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Title 50Chapter IISubchapter CPart 218 → Subpart X


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


Subpart X—Taking and Importing of Marine Mammals; U.S. Navy Surveillance Towed Array Sensor System Low Frequency Active (SURTASS LFA) Sonar Training and Testing in the Central and Western North Pacific and Eastern Indian Oceans


Contents
§218.230   Specified activity, level of taking, and species/stocks.
§218.231   Effective dates.
§218.232   Permissible methods of taking.
§218.233   Prohibitions.
§218.234   Mitigation.
§218.235   Requirements for monitoring.
§218.236   Requirements for reporting.
§218.237   Letter of Authorization.
§218.238   Renewals and modifications of a Letter of Authorization.

Effective Date Note: At 84 FR 40208, Aug. 13, 2019, subpart X was added, effective from Aug. 12, 2019, through Aug. 13, 2026.

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§218.230   Specified activity, level of taking, and species/stocks.

Regulations in this subpart apply to the U.S. Navy (Navy) for the taking of marine mammals that occurs incidental to the Navy's SURTASS LFA sonar training and testing activities under authority of the Secretary of the Navy within the central and western North Pacific and eastern Indian Oceans (SURTASS LFA Sonar Study Area) (Table 1 to §218.230).

Table 1 to §218.230—Species/Stocks Proposed for Authorization by Level B Harassment for the 7-Year Period of the Proposed Rule by SURTASS LFA Sonar Training and Testing Activities

SpeciesStock1
Antarctic minke whaleANT.
Blue whaleCNP.
   NIND.
   WNP.
   SIND.
Bryde's whaleECS.
   Hawaii.
   WNP.
   NIND.
   SIND.
Common minke whaleHawaii.
   IND.
   WNP JW.
   WNP OE.
   YS.
Fin whaleECS.
   Hawaii.
   IND.
   SIND.
   WNP.
Humpback whaleCNP stock and Hawaii DPS.
   WAU stock and DPS.
   WNP stock and DPS.
North Pacific right whaleWNP.
Omura's whaleNIND.
   SIND.
   WNP.
Sei whaleHawaii.
   SIND.
   NP.
   NIND.
Western North Pacific gray whaleWNP stock and Western DPS.
Baird's beaked whaleWNP.
Blainville's beaked whaleHawaii.
   WNP.
   IND.
Common bottlenose dolphin4-Islands.
   Hawaii Island.
   Hawaii Pelagic.
   IA.
   IND.
   Japanese Coastal.
   Kauai/Niihau.
   Oahu.
   WNP Northern Offshore.
   WNP Southern Offshore.
   WAU.
Common dolphinIND.
   WNP.
Cuvier's beaked whaleHawaii.
   IND.
   SH.
   WNP.
Dall's porpoiseSOJ dalli type.
   WNP dalli ecotype.
   WNP truei ecotype.
Deraniyagala's beaked whaleIND.
   NP.
Dwarf sperm whaleHawaii.
   IND.
   WNP.
False killer whaleHawaii Pelagic.
   IA.
   IND.
   Main Hawaiian Islands Insular stock and DPS.
   Northwestern Hawaiian Islands.
   WNP.
Fraser's dolphinCNP.
   Hawaii.
   IND.
   WNP.
Ginkgo-toothed beaked whaleIND.
   NP.
Harbor porpoiseWNP.
Hubbs' beaked whaleNP.
Indo-Pacific bottlenose dolphinIND.
Killer whaleHawaii.
   IND.
   WNP.
Kogia spp.WNP.
Longman's beaked whaleHawaii.
   IND.
   WNP.
Melon-headed whaleHawaiian Islands.
   IND.
   Kohala Resident.
   WNP.
Mesoplodon spp.WNP.
Northern right whale dolphinNP.
Pacific white-sided dolphinNP.
Pantropical spotted dolphin4-Islands.
   Hawaii Island.
   Hawaiian Pelagic.
   IND.
   Oahu.
   WNP.
Pygmy killer whaleHawaii.
   IND.
   WNP.
Pygmy sperm whaleHawaii.
   IND.
   WNP.
Risso's dolphinHawaii.
   IA.
   WNP.
   IND.
Rough-toothed dolphinHawaii.
   IND.
   WNP.
Short-finned pilot whaleHawaii.
   IND.
   WNP Northern Ecotype.
   WNP Southern Ecotype.
Southern bottlenose whaleIND.
Spade-toothed beaked whaleIND.
Sperm whaleHawaii.
   NIND.
   NP.
   SIND.
Spinner dolphinHawaii Island.
   Hawaii Pelagic.
   IND.
   Kauai/Niihau.
   Kure/Midway Atoll.
   Oahu/4-Islands.
   Pearl and Hermes Reef.
   WNP.
Stejneger's beaked whaleWNP.
Striped dolphinHawaii.
   IND.
   Japanese Coastal.
   WNP Northern Offshore.
   WNP Southern Offshore.
Hawaiian monk sealHawaii.
Northern fur sealWestern Pacific.
Ribbon sealNP.
Spotted sealAlaska stock/Bering Sea DPS.
   Southern stock and DPS.
Steller sea lionWestern/Asian stock and Western DPS.

