zone; 15 minutes have passed without subsequent detections of small cetaceans and pinnipeds; or 30 minutes have passed without subsequent detections of large cetaceans;
(6) If a species for which authorization has not been granted, or a species for which authorization has been granted but the authorized takes are met, is observed approaching or within the monitoring zone (which equates to the Level B harassment zone), pile driving and removal activities must shut down immediately using delay and shut-down procedures. Activities must not resume until the animal has been confirmed to have left the area or the observation time period, as indicated in paragraph (c)(5) of this section, has elapsed;
(7) Hilcorp must use soft start techniques when impact pile driving. Soft start 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. A soft start must 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;
(8) All pipe- and pile-driving activities (impact and vibratory) and LDPI support vessel traffic outside the barrier islands must cease by August 1, annually, and not resume until the official end of the hunt or until the quota has been met, whichever occurs first. Hilcorp must coordinate annually with subsistence users on the dates of these hunts; and
(9) Should an ice seal be observed on or near the LDPI by any Hilcorp personnel, during construction or operation, the sighting must be reported to Hilcorp's Environmental Specialist. No construction activity should occur within 10 m of an ice seal and any vehicles used should use precaution and not approach any ice seal within 10 m.
(d) Vessel restrictions. When operating vessels, Hilcorp must:
(1) Reduce vessel speed to 5 knots (kn) if a whale is observed within 500 m (1641 feet (ft)) of the vessel and is on a potential collision course with the vessel, or if a vessel is within 275 m (902 ft) of whales, regardless of course relative to the vessel;
(2) Avoid multiple changes in vessel direction;
(3) Not approach within 800 m (2,624 ft) of a North Pacific right whale or within 5.6 km (3 nautical miles) of Steller sea lion rookeries or major haulouts; and
(4) Avoid North Pacific right whale critical habitat or, if critical habitat cannot be avoided, reduce vessel speed during transit.
§ 217.35   Requirements for monitoring and reporting.
(a) All marine mammal and acoustic monitoring must be conducted in accordance to Hilcorp's Marine Mammal Mitigation and Monitoring Plan (4MP) and Acoustic Monitoring Plan, which includes acoustic monitoring during both the open-water and ice-covered seasons. These plans may be modified throughout the life of the regulations in this subpart upon NMFS review and approval.
(b) Monitoring must be conducted by NMFS-approved PSOs, who must have no other assigned tasks during monitoring periods and be equipped with, at minimum, binoculars and rangefinders. At minimum, two PSOs must be placed on elevated platforms on the island during the open-water season when island construction activities are occurring. These observers will monitor for marine mammals and implement shutdown or delay procedures when applicable through communication with the equipment operator.
(c) One PSO will be placed on the side where construction activities are taking place and the other placed on the opposite side of the LDPI; both observers will be on elevated platforms.
(d) PSOs will rotate duties such that they will observe for no more than 4 hours at a time and no more than 12 hours in a 24-hour period.
(e) An additional island-based PSO will work with an aviation specialist to use an unmanned aircraft system (UAS) to detect marine mammals in the monitoring zones during pile and pipe driving and slope shaping. Should UAS monitoring not be feasible or be deemed ineffective, a boat-based PSO must monitor for marine mammals during pile and pipe driving.
(f) During the open-water season, marine mammal monitoring must take place from 30 minutes prior to initiation of pile and pipe driving activity through 30 minutes post-completion of pile driving activity. 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 must be allowed to remain in the shutdown zone ( i.e., must leave of their own volition) and their behavior must be monitored and documented.
(g) After island construction is complete but drilling activities are occurring, a PSO will be stationed on the LDPI for approximately 4 weeks during the month of August to monitor for the presence of marine mammals around the island in the monitoring zone.
(1) Marine mammal monitoring during pile driving and removal must be conducted by NMFS-approved PSOs in a manner consistent with the following:
(i) At least one observer must have prior experience working as an observer;
(ii) Other observers may substitute education (degree in biological science or a related field) or training for experience;
(iii) Where a team of three or more observers are required, one observer must be designated as lead observer or monitoring coordinator. The lead observer must have prior experience working as an observer; and
(iv) Hilcorp must submit PSO curricula vitae (CVs) for approval by NMFS prior to the onset of pile driving.
(2) PSOs must have the following additional qualifications:
(i) Ability to conduct field observations and collect data according to assigned protocols;
(ii) Experience or training in the field identification of marine mammals, including the identification of behaviors;
(iii) Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations;
(iv) 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 in-water construction activities were conducted; dates, times, and reason for implementation of mitigation (or why mitigation was not implemented when required); and marine mammal behavior; and
(v) 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.
(h) Hilcorp must deploy autonomous sound recorders on the seabed to conduct underwater passive acoustic monitoring in the open-water season the first four years of the project such that island construction activities, including pile driving, and drilling operations are recorded. Acoustic monitoring will be conducted for the purposes of sound source verification to verify distances from noise sources at which underwater sound levels reach thresholds for potential marine mammal harassment.
(i) Hilcorp must submit incident and monitoring reports.
(1) Hilcorp must submit a draft annual marine mammal and acoustic summary report to NMFS not later than 90 days following the end of each calendar year. Hilcorp must provide a final report within 30 days after receipt of NMFS' comments on the draft report. The reports must contain, at a minimum, the following:
(i) Date and time that monitored activity begins or ends;
(ii) Description of construction activities occurring during each observation period;
(iii) Weather parameters ( e.g., wind speed, percent cloud cover, visibility);
(iv) Water conditions ( e.g., sea state, tide state);
(v) Species, numbers, and, if possible, sex and age class of marine mammals observed;
(vi) Description of any observable marine mammal behavior patterns, including bearing and direction of travel and distance from construction activity;
(vii) Distance from construction activities to marine mammals and distance from the marine mammals to the observation point;
(viii) An extrapolated total take estimate for each species based on the number of marine mammals observed and the extent of the harassment zones during the applicable construction activities;
(ix) Histograms of the perpendicular distance at which marine mammals were sighted by the PSOs;
(x) Description of implementation of mitigation measures ( e.g., shutdown or delay);
(xi) Locations of all marine mammal observations;
(xii) An estimate of the effective strip width of the island-based PSOs and the UAS imagery; and
(xiii) Sightings and locations of marine mammals associated with acoustic detections.
(2) Annually, Hilcorp must submit a report within 90 days of ice road decommissioning. The report must include the following:
(i) Date, time, location of observation;
(ii) Ringed seal characteristics ( i.e., adult or pup, behavior (avoidance, resting, etc.));
(iii) Activities occurring during observation, including equipment being used and its purpose, and approximate distance to ringed seal(s);
(iv) Actions taken to mitigate the effects of interaction, emphasizing: which BMPs were successful; which BMPs may need to be improved to reduce interactions with ringed seals; the effectiveness and practicality of implementing BMPs; any issues or concerns regarding implementation of BMPs; and potential effects of interactions based on observation data;
(v) Proposed updates (if any) to the NMFS-approved Wildlife Management Plan(s) or the ice-road BMPs; and
(vi) Reports should be able to be queried for information.
(3) Hilcorp must submit a final 5-year comprehensive summary report to NMFS not later than 90 days following the expiration of this subpart and LOA.
(4) Hilcorp must submit acoustic monitoring reports per the Acoustic Monitoring Plan.
(5) Hilcorp must report on observed injured or dead marine mammals.
(i) In the unanticipated event that the activity defined in § 217.30 clearly causes the take of a marine mammal in a prohibited manner, Hilcorp must immediately cease such activity and report the incident to the Office of Protected Resources (OPR), NMFS, and to the Alaska Regional Stranding Coordinator, NMFS. Activities must not resume until NMFS is able to review the circumstances of the prohibited take. NMFS will work with Hilcorp to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure Marine Mammal Protection Act (MMPA) compliance. Hilcorp may not resume their activities until notified by NMFS. 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, 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). Photographs may be taken once the animal has been moved from the waterfront area.
(H) In the event that Hilcorp 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), Hilcorp must immediately report the incident to OPR and the Alaska Regional Stranding Coordinator, NMFS. The report must include the information identified in paragraph (i)(5)(i) of this section. Activities may continue while NMFS reviews the circumstances of the incident. NMFS will work with Hilcorp to determine whether additional mitigation measures or modifications to the activities are appropriate.
(ii) In the event Hilcorp 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 § 217.30 ( e.g., previously wounded animal, carcass with moderate to advanced decomposition, scavenger damage), Hilcorp must report the incident to OPR and the Alaska Regional Stranding Coordinator, NMFS, within 24 hours of the discovery. Hilcorp must 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.
§ 217.36   Letters of Authorization.
(a) To incidentally take marine mammals pursuant to this subpart, Hilcorp 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 this subpart.
(c) If an LOA expires prior to the expiration date of this subpart, Hilcorp 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, Hilcorp must apply for and obtain a modification of the LOA as described in § 217.37.
(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 this subpart.
(g) Notice of issuance or denial of an LOA shall be published in the Federal Register within thirty days of a determination.
§ 217.37   Renewals and modifications of Letters of Authorization.
(a) An LOA issued under §§ 216.106 of this chapter and 217.36 for the activity identified in § 217.30(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 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 this subpart 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 this subpart 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 §§ 216.106 of this chapter and 217.36 for the activity identified in § 217.30(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 Hilcorp 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 this subpart.
(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 Hilcorp'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 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 §§ 216.106 of this chapter and 217.36, 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.
§§ 217.38-217.39   [Reserved]
§ 217.40   Specified activity and specified geographical region.
(a) Regulations in this subpart apply only to the Alaska Gasline Development Corporation (AGDC) or successor entities 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 the activities described in paragraph (c) of this section.
(b) The taking of marine mammals by AGDC may be authorized in a Letter of Authorization (LOA) only if it occurs within AGDC's Alaska liquefied natural gas (LNG) facilities' construction areas, which are located between the Beluga Landing shoreline crossing on the north and the Kenai River south of Nikiski on the south in Cook Inlet, Alaska.
(c) The taking of marine mammals during this project is only authorized if it occurs incidental to construction activities associated with the proposed LNG facilities or the Mainline crossing of Cook Inlet.
§ 217.41   Effective dates.
Regulations in this subpart are effective January 1, 2021 through December 31, 2025.
§ 217.42   Permissible methods of taking.
Under LOAs issued pursuant to §§ 216.106 of this chapter and 217.46, the Holder of the LOAs (hereinafter “AGDC”) may incidentally, but not intentionally, take marine mammals within the area described in § 217.40(b) by Level A harassment and Level B harassment associated with pile driving and pipe laying activities, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the applicable LOAs.
§ 217.43   Prohibitions.
Notwithstanding takings contemplated in § 217.42 and authorized by LOAs issued under §§ 216.106 of this chapter and 217.46, no person in connection with the activities described in § 217.40 may:
(a) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under §§ 216.106 of this chapter and 217.46;
(b) Take any marine mammal not specified in such LOAs; and
(c) Take any marine mammal specified in such LOAs in any manner other than as specified.
§ 217.44   Mitigation requirements.
When conducting the activities identified in § 217.40(c), the mitigation measures contained in any LOAs issued under §§ 216.106 of this chapter and 217.46 must be implemented. These mitigation measures must include but are not limited to:
(a) Time and area restriction. AGDC must follow the following time and area restrictions.
(1) In-water pile driving must occur only during daylight hours. Times for other construction activities, such as pipe laying, anchor handling, and dredging are not restricted.
(2) Pile driving associated with the Mainline Material Offloading Facility (Mainline MOF) must not occur from June 1 to September 7 (pile driving can occur from September 8 to May 31).
(3) Other than in-water sheet pile driving and pile removal, anchor handling, trenching, pipe laying, and vessel transits related to these activities, AGDC may not engage in in-water sound-producing activities within 10 miles (16 km) of the mean higher high water (MHHW) line of the Susitna Delta (Beluga River to the Little Susitna River) between April 15 and October 15 which produce sound levels in excess of 120 dB rms re 1µPa @ 1 m.
(b) Establishment of monitoring and exclusion zones. (1) For all relevant in-water construction activity, AGDC must designate Level A harassment zones with radial distances as identified in any LOA issued under §§ 216.106 of this chapter and 217.46.
(2) For all relevant in-water construction activity, AGDC must designate Level B harassment zones with radial distances as identified in any LOA issued under §§ 216.106 of this chapter and 217.46.
(3) For all in-water pile driving work, AGDC must implement an exclusion zone for each specific activity as identified in any LOA issued under §§ 216.106 of this chapter and 217.46. If a marine mammal comes within or enters the exclusion zone, AGDC must cease all operations.
(i) For humpback whale and killer whale during in-water pile driving activity, the exclusion zones must be based on the Level A harassment distances, but must not be less than 10 m from the pile.
(ii) For harbor porpoise and harbor seal during in-water pile driving activity, the exclusion zones must be based on the Level A harassment distances up to 1,000 m, but must not be less than 10 m from the pile.
(iii) For Cook Inlet beluga whale during in-water pile driving activity, the exclusion zones must be based on the Level B harassment distances.
(iv) A 2,900-m exclusion zone must be established for Cook Inlet beluga whale before pipe laying activity associated with anchor handling can occur.
(v) A minimum of 10-m exclusion zone must be established for in-water construction and heavy machinery not addressed elsewhere in this paragraph (b)(3).
(c) Monitoring of exclusion zones. Pile driving must only take place when the exclusion zones are visible and can be adequately monitored. If visibility degrades to where the entire exclusion zone cannot be effectively monitored during pile driving, AGDC may continue to drive the pile section that was being driven to its target depth, but may not drive additional sections of pile.
(d) Shutdown measures. (1) AGDC must deploy protected species observers (PSOs) to monitor marine mammals during in-water pile driving and pipe laying activities.
(2) Monitoring must take place from 30 minutes prior to initiation of pile driving or pipe laying activities through 30 minutes post-completion of pile driving or pipe laying activities.
(i) For pile driving activity, pre-activity monitoring must be conducted for 30 minutes to confirm that the exclusion zone is clear of marine mammals, and pile driving may commence only if observers have declared the exclusion zone clear of marine mammals for that full duration of time. Monitoring must occur throughout the time required to drive a pile. A determination that the exclusion zone is clear must be made during a period of good visibility ( i.e., the entire exclusion zone and surrounding waters must be visible to the naked eye).
