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e-CFR data is current as of August 6, 2020

Title 50Chapter IISubchapter CPart 217 → Subpart J


Title 50: Wildlife and Fisheries
PART 217—REGULATIONS GOVERNING THE TAKE OF MARINE MAMMALS INCIDENTAL TO SPECIFIED ACTIVITIES


Subpart J—Taking and Importing Marine Mammals; U.S. Navy's Submarine Base New London Pier Construction


Contents
§217.90   Specified activity and specified geographical region.
§217.91   Effective dates and definitions.
§217.92   Permissible methods of taking.
§217.93   Prohibitions.
§217.94   Mitigation requirements.
§217.95   Requirements for monitoring and reporting.
§217.96   Letters of Authorization.
§217.97   Renewals and modifications of Letters of Authorization.
§§217.98-217.99   [Reserved]

Source: 83 FR 36788, July 31, 2018, unless otherwise noted.

Effective Date Note: At 83 FR 36788, July 31, 2018, subpart J was added, effective Mar. 1, 2020, until Feb. 28, 2025.

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§217.90   Specified activity and specified geographical region.

(a) Regulations in this subpart apply only to the U.S. Navy (Navy) and those persons it authorizes or funds to conduct activities on its behalf for the taking of marine mammals that occurs in the area outlined in paragraph (b) of this section and that occurs incidental to the activities described in paragraph (c) of this section.

(b) The taking of marine mammals by the Navy may be authorized in Letters of Authorization (LOAs) only if it occurs within the Navy Submarine Base New London Study Area, which is located in the towns of Groton and Ledyard in New London County, Connecticut.

(c) The taking of marine mammals by the Navy is only authorized if it occurs incidental to the Navy's conducting in-water pier construction or demolition activities.

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§217.91   Effective dates and definitions.

Regulations in this subpart are effective March 1, 2020 through February 28, 2025.

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§217.92   Permissible methods of taking.

Under LOAs issued pursuant to §216.106 of this chapter and §217.96, the Holder of the LOAs (hereinafter “Navy”) may incidentally, but not intentionally, take marine mammals within the area described in §217.90(b) by Level A harassment and Level B harassment associated with in-water pile driving and pile removal activities, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the applicable LOAs.

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§217.93   Prohibitions.

Notwithstanding takings contemplated in §217.92 and authorized by LOAs issued under §216.106 of this chapter and §217.96, no person in connection with the activities described in §217.90 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 §217.96;

(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 availability of such species or stock of marine mammal for taking for subsistence uses.

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§217.94   Mitigation requirements.

When conducting the activities identified in §217.90(c), the mitigation measures contained in any LOAs issued under §216.106 of this chapter and §217.96 must be implemented. These mitigation measures shall include but are not limited to:

(a) Time restriction. In-water construction and demolition work shall occur only during daylight hours.

(b) Establishment of monitoring and shutdown zones. (1) For all relevant in-water construction and demolition activity, the Navy shall designate Level A harassment zones with radial distances as identified in any LOA issued under §216.106 of this chapter and §217.96.

(2) For all relevant in-water construction and demolition activity, the Navy shall designate Level B harassment zones with radial distances as identified in any LOA issued under §216.106 of this chapter and §217.96.

(3) For all in-water construction and demolition activity, the Navy shall implement a minimum shutdown zone of a 10-m radius around the pile. If a marine mammal comes within or approaches the shutdown zone, such operations shall cease.

(c) Monitoring visibility. Pile driving shall only take place when the shutdown and Level A zones are visible and can be adequately monitored. If conditions (e.g., fog) prevent the visual detection of marine mammals, activities with the potential to result in Level A harassment shall not be initiated. If such conditions arise after the activity has begun, pile driving or pile removal activities shall be halted if the 10-m shutdown zone is not visible.

(d) Shutdown measures. (1) The Navy shall deploy three protected species observers (PSOs) to monitor marine mammals during in-water pile driving and pile removal. One PSO shall be located on land and two shall be located in a boat to monitor the farther locations.

(2) Monitoring shall take place from 15 minutes prior to initiation of pile driving or removal activity through 30 minutes post-completion of pile driving or removal activity. Pre-activity monitoring shall be conducted for 15 minutes to ensure that the shutdown zone is clear of marine mammals, and pile driving or removal may commence when observers have declared the shutdown zone clear of marine mammals. In the event of a delay or shutdown of activity resulting from marine mammals in the shutdown zone, animals shall be allowed to remain in the shutdown zone (i.e., must leave of their own volition) and their behavior shall be monitored and documented. Monitoring shall occur throughout the time required to drive or remove a pile. A determination that the shutdown zone is clear must be made during a period of good visibility (i.e., the entire shutdown zone and surrounding waters must be visible to the naked eye).

