213 Subpart I—Taking and Importing Marine Mammals

Home , False killer whale, Right whale dolphin, Sei whale, Striped dolphin

National Marine Fisheries Service/NOAA, Commerce Pt. 218

regulations or that result in no more PART 218—REGULATIONS GOV- than a minor change in the total esti- ERNING THE TAKING AND IM- mated number of takes (or distribution PORTING OF MARINE MAM- by species or years), NMFS may publish a notice of proposed LOA in the MALS FEDERAL REGISTER, including the associated analysis of the change, and so- Subparts A–B [Reserved] licit public comment before issuing the Subpart C—Taking Marine Mammals Inci- LOA. dental to U.S. Navy Marine Structure (c) A LOA issued under § 216.106 of Maintenance and Pile Replacement in this chapter and § 217.256 for the activ- Washington ity identified in § 217.250 may be modified by NMFS under the following cir- 218.20 Specified activity and specified geo- cumstances: graphical region. (1) Adaptive Management—NMFS 218.21 Effective dates. may modify (including augment) the 218.22 Permissible methods of taking. existing mitigation, monitoring, or re- 218.23 Prohibitions. porting measures (after consulting 218.24 Mitigation requirements. with Navy regarding the practicability 218.25 Requirements for monitoring and reporting. of the modifications) if doing so cre- 218.26 Letters of Authorization. ates a reasonable likelihood of more ef- 218.27 Renewals and modifications of Let- fectively accomplishing the goals of ters of Authorization. the mitigation and monitoring set 218.28–218.29 [Reserved] forth in the preamble for these regulations. Subpart D—Taking Marine Mammals Inci- (i) Possible sources of data that could dental to U.S. Navy Construction Ac- contribute to the decision to modify tivities at Naval Weapons Station Seal the mitigation, monitoring, or report- Beach, California ing measures in a LOA: (A) Results from Navy’s monitoring 218.30 Specified activity and specified geographical region. from previous years. 218.31 Effective dates. (B) Results from other marine mam- 218.32 Permissible methods of taking. mal and/or sound research or studies. 218.33 Prohibitions. (C) Any information that reveals ma- 218.34 Mitigation requirements. rine mammals may have been taken in 218.35 Requirements for monitoring and re- a manner, extent or number not au- porting. thorized by these regulations or subse- 218.36 Letters of Authorization. quent LOAs. 218.37 Renewals and modifications of Let- (ii) If, through adaptive management, ters of Authorization. the modifications to the mitigation, 218.38–218.39 [Reserved] monitoring, or reporting measures are Subpart E [Reserved] substantial, NMFS will publish a notice of proposed LOA in the FEDERAL Subpart F—Taking of Marine Mammals In- REGISTER and solicit public comment. cidental to the U.S. Air Force 86 Fighter (2) Emergencies—If NMFS deter- Weapons Squadron Conducting Long mines that an emergency exists that Range Strike Weapons System Evalua- poses a significant risk to the well- tion Program at the Pacific Missile being of the species or stocks of marine Range Facility at Kauai, Hawaii mammals specified in a LOA issued pursuant to § 216.106 of this chapter and 218.50 Specified activity and specified geo- § 217.256, a LOA may be modified with- graphical region. out prior notice or opportunity for pub- 218.51 Effective dates. lic comment. Notice would be pub- 218.52 Permissible methods of taking. 218.53 Prohibitions. lished in the FEDERAL REGISTER within 218.54 Mitigation requirements. thirty days of the action. 218.55 Requirements for monitoring and reporting. §§ 217.258–217.259 [Reserved] 218.56 Letters of Authorization. 218.57 Renewals and Modifications of Let- Subpart AA–XXX [Reserved] ters of Authorization. 173

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218.58–218.59 [Reserved] 218.97 Renewals and modifications of Let- ters of Authorization. Subpart G—Taking of Marine Mammals In- cidental to Testing and Training Activi- Subparts K–N [Reserved] ties Conducted at the Eglin Gulf Test and Training Range in the Gulf of Mex- Subpart O—Taking and Importing Marine ico Mammals; U.S. Navy’s Northwest Train- ing and Testing (NWTT) Study Area 218.60 Specified activity and specified geographical region. 218.140 Specified activity and specified geo- 218.61 Effective dates. graphical region. 218.62 Permissible methods of taking. 218.141 Applicability dates. 218.63 Prohibitions. 218.142 Permissible methods of taking. 218.64 Mitigation requirements. 218.143 Prohibitions. 218.65 Requirements for monitoring and re- 218.144 Mitigation. porting. 218.145 Requirements for monitoring and re- 218.66 Letters of Authorization. porting. 218.67 Renewals and modifications of Let- 218.146 Applications for Letters of Author- ters of Authorization. ization 218.68–218.69 [Reserved] 218.147 Letters of Authorization. 218.148 Renewal and Modifications of Let- Subpart H—Taking and Importing Marine ters of Authorization and Adaptive Man- Mammals; U.S. Navy’s Hawaii-Southern agement. California Training and Testing (HSTT) Subpart P—Taking and Importing Marine 218.70 Specified activity and geographical Mammals; U.S. Navy’s Gulf of Alaska region. 218.71 Effective dates. Temporary Maritime Activities Area 218.72 Permissible methods of taking. (GOA TMAA) Study Area 218.73 Prohibitions. 218.74 Mitigation requirements. 218.150 Specified activity and specified geo- 218.75 Requirements for monitoring and re- graphical region. porting. 218.151 Effective dates and definitions. 218.76 Letters of Authorization. 218.152 Permissible methods of taking. 218.77 Renewals and modifications of Let- 218.153 Prohibitions. ters of Authorization. 218.154 Mitigation. 218.78–218.79 [Reserved] 218.155 Requirements for monitoring and reporting. Subpart I—Taking and Importing Marine 218.156 Applications for letters of authoriza- Mammals; U.S. Navy’s Atlantic Fleet tion (LOA). Training and Testing (AFTT) 218.157 Letters of authorization (LOA). 218.158 Renewal and modifications of letters 218.80 Specified activity and specified geo- of authorization (LOA) and adaptive graphical region. management. 218.81 Effective dates. 218.82 Permissible methods of taking. Subparts Q–W [Reserved 218.83 Prohibitions. 218.84 Mitigation requirements. Subpart X—Taking and Importing of Ma- 218.85 Requirements for monitoring and re- rine Mammals; U.S. Navy Surveillance porting. Towed Array Sensor System Low Fre- 218.86 Letters of Authorization. quency Active (SURTASS LFA) Sonar 218.87 Renewals and modifications of Let- ters of Authorization. Training and Testing in the Central and 218.88–218.89 [Reserved] Western North Pacific and Eastern In- dian Oceans Subpart J—Taking and Importing Marine Mammals; U.S. Navy’s Mariana Islands 218.230 Specified activity, level of taking, and species/stocks. Training and Testing (MITT) 218.231 Effective dates. 218.90 Specified activity and geographical 218.232 Permissible methods of taking. region. 218.233 Prohibitions. 218.91 Effective dates. 218.234 Mitigation. 218.92 Permissible methods of taking. 218.235 Requirements for monitoring. 218.93 Prohibitions. 218.236 Requirements for reporting. 218.94 Mitigation requirements. 218.237 Letter of Authorization. 218.95 Requirements for monitoring and re- 218.238 Renewals and modifications of a Let- porting. ter of Authorization. 218.96 Letters of Authorization. 174

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AUTHORITY: 16 U.S.C. 1361 et seq., unless within the area described in § 218.20(b) otherwise noted. by Level A or Level B harassment asso- SOURCE: 74 FR 28343, June 15, 2009, unless ciated with maintenance construction otherwise noted. activities, provided the activity is in EFFECTIVE DATE NOTE: At 83 FR 5568, Feb. compliance with all terms, conditions, 8, 2018, the authority citation for part 218 and requirements of the regulations in was revised, effective Feb. 13, 2018, through this subpart and the appropriate LOA. Feb. 12, 2023. § 218.23 Prohibitions. Subparts A–B [Reserved] Notwithstanding takings contemplated in § 218.22 and authorized by Subpart C—Taking Marine Mam- a LOA issued under §§ 216.106 of this mals Incidental to U.S. Navy chapter and 218.26, no person in connection with the activities described in Marine Structure Maintenance § 218.20 may: and Pile Replacement in (a) Violate, or fail to comply with, Washington the terms, conditions, and requirements of this subpart or a LOA issued SOURCE: 84 FR 15983, Apr. 17, 2019, unless under §§ 216.106 of this chapter and otherwise noted. 218.26; EFFECTIVE DATE NOTE: At 84 FR 15983, Apr. (b) Take any marine mammal not 17, 2019, subpart C was added, effective May specified in such LOAs; 17, 2019, through May 17, 2024. (c) Take any marine mammal specified in such LOAs in any manner other § 218.20 Specified activity and speci- than as specified; fied geographical region. (d) Take a marine mammal specified (a) Regulations in this subpart apply in such LOAs if NMFS determines such only to the U.S. Navy (Navy) and those taking results in more than a neg- persons it authorizes or funds to con- ligible impact on the species or stocks duct activities on its behalf for the of such marine mammal; or taking of marine mammals that occurs (e) Take a marine mammal specified in the areas outlined in paragraph (b) in such LOAs if NMFS determines such of this section and that occurs inci- taking results in an unmitigable ad- dental to maintenance construction ac- verse impact on the species or stock of tivities, as defined in a Letter of Au- such marine mammal for taking for thorization (LOA). subsistence uses. (b) The taking of marine mammals by the Navy may be authorized in a § 218.24 Mitigation requirements. LOA only if it occurs within Wash- When conducting the activities iden- ington inland waters in the vicinity of tified in § 218.20(a), the mitigation one of the following six naval installa- measures contained in any LOA issued tions: Naval Base Kitsap Bangor, under §§ 216.106 of this chapter and Zelatched Point, Naval Base Kitsap 218.26 must be implemented. These Bremerton, Naval Base Kitsap Keyport, mitigation measures shall include but Naval Base Kitsap Manchester, and are not limited to: Naval Station Everett. (a) General conditions. (1) A copy of any issued LOA must be in the posses- § 218.21 Effective dates. sion of the Navy, its designees, and Regulations in this subpart are effec- work crew personnel operating under tive from May 17, 2019 through May 17, the authority of the issued LOA; and 2024. (2) The Navy shall conduct briefings for construction supervisors and crews, § 218.22 Permissible methods of tak- the monitoring team, and Navy staff ing. prior to the start of all pile driving ac- Under LOAs issued pursuant to tivity, and when new personnel join the §§ 216.106 of this chapter and 218.26, the work, in order to explain responsibil- Holder of the LOA (hereinafter ities, communication procedures, the ‘‘Navy’’) may incidentally, but not in- marine mammal monitoring protocol, tentionally, take marine mammals and operational procedures.

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(b) Shutdown zones. (1) For all pile commence only if observers have de- driving activity, the Navy shall imple- clared the shutdown zone clear of ma- ment a minimum shutdown zone of a 10 rine mammals during this period. In m radius around the pile. If a marine the event of a delay or shutdown of ac- mammal comes within or approaches tivity resulting from marine mammals the shutdown zone, such operations in the shutdown zone, the marine shall cease; mammals shall be allowed to remain in (2) For all pile driving activity, the the shutdown zone (i.e., must leave of Navy shall implement shutdown zones their own volition) and their behavior with radial distances as identified in shall be monitored and documented. any LOA issued under §§ 216.106 of this Monitoring shall occur throughout the chapter and 218.26. If a marine mammal time required to drive a pile. A deter- comes within or approaches the shut- mination that the shutdown zone is down zone, such operations shall cease; clear cannot be made unless the ob- (3) For all pile driving activity, the server(s) have good visibility of the Navy shall designate monitoring zones shutdown zone during the entire fif- with radial distances as identified in teen-minute observation period (i.e., any LOA issued under §§ 216.106 of this the entire shutdown zone must be visi- chapter and 218.26. Anticipated observ- ble to the naked eye and unobscured by able zones within the designated moni- dark, rain, fog, poor lighting condi- toring zones shall be identified in an- tions, etc.). nual Marine Mammal Monitoring (5) If a marine mammal approaches Plans, subject to approval by NMFS. If or enters the shutdown zone, the Navy any cetacean is observed outside the shall halt all pile driving activities at shutdown zone identified pursuant to that location. If pile driving is halted paragraphs (b)(1) and (2) of this section, or delayed due to the presence of a ma- but within the designated monitoring rine mammal, the activity may not zone, such operations shall cease. commence or resume until either the (c) Shutdown protocols. (1) The Navy animal has voluntarily left and been shall deploy marine mammal observers visually confirmed beyond the shut- as indicated in annual Marine Mammal down zone or fifteen minutes have Monitoring Plans, which shall be sub- passed without re-detection of the ani- ject to approval by NMFS, and as de- mal. scribed in § 218.25. (6) If a species for which authoriza- (2) For all pile driving activities, a tion has not been granted, or a species minimum of one observer shall be sta- for which authorization has been tioned at the active pile driving rig or granted but the authorized takes are in reasonable proximity in order to met, is observed approaching or within monitor the shutdown zone. the monitoring zone, the Navy must (3) Prior to the start of pile driving halt pile driving activities imme- on any day, the Navy shall take meas- diately using delay and shutdown pro- ures to ensure that southern resident cedures. Activities must not resume killer whales are not located within until the animal has been confirmed to the vicinity of the project area, includ- have left the area or the fifteen-minute ing, but not limited to, contacting and/ observation period has elapsed. or reviewing the latest sightings data (7) Monitoring shall be conducted by from the Orca Network and/or Center trained observers, who shall have no for Whale Research, including passive other assigned tasks during monitoring acoustic detections, to determine the periods. Trained observers shall be location of the nearest marine mam- placed at the best vantage point(s) mal sightings. practicable to monitor for marine (4) Monitoring shall take place from mammals and implement shutdown or fifteen minutes prior to initiation of delay procedures when applicable pile driving activity through thirty through communication with the minutes post-completion of pile driving equipment operator. The Navy shall activity. Pre-activity monitoring shall adhere to the following additional ob- be conducted for fifteen minutes to en- server qualifications: sure that the shutdown zone is clear of (i) Independent observers (i.e., not marine mammals, and pile driving may construction personnel) are required.

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(ii) At least one observer must have proval by the Navy within 72 hours fol- prior experience working as an ob- lowing the performance test. Correc- server. tions to the attenuation device to meet (iii) Other observers may substitute the performance standards shall occur education (degree in biological science prior to impact driving. or related field) or training for experience. § 218.25 Requirements for monitoring (iv) Where a team of three or more and reporting. observers are required, one observer (a) Not later than March 1 of each shall be designated as lead observer or year, the Navy shall develop and sub- monitoring coordinator. The lead ob- mit for NMFS’s approval an installa- server must have prior experience tion-specific Marine Mammal Moni- working as an observer. toring Plan for each year’s anticipated (d) Soft start. The Navy shall use soft work. Final monitoring plans shall be start techniques for impact pile driv- prepared and submitted to NMFS with- ing. Soft start for impact drivers re- in 30 days following receipt of com- quires contractors to provide an initial ments on the draft plans from NMFS. set of three strikes at reduced energy, (b) During each in-water work period, followed by a thirty-second waiting pe- the Navy shall update NMFS every two riod, then two subsequent reduced en- months on the progress of ongoing ergy three-strike sets. Soft start shall projects. be implemented at the start of each (c) Trained observers shall receive a day’s impact pile driving and at any general environmental awareness brief- time following cessation of impact pile ing conducted by Navy staff. At a min- driving for a period of thirty minutes imum, training shall include identi- or longer. fication of the marine mammals that (e) Sound attenuation. The Navy shall may occur in the project vicinity and employ a bubble curtain (or other relevant mitigation and monitoring re- sound attenuation device with proven quirements. All observers shall have no typical performance of at least 8 deci- other construction-related tasks while bels effective attenuation) during im- conducting monitoring. pact pile driving of steel piles greater (d) For shutdown zone monitoring, than 14 inches diameter in water the Navy shall report on implementa- depths greater than 2 feet, except at tion of shutdown or delay procedures, Naval Base Kitsap Bremerton and including whether the procedures were Naval Base Kitsap Keyport. The Navy not implemented and why (when rel- shall assess the potential for the use of evant). bubble curtains at Keyport on a (e) The Navy shall deploy additional project-by-project basis. In addition, observers to monitor disturbance zones the Navy shall implement the fol- according to the minimum require- lowing performance standards: ments defined in annual Marine Mam- (1) The bubble curtain must dis- mal Monitoring Plans, subject to ap- tribute air bubbles around 100 percent proval by NMFS. These observers shall of the piling perimeter for the full collect sighting data and behavioral re- depth of the water column. sponses to pile driving for marine (2) The lowest bubble ring shall be in mammal species observed in the region contact with the mudline for the full of activity during the period of activ- circumference of the ring, and the ity, and shall communicate with the weights attached to the bottom ring shutdown zone observer as appropriate shall ensure 100 percent mudline con- with regard to the presence of marine tact. No parts of the ring or other ob- mammals. All observers shall be jects shall prevent full mudline con- trained in identification and reporting tact. of marine mammal behaviors. (3) The Navy shall require that con- (f) The Navy must conduct struction contractors train personnel hydroacoustic monitoring for a subset in the proper balancing of air flow to of impact-driven steel piles for projects the bubblers, and shall require that that include more than three such construction contractors submit an in- piles. When this requirement for moni- spection/performance report for ap- toring of impact-driven steel piles is

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triggered, the Navy must also conduct (ii) The Navy shall then immediately hydroacoustic monitoring of a subset notify the West Coast Regional Strand- of impact-driven plastic piles (if appli- ing Coordinator, NMFS, and, in con- cable). sultation with the Stranding Coordi- (g) The Navy must submit annual nator, shall immediately notify the summary, final, and comprehensive most appropriate qualified individual summary reports as described in this (i.e., biologist or veterinarian) to re- paragraph (g): spond to the event. (1) Navy shall submit an annual sum- (iii) In the interim, or in the event mary report to NMFS not later than 90 that no qualified individual other than days following the end of construction onsite marine mammal observers is for that year. Navy shall provide a available to respond to the event, the final report within 30 days following Navy shall manage the event response resolution of comments on the draft re- and shall take action to prevent any port. These reports shall contain, at further deterioration of the animal’s minimum, the following: condition, to the extent possible. Ap- (i) Date and time that monitored ac- propriate action may be specific to the tivity begins or ends; event. At minimum, the Navy should (ii) Construction activities occurring provide shade for the animal (if pos- during each observation period; sible), shall not move the animal or (iii) Weather parameters (e.g., wind cause the animal to move, and shall speed, percent cloud cover, visibility); suspend project activity until the situ- (iv) Water conditions (e.g., sea state, ation is resolved. tide state); (iv) The Navy shall report the inci- (v) Species, numbers, and, if possible, dent to the Office of Protected Re- sex and age class of marine mammals; sources (OPR), NMFS, within 48 hours (vi) Description of any observable after discovery. marine mammal behavior patterns, in- (2) In the unanticipated event that cluding bearing and direction of travel the activity defined in § 218.20 clearly and distance from pile driving activity; causes the take of at least one marine (vii) Distance from pile driving ac- mammal in a prohibited manner, the tivities to marine mammals and dis- Navy shall immediately cease such ac- tance from the marine mammals to the tivity and report the incident to OPR observation point; and the West Coast Regional Stranding (viii) Description of implementation Coordinator, NMFS. Activities shall of mitigation measures (e.g., shutdown not resume until NMFS is able to re- or delay); view the circumstances of the prohib- (ix) Locations of all marine mammal ited take. NMFS will work with the observations; and Navy to determine what measures are (x) Other human activity in the area. necessary to minimize the likelihood of (2) Navy shall submit a comprehen- further prohibited take and ensure sive summary report to NMFS not MMPA compliance. The Navy may not later than ninety days following the resume their activities until notified conclusion of marine mammal moni- by NMFS. The report must include the toring efforts described in this subpart. following information: (h) The Navy must submit reports of (i) Time, date, and location (latitude/ stranded, injured, or dead marine mam- longitude) of the incident; mals as described in this paragraph (h): (ii) Description of the incident; (1) In the event that a live marine (iii) Environmental conditions (e.g., mammal is found stranded, whether on wind speed and direction, Beaufort sea shore or in or on any structure or ves- state, cloud cover, visibility); sel, the following steps shall be taken: (iv) Description of all marine mam- (i) Project personnel who discover mal observations in the 24 hours pre- the marine mammal shall immediately ceding the incident; notify the most appropriate onsite per- (v) Species identification or descrip- sonnel with relevant expertise (e.g., tion of the animal(s) involved; marine mammal observers) as well as (vi) Fate of the animal(s); and the Navy (if non-Navy project per- (vii) Photographs or video footage of sonnel initially discover the animal). the animal(s). Photographs may be

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taken once the animal(s) have been (1) Permissible methods of incidental moved from the waterfront area. taking; (3) In the event that the Navy dis- (2) Means of effecting the least prac- covers an injured or dead marine mam- ticable adverse impact (i.e., mitigation) mal and determines that the cause of on the species, its habitat, and on the the injury or death is unknown and the availability of the species for subsist- death is relatively recent (e.g., in less ence uses; and than a moderate state of decomposi- (3) Requirements for monitoring and tion), the Navy shall immediately re- reporting. port the incident to OPR and the West (f) Issuance of the LOA shall be based Coast Regional Stranding Coordinator, on a determination that the level of NMFS. The report must include the in- taking will be consistent with the find- formation identified in paragraph (h)(2) ings made for the total taking allow- of this section. Activities may con- able under the regulations in this sub- tinue while NMFS reviews the cir- part. cumstances of the incident. NMFS will (g) Notice of issuance or denial of an work with the Navy to determine LOA shall be published in the FEDERAL whether additional mitigation meas- REGISTER within thirty days of a deter- ures or modifications to the activities mination. are appropriate. (4) In the event that the Navy dis- § 218.27 Renewals and modifications of covers an injured or dead marine mam- Letters of Authorization. mal and determines that the injury or (a) An LOA issued under §§ 216.106 of death is not associated with or related this chapter and 218.26 for the activity to the activities defined in § 218.20 (e.g., identified in § 218.20(a) shall be renewed previously wounded animal, carcass or modified upon request by the appli- with moderate to advanced decomposi- cant, provided that: tion, scavenger damage), Navy shall re- (1) The proposed specified activity port the incident to OPR and the West and mitigation, monitoring, and re- Coast Regional Stranding Coordinator, porting measures, as well as the antici- NMFS, within 24 hours of the dis- pated impacts, are the same as those covery. The Navy shall provide photo- described and analyzed for the regula- graphs or video footage or other docu- tions in this subpart (excluding mentation of the stranded animal changes made pursuant to the adaptive sighting to NMFS. Photographs may be management provision in paragraph taken once the animal has been moved (c)(1) of this section); and from the waterfront area. (2) NMFS determines that the miti- § 218.26 Letters of Authorization. gation, monitoring, and reporting measures required by the previous LOA (a) To incidentally take marine under the regulations in this subpart mammals pursuant to the regulations were implemented. in this subpart, the Navy must apply (b) For LOA modification or renewal for and obtain an LOA. requests by the applicant that include (b) An LOA, unless suspended or re- changes to the activity or the mitiga- voked, may be effective for a period of tion, monitoring, or reporting (exclud- time not to exceed the expiration date ing changes made pursuant to the of the regulations in this subpart. adaptive management provision in (c) If an LOA expires prior to the ex- paragraph (c)(1) of this section) that do piration date of the regulations in this not change the findings made for the subpart, the Navy may apply for and regulations in this subpart or result in obtain a renewal of the LOA. no more than a minor change in the (d) In the event of projected changes total estimated number of takes (or to the activity or to mitigation and distribution by species or years), monitoring measures required by an NMFS may publish a notice of pro- LOA, the Navy must apply for and ob- posed LOA in the FEDERAL REGISTER, tain a modification of the LOA as de- including the associated analysis of the scribed in § 218.27. change, and solicit public comment be- (e) The LOA shall set forth: fore issuing the LOA.

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(c) An LOA issued under §§ 216.106 of § 218.30 Specified activity and speci- this chapter and 218.26 for the activity fied geographical region. identified in § 218.20(a) may be modified (a) Regulations in this subpart apply by NMFS under the following cir- only to the U.S. Navy (Navy) and those cumstances: persons it authorizes or funds to con- (1) Adaptive management. NMFS may duct activities on its behalf for the modify (including augment) the existing mitigation, monitoring, or report- taking of marine mammals that occurs ing measures (after consulting with the in the areas outlined in paragraph (b) Navy regarding the practicability of of this section and that occurs inci- the modifications) if doing so creates a dental to maintenance construction ac- reasonable likelihood of more effec- tivities. tively accomplishing the goals of the (b) The taking of marine mammals mitigation and monitoring set forth in by the Navy may be authorized in a the regulations in this subpart. Letter of Authorization (LOA) only if (i) Possible sources of data that could it occurs within California coastal contribute to the decision to modify waters in the vicinity of Naval Weap- the mitigation, monitoring, or report- ons Station Seal Beach. ing measures in an LOA: (A) Results from the Navy’s moni- § 218.31 Effective dates. toring from the previous year(s). Regulations in this subpart are effec- (B) Results from other marine mam- tive from March 25, 2020, through mal and/or sound research or studies. March 25, 2025. (C) Any information that reveals marine mammals may have been taken in § 218.32 Permissible methods of tak- a manner, extent or number not au- ing. thorized by the regulations in this sub- Under LOAs issued pursuant to part or subsequent LOAs. (ii) If, through adaptive management, §§ 216.106 of this chapter and 218.36, the the modifications to the mitigation, Holder of the LOA (hereinafter monitoring, or reporting measures are ‘‘Navy’’) may incidentally, but not in- substantial, NMFS will publish a no- tentionally, take marine mammals tice of proposed LOA in the FEDERAL within the area described in § 218.30(b) REGISTER and solicit public comment. by Level B harassment associated with (2) Emergencies. If NMFS determines construction activities, provided the that an emergency exists that poses a activity is in compliance with all significant risk to the well-being of the terms, conditions, and requirements of species or stocks of marine mammals the regulations in this subpart and the specified in LOAs issued pursuant to appropriate LOA. §§ 216.106 of this chapter and 218.26, an LOA may be modified without prior no- § 218.33 Prohibitions. tice or opportunity for public com- Notwithstanding takings con- ment. Notice would be published in the templated in § 218.32 and authorized by FEDERAL REGISTER within thirty days an LOA issued under §§ 216.106 of this of the action. chapter and 218.36, no person in connection with the activities described in §§ 218.28–218.29 [Reserved] § 218.30 may: (a) Violate, or fail to comply with, Subpart D—Taking Marine Mam- the terms, conditions, and require- mals Incidental to U.S. Navy ments of this subpart or an LOA issued Construction Activities at under §§ 216.106 of this chapter and Naval Weapons Station Seal 218.36; Beach, California (b) Take any marine mammal not specified in such LOAs; SOURCE: 85 FR 10325, Feb. 24, 2020, unless (c) Take any marine mammal speci- otherwise noted. fied in such LOAs in any manner other EFFECTIVE DATE NOTE: At 85 FR 10325, Feb. than as specified; 24, 2020, subpart D was added, effective Mar. (d) Take a marine mammal specified 25, 2020, through Mar. 25, 2025. in such LOAs if NMFS determines such

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taking results in more than a neg- (3) Monitoring shall take place from ligible impact on the species or stocks 30 minutes prior to initiation of pile of such marine mammal; or driving activity through 30 minutes (e) Take a marine mammal specified post-completion of pile driving activ- in such LOAs if NMFS determines such ity. Pre-activity monitoring shall be taking results in an unmitigable ad- conducted for 30 minutes to ensure verse impact on the species or stock of that the shutdown zone is clear of ma- such marine mammal for taking for rine mammals, and pile driving may subsistence uses. commence when observers have declared the shutdown zone clear of ma- § 218.34 Mitigation requirements. rine mammals. In the event of a delay When conducting the activities iden- or shutdown of activity resulting from tified in § 218.30(a), the mitigation marine mammals in the shutdown measures contained in any LOA issued zone, animals shall be allowed to re- under §§ 216.106 of this chapter and main in the shutdown zone (i.e., must 218.36 must be implemented. These leave of their own volition) and their mitigation measures shall include but behavior shall be monitored and docu- are not limited to: mented. Monitoring shall occur (a) General conditions. (1) A copy of throughout the time required to drive any issued LOA must be in the posses- a pile. A determination that the shut- sion of the Navy, its designees, and down zone is clear must be made dur- work crew personnel operating under ing a period of good visibility (i.e., the the authority of the issued LOA. entire shutdown zone and surrounding (2) The Navy shall conduct briefings waters must be visible to the naked for construction supervisors and crews, eye). the monitoring team, and Navy staff (4) If a marine mammal approaches prior to the start of all pile driving ac- or enters the shutdown zone, all pile tivity, and when new personnel join the driving activities at that location shall work, in order to explain responsibil- be halted. If pile driving is halted or ities, communication procedures, the delayed due to the presence of a marine marine mammal monitoring protocol, mammal, the activity may not com- and operational procedures. mence or resume until either the ani- (b) Shutdown zones. (1) For all pile mal has voluntarily left and been vis- driving activity, the Navy shall imple- ually confirmed beyond the shutdown ment a minimum shutdown zone of a 10 zone or 15 minutes have passed without m radius around the pile. If a marine re-detection of the animal. mammal comes within or approaches (5) During conditions where the en- the shutdown zone, such operations tire shutdown zone is not visible (e.g., shall cease. dark, fog, heavy rain), impact pile driv- (2) For all pile driving activity, the ing must be delayed until the PSO is Navy shall implement shutdown zones confident marine mammals within the with radial distances as identified in shutdown zone could be detected. any LOA issued under §§ 216.106 of this (6) Monitoring shall be conducted by chapter and 218.36. If a marine mammal trained observers, who shall have no comes within or approaches the shut- other assigned tasks during monitoring down zone, such operations shall cease. periods. Trained observers shall be (3) For all pile driving activity, the placed at the best vantage point(s) Navy shall designate monitoring zones practicable to monitor for marine with radial distances as identified in mammals and implement shutdown or any LOA issued under §§ 216.106 of this delay procedures when applicable chapter and 218.36. through communication with the (c) Shutdown protocols. (1) The Navy equipment operator. The Navy shall shall deploy marine mammal observers adhere to the following additional ob- as described in § 218.35. server qualifications: (2) For all pile driving activities, a (i) Independent observers (i.e., not minimum of one observer shall be sta- construction personnel) are required. tioned at the active pile driving rig or (ii) At least one observer must have in reasonable proximity in order to prior experience working as an ob- monitor the shutdown zone. server.