(ii) If marine mammals are found within the exclusion zone, pile driving of the segment must be delayed until they move out of the area. If a marine mammal is seen above water and then dives below, the contractor must wait 30 minutes for large cetaceans (humpback whale) and 15 minutes for small cetaceans (beluga and killer whales and harbor porpoise) and pinnipeds. If no marine mammals of that species are seen by the observer in that time it can be assumed that the animal has moved beyond the exclusion zone.
(iii) If pile driving of a segment ceases for 30 minutes or more and a marine mammal is sighted within the designated exclusion zone prior to commencement of pile driving, the observer(s) must notify the pile driving operator (or other authorized individual) immediately and continue to monitor the exclusion zone. Operations may not resume until the marine mammal has exited the exclusion zone or 30 minutes have elapsed for large cetaceans or 15 minutes have elapsed for small cetaceans and pinnipeds since the last sighting.
(3) If a marine mammal authorized to be taken by Level B harassment enters or approaches the exclusion zone, if a marine mammal not specified in the LOAs enters the Level B harassment zone, or if the take of a marine mammal species or stock has reached the take limits specified in any LOA issued under §§ 216.106 of this chapter and 217.46 and enters the Level B harassment zone, AGDC must halt all construction activities at that location. If construction 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 or Level B harassment zone, whichever applicable, or 30 minutes have passed without re-detection of the animal if it is a larger cetacean (humpback whale), or 15 minutes have passed without re-detection of the animal if it is a small cetacean (beluga and killer whales and porpoises) or pinniped.
(e) Soft start. (1) AGDC must implement soft start techniques for impact pile driving. AGDC must conduct an initial set of three strikes from the impact hammer at 40 percent energy, followed by a 30-second waiting period, then two subsequent three strike sets with associated 30-seconds waiting periods at the reduced energy.
(2) Soft start must be required for any impact driving, including at the beginning of the day, and at any time following a cessation of impact pile driving of 30 minutes or longer.
(f) Noise attenuation device. For pile-driving at the Mainline MOF near the Beluga River, and on the east side of Cook Inlet near Nikiski associated with the liquefaction facility, AGDC must deploy air bubble curtains around piles. If the sound source verification (SSV) measurements indicate that the best-performing bubble curtain configuration provides less than a 2 dB reduction in in-water sound beyond the bubble curtain, use of the bubble curtain may be discontinued.
(g) Vessel transit. (1) Operators of vessels must, at all times, avoid approaching within 100 yards of marine mammals. Operators must observe direction of travel of marine mammals and attempt to maintain a distance of 100 yards or greater between the animal and the vessel by working to alter vessel course or velocity.
(2) The vessel operator must avoid placing the vessel between members of a group of marine mammals in a way that may cause separation of individuals in the group from other individuals in that group. A group is defined as being three or more whales observed within 500-m of one-another and displaying behaviors of directed or coordinated activity ( e.g., migration or group feeding).
(3) If the vessel approaches within 1.6 km (1 mi) of one or more whales, the vessel operator must take reasonable precautions to avoid potential interaction with the whales by taking one or more of the following actions, as appropriate:
(i) Steering to the rear of whale(s) to avoid causing changes in their direction of travel.
(ii) Maintaining vessel speed of 10 knots (19 km/hr) or less when transiting to minimize the likelihood of lethal vessel strikes.
(iii) Reducing vessel speed to less than 5 knots (9 km/hour) within 274 m (300 yards) of the whale(s).
(4) Project vessels must remain a minimum of 2.8 km (1.5 nm) seaward of the mean lower low water (MLLW) line between the Little Susitna River and −150.80 degrees west longitude to minimize the impacts of vessel sound and avoid strikes on Cook Inlet beluga whales between June 1 and September 7. The Susitna Delta Exclusion Zone is defined as the union of the areas defined by:
(i) A 16-km (10-mile) buffer of the Beluga River thalweg seaward of the mean lower low water (MLLW) line;
(ii) A 16-km (10-mile) buffer of the Little Susitna River thalweg seaward of the MLLW line; and
(iii) A 16-km (10-mile) seaward buffer of the MLLW line between the Beluga River and Little Susitna River.
(iv) The buffer extends landward along the thalweg to include intertidal waters within rivers and streams up to their mean higher high water line (MHHW). The seaward boundary has been simplified so that it is defined by lines connecting readily discernable landmarks.
(5) For vessels operating in the Susitna Delta Exclusion Zone, the following must be implemented:
(i) All project vessels operating within the designated Susitna Delta area must maintain a speed over ground below 4 knots. PSOs must note the numbers, date, time, coordinates, and proximity to vessels of all belugas observed during operations, and report these observations to NMFS in monthly PSO reports.
(ii) Vessel crew must be trained to monitor for Endangered Species Act (ESA)-listed species prior to and during all vessel movements within the Susitna Delta Exclusion Zone. The vessel crew must report sightings to the PSO team for inclusion in the overall sighting database and reports.
(iii) Vessel operators must not move their vessels when they are unable to adequately observe the 100-m zone around vessels under power (in gear) due to darkness, fog, or other conditions, unless necessary for ensuring human safety.
§ 217.95   Requirements for monitoring and reporting.
(a) Marine mammal visual monitoring —(1) Protected species observers. AGDC must employ trained protected species observers (PSO) to conduct marine mammal monitoring for its LNG facilities construction projects.
(i) The PSOs must observe and collect data on marine mammals in and around the project area for 30 minutes before, during, and for 30 minutes after all construction work. PSOs must have no other assigned tasks during monitoring periods, and must be placed at appropriate and safe vantage point(s) practicable to monitor for marine mammals and implement shutdown or delay procedures, when applicable, through communication with the equipment operator.
(ii) [Reserved]
(2) Protected species observer qualifications. AGDC must adhere to the following observer qualifications:
(i) Independent PSOs ( i.e., not construction personnel) who have no other assigned tasks during monitoring periods must be used;
(ii) Where a team of three or more PSOs are required, a lead observer or monitoring coordinator must be designated. The lead observer must have prior experience working as a marine mammal observer during construction;
(iii) Other PSOs may substitute education (degree in biological science or related field) or training for experience;
(iv) AGDC must submit PSO CVs for approval by NMFS prior to the onset of pile driving;
(v) The PSOs must have the ability to conduct field observations and collect data according to assigned protocols;
(vi) The PSOs must have the experience or training in the field identification of marine mammals, including the identification of behaviors;
(vii) The PSOs must have sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations;
(viii) The PSOs must have 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 in-water construction activities were conducted; dates, times, and reason for implementation of mitigation (or why mitigation was not implemented when required); and marine mammal behavior; and
(ix) The PSOs must have the 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.
(3) Marine mammal monitoring protocols. AGDC must adhere to the following marine mammal monitoring protocols:
(i) For pile driving activities, a minimum of two PSOs must be on duty at all times;
(ii) For pile driving activities, PSOs must be stationed on a bluff with minimum height 500 feet above sea level immediately above the construction site;
(iii) For marine mammal monitoring during pipe laying activities, at least one PSO must be on the barge and on watch;
(iv) PSOs may not exceed 4 consecutive watch hours; must have a minimum two-hour break between watches; and may not exceed a combined watch schedule of more than 12 hours in a 24-hour period;
(v) PSOs must have no other construction-related tasks while conducting monitoring;
(vi) Monitoring must be conducted from 30 minutes prior to commencement of pile driving, throughout the time required to drive a pile, and for 30 minutes following the conclusion of pile driving;
(vii) Monitoring must be conducted from 30 minutes prior to commencement of pipe laying activity, throughout the time of pipe laying, and for 30 minutes following the conclusion of pipe laying for the segment;
(viii) During all observation periods, PSOs must use high-magnification (25X), as well as standard handheld (7X) binoculars, and the naked eye to search continuously for marine mammals;
(ix) Monitoring distances must be measured with range finders. Distances to animals must be based on the best estimate of the PSO, relative to known distances to objects in the vicinity of the PSO; and
(x) Bearings to animals must be determined using a compass.
(4) Marine mammal monitoring data collection. PSOs must collect the following information during marine mammal monitoring:
(i) Date and time that monitored activity begins and ends for each day conducted (monitoring period);
(ii) Construction activities occurring during each daily observation period, including how many and what type of piles driven and distances covered during pipe laying;
(iii) Deviation from initial proposal in pile numbers, pile types, average driving times, and pipe laying distances, etc.;
(iv) Weather parameters in each monitoring period ( e.g., wind speed, percent cloud cover, visibility);
(v) Water conditions in each monitoring period ( e.g., sea state, tide state);
(vi) For each marine mammal sighting:
(A) Species, numbers, and, if possible, sex and age class of marine mammals;
(B) Description of any observable marine mammal behavior patterns, including bearing and direction of travel and distance from pile driving and pipe laying activities, and notable changes in patterns;
(C) Location and distance from pile driving and pipe laying activities to marine mammals and distance from the marine mammals to the observation point; and
(D) Estimated amount of time that the animals remained in the Level A and/or Level B harassment zones;
(vii) Description of implementation of mitigation measures within each monitoring period ( e.g., shutdown or delay); and
(viii) Other human activity in the area within each monitoring period.
(b) Acoustic monitoring. AGDC must conduct a sound source verification (SSV) in accordance with the requirements in the LOA, at the beginning of the pile driving to characterize the sound levels associated with different pile and hammer types, as well as to establish the marine mammal monitoring and mitigation zones.
(1) A minimum of 2 piles of each type and size must be measured.
(2) The following data, at minimum, shall be collected during acoustic monitoring and reported:
(i) Hydrophone equipment and methods: Recording device, sampling rate, distance from the pile where recordings were made; depth of recording device(s);
(ii) Type of pile being driven and method of driving during recordings; and
(iii) Mean, median, and maximum sound levels (dB re: 1µPa): Cumulative sound exposure level (SEL cum ), peak sound pressure level (SPL peak ), root mean square sound pressure level (SPL rms ), and single-strike sound exposure level (SEL s-s ).
(3) An SSV report must be submitted to NMFS within 72 hours after field measurements for approval of the results.
(4) The results of the SSV report may be used to adjust the extent of Level A and Level B harassment zones in-water pile driving.
(c) Reporting measures —(1) Notification. AGDC must notify NMFS 48 hours prior to the start of each activity in Cook Inlet that may cause harassment of marine mammals. If there is a delay in activity, AGDC must also notify NMFS as soon as practicable.
(2) Monthly report. AGDC must submit monthly reports via email to NMFS Office of Protected Resources (OPR) and Alaska Regional Office (AKRO) for all months with project activities by the 15th of the month following the monthly reporting period. The monthly report must contain and summarize the following information:
(i) Dates, times, locations, heading, speed, weather, sea conditions (including Beaufort sea state and wind force), and a list of all in-water sound-producing activities occurring concurrent with marine mammal observations;
(ii) Species, number, location, distance from the vessel, and behavior of all observed marine mammals, as well as associated project activity ( e.g., number of power-downs and shutdowns), observed throughout all monitoring activities;
(iii) Observation data in paragraphs (a) and (b) of this section must be provided in digital spreadsheet format that can be queried;
(iv) An estimate of the number of animals (by species) exposed to sound at received levels greater than or equal to either the Level A or Level B harassment thresholds, with a discussion the time spent above those received levels and of any specific behaviors those individuals exhibited;
(v) If the extent of Level B harassment zone is beyond visual observation, AGDC must also include an appropriate adjustment to estimate the total numbers of marine mammals taken based on the portion of the areas that are monitored; and
(vi) A description of the implementation and effectiveness of the terms and conditions of the Biological Opinion's Incidental Take Statement and mitigation and monitoring measures of the LOA.
(3) Marine mammal tally numbers. (i) AGDC must keep a tally of the estimated number of marine mammals that are taken, based on the number of marine mammals observed within the applicable harassment zones, and alert NMFS when the authorized limit is close to being met based on prescribed monitoring measured in the final rule; and
(ii) AGDC must keep a tally of the number of marine mammal that are sighted during the pile driving and pipe laying activities.
(4) Beluga whale takes. AGDC must immediately notify NMFS if the number of Cook Inlet beluga estimated as taken (based on observed exposures above thresholds) reaches 80% of the authorized takes in any given calendar year during which take is authorized.
(5) Annual report. (i) AGDC must submit a comprehensive annual report to NMFS within 90 calendar days of the cessation of in-water work each year for review. The report must synthesize all sighting data and effort during each activity for each year.
(ii) NMFS will provide comments within 30 days after receiving annual reports, and AGDC must address the comments and submit revisions within 30 days after receiving NMFS comments.
(iii) If no comments are received from the NMFS within 30 days, the annual report is considered completed.
(iv) The report must include the following information:
(A) Summaries of monitoring effort including total hours, observation rate by species and marine mammal distribution through the study period, accounting for sea state and other factors affecting visibility and detectability of marine mammals.
(B) Analyses of the effects of various factors that may have influenced detectability of marine mammals ( e.g., sea state, number of observers, fog/glare, and other factors as determined by the PSOs).
(C) 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.
(D) Marine mammal observation data with a digital record of observation data provided in digital spreadsheet format that can be queried.
(E) Summary of implemented mitigation measures ( i.e., shutdowns and delays).
(F) Number of marine mammals during periods with and without project activities (and other variables that could affect detectability), such as:
( 1 ) Initial sighting distances versus project activity at the time of sighting;
( 2 ) Closest point of approach versus project activity;
( 3 ) Observed behaviors and types of movements versus project activity;
( 4 ) Numbers of sightings/individuals seen versus project activity;
( 5 ) Distribution around the source vessels versus project activity; and
( 6 ) Numbers of animals detected in the exclusion zone.
(G) Analyses of the effects of project activities on listed marine mammals.
(6) Final report. (i) AGDC must provide NMFS, within 90 days of project completion at the end of the five-year period, a report of all parameters listed in the monthly and annual report requirements in paragraph (c) of this section, noting also all operational shutdowns or delays necessitated due to the proximity of marine mammals.
(ii) NMFS will provide comments within 30 days after receiving this report, and AGDC must address the comments and submit revisions within 30 days after receiving NMFS comments.
(iii) If no comments are received from the NMFS within 30 days, the final report is considered as final.
