Passive Acoustic Monitoring (PAM) / Protected Species Observer (PSO)

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rule costs are a small fraction) account
for 96 percent of the survey permits.
Fourth, while small entities in other
industries occasionally apply for
permits (four percent historically), these
businesses are quite small, with average
annual revenues in the millions or even
less. Given their size, it is unlikely that
these permit applicants bear survey
costs; otherwise it would be reflected in
their annual revenues (i.e., their
revenues on average would reflect that
they recover their costs). Accordingly,
NMFS expects it is most likely that
survey costs are passed on to oil and gas
extraction companies who commission
the surveys or purchase the data. And
fifth, overall, up to five small businesses
(NAICS 2111) per year may experience
increased costs of between 0.1 and 0.7
percent of average annual revenues.
The draft version of the RIA and the
Initial Regulatory Flexibility Analysis
considered effects of a more stringent
alternative than the proposed rule. The
more stringent alternative included
additional shutdown requirements and
area closures for surveys, generating
costs up to 20 percent greater than the
proposed rule. NMFS did not elect to
proceed with these elements of the more
stringent alternative in the final rule,
which reduces the potential for impacts
to small businesses. NMFS determined
that the final rule achieves the statutory
objectives with a lower regulatory
burden. As described above, a relatively
small portion of total survey activities
are undertaken by small entities and the
FRFA determines that it is unlikely that
small entities will bear the compliance
costs described in the RIA.
This final rule revises the information
collection request (ICR) requirement
associated with OMB Control Number
0648–0151 to allow for the expected
increase in applicants/respondents due
to this final action. This revision is
subject to review and approval by OMB
under the Paperwork Reduction Act
(PRA) and has been submitted to OMB.
NMFS published a 30-day Federal
Register notice (85 FR 60765; September
28, 2020) that provided for an additional
comment period. Details on the new
information collection requirements can
be found in the RIA Appendix C.2.
NMFS anticipates that 95 to 151
geophysical surveys will take place
annually on average over the five years
of the regulations in the GOM that
would be subject to potential
information collection requirements.
Due to this final rule, NMFS estimates
at least 95 new LOA applications
annually. Because the existing OMB
Control Number 0648–0151 expires less
than a year (June 30, 2021) after this
final rule publishes, there will be less

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than a year for respondents to carry out
work under these regulations before this
OMB Control Number expires. Thus,
NMFS estimates no more than onequarter of respondents (24) will
complete work to the point of
developing an annual report prior to
when 0648–0151 must be renewed.
We invite the general public and other
Federal agencies to comment on
proposed and continuing information
collections, which helps us assess the
impact of our information collection
requirements and minimize the public’s
reporting burden. Written comments
and recommendations for this
information collection should be
submitted at the following website:
www.reginfo.gov/public/do/PRAMain.
Find this particular information
collection by using the search function
and entering either the title of the
collection or the OMB Control Number
0648–0151.
Notwithstanding any other provision
of the law, no person is required to
respond to, nor shall any person be
subject to a penalty for failure to comply
with, a collection of information subject
to the requirements of the PRA, unless
that collection of information displays a
currently valid OMB Control Number.
List of Subjects in 50 CFR Part 217
Exports, Fish, Imports, Indians,
Labeling, Marine mammals, Penalties,
Reporting and recordkeeping
requirements, Seafood, Transportation.
Dated: December 7, 2020.
Samuel D. Rauch III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.

For reasons set forth in the preamble,
50 CFR part 217 is amended as follows:
PART 217—REGULATIONS
GOVERNING THE TAKING AND
IMPORTING OF MARINE MAMMALS
1. The authority citation for part 217
continues to read as follows:

■

Authority: 16 U.S.C. 1361 et seq.

2. Add Subpart S, consisting of
§§ 217.180 through 217.189, to read as
follows:

■

Subpart S—Taking Marine Mammals
Incidental to Geophysical Survey Activities
in the Gulf of Mexico
Sec.
217.180 Specified activity and specified
geographical region.
217.181 Effective dates.
217.182 Permissible methods of taking.
217.183 Prohibitions.
217.184 Mitigation requirements.
217.185 Requirements for monitoring and
reporting.

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217.186 Letters of Authorization.
217.187 Renewals and modifications of
Letters of Authorization.
217.188 [Reserved]
217.189 [Reserved]

Subpart S—Taking Marine Mammals
Incidental to Geophysical Survey
Activities in the Gulf of Mexico
§ 217.180 Specified activity and specified
geographical region.

(a) Regulations in this subpart apply
only to oil and gas industry operators
(LOA-holders), and those persons
authorized to conduct activities on their
behalf, for the taking of marine
mammals that occurs in the area
outlined in paragraph (b) of this section
and that occurs incidental to
geophysical survey activities.
(b) The taking of marine mammals by
oil and gas industry operators may be
authorized in a Letter of Authorization
(LOA) only if it occurs within U.S.
waters in the Gulf of Mexico, outside
the area subject to a Congressional
leasing moratorium under the Gulf of
Mexico Energy Security Act (GOMESA)
(Pub L. 109–432, § 104) as of the
effective date of these regulations.
§ 217.181

Effective dates.