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(iii) Other observers may substitute (d) The Navy must submit annual education (degree in biological science and summary reports. or related field) or training for experi- (1) Navy shall submit an annual sum- ence. mary report to NMFS not later than 90 (iv) Where a team of three or more days following the end of each calendar observers are required, one observer year. Navy shall provide a final report shall be designated as lead observer or within 30 days following resolution of monitoring coordinator. The lead ob- comments on the draft report. These server must have prior experience reports shall contain, at minimum, the working as an observer. following: (v) The Navy shall submit observer (i) Dates and times (begin and end) of CVs for approval by NMFS. all marine mammal monitoring; (d) Soft start. The Navy shall use soft (ii) Construction activities occurring start techniques for impact pile driv- during each daily observation period, ing. Soft start for impact drivers re- including how many and what type of quires contractors to provide an initial piles were driven or removed and by set of three strikes at reduced energy, what method (i.e., impact or vibra- followed by a thirty-second waiting pe- tory); riod, then two subsequent reduced en- (iii) Weather parameters and water ergy three-strike sets. Soft start shall conditions during each monitoring period (e.g., wind speed, percent cover, be implemented at the start of each visibility, sea state); day’s impact pile driving and at any (iv) The number of marine mammals time following cessation of impact pile observed, by species, relative to the driving for a period of thirty minutes pile location and if pile driving or re- or longer. moval was occurring at time of sight- § 218.35 Requirements for monitoring ing; and reporting. (v) Age and sex class, if possible, of all marine mammals observed; (a) Trained observers shall receive a (vi) PSO locations during marine general environmental awareness brief- mammal monitoring; ing conducted by Navy staff. At min- (vii) Distances and bearings of each imum, training shall include identi- marine mammal observed to the pile fication of marine mammals that may being driven or removed for each sight- occur in the project vicinity and rel- ing (if pile driving or removal was oc- evant mitigation and monitoring re- curring at time of sighting); quirements. All observers shall have no (viii) Description of any marine other construction-related tasks while mammal behavior patterns during ob- conducting monitoring. servation, including direction of travel; (b) For shutdown zone monitoring, (ix) Number of individuals of each the Navy shall report on implementa- species (differentiated by month as ap- tion of shutdown or delay procedures, propriate) detected within the moni- including whether the procedures were toring zone, and estimates of number not implemented and why (when rel- of marine mammals taken, by species evant). (a correction factor may be applied to (c) The Navy shall deploy a minimum total take numbers, as appropriate); of one additional observer to aid in (x) Detailed information about any monitoring disturbance zones. This ob- implementation of any mitigation trig- server shall collect sighting data and gered (e.g., shutdowns and delays), a behavioral responses to pile driving for description of specific actions that en- marine mammal species observed in sued, and resulting behavior of the ani- the region of activity during the period mal, if any; of activity, and shall communicate (xi) Description of attempts to distin- with the shutdown zone observer as ap- guish between the number of individual propriate with regard to the presence animals taken and the number of of marine mammals. All observers incidences of take, such as ability to shall be trained in identification and track groups or individuals; and, reporting of marine mammal behav- (xii) An extrapolation of the esti- iors. mated takes by Level B harassment

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based on the number of observed expo- (1) Permissible methods of incidental sures within the Level B harassment taking; zone and the percentage of the Level B (2) Means of effecting the least prac- harassment zone that was not visible, ticable adverse impact (i.e., mitigation) when applicable. on the species, its habitat, and on the (2) Navy shall submit a comprehen- availability of the species for subsist- sive summary report to NMFS not ence uses; and later than ninety days following the (3) Requirements for monitoring and conclusion of marine mammal moni- reporting. toring efforts described in this subpart. (f) Issuance of the LOA shall be based (e) Reporting of injured or dead ma- on a determination that the level of rine mammals: In the event that per- taking will be consistent with the find- sonnel involved in the survey activities ings made for the total taking allow- discover an injured or dead marine able under these regulations. mammal, the LOA-holder must report (g) Notice of issuance or denial of an the incident to the Office of Protected LOA shall be published in the FEDERAL Resources (OPR), NMFS and to the REGISTER within thirty days of a deter- West Coast Regional Stranding Net- mination. work as soon as feasible. The report must include the following informa- § 218.37 Renewals and modifications of tion: Letters of Authorization. (1) Time, date, and location (latitude/ (a) An LOA issued under §§ 216.106 of longitude) of the first discovery (and this chapter and 218.36 for the activity updated location information if known identified in § 218.30(a) shall be renewed and applicable); or modified upon request by the appli- (2) Species identification (if known) cant, provided that: or description of the animal(s) in- (1) The proposed specified activity volved; and mitigation, monitoring, and re- (3) Condition of the animal(s) (includ- porting measures, as well as the antici- ing carcass condition if the animal is pated impacts, are the same as those dead); described and analyzed for these regu- (4) Observed behaviors of the ani- lations (excluding changes made pursu- mal(s), if alive; ant to the adaptive management provision in paragraph (c)(1) of this section), (5) If available, photographs or video and footage of the animal(s); and (2) NMFS determines that the miti- (6) General circumstances under gation, monitoring, and reporting which the animal was discovered. measures required by the previous LOA § 218.36 Letters of Authorization. under these regulations were implemented. (a) To incidentally take marine (b) For LOA modification or renewal mammals pursuant to these regula- requests by the applicant that include tions, the Navy must apply for and ob- changes to the activity or the mitiga- tain an LOA. tion, monitoring, or reporting (exclud- (b) An LOA, unless suspended or re- ing changes made pursuant to the voked, may be effective for a period of adaptive management provision in time not to exceed the expiration date paragraph (c)(1) of this section) that do of these regulations. not change the findings made for the (c) If an LOA expires prior to the ex- regulations or result in no more than a piration date of these regulations, the minor change in the total estimated Navy may apply for and obtain a re- number of takes (or distribution by newal of the LOA. species or years), NMFS may publish a (d) In the event of projected changes notice of proposed LOA in the FEDERAL to the activity or to mitigation and REGISTER, including the associated monitoring measures required by an analysis of the change, and solicit pub- LOA, the Navy must apply for and ob- lic comment before issuing the LOA. tain a modification of the LOA as de- (c) An LOA issued under §§ 216.106 of scribed in § 218.37. this chapter and 218.36 for the activity (e) The LOA shall set forth: identified in § 218.30(a) may be modified

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by NMFS under the following cir- Subpart F—Taking of Marine cumstances: Mammals Incidental to the (1) Adaptive management—NMFS may U.S. Air Force 86 Fighter modify (including augment) the exist- Weapons Squadron Con- ing mitigation, monitoring, or report- ducting Long Range Strike ing measures (after consulting with the Weapons System Evaluation Navy regarding the practicability of Program at the Pacific Missile the modifications) if doing so creates a reasonable likelihood of more effec- Range Facility at Kauai, Ha- tively accomplishing the goals of the waii mitigation and monitoring set forth in the preamble for these regulations. SOURCE: 82 FR 39698, Aug. 22, 2017, unless otherwise noted. (i) Possible sources of data that could contribute to the decision to modify EFFECTIVE DATE NOTE: At 82 FR 39698, Aug. the mitigation, monitoring, or report- 22, 2017, subpart F was added, effective Aug. 21, 2017, through Aug. 22, 2022. ing measures in an LOA: (A) Results from the Navy’s moni- § 218.50 Specified activity and speci- toring from the previous year(s). fied geographical region. (B) Results from other marine mam- (a) Regulations in this subpart apply mal and/or sound research or studies. only to the 86 Fighter Weapons Squad- (C) Any information that reveals ma- ron (86 FWS) and those persons it au- rine mammals may have been taken in thorizes to conduct activities on its be- a manner, extent or number not au- half, for the taking of marine mam- thorized by these regulations or subse- mals as outlined in paragraph (b) of quent LOAs. this section and incidental to Long (ii) If, through adaptive management, Range Strike Weapons System Evalua- the modifications to the mitigation, tion Program (LRS WSEP) missions. (b) The taking of marine mammals monitoring, or reporting measures are by 86 FWS pursuant to a Letter of Au- substantial, NMFS will publish a no- thorization (LOA) is authorized only if tice of proposed LOA in the FEDERAL it occurs at the Barking Sands Under- REGISTER and solicit public comment. water Range Expansion (BSURE) area (2) Emergencies. If NMFS determines of the Pacific Missile Range Facility that an emergency exists that poses a (PMRF) off Kauai, Hawaii. significant risk to the well-being of the species or stocks of marine mammals § 218.51 Effective dates. specified in LOAs issued pursuant to Regulations in this subpart are effec- §§ 216.106 of this chapter and 218.36, an tive August 21, 2017, through August 22, LOA may be modified without prior no- 2022. tice or opportunity for public comment. Notice would be published in the § 218.52 Permissible methods of taking. FEDERAL REGISTER within thirty days of the action. Under a LOA issued pursuant to § 216.106 of this chapter and § 218.56, the §§ 218.38–218.39 [Reserved] Holder of the LOA (herein after 86 FWS) may incidentally, but not inten- Subpart E [Reserved] tionally, 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.

§ 218.53 Prohibitions. Notwithstanding takings contemplated in § 218.50 and authorized by

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an LOA issued under § 216.106 of this in an unauthorized take of a marine chapter and § 218.56, no person in con- mammal. nection with the activities described in (e) Suspend live munition detona- § 218.50 may: tions if an unauthorized take of a ma- (a) Violate, or fail to comply with, rine mammal occurs, and report the in- the terms, conditions, and require- cident to NMFS Office of Protected Re- ments of this subpart or the LOA sources (OPR), NMFS Pacific Islands issued under § 216.106 of this chapter Regional Office (PIRO), and the Pacific and § 218.56. Islands Region Marine Mammal (b) Take a marine mammal species or Stranding Network representative im- stock not specified in the LOA; and mediately followed by a report to (c) Take a marine mammal species or NMFS within 24 hours. stock specified in the LOA in any man- (f) Implement a best management ner other than as specified. practice, on a daily basis, of conducting inert munition training or § 218.54 Mitigation requirements. small bomb detonations prior to deto- When conducting activities identified nating large bombs if the Project Engi- in § 218.50, the mitigation measures neer/Commanding Office determines contained in the LOA issued under this practice does not interfere with § 216.106 of this chapter and § 218.56 mission training. must be implemented. These mitiga- (g) Additional mitigation measures tion measures shall include but are not as contained in an LOA. limited to the following general conditions: § 218.55 Requirements for monitoring and reporting. (a) Execute missions during day-light hours only, no more than four hours (a) Holders of LOAs issued pursuant per day, no more than one day during to § 218.56 for activities described in 2017, no more than four days per year § 218.50(a) are required to cooperate for 2018 through 2022 over a five-day pe- with NMFS, and any other Federal, riod, on weekdays, and only during state, or local agency with authority summer (June through August) or fall to monitor the impacts of the activity (September through November) on marine mammals. Unless specified months. otherwise in the LOA, the Holder of the (b) Delay live munition detonations LOA must notify the Pacific Islands if a marine mammal is observed within Region Stranding Coordinator, NMFS, the designated exclusion zone (2.3 mile by email, at least 72 hours prior to LRS (mi) (3,704 m) from the weapon impact WSEP missions. site), resuming only after the animal is (b) All marine mammal monitoring observed exiting the exclusion zone or will be carried out in compliance with the exclusion zone has been clear of the 86 FWS Marine Mammal Mitiga- any additional sightings for a period of tion and Monitoring Plan, dated Au- 30 minutes. gust 2017. (c) Delay live munition detonations (c) Aerial Surveys: The 86 FWS will if a marine mammal is observed in an conduct pre-, during, and post-training impact zone but outside of the 2.3 mi surveys each mission day. exclusion zone and if the manner of (1) The marine mammal survey moni- taking is not authorized (e.g., animal is toring area will extend no less than ap- observed in Level A impact zone for proximately 8 mi (13 kilometers (km)) that species and no Level A take is au- from the designated impact site. thorized), resuming only after the ani- (2) Surveys will utilize military air- mal is observed exiting the zone. craft equipped with advanced targeting (d) Shift the target site as far as pos- sensor pods (e.g., SNIPER pods) at alti- sible from an observed marine mam- tudes and speeds ideal for detecting mal’s location (but within the two-mile marine mammals using such equip- wide weapon impact area) if a marine ment; aircraft will fly transect lines mammal is observed during the pre- covering the entire eight mi moni- mission survey or during missions and toring area. A helicopter-based survey continuing the mission will not result may substitute the military aircraft

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survey platform and use of sensor pods (1) Submit a draft report to NMFS only if a sensor pod is not be available. OPR on all monitoring conducted (3) A pre-mission marine mammal under the LOA within 90 days of the survey will commence no later than 30 completion of marine mammal moni- minutes prior to beginning training ac- toring or accompanying a subsequent tivities. application for regulations. A final re- (4) Aircraft personnel will also ob- port shall be prepared and submitted serve for marine mammals during within 30 days following resolution of training (e.g., on approach to weapon comments on the draft report from launch location). NMFS. This report must contain the (5) Aircraft personnel will conduct a informational elements described in post-mission survey for marine mam- the Monitoring Plan, and shall also in- mals immediately following the end of clude: training each mission day. A helicopter (i) Date and time of each LRS WSEP may be used in lieu of mission aircraft mission; only if sensor pod is not available. (ii) A complete description of the pre- exercise, exercise, and post-exercise ac- (d) Range Camera Surveys: 86 FWS tivities related to mitigating and mon- personnel will use the Makaha Ridge itoring the effects of LRS WSEP mis- range cameras to monitor for marine sions on marine mammals; and; mammals within the weapon impact (iii) Results of the monitoring pro- area at least 30 minutes prior to, dur- gram, including numbers by species/ ing, and immediately after training ac- stock of any marine mammals noted tivities. injured or killed as a result of the LRS (e) Helicopter surveys: If military WSEP mission and number of marine aircraft equipped with a sensor pod mammals (by species if possible) that cannot be used for marine mammal may have been harassed due to pres- surveys, the 86 FWS may substitute a ence within the designated harassment helicopter as the survey platform. The zones. helicopter will fly at an approximately (iv) The draft report will be subject 200 feet altitude and will cover the 8 mi to review and comment by NMFS. Any monitoring area. If adverse weather recommendations made by NMFS must conditions preclude the ability for air- be addressed in the final report prior to craft to safely operate, missions would acceptance by NMFS. The draft report either be delayed until the weather will be considered the final report for clears or cancelled for the day. this activity under the LOA if NMFS (f) Acoustic Monitoring: has not provided comments and rec- (1) The 86 FWS will comply with all ommendations within 90 days of receipt acoustic monitoring as described in the of the draft report. 86 FWS Mitigation and Monitoring (2) Report injured or dead marine Plan. mammals: (2) Acoustic data from the PRMF hy- (i) In the unanticipated event that drophones will be collected and stored the specified activity clearly causes by the 86 FWS. Data will be analyzed the take of a marine mammal in a to better understand the effects of LRS manner prohibited by the LOA, such as WSEP missions. The results of the an injury for species not authorized analysis will accompany any subse- (Level A harassment), serious injury, quent LOA request or, if no request is or mortality, the 86 FWS shall imme- made, no later than 90 after expiration diately cease the specified activities of the LOA. and immediately report the incident to (g) The 86 FWS will contact the Pa- Pacific Islands Regional Stranding Co- cific Islands Region stranding coordi- ordinator (888–256–9840), NMFS followed nator, NMFS, by email, at least 72 by a report submitted to NMFS Office hours prior to mission onset and one of Protected Resources and the Pacific business day after completion of mis- Islands Regional Office within 24 hours. sions to declare that missions are com- The report must include the following plete. information: (h) The Holder of the LOA is required (A) Time and date of the incident; to: (B) Description of the incident;

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(C) Environmental conditions (e.g., (3) Additional Conditions: wind speed and direction, Beaufort sea (i) The Holder of the LOA must in- state, cloud cover, and visibility); form the Director, Office of Protected (D) Description of all marine mam- Resources, NMFS, (301–427–8400) or des- mal observations in the 24 hours pre- ignee (301–427–8401) prior to the initi- ceding the incident; ation of any changes to the monitoring (E) Species identification or descrip- plan for a specified mission activity. tion of the animal(s) involved; (ii) A copy of the LOA must be in the (F) Fate of the animal(s); and possession of the safety officer on duty (G) Photographs or video footage of each mission day. the animal(s). (iii) The LOA may be modified, sus- (ii) Activities shall not resume until pended or withdrawn if the holder fails NMFS is able to review the cir- to abide by the conditions prescribed cumstances of the prohibited take. herein, or if NMFS determines the au- NMFS will work with 86 FWS to deter- thorized taking is having more than a mine what measures are necessary to negligible impact on the species or minimize the likelihood of further pro- stock of affected marine mammals. hibited take and ensure MMPA compliance. The 86 FWS may not resume § 218.56 Letters of Authorization. their activities until notified by (a) To incidentally take marine NMFS. mammals pursuant to these regula- (iii) In the event that 86 FWS dis- tions, 86 FWS must apply for and ob- covers an injured or dead marine mam- tain an LOA. mal, and the lead observer determines (b) An LOA, unless suspended or re- that the cause of the injury or death is voked, may be effective for a period of unknown and the death is relatively re- time not to exceed the expiration date cent (e.g., in less than a moderate state of these regulations. of decomposition), 86 FWS shall immediately report the incident to the Pa- (c) If an LOA expires prior to the ex- cific Islands Regional Stranding Coor- piration date of these regulations, 86 dinator, followed by a report to NMFS FWS must apply for and obtain a re- Office of Protected Resources and the newal of the LOA. Pacific Island Regional Office within 24 (d) In the event of projected changes hours of the discovery. The report to the activity or to mitigation and must include the same information monitoring measures required by an identified in paragraph (h)(2)(i) of this LOA, 86 FWS must apply for and obtain section. Activities may continue while a modification of the LOA as described NMFS reviews the circumstances of in § 218.57. the incident. NMFS will work with 86 (e) The LOA will set forth: FWS to determine whether additional (1) Permissible methods of incidental mitigation measures or modifications taking; to the activities are appropriate. (2) The number of marine mammals, (iv) In the event that 86 FWS dis- by species and stock, authorized to be covers an injured or dead marine mam- taken; mal, and the lead observer determines (3) Means of effecting the least prac- that the injury or death is not associ- ticable adverse impact (i.e., mitigation) ated with or related to the activities on the species of marine mammals au- authorized in the LOA (e.g., previously thorized for taking, on its habitat, and wounded animal, carcass with mod- on the availability of the species for erate to advanced decomposition, scav- subsistence uses; and enger damage), 86 FWS shall report the (4) Requirements for monitoring and incident to the Office of Protected Re- reporting. sources, NMFS, and the Pacific Islands (f) Issuance of an LOA shall be based Regional Stranding Coordinator, on a determination that the level of NMFS, within 24 hours of the dis- taking will be consistent with the find- covery. The 86 FWS shall provide pho- ings made for the total taking allow- tographs or video footage or other doc- able under these regulations. umentation of the stranded animal (g) Notice of issuance or denial of an sighting to NMFS. LOA will be published in the FEDERAL

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REGISTER within 30 days of a deter- ing measures in an LOA include, but is mination. not limited to: (A) Results of new range-to-effects § 218.57 Renewals and Modifications of models based on maximum amount of Letters of Authorization. weapons, by type, utilized during each (a) An LOA issued under § 216.106 of mission; this chapter and § 218.56 for the activity (B) Results from 86 FWS’s moni- identified in § 218.50(a) will be renewed toring from the previous year(s); or modified upon request by the appli- (C) Results from other marine mam- cant, provided that: mal and/or sound research or studies; (1) The proposed specified activity or and mitigation, monitoring, and re- (D) Any information that reveals ma- porting measures, as well as the antici- rine mammals may have been taken in pated impacts, are the same as those a manner, extent, or number not au- described and analyzed for these regu- thorized by the regulations or subse- lations (excluding changes made pursu- quent LOA. ant to the adaptive management provi- (ii) If, through adaptive management, sion in paragraph (c)(1) of this section), the modifications to the mitigation, and monitoring, or reporting measures are (2) NMFS determines that the miti- substantial, NMFS will publish a no- gation, monitoring, and reporting tice of proposed LOA in the FEDERAL measures required by the previous LOA REGISTER and solicit public comment. under these regulations were imple- (2) Emergencies—If NMFS deter- mented. mines that an emergency exists that poses a significant risk to the well- (b) For an LOA modification or re- being of the species or stocks of marine newal request by the applicant that in- mammals specified in the LOA issued clude changes to the activity or the pursuant to § 216.106 of this chapter and mitigation, monitoring, or reporting § 218.50, an LOA may be modified with- (excluding changes made pursuant to out prior notice or opportunity for pub- the adaptive management provision in lic comment. Notice would be pub- paragraph (c)(1) of this section) that do lished in the FEDERAL REGISTER within not change the findings made for the 30 days of the action. regulations or result in no more than a minor change in the total estimated §§ 218.58–218.59 [Reserved] number of takes (or distribution by species or years), NMFS may publish a Subpart G—Taking of Marine notice of proposed LOA in the FEDERAL REGISTER, including the associated Mammals Incidental to Test- analysis illustrating the change, and ing and Training Activities solicit public comment before issuing Conducted at the Eglin Gulf the LOA. Test and Training Range in the (c) An LOA issued under § 216.106 of Gulf of Mexico this chapter and § 218.56 for the activity identified in § 218.50(a) may be modified SOURCE: 83 FR 5568, Feb. 8, 2018, unless oth- by NMFS under the following cir- erwise noted. cumstances: EFFECTIVE DATE NOTE: At 83 FR 5568, Feb. (1) Adaptive Management—NMFS 8, 2018, subpart G was added, effective Feb. may modify and augment the existing 13, 2018, through Feb. 12, 2023. mitigation, monitoring, or reporting measures (after consulting with the 86 § 218.60 Specified activity and speci- FWS regarding the practicability of fied geographical region. the modifications) if doing so creates a (a) Regulations in this subpart apply reasonable likelihood of more effec- only to Eglin Air Force Base (Eglin tively accomplishing the goals of the AFB) and those persons it authorizes mitigation and monitoring. to conduct activities on its behalf, for (i) Possible sources of data that could the taking of marine mammals as out- contribute to the decision to modify lined in paragraph (b) of this section the mitigation, monitoring, and report- and incidental to testing and training

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missions in the Eglin Gulf Test and limited to the following general condi- Training Range (EGTTR). tions: (b) The taking of marine mammals (a) If daytime weather and/or sea by Eglin AFB pursuant to a Letter of conditions preclude adequate moni- Authorization (LOA) is authorized only toring for detecting marine mammals if it occurs at the EGTTR in the Gulf and other marine life, EGTTR oper- of Mexico. ations must be delayed until adequate sea conditions exist for monitoring to § 218.61 Effective dates. be undertaken. Regulations in this subpart are effec- (b) Restrictions on time of activities. tive February 13, 2018 through Feb- (1) Missions involving the use of live ruary 12, 2023. bombs, missiles and rockets shall only occur during daylight hours. § 218.62 Permissible methods of tak- (2) Missions during daylight hours ing. shall occur no earlier than two hours Under a Letter of Authorization after sunrise and no later than two (LOA) issued pursuant to § 216.106 of hours prior to sunset. this chapter and § 218.66, the Holder of (c) Required delay of live ordnance the LOA (herein after Eglin AFB) may mission activities shall occur if a pro- incidentally, but not intentionally, tected species, large schools of fish or take marine mammals by Level A and large flocks of birds feeding at the sur- Level B harassment associated with face are observed within the ZOI. Mis- EGTTR activities within the area de- sion activities cannot resume until one scribed in § 218.60 provided the activi- of the following conditions is met: ties are in compliance with all terms, (1) Protected species marine mam- conditions, and requirements of these mal(s) is confirmed to be outside of the regulations in this subpart and the ap- ZOI on a heading away from the target propriate LOA. area; or (2) Protected species marine mam- § 218.63 Prohibitions. mal(s) is not seen again for 30 minutes Notwithstanding takings con- and presumed to be outside the Level A templated in § 218.60 and authorized by harassment ZOI. an LOA issued under § 216.106 of this (3) Large groupings of fish or birds chapter and § 218.66, no person in con- leading to required delay are confirmed nection with the activities described in outside of the ZOI. § 218.60 may: (d) Gunnery operations shall require (a) Violate, or fail to comply with, employment of the following mitiga- the terms, conditions, and require- tion measures. ments of this subpart or an LOA issued (1) Use of 105-millimeter (mm) train- under § 216.106 of this chapter and ing rounds (TR) during nighttime mis- § 218.66. sions. (b) Take any marine mammal not (2) Ramp-up procedures requiring the specified in such LOAs; use of the lowest caliber munition and (c) Take any marine mammal speci- proceeding to the highest, which means fied in such LOAs in any manner other the munitions would be fired in the than as specified; order of 25 mm, 40 mm, and 105 mm. (d) Take a marine mammal specified (3) Any pause in live fire activities in such LOAs if NMFS determines such greater than 10 minutes shall require taking results in more than a neg- reinitiation of protected species sur- ligible impact on the species or stocks veys. of such marine mammal; or (4) Missions shall be conducted within the 200-meter (m) isobaths to pro- § 218.64 Mitigation requirements. vide greater protection to several spe- When conducting activities identified cies. in § 218.60, the mitigation measures (e) If one or more sperm or baleen contained in the LOA issued under whales are detected during pre-mission § 216.106 of this chapter and § 218.66 monitoring activities, mission activi- must be implemented. These mitiga- ties shall be aborted/suspended for the tion measures shall include but are not remainder of the day.