(7) Reporting of injured or dead marine mammals. (i) In the unanticipated event that the construction or demolition activities clearly cause the take of a marine mammal in a prohibited manner, such as an injury, serious injury, or mortality, AGDC must immediately cease operations with the potential to impact marine mammals in the vicinity and immediately report the incident to the NMFS Office of Protected Resources, NMFS Alaska Regional Office, and the Alaska Region Stranding Coordinators. The report must include the following information:
(A) Time, date, and location (latitude/longitude) of the incident;
(B) Description of the incident;
(C) Status of all sound source use in the 24 hours preceding the incident;
(D) Environmental conditions ( e.g., wind speed and direction, sea state, cloud cover, visibility, and water depth);
(E) Description of marine mammal observations in the 24 hours preceding the incident;
(F) Species identification or description of the animal(s) involved;
(G) The fate of the animal(s); and
(H) Photographs or video footage of the animal (if equipment is available).
(ii) Activities must not resume until NMFS is able to review the circumstances of the prohibited take. NMFS must work with AGDC to determine what is necessary to minimize the likelihood of further prohibited take and ensure Marine Mammal Protection Act (MMPA) compliance. AGDC may not resume its activities until notified by NMFS via letter, email, or telephone.
(iii) In the event that AGDC 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 ( i.e., in less than a moderate state of decomposition as described in paragraph (c)(7)(iv) of this section), AGDC must immediately report the incident to the NMFS Office of Protected Resources, NMFS Alaska Regional Office, and the Alaska Regional Stranding Coordinators. The report must include the same information identified in paragraph (b)(3)(i) of this section. Activities may continue while NMFS reviews the circumstances of the incident. NMFS will work with AGDC to determine whether modifications in the activities are appropriate.
(iv) In the event that AGDC 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), AGDC must report the incident to the NMFS Office of Protected Resources, NMFS Alaska Regional Office, and the Alaska Regional Stranding Coordinators, within 48 hours of the discovery. AGDC must provide photographs or video footage (if available) or other documentation of the stranded animal sighting to NMFS and the Marine Mammal Stranding Network. AGDC may continue its operations under such a case.
§ 217.46   Letters of Authorization.
(a) To incidentally take marine mammals pursuant to the regulations in this subpart, AGDC must apply for and obtain (LOAs) in accordance with § 216.106 of this chapter for conducting the activity identified in § 217.40(c).
(b) LOAs, unless suspended or revoked, may be effective for a period of time not to extend beyond the expiration date of the regulations in this subpart.
(c) If an LOA(s) expires prior to the expiration date of the regulations in this subpart, AGDC may apply for and obtain a renewal of the LOA(s).
(d) In the event of projected changes to the activity or to mitigation, monitoring, reporting (excluding changes made pursuant to the adaptive management provision of § 217.47(c)(1)) required by an LOA, AGDC must apply for and obtain a modification of LOAs as described in § 217.47.
(e) Each LOA must 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 the availability of the species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA(s) must be based on a determination that the level of taking must be consistent with the findings made for the total taking allowable under the regulations in this subpart.
(g) Notice of issuance or denial of the LOA(s) must be published in the Federal Register within 30 days of a determination.
§ 217.47   Renewals and modifications of Letters of Authorization.
(a) An LOA issued under §§ 216.106 of this chapter and 217.46 for the activity identified in § 217.40(c) must 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(s) under the regulations in this subpart 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 in paragraph (c)(1) of this section) that do not change the findings made for the regulations in this subpart 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 §§ 216.106 of this chapter and 217.46 for the activity identified in § 217.40(c) may be modified by NMFS under the following circumstances:
(1) Adaptive management. After consulting with AGDC regarding the practicability of the modifications, NMFS may modify (including by adding or removing measures) the existing mitigation, monitoring, or reporting measures if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring set forth in the regulations in this subpart.
(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 AGDC'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 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 must 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 §§ 216.106 of this chapter and 217.46, 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.
§§ 217.48-217.49   [Reserved]
§ 217.50   Specified activity and specified geographical region.
(a) Regulations in this subpart apply only to the St. George Reef Lighthouse Preservation Society (Society) and those persons it authorizes or funds to conduct activities on its behalf for the taking of marine mammals that occurs in the areas outlined in paragraph (b) of this section and that occurs incidental to lighthouse repair and tour operation activities.
(b) The taking of marine mammals by the Society may be authorized in a Letter of Authorization (LOA) only if it occurs within Pacific Ocean waters in the vicinity of Northwest Seal Rock near Crescent City, California.
§ 217.51   Effective dates.
Regulations in this subpart are effective from May 15, 2022 through May 14, 2027.
§ 217.52   Permissible methods of taking.
Under LOAs issued pursuant to § 216.106 of this chapter and § 217.56, the Holder of the LOA (hereinafter “Society”) may incidentally, but not intentionally, take marine mammals within the area described in § 217.50(b) by Level B harassment associated with lighthouse repair and tour operation activities, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA.
§ 217.53   Prohibitions.
Except for taking authorized by a LOA issued under §§ 216.106 and 217.56 of this chapter, it shall be unlawful for any person to do any of the following in connection with the activities described in § 217.50:
(a) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under § 216.106 of this chapter and § 217.56;
(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; or
(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.
§ 217.54   Mitigation requirements.
When conducting the activities identified in § 217.50(a), the mitigation measures contained in any LOA issued under § 216.106 of this chapter and § 217.56 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 Society, supervisory personnel, pilot, protected species observers (PSOs), and any other relevant designees of the Holder operating under the authority of this LOA at all times that activities subject to this LOA are being conducted.
(2) The Society must conduct training between supervisors and crews and the marine mammal monitoring team and relevant Society staff prior to the start of all trips and when new personnel join the work, so that responsibilities, communication procedures, monitoring protocols, and operational procedures are clearly understood. Visitors to the Station must be instructed to avoid unnecessary noise and not expose themselves visually to pinnipeds around the base of the lighthouse.
(3) All personnel must avoid direct physical interaction with marine mammals during activity. If a marine mammal comes within 10 m of such activity, operations must cease until the animal leaves of its own accord.
(4) Loud outside activity must be halted upon observation on Northwest Seal Rock (NWSR) of either a species for which incidental take is not authorized or a species for which incidental take has been authorized but the authorized number of takes has been met.
(5) No more than two restoration trips, or 6 days of flight operations, are permitted per month.
(b) Protocols. (1) The pilot must ensure that helicopter approach patterns to the NWSR are such that the timing and techniques are least disturbing to marine mammals. To the extent possible, the helicopter must approach NWSR when the tide is too high for marine mammals to haul out on NWSR. The helicopter must avoid rapid and direct approaches to the station by approaching NWSR at a relatively high altitude ( e.g., 800-1,000 ft; 244-305 m). Before the final approach, the helicopter must circle lower, and approach from an area where the density of pinnipeds is the lowest. If for any safety reasons ( e.g., wind conditions or visibility) such helicopter approach and timing techniques cannot be achieved, the Society must abort the restoration and maintenance session for the day.
(2) Monitoring must be conducted by a trained PSO, who must have no other assigned tasks during monitoring periods. Trained PSOs must be placed at the best vantage point(s) practicable to monitor for marine mammals and implement mitigation procedures when applicable. The Society must adhere to the following additional PSO qualifications:
(i) Independent PSOs are required;
(ii) At least one PSO must have prior experience working as an observer;
(iii) Other observers may substitute education (degree in biological science or related field) or training for experience; and
(iv) The Society must submit PSO resumes for approval by NMFS prior to beginning any activity subject to these regulations.
(3) The PSO must monitor the project area to the maximum extent possible based on the required monitoring locations and environmental conditions. They must record all observations of marine mammals as described in Section 5 of any LOA, regardless of distance from the activity. A PSO with a high definition camera must be on the first flight to the station each day. For 15 minutes before and after all other takeoffs and landings a PSO must be stationed on the platform of the lantern room gallery, and a PSO must be on the last departing helicopter of the day.
§ 217.55   Requirements for monitoring and reporting.
(a) PSOs must document any behavioral reactions in concert with distance from any project activity.
(b) Reporting —(1) Reporting frequency. (i) The Society must submit a quarterly summary report to NMFS not later than 90 days following the end of each work quarter; after the first three quarterly submissions, NMFS will evaluate whether it is appropriate to modify to annual reports, and modify future LOAs as appropriate to indicate annual reporting requirements if so. The Society must provide a final report within 30 days following resolution of comments on each draft report.
(ii) These reports must contain, at minimum, the following:
(A) Dates and times (begin and end) of all marine mammal monitoring;
(B) Activities occurring during all marine mammal monitoring ( e.g., helicopter takeoffs and landings, construction activities);
(C) PSO locations during marine mammal monitoring;
(D) Environmental conditions during monitoring periods (at beginning and end of PSO shift and whenever conditions change significantly), including Beaufort sea state and any other relevant weather conditions including cloud cover, fog, sun glare, and overall visibility to the horizon, and estimated observable distance;
(E) Upon each flight, the following information: Name of PSO who sighted the animal(s) and PSO location and activity at time of sighting; time of sighting; identification of the animal(s) ( e.g., genus/species, lowest possible taxonomic level, or unidentified), PSO confidence in identification, and the composition of the group if there is a mix of species; distance and bearing of each marine mammal observed relative to the activity for each flight; estimated number of animals (min/max/best estimate); estimated number of animals by cohort (adults, juveniles, neonates, group composition, etc.); and description of any marine mammal behavioral observations ( e.g., observed behaviors such as feeding or traveling), including an assessment of behavioral responses thought to have resulted from the activity according to the 3-point scale as defined in the LOA ( e.g., no response or changes in behavioral state such as changing direction or flushing);
(F) Number of marine mammals detected, by species; and
(G) Detailed information about any implementation of any mitigation triggered, a description of specific actions that ensued, and resulting changes in behavior of the animal(s), if any.
(2) The Society must submit a comprehensive summary report to NMFS not later than 90 days following the conclusion of marine mammal monitoring efforts described in this subpart.
(c) Reporting of injured or dead marine mammals. (1) In the event that personnel involved in the construction activities discover an injured or dead marine mammal, the LOA-holder must immediately report the incident to the Office of Protected Resources (OPR) ( PR.ITP.MonitoringReports@noaa.gov ), NMFS and to West Coast Regional Stranding Coordinator as soon as feasible. If the death or injury was clearly caused by activities specified at § 217.50, the Society must immediately cease the specified activities until NMFS is able to review the circumstances of the incident and determine what, if any, additional measures are appropriate to ensure compliance with the terms of these regulations and LOAs. The LOA-holder must not resume their activities until notified by NMFS. The report must include the following information:
(i) Time, date, and location (latitude/longitude) of the first discovery (and updated location information if known and applicable);
(ii) Species identification (if known) or description of the animal(s) involved;
(iii) Condition of the animal(s) (including carcass condition if the animal is dead);
(iv) Observed behaviors of the animal(s), if alive;
(v) If available, photographs or video footage of the animal(s); and
(vi) General circumstances under which the animal was discovered.
(2) [Reserved]
§ 217.56   Letters of Authorization.
(a) To incidentally take marine mammals pursuant to these regulations, the Society 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 Society 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, the Society must apply for and obtain a modification of the LOA as described in § 217.57.
(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 30 days of a determination.
§ 217.57   Renewals and modifications of Letters of Authorization.
(a) An LOA issued under § 216.106 of this chapter and § 217.56 for the activity identified in § 217.50(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 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 §§ 216.106 and 217.56 of this chapter for the activity identified in § 217.50(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 Society 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 Society's monitoring from the previous year(s).
(B) Results from other marine mammal and/or sound or disturbance 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 LOAs issued pursuant to § 216.106 of this chapter and § 217.56, 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.
§§ 217.58-217.59   [Reserved]
§ 217.60   Specified activity and specified geographical region.
(a) Regulations in this subpart apply only to the United States Space Force (USSF) and those persons it authorizes to conduct activities on its behalf, for the taking of marine mammals that occurs in the areas outlined in paragraph (b) of this section incidental to rocket and missile launches and supporting operations.
(b) The incidental taking of marine mammals under this subpart may be authorized in a Letter of Authorization (LOA) only for activities originating at Vandenberg Space Force Base (VSFB).
§ 217.61   Effective dates.
(a) Regulations in this subpart are effective from April 10, 2024, through April 10, 2029.
(b) [Reserved]
§ 217.62   Permissible methods of taking.
(a) Under an LOA issued pursuant to § 216.106 of this chapter and § 217.66 or § 217.67, the Holder (hereinafter the USSF) may incidentally, but not intentionally, take marine mammals by Level B harassment, as described in § 217.60(a) and (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 by the activities listed in § 217.60 is limited to the following species and stocks:
Table 1 to § 217.62( b )
§ 217.63   Prohibitions.
(a) Except for takings contemplated in § 217.62 and authorized by a LOA issued under § 216.106 of this chapter and §§ 217.66 and 217.67, it shall be unlawful for any person to do any of the following in connection with the activities listed in § 217.60:
(1) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under § 216.106 of this chapter and § 217.66 or § 217.67;
(2) Take any marine mammal species or stock not specified in this subpart or such LOAs;
(3) Take any marine mammal specified in this subpart or such LOAs in any manner other than as specified; or
(4) Take a marine mammal specified in this subpart or such LOAs if NMFS determines after notice and comment that the taking allowed for one or more activities under 16 U.S.C. 1371(a)(5)(A) is having or may have more than a negligible impact on the species or stocks of such marine mammal.
(b) [Reserved]
§ 217.64   Mitigation requirements.
(a) When conducting the activities identified in § 217.60(a) and (b), the mitigation measures contained in any LOA issued under § 216.106 of this chapter and § 217.66 or § 217.67 must be implemented. These mitigation measures include (but are not limited to):
(1) USSF must provide pupping information to launch proponents at the earliest possible stage in the launch planning process and direct launch proponents to, if practicable, avoid scheduling launches during pupping seasons on VSFB from 1 March to 30 April and on the Northern Channel Islands from 1 June-31 July. If practicable, rocket launches predicted to produce a sonic boom on the Northern Channel Islands >3 pounds per square foot (psf) from 1 June-31 July will be scheduled to coincide with tides in excess of +1.0 ft (0.3 m), with an objective to do so at least 50 percent of the time.
(2) For manned flight operations, aircraft must use approved routes for testing and evaluation. Manned aircraft must also remain outside of a 1,000-ft (305 m) buffer around pinniped rookeries and haul-out sites (except in emergencies such as law enforcement response or Search and Rescue operations, and with a reduced, 500-ft (152 m) buffer at Small Haul-out 1).