Regulations in this subpart are
effective from April 19, 2021 through
April 19, 2026.
§ 217.182

Permissible methods of taking.

Under LOAs issued pursuant to
§§ 216.106 of this chapter and 217.186,
LOA-holders may incidentally, but not
intentionally, take marine mammals
within the area described in
§ 217.180(b) by Level A and Level B
harassment associated with geophysical
survey activities, provided the activity
is in compliance with all terms,
conditions, and requirements of the
regulations in this subpart and the
appropriate LOA.
§ 217.183

Prohibitions.

Notwithstanding takings
contemplated in §§ 217.180 and
217.182, and authorized by a LOA
issued under §§ 216.106 of this chapter
and 217.186, no person in connection
with the activities described in
§ 217.180 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 217.186;
(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

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taking results in more than a negligible
impact on the species or stocks of such
marine mammal.

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§ 217.184

Mitigation requirements.

When conducting the activities
identified in § 217.180, the mitigation
measures contained in any LOA issued
under §§ 216.106 of this chapter and
217.186 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 LOA-holder, vessel
operator, other relevant personnel, the
lead protected species observer (PSO),
and any other relevant designees
operating under the authority of the
LOA.
(2) The LOA-holder must instruct
relevant vessel personnel with regard to
the authority of the protected species
monitoring team (PSO team), and must
ensure that relevant vessel personnel
and PSO team participate in a joint
onboard briefing, led by the vessel
operator and lead PSO, prior to
beginning work to ensure that
responsibilities, communication
procedures, protected species
monitoring protocols, operational
procedures, and LOA requirements are
clearly understood. This briefing must
be repeated when relevant new
personnel join the survey operations
before work involving those personnel
commences.
(3) The acoustic source must be
deactivated when not acquiring data or
preparing to acquire data, except as
necessary for testing. Unnecessary use
of the acoustic source must be avoided.
For surveys using airgun arrays as the
acoustic source, notified operational
capacity (i.e., total array volume) (not
including redundant backup airguns)
must not be exceeded during the survey,
except where unavoidable for source
testing and calibration purposes. All
occasions where activated source
volume exceeds notified operational
capacity must be communicated to the
PSO(s) on duty and fully documented.
The lead PSO must be granted access to
relevant instrumentation documenting
acoustic source power and/or
operational volume.
(4) PSOs must be used as specified in
this paragraph (a)(4).
(i) LOA-holders must use
independent, dedicated, qualified PSOs,
meaning that the PSOs must be
employed by a third-party observer
provider, must have no tasks other than
to conduct observational effort, collect
data, and communicate with and
instruct relevant vessel crew with regard
to the presence of protected species and

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mitigation requirements (including brief
alerts regarding maritime hazards), and
must be qualified pursuant to
§ 217.185(a) (except as specified at
§ 217.184(d)(2)(iii–iv)). Acoustic PSOs
are required to complete specialized
training for operating passive acoustic
monitoring (PAM) systems and are
encouraged to have familiarity with the
vessel on which they will be working.
PSOs may act as both acoustic and
visual observers (but not
simultaneously), so long as they
demonstrate that their training and
experience are sufficient to perform
each task.
(ii) The LOA-holder must submit PSO
resumes for NMFS review and approval
prior to commencement of the survey
(except as specified at
§ 217.184(d)(2)(iii)). Resumes should
include dates of training and any prior
NMFS approval, as well as dates and
description of last experience, and must
be accompanied by information
documenting successful completion of
an acceptable training course. NMFS is
allowed one week to approve PSOs from
the time that the necessary information
is received by NMFS, after which PSOs
meeting the minimum requirements will
automatically be considered approved.
(iii) At least one visual PSO and two
acoustic PSOs (when required) aboard
each acoustic source vessel must have a
minimum of 90 days at-sea experience
working in those roles, respectively,
with no more than eighteen months
elapsed since the conclusion of the atsea experience (except as specified at
§ 217.184(d)(2)(iii)). One visual PSO
with such experience must be
designated as the lead for the entire PSO
team. The lead must coordinate duty
schedules and roles for the PSO team
and serve as the primary point of
contact for the vessel operator. (Note
that the responsibility of coordinating
duty schedules and roles may instead be
assigned to a shore-based, third-party
monitoring coordinator.) To the
maximum extent practicable, the lead
PSO must devise the duty schedule
such that experienced PSOs are on duty
with those PSOs with appropriate
training but who have not yet gained
relevant experience.
(b) Deep penetration surveys. (1) Deep
penetration surveys are defined as
surveys using airgun arrays with total
volume greater than 1,500 in3.
(2) Visual monitoring must be
conducted as specified in this paragraph
(b)(2).
(i) During survey operations (i.e., any
day on which use of the acoustic source
is planned to occur, and whenever the
acoustic source is in the water, whether
activated or not), a minimum of two