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(f) Additional mitigation measures as ment. Any marine mammals detected contained in an LOA. in the ZOI during post-mission surveys, for which take is not authorized, shall § 218.65 Requirements for monitoring be reported immediately to the Office and reporting. of Protected Resources, NMFS. (a) Holders of LOAs issued pursuant (j) A minimum of two dedicated ob- to § 218.66 for activities described in servers shall be stationed on each ves- § 218.60(a) are required to cooperate sel. with NMFS, and any other Federal, (k) Observers shall utilize optical state, or local agency with authority equipment with sufficient magnifica- to monitor the impacts of the activity tion to allow observation of surfaced on marine mammals. If the authorized animals. activity identified in § 218.60(a) is (l) The size of the survey area for thought to have resulted in the mor- each mission shall be determined ac- tality or injury of any marine mam- cording to the radius of impact for the mals or take of marine mammals not given threshold of each munition/deto- identified in § 218.60(b), then the Holder nation scenario. These ranges shall be of the LOA must notify the Director, monitored during pre-mission surveys Office of Protected Resources, NMFS, for each activity. or designee, by telephone (301) 427–8401, (m) Some missions shall be delayed and the Southeast Regional Office to allow survey platforms to evacuate (phone within 24 hours of the injury or the human safety zone after pre-mis- death). sions surveys are completed. (b) Monitoring shall be conducted by (n) Any aerial-based pre-mission sur- personnel who have completed Eglin’s veys shall be conducted by observers Marine Species Observer Training aboard non-mission aircraft or mission Course, which was developed in co- aircraft who have completed the Ma- operation with the National Marine rine Species Observer Training. Fisheries Service. (o) Gunship standard procedures ini- (c) The Holder of the LOA shall use tiated prior to initiation of live-firing mission-reporting forms to track their events shall require at least two com- use of the EGTTR for testing and plete orbits around the survey mission training missions and to track marine site at the appropriate airspeed and mammal observations. monitoring altitude and include the (d) Depending on the mission cat- following: egory, visual aerial-based, vessel-based, (1) Monitoring for marine mammals or video-based marine mammal surveys shall continue throughout the mission shall be conducted before and after live by mission crew; ordnance mission activities each day. (2) Where applicable aircraft optical (e) Vessel-based surveys shall begin and electronic sensors shall be used for approximately one and one-half hour marine mammal observation; prior to live weapon deployment and (3) If any marine mammals are de- shall be completed 30 minutes prior to tected during pre-mission surveys or the start of mission. during the mission, activities shall be (f) Surveys shall continue for ap- immediately halted until the ZOI area proximately one hour or until the en- is clear of all marine mammals, or the tire ZOI has been adequately surveyed, mission shall be relocated to another whichever comes first. target area. If the mission is relocated, (g) Post-mission monitoring surveys the pre-mission survey procedures shall shall commence once the mission has be repeated; ended or as soon as the mission area is (4) If multiple firing missions are declared safe. conducted within the same flight, (h) Vessel-based post-mission surveys standard clearance procedures shall shall be conducted for 30 minutes after precede each mission; and completion of live ordnance missions. (5) Gunship crews shall conduct a (i) Any marine mammals detected in post-mission survey beginning at the the ZOI during post-mission surveys, operational altitude and proceeding for which take are authorized, shall be through a spiraling descent to the des- counted as takes by Level B harass- ignated monitoring altitude.

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(p) Video-based monitoring from the shall be considered the final report for GRATV shall be conducted where ap- this activity under the LOA if NMFS propriate via live high-definition video has not provided comments and rec- feed. ommendations within 90 days of receipt (1) Supplemental video monitoring of the draft report. shall be conducted through the employ- (s) Reporting injured or dead marine ment of additional aerial assets includ- mammals: ing aerostats and drones when avail- (1) In the unanticipated event that able. the specified activity clearly causes (2) [Reserved] the take of a marine mammal in a (q) Acoustic Monitoring: manner prohibited by the LOA, such as (1) Eglin AFB shall conduct a passive an injury for species not authorized acoustic monitoring (PAM) study as an (Level A harassment), serious injury, initial step towards understanding or mortality, Eglin AFB shall imme- acoustic impacts from underwater det- diately cease the specified activities onations, if funding is approved; and report the incident to the Office of (2) Eglin AFB shall conduct PAM for Protected Resources, NMFS, and the marine mammal vocalizations before, Southeast Regional Office, NMFS. The during, and after live missions in the report must include the following in- EGTTR, once funding is approved; and formation: (3) The results of the PAM study (i) Time and date of the incident; shall be submitted to NMFS OPR as a (ii) Description of the incident; draft monitoring report within 90 days (iii) Environmental conditions (e.g., of completion of the study. wind speed and direction, Beaufort sea (r) The Holder of the LOA is required state, cloud cover, and visibility); to: (1) Submit an annual draft report to (iv) Description of all marine mam- NMFS OPR on all monitoring con- mal observations in the 24 hours pre- ducted under the LOA within 90 days of ceding the incident; the completion of marine mammal (v) Species identification or descrip- monitoring, or 60 days prior to the tion of the animal(s) involved; issuance of any subsequent LOA for (vi) Fate of the animal(s); and projects at the EGTTR, whichever (vii) Photographs or video footage of comes first. A final report shall be pre- the animal(s). pared and submitted within 30 days fol- (2) Activities shall not resume until lowing resolution of comments on the NMFS is able to review the cir- draft report from NMFS. This report cumstances of the prohibited take. must contain, at a minimum, the fol- NMFS shall work with Eglin AFB to lowing information: determine what measures are nec- (i) Date and time of each EGTTR essary to minimize the likelihood of mission; further prohibited take and ensure (ii) A complete description of the pre- MMPA compliance. Eglin AFB may not mission and post-mission activities re- resume their activities in the EGTTR lated to mitigating and monitoring the until notified by NMFS. effects of EGTTR missions on marine (3) In the event that Eglin AFB dis- mammal populations; and covers an injured or dead marine mam- (iii) Results of the monitoring pro- mal, and the lead observer determines gram, including numbers by species/ that the cause of the injury or death is stock of any marine mammals noted unknown and the death is relatively re- injured or killed as a result of the cent (e.g., in less than a moderate state EGTTR mission and number of marine of decomposition), Eglin AFB shall im- mammals (by species if possible) that mediately report the incident to the may have been harassed due to pres- Office of Protected Resources, NMFS, ence within the zone of influence. and the Southeast Regional Office, (2) The draft report shall be subject NMFS. The report must include the to review and comment by NMFS. Any same information identified in para- recommendations made by NMFS must graph (p)(1) of this section. Activities be addressed in the final report prior to may continue while NMFS reviews the acceptance by NMFS. The draft report circumstances of the incident. NMFS

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shall work with Eglin AFB to deter- (1) Permissible methods of incidental mine whether additional mitigation taking; measures or modifications to the ac- (2) Number of marine mammals, by tivities are appropriate. species and age class, authorized to be (4) In the event that Eglin AFB dis- taken; covers an injured or dead marine mam- (3) Means of effecting the least prac- mal, and the lead observer determines ticable adverse impact (i.e., mitigation) that the injury or death is not associ- on the species of marine mammals au- ated with or related to the activities thorized for taking, on its habitat, and authorized in the LOA (e.g., previously on the availability of the species for wounded animal, carcass with mod- subsistence uses; and erate to advanced decomposition, scav- (4) Requirements for monitoring and enger damage), Eglin AFB shall report reporting. the incident to the Office of Protected (f) Issuance of an LOA shall be based Resources, NMFS, and the Southeast on a determination that the level of Regional Office, NMFS, within 24 hours taking shall be consistent with the of the discovery. Eglin AFB shall pro- findings made for the total taking al- vide photographs or video footage or lowable under these regulations. other documentation of the stranded animal sighting to NMFS. (g) Notice of issuance or denial of an (5) Additional Conditions: LOA shall be published in the FEDERAL (i) The Holder of the LOA must in- REGISTER within 30 days of a deter- form the Director, Office of Protected mination. Resources, NMFS, (301–427–8401) or des- § 218.67 Renewals and modifications of ignee prior to the initiation of any Letters of Authorization. changes to the monitoring plan for a specified mission activity. (a) An LOA issued under § 216.106 of (ii) A copy of the LOA must be in the this chapter and § 218.66 for the activity possession of the safety officer on duty identified in § 218.60(a) shall be renewed each day that EGTTR missions are or modified upon request by the appli- conducted. cant, provided that: (iii) The LOA may be modified, sus- (1) The specified activity and mitiga- pended or withdrawn if the holder fails tion, monitoring, and reporting meas- to abide by the conditions prescribed ures, as well as the anticipated im- herein, or if NMFS determines the au- pacts, are the same as those described thorized taking is having more than a and analyzed for these regulations (ex- negligible impact on the species or cluding changes made pursuant to the stock of affected marine mammals. adaptive management provision in paragraph (c)(1) of this section); and § 218.66 Letters of Authorization. (2) NMFS determines that the miti- (a) To incidentally take marine gation, monitoring, and reporting mammals pursuant to these regula- measures required by the previous LOA tions, Eglin AFB must apply for and under these regulations were imple- obtain an LOA. mented. (b) An LOA, unless suspended or re- (b) For an LOA modification or re- voked, may be effective for a period of newal request by the applicant that in- time not to exceed the expiration date cludes changes to the activity or the of these regulations. mitigation, monitoring, or reporting (c) If an LOA expires prior to the ex- (excluding changes made pursuant to piration date of these regulations, the adaptive management provision in Eglin AFB must apply for and obtain a paragraph (c)(1) of this section) that do renewal of the LOA. not change the findings made for the (d) In the event of projected changes regulations or result in no more than a to the activity or to mitigation and minor change in the total estimated monitoring measures required by an number of authorized takes (or dis- LOA, Eglin AFB must apply for and ob- tribution by species or years), NMFS tain a modification of the LOA as de- may publish a notice of proposed LOA scribed in § 218.67. in the FEDERAL REGISTER, including (e) The LOA shall set forth: the associated analysis illustrating the

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change, and solicit public comment be- EFFECTIVE DATE NOTE: At 85 FR 41893, July fore issuing the LOA. 10, 2020, subpart H was revised, effective from (c) An LOA issued under § 216.106 of July 10, 2020, to Dec. 20, 2025. this chapter and § 218.66 for the activity identified in § 218.60(a) may be modified § 218.70 Specified activity and geographical region. by NMFS under the following circumstances: (a) Regulations in this subpart apply (1) Adaptive Management—NMFS only to the U.S. Navy (Navy) for the may modify (including augment) the taking of marine mammals that occurs existing mitigation, monitoring, or re- in the area described in paragraph (b) porting measures (after consulting of this section and that occurs inci- with Eglin AFB regarding the practica- dental to the activities listed in para- bility of the modifications) if doing so graph (c) of this section. creates a reasonable likelihood of more (b) The taking of marine mammals effectively accomplishing the goals of by the Navy under this subpart may be the mitigation and monitoring set authorized in Letters of Authorization forth in the preamble for these regula- (LOAs) only if it occurs within the Ha- tions; waii-Southern California Training and (2) Possible sources of data that Testing (HSTT) Study Area, which in- could contribute to the decision to cludes established operating and warn- modify the mitigation, monitoring, or ing areas across the north-central Pa- reporting measures in an LOA are: cific Ocean, from the mean high tide (i) Results from Eglin AFB’s annual line in Southern California west to Ha- monitoring reports; waii and the International Date Line. (ii) Results from other marine mam- The Study Area includes the at-sea mal and sound research or studies; or areas of three existing range com- (iii) Any information that reveals plexes, the Hawaii Range Complex marine mammals may have been taken (HRC), the Southern California Range in a manner, extent or number not au- Complex (SOCAL), and the Silver thorized by these regulations or subse- Strand Training Complex, and overlaps quent LOAs. a portion of the Point Mugu Sea Range (3) If, through adaptive management, (PMSR). Also included in the Study the modifications to the mitigation, Area are Navy pierside locations in Ha- monitoring, or reporting measures are waii and Southern California, Pearl substantial, NMFS will publish a no- Harbor, San Diego Bay, and the transit tice of proposed LOA in the FEDERAL corridor on the high seas where sonar REGISTER and solicit public comment. training and testing may occur. (4) Emergencies—If NMFS deter- (c) The taking of marine mammals mines that an emergency exists that by the Navy is only authorized if it oc- poses a significant risk to the well- curs incidental to the Navy conducting being of the species or stocks of marine training and testing activities, includ- mammals specified under LOAs issued ing: pursuant to § 216.106 of this chapter and § 218.60, an LOA may be modified with- (1) Training. (i) Amphibious warfare; out prior notice or opportunity for pub- (ii) Anti-submarine warfare; lic comment. Notice would be pub- (iii) Electronic warfare; lished in the FEDERAL REGISTER within (iv) Expeditionary warfare; 30 days of the action. (v) Mine warfare; (vi) Surface warfare; and §§ 218.68–218.69 [Reserved] (vii) Pile driving. (2) Testing. (i) Naval Air Systems Subpart H—Taking and Importing Command Testing Activities; Marine Mammals; U.S. Navy’s (ii) Naval Sea Systems Command Hawaii-Southern California Testing Activities; Training and Testing (HSTT) (iii) Office of Naval Research Testing Activities; and SOURCE: 85 FR 41893, July 10, 2020,unless (iv) Naval Information Warfare Sys- otherwise noted. tems Command.

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§ 218.71 Effective dates. by Level A harassment and Level B harassment associated with the use of Regulations in this subpart are effec- active sonar and other acoustic sources tive from July 10, 2020, through Decem- and explosives as well as serious injury ber 20, 2025. or mortality associated with vessel strikes and explosives, provided the ac- § 218.72 Permissible methods of tak- tivity is in compliance with all terms, ing. conditions, and requirements of these (a) Under LOAs issued pursuant to regulations in this subpart and the ap- §§ 216.106 of this chapter and 218.76, the plicable LOAs. Holder of the LOAs (hereinafter (b) The incidental take of marine ‘‘Navy’’) may incidentally, but not in- mammals by the activities listed in tentionally, take marine mammals § 218.70(c) is limited to the following within the area described in § 218.70(b) species:

TABLE 1 TO § 218.72

Species Stock

Blue whale ...... Central North Pacific. Blue whale ...... Eastern North Pacific. Bryde’s whale ...... Eastern Tropical Pacific. Bryde’s whale ...... Hawaii. Fin whale ...... CA/OR/WA. Fin whale ...... Hawaiian. Humpback whale ...... CA/OR/WA. Humpback whale ...... Central North Pacific. Minke whale ...... CA/OR/WA. Minke whale ...... Hawaii. Sei whale ...... Eastern North Pacific. Sei whale ...... Hawaii. Gray whale ...... Eastern North Pacific. Gray whale ...... Western North Pacific. Sperm whale ...... CA/OR/WA. Sperm whale ...... Hawaii. Dwarf sperm whale ...... Hawaii. Pygmy sperm whale ...... Hawaii. Kogia whales ...... CA/OR/WA. Baird’s beaked whale ...... CA/OR/WA. Blainville’s beaked whale ...... Hawaii. Cuvier’s beaked whale ...... CA/OR/WA. Cuvier’s beaked whale ...... Hawaii. Longman’s beaked whale ...... Hawaii. Mesoplodon spp...... CA/OR/WA. Bottlenose dolphin ...... California Coastal. Bottlenose dolphin ...... CA/OR/WA Offshore. Bottlenose dolphin ...... Hawaii Pelagic. Bottlenose dolphin ...... Kauai & Niihau. Bottlenose dolphin ...... Oahu. Bottlenose dolphin ...... 4-Island. Bottlenose dolphin ...... Hawaii. False killer whale ...... Hawaii Pelagic. False killer whale ...... Main Hawaiian Islands Insular. False killer whale ...... Northwestern Hawaiian Islands. Fraser’s dolphin ...... Hawaii. Killer whale ...... Eastern North Pacific (ENP) Offshore. Killer whale ...... ENP Transient/West Coast Transient. Killer whale ...... Hawaii. Long-beaked common dolphin ...... California. Melon-headed whale ...... Hawaiian Islands. Melon-headed whale ...... Kohala Resident. Northern right whale dolphin ...... CA/OR/WA. Pacific white-sided dolphin ...... CA/OR/WA. Pantropical spotted dolphin ...... Hawaii Island. Pantropical spotted dolphin ...... Hawaii Pelagic. Pantropical spotted dolphin ...... Oahu. Pantropical spotted dolphin ...... 4-Island. Pygmy killer whale ...... Hawaii. Pygmy killer whale ...... Tropical. Risso’s dolphin ...... CA/OR/WA. Risso’s dolphin ...... Hawaii. Rough-toothed dolphin ...... Hawaii.

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TABLE 1 TO § 218.72—Continued

Species Stock

Short-beaked common dolphin ...... CA/OR/WA. Short-finned pilot whale ...... CA/OR/WA. Short-finned pilot whale ...... Hawaii. Spinner dolphin ...... Hawaii Island. Spinner dolphin ...... Hawaii Pelagic. Spinner dolphin ...... Kauai & Niihau. Spinner dolphin ...... Oahu & 4-Island. Striped dolphin ...... CA/OR/WA. Striped dolphin ...... Hawaii. Dall’s porpoise ...... CA/OR/WA. California sea lion ...... U.S. Guadalupe fur seal ...... Mexico. Northern fur seal ...... California. Harbor seal ...... California. Hawaiian monk seal ...... Hawaii. Northern elephant seal ...... California. Note to Table 1: CA/OR/WA = California/Oregon/Washington.

§ 218.73 Prohibitions. firing noise), explosive stressors (i.e., Notwithstanding incidental takings sonobuoys, torpedoes, medium-caliber contemplated in § 218.72(a) and author- and large-caliber projectiles, missiles ized by LOAs issued under §§ 216.106 of and rockets, bombs, sinking exercises, this chapter and 218.76, no person in mines, anti-swimmer grenades, and connection with the activities listed in mat weave and obstacle loading), and § 218.70(c) may: physical disturbance and strike (a) Violate, or fail to comply with, stressors (i.e., vessel movement; towed the terms, conditions, and require- in-water devices; small-, medium-, and ments of this subpart or an LOA issued large-caliber non-explosive practice under §§ 216.106 of this chapter and munitions; non-explosive missiles and 218.76; rockets; and non-explosive bombs and (b) Take any marine mammal not mine shapes). specified in § 218.72(b); (1) Environmental awareness and edu- (c) Take any marine mammal speci- cation. Appropriate Navy personnel (in- fied in § 218.72(b) in any manner other cluding civilian personnel) involved in than as specified in the LOAs; or mitigation, monitoring, and training (d) Take a marine mammal specified or testing activity reporting under the in § 218.72(b) if NMFS determines such specified activities will complete one taking results in more than a neg- or more modules of the U.S. Navy ligible impact on the species or stocks Afloat Environmental Compliance of such marine mammal. Training Series, as identified in their § 218.74 Mitigation requirements. career path training plan. Modules include: Introduction to the U.S. Navy When conducting the activities iden- Afloat Environmental Compliance tified in § 218.70(c), the mitigation measures contained in any LOAs issued Training Series, Marine Species Aware- under §§ 216.106 of this chapter and ness Training; U.S. Navy Protective 218.76 must be implemented. These Measures Assessment Protocol; and mitigation measures include, but are U.S. Navy Sonar Positional Reporting not limited to: System and Marine Mammal Incident (a) Procedural mitigation. Procedural Reporting. mitigation is mitigation that the Navy (2) Active sonar. Active sonar includes must implement whenever and wher- low-frequency active sonar, mid-fre- ever an applicable training or testing quency active sonar, and high-fre- activity takes place within the HSTT quency active sonar. For vessel-based Study Area for each applicable activity activities, mitigation applies only to category or stressor category and in- sources that are positively controlled cludes acoustic stressors (i.e., active and deployed from manned surface ves- sonar, air guns, pile driving, weapons sels (e.g., sonar sources towed from

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manned surface platforms). For air- transmission by 6 dB if marine mam- craft-based activities, mitigation ap- mals are observed within 1,000 yd of the plies only to sources that are posi- sonar source; power down by an addi- tively controlled and deployed from tional 4 dB (for a total of 10 dB total) manned aircraft that do not operate at if marine mammals are observed with- high altitudes (e.g., rotary-wing air- in 500 yd of the sonar source; and cease craft). Mitigation does not apply to ac- transmission if marine mammals are tive sonar sources deployed from un- observed within 200 yd of the sonar manned aircraft or aircraft operating source. at high altitudes (e.g., maritime patrol (D) During the activity for low-fre- aircraft). quency active sonar below 200 dB, mid- (i) Number of Lookouts and observation frequency active sonar sources that are platform—(A) Hull-mounted sources. One not hull mounted, and high-frequency Lookout for platforms with space or active sonar, Navy personnel must ob- manning restrictions while underway serve the mitigation zone for marine (at the forward part of a small boat or mammals and cease active sonar trans- ship) and platforms using active sonar mission if marine mammals are ob- while moored or at anchor (including served within 200 yd of the sonar pierside); and two Lookouts for plat- source. forms without space or manning re- (E) Commencement/recommencement strictions while underway (at the for- conditions after a marine mammal ward part of the ship). sighting before or during the activity. (B) Sources that are not hull-mounted Navy personnel must allow a sighted sources. One Lookout on the ship or air- marine mammal to leave the mitiga- craft conducting the activity. tion zone prior to the initial start of (ii) Mitigation zone and requirements. the activity (by delaying the start) or (A) During the activity, at 1,000 yards during the activity (by not recom- (yd) Navy personnel must power down 6 mencing or powering up active sonar decibels (dB), at 500 yd Navy personnel transmission) until one of the fol- must power down an additional 4 dB lowing conditions has been met: The (for a total of 10 dB), and at 200 yd animal is observed exiting the mitiga- Navy personnel must shut down for tion zone; the animal is thought to low-frequency active sonar ≥200 dB and have exited the mitigation zone based hull-mounted mid-frequency active on a determination of its course, speed, sonar; or at 200 yd Navy personnel and movement relative to the sonar must shut down for low-frequency ac- source; the mitigation zone has been tive sonar <200 dB, mid-frequency ac- clear from any additional sightings for tive sonar sources that are not hull- 10 minutes (min) for aircraft-deployed mounted, and high-frequency active sonar sources or 30 min for vessel-de- sonar. ployed sonar sources; for mobile activi- (B) Prior to the start of the activity ties, the active sonar source has (e.g., when maneuvering on station), transited a distance equal to double Navy personnel must observe the miti- that of the mitigation zone size beyond gation zone for floating vegetation; if the location of the last sighting; or for floating vegetation is observed, Navy activities using hull-mounted sonar personnel must relocate or delay the where a dolphin(s) is observed in the start of active sonar transmission until mitigation zone, the Lookout con- the mitigation zone is clear. Navy per- cludes that the dolphin(s) is delib- sonnel must also observe the mitiga- erately closing in on the ship to ride tion zone for marine mammals; if ma- the ship’s bow wave, and is therefore rine mammals are observed, Navy per- out of the main transmission axis of sonnel must relocate or delay the start the sonar (and there are no other ma- of active sonar transmission. rine mammal sightings within the (C) During the activity for low-fre- mitigation zone). quency active sonar at or above 200 dB (3) Air guns—(i) Number of Lookouts and hull-mounted mid-frequency active and observation platform. One Lookout sonar, Navy personnel must observe positioned on a ship or pierside. the mitigation zone for marine mam- (ii) Mitigation zone and requirements. mals and power down active sonar 150 yd around the air gun.

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(A) Prior to the initial start of the start of pile driving or vibratory pile activity (e.g., when maneuvering on extraction. station), Navy personnel must observe (B) During the activity, Navy per- the mitigation zone for floating vege- sonnel must observe the mitigation tation; if floating vegetation is ob- zone for marine mammals; if marine served, Navy personnel must relocate mammals are observed, Navy personnel or delay the start until the mitigation must cease impact pile driving or vi- zone is clear. Navy personnel must also bratory pile extraction. observe the mitigation zone for marine (C) Commencement/recommencement mammals; if marine mammals are ob- conditions after a marine mammal served, Navy personnel must relocate sighting before or during the activity. or delay the start of air gun use. The Navy personnel must allow a (B) During the activity, Navy per- sighted marine mammal to leave the sonnel must observe the mitigation mitigation zone prior to the initial zone for marine mammals; if marine start of the activity (by delaying the mammals are observed, Navy personnel start) or during the activity (by not re- must cease air gun use. commencing pile driving or pile extrac- (C) Commencement/recommencement tion) until one of the following condi- conditions after a marine mammal tions has been met: The animal is ob- sighting before or during the activity. served exiting the mitigation zone; the Navy personnel must allow a sighted animal is thought to have exited the marine mammal to leave the mitiga- mitigation zone based on a determination zone prior to the initial start of tion of its course, speed, and movement the activity (by delaying the start) or relative to the pile driving location; or during the activity (by not recom- the mitigation zone has been clear mencing air gun use) until one of the from any additional sightings for 30 following conditions has been met: The min. (5) Weapons firing noise. Weapons fir- animal is observed exiting the mitiga- ing noise associated with large-caliber tion zone; the animal is thought to gunnery activities. have exited the mitigation zone based (i) Number of Lookouts and observation on a determination of its course, speed, platform. One Lookout must be posi- and movement relative to the air gun; tioned on the ship conducting the fir- the mitigation zone has been clear ing. Depending on the activity, the from any additional sightings for 30 Lookout could be the same as the one min; or for mobile activities, the air provided for under ‘‘Explosive medium- gun has transited a distance equal to caliber and large-caliber projectiles’’ or double that of the mitigation zone size under ‘‘Small-, medium-, and large-cal- beyond the location of the last sight- iber non-explosive practice munitions’’ ing. in paragraphs (a)(8)(i) and (a)(18)(i) of (4) Pile driving. Pile driving and pile this section. extraction sound during Elevated (ii) Mitigation zone and requirements. Causeway System training. Thirty degrees on either side of the fir- (i) Number of Lookouts and observation ing line out to 70 yd from the muzzle of platform. One Lookout must be posi- the weapon being fired. tioned on the shore, the elevated cause- (A) Prior to the start of the activity, way, or a small boat. Navy personnel must observe the miti- (ii) Mitigation zone and requirements. gation zone for floating vegetation; if 100 yd around the pile driver. floating vegetation is observed, Navy (A) Prior to the initial start of the personnel must relocate or delay the activity (for 30 min), Navy personnel start of weapons firing until the miti- must observe the mitigation zone for gation zone is clear. Navy personnel floating vegetation; if floating vegeta- must also observe the mitigation zone tion is observed, Navy personnel must for marine mammals; if marine mam- delay the start until the mitigation mals are observed, Navy personnel zone is clear. Navy personnel also must must relocate or delay the start of observe the mitigation zone for marine weapons firing. mammals; if marine mammals are ob- (B) During the activity, Navy per- served, Navy personnel must delay the sonnel must observe the mitigation

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zone for marine mammals; if marine (B) During the activity, Navy per- mammals are observed, Navy personnel sonnel must observe the mitigation must cease weapons firing. zone for marine mammals; if marine (C) Commencement/recommencement mammals are observed, Navy personnel conditions after a marine mammal must cease sonobuoy or source/receiver sighting before or during the activity. pair detonations. Navy personnel must allow a sighted (C) Commencement/recommencement marine mammal to leave the mitiga- conditions after a marine mammal tion zone prior to the initial start of sighting before or during the activity. the activity (by delaying the start) or Navy personnel must allow a sighted during the activity (by not recom- marine mammal to leave the mitiga- mencing weapons firing) until one of tion zone prior to the initial start of the following conditions has been met: the activity (by delaying the start) or The animal is observed exiting the during the activity (by not recom- mitigation zone; the animal is thought mencing detonations) until one of the to have exited the mitigation zone following conditions has been met: The based on a determination of its course, animal is observed exiting the mitiga- speed, and movement relative to the tion zone; the animal is thought to firing ship; the mitigation zone has have exited the mitigation zone based been clear from any additional on a determination of its course, speed, sightings for 30 min; or for mobile ac- and movement relative to the sono- tivities, the firing ship has transited a buoy; or the mitigation zone has been distance equal to double that of the clear from any additional sightings for mitigation zone size beyond the loca- 10 min when the activity involves air- tion of the last sighting. craft that have fuel constraints (e.g., helicopter), or 30 min when the activity (6) Explosive sonobuoys—(i) Number of involves aircraft that are not typically Lookouts and observation platform. One fuel constrained. Lookout must be positioned in an air- (D) After completion of the activity craft or on a small boat. If additional (e.g., prior to maneuvering off station), platforms are participating in the ac- when practical (e.g., when platforms tivity, Navy personnel positioned in are not constrained by fuel restrictions those assets ( safety observers, e.g., or mission-essential follow-on commit- evaluators) must support observing the ments), Navy personnel must observe mitigation zone for applicable biologi- for marine mammals in the vicinity of cal resources while performing their where detonations occurred; if any in- regular duties. jured or dead marine mammals are ob- (ii) Mitigation zone and requirements. served, Navy personnel must follow es- 600 yd around an explosive sonobuoy. tablished incident reporting proce- (A) Prior to the initial start of the dures. If additional platforms are sup- activity (e.g., during deployment of a porting this activity (e.g., providing sonobuoy field, which typically lasts range clearance), these Navy assets 20–30 min), Navy personnel must ob- must assist in the visual observation of serve the mitigation zone for floating the area where detonations occurred. vegetation; if floating vegetation is ob- (7) Explosive torpedoes—(i) Number of served, Navy personnel must relocate Lookouts and observation platform. One or delay the start of sonobuoy or Lookout positioned in an aircraft. If source/receiver pair detonations until additional platforms are participating the mitigation zone is clear. Navy per- in the activity, Navy personnel posi- sonnel must conduct passive acoustic tioned in those assets (e.g., safety ob- monitoring for marine mammals and servers, evaluators) must support ob- use information from detections to as- serving the mitigation zone for appli- sist visual observations. Navy per- cable biological resources while personnel also must visually observe the forming their regular duties. mitigation zone for marine mammals; (ii) Mitigation zone and requirements. if marine mammals are observed, Navy 2,100 yd around the intended impact lo- personnel must relocate or delay the cation. start of sonobuoy or source/receiver (A) Prior to the initial start of the pair detonations. activity (e.g., during deployment of the