(3) Unscrewed aerial systems (UAS) classes 0-2 must maintain a minimum altitude of 300 ft (91 m) over all known marine mammal haulouts when marine mammals are present, except at take-off and landing. Class 3 must maintain a minimum altitude of 500 ft (152 m), except at take-off and landing. UAS classes 4 and 5 only operate from the VSFB airfield and must maintain a minimum altitude of 1,000 ft (305 m) over marine mammal haulouts except at take-off and landing. USSF must not fly class 4 or 5 UAS below 1,000 ft (305 m) over haulouts.
(b) [Reserved]
§ 217.65   Requirements for monitoring and reporting.
(a) Monitoring at VSFB and NCI must be conducted by at least one NMFS-approved Protected Species Observer (PSO) trained in marine mammal science. PSOs must have demonstrated proficiency in the identification of all age and sex classes of all marine mammal species that occur at VSFB and on Northern Channel Islands (NCI). They must be knowledgeable of approved count methodology and have experience in observing pinniped behavior, especially that due to human disturbances.
(b) In the event that the PSO requirements described in paragraph (a) of this section cannot be met ( e.g., access is prohibited due to safety concerns), daylight or nighttime video monitoring must be used in lieu of PSO monitoring. In certain circumstances where the daylight or nighttime video monitoring is also not possible ( e.g., USSF is unable to access a monitoring site due to road conditions or human safety concerns), USSF must notify NMFS.
(c) At VSFB, USSF must conduct marine mammal monitoring and take acoustic measurements for all new rockets, for rockets (existing and new) launched from new facilities, and for larger or louder rockets (including those with new launch proponents) than those that have been previously launched from VSFB during their first three launches and for the first three launches from any new facilities during March through July.
(1) For launches that occur during the harbor seal pupping season (March 1 through June 30) or when higher numbers of California sea lions are present (June 1 through July 31), monitoring must be conducted by at least one NMFS-approved PSO trained in marine mammal science.
(2) When launch monitoring is required, monitoring must begin at least 72 hours prior to the launch and continue through at least 48 hours after the launch. Monitoring must include multiple surveys each day, with a minimum of four surveys per day.
(3) For launches within the harbor seal pupping season, USSF must conduct a follow-up survey of pups.
(4) For launches that occur during daylight, USSF must make time-lapse video recordings to capture the reactions of pinnipeds to each launch. For launches that occur at night, USSF must employ night video monitoring, when feasible.
(5) When possible, PSOs must record: species, number, general behavior, presence and number of pups, age class, gender, and reaction to launch noise, or to natural or other human-caused disturbances. PSOs must also record environmental conditions, including visibility, air temperature, clouds, wind speed and direction, tides, and swell height and direction.
(d) USSF must conduct sonic boom modeling prior to the first three small or medium rocket launches from new launch proponents or at new launch facilities, and all heavy or super-heavy rocket launches.
(e) USSF must conduct marine mammal monitoring and take acoustic measurements at the NCI if the sonic boom model indicates that pressures from a boom will reach or exceed 7 psf from 1 January through 28 February, 5 psf from 1 March through 31 July, or 7 psf from 1 August through 30 September. No monitoring is required on NCI from 1 October through 31 December.
(1) The monitoring site must be selected based upon the model results, prioritizing a significant haulout site on one of the islands where the maximum sound pressures are expected to occur.
(2) USSF must estimate the number of animals on the monitored beach and record their reactions to the launch noise and conduct more focused monitoring on a smaller subset or focal group.
(3) Monitoring must commence at least 72 hours prior to the launch, during the launch and at least 48 hours after the launch, unless no sonic boom is detected by the monitors and/or by the acoustic recording equipment, at which time monitoring may be stopped.
(4) For launches that occur in darkness, USSF must use night vision equipment.
(5) Monitoring for each launch must include multiple surveys each day that record, when possible: species, number, general behavior, presence of pups, age class, gender, and reaction to sonic booms or natural or human-caused disturbances.
(6) USSF must collect photo and/or video recordings for daylight launches when feasible, and if the launch occurs in darkness night vision equipment will be used.
(7) USSF must record environmental conditions, including visibility, air temperature, clouds, wind speed and direction, tides, and swell height and direction.
(f) USSF must continue to test equipment and emerging technologies, including but not limited to night vision cameras, newer models of remote video cameras and other means of remote monitoring at both VSFB and on the NCI.
(g) USSF must evaluate UAS based or space-based technologies that become available for suitability, practicability, and for any advantage that remote sensing may provide to existing monitoring approaches.
(h) USSF must monitor marine mammals during the first three launches of the missiles for the new Ground Based Strategic Defense program during the months of March through July across the 5-year duration of this subpart.
(1) When launch monitoring is required, monitoring must include multiple surveys each day, with a minimum of four surveys per day.
(2) When possible, PSOs must record: species, number, general behavior, presence and number of pups, age class, gender, and reaction to launch noise, or to natural or other human-caused disturbances. PSOs must also record environmental conditions, including visibility, air temperature, clouds, wind speed and direction, tides, and swell height and direction.
(i) USSF must conduct semi-monthly surveys (two surveys per month) to monitor the abundance, distribution, and status of pinnipeds at VSFB. Whenever possible, these surveys will be timed to coincide with the lowest afternoon tides of each month when the greatest numbers of animals are usually hauled out. If a VSFB or area closure precludes monitoring on a given day, USSF must monitor on the next best day.
(1) PSOs must gather the following data at each site: species, number, general behavior, presence and number of pups, age class, gender, and any reactions to natural or human-caused disturbances. PSOs must also record environmental conditions, including visibility, air temperature, clouds, wind speed and direction, tides, and swell height and direction.
(2) [Reserved]
(j) USSF must submit an annual report each year to NMFS Office of Protected Resources and West Coast Region on March 1st of each year that describes all activities and monitoring for the specified activities during that year. This includes launch monitoring information in paragraphs (j)(1) through (3) of this section for each launch where monitoring is required or conducted. The annual reports must also include a summary of the documented numbers of instances of harassment incidental to the specified activities, including non-launch activities ( e.g., takes incidental to aircraft or helicopter operations observed during the semi-monthly surveys). Annual reports must also include the results of the semi-monthly sentinel marine mammal monitoring described in paragraph (i) of this section.
(1) Launch information, including:
(i) Date(s) and time(s) of the launch (and sonic boom, if applicable); and
(ii) Number(s), type(s), and location(s) of rockets or missiles launched;
(2) Monitoring program design; and
(3) Results of the monitoring program, including, but not necessarily limited to:
(i) Date(s) and location(s) of marine mammal monitoring;
(ii) Number of animals observed, by species, on the haulout prior to commencement of the launch or recovery;
(iii) General behavior and, if possible, age (including presence and number of pups) and sex class of pinnipeds hauled out prior to the launch or recovery;
(iv) Number of animals, by species, age, and sex class that responded at a level indicative of harassment. Harassment is characterized by:
(A) Movements in response to the source of disturbance, ranging from short withdrawals at least twice the animal's body length to longer retreats over the beach, or if already moving a change of direction of greater than 90 degrees; or
(B) All retreats (flushes) to the water;
(v) Number of animals, by species, age, and sex class that entered the water, the length of time the animal(s) remained off the haulout, and any behavioral responses by pinnipeds that were likely in response to the specified activities, including in response to launch noise or a sonic boom;
(vi) Environmental conditions including visibility, air temperature, clouds, wind speed and direction, tides, and swell height and direction; and
(vii) Results of acoustic monitoring, including the following:
(A) Recorded sound levels associated with the launch (in SEL, SPL peak , and SPL rms );
(B) Recorded sound levels associated with the sonic boom (if applicable), in psf; and
(C) The estimated distance of the recorder to the launch site and the distance of the closest animals to the launch site.
(k) USSF must submit a final, comprehensive 5-year report to NMFS Office of Protected Resources. This report must:
(1) Summarize the activities undertaken and the results reported in all annual reports;
(2) Assess the impacts at each of the major rookeries; and
(3) Assess the cumulative impacts on pinnipeds and other marine mammals from the activities specified in § 217.60(a) and (b).
(l) If the activity identified in § 217.60(a) likely resulted in the take of marine mammals not identified in § 217.62, then the USSF must notify the NMFS Office of Protected Resources and the NMFS West Coast Region stranding coordinator within 24 hours of the discovery of the take.
(m) If real-time monitoring during a launch shows that the activity identified in § 217.60(a) is reasonably likely to have resulted in the mortality or injury of any marine mammal, USSF must notify NMFS within 24 hours (or next business day). NMFS and USSF must then jointly review the launch procedure and the mitigation requirements and make appropriate changes through the adaptive management process, as necessary and before any subsequent launches of rockets and missiles with similar or greater sound fields and/or sonic boom pressure levels.
§ 217.66   Letters of Authorization.
(a) To incidentally take marine mammals pursuant to this subpart, the USSF must apply for and obtain an LOA in accordance with § 216.106 of this chapter.
(b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed expiration of this subpart.
(c) If an LOA expires prior to the expiration date of this subpart, the USSF may apply for and obtain a renewal LOA.
(d) In the event of projected changes to the activity or to mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision of § 217.67(c)(1) required by an LOA, USSF must apply for and obtain a modification of the LOA as described in § 217.67.
(e) Each 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 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 this subpart.
(g) Notice of issuance or denial of a LOA shall be published in the Federal Register within 30 days of a determination.
§ 217.67   Renewals and modifications of Letter of Authorization.
(a) A LOA issued under § 216.106 of this chapter and § 217.66 for the activity identified in § 217.60(a) and (b) shall be modified upon request by USSF, 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 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 this subpart 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 in paragraph (c)(1) of this section) that do not change the findings made for this subpart or that result in no more than a minor change in the total estimated number of takes (or distribution by species or stock or years), NMFS may publish a notice of proposed changes to the 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 § 216.106 of this chapter and § 217.66 for the activity identified in § 217.60(a) and (b) may be modified by NMFS under the following circumstances:
(1) After consulting with the USSF regarding the practicability of the modifications, NMFS, through adaptive management, may modify (including adding or removing measures) the existing mitigation, monitoring, or reporting measures 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 include:
(A) Results from the USSF'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 this subpart or a subsequent LOA.
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are more than minor, NMFS will publish a notice of the proposed changes to the LOA in the Federal Register and solicit public comment.
(2) 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 § 216.106 of this chapter and § 217.62, 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.
§§ 217.68-217.69   [Reserved]
§ 217.80   Specified activity and 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 occur in the areas outlined in paragraph (b) of this section and that occur incidental to construction activities, including maintenance and replacement of piles, at the Naval Magazine Indian Island Ammunition Wharf, Puget Sound, Washington.
(b) The taking of marine mammals by the Navy may be authorized in a Letter of Authorization (LOA) only if it occurs at the Naval Magazine Indian Island Ammunition Wharf, Puget Sound, Washington.
§ 217.81   Effective dates.
Regulations in this subpart are effective from October 1, 2024, until September 30, 2029.
§ 217.82   Permissible methods of taking.
Under an LOA issued pursuant to § 216.106 of this chapter and § 217.86, the Holder of the LOA (hereinafter “Navy”) may incidentally, but not intentionally, take marine mammals within the area described in § 217.80 (b) by harassment associated with construction activities, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the applicable LOA.
§ 217.83   Prohibitions.
(a) Except for the takings contemplated in § 217.82 and authorized by a LOA issued under §§ 216.106 of this chapter and 217.86, it is unlawful for any person to do any of the following in connection with the activities described in § 217.80:
(1) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under § 216.106 of this chapter and § 217.86;
(2) Take any marine mammal not specified in such LOA;
(3) Take any marine mammal specified in such LOA in any manner other than as specified;
(4) 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
(5) Take a marine mammal specified in such LOA after NMFS determines such taking results in an unmitigable adverse impact on the species or stock of such marine mammal for taking for subsistence uses.
(b) [Reserved]
§ 217.84   Mitigation requirements.
(a) When conducting the activities identified in § 217.80(a), the mitigation measures contained in any LOA issued under §§ 216.106 of this chapter and §§ 217.86 or 217.87 must be implemented. These mitigation measures include but are not limited to:
(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 must follow mitigation procedures as described in § 217.84. Protected Species Observers (PSO) must monitor designated harassment zones described in the LOA to the maximum extent practicable based on daily visibility conditions.
(3) The Navy must ensure that construction supervisors and crews, the PSO team, and relevant Navy staff are trained prior to the start of construction activity subject to this rule, so that responsibilities, communication procedures, monitoring protocols, and operational procedures are clearly understood. New personnel joining during the project must be trained prior to commencing work;
(4) The Navy must avoid direct physical interaction with marine mammals during construction activity. If a marine mammal comes within 10 m of such activity, operations must cease and vessels must reduce speed to the minimum level required to maintain steerage and safe working conditions, as necessary, to avoid direct physical interaction;
(5) For all pile driving activity, the Navy must implement shutdown zones with radial distances as identified in a LOA issued under § 216.106 of this chapter and §§ 217.86 or 217.87. If a marine mammal comes within or approaches the shutdown zone, pile driving activity must cease;
(6) The Navy must shut down in-water activities when cetaceans are observed approaching or within any harassment zone;
(7) The Navy must use soft start techniques when impact pile driving. Soft start requires an initial set of three strikes from the hammer at reduced energy, followed by a 30-second waiting period. Then two subsequent reduced-energy strike sets would occur. A soft start must 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 30 minutes or longer;
(8) The Navy must employ bubble curtain systems during impact driving of 36-in steel piles except under conditions where the water depth is less than 0.67 meters (2 feet) in depth. Bubble curtains must meet the following requirements;
(i) The bubble curtain must distribute air bubbles around 100 percent of the piling perimeter for the full depth of the water column;
(ii) The lowest bubble ring must be in contact with the mudline and/or rock bottom for the full circumference of the ring, and the weights attached to the bottom ring shall ensure 100 percent mudline and/or rock bottom contact. No parts of the ring or other objects shall prevent full mudline and/or rock bottom contact; and
(iii) The bubble curtain must be operated such that there is equal balancing of air flow to all bubblers;
(9) The Navy must deploy PSOs as indicated in its Marine Mammal Monitoring Plan that has been approved by NMFS;
(10) For all pile driving activities, land-based PSOs must be stationed at the best vantage points practicable to monitor for marine mammals and implement shutdown/delay procedures. At least one vessel-based PSO must be employed when practicable. Additional PSOs must be added if warranted by site conditions and/or the level of marine mammal activity in the area;
(11) Monitoring must take place from 30 minutes prior to initiation of pile driving activity ( i.e., pre-start clearance monitoring) through 30 minutes post-completion of pile driving activity. Pre-activity monitoring must be conducted for 30 minutes to ensure that the shutdown zone is clear of marine mammals, and pile driving may only commence when PSOs have declared the shutdown zone clear of marine mammals;
(12) In the event of a delay or shutdown of activity resulting from marine mammals in the shutdown zone, animals must be allowed to remain in the shutdown zone ( i.e., must leave of their own volition) and their behavior must be monitored and documented. If a marine mammal is observed within the shutdown zone, a soft start cannot proceed until the animal has left the zone or has not been observed for 15 minutes. Monitoring must occur throughout the time required to drive a pile;
(13) If work ceases for more than 30 minutes, the pre-activity monitoring of the shutdown zones must commence. A determination that the shutdown zone is clear must be made during a period of good visibility;
(14) If a marine mammal approaches or enters the shutdown zone, all pile driving activities at that location must 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 15 minutes have passed without re-detection of the animal;
(15) Pile driving activity must be halted upon observation of a species entering or within the harassment zone for either a species for which incidental take is not authorized or a species for which incidental take has been authorized but the authorized number of takes has been met; and
(16) Trained PSOs must be placed at 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.