1ANT = Antarctic; CNP = Central North Pacific; NP = North Pacific; NIND = Northern Indian; SIND = Southern Indian; IND = Indian; WNP = Western North Pacific; ECS = East China Sea; WP = Western Pacific; SOJ = Sea of Japan; IA = Inshore Archipelago; WAU = Western Australia; YS = Yellow Sea; OE = Offshore Japan; OW = Nearshore Japan; JW = Sea of Japan/Minke; JE = Pacific coast of Japan; SH = Southern Hemisphere; DPS = distinct population segment.

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§218.231   Effective dates.

Regulations in this subpart are effective from August 13, 2019, through August 12, 2026.

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§218.232   Permissible methods of taking.

Under a Letter or Letters of Authorization (LOA) issued pursuant to §§216.106 of this chapter and 218.237, the Holder of the LOA (hereinafter “Navy”) may incidentally, but not intentionally, take marine mammals within the area described in §218.230 by Level B harassment associated with SURTASS LFA sonar training and testing provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the applicable LOA.

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§218.233   Prohibitions.

Notwithstanding takings contemplated in §218.230 and authorized by a LOA issued under §§216.106 of this chapter and 218.237, no person in connection with the activities described in §218.230 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 218.237;

(b) Take any marine mammal not specified in such LOAs;

(c) Take any marine mammal specified in such LOAs in any manner other than Level B harassment;

(d) Take any marine mammal specified in the LOA if NMFS makes a determination that such taking is having, or may have, more than a negligible impact on the species or stocks concerned; or

(e) Take a marine mammal specified in the LOA if NMFS determines such taking is having, or may have, an unmitigable adverse impact on availability of the species or stock for taking for subsistence uses.

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§218.234   Mitigation.

When conducting activities identified in §218.230, the mitigation measures described in this section and in any LOA issued under §§216.106 of this chapter and 218.237 must be implemented.

(a) Personnel training—lookouts. The Navy will utilize one or more trained marine biologists qualified in conducting at-sea marine mammal visual monitoring to conduct at-sea marine mammal visual monitoring training and qualify designated ship personnel to conduct at-sea visual monitoring. Training will ensure quick and effective communication within the command structure in order to facilitate implementation of protective measures if they detect marine mammals and may be accomplished either in-person, or via video training.

(b) General operating procedures. (1) Prior to SURTASS LFA sonar activities, the Navy will promulgate executive guidance for the administration, execution, and compliance with the environmental regulations under these regulations and LOA.

(2) The Navy must not transmit the SURTASS LFA sonar signal at a frequency greater than 500 Hz.

(c) 2,000-yard LFA sonar mitigation zone; suspension and delay. If a marine mammal is detected, through monitoring required under §218.235, within or about to enter within 2,000 yards of the SURTASS LFA source (i.e., the LFA mitigation zone), the Navy must immediately delay or suspend SURTASS LFA sonar transmissions.

(d) Resumption of SURTASS LFA sonar transmissions. (1) The Holder of a LOA may not resume SURTASS LFA sonar transmissions earlier than 15 minutes after:

(i) All marine mammals have left the area of the 2,000-yard LFA sonar mitigation zone; and

(ii) There is no further detection of any marine mammal within the 2,000-yard LFA sonar mitigation zone as determined by the visual, passive acoustic, and active acoustic high frequency monitoring described in §218.235.