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target), Navy personnel must observe must assist in the visual observation of the mitigation zone for floating vege- the area where detonations occurred. tation and jellyfish aggregations; if (8) Explosive medium-caliber and large- floating vegetation or jellyfish aggre- caliber projectiles. Gunnery activities gations are observed, Navy personnel using explosive medium-caliber and must relocate or delay the start of fir- large-caliber projectiles. Mitigation ap- ing until the mitigation zone is clear. plies to activities using a surface tar- Navy personnel must conduct passive get. acoustic monitoring for marine mam- (i) Number of Lookouts and observation mals and use the information from de- platform. One Lookout must be on the tections to assist visual observations. vessel or aircraft conducting the activ- Navy personnel also must visually ob- ity. For activities using explosive serve the mitigation zone for marine large-caliber projectiles, depending on mammals; if marine mammals are ob- the activity, the Lookout could be the served, Navy personnel must relocate same as the one described in ‘‘Weapons or delay the start of firing. firing noise’’ in paragraph (a)(5)(i) of (B) During the activity, Navy per- this section. If additional platforms are sonnel must observe for marine mam- participating in the activity, Navy per- mals and jellyfish aggregations; if ma- sonnel positioned in those assets (e.g., rine mammals or jellyfish aggregations safety observers, evaluators) must sup- are observed, Navy personnel must port observing the mitigation zone for cease firing. applicable biological resources while performing their regular duties. (C) Commencement/recommencement (ii) Mitigation zone and requirements. conditions after a marine mammal (A) 200 yd around the intended impact sighting before or during the activity. location for air-to-surface activities Navy personnel must allow a sighted using explosive medium-caliber projec- marine mammal to leave the mitiga- tiles. tion zone prior to the initial start of (B) 600 yd around the intended im- the activity (by delaying the start) or pact location for surface-to-surface ac- during the activity (by not recom- tivities using explosive medium-caliber mencing firing) until one of the fol- projectiles. lowing conditions has been met: The (C) 1,000 yd around the intended im- animal is observed exiting the mitiga- pact location for surface-to-surface action zone; the animal is thought to tivities using explosive large-caliber have exited the mitigation zone based projectiles. on a determination of its course, speed, (D) Prior to the start of the activity and movement relative to the intended (e.g., when maneuvering on station), impact location; or the mitigation zone Navy personnel must observe the miti- has been clear from any additional gation zone for floating vegetation; if sightings for 10 min when the activity floating vegetation is observed, Navy involves aircraft that have fuel con- personnel must relocate or delay the straints, or 30 min when the activity start of firing until the mitigation zone involves aircraft that are not typically is clear. Navy personnel also must ob- fuel constrained. serve the mitigation zone for marine (D) After completion of the activity mammals; if marine mammals are ob- (e.g., prior to maneuvering off station), served, Navy personnel must relocate Navy personnel must when practical or delay the start of firing. (e.g., when platforms are not con- (E) During the activity, Navy per- strained by fuel restrictions or mis- sonnel must observe for marine mam- sion-essential follow-on commitments), mals; if marine mammals are observed, observe for marine mammals in the vi- Navy personnel must cease firing. cinity of where detonations occurred; if (F) Commencement/recommencement any injured or dead marine mammals conditions after a marine mammal are observed, Navy personnel must fol- sighting before or during the activity. low established incident reporting pro- Navy personnel must allow a sighted cedures. If additional platforms are marine mammal to leave the mitiga- supporting this activity (e.g., providing tion zone prior to the initial start of range clearance), these Navy assets the activity (by delaying the start) or

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during the activity (by not recom- cate or delay the start of firing until mencing firing) until one of the fol- the mitigation zone is clear. Navy per- lowing conditions has been met: The sonnel also must observe the mitiga- animal is observed exiting the mitigation zone for marine mammals; if mation zone; the animal is thought to rine mammals are observed, Navy per- have exited the mitigation zone based sonnel must relocate or delay the start on a determination of its course, speed, of firing. and movement relative to the intended (D) During the activity, Navy per- impact location; the mitigation zone sonnel must observe for marine mam- has been clear from any additional mals; if marine mammals are observed, sightings for 10 min for aircraft-based Navy personnel must cease firing. firing or 30 min for vessel-based firing; (E) Commencement/recommencement or for activities using mobile targets, conditions after a marine mammal the intended impact location has sighting before or during the activity. transited a distance equal to double that of the mitigation zone size beyond Navy personnel must allow a sighted the location of the last sighting. marine mammal to leave the mitiga- (G) After completion of the activity tion zone prior to the initial start of (e.g., prior to maneuvering off station), the activity (by delaying the start) or Navy personnel must, when practical during the activity (by not recom- (e.g., when platforms are not con- mencing firing) until one of the fol- strained by fuel restrictions or mis- lowing conditions has been met: The sion-essential follow-on commitments), animal is observed exiting the mitiga- observe for marine mammals in the vi- tion zone; the animal is thought to cinity of where detonations occurred; if have exited the mitigation zone based any injured or dead marine mammals on a determination of its course, speed, are observed, Navy personnel must fol- and movement relative to the intended low established incident reporting pro- impact location; or the mitigation zone cedures. If additional platforms are has been clear from any additional supporting this activity (e.g., providing sightings for 10 min when the activity range clearance), these Navy assets involves aircraft that have fuel con- must assist in the visual observation of straints, or 30 min when the activity the area where detonations occurred. involves aircraft that are not typically (9) Explosive missiles and rockets. Air- fuel constrained. craft-deployed explosive missiles and (F) After completion of the activity rockets. Mitigation applies to activi- (e.g., prior to maneuvering off station), ties using a surface target. Navy personnel must, when practical (i) Number of Lookouts and observation (e.g., when platforms are not con- platform. One Lookout must be posi- strained by fuel restrictions or mis- tioned in an aircraft. If additional plat- sion-essential follow-on commitments), forms are participating in the activity, observe for marine mammals in the vi- Navy personnel positioned in those as- cinity of where detonations occurred; if sets (e.g., safety observers, evaluators) any injured or dead marine mammals must support observing the mitigation zone for applicable biological resources are observed, Navy personnel must fol- while performing their regular duties. low established incident reporting pro- (ii) Mitigation zone and requirements. cedures. If additional platforms are (A) 900 yd around the intended impact supporting this activity (e.g., providing location for missiles or rockets with range clearance), these Navy assets 0.6–20 lb net explosive weight. will assist in the visual observation of (B) 2,000 yd around the intended im- the area where detonations occurred. pact location for missiles with 21–500 lb (10) Explosive bombs—(i) Number of net explosive weight. Lookouts and observation platform. One (C) Prior to the initial start of the Lookout must be positioned in an air- activity (e.g., during a fly-over of the craft conducting the activity. If addi- mitigation zone), Navy personnel must tional platforms are participating in observe the mitigation zone for float- the activity, Navy personnel positioned ing vegetation; if floating vegetation is in those assets (e.g., safety observers, observed, Navy personnel must relo- evaluators) must support observing the

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mitigation zone for applicable biologi- supporting this activity (e.g., providing cal resources while performing their range clearance), these Navy assets regular duties. must assist in the visual observation of (ii) Mitigation zone and requirements. the area where detonations occurred. 2,500 yd around the intended target. (11) Sinking exercises—(i) Number of (A) Prior to the initial start of the Lookouts and observation platform. Two activity (e.g., when arriving on sta- Lookouts (one must be positioned in an tion), Navy personnel must observe the aircraft and one must be positioned on mitigation zone for floating vegeta- a vessel). If additional platforms are tion; if floating vegetation is observed, participating in the activity, Navy per- Navy personnel must relocate or delay sonnel positioned in those assets (e.g., the start of bomb deployment until the safety observers, evaluators) must sup- mitigation zone is clear. Navy per- port observing the mitigation zone for sonnel also must observe the mitiga- applicable biological resources while tion zone for marine mammals; if ma- performing their regular duties. rine mammals are observed, Navy per- (ii) Mitigation zone and requirements. sonnel must relocate or delay the start 2.5 nautical miles (nmi) around the tar- of bomb deployment. get ship hulk. (B) During the activity (e.g., during (A) Prior to the initial start of the target approach), Navy personnel must activity (90 min prior to the first fir- observe the mitigation zone for marine ing), Navy personnel must conduct aer- mammals; if marine mammals are ob- ial observations of the mitigation zone served, Navy personnel must cease for floating vegetation and jellyfish ag- bomb deployment. gregations; if floating vegetation or (C) Commencement/recommencement jellyfish aggregations are observed, conditions after a marine mammal Navy personnel must delay the start of sighting before or during the activity. firing until the mitigation zone is Navy personnel must allow a sighted clear. Navy personnel also must con- marine mammal to leave the mitiga- duct aerial observations of the mitigation zone prior to the initial start of tion zone for marine mammals; if ma- the activity (by delaying the start) or rine mammals are observed, Navy per- during the activity (by not recom- sonnel must delay the start of firing. mencing bomb deployment) until one (B) During the activity, Navy per- of the following conditions has been sonnel must conduct passive acoustic met: The animal is observed exiting monitoring for marine mammals and the mitigation zone; the animal is use the information from detections to thought to have exited the mitigation assist visual observations. Navy per- zone based on a determination of its sonnel must visually observe the miti- course, speed, and movement relative gation zone for marine mammals from to the intended target; the mitigation the vessel; if marine mammals are ob- zone has been clear from any addi- served, Navy personnel must cease fir- tional sightings for 10 min; or for ac- ing. Immediately after any planned or tivities using mobile targets, the in- unplanned breaks in weapons firing of tended target has transited a distance longer than two hours, Navy personnel equal to double that of the mitigation must observe the mitigation zone for zone size beyond the location of the marine mammals from the aircraft and last sighting. vessel; if marine mammals are ob- (D) After completion of the activity served, Navy personnel must delay re- (e.g., prior to maneuvering off station), commencement of firing. Navy personnel must, when practical (C) Commencement/recommencement (e.g., when platforms are not con- conditions after a marine mammal strained by fuel restrictions or mis- sighting before or during the activity. sion-essential follow-on commitments), Navy personnel must allow a sighted observe for marine mammals in the vi- marine mammal to leave the mitiga- cinity of where detonations occurred; if tion zone prior to the initial start of any injured or dead marine mammals the activity (by delaying the start) or are observed, Navy personnel must fol- during the activity (by not recom- low established incident reporting pro- mencing firing) until one of the fol- cedures. If additional platforms are lowing conditions has been met: The

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animal is observed exiting the mitiga- Navy personnel also must observe the tion zone; the animal is thought to mitigation zone for marine mammals; have exited the mitigation zone based if marine mammals are observed, Navy on a determination of its course, speed, personnel must relocate or delay the and movement relative to the target start of detonations. ship hulk; or the mitigation zone has (D) During the activity, Navy per- been clear from any additional sonnel must observe the mitigation sightings for 30 min. zone for marine mammals, concentra- (D) After completion of the activity tions of seabirds, and individual for- (for two hours after sinking the vessel aging seabirds; if marine mammals, or until sunset, whichever comes first), concentrations of seabirds, or indi- Navy personnel must observe for ma- vidual foraging seabirds are observed, rine mammals in the vicinity of where Navy personnel must cease detona- detonations occurred; if any injured or tions. dead marine mammals are observed, (E) Commencement/recommencement Navy personnel must follow established conditions after a marine mammal incident reporting procedures. If addi- sighting before or during the activity tional platforms are supporting this ac- or a sighting of seabird concentrations tivity (e.g., providing range clearance), or individual foraging seabirds during these Navy assets will assist in the vis- the activity. Navy personnel must ual observation of the area where deto- allow a sighted animal to leave the nations occurred. mitigation zone prior to the initial (12) Explosive mine countermeasure and start of the activity (by delaying the neutralization activities—(i) Number of start) or during the activity (by not re- Lookouts and observation platform. (A) commencing detonations) until one of One Lookout must be positioned on a the following conditions has been met: vessel or in an aircraft when imple- The animal is observed exiting the menting the smaller mitigation zone. mitigation zone; the animal is thought (B) Two Lookouts (one must be posi- to have exited the mitigation zone tioned in an aircraft and one must be based on a determination of its course, on a small boat) when implementing speed, and movement relative to deto- the larger mitigation zone. nation site; or the mitigation zone has (C) If additional platforms are par- been clear from any additional ticipating in the activity, Navy per- sightings for 10 min when the activity sonnel positioned in those assets (e.g., involves aircraft that have fuel con- safety observers, evaluators) must sup- straints, or 30 min when the activity port observing the mitigation zone for involves aircraft that are not typically applicable biological resources while fuel constrained. performing their regular duties. (F) After completion of the activity (ii) Mitigation zone and requirements. (typically 10 min when the activity in- (A) 600 yd around the detonation site volves aircraft that have fuel con- for activities using 0.1–5 lb net explo- straints, or 30 min when the activity sive weight. involves aircraft that are not typically (B) 2,100 yd around the detonation fuel constrained), Navy personnel must site for activities using 6–650 lb net ex- observe for marine mammals in the vi- plosive weight (including high explo- cinity of where detonations occurred; if sive target mines). any injured or dead marine mammals (C) Prior to the initial start of the are observed, Navy personnel must fol- activity (e.g., when maneuvering on low established incident reporting pro- station; typically, 10 min when the ac- cedures. If additional platforms are tivity involves aircraft that have fuel supporting this activity (e.g., providing constraints, or 30 min when the activ- range clearance), these Navy assets ity involves aircraft that are not typi- must assist in the visual observation of cally fuel constrained), Navy personnel the area where detonations occurred. must observe the mitigation zone for (13) Explosive mine neutralization ac- floating vegetation; if floating vegeta- tivities involving Navy divers—(i) Number tion is observed, Navy personnel must of Lookouts and observation platform. (A) relocate or delay the start of detona- Two Lookouts (two small boats with tions until the mitigation zone is clear. one Lookout each, or one Lookout

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must be on a small boat and one must ticable depending on mission require- be in a rotary-wing aircraft) when im- ments, safety, and environmental con- plementing the smaller mitigation ditions, Navy personnel must position zone. boats near the mid-point of the mitiga- (B) Four Lookouts (two small boats tion zone radius (but outside of the det- with two Lookouts each), and a pilot or onation plume and human safety zone), member of an aircrew must serve as an must position themselves on opposite additional Lookout if aircraft are used sides of the detonation location (when during the activity, when imple- two boats are used), and must travel in menting the larger mitigation zone. a circular pattern around the detona- (C) All divers placing the charges on tion location with one Lookout observ- mines will support the Lookouts while ing inward toward the detonation site performing their regular duties and and the other observing outward to- will report applicable sightings to their ward the perimeter of the mitigation supporting small boat or Range Safety zone. If used, Navy aircraft must travel Officer. in a circular pattern around the deto- (D) If additional platforms are par- nation location to the maximum ex- ticipating in the activity, Navy per- tent practicable. Navy personnel must sonnel positioned in those assets (e.g., not set time-delay firing devices (0.1–29 safety observers, evaluators) must sup- lb. net explosive weight) to exceed 10 port observing the mitigation zone for min. applicable biological resources while (E) Commencement/recommencement performing their regular duties. conditions after a marine mammal (ii) Mitigation zone and requirements. sighting before or during the activity (A) 500 yd around the detonation site or a sighting of seabird concentrations during activities under positive control using 0.1–20 lb net explosive weight. or individual foraging seabirds during (B) 1,000 yd around the detonation the activity. Navy personnel must site during all activities using time- allow a sighted animal to leave the delay fuses (0.1–29 lb net explosive mitigation zone prior to the initial weight) and during activities under start of the activity (by delaying the positive control using 21–60 lb net ex- start) or during the activity (by not re- plosive weight charges. commencing detonations) until one of (C) Prior to the initial start of the the following conditions has been met: activity (e.g., when maneuvering on The animal is observed exiting the station for activities under positive mitigation zone; the animal is thought control; 30 min for activities using to have exited the mitigation zone time-delay firing devices), Navy per- based on a determination of its course, sonnel must observe the mitigation speed, and movement relative to the zone for floating vegetation; if floating detonation site; or the mitigation zone vegetation is observed, Navy personnel has been clear from any additional must relocate or delay the start of det- sightings for 10 min during activities onations or fuse initiation until the under positive control with aircraft mitigation zone is clear. Navy per- that have fuel constraints, or 30 min sonnel also must observe the mitiga- during activities under positive control tion zone for marine mammals; if ma- with aircraft that are not typically rine mammals are observed, Navy per- fuel constrained and during activities sonnel must relocate or delay the start using time-delay firing devices. of detonations or fuse initiation. (F) After completion of an activity, (D) During the activity, Navy per- the Navy must observe for marine sonnel must observe the mitigation mammals for 30 min. Navy personnel zone for marine mammals, concentra- must observe for marine mammals in tions of seabirds, and individual for- the vicinity of where detonations oc- aging seabirds (in the water and not on curred; if any injured or dead marine shore); if marine mammals, concentra- mammals are observed, Navy personnel tions of seabirds, or individual foraging must follow established incident re- seabirds are observed, Navy personnel porting procedures. If additional plat- must cease detonations or fuse initi- forms are supporting this activity (e.g., ation. To the maximum extent prac- providing range clearance), these Navy

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assets must assist in the visual obser- (D) After completion of the activity vation of the area where detonations (e.g., prior to maneuvering off station), occurred. Navy personnel must, when practical (14) Maritime security operations—anti- (e.g., when platforms are not con- swimmer grenades—(i) Number of Look- strained by fuel restrictions or mis- outs and observation platform. One Look- sion-essential follow-on commitments), out must be positioned on the small observe for marine mammals in the vi- boat conducting the activity. If addi- cinity of where detonations occurred; if tional platforms are participating in any injured or dead marine mammals the activity, Navy personnel positioned are observed, Navy personnel must fol- in those assets (e.g., safety observers, low established incident reporting pro- evaluators) must support observing the cedures. If additional platforms are mitigation zone for applicable biologi- supporting this activity (e.g., providing cal resources while performing their range clearance), these Navy assets regular duties. will assist in the visual observation of (ii) Mitigation zone and requirements. the area where detonations occurred. 200 yd around the intended detonation (15) Underwater demolition multiple location. charge—mat weave and obstacle loading (A) Prior to the initial start of the exercises—(i) Number of Lookouts and ob- activity (e.g., when maneuvering on servation platform. Two Lookouts (one station), Navy personnel must observe must be positioned on a small boat and the mitigation zone for floating vege- one must be positioned on shore from tation; if floating vegetation is ob- an elevated platform). If additional served, Navy personnel must relocate platforms are participating in the ac- or delay the start of detonations until tivity, Navy personnel positioned in the mitigation zone is clear. Navy per- those assets (e.g., safety observers, sonnel also must observe the mitiga- evaluators) must support observing the tion zone for marine mammals; if ma- mitigation zone for applicable biologi- rine mammals are observed, Navy per- cal resources while performing their sonnel must relocate or delay the start regular duties. of detonations. (ii) Mitigation zone and requirements. (B) During the activity, Navy per- 700 yd around the intended detonation sonnel must observe the mitigation location. zone for marine mammals; if marine (A) Prior to the initial start of the mammals are observed, Navy personnel activity, or 30 min prior to the first must cease detonations. detonation, the Lookout positioned on (C) Commencement/recommencement a small boat must observe the mitiga- conditions after a marine mammal tion zone for floating vegetation and sighting before or during the activity. marine mammals; if floating vegeta- Navy personnel must allow a sighted tion or marine mammals are observed, marine mammal to leave the mitiga- Navy personnel must delay the start of tion zone prior to the initial start of detonations until the mitigation zone the activity (by delaying the start) or is clear. For 10 min prior to the first during the activity (by not recom- detonation, the Lookout positioned on mencing detonations) until one of the shore must use binoculars to observe following conditions has been met: The the mitigation zone for marine mam- animal is observed exiting the mitiga- mals; if marine mammals are observed, tion zone; the animal is thought to Navy personnel must delay the start of have exited the mitigation zone based detonations. on a determination of its course, speed, (B) During the activity, Navy per- and movement relative to the intended sonnel must observe the mitigation detonation location; the mitigation zone for marine mammals; if marine zone has been clear from any addi- mammals are observed, Navy personnel tional sightings for 30 min; or the in- must cease detonations. tended detonation location has (C) Commencement/recommencement transited a distance equal to double conditions after a marine mammal that of the mitigation zone size beyond sighting before or during the activity. the location of the last sighting. Navy personnel must allow a sighted

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marine mammal to leave the mitiga- (17) Towed in-water devices. Mitiga- tion zone prior to the initial start of tion applies to devices that are towed the activity (by delaying the start) or from a manned surface platform or during the activity (by not recom- manned aircraft. The mitigation will mencing detonations) until one of the not be applied if the safety of the tow- following conditions has been met: The ing platform or in-water device is animal is observed exiting the mitiga- threatened. tion zone; the animal is thought to (i) Number of Lookouts and observation have exited the mitigation zone based platform. One Lookout must be posi- on a determination of its course, speed, tioned on a manned towing platform. and movement relative to the detona- (ii) Mitigation zone and requirements. tion location; or the mitigation zone 250 yd around marine mammals. has been clear from any additional (iii) During the activity. During the sightings for 10 min (as determined by activity (i.e., when towing an in-water the Navy shore observer). device), Navy personnel must observe (D) After completion of the activity the mitigation zone for marine mam- (for 30 min), the Lookout positioned on mals; if marine mammals are observed, a small boat must observe for marine Navy personnel must maneuver to mammals in the vicinity of where deto- maintain distance. nations occurred; if any injured or dead (18) Small-, medium-, and large-caliber marine mammals are observed, Navy non-explosive practice munitions. Mitiga- personnel must follow established inci- tion applies to activities using a sur- dent reporting procedures. If additional platforms are supporting this activity face target. (e.g., providing range clearance), these (i) Number of Lookouts and observation Navy assets must assist in the visual platform. One Lookout must be posi- observation of the area where detona- tioned on the platform conducting the tions occurred. activity. Depending on the activity, (16) Vessel movement. The mitigation the Lookout could be the same as the will not be applied if: The vessel’s safe- one described for ‘‘Weapons firing ty is threatened; the vessel is re- noise’’ in paragraph (a)(5)(i) of this sec- stricted in its ability to maneuver (e.g., tion. during launching and recovery of air- (ii) Mitigation zone and requirements. craft or landing craft, during towing 200 yd around the intended impact lo- activities, when mooring); the vessel is cation. operated autonomously; or when im- (A) Prior to the start of the activity practicable based on mission require- (e.g., when maneuvering on station), ments (e.g., during Amphibious As- Navy personnel must observe the miti- sault—Battalion Landing exercise). gation zone for floating vegetation; if (i) Number of Lookouts and observation floating vegetation is observed, Navy platform. One Lookout must be on the personnel must relocate or delay the vessel that is underway. start of firing until the mitigation zone (ii) Mitigation zone and requirements. is clear. Navy personnel also must ob- (A) 500 yd around whales. serve the mitigation zone for marine (B) 200 yd around all other marine mammals; if marine mammals are ob- mammals (except bow-riding dolphins served, Navy personnel must relocate and pinnipeds hauled out on man-made or delay the start of firing. navigational structures, port struc- (B) During the activity, Navy per- tures, and vessels). sonnel must observe the mitigation (iii) During the activity. When under- zone for marine mammals; if marine way Navy personnel must observe the mammals are observed, Navy personnel mitigation zone for marine mammals; must cease firing. if marine mammals are observed, Navy (C) Commencement/recommencement personnel must maneuver to maintain conditions after a marine mammal distance. sighting before or during the activity. (iv) Incident reporting procedures. If a Navy personnel must allow a sighted marine mammal vessel strike occurs, marine mammal to leave the mitiga- Navy personnel must follow the estab- tion zone prior to the initial start of lished incident reporting procedures. the activity (by delaying the start) or

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during the activity (by not recom- and movement relative to the intended mencing firing) until one of the fol- impact location; or the mitigation zone lowing conditions has been met: The has been clear from any additional animal is observed exiting the mitiga- sightings for 10 min when the activity tion zone; the animal is thought to involves aircraft that have fuel con- have exited the mitigation zone based straints, or 30 min when the activity on a determination of its course, speed, involves aircraft that are not typically and movement relative to the intended fuel constrained. impact location; the mitigation zone (20) Non-explosive bombs and mine has been clear from any additional shapes. Non-explosive bombs and non- sightings for 10 min for aircraft-based explosive mine shapes during mine lay- firing or 30 min for vessel-based firing; ing activities. or for activities using a mobile target, (i) Number of Lookouts and observation the intended impact location has platform. One Lookout must be posi- transited a distance equal to double tioned in an aircraft. that of the mitigation zone size beyond (ii) Mitigation zone and requirements. the location of the last sighting. 1,000 yd around the intended target. (19) Non-explosive missiles and rockets. (A) Prior to the initial start of the Aircraft-deployed non-explosive mis- activity (e.g., when arriving on sta- siles and rockets. Mitigation applies to tion), Navy personnel must observe the activities using a surface target. mitigation zone for floating vegeta- (i) Number of Lookouts and observation tion; if floating vegetation is observed, platform. One Lookout must be positioned in an aircraft. Navy personnel must relocate or delay (ii) Mitigation zone and requirements. the start of bomb deployment or mine 900 yd around the intended impact lo- laying until the mitigation zone is cation. clear. Navy personnel also must ob- (A) Prior to the initial start of the serve the mitigation zone for marine activity (e.g., during a fly-over of the mammals; if marine mammals are ob- mitigation zone), Navy personnel must served, Navy personnel must relocate observe the mitigation zone for float- or delay the start of bomb deployment ing vegetation; if floating vegetation is or mine laying. observed, Navy personnel must relo- (B) During the activity (e.g., during cate or delay the start of firing until approach of the target or intended the mitigation zone is clear. Navy per- minefield location), Navy personnel sonnel also must observe the mitiga- must observe the mitigation zone for tion zone for marine mammals; if ma- marine mammals and, if marine mam- rine mammals are observed, Navy per- mals are observed, Navy personnel sonnel must relocate or delay the start must cease bomb deployment or mine of firing. laying. (B) During the activity, Navy per- (C) Commencement/recommencement sonnel must observe the mitigation conditions after a marine mammal zone for marine mammals; if marine sighting prior to or during the activity. mammals are observed, Navy personnel Navy personnel must allow a sighted must cease firing. marine mammal to leave the mitiga- (C) Commencement/recommencement tion zone prior to the initial start of conditions after a marine mammal the activity (by delaying the start) or sighting prior to or during the activity. during the activity (by not recom- Navy personnel must allow a sighted mencing bomb deployment or mine marine mammal to leave the mitiga- laying) until one of the following con- tion zone prior to the initial start of ditions has been met: The animal is ob- the activity (by delaying the start) or served exiting the mitigation zone; the during the activity (by not recom- animal is thought to have exited the mencing firing) until one of the fol- mitigation zone based on a determina- lowing conditions has been met: The tion of its course, speed, and movement animal is observed exiting the mitiga- relative to the intended target or mine- tion zone; the animal is thought to field location; the mitigation zone has have exited the mitigation zone based been clear from any additional on a determination of its course, speed, sightings for 10 min; or for activities