(b) [Reserved]
§ 217.85   Requirements for monitoring and reporting.
(a) The Navy must submit a Marine Mammal Monitoring Plan to NMFS for approval at least 90 days before the start of construction and abide by the Plan if approved.
(b) The Navy must deploy PSOs as indicated in its approved Marine Mammal Monitoring Plan.
(c) Monitoring must be conducted by qualified, NMFS-approved PSOs, in accordance with the following conditions:
(1) PSOs must be independent of the activity contractor (for example, employed by a subcontractor) and have no other assigned tasks during monitoring periods;
(2) At least one PSO must have prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization;
(3) Other PSOs may substitute other relevant experience, education (degree in biological science or related field), or training for prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization;
(4) Where a team of three or more PSOs are required, a lead PSO or monitoring coordinator must be designated. The lead PSO must have prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization; and
(5) PSOs must be approved by NMFS prior to beginning any activity subject to these regulations.
(d) PSOs must be trained in marine mammal identification and behaviors.
(e) The Navy must monitor the Level B harassment zones (areas where SPLs are equal to or exceed the 160 dB root-mean-squared (rms) threshold for impact driving and the 120 dB rms threshold during vibratory pile driving) to the maximum extent practicable and the shutdown zones.
(f) The Navy must coordinate with the Center for Whale Research, Orca network, and NMFS to avoid noise exposure of southern resident killer whales. The Navy must shut down in-water activities when southern resident killer whales are observed or reported within or approaching any harassment zone.
(g) The Navy must submit a draft monitoring report to NMFS within 90 calendar days of the completion of each construction year. A draft comprehensive 5-year summary report must also be submitted to NMFS within 90 days of the end of the project. The reports must detail the monitoring protocol and summarize the data recorded during monitoring. Final annual reports and the final comprehensive report must be prepared and submitted within 30 days following resolution of any NMFS comments on the draft report. If no comments are received from NMFS within 30 days of receipt of the draft report, the report must be considered final. If comments are received, a final report addressing NMFS comments must be submitted within 30 days after receipt of comments. The reports must contain the informational elements described at minimum below including:
(1) Dates and times (begin and end) of all marine mammal monitoring;
(2) Construction activities occurring during each daily observation period, including how many and what type of piles were driven or removed, by what method ( i.e., impact or vibratory), the total duration of driving time for each pile (vibratory driving), and number of strikes for each pile (impact driving);
(3) Environmental conditions during monitoring periods (at beginning and end of PSO shift and whenever conditions change significantly), Beaufort sea state, and any other relevant weather conditions including cloud cover, fog, sun glare, and overall visibility to the horizon, and estimated observable distance (if less than the harassment zone distance);
(4) Upon observation of a marine mammal, the following information should be collected:
(i) PSO who sighted the animal, observer location, and activity at time of sighting:
(ii) Time of sighting;
(iii) Identification of the animal ( e.g., genus/species, lowest possible taxonomic level, or unidentified), PSO confidence in identification, and the composition of the group if there is a mix of species;
(iv) Distances and bearings of each marine mammal observed in relation to the pile being driven for each sighting (if pile driving was occurring at time of sighting);
(v) Estimated number of animals (min/max/best);
(vi) Estimated number of animals by cohort (adults, juveniles, neonates, group composition, etc. );
(vii) Animal's closest point of approach and estimated time spent within the harassment zone;
(viii) Description of any marine mammal behavioral observations ( e.g., observed behaviors such as feeding or traveling), including an assessment of behavioral responses to the activity ( e.g., no response or changes in behavioral state such as ceasing feeding, changing direction, flushing, or breaching);
(ix) Detailed information about any implementation of any mitigation ( e.g., shutdowns and delays), a description of specific actions that ensued, and resulting changes in the behavior of the animal, if any; and
(x) All PSO datasheets and/or raw sightings data.
(h) In the event that personnel involved in the construction activities discover an injured or dead marine mammal, the Navy must report the incident to NMFS Office of Protected Resources (OPR), and to the West Coast Regional Stranding Coordinator, as soon as feasible. If the death or injury was caused by the specified activity, the Navy must immediately cease the specified activities until NMFS OPR is able to review the circumstances of the incident and determine what, if any, additional measures are appropriate to ensure compliance with the terms of this rule and the LOA issued under §  216.106 of this chapter and § 217.86. The Navy must not resume their activities until notified by NMFS. The report must include the following information:
(1) Time, date, and location (latitude/longitude) of the first discovery (and updated location information if known and applicable);
(2) Species identification (if known) or description of the animal(s) involved;
(3) Condition of the animal(s) (including carcass condition if the animal is dead);
(4) Observed behaviors of the animal(s), if alive;
(5) If available, photographs or video footage of the animal(s); and
(6) General circumstances under which the animal was discovered.
§ 217.86   Letters of Authorization.
(a) To incidentally take marine mammals pursuant to these regulations, the Navy 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 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 an LOA, the Navy must apply for and obtain a modification of the LOA as described in §  217.87.
(e) The LOA must set forth the following information:
(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 must 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 must be published in the Federal Register within 30 days of a determination.
§ 217.87   Renewals and modifications of Letters of Authorization.
(a) An LOA issued under §§  216.106 of this chapter and 217.86 for the activity identified in §  217.80(a) may 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; 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 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 §§  216.106 of this chapter and 217.86 for the activity identified in §  217.80 (a) may be modified by NMFS under the following circumstances:
(1) 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 previous years;
(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 must publish a notice of proposed LOA in the Federal Register and solicit public comment; and
(2) 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 §§  216.106 of this chapter and 217.86, a LOA may be modified without prior notice or opportunity for public comment. Notification will be published in the Federal Register within 30 days of the action.
§§ 217.88-217.89   [Reserved]
§ 217.110   Specified activity and geographical region.
(a) Regulations under 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 areas outlined in paragraph (b) of this section and that occurs incidental to construction activities related to the replacement of Pier 3 at Naval Station Norfolk at Norfolk, Virginia.
(b) The taking of marine mammals by the Navy may be authorized in a Letter of Authorization (LOA) only if it occurs at Naval Station Norfolk, Norfolk, Virginia.
§ 217.111   Effective dates.
Regulations under this subpart are effective from May 18, 2023, through May 18, 2028.
§ 217.112   Permissible methods of taking.
Under an LOA issued pursuant to §§ 216.106 of this chapter and 217.116, the Holder of the LOA (hereinafter “Navy”) may incidentally, but not intentionally, take marine mammals within the area described in 217.110(b) by harassment associated with construction activities related to replacement of Pier 3, provided the activity is in compliance with all terms, conditions, and requirements of the regulations under this subpart and the applicable LOA.
§ 217.113   Prohibitions.
(a) Except for the takings contemplated in § 217.112 and authorized by a LOA issued under §§ 216.106 of this chapter and 217.116, it is unlawful for any person to do any of the following in connection with the activities described in § 217.110:
(1) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under §§ 216.106 of this chapter and 217.116;
(2) Take any marine mammal not specified in such LOA;
(3) Take any marine mammal specified in such LOA in any manner other than as specified;
(4) Take a marine mammal specified in such LOA after NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammal; or
(5) Take a marine mammal specified in such LOA after NMFS determined such taking results in an unmitigable adverse impact on the species or stock of such marine mammal for taking for subsistence uses.
(b) [Reserved]
§ 217.114   Mitigation requirements.
(a) When conducting the activities identified in § 217.110(a), the mitigation measures contained under this subpart and any LOA issued under §§ 216.106 of this chapter and 217.116 must be implemented by the Navy. These mitigation measures include:
(1) A copy of any issued LOA must be in the possession of the Navy, supervisory construction personnel, lead protected species observers (PSOs), and any other relevant designees of the Navy operating under the authority of the LOA at all times that activities subject to the LOA are being conducted.
(2) The Navy must ensure that construction supervisors and crews, the monitoring team, and relevant Navy staff are trained prior to the start of activities subject to any issued LOA, so that responsibilities, communication procedures, monitoring protocols, and operational procedures are clearly understood. New personnel joining during the project must be trained prior to commencing work.
(3) The Navy, construction supervisors and crews, and relevant Navy staff must avoid direct physical interaction with marine mammals during construction activity. If a marine mammal comes within 10 m of such activity, operations must cease and vessels must reduce speed to the minimum level required to maintain steerage and safe working conditions, as necessary to avoid direct physical interaction.
(4) The Navy must employ PSOs and establish monitoring locations as described in the NMFS-approved Marine Mammal Monitoring Plan. The Navy must monitor the project area to the maximum extent possible based on the required number of PSOs, required monitoring locations, and environmental conditions.
(5) For all pile driving and drilling activity, the Navy shall implement shutdown zones with radial distances as identified in a LOA issued under § 217.116. If a marine mammal is observed entering or within the shutdown zone, such operations must be delayed or halted.
(6) Monitoring must take place from 30 minutes prior to initiation of pile driving or drilling activity ( i.e., pre-start clearance monitoring) through 30 minutes post-completion of pile driving or drilling activity.
(7) Pre-start clearance monitoring must be conducted during periods of visibility sufficient for the lead PSO to determine that the shutdown zones are clear of marine mammals. Pile driving and drilling may commence following 30 minutes of observation when the determination is made that the shutdown zones are clear of marine mammals.
(8) Should environmental conditions deteriorate such that marine mammals within the entire shutdown zone would not be visible (e.g., fog, heavy rain, night), the Holder shall delay in-water construction activities until observers are confident marine mammals within the shutdown zone could be detected.
(9) If pile driving and/or drilling is delayed or halted due to the presence of a marine mammal, the activity may not commence or resume until either the animal has voluntarily exited and been visually confirmed beyond the shutdown zone or 15 minutes have passed without re-detection of the animal.
(10) Pile driving activity must be halted upon observation of either a species for which incidental take is not authorized or a species for which incidental take has been authorized but the authorized number of takes has been met, entering or within the harassment zone.
(11) The Navy must use soft start techniques when impact pile driving. Soft start requires contractors to provide an initial set of strikes at reduced energy, followed by a 30-second waiting period, then two subsequent reduced-energy strike sets. A soft start must 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 30 minutes or longer.
(b) [Reserved]
§ 217.115   Requirements for monitoring and reporting.
(a) The Navy shall submit a Marine Mammal Monitoring Plan to NMFS for approval in advance of construction. Marine mammal monitoring must be conducted in accordance with the conditions in this section and the NMFS-approved Marine Mammal Monitoring Plan.
(b) Monitoring must be conducted by qualified, NMFS-approved PSOs, in accordance with the following conditions:
(1) PSOs must be independent of the activity contractor (for example, employed by a subcontractor) and have no other assigned tasks during monitoring periods.
(2) At least one PSO must have prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization.
(3) Other PSOs may substitute other relevant experience, education (degree in biological science or related field), or training for prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization.
(4) One PSO must be designated as lead PSO or monitoring coordinator. The lead PSO must have prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization.
(5) PSOs must be approved by NMFS prior to beginning any activity subject to any issued LOA.
(6) For all pile driving activities, a minimum of two PSOs shall be stationed at the best vantage points practicable to monitor for marine mammals and implement shutdown/delay procedures.
(7) For all pile driving activities, a minimum of two PSOs shall be stationed at the active pile driving site, docks, or piers to monitor the harassment and shutdown zones, and as described in the Marine Mammal Monitoring Plan. For shutdown zones exceeding 1,000 m, a minimum of three PSOs shall be stationed appropriately, as described in the Marine Mammal Monitoring Plan, to monitor the entire shutdown zone.
(8) The Navy shall monitor the harassment zones to the extent practicable and the entire shutdown zones. The Navy shall monitor at least a portion of the Level B harassment zone on all pile driving days.
(9) The Navy shall conduct hydroacoustic data collection in accordance with a Marine Mammal Monitoring Plan that must be approved by NMFS in advance of construction.
(10) The shutdown/monitoring zones may be modified with NMFS' approval following NMFS' acceptance of an acoustic monitoring report.