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PSOs must be on duty and conducting
visual observations at all times during
daylight hours (i.e., from 30 minutes
prior to sunrise through 30 minutes
following sunset).
(ii) Visual monitoring must begin not
less than 30 minutes prior to ramp-up
and must continue until one hour after
use of the acoustic source ceases or until
30 minutes past sunset.
(iii) Visual PSOs must coordinate to
ensure 360° visual coverage around the
vessel from the most appropriate
observation posts, and must conduct
visual observations using binoculars
and the naked eye while free from
distractions and in a consistent,
systematic, and diligent manner.
(iv) Visual PSOs must immediately
communicate all observations of marine
mammals to the on-duty acoustic PSO,
including any determination by the PSO
regarding species identification,
distance, and bearing and the degree of
confidence in the determination.
(v) Any observations of marine
mammals by crew members aboard any
vessel associated with the survey must
be relayed to the PSO team.
(vi) During good conditions (e.g.,
daylight hours; Beaufort sea state (BSS)
3 or less), visual PSOs must conduct
observations when the acoustic source
is not operating for comparison of
sighting rates and behavior with and
without use of the acoustic source and
between acquisition periods, to the
maximum extent practicable.
(vii) Visual PSOs may be on watch for
a maximum of two consecutive hours
followed by a break of at least one hour
between watches and may conduct a
maximum of 12 hours of observation per
24-hour period. NMFS may grant an
exception for LOA applications that
demonstrate such a ‘‘two hours on/one
hour off’’ duty cycle is not practicable,
in which case visual PSOs will be
subject to a maximum of four
consecutive hours on watch followed by
a break of at least two hours between
watches. Combined observational duties
(visual and acoustic but not at the same
time) must not exceed 12 hours per 24hour period for any individual PSO.
(3) Acoustic monitoring must be
conducted as specified in this paragraph
(b)(3).
(i) All source vessels must use a
towed PAM system at all times when
operating in waters deeper than 100 m,
which must be monitored by a
minimum of one acoustic PSO
beginning at least 30 minutes prior to
ramp-up, at all times during use of the
acoustic source, and until one hour after
use of the acoustic source ceases. ‘‘PAM
system’’ refers to calibrated hydrophone
arrays with full system redundancy to

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detect, identify, and estimate distance
and bearing to vocalizing cetaceans,
coupled with appropriate software to
aid monitoring and listening by a PAM
operator skilled in bioacoustics analysis
and computer system specifications
capable of running appropriate software.
The PAM system must have at least one
calibrated hydrophone (per each
deployed hydrophone type and/or set)
sufficient for determining whether
background noise levels on the towed
PAM system are sufficiently low to meet
performance expectations. Applicants
must provide a PAM plan including
description of the hardware and
software proposed for use prior to
proceeding with any survey where PAM
is required.
(ii) Acoustic PSOs must immediately
communicate all detections of marine
mammals to visual PSOs (when visual
PSOs are on duty), including any
determination by the PSO regarding
species identification, distance, and
bearing, and the degree of confidence in
the determination.
(iii) Acoustic PSOs may be on watch
for a maximum of four consecutive
hours followed by a break of at least two
hours between watches, and may
conduct a maximum of 12 hours of
observation per 24-hour period.
Combined observational duties (visual
and acoustic but not at the same time)
must not exceed 12 hours per 24-hour
period for any individual PSO.
(iv) Survey activity may continue for
30 minutes when the PAM system
malfunctions or is damaged, while the
PAM operator diagnoses the issue. If the
diagnosis indicates that the PAM system
must be repaired to solve the problem,
operations may continue for an
additional two hours without acoustic
monitoring during daylight hours only
under the following conditions:
(A) Sea state is less than or equal to
BSS 4;
(B) No marine mammals (excluding
delphinids) detected solely by PAM in
the applicable exclusion zone in the
previous two hours;
(C) NMFS is notified via email as soon
as practicable with the time and
location in which operations began
occurring without an active PAM
system; and
(D) Operations with an active acoustic
source, but without an operating PAM
system, do not exceed a cumulative total
of four hours in any 24-hour period.
(4) PSOs must establish and monitor
applicable exclusion and buffer zones.
These zones must be based upon the
radial distance from the edges of the
airgun array (rather than being based on
the center of the array or around the
vessel itself). During use of the acoustic