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using mobile targets, the intended tar- to commencement of the activity. get has transited a distance equal to Navy personnel must provide NMFS double that of the mitigation zone size with advance notification and include beyond the location of the last sight- the information (e.g., sonar hours or ing. explosives usage) in its annual activity (b) Mitigation areas. In addition to reports submitted to NMFS. procedural mitigation, Navy personnel (C) Humpback Whale Special Reporting must implement mitigation measures Areas (December 15–April 15). Navy per- within mitigation areas to avoid or re- sonnel must report the total hours of duce potential impacts on marine surface ship hull-mounted mid-fre- mammals. quency active sonar used in the special (1) Mitigation areas for marine mam- reporting areas in its annual training mals in the Hawaii Range Complex for and testing activity reports submitted sonar, explosives, and vessel strikes—(i) to NMFS. Mitigation area requirements—(A) Hawaii (D) Humpback Whale Awareness Notifi- Island Mitigation Area (year-round)—(1) cation Message Area (November–April). (1) Except as provided in paragraph Navy personnel must issue a seasonal (b)(1)(i)(A)(2) of this section, Navy per- awareness notification message to sonnel must not conduct more than 300 alert ships and aircraft operating in hours of MF1 surface ship hull-mount- the area to the possible presence of ed mid-frequency active sonar or 20 concentrations of large whales, includ- hours of MF4 dipping sonar annually, ing humpback whales. or use explosives that could potentially (2) To maintain safety of navigation result in takes of marine mammals and to avoid interactions with large during training and testing. whales during transits, Navy personnel (2) Should national security require must instruct vessels to remain vigi- conduct of more than 300 hours of MF1 lant to the presence of large whale spe- surface ship hull-mounted mid-fre- cies (including humpback whales). quency active sonar or 20 hours of MF4 dipping sonar, or use of explosives that (3) Platforms must use the informa- could potentially result in the take of tion from the awareness notification marine mammals during training or message to assist their visual observa- testing, Naval units must obtain per- tion of applicable mitigation zones dur- mission from the appropriate des- ing training and testing activities and ignated Command authority prior to to aid in the implementation of proce- commencement of the activity. Navy dural mitigation. personnel must provide NMFS with ad- (ii) [Reserved] vance notification and include the in- (2) Mitigation areas for marine mam- formation (e.g., sonar hours or explo- mals in the Southern California portion of sives usage) in its annual activity re- the study area for sonar, explosives, and ports submitted to NMFS. vessel strikes—(i) Mitigation area require- (B) 4-Islands Region Mitigation Area ments—(A) San Diego Arc, San Nicolas Is- (November 15–April 15 for active sonar; land, and Santa Monica/Long Beach year-round for explosives)—(1) Except as Mitigation Areas (June 1–October 31). (1) provided in paragraph (b)(1)(i)(B)(2) of Except as provided in paragraph this section, Navy personnel must not (b)(2)(i)(A)(2) of this section, Navy per- use MF1 surface ship hull-mounted sonnel must not conduct more than a mid-frequency active sonar or explo- total of 200 hours of MF1 surface ship sives that could potentially result in hull-mounted mid-frequency active takes of marine mammals during sonar in the combined areas, excluding training and testing. normal maintenance and systems (2) Should national security require checks, during training and testing. use of MF1 surface ship hull-mounted (2) Should national security require mid-frequency active sonar or explo- conduct of more than 200 hours of MF1 sives that could potentially result in surface ship hull-mounted mid-fre- the take of marine mammals during quency active sonar in the combined training or testing, Naval units must areas during training and testing (ex- obtain permission from the appropriate cluding normal maintenance and sys- designated Command authority prior tems checks), Naval units must obtain

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permission from the appropriate des- (7) Except as provided in paragraph ignated Command authority prior to (b)(2)(i)(A)(8) of this section, within the commencement of the activity. Navy Santa Monica/Long Beach Mitigation personnel must provide NMFS with ad- Area, Navy personnel must not use ex- vance notification and include the in- plosives that could potentially result formation (e.g., sonar hours) in its an- in the take of marine mammals during nual activity reports submitted to mine warfare, large-caliber gunnery, NMFS. torpedo, bombing, and missile (includ- (3) Except as provided in paragraph ing 2.75-inch rockets) activities during (b)(2)(i)(A)(4) of this section, within the training and testing. San Diego Arc Mitigation Area, Navy (8) Should national security require personnel must not use explosives that use of explosives that could potentially could potentially result in the take of result in the take of marine mammals marine mammals during large-caliber during mine warfare, large-caliber gun- gunnery, torpedo, bombing, and missile nery, torpedo, bombing, and missile (including 2.75-inch rockets) activities (including 2.75-inch rockets) activities during training and testing. during training or testing in the Santa (4) Should national security require Monica/Long Beach Mitigation Area, use of explosives that could potentially Naval units must obtain permission result in the take of marine mammals from the appropriate designated Com- during large-caliber gunnery, torpedo, mand authority prior to commence- bombing, and missile (including 2.75- ment of the activity. Navy personnel inch rockets) activities during training must provide NMFS with advance noti- or testing within the San Diego Arc fication and include the information Mitigation Area, Naval units must ob- (e.g., explosives usage) in its annual ac- tain permission from the appropriate tivity reports submitted to NMFS. designated Command authority prior (B) Santa Barbara Island Mitigation to commencement of the activity. Area (year-round). (1) Except as pro- Navy personnel must provide NMFS vided in paragraph (b)(2)(i)(B)(2) of this with advance notification and include section, Navy personnel must not use the information (e.g., explosives usage) MF1 surface ship hull-mounted mid- in its annual activity reports sub- frequency active sonar during training mitted to NMFS. or testing, or explosives that could po- (5) Except as provided in paragraph tentially result in the take of marine (b)(2)(i)(A)(6) of this section, within the mammals during medium-caliber or San Nicolas Island Mitigation Area, large-caliber gunnery, torpedo, bomb- Navy personnel must not use explo- ing, and missile (including 2.75-inch sives that could potentially result in rockets) activities during training. the take of marine mammals during (2) Should national security require mine warfare, large-caliber gunnery, use of MF1 surface ship hull-mounted torpedo, bombing, and missile (includ- mid-frequency active sonar during ing 2.75-inch rockets) activities during training or testing, or explosives that training. could potentially result in the take of (6) Should national security require marine mammals during medium-cal- use of explosives that could potentially iber or large-caliber gunnery, torpedo, result in the take of marine mammals bombing, and missile (including 2.75- during mine warfare, large-caliber gun- inch rockets) activities during train- nery, torpedo, bombing, and missile ing, Naval units must obtain permis- (including 2.75-inch rockets) activities sion from the appropriate designated during training in the San Nicolas Is- Command authority prior to com- land Mitigation Area, Naval units must mencement of the activity. Navy per- obtain permission from the appropriate sonnel must provide NMFS with ad- designated Command authority prior vance notification and include the in- to commencement of the activity. formation (e.g., sonar hours or explo- Navy personnel must provide NMFS sives usage) in its annual activity re- with advance notification and include ports submitted to NMFS. the information (e.g., explosives usage) (C) Blue Whale (June–October), Gray in its annual activity reports sub- Whale (November–March), and Fin Whale mitted to NMFS. (November–May) Awareness Notification

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Message Areas. (1) Navy personnel must ing the implementation and results issue a seasonal awareness notification from the previous calendar year. Data message to alert ships and aircraft op- collection methods must be standard- erating in the area to the possible pres- ized across range complexes and study ence of concentrations of large whales, areas to allow for comparison in dif- including blue whales, gray whales, and ferent geographic locations. The report fin whales. must be submitted to the Director, Of- (2) To maintain safety of navigation fice of Protected Resources, NMFS, ei- and to avoid interactions with large ther within three months after the end whales during transits, Navy personnel of the calendar year, or within three must instruct vessels to remain vigi- months after the conclusion of the lant to the presence of large whale spe- monitoring year, to be determined by cies. the Adaptive Management process. (3) Platforms must use the informa- This report will describe progress of tion from the awareness notification knowledge made with respect to inter- messages to assist their visual observa- mediate scientific objectives within tion of applicable mitigation zones dur- the HSTT Study Area associated with ing training and testing activities and the Integrated Comprehensive Moni- to aid in the implementation of proce- toring Program (ICMP). Similar study dural mitigation. questions must be treated together so (ii) [Reserved] that progress on each topic can be summarized across all Navy ranges. The re- § 218.75 Requirements for monitoring port need not include analyses and con- and reporting. tent that does not provide direct as- (a) Unauthorized take. Navy personnel sessment of cumulative progress on the must notify NMFS immediately (or as monitoring plan study questions. As an soon as operational security consider- alternative, the Navy may submit a ations allow) if the specified activity multi-Range Complex annual Moni- identified in § 218.70 is thought to have toring Plan report to fulfill this re- resulted in the mortality or serious in- quirement. Such a report will describe jury of any marine mammals, or in any progress of knowledge made with re- Level A harassment or Level B harass- spect to monitoring study questions ment take of marine mammals not across multiple Navy ranges associated identified in this subpart. with the ICMP. Similar study ques- (b) Monitoring and reporting under the tions must be treated together so that LOAs. The Navy must conduct all mon- progress on each topic can be summa- itoring and reporting required under rized across multiple Navy ranges. The the LOAs, including abiding by the report need not include analyses and HSTT Study Area monitoring program. content that does not provide direct as- Details on program goals, objectives, sessment of cumulative progress on the project selection process, and current monitoring study question. This will projects are available at continue to allow the Navy to provide www.navymarinespeciesmonitoring.us. a cohesive monitoring report covering (c) Notification of injured, live strand- multiple ranges (as per ICMP goals), ed, or dead marine mammals. The Navy rather than entirely separate reports must consult the Notification and Re- for the HSTT, Gulf of Alaska, Mariana porting Plan, which sets out notifica- Islands, and Northwest Study Areas. tion, reporting, and other requirements (e) Annual HSTT Study Area training when dead, injured, or live stranded exercise report and testing activity report. marine mammals are detected. The No- Each year, the Navy must submit two tification and Reporting Plan is avail- preliminary reports (Quick Look Re- able at www.fisheries.noaa.gov/national/ port) detailing the status of authorized marine-mammal-protection/incidentaltake- sound sources within 21 days after the authorizations-military- anniversary of the date of issuance of readinessactivities. each LOA to the Director, Office of (d) Annual HSTT Study Area marine Protected Resources, NMFS. Each species monitoring report. The Navy year, the Navy must submit detailed must submit an annual report of the reports to the Director, Office of Pro- HSTT Study Area monitoring describ- tected Resources, NMFS, within 3

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months after the one-year anniversary (F) Length of time observers main- of the date of issuance of the LOA. The tained visual contact with marine HSTT annual Training Exercise Report mammal. and Testing Activity Report can be (G) Sea state. consolidated with other exercise re- (H) Visibility. ports from other range complexes in (I) Sound source in use at the time of the Pacific Ocean for a single Pacific sighting. Exercise Report, if desired. The annual (J) Indication of whether animal was reports must contain information on less than 200 yd, 200 to 500 yd, 500 to major training exercises (MTEs), Sink- 1,000 yd, 1,000 to 2,000 yd, or greater ing Exercise (SINKEX) events, and a than 2,000 yd from sonar source. summary of all sound sources used, in- (K) Whether operation of sonar sen- cluding within specific mitigation re- sor was delayed, or sonar was powered porting areas as described in paragraph or shut down, and how long the delay. (e)(3) of this section. The analysis in (L) If source in use was hull-mount- the detailed reports must be based on ed, true bearing of animal from the the accumulation of data from the cur- vessel, true direction of vessel’s travel, rent year’s report and data collected and estimation of animal’s motion rel- from previous reports. The detailed re- ative to vessel (opening, closing, par- ports must contain information identi- allel). fied in paragraphs (e)(1) through (7) of (M) Lookouts must report, in plain this section. language and without trying to cat- (1) MTEs. This section of the report egorize in any way, the observed behav- must contain the following informa- ior of the animal(s) (such as animal tion for MTEs conducted in the HSTT closing to bow ride, paralleling course/ Study Area. speed, floating on surface and not (i) Exercise Information for each swimming, etc.) and if any calves were MTE. present. (A) Exercise designator. (iii) An evaluation (based on data (B) Date that exercise began and gathered during all of the MTEs) of the ended. effectiveness of mitigation measures (C) Location. designed to minimize the received level (D) Number and types of active sonar to which marine mammals may be ex- sources used in the exercise. posed. This evaluation must identify (E) Number and types of passive the specific observations that support acoustic sources used in exercise. any conclusions the Navy reaches (F) Number and types of vessels, air- about the effectiveness of the mitiga- craft, and other platforms partici- tion. pating in exercise. (2) SINKEXs. This section of the re- (G) Total hours of all active sonar port must include the following infor- source operation. mation for each SINKEX completed (H) Total hours of each active sonar that year. source bin. (i) Exercise information gathered for (I) Wave height (high, low, and aver- each SINKEX. age) during exercise. (A) Location. (ii) Individual marine mammal sight- (B) Date and time exercise began and ing information for each sighting in ended. each exercise where mitigation was im- (C) Total hours of observation by plemented. Lookouts before, during, and after ex- (A) Date/Time/Location of sighting. ercise. (B) Species (if not possible, indica- (D) Total number and types of explo- tion of whale/dolphin/pinniped). sive source bins detonated. (C) Number of individuals. (E) Number and types of passive (D) Initial Detection Sensor (e.g., acoustic sources used in exercise. sonar, Lookout). (F) Total hours of passive acoustic (E) Indication of specific type of plat- search time. form observation was made from (in- (G) Number and types of vessels, air- cluding, for example, what type of sur- craft, and other platforms, partici- face vessel or testing platform). pating in exercise.

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(H) Wave height in feet (high, low, (4) Humpback Whale Special Reporting and average) during exercise. Area (December 15–April 15). The Navy (I) Narrative description of sensors must report the total hours of oper- and platforms utilized for marine ation of surface ship hull-mounted mammal detection and timeline illus- mid-frequency active sonar used in the trating how marine mammal detection special reporting area. was conducted. (5) HSTT Study Area Mitigation Areas. (ii) Individual marine mammal obser- The Navy must report any use that oc- vation (by Navy Lookouts) information curred as specifically described in for each sighting where mitigation was these areas. Information included in implemented. the classified annual reports may be (A) Date/Time/Location of sighting. used to inform future adaptive manage- (B) Species (if not possible, indicate ment of activities within the HSTT whale, dolphin, or pinniped). Study Area. (C) Number of individuals. (6) Geographic information presen- (D) Initial detection sensor (e.g., tation. The reports must present an an- sonar or Lookout). nual (and seasonal, where practical) de- (E) Length of time observers main- piction of training and testing bin tained visual contact with marine usage (as well as pile driving activities) mammal. geographically across the HSTT Study (F) Sea state. Area. (G) Visibility. (7) Sonar exercise notification. The (H) Whether sighting was before, dur- Navy must submit to NMFS (contact ing, or after detonations/exercise, and as specified in the LOA) an electronic how many minutes before or after. report within fifteen calendar days (I) Distance of marine mammal from after the completion of any MTE indi- actual detonations (or target spot if cating: not yet detonated): Less than 200 yd, (i) Location of the exercise; 200 to 500 yd, 500 to 1,000 yd, 1,000 to (ii) Beginning and end dates of the 2,000 yd, or greater than 2,000 yd. exercise; and (J) Lookouts must report, in plain (iii) Type of exercise. language and without trying to cat- (f) Seven-year close-out comprehensive egorize in any way, the observed behav- training and testing activity report. This ior of the animal(s) (such as animal report must be included as part of the closing to bow ride, paralleling course/ 2025 annual training and testing report. speed, floating on surface and not This report must provide the annual swimming etc.), including speed and di- totals for each sound source bin with a rection and if any calves were present. comparison to the annual allowance (K) The report must indicate whether and the seven-year total for each sound explosive detonations were delayed, source bin with a comparison to the ceased, modified, or not modified due seven-year allowance. Additionally, if to marine mammal presence and for there were any changes to the sound how long. source allowance, this report must in- (L) If observation occurred while ex- clude a discussion of why the change plosives were detonating in the water, was made and include the analysis to indicate munition type in use at time support how the change did or did not of marine mammal detection. affect the analysis in the 2018 HSTT (3) Summary of sources used. This sec- FEIS/OEIS and MMPA final rule. The tion of the report must include the fol- draft report must be submitted within lowing information summarized from three months after the expiration of the authorized sound sources used in this subpart to the Director, Office of all training and testing events: Protected Resources, NMFS. NMFS (i) Total annual hours or quantity must submit comments on the draft (per the LOA) of each bin of sonar or close-out report, if any, within three other acoustic sources (e.g., pile driv- months of receipt. The report will be ing and air gun activities); and considered final after the Navy has ad- (ii) Total annual expended/detonated dressed NMFS’ comments, or 3 months ordinance (missiles, bombs, sonobuoys, after the submittal of the draft if etc.) for each explosive bin. NMFS does not provide comments.

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§ 218.76 Letters of Authorization. (2) NMFS determines that the miti- (a) To incidentally take marine gation, monitoring, and reporting mammals pursuant to the regulations measures required by the previous in this subpart, the Navy must apply LOA(s) were implemented. for and obtain LOAs in accordance (b) For LOA modification or renewal with § 216.106 of this chapter. requests by the applicant that include (b) LOAs, unless suspended or re- changes to the activity or to the miti- voked, may be effective for a period of gation, monitoring, or reporting meas- time not to exceed December 20, 2025. ures (excluding changes made pursuant (c) If an LOA expires prior to Decem- to the adaptive management provision ber 20, 2025, the Navy may apply for in paragraph (c)(1) of this section) that and obtain a renewal of the LOA. do not change the findings made for (d) In the event of projected changes the regulations or result in no more to the activity or to mitigation, moni- than a minor change in the total esti- toring, or reporting (excluding changes mated number of takes (or distribution made pursuant to the adaptive man- by species or stock or years), NMFS agement provision of § 218.77(c)(1)) re- may publish a notice of planned LOA in quired by an LOA issued under this the FEDERAL REGISTER, including the subpart, the Navy must apply for and associated analysis of the change, and obtain a modification of the LOA as de- solicit public comment before issuing scribed in § 218.77. the LOA. (e) Each LOA must set forth: (c) An LOA issued under §§ 216.106 of (1) Permissible methods of incidental this chapter and 218.76 may be modified taking; by NMFS under the following cir- (2) Geographic areas for incidental cumstances: taking; (1) Adaptive management. After con- (3) Means of effecting the least prac- sulting with the Navy regarding the ticable adverse impact (i.e., mitigation) practicability of the modifications, on the species or stocks of marine NMFS may modify (including adding mammals and their habitat; and or removing measures) the existing (4) Requirements for monitoring and mitigation, monitoring, or reporting reporting. measures if doing so creates a reason- (f) Issuance of the LOA(s) must be able likelihood of more effectively ac- based on a determination that the level complishing the goals of the mitiga- of taking is consistent with the find- tion and monitoring. ings made for the total taking allow- (i) Possible sources of data that could able under the regulations in this sub- contribute to the decision to modify part. the mitigation, monitoring, or report- (g) Notice of issuance or denial of the ing measures in an LOA include: LOA(s) must be published in the FED- (A) Results from the Navy’s moni- ERAL REGISTER within 30 days of a de- toring from the previous year(s); termination. (B) Results from other marine mammal and/or sound research or studies; § 218.77 Renewals and modifications of or Letters of Authorization. (C) Any information that reveals ma- (a) An LOA issued under §§ 216.106 of rine mammals may have been taken in this chapter and 218.76 for the activity a manner, extent, or number not au- identified in § 218.70(c) may be renewed thorized by the regulations in this sub- or modified upon request by the appli- part or subsequent LOAs. cant, provided that: (ii) If, through adaptive management, (1) The planned specified activity and the modifications to the mitigation, mitigation, monitoring, and reporting monitoring, or reporting measures are measures, as well as the anticipated substantial, NMFS will publish a no- impacts, are the same as those de- tice of planned LOA in the FEDERAL scribed and analyzed for the regula- REGISTER and solicit public comment. tions in this subpart (excluding (2) Emergencies. If NMFS determines changes made pursuant to the adaptive that an emergency exists that poses a management provision in paragraph significant risk to the well-being of the (c)(1) of this section); and species or stocks of marine mammals

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specified in LOAs issued pursuant to waterways, and civilian ports where §§ 216.106 of this chapter and 218.76, an training and testing occurs. LOA may be modified without prior no- (c) The taking of marine mammals tice or opportunity for public com- by the Navy is only authorized if it oc- ment. Notice would be published in the curs incidental to the Navy conducting FEDERAL REGISTER within 30 days of training and testing activities, includ- the action. ing: (1) Training. (i) Amphibious warfare; §§ 218.78–218.79 [Reserved] (ii) Anti-submarine warfare; (iii) Electronic warfare; Subpart I—Taking and Importing (iv) Expeditionary warfare; Marine Mammals; U.S. Navy’s (v) Mine warfare; Atlantic Fleet Training and (vi) Surface warfare, and Testing (AFTT) (vii) Pile driving. (2) Testing. (i) Naval Air Systems SOURCE: 84 FR 70781, Dec. 23, 2019, unless Command Testing Activities; otherwise noted. (ii) Naval Sea System Command Testing Activities; and EFFECTIVE DATE NOTE: At 84 FR 70781, Dec. 23. 2019, subpart I was revised, effective Dec. (iii) Office of Naval Research Testing 23, 2019, to Nov. 13, 2025. Activities.

§ 218.80 Specified activity and geo- § 218.81 Effective dates. graphical region. Regulations in this subpart are effec- (a) Regulations in this subpart apply tive from December 23, 2019 through only to the U.S. Navy for the taking of November 13, 2025. marine mammals that occurs in the area described in paragraph (b) of this § 218.82 Permissible methods of tak- section and that occurs incidental to ing. the activities listed in paragraph (c) of (a) Under LOAs issued pursuant to this section. §§ 216.106 of this chapter and 218.86, the (b) The taking of marine mammals Holder of the LOAs (hereinafter by the Navy under this subpart may be ‘‘Navy’’) may incidentally, but not in- authorized in Letters of Authorization tentionally, take marine mammals (LOAs) only if it occurs within the At- within the area described in § 218.80(b) lantic Fleet Training and Testing by Level A harassment and Level B (AFTT) Study Area, which includes harassment associated with the use of areas of the western Atlantic Ocean active sonar and other acoustic sources along the East Coast of North America, and explosives as well as serious injury portions of the Caribbean Sea, and the or mortality associated with ship Gulf of Mexico. The AFTT Study Area shock trials and vessel strikes, pro- begins at the mean high tide line along vided the activity is in compliance the U.S. East Coast and extends east to with all terms, conditions, and require- the 45-degree west longitude line, north ments of this subpart and the applica- to the 65-degree north latitude line, ble LOAs. and south to approximately the 20-de- (b) The incidental take of marine gree north latitude line. The AFTT mammals by the activities listed in Study Area also includes Navy pierside § 218.80(c) is limited to the following locations, bays, harbors, and inland species:

TABLE 1 TO § 218.82

Species Stock

Suborder Mysticeti (baleen whales)

Family Balaenidae (right whales): North Atlantic right whale ...... Western. Family Balaenopteridae (roquals): Blue whale ...... Western North Atlantic (Gulf of St. Lawrence). Bryde’s whale ...... Northern Gulf of Mexico NSD. Minke whale ...... Canadian East Coast.

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TABLE 1 TO § 218.82—Continued

Species Stock

Fin whale ...... Western North Atlantic. Humpback whale ...... Gulf of Maine. Sei whale ...... Nova Scotia.

Suborder Odontoceti (toothed whales)

Family Physeteridae (sperm whale): Sperm whale ...... Gulf of Mexico Oceanic. North Atlantic. Family Kogiidae (sperm whales): Dwarf sperm whale ...... Gulf of Mexico Oceanic. Western North Atlantic. Pygmy sperm whale ...... Northern Gulf of Mexico. Western North Atlantic. Family Ziphiidae (beaked whales): Blainville’s beaked whale ...... Northern Gulf of Mexico. Western North Atlantic. Cuvier’s beaked whale ...... Northern Gulf of Mexico. Western North Atlantic. Gervais’ beaked whale ...... Northern Gulf of Mexico. Western North Atlantic. Northern bottlenose whale ...... Western North Atlantic. Sowersby’s beaked whale ...... Western North Atlantic. True’s beaked whale ...... Western North Atlantic. Family Delphinidae (dolphins): Atlantic spotted dolphin ...... Northern Gulf of Mexico. Western North Atlantic. Atlantic white-sided dolphin ...... Western North Atlantic. Bottlenose dolphin ...... Choctawhatchee Bay. Gulf of Mexico Eastern Coastal. Gulf of Mexico Northern Coastal. Gulf of Mexico Western Coastal. Indian River Lagoon Estuarine System. Jacksonville Estuarine System. Mississippi Sound, Lake Borgne, Bay Boudreau. Northern Gulf of Mexico Continental Shelf. Northern Gulf of Mexico Oceanic. Northern North Carolina Estuarine System. Southern North Carolina Estuarine System. Western North Atlantic Northern Florida Coastal. Western North Atlantic Central Florida Coastal. Western North Atlantic Northern Migratory Coastal. Western North Atlantic Offshore. Western North Atlantic South Carolina/Georgia Coastal. Western North Atlantic Southern Migratory Coastal. Clymene dolphin ...... Northern Gulf of Mexico. Western North Atlantic. False killer whale ...... Northern Gulf of Mexico. Western North Atlantic. Fraser’s dolphin ...... Northern Gulf of Mexico. Western North Atlantic. Killer whale ...... Northern Gulf of Mexico. Western North Atlantic. Long-finned pilot whale ...... Western North Atlantic. Melon-headed whale ...... Northern Gulf of Mexico. Western North Atlantic. Pantropical spotted dolphin ...... Northern Gulf of Mexico. Western North Atlantic. Pygmy killer whale ...... Northern Gulf of Mexico. Western North Atlantic. Risso’s dolphin ...... Northern Gulf of Mexico. Western North Atlantic. Rough-toothed dolphin ...... Northern Gulf of Mexico. Western North Atlantic. Short-beaked common dolphin ...... Western North Atlantic. Short-finned pilot whale ...... Northern Gulf of Mexico. Western North Atlantic. Spinner dolphin ...... Northern Gulf of Mexico. Western North Atlantic. Striped dolphin ...... Northern Gulf of Mexico. Western North Atlantic. White-beaked dolphin ...... Western North Atlantic.

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TABLE 1 TO § 218.82—Continued

Species Stock

Family Phocoenidae (porpoises): Harbor porpoise ...... Gulf of Maine/Bay of Fundy.

Suborder Pinnipedia

Family Phocidae (true seals): Gray seal ...... Western North Atlantic. Harbor seal ...... Western North Atlantic. Harp seal ...... Western North Atlantic. Hooded seal ...... Western North Atlantic.