(11) The Navy must submit a draft monitoring report to NMFS within 90 calendar days of the completion of each construction year. A draft comprehensive 5-year summary report must also be submitted to NMFS within 90 days of the end of the project. The reports must detail the monitoring protocol and summarize the data recorded during monitoring. Final annual reports and the final comprehensive report must be prepared and submitted within 30 days following resolution of any NMFS comments on the draft report. If no comments are received from NMFS within 30 days of receipt of the draft report, the report must be considered final. If comments are received, a final report addressing NMFS comments must be submitted within 30 days after receipt of comments. The reports must, at minimum, contain the informational elements described below (as well as any additional information described in the Marine Mammal Monitoring Plan), including:
(i) Dates and times (begin and end) of all marine mammal monitoring;
(ii) Construction activities occurring during each daily observation period, including the number and type of piles that were driven or removed and by what method ( i.e., impact, vibratory or drilling), total duration of driving time for each pile (vibratory and drilling) and number of strikes for each pile (impact);
(iii) PSO locations during marine mammal monitoring;
(iv) Environmental conditions during monitoring periods (at beginning and end of PSO shift and whenever conditions change significantly), including Beaufort sea state and any other relevant weather conditions including cloud cover, fog, sun glare, and overall visibility to the horizon, and estimated observable distance;
(v) Upon observation of a marine mammal, the follow information:
(A) Name of PSO who sighted the animal(s) and PSO location and activity at time of sighting;
(B) Time of sighting;
(C) Identification of the animal(s) (e.g., genus/species, lowest possible taxonomic level, or unidentified), PSO confidence in identification, and the composition of the group if there is a mix of species;
(D) Distance and location of each observed marine mammal relative to the pile being driven for each sighting;
(E) Estimated number of animals (min/max/best estimate);
(F) Estimated number of animals by cohort (adults, juveniles, neonates, group composition, etc.); and
(G) Animal's closest point of approach and estimated time spent within the harassment zone.
(vi) Description of any marine mammal behavioral observations (e.g., observed behaviors such as feeding or traveling), including an assessment of behavioral responses thought to have resulted form the activity (e.g., no response or changes in behavioral state such as ceasing feeding, changing direction, flushing, or breaching);
(vii) Number of marine mammals detected within the harassment zones, by species; and
(viii) Detailed information about implementation of any mitigation (e.g., shutdown and delays), a description of specific actions that ensued, and resulting changes in behavior of the animal(s), if any.
(12) The Holder must submit all PSO datasheets and/or raw sighting data within the draft report.
(13) All draft and final monitoring reports must be submitted to PR.ITP.MonitoringReports@noaa.gov and ITP.corcoran@noaa.gov.
(14) The Navy must report hydroacoustic data collected as required by a LOA issued under §§ 216.106 of this chapter and 217.116 and as discussed in the Navy's Marine Mammal Monitoring Plan approved by NMFS.
(15) In the event that personnel involved in the construction activities discover an injured or dead marine mammal, the Navy shall report the incident to the Office of Protected Resources, NMFS and to the Greater Atlantic Region New England/Mid-Atlantic Regional Stranding Coordinator as soon as feasible. If the death or injury was clearly caused by the specified activity, the Navy must immediately cease the specified activities until NMFS is able to review the circumstances of the incident and determine what, if any, additional measures are appropriate to ensure compliance with the terms of the authorization. The Navy must not resume their activities until notified by NMFS. The report must include the following information:
(i) Time, date, and location (latitude/longitude) of the first discovery (and updated location information if known and applicable);
(ii) Species identification (if known) or description of the animal(s) involved;
(iii) Condition of the animal(s) (including carcass condition if the animal is dead);
(iv) Observed behaviors of the animal(s), if alive;
(v) If available, photographs or video footage of the animal(s); and
(vi) General circumstances under which the animal was discovered.
§ 217.116   Letters of Authorization.
(a) To incidentally take marine mammals pursuant to the regulations under this subpart, the Navy 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 under this subpart.
(c) If an LOA expires prior to the expiration date of the regulations under this subpart, the 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 an LOA, the Navy must apply for and obtain a modification of the LOA as described in § 217.116.
(e) The LOA must set forth the following information:
(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 must be based on a determination that the level of taking must be consistent with the findings made for the total taking allowable under the regulations under this subpart.
(g) Notice of issuance or denial of an LOA must be published in the Federal Register within 30 days of a determination.
§ 217.117   Renewals and modifications of Letters of Authorization.
(a) An LOA issued under §§ 216.106 of this chapter and 217.116 for the activity identified in § 217.110(a) may 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 under this subpart; and
(2) NMFS determines that the mitigation, monitoring, and reporting measures required by the previous LOA under the regulations under this subpart were implemented.
(b) For LOA modification or renewal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting 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 §§ 216.106 of this chapter and 217.116 for the activity identified in § 217.110(a) may be modified by NMFS under the following circumstances:
(1) 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 for the regulations under this subpart;
(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; and
(C) Any information that reveals marine mammals may have been taken in a manner, extent or number not authorized by the regulations under this subpart or subsequent LOAs; and
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS must publish a notice of proposed LOA in the Federal Register and solicit public comment;
(2) 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 §§ 216.106 of this chapter and 217.116, a LOA may be modified without prior notice or opportunity for public comment. Notification would be published in the Federal Register within 30 days of the action.
§§ 217.118-217.119   [Reserved]
§ 217.120   Specified activity and specified geographical region.
(a) Regulations in this subpart apply only to the incidental taking of marine mammals during seabird research activities by Point Blue Conservation Science (Point Blue) and those persons it authorizes or funds to conduct activities on its behalf in the areas outlined in paragraph (b) of this section.
(b) The incidental taking of marine mammals by Point Blue may only occur in California on Southeast Farallon Island, Año Nuevo Island, and Point Reyes National Seashore in accordance with a Letter of Authorization (LOA) issued under §§ 216.106 of this chapter and 217.126.
§ 217.121   Effective dates.
Regulations in this subpart are effective from July 1, 2021, through June 30, 2026.
§ 217.122   Permissible methods of taking.
Under LOAs issued pursuant to §§ 216.106 of this chapter and 217.126, the Holder of the LOA (hereinafter “Point Blue”) may incidentally, but not intentionally, take marine mammals within the area described in § 217.120(b) by Level B harassment associated with seabird research activities, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA.
§ 217.123   Prohibitions.
Except for the takings contemplated in § 217.120 and authorized by a LOA issued under §§ 216.106 of this chapter and 217.126, it is unlawful for any person to do any of the following in connection with the activities described in § 217.120 may:
(a) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under §§ 216.106 of this chapter and 217.126;
(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 in § 217.122;
(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.
§ 217.124   Mitigation requirements.
When conducting the activities identified in § 217.120(a), the mitigation measures contained in any LOA issued under §§ 216.106 of this chapter and 217.126 must be implemented. These mitigation measures shall include but are not limited to the following general conditions:
(a) All persons must slowly approach beaches for boat landings. Boat landings must avoid causing stampede and provide marine mammals with an opportunity to safely enter the water. Vessel strikes are prohibited.
(b) All persons must observe a site from a distance, using binoculars if necessary, to detect any marine mammals prior to approach to determine if mitigation is required ( i.e., if pinnipeds are present, researchers must approach with caution, walking slowly, quietly, and close to the ground to avoid surprising any hauled-out marine mammals and to reduce flushing/stampeding of individuals).
(c) All persons must avoid pinnipeds along access ways to sites by locating and taking a different access way. Researchers must keep a safe distance from and not approach any marine mammal while conducting research, unless it is absolutely necessary to flush a marine mammal in order to continue conducting research ( i.e., if a site cannot be accessed or sampled due to the presence of pinnipeds).
(d) All persons must avoid visits to sites when pups are present, if the number of takes that have been authorized are met, or if species for which authorization has not been granted are present.
(e) All persons must monitor for offshore predators and must not approach hauled out pinnipeds if great white sharks ( Carcharodon carcharias ) or killer whales ( Orcinus orca ) are observed to be present. If Point Blue and/or its designees see pinniped predators in the area, they must not disturb the pinnipeds until the lead biologist determines the area is free of predators based on best professional judgment.
(f) All persons must keep voices hushed and bodies low to the ground in the visual presence of pinnipeds.
(g) All persons must conduct seabird observations at North Landing on Southeast Farallon Island in an observation blind, shielded from the view of hauled out pinnipeds.
(h) All persons must crawl slowly to access seabird nest boxes on Año Nuevo Island if pinnipeds are within view.
(i) Researchers must coordinate research visits to intertidal areas of Southeast Farallon Island and coordinate research activities for Año Nuevo Island to minimize the number of trips to these areas.
§ 217.125   Requirements for monitoring and reporting.
(a) Visual monitoring. When conducting activities under an LOA, Point Blue must conduct a visual monitoring program and record information as required by the LOA and this subpart.
(1) Standard information recorded must include species counts (with age/sex classes noted when possible) of animals present before approaching, numbers of observed disturbances, and descriptions of the disturbance behaviors during the monitoring surveys, including location, date, and time of the event.
(2) The lead biologist must serve as an observer to record incidental take.
(3) The lead biologist must record the following:
(i) The date, time, and location (or closest point of ingress) of each visit to the research site;
(ii) Composition of the marine mammals sighted, such as species, sex, and life history stage ( e.g., adult, sub-adult, pup);
(iii) The number (by species) of marine mammals observed during the activities;
(iv) Estimated number of marine mammals (by species) that may have been disturbed during the activities, using a three-point scale of disturbance contained in an LOA issued under §§ 216.106 of this chapter and 217.126. Disturbance Levels 2 and 3 must be recorded as takes;
(v) Behavioral responses or modifications in behaviors that may be attributed to the specific activities and a description of the specific activities occurring during that time ( e.g., pedestrian approach, vessel approach);
(vi) Information on the weather, including the tidal state and horizontal visibility; and
(vii) If applicable, note the presence of any offshore predators (date, time, number, and species).
(4) Point Blue must report observations of unusual behaviors, numbers, or distributions of pinnipeds, or of tag-bearing carcasses, to the NMFS West Coast Regional Office.
(b) Prohibited take. (1) In the event that personnel discovers an injured or dead marine mammal, Point Blue shall report the incident to the Office of Protected Resources, NMFS, and the West Coast Regional Stranding Coordinator, NMFS as soon as feasible. If the death or injury was caused by Point Blue's activities, Point Blue must immediately cease activities conducted under its LOA until NMFS is able to review the circumstances of the incident and determine what, if any, additional measures are appropriate to ensure compliance with the terms of the LOA. Point Blue must not resume their activities until notified by NMFS. The report must include the following information:
(i) Time, date, and location (latitude/longitude) of the first discovery (and updated location information if known and applicable);
(ii) Species identification (if known) or description of the animal(s) involved;
(iii) Condition of the animal(s) (including carcass condition if the animal is dead);
(iv) Observed behaviors of the animal(s), if alive;
(v) If available, photographs or video footage of the animal(s); and
(vi) General circumstances under which the animal was discovered.
(c) Annual report. (1) A draft annual report covering the period of January 1 through December 31 of each year must be submitted to NMFS Office of Protected Resources by April 1 of each year. The final annual report after year five may be included as part of the final report (see below). The report must include the information gathered pursuant to the monitoring requirements set forth above and in the LOA at minimum, and must also include raw sightings data.
(2) A final annual report must be submitted to the Director of the NMFS Office of Protected Resources within 30 days after receiving comments from NMFS on the draft annual report. If no comments are received from NMFS, the draft annual report will be considered the final report.
(d) Final report. A draft final report must be submitted to NMFS Office of Protected Resources within 60 days after the conclusion of the fifth year. A final report must be submitted to the Director of the NMFS Office of Protected Resources within 30 days after receiving comments from NMFS on the draft final report. If no comments are received from NMFS, the draft final report will be considered the final report.
§ 217.126   Letters of Authorization.
(a) To incidentally take marine mammals pursuant to these regulations, Point Blue 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, Point Blue 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, Point Blue must apply for and obtain a modification of the LOA as described in § 217.127.
(e) The LOA shall set forth:
(1) Permissible methods and numbers 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.
§ 217.127   Renewals and modifications of Letters of Authorization.
(a) An LOA issued under §§ 216.106 of this chapter and 217.126 for the activity identified in § 217.120(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 paragraph (c)(1) of this section), and
(2) NMFS' Office of Protected Resources 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 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 number of takes (or distribution by species or years), NMFS' Office of Protected Resources 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 §§ 216.106 of this chapter and 217.126 for the activity identified in § 217.120(a) may be modified by NMFS' Office of Protected Resources under the following circumstances:
(1) Adaptive management —NMFS' Office of Protected Resources may modify (including augment) the existing mitigation, monitoring, or reporting measures (after consulting with Point Blue 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:
(A) Results from Point Blue'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' Office of Protected Resources will publish a notice of proposed LOA in the Federal Register and solicit public comment.
(2) Emergencies. If NMFS' Office of Protected Resources 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 §§ 216.106 of this chapter and 217.126, 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.
§§ 217.128-217.129   [Reserved]
§ 217.130   Specified activity and geographical region.
(a) Regulations in this subpart apply only to taking of marine mammals by the U.S. Navy (Navy) and those persons it authorizes or funds to conduct activities that occur incidental to construction activities related to the multifunctional expansion and modification of Dry Dock 1 in the areas outlined in paragraph (b) of this section.
(b) The taking of marine mammals by the Navy may be authorized in a Letter of Authorization (LOA) only if it occurs at Portsmouth Naval Shipyard, Kittery, Maine.
§ 217.131   Effective dates.
Regulations in this subpart are effective for a period of 5 years from the date of issuance.
§ 217.132   Permissible methods of taking.
Under an LOA issued pursuant to § 216.106 of this chapter and § 217.136, the Holder of the LOA (hereinafter “Navy”) may incidentally, but not intentionally, take marine mammals within the area described in § 217.130(b) by harassment associated with construction activities related to the multifunctional expansion and modification of Dry Dock 1, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the applicable LOA.
§ 217.133   Prohibitions.
(a) Except for the takings contemplated in § 217.132 and authorized by a LOA issued under § 216.106 of this chapter and § 217.136, it is unlawful for any person to do any of the following in connection with the activities described in § 217.130:
(1) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under § 216.106 of this chapter and § 217.136;
(2) Take any marine mammal not specified in such LOA;
(3) Take any marine mammal specified in such LOA in any manner other than as specified;
(4) 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
(5) Take a marine mammal specified in such LOA after NMFS determines such taking results in an unmitigable adverse impact on the species or stock of such marine mammal for taking for subsistence uses.
(b) [Reserved]
§ 217.134   Mitigation requirements.
(a) When conducting the activities identified in § 217.130(a), the mitigation measures contained in this subpart and any LOA issued under § 216.106 of this chapter and § 217.136 must be implemented. These mitigation measures include:
(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 at all times that activities subject to this LOA are being conducted.
(2) Should environmental conditions deteriorate such that marine mammals within the entire shutdown zone would not be visible ( e.g., fog, heavy rain, night), the Navy shall delay pile driving and drilling until observers are confident marine mammals within the shutdown zone could be detected.
