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e-CFR data is current as of August 12, 2020

Title 50Chapter IISubchapter CPart 218 → Subpart F


Title 50: Wildlife and Fisheries
PART 218—REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE MAMMALS


Subpart F—Taking of Marine Mammals Incidental to the U.S. Air Force 86 Fighter Weapons Squadron Conducting Long Range Strike Weapons System Evaluation Program at the Pacific Missile Range Facility at Kauai, Hawaii


Contents
§218.50   Specified activity and specified geographical region.
§218.51   Effective dates.
§218.52   Permissible methods of taking.
§218.53   Prohibitions.
§218.54   Mitigation requirements.
§218.55   Requirements for monitoring and reporting.
§218.56   Letters of Authorization.
§218.57   Renewals and Modifications of Letters of Authorization.
§§218.58-218.59   [Reserved]

Source: 82 FR 39698, Aug. 22, 2017, unless otherwise noted.

Effective Date Note: At 82 FR 39698, Aug. 22, 2017, subpart F was added, effective Aug. 21, 2017, through Aug. 22, 2022.

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§218.50   Specified activity and specified geographical region.

(a) Regulations in this subpart apply only to the 86 Fighter Weapons Squadron (86 FWS) and those persons it authorizes to conduct activities on its behalf, for the taking of marine mammals as outlined in paragraph (b) of this section and incidental to Long Range Strike Weapons System Evaluation Program (LRS WSEP) missions.

(b) The taking of marine mammals by 86 FWS pursuant to a Letter of Authorization (LOA) is authorized only if it occurs at the Barking Sands Underwater Range Expansion (BSURE) area of the Pacific Missile Range Facility (PMRF) off Kauai, Hawaii.

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§218.51   Effective dates.

Regulations in this subpart are effective August 21, 2017, through August 22, 2022.

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§218.52   Permissible methods of taking.

Under a LOA issued pursuant to §216.106 of this chapter and §218.56, the Holder of the LOA (herein after 86 FWS) may incidentally, but not intentionally, take marine mammals by Level A and Level B harassment associated with LRS WSEP activities within the area described in §218.50, provided the activities are in compliance with all terms, conditions, and requirements of these regulations in this subpart and the associated LOA.

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§218.53   Prohibitions.

Notwithstanding takings contemplated in §218.50 and authorized by an LOA issued under §216.106 of this chapter and §218.56, no person in connection with the activities described in §218.50 may:

(a) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or the LOA issued under §216.106 of this chapter and §218.56.

(b) Take a marine mammal species or stock not specified in the LOA; and

(c) Take a marine mammal species or stock specified in the LOA in any manner other than as specified.

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§218.54   Mitigation requirements.

When conducting activities identified in §218.50, the mitigation measures contained in the LOA issued under §216.106 of this chapter and §218.56 must be implemented. These mitigation measures shall include but are not limited to the following general conditions:

(a) Execute missions during day-light hours only, no more than four hours per day, no more than one day during 2017, no more than four days per year for 2018 through 2022 over a five-day period, on weekdays, and only during summer (June through August) or fall (September through November) months.

(b) Delay live munition detonations if a marine mammal is observed within the designated exclusion zone (2.3 mile (mi) (3,704 m) from the weapon impact site), resuming only after the animal is observed exiting the exclusion zone or the exclusion zone has been clear of any additional sightings for a period of 30 minutes.

(c) Delay live munition detonations if a marine mammal is observed in an impact zone but outside of the 2.3 mi exclusion zone and if the manner of taking is not authorized (e.g., animal is observed in Level A impact zone for that species and no Level A take is authorized), resuming only after the animal is observed exiting the zone.

(d) Shift the target site as far as possible from an observed marine mammal's location (but within the two-mile wide weapon impact area) if a marine mammal is observed during the pre-mission survey or during missions and continuing the mission will not result in an unauthorized take of a marine mammal.