§ 218.83 Prohibitions. charge testing and ship shock trials), and physical disturbance and strike Notwithstanding incidental takings stressors (i.e., vessel movement; towed contemplated in § 218.82(a) and author- in-water devices; small-, medium-, and ized by LOAs issued under §§ 216.106 of large-caliber non-explosive practice this chapter and 218.86, no person in munitions; non-explosive missiles and connection with the activities listed in rockets; non-explosive bombs and mine § 218.80(c) may: shapes). (a) Violate, or fail to comply with the (1) Environmental awareness and edu- terms, conditions, and requirements of cation. Appropriate personnel (includ- this subpart or an LOA issued under ing civilian personnel) involved in §§ 216.106 of this chapter and 218.86; mitigation and training or testing ac- (b) Take any marine mammal not tivity reporting under the specified ac- specified in § 218.82(b); tivities must complete one or more (c) Take any marine mammal speci- modules of the U.S. Navy Afloat Envi- fied § 218.82(b) in any manner other ronmental Compliance Training Series, than as specified in the LOAs; or as identified in their career path train- (d) Take a marine mammal specified ing plan. Modules include: Introduction § 218.82(b) if the National Marine Fish- to the U.S. Navy Afloat Environmental eries Service (NMFS) determines such Compliance Training Series, Marine taking results in more than a neg- Species Awareness Training, U.S. Navy ligible impact on the species or stocks Protective Measures Assessment Pro- of such marine mammal. tocol, and U.S. Navy Sonar Positional Reporting System and Marine Mammal § 218.84 Mitigation requirements. Incident Reporting. When conducting the activities iden- (2) Active sonar. Active sonar includes tified in § 218.80(c), the mitigation low-frequency active sonar, mid-fre- measures contained in any LOAs issued quency active sonar, and high-fre- under §§ 216.106 of this chapter and quency active sonar. For vessel-based 218.86 must be implemented. These active sonar activities, mitigation ap- mitigation measures include, but are plies only to sources that are posi- not limited to: tively controlled and deployed from (a) Procedural mitigation. Procedural manned surface vessels (e.g., sonar mitigation is mitigation that the Navy sources towed from manned surface must implement whenever and wher- platforms). For aircraft-based active ever an applicable training or testing sonar activities, mitigation applies activity takes place within the AFTT only to sources that are positively con- Study Area for each applicable activity trolled and deployed from manned air- category or stressor category and in- craft that do not operate at high alti- cludes acoustic stressors (i.e., active tudes (e.g., rotary-wing aircraft). Miti- sonar, air guns, pile driving, weapons gation does not apply to active sonar firing noise), explosive stressors (i.e., sources deployed from unmanned air- sonobuoys, torpedoes, medium-caliber craft or aircraft operating at high alti- and large-caliber projectiles, missiles tudes (e.g., maritime patrol aircraft). and rockets, bombs, sinking exercises, (i) Number of Lookouts and observation mines, anti-swimmer grenades, line platform—(A) Hull-mounted sources. One

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Lookout for platforms with space or tive sonar sources that are not hull manning restrictions while underway mounted, and high-frequency active (at the forward part of a small boat or sonar, Navy personnel must observe ship) and platforms using active sonar the mitigation zone for marine mam- while moored or at anchor (including mals and cease active sonar trans- pierside); two Lookouts for platforms mission if marine mammals are ob- without space or manning restrictions served within 200 yd of the sonar while underway (at the forward part of source. the ship); and four Lookouts for (D) Commencement/recommence- pierside sonar testing activities at Port ment conditions after a marine mam- Canaveral, Florida and Kings Bay, mal sighting before or during the activ- Georgia. ity: Navy personnel must allow a sight- (B) Sources that are not hull-mounted ed marine mammal to leave the miti- sources. One Lookout on the ship or air- gation zone prior to the initial start of craft conducting the activity. the activity (by delaying the start) or (ii) Mitigation zones and requirements. during the activity (by not recom- During the activity, at 1,000 yard (yd) mencing or powering up active sonar Navy personnel must power down 6 transmission) until one of the fol- decibels (dB), at 500 yd Navy personnel lowing conditions has been met: The must power down an additional 4 dB animal is observed exiting the mitiga- (for a total of 10 dB), and at 200 yd tion zone; the animal is thought to Navy personnel must shut down for have exited the mitigation zone based ≥ low-frequency active sonar 200 dB and on a determination of its course, speed, hull-mounted mid-frequency active and movement relative to the sonar sonar; or at 200 yd Navy personnel source; the mitigation zone has been must shut down for low-frequency ac- clear from any additional sightings for tive sonar <200 dB, mid-frequency ac- 10 minutes (min) for aircraft-deployed tive sonar sources that are not hull- sonar sources or 30 min for vessel-de- mounted, and high-frequency active ployed sonar sources; for mobile activi- sonar. ties, the active sonar source has (A) Prior to the initial start of the transited a distance equal to double activity (e.g., when maneuvering on that of the mitigation zone size beyond station), Navy personnel must observe the location of the last sighting; or for the mitigation zone for floating vege- activities using hull-mounted sonar tation; if floating vegetation is ob- where a dolphin(s) is observed in the served, Navy personnel must relocate mitigation zone, the Lookout con- or delay the start until the mitigation cludes that the dolphin(s) is delib- zone is clear. Navy personnel also must erately closing in on the ship to ride observe the mitigation zone for marine mammals; if marine mammals are ob- the ship’s bow wave, and is therefore served, Navy personnel must relocate out of the main transmission axis of or delay the start of active sonar trans- the sonar (and there are no other ma- mission. rine mammal sightings within the (B) During low-frequency active mitigation zone). sonar at or above 200 dB and hull- (3) Air guns—(i) Number of Lookouts mounted mid-frequency active sonar, and observation platform. One Lookout Navy personnel must observe the miti- must be positioned on a ship or gation zone for marine mammals and pierside. power down active sonar transmission (ii) Mitigation zone and requirements. by 6 dB if marine mammals are ob- 150 yd around the air gun. served within 1,000 yd of the sonar (A) Prior to the initial start of the source; power down by an additional 4 activity (e.g., when maneuvering on dB (10 dB total) if marine mammals are station), Navy personnel must observe observed within 500 yd of the sonar the mitigation zone for floating vege- source; and cease transmission if ma- tation; if floating vegetation is ob- rine mammals are observed within 200 served, Navy personnel must relocate yd of the sonar source. or delay the start until the mitigation (C) During low-frequency active zone is clear. Navy personnel also must sonar below 200 dB, mid-frequency ac- observe the mitigation zone for marine

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mammals; if marine mammals are ob- sighting before or during the activity: served, Navy personnel must relocate Navy personnel must allow a sighted or delay the start of air gun use. marine mammal to leave the mitiga- (B) During the activity, Navy per- tion zone prior to the initial start of sonnel must observe the mitigation the activity (by delaying the start) or zone for marine mammals; if marine during the activity (by not recom- mammals are observed, Navy personnel mencing pile driving or pile extraction) must cease use of air guns. until one of the following conditions (C) Commencement/recommencement has been met: The animal is observed conditions after a marine mammal exiting the mitigation zone; the animal sighting before or during the activity: is thought to have exited the mitiga- Navy personnel must allow a sighted tion zone based on a determination of marine mammal to leave the mitiga- its course, speed, and movement rel- tion zone prior to the initial start of ative to the pile driving location; or the activity (by delaying the start) or the mitigation zone has been clear during the activity (by not recom- from any additional sightings for 30 mencing air gun use) until one of the min. following conditions has been met: The (5) Weapons firing noise. Weapons fir- animal is observed exiting the mitiga- ing noise associated with large-caliber tion zone; the animal is thought to gunnery activities. have exited the mitigation zone based (i) Number of Lookouts and observation on a determination of its course, speed, platform. One Lookout must be posi- and movement relative to the air gun; tioned on the ship conducting the fir- the mitigation zone has been clear ing. Depending on the activity, the from any additional sightings for 30 Lookout could be the same as the one min; or for mobile activities, the air provided for under explosive medium- gun has transited a distance equal to caliber and large-caliber projectiles or double that of the mitigation zone size under small-, medium-, and large-cal- beyond the location of the last sight- iber non-explosive practice munitions ing. in paragraphs (a)(8)(i) and (a)(19)(i) of (4) Pile driving. Pile driving and pile this section. extraction sound during Elevated Causeway System training. (ii) Mitigation zone and requirements. (i) Number of Lookouts and observation Thirty degrees on either side of the fir- platform. One Lookout must be posi- ing line out to 70 yd from the muzzle of tioned on the shore, the elevated cause- the weapon being fired. way, or a small boat. (A) Prior to the initial start of the (ii) Mitigation zone and requirements. activity, Navy personnel must observe 100 yd around the pile driver. the mitigation zone for floating vege- (A) Prior to the initial start of the tation; if floating vegetation is ob- activity (for 30 min), Navy personnel served, Navy personnel must relocate must observe the mitigation zone for or delay the start until the mitigation floating vegetation; if floating vegeta- zone is clear. Navy personnel also must tion is observed, Navy personnel must observe the mitigation zone for marine delay the start until the mitigation mammals; if marine mammals are ob- zone is clear. Navy personnel also must served, Navy personnel must relocate observe the mitigation zone for marine or delay the start of weapons firing. mammals; if marine mammals are ob- (B) During the activity, Navy per- served, Navy personnel must delay the sonnel must observe the mitigation start of pile driving or vibratory pile zone for marine mammals; if marine extraction. mammals are observed, Navy personnel (B) During the activity, Navy per- must cease weapons firing. sonnel must observe the mitigation (C) Commencement/recommencement zone for marine mammals; if marine conditions after a marine mammal mammals are observed, Navy personnel sighting before or during the activity: must cease impact pile driving or vi- Navy personnel must allow a sighted bratory pile extraction. marine mammal to leave the mitiga- (C) Commencement/recommencement tion zone prior to the initial start of conditions after a marine mammal the activity (by delaying the start) or

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during the activity (by not recom- the activity (by delaying the start) or mencing weapons firing) until one of during the activity (by not recom- the following conditions has been met: mencing detonations) until one of the The animal is observed exiting the following conditions has been met: The mitigation zone; the animal is thought animal is observed exiting the mitiga- to have exited the mitigation zone tion zone; the animal is thought to based on a determination of its course, have exited the mitigation zone based speed, and movement relative to the on a determination of its course, speed, firing ship; the mitigation zone has and movement relative to the sono- been clear from any additional buoy; or the mitigation zone has been sightings for 30 min; or for mobile ac- clear from any additional sightings for tivities, the firing ship has transited a 10 min when the activity involves air- distance equal to double that of the craft that have fuel constraints (e.g., mitigation zone size beyond the loca- helicopter), or 30 min when the activity tion of the last sighting. involves aircraft that are not typically (6) Explosive sonobuoys—(i) Number of fuel constrained. Lookouts and observation platform. One (D) After completion of the activity Lookout must be positioned in an air- (e.g., prior to maneuvering off station), craft or on small boat. If additional when practical (e.g., when platforms platforms are participating in the ac- are not constrained by fuel restrictions tivity, personnel positioned in those or mission-essential follow-on commit- assets (e.g., safety observers, eval- ments), Navy personnel must observe uators) must support observing the for marine mammals in the vicinity of mitigation zone for marine mammals where detonations occurred; if any in- and other applicable biological re- jured or dead marine mammals are ob- sources while performing their regular served, Navy personnel must follow es- duties. tablished incident reporting proce- (ii) Mitigation zone and requirements. dures. If additional platforms are sup- 600 yd around an explosive sonobuoy. porting this activity (e.g., providing (A) Prior to the initial start of the range clearance), these Navy assets activity (e.g., during deployment of a must assist in the visual observation of sonobuoy field, which typically lasts the area where detonations occurred. 20–30 min), Navy personnel must observe the mitigation zone for floating (7) Explosive torpedoes—(i) Number of vegetation; if floating vegetation is ob- Lookouts and observation platform. One served, Navy personnel must relocate Lookout positioned in an aircraft. If or delay the start until the mitigation additional platforms are participating zone is clear. Navy personnel must con- in the activity, Navy personnel posi- duct passive acoustic monitoring for tioned in those assets (e.g., safety ob- marine mammals and use information servers, evaluators) must support ob- from detections to assist visual obser- serving the mitigation zone for marine vations. Navy personnel also must vis- mammals and other applicable biologi- ually observe the mitigation zone for cal resources while performing their marine mammals; if marine mammals regular duties. are observed, Navy personnel must re- (ii) Mitigation zone and requirements. locate or delay the start of sonobuoy or 2,100 yd around the intended impact lo- source/receiver pair detonations. cation. (B) During the activity, Navy per- (A) Prior to the initial start of the sonnel must observe the mitigation activity (e.g., during deployment of the zone for marine mammals; if marine target), Navy personnel must observe mammals are observed, Navy personnel the mitigation zone for floating vege- must cease sonobuoy or source/receiver tation; if floating vegetation is ob- pair detonations. served, relocate or delay the start until (C) Commencement/recommencement the mitigation zone is clear. Navy per- conditions after a marine mammal sonnel also must conduct passive sighting before or during the activity: acoustic monitoring for marine mam- Navy personnel must allow a sighted mals and use the information from de- marine mammal to leave the mitiga- tections to assist visual observations. tion zone prior to the initial start of Navy personnel must visually observe

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the mitigation zone for marine mam- large-caliber projectiles, depending on mals and jellyfish aggregations; if ma- the activity, the Lookout could be the rine mammals or jellyfish aggregations same as the one described for weapons are observed, Navy personnel must re- firing noise in paragraph (a)(5)(i) of locate or delay the start of firing. this section. If additional platforms are (B) During the activity, Navy per- participating in the activity, Navy personnel must observe for marine mam- sonnel positioned in those assets (e.g., mals and jellyfish aggregations; if ma- safety observers, evaluators) must sup- rine mammals or jellyfish aggregations port observing the mitigation zone for are observed, Navy personnel must marine mammals and other applicable cease firing. biological resources while performing (C) Commencement/recommencement their regular duties. conditions after a marine mammal (ii) Mitigation zone and requirements. sighting before or during the activity: (A) 200 yd around the intended impact Navy personnel must allow a sighted location for air-to-surface activities marine mammal to leave the mitiga- using explosive medium-caliber projec- tion zone prior to the initial start of tiles. the activity (by delaying the start) or (B) 600 yd around the intended im- during the activity (by not recom- pact location for surface-to-surface ac- mencing firing) until one of the fol- tivities using explosive medium-caliber lowing conditions has been met: The projectiles. animal is observed exiting the mitiga- (C) 1,000 yd around the intended im- tion zone; the animal is thought to pact location for surface-to-surface ac- have exited the mitigation zone based tivities using explosive large-caliber on a determination of its course, speed, projectiles. and movement relative to the intended (D) Prior to the initial start of the impact location; or the mitigation zone activity (e.g., when maneuvering on has been clear from any additional station), Navy personnel must observe sightings for 10 min when the activity the mitigation zone for floating vege- involves aircraft that have fuel con- tation; if floating vegetation is ob- straints, or 30 min when the activity served, Navy personnel must relocate involves aircraft that are not typically or delay the start until the mitigation fuel constrained. zone is clear. Navy personnel also must (D) After completion of the activity observe the mitigation zone for marine (e.g., prior to maneuvering off station), mammals; if marine mammals are ob- when practical (e.g., when platforms served, Navy personnel must relocate are not constrained by fuel restrictions or delay the start of firing. or mission-essential follow-on commit- (E) During the activity, Navy per- ments), Navy personnel must observe sonnel must observe for marine mam- for marine mammals in the vicinity of mals; if marine mammals are observed, where detonations occurred; if any in- Navy personnel must cease firing. jured or dead marine mammals are ob- (F) Commencement/recommencement served, Navy personnel must follow es- conditions after a marine mammal tablished incident reporting proce- sighting before or during the activity: dures. If additional platforms are sup- Navy personnel must allow a sighted porting this activity (e.g., providing marine mammal to leave the mitiga- range clearance), these Navy assets tion zone prior to the initial start of must assist in the visual observation of the activity (by delaying the start) or the area where detonations occurred. during the activity (by not recom- (8) Explosive medium-caliber and large- mencing firing) until one of the fol- caliber projectiles. Gunnery activities lowing conditions has been met: The using explosive medium-caliber and animal is observed exiting the mitiga- large-caliber projectiles. Mitigation ap- tion zone; the animal is thought to plies to activities using a surface tar- have exited the mitigation zone based get. on a determination of its course, speed, (i) Number of Lookouts and observation and movement relative to the intended platform. One Lookout must be on the impact location; the mitigation zone vessel or aircraft conducting the activ- has been clear from any additional ity. For activities using explosive sightings for 10 min for aircraft-based

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firing or 30 min for vessel-based firing; mals; if marine mammals are observed, or for activities using mobile targets, Navy personnel must cease firing. the intended impact location has (E) Commencement/recommencement transited a distance equal to double conditions after a marine mammal that of the mitigation zone size beyond sighting before or during the activity: the location of the last sighting. Navy personnel must allow a sighted (G) After completion of the activity marine mammal to leave the mitiga- (e.g., prior to maneuvering off station), tion zone prior to the initial start of when practical (e.g., when platforms the activity (by delaying the start) or are not constrained by fuel restrictions during the activity (by not recom- or mission-essential follow-on commit- mencing firing) until one of the fol- ments), Navy personnel must observe lowing conditions has been met: The for marine mammals in the vicinity of animal is observed exiting the mitiga- where detonations occurred; if any in- tion zone; the animal is thought to jured or dead marine mammals are ob- have exited the mitigation zone based served, Navy personnel must follow es- on a determination of its course, speed, tablished incident reporting proce- and movement relative to the intended dures. If additional platforms are sup- impact location; or the mitigation zone porting this activity (e.g., providing has been clear from any additional range clearance), these Navy assets sightings for 10 min when the activity must assist in the visual observation of involves aircraft that have fuel con- the area where detonations occurred. straints, or 30 min when the activity (9) Explosive missiles and rockets. Air- involves aircraft that are not typically craft-deployed explosive missiles and fuel constrained. rockets. Mitigation applies to activi- (F) After completion of the activity ties using a surface target. (e.g., prior to maneuvering off station), when practical (e.g., when platforms (i) Number of Lookouts and observation are not constrained by fuel restrictions platform. One Lookout must be posi- or mission-essential follow-on commit- tioned in an aircraft. If additional plat- ments), Navy personnel must observe forms are participating in the activity, for marine mammals in the vicinity of Navy personnel positioned in those as- where detonations occurred; if any in- sets (e.g., safety observers, evaluators) jured or dead marine mammals are ob- must support observing the mitigation served, Navy personnel must follow es- zone for marine mammals and other tablished incident reporting proce- applicable biological resources while dures. If additional platforms are sup- performing their regular duties. porting this activity (e.g., providing (ii) Mitigation zone and requirements. range clearance), these Navy assets (A) 900 yd around the intended impact must assist in the visual observation of location for missiles or rockets with the area where detonations occurred. 0.6–20 lb net explosive weight. (10) Explosive bombs—(i) Number of (B) 2,000 yd around the intended im- Lookouts and observation platform. One pact location for missiles with 21–500 lb Lookout must be positioned in an air- net explosive weight. craft conducting the activity. If addi- (C) Prior to the initial start of the tional platforms are participating in activity (e.g., during a fly-over of the the activity, Navy personnel positioned mitigation zone), Navy personnel must in those assets (e.g., safety observers, observe the mitigation zone for float- evaluators) must support observing the ing vegetation; if floating vegetation is mitigation zone for marine mammals observed, Navy personnel must relo- and other applicable biological re- cate or delay the start until the miti- sources while performing their regular gation zone is clear. Navy personnel duties. also must observe the mitigation zone (ii) Mitigation zone and requirements. for marine mammals; if marine mam- 2,500 yd around the intended target. mals are observed, Navy personnel (A) Prior to the initial start of the must relocate or delay the start of fir- activity (e.g., when arriving on sta- ing. tion), Navy personnel must observe the (D) During the activity, Navy per- mitigation zone for floating vegeta- sonnel must observe for marine mam- tion; if floating vegetation is observed,

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Navy personnel must relocate or delay port observing the mitigation zone for the start until the mitigation zone is marine mammals and other applicable clear. Navy personnel also must ob- biological resources while performing serve the mitigation zone for marine their regular duties. mammals; if marine mammals are ob- (ii) Mitigation zone and requirements. served, Navy personnel must relocate 2.5 nautical miles (nmi) around the tar- or delay the start of bomb deployment. get ship hulk. (B) During the activity (e.g., during (A) Prior to the initial start of the target approach), Navy personnel must activity (90 min prior to the first fir- observe for marine mammals; if marine ing), Navy personnel must conduct aer- mammals are observed, Navy personnel ial observations of the mitigation zone must cease bomb deployment. for floating vegetation; if floating (C) Commencement/recommencement vegetation is observed Navy personnel conditions after a marine mammal must delay the start until the mitiga- sighting before or during the activity: tion zone is clear. Navy personnel also Navy personnel must allow a sighted must conduct aerial observations of marine mammal to leave the mitiga- the mitigation zone for marine mam- tion zone prior to the initial start of mals and jellyfish aggregations; if ma- the activity (by delaying the start) or rine mammals or jellyfish aggregations during the activity (by not recom- are observed, Navy personnel must mencing bomb deployment) until one delay the start of firing. of the following conditions has been (B) During the activity, Navy per- met: The animal is observed exiting sonnel must conduct passive acoustic the mitigation zone; the animal is monitoring for marine mammals and thought to have exited the mitigation use information from detections to as- zone based on a determination of its sist visual observations. Navy per- course, speed, and movement relative sonnel must visually observe the miti- to the intended target; the mitigation gation zone for marine mammals from zone has been clear from any addi- the vessel; if marine mammals are ob- tional sightings for 10 min; or for ac- served, Navy personnel must cease fir- tivities using mobile targets, the in- ing. Immediately after any planned or tended target has transited a distance unplanned breaks in weapons firing of equal to double that of the mitigation longer than two hours, Navy personnel zone size beyond the location of the must observe the mitigation zone for last sighting. marine mammals from the aircraft and (D) After completion of the activity vessel; if marine mammals are ob- (e.g., prior to maneuvering off station), served, Navy personnel must delay re- when practical (e.g., when platforms commencement of firing. are not constrained by fuel restrictions (C) Commencement/recommencement or mission-essential follow-on commit- conditions after a marine mammal ments), Navy personnel must observe sighting before or during the activity: for marine mammals in the vicinity of Navy personnel must allow a sighted where detonations occurred; if any in- marine mammal to leave the mitiga- jured or dead marine mammals are ob- tion zone prior to the initial start of served, Navy personnel must follow es- the activity (by delaying the start) or tablished incident reporting proce- during the activity (by not recom- dures. If additional platforms are sup- mencing firing) until one of the fol- porting this activity (e.g., providing lowing conditions has been met: The range clearance), these Navy assets animal is observed exiting the mitiga- must assist in the visual observation of tion zone; the animal is thought to the area where detonations occurred. have exited the mitigation zone based (11) Sinking exercises—(i) Number of on a determination of its course, speed, Lookouts and observation platform. Two and movement relative to the target Lookouts (one must be positioned in an ship hulk; or the mitigation zone has aircraft and one must be positioned on been clear from any additional a vessel). If additional platforms are sightings for 30 min. participating in the activity, Navy per- (D) After completion of the activity sonnel positioned in those assets (e.g., (for two hours after sinking the vessel safety observers, evaluators) must sup- or until sunset, whichever comes first),

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Navy personnel must observe for ma- (D) During the activity, Navy per- rine mammals in the vicinity of where sonnel must observe the mitigation detonations occurred; if any injured or zone for marine mammals; if marine dead marine mammals are observed, mammals are observed, the Navy must Navy personnel must follow established cease detonations. incident reporting procedures. If addi- (E) Commencement/recommencement tional platforms are supporting this ac- conditions after a marine mammal tivity (e.g., providing range clearance), sighting before or during the activity: these Navy assets must assist in the Navy personnel must allow a sighted visual observation of the area where marine mammal to leave the mitiga- detonations occurred. tion zone prior to the initial start of (12) Explosive mine countermeasure and the activity (by delaying the start) or neutralization activities—(i) Number of during the activity (by not recom- Lookouts and observation platform. (A) mencing detonations) until one of the One Lookout must be positioned on a following conditions has been met: The vessel or in an aircraft when imple- animal is observed exiting the mitiga- menting the smaller mitigation zone tion zone; the animal is thought to defined at paragraph (a)(12)(ii)(A) of have exited the mitigation zone based this section (using 0.1–5 lb net explo- on a determination of its course, speed, sive weight charges). and movement relative to detonation (B) Two Lookouts (one must be in an site; or the mitigation zone has been aircraft and one must be on a small clear from any additional sightings for boat) when implementing the larger 10 min when the activity involves air- mitigation zone defined at paragraph craft that have fuel constraints, or 30 (a)(12)(ii)(B) of this section (using 6–650 min when the activity involves aircraft lb net explosive weight charges). that are not typically fuel constrained. (C) If additional platforms are par- (F) After completion of the activity ticipating in the activity, Navy per- (typically 10 min when the activity in- sonnel positioned in those assets (e.g., volves aircraft that have fuel con- safety observers, evaluators) must sup- straints, or 30 min when the activity port observing the mitigation zone for involves aircraft that are not typically marine mammals and other applicable biological resources while performing fuel constrained), Navy personnel must their regular duties. observe for marine mammals in the vi- (ii) Mitigation zone and requirements. cinity of where detonations occurred; if (A) 600 yd around the detonation site any injured or dead marine mammals for activities using 0.1–5 lb net explo- are observed, Navy personnel must fol- sive weight. low established incident reporting pro- (B) 2,100 yd around the detonation cedures. If additional platforms are site for activities using 6–650 lb net ex- supporting this activity (e.g., providing plosive weight (including high explo- range clearance), these Navy assets sive target mines). must assist in the visual observation of (C) Prior to the initial start of the the area where detonations occurred. activity (e.g., when maneuvering on (13) Explosive mine neutralization ac- station; typically, 10 min when the activities involving navy divers—(i) Number tivity involves aircraft that have fuel of Lookouts and observation platform. (A) constraints, or 30 min when the activ- Two Lookouts must be positioned (two ity involves aircraft that are not typi- small boats with one Lookout each, or cally fuel constrained), Navy personnel one Lookout must be on a small boat must observe the mitigation zone for and one must be in a rotary-wing air- floating vegetation; if floating vegeta- craft) when implementing the smaller tion is observed, Navy personnel must mitigation zone defined at paragraph relocate or delay the start until the (a)(13)(ii)(A) of this section. mitigation zone is clear. Navy per- (B) Four Lookouts must be posi- sonnel also must observe the mitiga- tioned (two small boats with two Look- tion zone for marine mammals; if ma- outs each), and a pilot or member of an rine mammals are observed, Navy per- aircrew must serve as an additional sonnel must relocate or delay the start Lookout if aircraft are used during the of detonations. activity, when implementing the larger

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mitigation zone defined at paragraph serving outward toward the perimeter (a)(13)(ii)(B) of this section. of the mitigation zone. If used, aircraft (C) All divers placing the charges on must travel in a circular pattern mines must support the Lookouts around the detonation location to the while performing their regular duties maximum extent practicable. Navy and must report applicable sightings to personnel must not set time-delay fir- their supporting small boat or Range ing devices (0.1–20 lb. net explosive Safety Officer. weight) to exceed 10 min. (D) If additional platforms are par- (E) Commencement/recommencement ticipating in the activity, Navy per- conditions after a marine mammal sonnel positioned in those assets (e.g., sighting before or during the activity: safety observers, evaluators) must sup- Navy personnel must allow a sighted port observing the mitigation zone for marine mammal to leave the mitiga- marine mammals and other applicable tion zone prior to the initial start of biological resources while performing the activity (by delaying the start) or their regular duties. during the activity (by not recom- (ii) Mitigation zone and requirements. mencing detonations) until one of the (A) 500 yd around the detonation site following conditions has been met: The during activities under positive control animal is observed exiting the mitiga- using 0.1–20 lb net explosive weight. tion zone; the animal is thought to (B) 1,000 yd around the detonation have exited the mitigation zone based site during all activities using time- on a determination of its course, speed, delay fuses (0.1–20 lb net explosive and movement relative to the detona- weight) and during activities under tion site; or the mitigation zone has positive control using 21–60 lb net ex- been clear from any additional plosive weight charges. sightings for 10 min during activities (C) Prior to the initial start of the under positive control with aircraft activity (e.g., when maneuvering on that have fuel constraints, or 30 min station for activities under positive during activities under positive control control; 30 min for activities using with aircraft that are not typically time-delay firing devices), Navy per- fuel constrained and during activities sonnel must observe the mitigation zone for floating vegetation; if floating using time-delay firing devices. vegetation is observed, Navy personnel (F) After completion of an activity must relocate or delay the start until (for 30 min), Navy personnel must ob- the mitigation zone is clear. Navy per- serve for marine mammals in the vicin- sonnel also must observe the mitiga- ity of where any detonations have oc- tion zone for marine mammals; if ma- curred; if any injured or dead marine rine mammals are observed, Navy per- mammals are observed, Navy personnel sonnel must relocate or delay the start must follow established incident re- of detonation or fuse initiation. porting procedures. If additional plat- (D) During the activity, Navy per- forms are supporting this activity (e.g., sonnel must observe for marine mam- providing range clearance), these Navy mals; if marine mammals are observed, assets must assist in the visual obser- Navy personnel must cease detonation vation of the area where detonations or fuse initiation. To the maximum ex- occurred. tent practicable depending on mission (14) Maritime security operations—anti- requirements, safety, and environ- swimmer grenades—(i) Number of Look- mental conditions, boats must position outs and observation platform. One Look- themselves near the mid-point of the out must be positioned on the small mitigation zone radius (but outside of boat conducting the activity. If addi- the detonation plume and human safe- tional platforms are participating in ty zone), must position themselves on the activity, Navy personnel positioned opposite sides of the detonation loca- in those assets (e.g., safety observers, tion (when two boats are used), and evaluators) must support observing the must travel in a circular pattern mitigation zone for marine mammals around the detonation location with and other applicable biological re- one Lookout observing inward toward sources while performing their regular the detonation site and the other ob- duties.