(3) If a marine mammal approaches or enters the shutdown zone, or 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 §217.96 and enters the Level B harassment zone, all pile driving or removal activities at that location shall be halted. If pile driving or removal is halted or delayed due to the presence of a marine mammal, the activity may not commence or resume until either the animal has voluntarily left and been visually confirmed beyond the shutdown zone or fifteen minutes have passed without re-detection of the animal.

(4) The Navy shall implement shutdown measures if the number of authorized takes for any particular species reaches the limit under the applicable LOA and if such marine mammals are sighted within the vicinity of the project area and are approaching the Level B harassment zone during in-water construction or demolition activities.

(e) Soft start. (1) The Navy shall implement soft start techniques for impact pile driving. The Navy shall conduct an initial set of three strikes from the impact hammer at 40 percent energy, followed by a 1-minute waiting period, then two subsequent three strike sets.

(2) Soft start shall 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.

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§217.95   Requirements for monitoring and reporting.

(a) Marine mammal monitoring—(1) General requirements. The Navy shall employ trained protected species observers (PSOs) to conduct marine mammal monitoring for its Submarine Base New London pier construction project. The PSOs shall observe and collect data on marine mammals in and around the project area for 15 minutes before, during, and for 30 minutes after all pile removal and pile installation work. PSOs shall have no other assigned tasks during monitoring periods, and shall 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.

(2) Protected species observer qualifications. NMFS-approved PSOs shall meet the following requirements:

(i) Independent observers (i.e., not construction personnel) are required;

(ii) At least one observer must have prior experience working as an observer;

(iii) Other observers may substitute education (undergraduate degree in biological science or related field) or training for experience;

(iv) Where a team of three or more observers are required, one observer should be designated as lead observer or monitoring coordinator. The lead observer must have prior experience working as an observer; and

(v) NMFS will require submission and approval of observer CVs.

(3) Marine mammal monitoring protocols. (i) The Navy shall conduct briefings between construction supervisors and crews and the PSO team prior to the start of all pile driving activities, and when new personnel join the work, in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures. All personnel working in the project area shall watch the Navy's Marine Species Awareness Training video. An informal guide shall be included with the monitoring plan to aid in identifying species if they are observed in the vicinity of the project area.

(ii) The Navy shall monitor the Level A and Level B harassment zones before, during, and after pile driving activities for all in-water constructions. The Marine Mammal Monitoring Plan shall include the following procedures:

(A) PSO location. PSOs will be primarily located on boats, docks, and piers at the best vantage point(s) in order to properly see the entire shutdown zone(s).

(B) PSO vantage point. PSOs will be located at the best vantage point(s) to observe the zone associated with behavioral impact thresholds.

(C) Observation equipment. During all observation periods, PSOs will use high-magnification (25X), as well as standard handheld (7X) binoculars, and the naked eye to search continuously for marine mammals.

(D) Ranging equipment. Monitoring distances will be measured with range finders. Distances to animals will be based on the best estimate of the PSO, relative to known distances to objects in the vicinity of the PSO.

(E) Bearing. Bearings to animals will be determined using a compass.

(F) Pre-activity monitoring. The shutdown zone will be monitored for 15 minutes prior to in-water construction/demolition activities. If a marine mammal is present within the 10-m shutdown zone, the activity will be delayed until the animal(s) leaves the shutdown zone. Activity will resume only after the PSO has determined that, through sighting or by waiting 15 minutes, the animal(s) has moved outside the shutdown zone. If a marine mammal is observed approaching the shutdown zone, the PSO who sighted that animal will notify all other PSOs of its presence.

(G) During activity monitoring. If a marine mammal is observed entering the Level A or Level B harassment zones outside the 10-m shutdown zone, the pile segment being worked on will be completed without cessation, unless the animal enters or approaches the shutdown zone, at which point all pile driving activities will be halted. If an animal is observed within the shutdown zone during pile driving, then pile driving will be stopped as soon as it is safe to do so. Pile driving can only resume once the animal has left the shutdown zone of its own volition or has not been re-sighted for a period of 15 minutes.

(H) Post-activity monitoring. Monitoring of all zones will continue for 30 minutes following the completion of the activity.

(b) Acoustic monitoring—(1) Sound source verification. (i) The Navy shall conduct pile driving sound source verification for the following types and sizes of piles:

(A) Vibratory and impact installation of at least 5 16-in fiberglass reinforced plastic piles; and

(B) Rock socket drilling of at least 3 30-in and 3 16-in piles.

(ii) Sound source measurements of these piles sound shall be conducted at distances approximately 10 m from the source.

(iii) For vibratory pile driving/removal source level measurements, reports shall include 1-s sound exposure level (SEL), source spectrum, duration of recordings used to derived the SEL, and 24-hour cumulative SEL extrapolated from measurements.

(iv) For impact pile driving source level measurements, report should include peak sound pressure level (SPLpk), root-mean-square SPL (SPLrms), single strike SEL (SELss), integration time for SPLrms, SELss spectrum, and 24-hour cumulative SEL extrapolated from measurements.