(e) Suspend live munition detonations if an unauthorized take of a marine mammal occurs, and report the incident to NMFS Office of Protected Resources (OPR), NMFS Pacific Islands Regional Office (PIRO), and the Pacific Islands Region Marine Mammal Stranding Network representative immediately followed by a report to NMFS within 24 hours.

(f) Implement a best management practice, on a daily basis, of conducting inert munition training or small bomb detonations prior to detonating large bombs if the Project Engineer/Commanding Office determines this practice does not interfere with mission training.

(g) Additional mitigation measures as contained in an LOA.

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§218.55   Requirements for monitoring and reporting.

(a) Holders of LOAs issued pursuant to §218.56 for activities described in §218.50(a) are required to cooperate with NMFS, and any other Federal, state, or local agency with authority to monitor the impacts of the activity on marine mammals. Unless specified otherwise in the LOA, the Holder of the LOA must notify the Pacific Islands Region Stranding Coordinator, NMFS, by email, at least 72 hours prior to LRS WSEP missions.

(b) All marine mammal monitoring will be carried out in compliance with the 86 FWS Marine Mammal Mitigation and Monitoring Plan, dated August 2017.

(c) Aerial Surveys: The 86 FWS will conduct pre-, during, and post-training surveys each mission day.

(1) The marine mammal survey monitoring area will extend no less than approximately 8 mi (13 kilometers (km)) from the designated impact site.

(2) Surveys will utilize military aircraft equipped with advanced targeting sensor pods (e.g., SNIPER pods) at altitudes and speeds ideal for detecting marine mammals using such equipment; aircraft will fly transect lines covering the entire eight mi monitoring area. A helicopter-based survey may substitute the military aircraft survey platform and use of sensor pods only if a sensor pod is not be available.

(3) A pre-mission marine mammal survey will commence no later than 30 minutes prior to beginning training activities.

(4) Aircraft personnel will also observe for marine mammals during training (e.g., on approach to weapon launch location).

(5) Aircraft personnel will conduct a post-mission survey for marine mammals immediately following the end of training each mission day. A helicopter may be used in lieu of mission aircraft only if sensor pod is not available.

(d) Range Camera Surveys: 86 FWS personnel will use the Makaha Ridge range cameras to monitor for marine mammals within the weapon impact area at least 30 minutes prior to, during, and immediately after training activities.

(e) Helicopter surveys: If military aircraft equipped with a sensor pod cannot be used for marine mammal surveys, the 86 FWS may substitute a helicopter as the survey platform. The helicopter will fly at an approximately 200 feet altitude and will cover the 8 mi monitoring area. If adverse weather conditions preclude the ability for aircraft to safely operate, missions would either be delayed until the weather clears or cancelled for the day.

(f) Acoustic Monitoring:

(1) The 86 FWS will comply with all acoustic monitoring as described in the 86 FWS Mitigation and Monitoring Plan.

(2) Acoustic data from the PRMF hydrophones will be collected and stored by the 86 FWS. Data will be analyzed to better understand the effects of LRS WSEP missions. The results of the analysis will accompany any subsequent LOA request or, if no request is made, no later than 90 after expiration of the LOA.

(g) The 86 FWS will contact the Pacific Islands Region stranding coordinator, NMFS, by email, at least 72 hours prior to mission onset and one business day after completion of missions to declare that missions are complete.

(h) The Holder of the LOA is required to:

(1) Submit a draft report to NMFS OPR on all monitoring conducted under the LOA within 90 days of the completion of marine mammal monitoring or accompanying a subsequent application for regulations. A final report shall be prepared and submitted within 30 days following resolution of comments on the draft report from NMFS. This report must contain the informational elements described in the Monitoring Plan, and shall also include:

(i) Date and time of each LRS WSEP mission;

(ii) A complete description of the pre-exercise, exercise, and post-exercise activities related to mitigating and monitoring the effects of LRS WSEP missions on marine mammals; and;

(iii) Results of the monitoring program, including numbers by species/stock of any marine mammals noted injured or killed as a result of the LRS WSEP mission and number of marine mammals (by species if possible) that may have been harassed due to presence within the designated harassment zones.