(3) The Navy must ensure that construction supervisors and crews, the monitoring team, and relevant Navy staff are trained prior to the start of construction activity subject to this rule, so that responsibilities, communication procedures, monitoring protocols, and operational procedures are clearly understood. New personnel joining during the project will be trained prior to commencing work.
(4) The Navy, construction supervisors and crews, protected species observers (PSOs), and relevant Navy staff must avoid direct physical interaction with marine mammals during construction activity. If a marine mammal comes within 10 m of such activity, operations will cease and vessels will reduce speed to the minimum level required to maintain steerage and safe working conditions, as necessary, to avoid direct physical interaction.
(5) The Navy must monitor the project area to the maximum extent possible based on the required number of PSOs, required monitoring locations, and environmental conditions as described in this rule and the NMFS-approved Marine Mammal Monitoring Plan.
(6) Monitoring must take place from 30 minutes prior to initiation of pile driving or drilling activity ( i.e., pre-start clearance monitoring) through 30 minutes post-completion of pile driving or drilling activity.
(7) For all pile driving and drilling activities, the Navy must implement shutdown zones with radial distances as identified in a LOA issued under § 216.106 of this chapter and § 217.136. If a marine mammal comes within or approaches the shutdown zone, such operations must cease.
(8) In the event of a delay or shutdown of activity resulting from marine mammals in the shutdown zone, animals must be allowed to remain in the shutdown zone ( i.e., must leave of their own volition) and their behavior must be monitored and documented. If a marine mammal is observed within the shutdown zone, pile driving or drilling activities may not commence or resume until at least one of the following conditions has been met:
(i) The animal has been observed exiting the shutdown zone;
(ii) The animal is thought to have exited the shutdown zone based on a determination of its course, speed, and movement relative to the pile driving location; or
(iii) The shutdown zone has been clear from any additional sightings for fifteen minutes.
(9) If pile driving or drilling construction activities cease for more than 30 minutes, the pre-activity monitoring of the shutdown zone must commence.
(10) The Navy must conduct monitoring to include the entire region of influence, which includes the area within the Level A and Level B harassment zones with radial distances as identified in a LOA issued under § 216.106 of this chapter and § 217.136.
(11) The Navy must use soft start techniques when impact pile driving. Soft start requires contractors to provide an initial set of strikes from the hammer at reduced energy, followed by a 30-second waiting period, then two subsequent reduced-energy strike sets. A soft start will 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 30 minutes or longer.
(12) The Navy must install a bubble curtain across the entrance openings during DTH cluster drill and hydraulic rock hammering activities. The bubble curtain must adhere to the following restrictions:
(i) The bubble curtain must distribute air bubbles across 100 percent of the entrance openings for the full depth of the water column;
(ii) The lowest bubble ring must be in contact with the substrate for the full extent of the curtain, and the weights attached to the bottom of the curtain must ensure 100 percent substrate contact. No parts of the curtain or other objects shall prevent full substrate contact; and
(iii) Air flow to the bubblers must be balanced across the entrance openings to the super flood basin.
(iv) The Navy shall require that construction contractors train personnel in the proper balancing of air flow to the bubblers and corrections to the attenuation device to meet the performance standards. This shall occur prior to the initiation of in-water construction activities.
(13) The bubble curtain may be discontinued for certain activities should the results of hydroacoustic recordings inside the bubble curtain show that the source levels from those activities do not result in the Level A harassment thresholds being achieved across the entire region of influence, upon review of the data by NMFS.
(14) Pile driving and drilling activity must be halted upon observation of either a species entering or within the harassment zone for which incidental take is not authorized, or a species for which incidental take has been authorized but the authorized number of takes has been met.
(b) [Reserved]
§ 217.135   Requirements for monitoring and reporting.
(a) Marine Mammal monitoring must be conducted in accordance with the conditions in this section and the Marine Mammal Monitoring Plan. The Navy must submit a Marine Mammal Monitoring Plan to NMFS for approval in advance of construction.
(b) Monitoring must be conducted by qualified PSOs in accordance with the following conditions:
(1) PSOs must be independent ( i.e., not construction personnel) and have no other assigned tasks during monitoring periods.
(2) At least one PSO must have prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization.
(3) Other PSOs may substitute relevant experience, education (degree in biological science or related field), or training for prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization.
(4) Where a team of three PSOs are required, a lead observer or monitoring coordinator shall be designated. The lead observer must have prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization; and
(5) One PSO must be designated as lead PSO or monitoring coordinator. The lead PSO must have prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization.
(6) PSOs must work in shifts to reduce fatigue and ensure their ability to monitor for marine mammals.
(7) PSOs must be approved by NMFS prior to beginning any activity subject to this LOA.
(c) For all pile driving activities, a minimum of three PSOs must be stationed on boats, docks, or piers sufficient to monitor the harassment and shutdown zones, and as described in the Marine Mammal Monitoring Plan.
(d) PSOs must record all observations of marine mammals, regardless of distance from the pile/hole being driven/drilled or the construction activity taking place ( i.e., DTH, rotary drilling, rock hammering), as well as additional data indicated in the reporting requirements.
(e) The Navy must conduct hydroacoustic data collection (sound source verification and propagation loss) as described in a LOA and in accordance with a hydroacoustic monitoring plan that must be approved by NMFS in advance of construction. This plan shall include acoustic monitoring inside the bubble curtain to measure construction generated noise levels.
(f) The harassment and/or shutdown zones may be modified with NMFS' approval following NMFS' acceptance of an acoustic monitoring report.
(g) The Navy must submit a draft monitoring report to NMFS within 90 work days of the completion of required monitoring for each portion of the project as well as a comprehensive summary report at the end of the project. The reports will detail the monitoring protocol and summarize the data recorded during monitoring. Final annual reports (each portion of the project and comprehensive) must be prepared and submitted within 30 days following resolution of any NMFS comments on the draft report. If no comments are received from NMFS within 30 days of receipt of the draft report, the report must be considered final. If comments are received, a final report addressing NMFS comments must be submitted within 30 days after receipt of comments.
(h) All draft and final monitoring reports must be submitted to PR.ITP.MonitoringReports@noaa.gov and ITP.tyson.moore@noaa.gov.
(i) The reports must at minimum contain the informational elements described as follows (as well as any additional information described in the Marine Mammal Monitoring Plan), including:
(1) Dates and times (begin and end) of all marine mammal monitoring.
(2) Construction activities occurring during each daily observation period, including:
(i) The number and type of piles that were driven or removed and by what method ( i.e., impact, vibratory, DTH, rotary drilling, rock hammering.
(ii) The total duration of driving time for each pile/hole (vibratory driving, rotary drilling) and number of strikes for each pile/hole (impact driving, hydraulic rock hammering).
(iii) For DTH, the duration of operation for both impulsive and non-pulse components as well as the strike rate.
(3) PSO locations during marine mammal monitoring.
(4) Environmental conditions during monitoring periods (at beginning and end of PSO shift and whenever conditions change significantly), including Beaufort sea state and any other relevant weather conditions including cloud cover, fog, sun glare, and overall visibility to the horizon, and estimated observable distance (if less than the harassment zone distance);
(5) Upon observation of a marine mammal, the following information:
(i) Name of PSO who sighted the animal(s) and PSO location, as well as the activity at the time of the sighting;
(ii) Time of sighting;
(iii) Identification of the animal ( e.g., genus/species, lowest possible taxonomic level, or unidentified), PSO confidence in identification, and the composition of the group if there is a mix of species;
(iv) Distances and bearings of each marine mammal observed in relation to the pile being driven or drilled for each sighting (if pile driving or drilling was occurring at time of sighting).
(v) Estimated number of animals (min/max/best estimate);
(vi) Estimated number of animals by cohort (adults, juveniles, neonates, group composition, etc. );
(vii) Animal's closest point of approach and estimated time spent within the harassment zone;
(viii) Description of any marine mammal behavioral observations ( e.g., observed behaviors such as feeding or traveling), including an assessment of behavioral responses to the activity ( e.g., no response or changes in behavioral state such as ceasing feeding, changing direction, flushing, or breaching);
(6) Number of marine mammals detected within the harassment zones, by species;
(7) Detailed information about any implementation of any mitigation ( e.g., shutdowns and delays), a description of specific actions that ensued, and resulting changes in the behavior of the animal, if any; and
(j) The Holder will submit all PSO datasheets and/or raw sightings data with the draft reports.
(k) The Navy must report the hydroacoustic data collected as required by a LOA issued under § 216.106 of this chapter and § 217.136 and as described in the Acoustic Monitoring Plan, which at a minimum, must include:
(1) Hydrophone equipment and methods: recording device, sampling rate, distance (m) from the pile where recordings were made; depth of water and recording device(s);
(2) Type and size of pile being driven, substrate type, method of driving during recordings ( e.g., hammer model and energy), and total pile driving duration;
(3) Whether a sound attenuation device is used and, if so, a detailed description of the device used and the duration of its use per pile;
(4) For impact pile driving and/or DTH excavation (DTH mono-hammer and cluster drill) (per pile/hole): Number of strikes and strike rate; depth of substrate to penetrate; pulse duration and mean, median, and maximum sound levels (dB re: 1 µPa): root mean square sound pressure level (SPLrms); cumulative sound exposure level (SELcum), peak sound pressure level (SPLpeak), and single-strike sound exposure level (SELss);
(5) For vibratory driving/removal, rotary drilling, and/or DTH excavation (DTH mono-hammer and cluster drill) (per pile/hole): Duration of driving per pile; mean, median, and maximum sound levels (dB re: 1 µPa): root mean square sound pressure level (SPLrms), cumulative sound exposure level (SELcum) (and timeframe over which the sound is averaged);
(6) One-third octave band spectrum and power spectral density plot; and
(7) General Daily Site Conditions, including the date and time of activities, and environmental data such as wind speed and direction, air temperature, humidity, surface water temperature, tidal state, water depth, wave height, weather conditions, and other factors that could contribute to influencing the airborne and underwater sound levels ( e.g., aircraft, boats, etc.).
(l) In the event that personnel involved in the construction activities discover an injured or dead marine mammal, the Navy must report incident to the Office of Protected Resources (OPR), NMFS (PR.ITP.MonitoringReports@noaa.gov and ITP.tyson.moore@noaa.gov ) and to the Greater Atlantic Region New England/Mid-Atlantic Regional Stranding Coordinator (978-282-8478 or 978-281-9291) as soon as feasible. If the death or injury was clearly caused by the specified activity, the Navy must immediately cease the specified activities until NMFS OPR is able to review the circumstances of the incident and determine what, if any, additional measures are appropriate to ensure compliance with the terms of this rule and the LOA issued under § 216.106 of this chapter and § 217.136. The Navy will not resume their activities until notified by NMFS. The report must include the following information:
(1) Time, date, and location (latitude/longitude) of the first discovery (and updated location information if known and applicable);
(2) Species identification (if known) or description of the animal(s) involved;
(3) Condition of the animal(s) (including carcass condition if the animal is dead);
(4) Observed behaviors of the animal(s), if alive;
(5) If available, photographs or video footage of the animal(s); and
(6) General circumstances under which the animal was discovered.
§ 217.136   Letters of Authorization.
(a) To incidentally take marine mammals pursuant to this subpart, the Navy 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 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 an LOA, the Navy must apply for and obtain a modification of the LOA as described in § 217.137.
(e) The LOA will set forth the following information:
(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 will 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.
§ 217.137   Renewals and modifications of Letters of Authorization.
(a) An LOA issued under § 216.106 of this chapter and § 217.136 for the activity identified in § 217.130(a) may 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; 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 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 § 216.106 of this chapter and § 217.136 for the activity identified in § 217.130(a) may be modified by NMFS under the following circumstances:
(1) 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; 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 proposed LOA in the Federal Register and solicit public comment;
(2) 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 § 216.106 of this chapter and § 217.136, a LOA may be modified without prior public notice or opportunity for public comment. Notification would be published in the Federal Register within 30 days of the action.
§ 217.138-217.139   [Reserved]
§ 217.150   Specified activity and specified geographical region.
(a) Regulations in this subpart apply only to Hilcorp Alaska, LLC (Hilcorp) and Eni US Operating Co. Inc. (Eni) and those persons they authorize or fund to conduct activities on their behalf for the taking of marine mammals that occurs in the areas outlined in paragraph (b) of this section and that occurs incidental to construction and maintenance of ice roads and ice trails.
(b) The taking of marine mammals by Hilcorp and Eni may be authorized in two Letters of Authorization (LOAs) only if it occurs on Alaska's North Slope.
§ 217.151   Effective dates.
Regulations in this subpart are effective from December 22, 2020 through November 30, 2025.
§ 217.152   Permissible methods of taking.
Under LOAs issued pursuant to §§ 216.106 of this chapter and 217.156, the Holders of the LOAs (hereinafter “Hilcorp” and “Eni”) may incidentally, but not intentionally, take marine mammals within the area described in § 217.150(b) by mortality, serious injury, Level A harassment, or Level B harassment associated with ice road and ice trail construction and maintenance activities, provided the activities are in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOAs.
§ 217.153   Prohibitions.
Notwithstanding takings contemplated in § 217.152 and authorized by the LOAs issued under §§ 216.106 of this chapter and 217.156, no person in connection with the activities described in § 217.150 may:
(a) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or an LOA issued under §§ 216.106 of this chapter and 217.156;
(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.
§ 217.154   Mitigation requirements.
When conducting the activities identified in § 217.150(a), the mitigation measures contained in any LOA issued under §§ 216.106 of this chapter and 217.156 must be implemented. These mitigation measures shall include but are not limited to:
(a) General conditions. (1) Hilcorp and Eni must renew, on an annual basis, the Plans of Cooperation (POCs), throughout the life of the regulations;
(2) Copies of any issued LOAs must be in the possession of Hilcorp and Eni, their designees, and work crew personnel operating under the authority of the issued LOAs; and
(3) Prior to initiation of sea ice road- and ice trail-related activities, project personnel associated with ice road construction, maintenance, use or decommissioning must receive annual training on implementing mitigation and monitoring measures:
(i) Personnel must be advised that interactions with, or approaching, any wildlife is prohibited;
(ii) Annual training must also include reviewing Hilcorp and Eni's Wildlife Management Plan; and
(iii) In addition to the mitigation and monitoring plans, other topics in the training must include:
(A) Ringed seal identification and brief life history;
(B) Physical environment (habitat characteristics and how to potentially identify habitat);
(C) Ringed seal use in the ice road region (timing, location, habitat use, birthing lairs, breathing holes, basking, etc.);
(D) Potential effects of disturbance; and
(E) Importance of lairs, breathing holes and basking to ringed seals.