(2) [Reserved]

(e) Ramp-up procedures for the high-frequency marine mammal monitoring (HF/M3) sonar required under §218.235. (1) The Navy must ramp up the HF/M3 sonar power level beginning at a maximum source sound pressure level of 180 dB: re 1 µPa at 1 meter in 10-dB increments to operating levels over a period of no less than five minutes:

(i) At least 30 minutes prior to any SURTASS LFA sonar transmissions; and

(ii) Anytime after the HF/M3 source has been powered down for more than two minutes.

(2) The Navy must not increase the HF/M3 sound pressure level once a marine mammal is detected; ramp-up may resume once marine mammals are no longer detected.

(f) Geographic restrictions on the SURTASS LFA sonar sound field. (1) LFA sonar training and testing activities must be conducted such that:

(i) The received level of SURTASS LFA sonar transmissions will not exceed 180 dB re: 1 µPa rms within 22 km (12 nmi) from any emergent land, including offshore islands;

(ii) The received level of SURTASS LFA sonar transmissions will not exceed 180 dB re: 1 µPa rms at a distance of 1 km (0.5 nmi) seaward of the outer perimeter of any Offshore Biologically Important Area (OBIA) designated in the Study Area for SURTASS LFA sonar in paragraph (f)(2) of this section, or subsequently identified through the Adaptive Management process specified in §218.241, during the period specified. The boundaries and periods of such OBIAs will be kept on file in NMFS' Office of Protected Resources and on its website at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities.

(iii) No more than 25 percent of the authorized amount (transmission hours) of SURTASS LFA sonar for training and testing will be conducted within 10 nmi (18.5 km) of any single OBIA during any year (no more than 124 hours in years 1-4 and 148 hours in years 5-7) unless the following conditions are met: Should national security present a requirement to conduct more than 25 percent of authorized hours of SURTASS LFA sonar within 10 nmi (18.5 km) of any single OBIA during any year, naval units will obtain permission from the appropriate designated Command authority prior to commencement of the activity. The Navy will provide NMFS with notification as soon as is practicable and include the information (e.g., sonar hours) in its annual activity reports submitted to NMFS.

(iv) No activities with the SURTASS LFA system will occur within territorial seas of foreign nations, which are areas from 0 up to 12 nmi from shore, depending on the distance that individual nations claim; and

(v) No activities with the SURTASS LFA sonar system will occur in the waters of Penguin Bank, Hawaii (defined as water depth of 600 ft (183 m)), and ensonification of Hawaii state waters (out to 3 nmi) will not exceed 145 dB re: 1 µPa rms.

(2) Offshore Biologically Important Areas (OBIAs) for marine mammals (with specified periods) for SURTASS LFA sonar training and testing activities include the following (Table 1 to paragraph (f)(2)):

Table 1 to Paragraph (f)(2)—Offshore Biologically Important Areas (OBIAs)

OBIA nameOcean areaEffective seasonal period
Main Hawaiian IslandsCentral North PacificNovember to April.
Northwestern Hawaiian IslandsCentral North PacificDecember to April.
Mariana IslandsWestern North PacificFebruary to April.
Ryukyu-PhilippinesWestern North PacificJanuary to April.
Ogasawara Islands (Sperm Whale)Western North PacificJune to September.
Ogasawara-Kazin Islands (Humpback Whale)Western North PacificDecember to May.
HonshuWestern North PacificJanuary to May.
Southeast KamchatkaWestern North PacificJune to September.
Gulf of ThailandEastern Indian OceanApril to November.
Western Australia (Blue Whale)Eastern Indian OceanMay to November.
Western Australia (Humpback Whale)Eastern Indian OceanMay to December.
Southern BaliEastern Indian OceanOctober to November.
Swatch-of-No-Ground (SoNG)Northern Bay of BengalYear-round.
Sri LankaEastern Indian OceanOctober to April.

(g) Minimization of additional harm to live-stranded (or milling) mammals. The Navy must consult the Notification and Reporting Plan, which sets out the requirements for when live stranded marine mammals are reported in the Study Area. The Stranding and Notification Plan is available at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-operations-surveillance-towed-array-sensor-system-0.

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§218.235   Requirements for monitoring.

(a) The Navy must:

(1) Conduct visual monitoring from the ship's bridge during all daylight hours (30 minutes before sunrise until 30 minutes after sunset). During training and testing activities that employ SURTASS LFA sonar in the active mode, the SURTASS vessels must have Lookouts to maintain a topside watch with standard binoculars (7x) and with the naked eye. If the lookout sights a possible marine mammal, the lookout will use big-eye binoculars (25x) to confirm the sighting and potentially identify the marine mammal species.