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source (i.e., anytime the acoustic source
is active, including ramp-up),
occurrence of marine mammals within
the relevant buffer zone (but outside the
exclusion zone) should be
communicated to the operator to
prepare for the potential shutdown of
the acoustic source.
(i) Two exclusion zones are defined,
depending on the species and context.
A standard exclusion zone
encompassing the area at and below the
sea surface out to a radius of 500 meters
from the edges of the airgun array (0–
500 m) is defined. For special
circumstances (defined at
§ 217.184(b)(9)(v)), the exclusion zone
encompasses an extended distance of
1,500 meters (0–1,500 m).
(ii) During pre-start clearance
monitoring (i.e., before ramp-up begins),
the buffer zone acts as an extension of
the exclusion zone in that observations
of marine mammals within the buffer
zone would also preclude airgun
operations from beginning (i.e., rampup). For all marine mammals (except
where superseded by the extended
1,500-m exclusion zone), the buffer zone
encompasses the area at and below the
sea surface from the edge of the 0–500
meter exclusion zone out to a radius of
1,000 meters from the edges of the
airgun array (500–1,000 m). The buffer
zone is not applicable when the
exclusion zone is greater than 500
meters, i.e., the observational focal zone
is not increased beyond 1,500 meters.
(5) A ramp-up procedure, involving a
step-wise increase in the number of
airguns firing and total active array
volume until all operational airguns are
activated and the full volume is
achieved, is required at all times as part
of the activation of the acoustic source.
A 30-minute pre-start clearance
observation period must occur prior to
the start of ramp-up. The LOA-holder
must adhere to the following pre-start
clearance and ramp-up requirements:
(i) The operator must notify a
designated PSO of the planned start of
ramp-up as agreed upon with the lead
PSO; the notification time should not be
less than 60 minutes prior to the
planned ramp-up.
(ii) Ramp-ups must be scheduled so as
to minimize the time spent with source
activated prior to reaching the
designated run-in.
(iii) A designated PSO must be
notified again immediately prior to
initiating ramp-up procedures and the
operator must receive confirmation from
the PSO to proceed.
(iv) Ramp-up must not be initiated if
any marine mammal is within the
applicable exclusion or buffer zone. If a
marine mammal is observed within the

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exclusion zone or the buffer zone during
the 30-minute pre-start clearance
period, ramp-up must not begin until
the animal(s) has been observed exiting
the zones or until an additional time
period has elapsed with no further
sightings (15 minutes for small
delphinids and 30 minutes for all other
species).
(v) Ramp-up must begin by activating
a single airgun of the smallest volume
in the array and shall continue in stages
by doubling the number of active
elements at the commencement of each
stage, with each stage of approximately
the same duration. Total duration must
not be less than 20 minutes. The
operator must provide information to
the PSO documenting that appropriate
procedures were followed.
(vi) Ramp-up must cease and the
source shut down upon observation of
marine mammals within the applicable
exclusion zone. Once ramp-up has
begun, observations of marine mammals
within the buffer zone do not require
shutdown.
(vii) Ramp-up may occur at times of
poor visibility, including nighttime, if
appropriate acoustic monitoring has
occurred with no detections of a marine
mammal other than delphinids in the 30
minutes prior to beginning ramp-up.
Acoustic source activation may only
occur at night where operational
planning cannot reasonably avoid such
circumstances.
(viii) If the acoustic source is shut
down for brief periods (i.e., less than 30
minutes) for reasons other than
implementation of prescribed mitigation
(e.g., mechanical difficulty), it may be
activated again without ramp-up if PSOs
have maintained constant visual and/or
acoustic observation and no visual or
acoustic detections of any marine
mammal have occurred within the
applicable exclusion zone. For any
longer shutdown, pre-start clearance
observation and ramp-up are required.
For any shutdown at night or in periods
of poor visibility (e.g., BSS 4 or greater),
ramp-up is required, but if the
shutdown period was brief and constant
observation maintained, pre-start
clearance watch is not required.
(ix) Testing of the acoustic source
involving all elements requires rampup. Testing limited to individual source
elements or strings does not require
ramp-up but does require the pre-start
clearance observation period.
(6) Shutdowns must be implemented
as specified in this paragraph (b)(6).
(i) Any PSO on duty has the authority
to delay the start of survey operations or
to call for shutdown of the acoustic
source pursuant to the requirements of
this subpart.

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(ii) The operator must establish and
maintain clear lines of communication
directly between PSOs on duty and
crew controlling the acoustic source to
ensure that shutdown commands are
conveyed swiftly while allowing PSOs
to maintain watch.
(iii) When both visual and acoustic
PSOs are on duty, all detections must be
immediately communicated to the
remainder of the on-duty PSO team for
potential verification of visual
observations by the acoustic PSO or of
acoustic detections by visual PSOs.
(iv) When the airgun array is active
(i.e., anytime one or more airguns is
active, including during ramp-up) and
(1) a marine mammal appears within or
enters the applicable exclusion zone
and/or (2) a marine mammal (excluding
delphinids) is detected acoustically and
localized within the applicable
exclusion zone, the acoustic source
must be shut down. When shutdown is
called for by a PSO, the acoustic source
must be immediately deactivated and
any dispute resolved only following
deactivation.
(v) The extended 1,500-m exclusion
zone must be applied upon detection
(visual or acoustic) of a baleen whale,
sperm whale, beaked whale, or Kogia
spp. within the zone.
(vi) Shutdown requirements are
waived for dolphins of the following
genera: Tursiops, Stenella, Steno, and
Lagenodelphis. If a delphinid is visually
detected within the exclusion zone, no
shutdown is required unless the PSO
confirms the individual to be of a genus
other than those listed above, in which
case a shutdown is required. Acoustic
detection of delphinids does not require
shutdown.
(vii) If there is uncertainty regarding
identification or localization, PSOs may
use best professional judgment in
making the decision to call for a
shutdown.
(viii) Upon implementation of
shutdown, the source may be
reactivated after the marine mammal(s)
has been observed exiting the applicable
exclusion zone or following a 30-minute
clearance period with no further
detection of the marine mammal(s).
(c) Shallow penetration surveys. (1)
Shallow penetration surveys are defined
as surveys using airgun arrays with total
volume equal to or less than 1,500 in3,
single airguns, boomers, or equivalent
sources.
(2) LOA-holders conducting shallow
penetration surveys must follow the
requirements defined for deep
penetration surveys at § 217.184(b), with
the following exceptions:

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(i) Acoustic monitoring is not
required for shallow penetration
surveys.
(ii) Ramp-up for small airgun arrays
must follow the procedure described
above for large airgun arrays, but may
occur over an abbreviated period of
time. Ramp-up is not required for
surveys using only a single airgun. For
non-airgun sources, power should be
increased as feasible to effect a ramp-up.
(iii) Two exclusion zones are defined,
depending on the species and context.
A standard exclusion zone
encompassing the area at and below the
sea surface out to a radius of 100 meters
from the edges of the airgun array (if
used) or from the acoustic source (0–100
m) is defined. For special circumstances
(§ 217.184(b)(6)(v)), the exclusion zone
encompasses an extended distance of
500 meters (0–500 m).
(iv) The buffer zone encompasses the
area at and below the sea surface from
the edge of the 0–100 meter exclusion
zone out to a radius of 200 meters from
the edges of the airgun array (if used) or
from the acoustic source (100–200
meters). The buffer zone is not
applicable when the exclusion zone is
greater than 100 meters.
(d) High-resolution geophysical (HRG)
surveys. (1) HRG surveys are defined as
surveys using an electromechanical
source that operates at frequencies less
than 180 kHz, other than those defined
at § 217.184(c)(1) (e.g., side-scan sonar,
multibeam echosounder, or chirp subbottom profiler).
(2) LOA-holders conducting HRG
surveys must follow the requirements
defined for shallow penetration surveys
at § 217.184(c), with the following
exceptions:
(i) No shutdowns are required for
HRG surveys. Pre-start clearance watch
is required as defined at § 217.184(c),
i.e., for a period of 30 minutes and over
a 200-m radius from the acoustic source.
(ii) During survey operations (e.g., any
day on which use of the acoustic source
is planned to occur, and whenever the
acoustic source is in the water, whether
activated or not), a minimum of one
trained and experienced independent
PSO must be on duty and conducting
visual observations at all times during
daylight hours (i.e., from 30 minutes
prior to sunrise through 30 minutes
following sunset) when operating in
waters deeper than 100 m.
(iii) When operating in waters
shallower than 100 m, LOA-holders
must employ one trained visual PSO,
who may be a crew member, only for
purposes of conducting pre-start
clearance monitoring. If PSOs are crew
members, i.e., are not independent
PSOs, the PSOs are not subject to

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NMFS’ approval. In these
circumstances, LOA requests must
describe the training that will be
provided to crew members filling the
role of PSO.
(iv) PSOs are not required during
survey operations in which the active
acoustic source(s) are deployed on an
autonomous underwater vehicle.
(e) Time-area closure. From January 1
through May 31, no use of airguns may
occur shoreward of the 20-m isobath
and between 90–84° W.
(f) Entanglement avoidance. To avoid
the risk of entanglement, LOA-holders
conducting surveys using ocean-bottom
nodes or similar gear must:
(1) Use negatively buoyant coated
wire-core tether cable;
(2) Retrieve all lines immediately
following completion of the survey; and
(3) Attach acoustic pingers directly to
the coated tether cable; acoustic releases
should not be used.
(g) Vessel strike avoidance. LOAholders must adhere to the following
requirements:
(1) Vessel operators and crews must
maintain a vigilant watch for all marine
mammals and must slow down, stop
their vessel, or alter course, as
appropriate and regardless of vessel
size, to avoid striking any marine
mammal. A visual observer aboard the
vessel must monitor a vessel strike
avoidance zone around the vessel,
which shall be defined according to the
parameters stated in this subsection.
Visual observers monitoring the vessel
strike avoidance zone may be thirdparty observers (i.e., PSOs) or crew
members, but crew members
responsible for these duties must be
provided sufficient training to
distinguish marine mammals from other
phenomena and broadly to identify a
marine mammal as a baleen whale,
sperm whale, or other marine mammal;
(2) Vessel speeds must be reduced to
10 kn or less when mother/calf pairs,
pods, or large assemblages of marine
mammals are observed near a vessel;
(3) All vessels must maintain a
minimum separation distance of 500 m
from baleen whales;
(4) All vessels must maintain a
minimum separation distance of 100 m
from sperm whales;
(5) All vessels must, to the maximum
extent practicable, attempt to maintain a
minimum separation distance of 50 m
from all other marine mammals, with an
exception made for those animals that
approach the vessel; and
(6) When marine mammals are
sighted while a vessel is underway, the
vessel must take action as necessary to
avoid violating the relevant separation
distance, e.g., attempt to remain parallel

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to the animal’s course, avoid excessive
speed or abrupt changes in direction
until the animal has left the area. If
marine mammals are sighted within the
relevant separation distance, the vessel
must reduce speed and shift the engine
to neutral, not engaging the engines
until animals are clear of the area. This
does not apply to any vessel towing gear
or any vessel that is navigationally
constrained.
(7) These requirements do not apply
in any case where compliance would
create an imminent and serious threat to
a person or vessel or to the extent that
a vessel is restricted in its ability to
maneuver and, because of the
restriction, cannot comply.