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(ii) Mitigation zone and requirements. Lookout must be positioned on a ves- 200 yd around the intended detonation sel. If additional platforms are partici- location. pating in the activity, Navy personnel (A) Prior to the initial start of the positioned in those assets (e.g., safety activity (e.g., when maneuvering on observers, evaluators) must support ob- station), Navy personnel must observe serving the mitigation zone for marine the mitigation zone for floating vege- mammals and other applicable biologi- tation; if floating vegetation is ob- cal resources while performing their served, Navy personnel must relocate regular duties. or delay the start until the mitigation (ii) Mitigation zone and requirements. zone is clear. Navy personnel also must 900 yd around the intended detonation observe the mitigation zone for marine location. mammals; if marine mammals are observed, Navy personnel must relocate (A) Prior to the initial start of the or delay the start of detonation. activity (e.g., when maneuvering on (B) During the activity, Navy per- station), Navy personnel must observe sonnel must observe for marine mam- the mitigation zone for floating vege- mals; if marine mammals are observed, tation; if floating vegetation is ob- Navy personnel must cease detonation. served, Navy personnel must delay the (C) Commencement/recommencement start until the mitigation zone is clear. conditions after a marine mammal Navy personnel also must observe the sighting before or during the activity: mitigation zone for marine mammals; Navy personnel must allow a sighted if marine mammals are observed, Navy marine mammal to leave the mitiga- personnel must delay the start of deto- tion zone prior to the initial start of nations. the activity (by delaying the start) or (B) During the activity, Navy per- during the activity (by not recom- sonnel must observe for marine mam- mencing detonations) until one of the mals; if marine mammals are observed, following conditions has been met: The Navy personnel must cease detona- animal is observed exiting the mitiga- tions. tion zone; the animal is thought to (C) Commencement/recommencement have exited the mitigation zone based conditions after a marine mammal on a determination of its course, speed, sighting before or during the activity: and movement relative to the intended detonation location; the mitigation Navy personnel must allow a sighted zone has been clear from any addi- marine mammal to leave the mitiga- tional sightings for 30 min; or the in- tion zone prior to the initial start of tended detonation location has the activity (by delaying the start) or transited a distance equal to double during the activity (by not recom- that of the mitigation zone size beyond mencing detonations) until one of the the location of the last sighting. following conditions has been met: The (D) After completion of the activity animal is observed exiting the mitiga- (e.g., prior to maneuvering off station), tion zone; the animal is thought to when practical (e.g., when platforms have exited the mitigation zone based are not constrained by fuel restrictions on a determination of its course, speed, or mission-essential follow-on commit- and movement relative to the intended ments), Navy personnel must observe detonation location; or the mitigation for marine mammals in the vicinity of zone has been clear from any addi- where detonations occurred; if any in- tional sightings for 30 min. jured or dead marine mammals are ob- (D) After completion of the activity served, Navy personnel must follow es- (e.g., prior to maneuvering off station), tablished incident reporting proce- when practical (e.g., when platforms dures. If additional platforms are sup- are not constrained by fuel restrictions porting this activity (e.g., providing or mission-essential follow-on commit- range clearance), these Navy assets ments), Navy personnel must observe must assist in the visual observation of the area where detonations occurred. for marine mammals in the vicinity of (15) Line charge testing—(i) Number of Lookouts and observation platform. One

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where detonations occurred; if any in- (D) If it is determined during pre-ac- jured or dead marine mammals are ob- tivity surveys that the primary area is served, Navy personnel must follow es- environmentally unsuitable (e.g., ob- tablished incident reporting proce- servations of marine mammals or pres- dures. If additional platforms are sup- ence of concentrations of floating vege- porting this activity (e.g., providing tation), the shock trial can be moved range clearance), these Navy assets to a secondary site in accordance with must assist in the visual observation of the detailed mitigation and monitoring the area where detonations occurred. plan provided to NMFS. (16) Ship shock trials—(i) Number of (E) Prior to the initial start of the Lookouts and observation platform. (A) A activity at the shock trial location (in minimum of ten Lookouts or trained intervals of 5 hrs, 3 hrs, 40 min, and im- marine species observers (or a com- mediately before the detonation), Navy bination thereof) must be positioned personnel must observe the mitigation either in an aircraft or on multiple ves- zone for floating vegetation; if floating sels (i.e., a Marine Animal Response vegetation is observed, Navy personnel Team boat and the test ship). must delay the start until the mitiga- (1) If aircraft are used, Lookouts or tion zone is clear. Navy personnel also trained marine species observers must must observe the mitigation zone for be in an aircraft and on multiple ves- marine mammals; if marine mammals sels. are observed, Navy personnel must (2) If aircraft are not used, a suffi- delay triggering the detonation. cient number of additional Lookouts or (F) During the activity, Navy per- trained marine species observers must sonnel must observe for marine mam- be used to provide vessel-based visual mals, large schools of fish, jellyfish ag- observation comparable to that gregations, and flocks of seabirds; if achieved by aerial surveys. marine mammals, large schools of fish, (B) If additional platforms are par- jellyfish aggregations, and flocks of ticipating in the activity, Navy per- seabirds are observed, Navy personnel sonnel positioned in those assets (e.g., must cease triggering the detonation. safety observers, evaluators) must sup- After completion of each detonation, port observing the mitigation zone for Navy personnel must observe the miti- marine mammals and other applicable gation zone for marine mammals; if biological resources while performing any injured or dead marine mammals their regular duties. are observed, Navy personnel must fol- (ii) Mitigation zone and requirements. low established incident reporting pro- 3.5 nmi around the ship hull. cedures and halt any remaining deto- (A) The Navy must not conduct ship nations until Navy personnel can con- shock trials in the Jacksonville Oper- sult with NMFS and review or adapt ating Area during North Atlantic right the mitigation, if necessary. whale calving season from November 15 (G) Commencement/recommence- through April 15. ment conditions after a marine mam- (B) The Navy must develop detailed mal sighting before or during the activ- ship shock trial monitoring and miti- ity: Navy personnel must allow a sight- gation plans approximately one-year ed marine mammal to leave the miti- prior to an event and must continue to gation zone prior to the initial start of provide these to NMFS for review and the activity (by delaying the start) or approval. during the activity (by not recom- (C) Pre-activity planning must in- mencing detonations) until one of the clude selection of one primary and two following conditions has been met: The secondary areas where marine mammal animal is observed exiting the mitiga- populations are expected to be the low- tion zone; the animal is thought to est during the event, with the primary have exited the mitigation zone based and secondary locations located more on a determination of its course, speed, than 2 nmi from the western boundary and movement relative to the ship of the Gulf Stream for events in the hull; or the mitigation zone has been Virginia Capes Range Complex or clear from any additional sightings for Jacksonville Range Complex. 30 min.

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(H) After completion of the activity personnel must follow the established (during the following two days at a incident reporting procedures. minimum, and up to seven days at a (18) Towed in-water devices. Mitiga- maximum), Navy personnel must ob- tion applies to devices that are towed serve for marine mammals in the vicin- from a manned surface platform or ity of where detonations occurred; if manned aircraft. The mitigation will any injured or dead marine mammals not be applied if the safety of the tow- are observed, Navy personnel must fol- ing platform or in-water device is low established incident reporting pro- threatened. cedures. If additional platforms are (i) Number of Lookouts and observation supporting this activity (e.g., providing platform. One Lookout must be posi- range clearance), these Navy assets tioned on a manned towing platform. must assist in the visual observation of (ii) Mitigation zone and requirements. the area where detonations occurred. 250 yd around marine mammals. Dur- (17) Vessel movement. The mitigation ing the activity, when towing an in- must not be applied if: The vessel’s water device, Navy personnel must ob- safety is threatened; the vessel is re- serve for marine mammals; if marine stricted in its ability to maneuver (e.g., mammals are observed, Navy personnel during launching and recovery of air- must maneuver to maintain distance. craft or landing craft, during towing (19) Small-, medium-, and large-caliber activities, when mooring, etc.); or the non-explosive practice munitions. Mitiga- vessel is operated autonomously. tion applies to activities using a sur- (i) Number of Lookouts and observation face target. platform. One Lookout must be on the (i) Number of Lookouts and observation vessel that is underway. platform. One Lookout must be positioned on the platform conducting the (ii) Mitigation zone and requirements. activity. Depending on the activity, (A) 500 yd around whales. the Lookout could be the same as the (B) 200 yd around all other marine one described for weapons firing noise mammals (except bow-riding dolphins in paragraph (a)(5)(i) of this section. and pinnipeds hauled out on man-made (ii) Mitigation zone and requirements. navigational structures, port struc- 200 yd around the intended impact lo- tures, and vessels). cation. (C) During the activity, when under- (A) Prior to the initial start of the way, Navy personnel must observe the activity (e.g., when maneuvering on mitigation zone for marine mammals; station), Navy personnel must observe if any marine mammals are observed, the mitigation zone for floating vege- Navy personnel must maneuver to tation; if floating vegetation is ob- maintain distance. served, Navy personnel must relocate (D) Additionally, Navy personnel or delay the start until the mitigation must broadcast awareness notification zone is clear. Navy personnel also must messages with North Atlantic right observe the mitigation zone for marine whale Dynamic Management Area in- mammals; if marine mammals are ob- formation (e.g., location and dates) to served, Navy personnel must relocate applicable Navy assets operating in the or delay the start of firing. vicinity of the Dynamic Management (B) During the activity, Navy per- Area. The information will alert assets sonnel must observe for marine mam- to the possible presence of a North At- mals; if marine mammals are observed, lantic right whale to maintain safety Navy personnel must cease firing. of navigation and further reduce the (C) Commencement/recommencement potential for a vessel strike. Platforms conditions after a marine mammal must use the information to assist sighting before or during the activity: their visual observation of applicable Navy personnel must allow a sighted mitigation zones during training and marine mammal to leave the mitiga- testing activities and to aid in the im- tion zone prior to the initial start of plementation of procedural mitigation, the activity (by delaying the start) or including but not limited to, mitiga- during the activity (by not recom- tion for vessel movement. If a marine mencing firing) until one of the fol- mammal vessel strike occurs, Navy lowing conditions has been met: The

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animal is observed exiting the mitiga- involves aircraft that have fuel con- tion zone; the animal is thought to straints, or 30 min when the activity have exited the mitigation zone based involves aircraft that are not typically on a determination of its course, speed, fuel constrained. and movement relative to the intended (21) Non-explosive bombs and mine impact location; the mitigation zone shapes. Non-explosive bombs and non- has been clear from any additional explosive mine shapes during mine lay- sightings for 10 min for aircraft-based ing activities. firing or 30 min for vessel-based firing; (i) Number of Lookouts and observation or for activities using a mobile target, platform. One Lookout must be posi- the intended impact location has tioned in an aircraft. transited a distance equal to double (ii) Mitigation zone and requirements. that of the mitigation zone size beyond 1,000 yd around the intended target. the location of the last sighting. (A) Prior to the initial start of the (20) Non-explosive missiles and rockets. activity (e.g., when arriving on sta- Aircraft-deployed non-explosive mis- tion), Navy personnel must observe the siles and rockets. Mitigation applies to mitigation zone for floating vegeta- activities using a surface target. tion; if floating vegetation is observed, (i) Number of Lookouts and observation Navy personnel must relocate or delay platform. One Lookout must be posi- the start until the mitigation zone is tioned in an aircraft. clear. Navy personnel also must ob- (ii) Mitigation zone and requirements. serve the mitigation zone for marine 900 yd around the intended impact lo- mammals; if marine mammals are ob- cation. served, Navy personnel must relocate (A) Prior to the initial start of the or delay the start of bomb deployment activity (e.g., during a fly-over of the or mine laying. mitigation zone), Navy personnel must (B) During the activity (e.g., during observe the mitigation zone for float- approach of the target or intended ing vegetation; if floating vegetation is minefield location), Navy personnel observed, Navy personnel must relo- must observe the mitigation zone for cate or delay the start until the miti- marine mammals; if marine mammals gation zone is clear. Navy personnel are observed, Navy personnel must also must observe the mitigation zone cease bomb deployment or mine laying. for marine mammals; if marine mam- (C) Commencement/recommencement mals are observed, Navy personnel conditions after a marine mammal must relocate or delay the start of fir- sighting prior to or during the activity: ing. Navy personnel must allow a sighted (B) During the activity, Navy per- marine mammal to leave the mitiga- sonnel must observe for marine mam- tion zone prior to the initial start of mals; if marine mammals are observed, the activity (by delaying the start) or Navy personnel must cease firing. during the activity (by not recom- (C) Commencement/recommencement mencing bomb deployment or mine conditions after a marine mammal laying) until one of the following con- sighting prior to or during the activity: ditions has been met: The animal is ob- Navy personnel must allow a sighted served exiting the mitigation zone; the marine mammal to leave the mitiga- animal is thought to have exited the tion zone prior to the initial start of mitigation zone based on a determina- the activity (by delaying the start) or tion of its course, speed, and movement during the activity (by not recom- relative to the intended target or mine- mencing firing) until one of the fol- field location; the mitigation zone has lowing conditions has been met: The been clear from any additional animal is observed exiting the mitiga- sightings for 10 min; or for activities tion zone; the animal is thought to using mobile targets, the intended tar- have exited the mitigation zone based get has transited a distance equal to on a determination of its course, speed, double that of the mitigation zone size and movement relative to the intended beyond the location of the last sight- impact location; or the mitigation zone ing. has been clear from any additional (b) Mitigation areas. In addition to sightings for 10 min when the activity procedural mitigation, the Navy must

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implement mitigation measures within is thought to have exited the vicinity mitigation areas to avoid potential im- of the activity based on a determina- pacts on marine mammals. tion of its course, speed, and movement (1) Mitigation areas off the North- relative to the activity location; or the eastern United States for sonar, explo- area has been clear from any additional sives, and physical disturbance and sightings for 30 min. During transits strikes—(i) Mitigation area require- and normal firing, ships must maintain ments—(A) Northeast North Atlantic a speed of no more than 10 knots (kn). Right Whale Mitigation Area (year- During submarine target firing, ships round). (1) Navy personnel must report must maintain speeds of no more than the total hours and counts of active 18 kn. During vessel target firing, ves- sonar and in-water explosives used in sel speeds may exceed 18 kn for brief the mitigation area (which includes periods of time (e.g., 10–15 min). North Atlantic right whale ESA-des- (5) For all activities, before a vessel ignated critical habitat) in its annual transits within the mitigation area, training and testing activity reports Navy personnel must conduct a web submitted to NMFS. query or email inquiry to the National (2) Navy personnel must minimize Oceanographic and Atmospheric Ad- the use of low-frequency active sonar, ministration Northeast Fisheries mid-frequency active sonar, and high- Science Center’s North Atlantic Right frequency active sonar to the max- Whale Sighting Advisory System to ob- imum extent practicable within the tain the latest North Atlantic right mitigation area. whale sightings information. Navy per- (3) Navy personnel must not use Im- sonnel on vessels must use the proved Extended Echo Ranging sightings information to reduce poten- sonobuoys in or within 3 nmi of the tial interactions with North Atlantic mitigation area or use explosive and right whales during transits. Navy per- non-explosive bombs, in-water detona- sonnel on vessels must implement tions, and explosive torpedoes within speed reductions within the mitigation the mitigation area. area after observing a North Atlantic (4) For activities using non-explosive right whale, if transiting within 5 nmi torpedoes within the mitigation area, of a sighting reported to the North At- Navy personnel must conduct activi- lantic Right Whale Sighting Advisory ties during daylight hours in Beaufort System within the past week, and if sea state 3 or less. The Navy must use transiting at night or during periods of three Lookouts (one positioned on a reduced visibility. vessel and two positioned in an aircraft (B) Gulf of Maine Planning Awareness during dedicated aerial surveys) to ob- Mitigation Area (year-round). (1) Navy serve the vicinity of the activity. An personnel must report the total hours additional Lookout must be positioned and counts of active sonar and in-water on the submarine, when surfaced. Im- explosives used in the mitigation area mediately prior to the start of the ac- in its annual training and testing activity, Navy personnel must observe tivity reports submitted to NMFS. for floating vegetation and marine (2) Navy personnel must not conduct mammals; if floating vegetation or ma- greater than 200 hrs of hull-mounted rine mammals are observed, Navy per- mid-frequency active sonar per year sonnel must not commence the activ- within the mitigation area. ity until the vicinity is clear or the ac- (3) Navy personnel must not conduct tivity is relocated to an area where the major training exercises (Composite vicinity is clear. During the activity, Training Unit Exercises or Fleet Exer- Navy personnel must observe for ma- cises/Sustainment Exercises) within rine mammals; if observed, Navy per- the mitigation area. If the Navy needs sonnel must cease the activity. To to conduct a major training exercise allow a sighted marine mammal to within the mitigation area in support leave the area, Navy personnel must of training requirements driven by na- not recommence the activity until one tional security concerns, Navy per- of the following conditions has been sonnel must confer with NMFS to met: The animal is observed exiting verify that potential impacts are ade- the vicinity of the activity; the animal quately addressed.

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(C) Northeast Planning Awareness Miti- (4) Before transiting or conducting gation Areas (year-round). (1) Navy per- training or testing activities within sonnel will avoid planning major train- the mitigation area, Navy personnel ing exercises (Composite Training Unit must initiate communication with the Exercises or Fleet Exercises/ Fleet Area Control and Surveillance Sustainment Exercises) within the Facility, Jacksonville to obtain Early mitigation area to the maximum ex- Warning System North Atlantic right tent practicable. whale sightings data. The Fleet Area (2) Navy personnel must not conduct Control and Surveillance Facility, more than four major training exer- Jacksonville must advise Navy per- cises per year (all or a portion of the sonnel on vessels of all reported whale exercise) within the mitigation area. sightings in the vicinity to help Navy (3) If the Navy needs to conduct addi- personnel on vessels and aircraft re- tional major training exercises in the duce potential interactions with North mitigation area in support of training Atlantic right whales. Commander requirements driven by national secu- Submarine Force U.S. Atlantic Fleet rity concerns, Navy personnel must must coordinate any submarine activi- provide NMFS with advance notification and include the information in its ties that may require approval from annual training and testing activity re- the Fleet Area Control and Surveil- ports submitted to NMFS. lance Facility, Jacksonville. Navy per- (ii) [Reserved] sonnel on vessels must use the (2) Mitigation areas off the Mid-Atlan- sightings information to reduce poten- tic and Southeastern United States for tial interactions with North Atlantic sonar, explosives, and physical disturb- right whales during transits. ance and strikes—(i) Mitigation area re- (5) Navy personnel on vessels must quirements—(A) Southeast North Atlantic implement speed reductions after they Right Whale Mitigation Area (November observe a North Atlantic right whale, 15 through April 15). (1) Navy personnel if they are within 5 nmi of a sighting must report the total hours and counts reported within the past 12 hrs, or of active sonar and in-water explosives when operating in the mitigation area used in the mitigation area in its an- at night or during periods of poor visi- nual training and testing activity re- bility. ports submitted to NMFS. (6) To the maximum extent prac- (2) The Navy must not conduct: Low- ticable, Navy personnel on vessels frequency active sonar (except as noted must minimize north-south transits in in paragraph (b)(2)(i)(A)(3) of this sec- the mitigation area. tion), mid-frequency active sonar (ex- (B) Southeast North Atlantic Right cept as noted in paragraph Whale Critical Habitat Special Reporting (b)(2)(i)(A)(3) of this section), high-fre- Area (November 15 through April 15). (1) quency active sonar, missile and rocket Navy personnel must report the total activities (explosive and non-explo- hours and counts of active sonar and sive), small-, medium-, and large-cal- in-water explosives used in the Special iber gunnery activities, Improved Ex- tended Echo Ranging sonobuoy activi- Reporting Area (which includes south- ties, explosive and non-explosive bomb- east North Atlantic right whale ESA- ing activities, in-water detonations, designated critical habitat) in its an- and explosive torpedo activities within nual training and testing activity re- the mitigation area. ports submitted to NMFS. (3) To the maximum extent prac- (2) [Reserved] ticable, Navy personnel must minimize (C) Jacksonville Operating Area (No- the use of: Helicopter dipping sonar, vember 15 through April 15). (1) Navy low-frequency active sonar and hull- units conducting training or testing mounted mid-frequency active sonar activities in the Jacksonville Oper- used for navigation training, and low- ating Area must initiate communica- frequency active sonar and hull-mount- tion with the Fleet Area Control and ed mid-frequency active sonar used for Surveillance Facility, Jacksonville to object detection exercises within the obtain Early Warning System North mitigation area. Atlantic right whale sightings data.

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The Fleet Area Control and Surveil- annual training and testing activity re- lance Facility, Jacksonville must ad- ports submitted to NMFS. vise Navy personnel on vessels of all re- (ii) [Reserved] ported whale sightings in the vicinity (3) Mitigation areas in the Gulf of Mex- to help Navy personnel on vessels and ico for sonar and explosives—(i) Mitiga- aircraft reduce potential interactions tion area requirements—(A) Gulf of Mex- with North Atlantic right whales. Com- ico Planning Awareness Mitigation Areas mander Submarine Force U.S. Atlantic (year-round). (1) Navy personnel must Fleet must coordinate any submarine not conduct major training exercises activities that may require approval within the mitigation area (all or a from the Fleet Area Control and Sur- portion of the exercise). veillance Facility, Jacksonville. Navy (2) If the Navy needs to conduct a personnel must use the reported major training exercise within the sightings information as they plan spe- mitigation areas in support of training cific details of events (e.g., timing, lo- requirements driven by national secu- cation, duration) to minimize potential rity concerns, Navy personnel must interactions with North Atlantic right confer with NMFS to verify that poten- whales to the maximum extent prac- tial impacts are adequately addressed. ticable. Navy personnel must use the (B) Bryde’s Whale Mitigation Area reported sightings information to as- (year-round). (1) Navy personnel must sist visual observations of applicable report the total hours and counts of ac- mitigation zones and to aid in the im- tive sonar and in-water explosives used plementation of procedural mitigation. in the mitigation area in its annual (2) [Reserved] training and testing activity reports (D) Navy Cherry Point Range Complex submitted to NMFS. Nearshore Mitigation Area (March (2) Navy personnel must not conduct through September). (1) Navy personnel greater than 200 hrs of hull-mounted must not conduct explosive mine neu- mid-frequency active sonar per year tralization activities involving Navy within the mitigation area. divers in the mitigation area. (3) Navy personnel must not use ex- (2) To the maximum extent prac- plosives (except during mine warfare ticable, Navy personnel must not use activities) within the mitigation area. explosive sonobuoys, explosive torpedoes, explosive medium-caliber and (ii) [Reserved] large-caliber projectiles, explosive mis- § 218.85 Requirements for monitoring siles and rockets, explosive bombs, ex- and reporting. plosive mines during mine countermeasure and neutralization activities, (a) Unauthorized take. The Navy must and anti-swimmer grenades in the notify NMFS immediately (or as soon mitigation area. as operational security considerations (E) Mid-Atlantic Planning Awareness allow) if the specified activity identi- Mitigation Areas (year-round). (1) Navy fied in § 218.80 is thought to have re- personnel will avoid planning major sulted in the mortality or serious in- training exercises (Composite Training jury of any marine mammals, or in any Unit Exercises or Fleet Exercises/ Level A or Level B harassment take of Sustainment Exercises) to the max- marine mammals not identified in this imum extent practicable. subpart. (2) Navy personnel must not conduct (b) Monitoring and reporting under the more than four major training exer- LOAs. The Navy must conduct all mon- cises per year (all or a portion of the itoring and required reporting under exercise) within the mitigation area. the LOAs, including abiding by the (3) If the Navy needs to conduct addi- AFTT Study Area monitoring program. tional major training exercises in the Details on program goals, objectives, mitigation area in support of training project selection process, and current requirements driven by national secu- projects are available at rity concerns, Navy personnel must www.navymarinespeciesmonitoring.us. provide NMFS with advance notifica- (c) Notification of injured, live strand- tion and include the information in its ed, or dead marine mammals. The Navy

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must consult the Notification and Re- tion. The analysis in the detailed reporting Plan, which sets out notifica- port must be based on the accumulation, reporting, and other requirements tion of data from the current year’s re- when dead, injured, or live stranded port and data collected from the pre- marine mammals are detected. The No- vious report. The detailed reports must tification and Reporting Plan is avail- contain information identified in para- able at www.fisheries.noaa.gov/national/ graphs (e)(1) through (5) of this section. marine-mammal-protection/incidental- (1) Major training exercises (MTEs). take-authorizations-military-readiness-ac- This section of the report must contain tivities. the following information for MTEs (d) Annual AFTT Study Area marine conducted in the AFTT Study Area: species monitoring report. The Navy (i) Exercise information (for each must submit an annual report of the MTE): AFTT Study Area monitoring describ- (A) Exercise designator; ing the implementation and results (B) Date that exercise began and from the previous calendar year. Data ended; collection methods must be standard- (C) Location; ized across range complexes and study (D) Number and types of active sonar areas to allow for comparison in dif- sources used in the exercise; ferent geographic locations. The report (E) Number and types of passive must be submitted to the Director, Of- acoustic sources used in exercise; fice of Protected Resources of NMFS (F) Number and types of vessels, air- either within 90 days after the calendar craft, and other platforms partici- year, or within 90 days after the con- pating in exercise; clusion of the monitoring year to be (G) Total hours of all active sonar determined by the Adaptive Manage- source operation; ment process. This report will describe (H) Total hours of each active sonar progress of knowledge made with re- source bin; and spect to monitoring plan study ques- (I) Wave height (high, low, and aver- tions across all Navy ranges associated age) during exercise. with the Integrated Comprehensive (ii) Individual marine mammal sight- Monitoring Program. Similar study ing information for each sighting in questions must be treated together so each exercise where mitigation was im- that progress on each topic can be sum- plemented: marized across all Navy ranges. The re- (A) Date/time/location of sighting; port need not include analyses and con- (B) Species (if not possible, indica- tent that does not provide direct as- tion of whale/dolphin/pinniped); sessment of cumulative progress on the (C) Number of individuals; monitoring plan study questions. (D) Initial detection sensor (e.g., (e) Annual AFTT Study Area training sonar, Lookout); and testing reports. Each year, the Navy (E) Indication of specific type of plat- must submit a preliminary report form observation made from (includ- (Quick Look Report) detailing the sta- ing, for example, what type of surface tus of authorized sound sources within vessel or testing platform); 21 days after the anniversary of the (F) Length of time observers main- date of issuance of each LOA to the Di- tained visual contact with marine rector, Office of Protected Resources, mammal; NMFS. Each year, the Navy must sub- (G) Sea state; mit a detailed report within 3 months (H) Visibility; after the anniversary of the date of (I) Sound source in use at the time of issuance of each LOA to the Director, sighting; Office of Protected Resources, NMFS. (J) Indication of whether animal was The annual reports must contain infor- less than 200 yd, 200 to 500 yd, 500 to mation on major training exercises 1,000 yd, 1,000 to 2,000 yd, or greater (MTEs), sinking exercise (SINKEX) than 2,000 yd from sonar source; events, and a summary of all sound (K) Mitigation implementation (e.g. sources used, including within specified whether operation of sonar sensor was mitigation reporting areas, as de- delayed, or sonar was powered or shut scribed in paragraph (e)(3) of this sec- down, and how long the delay was);

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(L) If source in use was hull-mount- (D) Initial detection sensor (e.g., ed, true bearing of animal from the sonar or Lookout); vessel, true direction of vessel’s travel, (E) Length of time observers main- and estimation of animal’s motion rel- tained visual contact with marine ative to vessel (opening, closing, par- mammal; allel); and (F) Sea state; (M) Lookouts must report, in plain (G) Visibility; and language and without trying to cat- (H) Whether sighting was before, dur- egorize in any way, the observed behav- ing, or after detonations/exercise, and ior of the animal(s) (such as animal how many minutes before or after. closing to bow ride, paralleling course/ (I) Distance of marine mammal from speed, floating on surface and not actual detonations (e.g. less than 200 swimming, etc.) and if any calves were yd, 200 to 500 yd, 500 to 1,000 yd, 1,000 to present. 2,000 yd, or greater than 2,000 yd, or (iii) An evaluation (based on data target spot if not yet detonated). gathered during all of the MTEs) of the (J) Lookouts must report, in plain effectiveness of mitigation measures language and without trying to cat- designed to minimize the received level egorize in any way, the observed behav- to which marine mammals may be ex- ior of the animal(s) (such as animal posed. This evaluation must identify closing to bow ride, paralleling course/ the specific observations that support speed, floating on surface and not any conclusions the Navy reaches swimming etc.), including speed and di- about the effectiveness of the mitiga- rection and if any calves were present. tion. (K) Resulting mitigation implemen- (2) Sinking exercises (SINKEXs). This tation: The report must indicate section of the report must include the whether explosive detonations were de- following information for each SINKEX layed, ceased, modified, or not modi- completed that year: fied due to marine mammal presence (i) Exercise information (gathered for and for how long. each SINKEX): (L) If observation occurred while ex- (A) Location; plosives were detonating in the water, (B) Date and time exercise began and indicate munition type in use at time ended; of marine mammal detection. (C) Total hours of observation by (3) Summary of sources used. This sec- Lookouts before, during, and after ex- tion must include the following infor- ercise; mation summarized from the author- (D) Total number and types of explo- ized sound sources used in all training sive source bins detonated; and testing events: (E) Number and types of passive (i) Total annual hours or quantity acoustic sources used in exercise; (per the LOA) of each bin of sonar or (F) Total hours of passive acoustic other acoustic sources (pile driving and search time; air gun activities); and (G) Number and types of vessels, air- (ii) Total annual expended/detonated craft, and other platforms partici- ordnance (missiles, bombs, sonobuoys, pating in exercise; etc.) for each explosive bin. (H) Wave height in feet (high, low, (4) Geographic information presen- and average) during exercise; and tation. The reports must present an an- (I) Narrative description of sensors nual (and seasonal, where practical) de- and platforms utilized for marine piction of training and testing bin mammal detection and timeline illus- usage (as well as pile driving activities) trating how marine mammal detection geographically across the AFTT Study was conducted. Area. (ii) Individual marine mammal sight- (5) Sonar exercise notification. The ing information for each sighting Navy must submit to NMFS (contact where mitigation was implemented: as specified in the LOA) an electronic (A) Date/time/location of sighting; report within fifteen calendar days (B) Species (if not possible, indicate after the completion of any MTE indi- whale, dolphin, or pinniped); cating: (C) Number of individuals; (i) Location of the exercise;