(b) General mitigation measures throughout the Ice Road/Trail Season (December through May). (1) Ice road/trail speed limits must be no greater than 72.4 km (45 miles) per hour (mph); speed limits must be determined on a case-by-case basis based on environmental, road conditions and ice road/trail longevity considerations;
(2) Following existing safety measures, delineators must mark the roadway in a minimum of 0.4 km ( 1/4 -mile) increments on both sides of the ice road to delineate the path of vehicle travel and areas of planned on-ice activities ( e.g., emergency response exercises). Following existing safety measures currently used for ice trails, delineators must mark one side of an ice trail a minimum of every 0.4 km ( 1/4 mile). Delineators must be color-coded, following existing safety protocol, to indicate the direction of travel and location of the ice road or trail;
(3) Corners of rig mats, steel plates, and other materials used to bridge sections of hazardous ice, must be clearly marked or mapped using GPS coordinates of the locations; and
(4) Personnel must be instructed to remain in the vehicle and safely continue, if they encounter a ringed seal while driving on the road.
(c) Additional mitigation measures after March 1st. In addition to the general mitigation measures listed in § 217.154(b), the following measures must also be implemented after March 1st:
(1) Ice road/trail construction, maintenance and decommissioning must be performed within the boundaries of the road/trail and shoulders, with most work occurring within the driving lane. To the extent practicable and when safety of personnel is ensured, equipment must travel within the driving lane and shoulder areas.
(2) Blading and snow blowing of ice roads must be limited to the previously disturbed ice road/shoulder areas to the extent safe and practicable. Snow must be plowed or blown from the ice road surface.
(3) In the event snow is accumulating on a road within a 50 m (164 ft) radius of an identified downwind seal or seal lair, operational measures must be used to avoid seal impacts, such as pushing snow further down the road before blowing it off the roadway. Vehicles must not stop within 50 m (164 ft) of identified seals or within 150 m (500 ft) of known seal lairs.
(4) To the extent practicable and when safety of personnel is ensured, tracked vehicle operation must be limited to the previously disturbed ice trail areas. When safety requires a new ice trail to be constructed after March 1st, construction activities such as drilling holes in the ice to determine ice quality and thickness, must be conducted only during daylight hours with good visibility.
(5) Ringed seal structures must be avoided by a minimum of 50 m (164 ft) during ice testing and new trail construction.
(6) Once the new ice trail is established, tracked vehicle operation must be limited to the disturbed area to the extent practicable and when safety of personnel is ensured.
(7) If a seal is observed on ice within 50 m (164 ft) of the centerline of the ice road/trail, the following mitigation measures must be implemented:
(i) Construction, maintenance or decommissioning activities associated with ice roads and trails must not occur within 50 m (164 ft) of the observed ringed seal, but may proceed as soon as the ringed seal, of its own accord, moves farther than 50 m (164 ft) distance away from the activities or has not been observed within that area for at least 24 hours; and
(ii) Transport vehicles ( i.e., vehicles not associated with construction, maintenance or decommissioning) may continue their route within the designated road/trail without stopping.
§ 217.155   Requirements for monitoring and reporting.
(a) All marine mammal monitoring must be conducted in accordance with Hilcorp and Eni's Marine Mammal Mitigation and Monitoring Plan (4MP). This plan may be modified throughout the life of the regulations upon NMFS review and approval.
(b) General monitoring measures will be implemented through the entire ice road/trail season including during construction, maintenance, use and decommissioning.
(1) If a ringed seal is observed within 50 m (164 ft) of the center of an ice road or trail, the operator's Environmental Specialist must be immediately notified with the information provided in paragraph (e) of this section.
(i) The Environmental Specialist must relay the seal sighting location information to all ice road personnel and the company's office personnel responsible for wildlife interaction, following notification protocols described in the company-specific Wildlife Management Plan. All other data will be recorded and logged.
(ii) The Environmental Specialist or designated person must monitor the ringed seal to document the animal's location relative to the road/trail. All work that is occurring when the ringed seal is observed and the behavior of the seal during those activities must be documented until the animal is at least 50 m (150 ft) away from the center of the road/trail or is no longer observed.
(2) [Reserved]
(c) Additional monitoring measures after March 1st. In addition to the general monitoring measures listed in § 217.155(b), the following measures must also be implemented after March 1st:
(1) If an ice road or trail is being actively used, under daylight conditions with good visibility, a dedicated observer (not the vehicle operator) must conduct a survey along the sea ice road/trail to observe if any ringed seals are within 150 m (500 ft) of the roadway corridor. The following survey protocol must be implemented:
(i) Surveys must be conducted every other day during daylight hours;
(ii) Observers for ice road activities must have received the training described in § 217.154(a) and understand the applicable sections of the Wildlife Interaction Plan;
(iii) Observers for ice road activities must be capable of detecting, observing and monitoring ringed seal presence and behaviors, and accurately and completely recording data;
(iv) Observers must have no other primary duty than to watch for and report observations related to ringed seals during this survey; and
(v) If weather conditions become unsafe, the observer may be removed from the monitoring activity.
(2) If a ringed seal structure ( i.e., breathing hole or lair) is observed within 50 m (150 ft) of the ice road/trail, the location of the structure must be reported to the Environmental Specialist and:
(i) An observer must monitor the structure every 6 hours on the day of the initial sighting to determine whether a ringed seal is present.
(ii) Monitoring for the seal must occur every other day the ice road is being used unless it is determined the structure is not actively being used ( i.e., a seal is not sighted at that location during monitoring).
(d) Engaging with subsistence hunters for monitoring recommendations.
(1) Hilcorp and Eni must engage local hunters through the Ice Seal Committee point of contact to gather recommendations on methods for ringed seal detection along sea ice roads/trails within the exposure areas.
(2) Hilcorp and Eni must incorporate these recommendations into Hilcorp and Eni's training materials provided to personnel responsible for monitoring for ringed seals along sea ice roads/trails.
(e) Reporting requirement at the end-of-season.
(1) A final end-of-season report compiling all ringed seal observations must be submitted to NMFS Office of Protected Resources within 90 days of decommissioning the ice roads/trails annually. The report must include:
(i) Date, time, location of observation;
(ii) Ringed seal characteristics ( i.e., adult or pup, behavior (avoidance, resting, etc. ));
(iii) Activities occurring during observation including equipment being used and its purpose, and approximate distance to ringed seal(s);
(iv) Actions taken to mitigate effects of interaction emphasizing:
(A) Which mitigation and/or monitoring measures were successful;
(B) Which mitigation and/or monitoring measures may need to be improved to reduce interactions with ringed seals;
(C) The effectiveness and practicality of implementing mitigation and monitoring measures;
(D) Any issues or concerns regarding implementation of mitigation and/or monitoring measures; and
(E) Potential effects of interactions based on observation data;
(v) Proposed updates (if any) to Wildlife Interaction Plan(s) or Mitigation and Monitoring Measures; and
(vi) The methods used for detection of seals and seal structures with an assessment of their effectiveness.
(2) In the event a seal is killed or seriously injured by ice road/trail activities, Hilcorp or Eni must immediately cease the specified activities and report the incident to the NMFS Office of Protected Resources (301-427-8401) and Alaska Region Stranding Coordinator (877-925-7773). The report must include the following information:
(i) Time and date of the incident;
(ii) Description of the incident;
(iii) Environmental conditions ( e.g., cloud over, and 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).
(3) In the event ice road/trail personnel discover a dead or injured seal but the cause of injury or death is unknown or believed not to be related to ice road/trail activities, Hilcorp or Eni must report the incident to the NMFS Office of Protected Resources (301-427-8401) and Alaska Region Stranding Coordinator (877-925-7773) within 48 hours of discovery.
§ 217.156   Letters of Authorization.
(a) To incidentally take marine mammals pursuant to these regulations, Hilcorp and Eni 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, Hilcorp or Eni 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, Hilcorp and Eni must apply for and obtain a modification of the LOA as described in § 217.57.
(e) The LOAs 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 LOAs 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.
§ 217.157   Renewals and modifications of Letters of Authorization.
(a) An LOA issued under §§ 216.106 of this chapter and 217.156 for the activity identified in § 217.150(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 paragraph (c)(1) of this section); and
(2) NMFS determines that the mitigation, monitoring, and reporting measures required by the previous LOAs under these regulations were implemented.
(b) For LOAs modification or renewal requests by the applicants 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 LOAs in the Federal Register, including the associated analysis of the change, and solicit public comment before issuing the LOA.
(c) The LOAs issued under §§ 216.106 of this chapter and 217.156 for the activity identified in § 217.150(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 Hilcorp or Eni 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 Hilcorp or Eni'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 LOAs issued pursuant to §§ 216.106 of this chapter and 217.156, 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.
§§ 217.158--217.159   [Reserved]
§ 217.170   Specified activity and 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 areas outlined in paragraph (b) of this section and that occurs incidental to construction activities including for bulkhead replacement and repairs at Naval Station (NAVSTA) Newport, Rhode Island.
(b) The taking of marine mammals by the Navy may be authorized in a Letter of Authorization (LOA) only if it occurs at NAVSTA Newport, Rhode Island.
§ 217.171   Effective dates.
Regulations in this subpart are effective from May 15, 2022, through May 14, 2027.
§ 217.172   Permissible methods of taking.
Under an LOA issued pursuant to §§  216.106 of this chapter and 217.176, the Holder of the LOA (hereinafter “Navy”) may incidentally, but not intentionally, take marine mammals within the area described in §  217.170(b) by harassment associated with bulkhead replacement and repairs construction activities, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the applicable LOA.
§ 217.173   Prohibitions.
(a) Except for the takings contemplated in §  217.172 and authorized by a LOA issued under §§  216.106 of this chapter and 217.176, it is unlawful for any person to do any of the following in connection with the activities described in §  217.170:
(1) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under §§  216.106 of this chapter and 217.176;
(2) Take any marine mammal not specified in such LOA;
(3) Take any marine mammal specified in such LOA in any manner other than as specified;
(4) 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
(b) [Reserved]
§ 217.174   Mitigation requirements.
(a) When conducting the activities identified in §  217.171(a), the mitigation measures contained in any LOA issued under §§  216.106 of this chapter and 217.176 must be implemented. These mitigation measures must include but are not limited to:
(1) A copy of any issued LOA must be in the possession of the Navy, supervisory construction personnel, lead protected species observers (PSOs), and any other relevant designees of the Holder operating under the authority of this LOA at all times that activities subject to this LOA are being conducted.
(2) The Navy will follow mitigation procedures as described in this section. Should environmental conditions deteriorate such that marine mammals within the entire shutdown zone would not be visible ( e.g., fog, heavy rain, night), the Holder shall delay pile driving and removal until observers are confident marine mammals within the shutdown zone could be detected.
(3) The Navy will ensure that construction supervisors and crews, the monitoring team, and relevant Navy staff are trained prior to the start of all activities subject to this rule, so that responsibilities, communication procedures, monitoring protocols, and operational procedures are clearly understood. New personnel joining during the project will be trained prior to commencing work.
(4) The Navy, construction supervisors and crews, PSOs, and relevant Navy staff will avoid direct physical interaction with marine mammals during construction activity. If a marine mammal comes within 10 m of such activity, operations will cease and vessels will reduce speed to the minimum level required to maintain steerage and safe working conditions, as necessary, to avoid direct physical interaction.
(5) The Navy will employ PSOs and establish monitoring locations as described in this rule and the Marine Mammal Monitoring Plan. The Navy will monitor the project area to the maximum extent possible based on the required number of PSOs, required monitoring locations, and environmental conditions.
(6) Monitoring will take place from 30 minutes prior to initiation of pile driving activity ( i.e., pre-start clearance monitoring) through 30 minutes post-completion of pile driving activity.
(7) If a marine mammal is observed entering or within the shutdown zones indicated in this rule, pile driving activity must be delayed or halted. If pile driving is delayed or halted due to the presence of a marine mammal, the activity may not commence or resume until either the animal has voluntarily exited and been visually confirmed beyond the shutdown zone or 15 minutes have passed without re-detection of the animal.
(8) The Navy will establish shutdown zones for all pile driving activities. Shutdown zones are limited to 150 m from the point of noise generation. Any remaining area within estimated Level A harassment zones shall be considered part of the “disturbance zone,” i.e., the Level B harassment zone and, where present, the Level A harassment zone (PTS onset) beyond 150 m from the point of noise generation. For activities where the estimated Level A (PTS onset) harassment zones are smaller than 150 m, the disturbance zone shall include the entire region of influence (ROI), i.e., estimated Level A and Level B harassment zones). Work may proceed without cessation while marine mammals are in the disturbance zone and marine mammal behavior within the disturbance zone will be monitored and documented.
(9) The Navy will conduct monitoring to include the area within the Level B harassment zones (areas where SPLs are equal to or exceed the 160 dB rms threshold for impact driving and the 120 dB rms threshold during vibratory pile driving (disturbance zone).
(10) Pre-start clearance monitoring will be conducted during periods of visibility sufficient for the lead PSO to determine that the shutdown zones are clear of marine mammals. Pile driving may commence following 30 minutes of observation when the determination is made that the shutdown zones are clear of marine mammals.
(11) If pile driving is delayed or halted due to the presence of a marine mammal, the activity may not commence or resume until either the animal has voluntarily exited and been visually confirmed beyond the shutdown zone indicated or 15 minutes have passed without re-detection of the animal.
(12) The Navy will use soft start techniques when impact pile driving. Soft start requires contractors to provide an initial set of three strikes from the hammer at reduced energy, followed by a 30-second waiting period. Then two subsequent reduced-energy strike sets would occur. A soft start will 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 30 minutes or longer. Soft start is not required during vibratory pile driving activities.
(13) Pile driving activity must be halted upon observation of either a species entering or within the harassment zone, for which incidental take is not authorized, or a species for which incidental take has been authorized but the authorized number of takes has been met.
(b) [Reserved]