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§ 217.185 Requirements for monitoring
and reporting.

(a) PSO qualifications. (1) PSOs must
successfully complete relevant,
acceptable training, including
completion of all required coursework
and passing (80 percent or greater) a
written and/or oral examination
developed for the training program.
(2) PSOs must have successfully
attained a bachelor’s degree from an
accredited college or university with a
major in one of the natural sciences, a
minimum of 30 semester hours or
equivalent in the biological sciences,
and at least one undergraduate course in
math or statistics. The educational
requirements may be waived if the PSO
has acquired the relevant skills through
alternate experience. Requests for such
a waiver must be submitted to NMFS
and shall include written justification.
Requests will be granted or denied (with
justification) by NMFS within one week
of receipt of submitted information.
Alternate experience that may be
considered includes, but is not limited
to:
(i) Secondary education and/or
experience comparable to PSO duties;
(ii) Previous work experience
conducting academic, commercial, or
government-sponsored marine mammal
surveys; or
(iii) Previous work experience as a
PSO; the PSO should demonstrate good
standing and consistently good
performance of PSO duties.
(b) Equipment. LOA-holders are
required to:
(i) Provide PSOs with bigeye
binoculars (e.g., 25 x 150; 2.7 view
angle; individual ocular focus; height
control) of appropriate quality solely for
PSO use. These must be pedestalmounted on the deck at the most
appropriate vantage point that provides
for optimal sea surface observation, PSO
safety, and safe operation of the vessel.

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(ii) For each vessel required to use a
PAM system, provide a PAM system
that has been verified and tested by an
experienced acoustic PSO who will be
using it during the trip for which
monitoring is required;
(iii) Work with the selected thirdparty observer provider to ensure PSOs
have all equipment (including backup
equipment) needed to adequately
perform necessary tasks, including
accurate determination of distance and
bearing to observed marine mammals.
(Equipment specified in A. through G.
below may be provided by an individual
PSO, the third-party observer provider,
or the LOA-holder, but the LOA-holder
is responsible for ensuring PSOs have
the proper equipment required to
perform the duties specified herein.)
Such equipment, at a minimum, must
include:
(A) Reticle binoculars (e.g., 7 x 50) of
appropriate quality (at least one per
PSO, plus backups);
(B) Global Positioning Unit (GPS)
(plus backup);
(C) Digital camera with a telephoto
lens (the camera or lens should also
have an image stabilization system) that
is at least 300 mm or equivalent on a
full-frame single lens reflex (SLR) (plus
backup);
(D) Compass (plus backup);
(E) Radios for communication among
vessel crew and PSOs (at least one per
PSO, plus backups); and
(F) Any other tools necessary to
adequately perform necessary PSO
tasks.
(c) Data collection. PSOs must use
standardized electronic data forms.
PSOs must record detailed information
about any implementation of mitigation
requirements, including the distance of
marine mammals to the acoustic source
and description of specific actions that
ensued, the behavior of the animal(s),
any observed changes in behavior before
and after implementation of mitigation,
and if shutdown was implemented, the
length of time before any subsequent
ramp-up or activation of the acoustic
source. If required mitigation was not
implemented, PSOs must record a
description of the circumstances. At a
minimum, the following information
should be recorded:
(1) Vessel names (source vessel and
other vessels associated with survey),
vessel size and type, maximum speed
capability of vessel, port of origin, and
call signs;
(2) PSO names and affiliations;
(3) Dates of departures and returns to
port with port name;
(4) Dates of and participants in PSO
briefings;

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(5) Dates and times (Greenwich Mean
Time) of survey effort and times
corresponding with PSO effort;
(6) Vessel location (latitude/
longitude) when survey effort began and
ended and vessel location at beginning
and end of visual PSO duty shifts;
(7) Vessel location at 30-second
intervals (if software capability allows)
or 5-minute intervals (if location must
be manually recorded);
(8) Vessel heading and speed at
beginning and end of visual PSO duty
shifts and upon any line change;
(9) Environmental conditions while
on visual survey (at beginning and end
of PSO shift and whenever conditions
changed significantly), including
Beaufort sea state and any other relevant
weather conditions including cloud
cover, fog, sun glare, and overall
visibility to the horizon;
(10) Vessel location when
environmental conditions change
significantly;
(11) Factors that may have
contributed to impaired observations
during each PSO shift change or as
needed as environmental conditions
change (e.g., vessel traffic, equipment
malfunctions);
(12) Survey activity information, such
as acoustic source power output while
in operation, number and volume of
airguns operating in an array, tow depth
of an acoustic source, and any other
notes of significance (i.e., pre-start
clearance, ramp-up, shutdown, testing,
shooting, ramp-up completion, end of
operations, streamers, etc.); and
(13) Upon visual observation of a
marine mammal, the following
information:
(i) Watch status (sighting made by
PSO on/off effort, opportunistic, crew,
alternate vessel/platform);
(ii) PSO who sighted the animal and
PSO location (including height above
water) at time of sighting;
(iii) Time of sighting;
(iv) Vessel coordinates at time of
sighting;
(v) Water depth;
(vi) Direction of vessel’s travel
(compass direction);
(vii) Speed of the vessel(s) from which
the observation was made;
(viii) Direction of animal’s travel
relative to the vessel;
(ix) Pace of the animal;
(x) Estimated distance to the animal
(and method of estimating distance) and
its heading relative to vessel at initial
sighting;
(xi) 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;