(iv) The draft report will be subject to review and comment by NMFS. Any recommendations made by NMFS must be addressed in the final report prior to acceptance by NMFS. The draft report will be considered the final report for this activity under the LOA if NMFS has not provided comments and recommendations within 90 days of receipt of the draft report.

(2) Report injured or dead marine mammals:

(i) In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by the LOA, such as an injury for species not authorized (Level A harassment), serious injury, or mortality, the 86 FWS shall immediately cease the specified activities and immediately report the incident to Pacific Islands Regional Stranding Coordinator (888-256-9840), NMFS followed by a report submitted to NMFS Office of Protected Resources and the Pacific Islands Regional Office within 24 hours. The report must include the following information:

(A) Time and date of the incident;

(B) Description of the incident;

(C) Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, and 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).

(ii) Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS will work with 86 FWS to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The 86 FWS may not resume their activities until notified by NMFS.

(iii) In the event that 86 FWS discovers an injured or dead marine mammal, and the lead observer 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), 86 FWS shall immediately report the incident to the Pacific Islands Regional Stranding Coordinator, followed by a report to NMFS Office of Protected Resources and the Pacific Island Regional Office within 24 hours of the discovery. The report must include the same information identified in paragraph (h)(2)(i) of this section. Activities may continue while NMFS reviews the circumstances of the incident. NMFS will work with 86 FWS to determine whether additional mitigation measures or modifications to the activities are appropriate.

(iv) In the event that 86 FWS discovers an injured or dead marine mammal, and the lead observer 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, scavenger damage), 86 FWS shall report the incident to the Office of Protected Resources, NMFS, and the Pacific Islands Regional Stranding Coordinator, NMFS, within 24 hours of the discovery. The 86 FWS shall provide photographs or video footage or other documentation of the stranded animal sighting to NMFS.

(3) Additional Conditions:

(i) The Holder of the LOA must inform the Director, Office of Protected Resources, NMFS, (301-427-8400) or designee (301-427-8401) prior to the initiation of any changes to the monitoring plan for a specified mission activity.

(ii) A copy of the LOA must be in the possession of the safety officer on duty each mission day.

(iii) The LOA may be modified, suspended or withdrawn if the holder fails to abide by the conditions prescribed herein, or if NMFS determines the authorized taking is having more than a negligible impact on the species or stock of affected marine mammals.

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§218.56   Letters of Authorization.

(a) To incidentally take marine mammals pursuant to these regulations, 86 FWS 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, 86 FWS must 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, 86 FWS must apply for and obtain a modification of the LOA as described in §218.57.

(e) The LOA will set forth:

(1) Permissible methods of incidental taking;

(2) The number of marine mammals, by species and stock, authorized to be taken;

(3) Means of effecting the least practicable adverse impact (i.e., mitigation) on the species of marine mammals authorized for taking, on its habitat, and on the availability of the species for subsistence uses; and

(4) Requirements for monitoring and reporting.

(f) Issuance of an 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 will be published in the Federal Register within 30 days of a determination.

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§218.57   Renewals and Modifications of Letters of Authorization.

(a) An LOA issued under §216.106 of this chapter and §218.56 for the activity identified in §218.50(a) will 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 request 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 illustrating the change, and solicit public comment before issuing the LOA.

(c) An LOA issued under §216.106 of this chapter and §218.56 for the activity identified in §218.50(a) may be modified by NMFS under the following circumstances:

(1) Adaptive Management—NMFS may modify and augment the existing mitigation, monitoring, or reporting measures (after consulting with the 86 FWS regarding the practicability of the modifications) 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, and reporting measures in an LOA include, but is not limited to:

(A) Results of new range-to-effects models based on maximum amount of weapons, by type, utilized during each mission;

(B) Results from 86 FWS's monitoring from the previous year(s);

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

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

(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 the LOA issued pursuant to §216.106 of this chapter and §218.50, 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.

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§§218.58-218.59   [Reserved]

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