(2) Level B harassment distance verification. (i) The Navy shall empirically determine the Level B harassment distance either by extrapolating from in situ measurements conducted at several points between 10 and 500 m from the source, or by direct measurements to locate the distance where the received levels reach 120 dB or below, or at the ambient noise level.

(ii) Level B harassment zones to be empirically verified include:

(A) Rock socket drilling of at least 3 30-in and 3 16-in piles;

(B) Vibratory installation of at least 3 36-in steel piles; and

(C) Vibratory removal of at least 3 24-in concrete and 3 33-in concrete piles.

(iii) For extent of Level B harassment zone verification, the Navy shall report the measured or extrapolated distances where the received levels SPLrms decay to 120-dB or to the ambient noise level, whichever is higher, as well as integration time for such SPLrms.

(3) Source level calculation. The sound levels reported should be in median and linear average (i.e., taking averages of sound intensity before converting to dB).

(4) Sediment type. The passive acoustic monitoring reports shall also include sediment type where measurements are made.

(c) Reporting measures—(1) Annual reports. (i) The Navy shall submit an annual report within 90 days after each activity year, starting from the date when the LOA is issued (for the first annual report) or from the date when the previous annual report ended.

(ii) Annual reports shall detail the monitoring protocol, summarize the data recorded during monitoring, and estimate the number of marine mammals that may have been harassed during the period of the report.

(iii) Annual reports shall also include results from acoustic monitoring detailed in paragraph (b) of this section.

(iv) NMFS shall provide comments within 30 days after receiving annual reports, and the Navy shall address the comments and submit revisions within 30 days after receiving NMFS comments. If no comment is received from the NMFS within 30 days, the annual report is considered completed.

(2) Final report. (i) The Navy shall submit a comprehensive summary report to NMFS not later than 90 days following the conclusion of marine mammal monitoring efforts described in this subpart.

(ii) The final report shall synthesize all data recorded during marine mammal monitoring, and estimate the number of marine mammals that may have been harassed through the entire project.

(iii) NMFS would provide comments within 30 days after receiving this report, and the Navy shall address the comments and submit revisions within 30 days after receiving NMFS comments. If no comment is received from the NMFS within 30 days, the final report is considered as final.

(3) 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, the Navy shall immediately cease all operations and immediately report the incident to the NMFS Office of Protected Resources, NMFS, and the Greater Atlantic 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 shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS shall work with the Navy to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The Navy may not resume their activities until notified by NMFS via letter, email, or telephone.

(iii) In the event that the Navy 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 the next paragraph), the Navy will immediately report the incident to the NMFS Office of Protected Resources, NMFS, and the Greater Atlantic Regional Stranding Coordinators. The report must include the same information identified in paragraph (c)(3)(i)(A) of this section. Activities may continue while NMFS reviews the circumstances of the incident. NMFS will work with the Navy to determine whether modifications in the activities are appropriate.

(iv) In the event that the Navy discovers an injured or dead marine mammal, and the lead protected species observer determines that the injury or death is not associated with or related to the activities authorized in the IHA (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), the Navy shall report the incident to the NMFS Office of Protected Resources, NMFS, and the Greater Atlantic Regional Stranding Coordinators, within 24 hours of the discovery. The Navy shall provide photographs or video footage (if available) or other documentation of the stranded animal sighting to NMFS and the Marine Mammal Stranding Network. The Navy can continue its operations under such a case.

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§217.96   Letters of Authorization.

(a) To incidentally take marine mammals pursuant to these regulations, the Navy must apply for and obtain LOAs in accordance with §216.106 of this chapter for conducting the activity identified in §217.90(c).

(b) LOAs, unless suspended or revoked, may be effective for a period of time not to extend beyond the expiration date of these regulations.

(c) If an LOAs expires prior to the expiration date of these regulations, the Navy may apply for and obtain a renewal of the LOAs.

(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 §217.97(c)(1)) required by an LOA, the Navy must apply for and obtain a modification of LOAs as described in §217.97.

(e) Each 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, their habitat, and 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 shall be consistent with the findings made for the total taking allowable under these regulations.

(g) Notice of issuance or denial of the LOAs shall be published in the Federal Register within 30 days of a determination.

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§217.97   Renewals and modifications of Letters of Authorization.

(a) An LOA issued under §216.106 of this chapter and §217.96 for the activity identified in §217.90(c) 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 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 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 §217.96 for the activity identified in §217.90(c) may be modified by NMFS under the following circumstances:

(1) Adaptive management. After consulting with the Navy 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 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 Navy's monitoring from the previous year(s);

(B) Results from other marine mammal and/or sound research or studies; or

(C) Any information that reveals marine mammals may have been taken in a manner, extent or number not authorized by these regulations or subsequent LOAs.

(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS shall publish a notice of proposed LOA in the Federal Register and solicit public comment.

(2) Emergencies. If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in LOAs issued pursuant to §216.106 of this chapter and §217.96, 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.

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§§217.98-217.99   [Reserved]

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