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(xii) Estimated number of animals
(high/low/best);
(xiii) Estimated number of animals by
cohort (adults, juveniles, group
composition, etc.);
(xiv) Description (as many
distinguishing features as possible of
each individual seen, including length,
shape, color, pattern, scars or markings,
shape and size of dorsal fin, shape of
head, and blow characteristics);
(xv) Detailed behavior observations
(e.g., number of blows/breaths, number
of surfaces, breaching, spyhopping,
diving, feeding, traveling; as explicit
and detailed as possible; note any
observed changes in behavior),
including an assessment of behavioral
responses to survey activity;
(xvi) Animal’s closest point of
approach (CPA) and/or closest distance
from any element of the acoustic source;
(xvii) Platform activity at time of
sighting (e.g., deploying, recovering,
testing, shooting, data acquisition,
other); and
(xviii) Description of any actions
implemented in response to the sighting
(e.g., delays, shutdown, ramp-up) and
time and location of the action.
(12) Upon acoustic detection of a
marine mammal using a PAM system,
the following information:
(i) An acoustic encounter
identification number, and whether the
detection was linked with a visual
sighting;
(ii) Date and time when first and last
heard;
(iii) Types and nature of sounds heard
(e.g., clicks, whistles, creaks, burst
pulses, continuous, sporadic, strength of
signal); and
(iv) Any additional information
recorded such as water depth of the
hydrophone array, bearing of the animal
to the vessel (if determinable), species
or taxonomic group (if determinable),
spectrogram screenshot, and any other
notable information.
(d) Reporting. (1) Annual reporting
must be submitted as specified in this
paragraph.
(i) LOA-holders must submit a
summary report to NMFS on all
activities and monitoring results within
90 days of the completion of the survey
or expiration of the LOA, whichever
comes sooner, and must include all
information described above under
§ 217.185(c). If an issued LOA is valid
for greater than one year, the summary
report must be submitted on an annual
basis.
(ii) The report must describe activities
conducted and sightings of marine
mammals, must provide full
documentation of methods, results, and
interpretation pertaining to all

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monitoring, and must summarize the
dates and locations of survey operations
and all marine mammal sightings (dates,
times, locations, activities, associated
survey activities, and information
regarding locations where the acoustic
source was used). In addition to the
report, all raw observational data must
be made available to NMFS.
(iii) For operations requiring the use
of PAM, the report must include a
validation document concerning the use
of PAM, which should include
necessary noise validation diagrams and
demonstrate whether background noise
levels on the PAM deployment limited
achievement of the planned detection
goals. Copies of any vessel self-noise
assessment reports must be included
with the report.
(iv) The LOA-holder must provide
geo-referenced time-stamped vessel
tracklines for all time periods in which
airguns (full array or single) were
operating. Tracklines must include
points recording any change in airgun
status (e.g., when the airguns began
operating, when they were turned off).
GIS files must be provided in ESRI
shapefile format and include the UTC
date and time, latitude in decimal
degrees, and longitude in decimal
degrees. All coordinates must be
referenced to the WGS84 geographic
coordinate system.
(v) The draft report must be
accompanied by a certification from the
lead PSO as to the accuracy of the
report, and the lead PSO may submit
directly to NMFS a statement
concerning implementation and
effectiveness of the required mitigation
and monitoring.
(vi) A final report must be submitted
within 30 days following resolution of
any comments on the draft report.
(2) Comprehensive reporting must be
submitted as specified in this paragraph.
LOA-holders must contribute to the
compilation and analysis of data for
inclusion in an annual synthesis report
addressing all data collected and
reported through annual reporting in
each calendar year. The synthesis
period shall include all annual reports
deemed to be final by NMFS in a given
one-year reporting period. The report
must be submitted to NMFS within 90
days following the end of a given oneyear reporting period.
(e) Reporting of injured or dead
marine mammals. (1) In the event that
personnel involved in the survey
activities discover an injured or dead
marine mammal, the LOA-holder must
report the incident to the Office of
Protected Resources (OPR), NMFS and
to the Southeast Regional Stranding