(2) Use the passive SURTASS sonar component to detect vocalizing marine mammals; and

(3) Use the HF/M3 sonar to locate and track marine mammals in relation to the SURTASS LFA sonar vessel and the LFA mitigation zone, subject to the ramp-up requirements in §216.234(e) of this chapter.

(b) Monitoring under paragraph (a) of this section must:

(1) Commence at least 30 minutes before the first SURTASS LFA sonar training and testing transmission;

(2) Continue between transmission pings; and

(3) Continue either for at least 15 minutes after completion of the SURTASS LFA sonar training and testing transmission, or, if marine mammals are exhibiting unusual changes in behavioral patterns, until behavior patterns return to normal or conditions prevent continued observations.

(c) The Navy must designate qualified on-site individuals to conduct the mitigation, monitoring, and reporting activities specified in these regulations and LOA issued under §§216.106 of this chapter and 218.237.

(d) The Navy must continue to assess data from the Marine Mammal Monitoring Program and work toward making some portion of that data, after appropriate security reviews, available to scientists with appropriate clearances. Any portions of the analyses conducted by these scientists based on these data that are determined to be unclassified after appropriate security reviews will be made publically available.

(e) The Navy must collect ambient noise data and will explore the feasibility of declassifying and archiving the ambient noise data for incorporation into appropriate ocean noise budget efforts.

(f) The Navy must conduct all monitoring required under LOAs.

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§218.236   Requirements for reporting.

(a) The Navy must submit classified and unclassified annual training and testing activity reports to the Director, Office of Protected Resources, NMFS, no later than 90 days after the end of each year covered by the LOA beginning on the date of effectiveness of a LOA. Each annual training and testing activity report will include a summary of all active-mode training and testing activities completed during that year. At a minimum, each classified training and testing activity report must contain the following information:

(1) Dates, times, and location of each vessel during each training and testing activity;

(2) Information on sonar transmissions during each training and testing activity;

(3) Results of the marine mammal monitoring program specified in the LOA; and

(4) Estimates of the percentages of marine mammal species and stocks affected (both for the year and cumulatively for each successive year) covered by the LOA.

(b) The seventh annual report must be prepared as a final comprehensive report, which will include information for the final year as well as the prior six years of activities under the rule. This final comprehensive report must also contain an unclassified analysis of new passive sonar technologies and an assessment of whether such a system is feasible as an alternative to SURTASS LFA sonar, and be submitted to the Director, Office of Protected Resources, NMFS as described in this paragraph (b).

(c) The Navy will continue to assess the data collected by its undersea arrays and work toward making some portion of that data, after appropriate security reviews, available to scientists with appropriate clearances. Any portions of the analyses conducted by these scientists based on these data that are determined to be unclassified after appropriate security reviews will be made publically available.

(d) The Navy must consult the Notification and Reporting Plan, which sets out notification, reporting, and other requirements for when dead, injured, or live stranded marine mammals are reported in the Study Area. The Stranding and Notification Plan is available at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-operations-surveillance-towed-array-sensor-system-0.

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§218.237   Letter of Authorization.

(a) To incidentally take marine mammals pursuant to these regulations, Navy must apply for and obtain a Letter of Authorization (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, 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 (excluding changes made pursuant to the adaptive management provision of §218.239), the Navy must apply for and obtain a modification of the LOA as described in §218.238.

(e) The LOA shall set forth:

(1) Permissible methods of incidental taking;

(2) Means of effecting the least practicable adverse impact on the species, its habitat, and on the availability of the species for subsistence uses (i.e., mitigation); 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 thirty days of a determination.

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§218.238   Renewals and modifications of a Letter of Authorization.

(a) An LOA issued under §§216.106 of this chapter and 218.237 for the activity identified in §218.230 may be renewed or modified upon request by the applicant, provided that:

(1) The planned 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) were implemented.

(b) For LOA modification or renewal requests by the Navy that include changes to the activity or to 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 that do not result in more than a minor change in the total estimated number of takes (or distribution by species or stock or years), NMFS may publish notification of a planned 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 218.237 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 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 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 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 will publish a notice of planned 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 218.237, 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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