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Network as soon as feasible. 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) In the event of a ship strike of a
marine mammal by any vessel involved
in the survey activities, the LOA-holder
must report the incident to OPR, NMFS
and to the Southeast Regional Stranding
Network as soon as feasible. The report
must include the following information:
(i) Time, date, and location (latitude/
longitude) of the incident;
(ii) Species identification (if known)
or description of the animal(s) involved;
(iii) Vessel’s speed during and leading
up to the incident;
(iv) Vessel’s course/heading and what
operations were being conducted (if
applicable);
(v) Status of all sound sources in use;
(vi) Description of avoidance
measures/requirements that were in
place at the time of the strike and what
additional measures were taken, if any,
to avoid strike;
(vii) Environmental conditions (e.g.,
wind speed and direction, Beaufort sea
state, cloud cover, visibility)
immediately preceding the strike;
(viii) Estimated size and length of
animal that was struck;
(ix) Description of the behavior of the
marine mammal immediately preceding
and following the strike;
(x) If available, description of the
presence and behavior of any other
marine mammals immediately
preceding the strike;
(xi) Estimated fate of the animal (e.g.,
dead, injured but alive, injured and
moving, blood or tissue observed in the
water, status unknown, disappeared);
and
(xii) To the extent practicable,
photographs or video footage of the
animal(s).
(3) For deep penetration surveys, in
the event of a live stranding (or nearshore atypical milling) event within 50
km of the survey operations, where the
NMFS stranding network is engaged in
herding or other interventions to return
animals to the water, the Director of
OPR, NMFS (or designee) will advise
the LOA-holder of the need to

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implement shutdown procedures for all
active acoustic sources operating within
50 km of the stranding. Shutdown
procedures for live stranding or milling
marine mammals include the following:
(i) If at any time, the marine
mammal(s) die or are euthanized, or if
herding/intervention efforts are stopped,
the Director of OPR, NMFS (or designee)
will advise the LOA-holder that the
shutdown around the animals’ location
is no longer needed.
(ii) Otherwise, shutdown procedures
will remain in effect until the Director
of OPR, NMFS (or designee) determines
and advises the LOA-holder that all live
animals involved have left the area
(either of their own volition or following
an intervention).
(iii) If further observations of the
marine mammals indicate the potential
for re-stranding, additional coordination
with the LOA-holder will be required to
determine what measures are necessary
to minimize that likelihood (e.g.,
extending the shutdown or moving
operations farther away) and to
implement those measures as
appropriate.
(4) If NMFS determines that the
circumstances of any marine mammal
stranding found in the vicinity of the
activity suggest investigation of the
association with survey activities is
warranted, and an investigation into the
stranding is being pursued, NMFS will
submit a written request to the LOAholder indicating that the following
initial available information must be
provided as soon as possible, but no
later than 7 business days after the
request for information. In the event that
the investigation is still inconclusive,
the investigation of the association of
the survey activities is still warranted,
and the investigation is still being
pursued, NMFS may provide additional
information requests, in writing,
regarding the nature and location of
survey operations prior to the time
period above.
(i) Status of all sound source use in
the 48 hours preceding the estimated
time of stranding and within 50 km of
the discovery/notification of the
stranding by NMFS; and
(ii) If available, description of the
behavior of any marine mammal(s)
observed preceding (i.e., within 48
hours and 50 km) and immediately after
the discovery of the stranding.
§ 217.186

Letters of Authorization.

(a) To incidentally take marine
mammals pursuant to these regulations,
prospective LOA-holders must apply for
and obtain an LOA.

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(b) An LOA, unless suspended or
revoked, may be effective for a period
not to exceed the expiration date of
these regulations.
(c) In the event of projected changes
to the activity or to mitigation and
monitoring measures required by an
LOA, the LOA-holder must apply for
and obtain a modification of the LOA as
described in § 217.187.
(d) 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 or stock and
its habitat; and
(3) Requirements for monitoring and
reporting.
(e) 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 and a
determination that the amount of take
authorized under the LOA is of no more
than small numbers.
(f) For LOA issuance, where either (1)
the conclusions put forth in an
application (e.g., take estimates) are
based on analytical methods that differ
substantively from those used in the
development of the rule, or (2) the
proposed activity or anticipated impacts
vary substantively in scope or nature
from those analyzed for the rule, NMFS
may publish a notice of proposed LOA
in the Federal Register, including the
associated analysis of the differences,
and solicit public comment before
making a decision regarding issuance of
the LOA.
(g) Notice of issuance or denial of an
LOA shall be published in the Federal
Register within thirty days of a
determination.
§ 217.187 Renewals and modifications of
Letters of Authorization (LOA).

(a) An LOA issued under § 216.106 of
this chapter and § 217.186 for the
activity identified in § 217.180 shall be
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.

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(b) For LOA modification 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 result in 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 § 217.186 for the
activity identified in § 217.180 may be
modified by NMFS under the following
circumstances:
(1) NMFS may modify (including
adding or removing measures) the
existing mitigation, monitoring, or
reporting measures (after consulting
with the LOA-holder regarding the
practicability of the modifications) if
doing so is practicable and 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 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.
(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
an LOA issued pursuant to § 216.106 of
this chapter and § 217.186, 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.
§§ 217.188–217.189

[Reserved]

[FR Doc. 2020–27252 Filed 1–15–21; 8:45 am]
BILLING CODE 3510–22–P

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