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(ii) Beginning and end dates of the (2) Specified geographic areas for in- exercise; and cidental taking; (iii) Type of exercise. (3) Means of effecting the least prac- (f) Seven-year close-out comprehensive ticable adverse impact (i.e., mitigation) training and testing report. This report on the species or stocks of marine must be included as part of the 2025 an- mammals and their habitat; and nual training and testing report. This (4) Requirements for monitoring and report must provide the annual totals reporting. for each sound source bin with a com- (f) Issuance of the LOA(s) will be parison to the annual allowance and based on a determination that the level the seven-year total for each sound of taking must be consistent with the source bin with a comparison to the findings made for the total taking al- seven-year allowance. Additionally, if lowable under the regulations in this there were any changes to the sound subpart. source allowance, this report must in- (g) Notice of issuance or denial of the clude a discussion of why the change LOA(s) will be published in the FED- was made and include the analysis to ERAL REGISTER within 30 days of a de- support how the change did or did not termination. result in a change in the EIS and final rule determinations. The draft report § 218.87 Renewals and modifications of must be submitted within three Letters of Authorization. months after the expiration of this subpart to the Director, Office of Pro- (a) An LOA issued under §§ 216.106 of tected Resources, NMFS. NMFS must this subchapter and 218.86 may be re- submit comments on the draft close- newed or modified upon request by the out report, if any, within three months applicant, provided that: of receipt. The report will be consid- (1) The planned specified activity and ered final after the Navy has addressed mitigation, monitoring, and reporting NMFS’ comments, or 3 months after measures, as well as the anticipated the submittal of the draft if NMFS impacts, are the same as those de- does not provide comments. scribed and analyzed for the regulations in this subpart (excluding § 218.86 Letters of Authorization. changes made pursuant to the adaptive (a) To incidentally take marine management provision in paragraph mammals pursuant to the regulations (c)(1) of this section); and in this subpart, the Navy must apply (2) NMFS determines that the miti- for and obtain Letters of Authorization gation, monitoring, and reporting (LOAs) in accordance with § 216.106 of measures required by the previous this chapter. LOA(s) under the regulations in this (b) LOAs, unless suspended or re- subpart were implemented. voked, may be effective for a period of (b) For LOA modification or renewal time not to exceed the expiration date requests by the applicant that include of the regulations in this subpart. changes to the activity or to the miti- (c) If an LOA expires prior to the ex- gation, monitoring, or reporting meas- piration date of the regulations in this ures (excluding changes made pursuant subpart, the Navy may apply for and to the adaptive management provision obtain a renewal of the LOA. in paragraph (c)(1) of this section) that (d) In the event of projected changes do not change the findings made for to the activity or to mitigation, moni- the regulations in this subpart or re- toring, or reporting (excluding changes sult in no more than a minor change in made pursuant to the adaptive man- the total estimated number of takes agement provision of § 218.87(c)(1) as re- (or distribution by species or stock or quired by an LOA issued under this years), NMFS may publish a notice of subpart, the Navy must apply for and planned LOA in the FEDERAL REGISTER, obtain a modification of the LOA as de- including the associated analysis of the scribed in § 218.87. change, and solicit public comment be- (e) Each LOA will set forth: fore issuing the LOA. (1) Permissible methods of incidental (c) An LOA issued under §§ 216.106 of taking; this subchapter and 218.86 may be

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modified by NMFS under the following § 218.90 Specified activity and geo- circumstances: graphical region. (1) Adaptive management. After con- (a) Regulations in this subpart apply sulting with the Navy regarding the only to the U.S. Navy for the taking of practicability of the modifications, marine mammals that occurs in the NMFS may modify (including adding area described in paragraph (b) of this or removing measures) the existing section and that occurs incidental to mitigation, monitoring, or reporting the activities listed in paragraph (c) of measures if doing so creates a reason- this section. able likelihood of more effectively ac- (b) The taking of marine mammals complishing the goals of the mitiga- by the Navy under this subpart may be tion and monitoring. authorized in a Letter of Authorization (i) Possible sources of data that could (LOA) only if it occurs within the Mar- contribute to the decision to modify iana Islands Training and Testing the mitigation, monitoring, or report- (MITT) Study Area. The MITT Study ing measures in an LOA include: Area is comprised of three components: (A) Results from the Navy’s moni- The Mariana Islands Range Complex toring from the previous year(s); (MIRC), additional areas on the high seas, and a transit corridor between (B) Results from other marine mam- the MIRC and the Hawaii Range Com- mal and/or sound research or studies; plex (HRC). The MIRC includes the or waters south of Guam to north of (C) Any information that reveals ma- Pagan (Commonwealth of the Northern rine mammals may have been taken in Mariana Islands (CNMI)), and from the a manner, extent, or number not au- Pacific Ocean east of the Mariana Is- thorized by the regulations in this sub- lands to the Philippine Sea to the west, part or subsequent LOAs. encompassing 501,873 square nautical (ii) If, through adaptive management, miles (nmi2) of open ocean. The addi- the modifications to the mitigation, tional areas of the high seas include monitoring, or reporting measures are the area to the north of the MIRC that substantial, NMFS will publish a no- is within the U.S. Exclusive Economic tice of planned LOA in the FEDERAL Zone (EEZ) of the CNMI and the areas REGISTER and solicit public comment. to the west of the MIRC. The transit (2) Emergencies. If NMFS determines corridor is outside the geographic that an emergency exists that poses a boundaries of the MIRC and represents significant risk to the well-being of the a great circle route (i.e., the shortest species or stocks of marine mammals distance) across the high seas for Navy specified in LOAs issued pursuant to ships transiting between the MIRC and §§ 216.106 of this chapter and 218.86, an the HRC. Additionally, the MITT LOA may be modified without prior no- Study Area includes pierside locations tice or opportunity for public com- in the Apra Harbor Naval Complex. ment. Notice would be published in the (c) The taking of marine mammals FEDERAL REGISTER within thirty days by the Navy is only authorized if it oc- of the action. curs incidental to the Navy conducting training and testing activities, includ- §§ 218.88–218.89 [Reserved] ing: (1) Training. (i) Amphibious warfare; Subpart J—Taking and Importing (ii) Anti-submarine warfare; (iii) Mine warfare; Marine Mammals; U.S. Navy’s (iv)–(v) [Reserved]; Mariana Islands Training and (vi) Surface warfare; and Testing (MITT) (vii) Other training activities. (2) Testing. (i) Naval Air Systems SOURCE: 85 FR 46410, July 31, 2020, unless Command Testing Activities; otherwise noted. (ii) Naval Sea Systems Command EFFECTIVE DATE NOTE: At 85 FR 46410, July Testing Activities; and 31, 2020, subpart J was revised, effective from (iii) Office of Naval Research Testing July 31, 2020, to July 30, 2027. Activities.

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§ 218.91 Effective dates. ments of this subpart or an LOA issued Regulations in this subpart are effec- under §§ 216.106 of this section and tive from July 31, 2020, to July 30, 2027. 218.96; (b) Take any marine mammal not § 218.92 Permissible methods of tak- specified in § 218.92(b); ing. (c) Take any marine mammal speci- (a) Under an LOA issued pursuant to fied in § 218.92(b) in any manner other §§ 216.106 of this section and 218.96, the than as specified in the LOA issued Holder of the LOA (hereinafter under §§ 216.106 of this chapter and ‘‘Navy’’) may incidentally, but not in- 218.96; or tentionally, take marine mammals (d) Take a marine mammal specified within the area described in § 218.90(b) in § 218.92(b) if NMFS determines such by Level A harassment and Level B taking results in more than a neg- harassment associated with the use of ligible impact on the species of such active sonar and other acoustic sources marine mammal. and explosives, provided the activity is in compliance with all terms, condi- § 218.94 Mitigation requirements. tions, and requirements of the regula- When conducting the activities iden- tions in this subpart and the applicable tified in § 218.90(c), the mitigation LOA. measures contained in any LOA issued (b) The incidental take of marine under §§ 216.106 of this section and 218.96 mammals by the activities listed in must be implemented. These mitiga- § 218.90(c) is limited to the species list- tion measures include, but are not lim- ed in Table 1 of this section. ited to: (a) Procedural TABLE 1 TO § 218.92(b) Procedural mitigation. mitigation is mitigation that the Navy Species Scientific name must implement whenever and wher-

Blue whale ...... Balaenoptera musculus. ever an applicable training or testing Bryde’s whale ...... Balaenoptera edeni. activity takes place within the MITT Fin whale ...... Balaenoptera physalus. Study Area for each applicable activity Humpback whale ...... Megaptera novaeangliae. category or stressor category and in- Minke whale ...... Balaenoptera acutorostrata. Omura’s whale ...... Balaenoptera omurai. cludes acoustic stressors (i.e., active Sei whale ...... Balaenoptera borealis. sonar and other transducers, weapons Blainville’s beaked whale ...... Mesoplodon densirostris. firing noise), explosive stressors (i.e., Common bottlenose dolphin .. Tursiops truncatus. Cuvier’s beaked whale ...... Ziphius cavirostris. sonobuoys, torpedoes, medium-caliber Dwarf sperm whale ...... Kogia sima. and large-caliber projectiles, missiles False killer whale ...... Pseudorca crassidens. and rockets, bombs, sinking exercises, Fraser’s dolphin ...... Lagenodelphis hosei. Ginkgo-toothed beaked whale Mesoplodon ginkgodens. mines, anti-swimmer grenades), and Killer whale ...... Orcinus orca. physical disturbance and strike Longman’s beaked whale ...... Indopacetus pacificus. stressors (i.e., vessel movement; towed Melon-headed whale ...... Peponocephala electra. Pantropical spotted dolphin ... Stenella attenuata. in-water devices; small-, medium-, and Pygmy killer whale ...... Feresa attenuata. large-caliber non-explosive practice Pygmy sperm whale ...... Kogia breviceps. munitions; non-explosive missiles and Risso’s dolphin ...... Grampus griseus. rockets; and non-explosive bombs and Rough-toothed dolphin ...... Steno bredanensis. Short-finned pilot whale ...... Globicephala macrorhynchus. mine shapes). Sperm whale ...... Physeter macrocephalus. (1) Environmental awareness and edu- Spinner dolphin ...... Stenella longirostris. cation. Appropriate Navy personnel (in- Striped dolphin ...... Stenella coeruleoalba. cluding civilian personnel) involved in mitigation and training or testing re- § 218.93 Prohibitions. porting under the specified activities Notwithstanding incidental takings will complete one or more modules of contemplated in § 218.92(a) and author- the U.S. Navy Afloat Environmental ized by an LOA issued under §§ 216.106 of Compliance Training Series, as identi- this section and 218.96, no person in fied in their career path training plan. connection with the activities listed in Modules include: Introduction to the § 218.90(c) may: U.S. Navy Afloat Environmental Com- (a) Violate, or fail to comply with, pliance Training Series, Marine Spe- the terms, conditions, and require- cies Awareness Training; U.S. Navy

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Protective Measures Assessment Pro- tional 4 dB (for a total of 10 dB) if ma- tocol; and U.S. Navy Sonar Positional rine mammals are observed within 500 Reporting System and Marine Mammal yd of the sonar source; and cease trans- Incident Reporting. mission if marine mammals are ob- (2) Active sonar. Active sonar includes served within 200 yd of the sonar low-frequency active sonar, mid-fre- source. quency active sonar, and high-fre- (C) During the activity for low-frequency active sonar. For vessel-based quency active sonar below 200 dB, mid- activities, mitigation applies only to frequency active sonar sources that are sources that are positively controlled not hull mounted, and high-frequency and deployed from manned surface ves- active sonar, Navy personnel must ob- sels (e.g., sonar sources towed from serve the mitigation zone for marine manned surface platforms). For air- mammals and cease active sonar trans- craft-based activities, mitigation ap- mission if marine mammals are ob- plies only to sources that are posi- served within 200 yd of the sonar tively controlled and deployed from source. manned aircraft that do not operate at (D) Commencement/recommence- high altitudes (e.g., rotary-wing air- ment conditions after a marine mam- craft). Mitigation does not apply to ac- mal sighting before or during the activ- tive sonar sources deployed from un- ity. Navy personnel must allow a sight- manned aircraft or aircraft operating ed marine mammal to leave the miti- at high altitudes (e.g., maritime patrol gation zone prior to the initial start of aircraft). the activity (by delaying the start) or (i) Number of Lookouts and observation during the activity (by not recom- platform—(A) Hull-mounted sources. One mencing or powering up active sonar Lookout must be positioned for plat- transmission) until one of the fol- forms with space or manning restric- lowing conditions has been met: The tions while underway (at the forward animal is observed exiting the mitiga- part of a small boat or ship) and plat- tion zone; the animal is thought to forms using active sonar while moored have exited the mitigation zone based or at anchor (including pierside); and on a determination of its course, speed, two Lookouts must be positioned for and movement relative to the sonar platforms without space or manning source; the mitigation zone has been restrictions while underway (at the for- clear from any additional sightings for ward part of the ship). 10 minutes (min) for aircraft-deployed (B) Sources that are not hull-mounted sonar sources or 30 min for vessel-de- sources. One Lookout must be posi- ployed sonar sources; for mobile activi- tioned on the ship or aircraft con- ties, the active sonar source has ducting the activity. transited a distance equal to double (ii) Mitigation zone and requirements. that of the mitigation zone size beyond The mitigation zones must be the zones the location of the last sighting; or for as described in paragraphs (a)(2)(ii)(B) activities using hull-mounted sonar and (C) of this section. where a dolphin(s) is observed in the (A) Prior to the initial start of the mitigation zone, the Lookout con- activity (e.g., when maneuvering on cludes that the dolphin(s) is delib- station), Navy personnel must observe erately closing in on the ship to ride the mitigation zone for marine mam- the ship’s bow wave, and is therefore mals; if marine mammals are observed, out of the main transmission axis of Navy personnel must relocate or delay the sonar (and there are no other ma- the start of active sonar transmission. rine mammal sightings within the (B) During the activity for low-fre- mitigation zone). quency active sonar at or above 200 dB (3) Weapons firing noise. Weapons fir- and hull-mounted mid-frequency active ing noise associated with large-caliber sonar, Navy personnel must observe gunnery activities. the mitigation zone for marine mam- (i) Number of Lookouts and observation mals and power down active sonar platform. One Lookout must be posi- transmission by 6 dB if marine mam- tioned on the ship conducting the fir- mals are observed within 1,000 yd of the ing. Depending on the activity, the sonar source; power down by an addi- Lookout could be the same as the one

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provided for under ‘‘Explosive medium- (B) Prior to the initial start of the caliber and large-caliber projectiles’’ or activity (e.g., during deployment of a under ‘‘Small-, medium-, and large-cal- sonobuoy pattern, which typically iber non-explosive practice munitions’’ lasts 20–30 min), Navy personnel must in paragraphs (a)(6)(i) and (a)(15)(i) of conduct passive acoustic monitoring this section. for marine mammals and use informa- (ii) Mitigation zone and requirements. tion from detections to assist visual The mitigation zone must be thirty de- observations. Navy personnel also must grees on either side of the firing line visually observe the mitigation zone out to 70 yd from the muzzle of the for marine mammals; if marine mam- weapon being fired. mals are observed, Navy personnel (A) Prior to the initial start of the must relocate or delay the start of son- activity, Navy personnel must observe obuoy or source/receiver pair detona- the mitigation zone for marine mam- tions. mals; if marine mammals are observed, (C) During the activity, Navy per- Navy personnel must relocate or delay sonnel must observe the mitigation the start of weapons firing. zone for marine mammals; if marine (B) During the activity, Navy per- mammals are observed, Navy personnel sonnel must observe the mitigation must cease sonobuoy or source/receiver zone for marine mammals; if marine pair detonations. mammals are observed, Navy personnel (D) Commencement/recommence- must cease weapons firing. ment conditions after a marine mam- (C) Commencement/recommencement mal sighting before or during the activ- conditions after a marine mammal ity. Navy personnel must allow a sight- sighting before or during the activity. ed marine mammal to leave the miti- Navy personnel must allow a sighted gation zone prior to the initial start of marine mammal to leave the mitiga- the activity (by delaying the start) or tion zone prior to the initial start of during the activity (by not recom- the activity (by delaying the start) or mencing detonations) until one of the during the activity (by not recom- following conditions has been met: The mencing weapons firing) until one of animal is observed exiting the mitiga- the following conditions has been met: tion zone; the animal is thought to The animal is observed exiting the have exited the mitigation zone based mitigation zone; the animal is thought on a determination of its course, speed, to have exited the mitigation zone and movement relative to the sono- based on a determination of its course, buoy; or the mitigation zone has been speed, and movement relative to the clear from any additional sightings for firing ship; the mitigation zone has 10 min when the activity involves air- been clear from any additional craft that have fuel constraints (e.g., sightings for 30 min; or for mobile ac- helicopter), or 30 min when the activity tivities, the firing ship has transited a involves aircraft that are not typically distance equal to double that of the fuel constrained. mitigation zone size beyond the loca- (E) After completion of the activity tion of the last sighting. (e.g., prior to maneuvering off station), (4) Explosive sonobuoys—(i) Number of when practical (e.g., when platforms Lookouts and observation platform. One are not constrained by fuel restrictions Lookout must be positioned in an air- or mission-essential follow-on commit- craft or on a small boat. If additional ments), Navy personnel must observe platforms are participating in the ac- for marine mammals in the vicinity of tivity, Navy personnel positioned on where detonations occurred; if any in- those assets (e.g., safety observers, jured or dead marine mammals are ob- evaluators) must support observing the served, Navy personnel must follow es- mitigation zone for marine mammals tablished incident reporting proce- and other applicable biological re- dures. If additional platforms are sup- sources while performing their regular porting this activity (e.g., providing duties. range clearance), Navy personnel on (ii) Mitigation zone and requirements. these assets must assist in the visual (A) The mitigation zone must be 600 yd observation of the area where detona- around an explosive sonobuoy. tions occurred.

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(5) Explosive torpedoes—(i) Number of observe for marine mammals in the vi- Lookouts and observation platform. One cinity of where detonations occurred; if Lookout must be positioned in an air- any injured or dead marine mammals craft. If additional platforms are par- are observed, Navy personnel must fol- ticipating in the activity, Navy per- low established incident reporting pro- sonnel positioned on those assets (e.g., cedures. If additional platforms are safety observers, evaluators) must sup- supporting this activity (e.g., providing port observing the mitigation zone for range clearance), Navy personnel on marine mammals and other applicable these assets must assist in the visual biological resources while performing observation of the area where detona- their regular duties. tions occurred. (ii) Mitigation zone and requirements. (6) Explosive medium-caliber and large- (A) The mitigation zone must be 2,100 caliber projectiles. Gunnery activities yd around the intended impact loca- using explosive medium-caliber and tion. large-caliber projectiles. Mitigation ap- (B) Prior to the initial start of the plies to activities using a surface tar- activity (e.g., during deployment of the get. target), Navy personnel must conduct (i) Number of Lookouts and observation passive acoustic monitoring for marine platform. One Lookout must be on the mammals and use the information vessel or aircraft conducting the activ- from detections to assist visual obser- ity. For activities using explosive vations. Navy personnel also must vis- large-caliber projectiles, depending on ually observe the mitigation zone for the activity, the Lookout could be the marine mammals; if marine mammals same as the one described in ‘‘Weapons are observed, Navy personnel must re- firing noise’’ in paragraph (a)(3)(i) of locate or delay the start of firing. this section. If additional platforms are (C) During the activity, Navy per- participating in the activity, Navy personnel must observe the mitigation sonnel positioned on those assets (e.g., zone for marine mammals. If marine safety observers, evaluators) must sup- mammals are observed, Navy personnel port observing the mitigation zone for must cease firing. marine mammals and other applicable (D) Commencement/recommence- biological resources while performing ment conditions after a marine mam- their regular duties. mal sighting before or during the activity. Navy personnel must allow a sight- (ii) Mitigation zone and requirements. ed marine mammal to leave the miti- (A) The mitigation zone must be 200 yd gation zone prior to the initial start of around the intended impact location the activity (by delaying the start) or for air-to-surface activities using ex- during the activity (by not recom- plosive medium-caliber projectiles. mencing firing) until one of the fol- (B) The mitigation zone must be 600 lowing conditions has been met: The yd around the intended impact location animal is observed exiting the mitiga- for surface-to-surface activities using tion zone; the animal is thought to explosive medium-caliber projectiles. have exited the mitigation zone based (C) The mitigation zone must be 1,000 on a determination of its course, speed, yd around the intended impact location and movement relative to the intended for surface-to-surface activities using impact location; or the mitigation zone explosive large-caliber projectiles. has been clear from any additional (D) Prior to the initial start of the sightings for 10 min when the activity activity (e.g., when maneuvering on involves aircraft that have fuel con- station), Navy personnel must observe straints, or 30 min when the activity the mitigation zone for marine mam- involves aircraft that are not typically mals; if marine mammals are observed, fuel constrained. Navy personnel must relocate or delay (E) After completion of the activity the start of firing. (e.g., prior to maneuvering off station), (E) During the activity, Navy per- Navy personnel must when practical sonnel must observe the mitigation (e.g., when platforms are not con- zone for marine mammals; if marine strained by fuel restrictions or mis- mammals are observed, Navy personnel sion-essential follow-on commitments), must cease firing.

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(F) Commencement/recommencement for missiles or rockets with 0.6–20 lb conditions after a marine mammal net explosive weight. sighting before or during the activity. (B) 2,000 yd around the intended im- Navy personnel must allow a sighted pact location for missiles with 21–500 lb marine mammal to leave the mitiga- net explosive weight. tion zone prior to the initial start of (C) Prior to the initial start of the the activity (by delaying the start) or activity (e.g., during a fly-over of the during the activity (by not recom- mitigation zone), Navy personnel must mencing firing) until one of the fol- observe the mitigation zone for marine lowing conditions has been met: The mammals; if marine mammals are ob- animal is observed exiting the mitiga- served, Navy personnel must relocate tion zone; the animal is thought to or delay the start of firing. have exited the mitigation zone based (D) During the activity, Navy per- on a determination of its course, speed, sonnel must observe the mitigation and movement relative to the intended zone for marine mammals; if marine impact location; the mitigation zone mammals are observed, Navy personnel has been clear from any additional must cease firing. sightings for 10 min for aircraft-based (E) Commencement/recommencement firing or 30 min for vessel-based firing; conditions after a marine mammal or for activities using mobile targets, sighting before or during the activity. the intended impact location has Navy personnel must allow a sighted transited a distance equal to double marine mammal to leave the mitiga- that of the mitigation zone size beyond tion zone prior to the initial start of the location of the last sighting. the activity (by delaying the start) or (G) After completion of the activity during the activity (by not recom- (e.g., prior to maneuvering off station), mencing firing) until one of the fol- Navy personnel must, when practical lowing conditions has been met: The (e.g., when platforms are not con- animal is observed exiting the mitiga- strained by fuel restrictions or mis- tion zone; the animal is thought to sion-essential follow-on commitments), have exited the mitigation zone based observe for marine mammals in the vi- on a determination of its course, speed, cinity of where detonations occurred; if and movement relative to the intended any injured or dead marine mammals impact location; or the mitigation zone are observed, Navy personnel must fol- has been clear from any additional low established incident reporting pro- sightings for 10 min when the activity cedures. If additional platforms are involves aircraft that have fuel con- supporting this activity (e.g., providing straints, or 30 min when the activity range clearance), Navy personnel on involves aircraft that are not typically these assets must assist in the visual fuel constrained. observation of the area where detona- (F) After completion of the activity tions occurred. (e.g., prior to maneuvering off station), (7) Explosive missiles and rockets. Air- Navy personnel must, when practical craft-deployed explosive missiles and (e.g., when platforms are not con- rockets. Mitigation applies to activi- strained by fuel restrictions or mis- ties using a surface target. sion-essential follow-on commitments), (i) Number of Lookouts and observation observe for marine mammals in the vi- platform. One Lookout must be posi- cinity of where detonations occurred; if tioned in an aircraft. If additional plat- any injured or dead marine mammals forms are participating in the activity, are observed, Navy personnel must fol- Navy personnel positioned on those as- low established incident reporting pro- sets (e.g., safety observers, evaluators) cedures. If additional platforms are must support observing the mitigation supporting this activity (e.g., providing zone for marine mammals and other range clearance), Navy personnel on applicable biological resources while these assets will assist in the visual ob- performing their regular duties. servation of the area where detona- (ii) Mitigation zone and requirements. tions occurred. (A) The mitigation zone must be 900 yd (8) Explosive bombs—(i) Number of around the intended impact location Lookouts and observation platform. One

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Lookout must be positioned in an air- low established incident reporting pro- craft conducting the activity. If addi- cedures. If additional platforms are tional platforms are participating in supporting this activity (e.g., providing the activity, Navy personnel positioned range clearance), Navy personnel on on those assets (e.g., safety observers, these assets must assist in the visual evaluators) must support observing the observation of the area where detona- mitigation zone for marine mammals tions occurred. and other applicable biological re- (9) Sinking exercises—(i) Number of sources while performing their regular Lookouts and observation platform. Two duties. Lookouts (one must be positioned in an (ii) Mitigation zone and requirements. aircraft and one must be positioned on (A) The mitigation zone must be 2,500 a vessel). If additional platforms are yd around the intended target. participating in the activity, Navy per- (B) Prior to the initial start of the sonnel positioned on those assets (e.g., activity (e.g., when arriving on sta- safety observers, evaluators) must sup- tion), Navy personnel must observe the port observing the mitigation zone for mitigation zone for marine mammals; marine mammals and other applicable if marine mammals are observed, Navy biological resources while performing personnel must relocate or delay the their regular duties. start of bomb deployment. (ii) Mitigation zone and requirements. (C) During the activity (e.g., during (A) The mitigation zone must be 2.5 target approach), Navy personnel must nmi around the target ship hulk. observe the mitigation zone for marine (B) Prior to the initial start of the mammals; if marine mammals are ob- activity (90 min prior to the first fir- served, Navy personnel must cease ing), Navy personnel must conduct aer- bomb deployment. ial observations of the mitigation zone (D) Commencement/recommence- for marine mammals; if marine mam- ment conditions after a marine mammals are observed, Navy personnel mal sighting before or during the activ- must delay the start of firing. ity. Navy personnel must allow a sight- (C) During the activity, Navy per- ed marine mammal to leave the miti- sonnel must conduct passive acoustic gation zone prior to the initial start of monitoring for marine mammals and the activity (by delaying the start) or use the information from detections to during the activity (by not recom- assist visual observations. Navy per- mencing bomb deployment) until one sonnel must visually observe the miti- of the following conditions has been gation zone for marine mammals from met: The animal is observed exiting the vessel; if marine mammals are ob- the mitigation zone; the animal is served, Navy personnel must cease fir- thought to have exited the mitigation ing. Immediately after any planned or zone based on a determination of its unplanned breaks in weapons firing of course, speed, and movement relative longer than two hours, Navy personnel to the intended target; the mitigation must observe the mitigation zone for zone has been clear from any addi- marine mammals from the aircraft and tional sightings for 10 min; or for ac- vessel; if marine mammals are ob- tivities using mobile targets, the in- served, Navy personnel must delay re- tended target has transited a distance commencement of firing. equal to double that of the mitigation (D) Commencement/recommence- zone size beyond the location of the ment conditions after a marine mam- last sighting. mal sighting before or during the activ- (E) After completion of the activity ity. Navy personnel must allow a sight- (e.g., prior to maneuvering off station), ed marine mammal to leave the miti- Navy personnel must, when practical gation zone prior to the initial start of (e.g., when platforms are not con- the activity (by delaying the start) or strained by fuel restrictions or mis- during the activity (by not recom- sion-essential follow-on commitments), mencing firing) until one of the fol- observe for marine mammals in the vi- lowing conditions has been met: The cinity of where detonations occurred; if animal is observed exiting the mitiga- any injured or dead marine mammals tion zone; the animal is thought to are observed, Navy personnel must fol- have exited the mitigation zone based

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on a determination of its course, speed, during the activity (by not recom- and movement relative to the target mencing detonations) until one of the ship hulk; or the mitigation zone has following conditions has been met: The been clear from any additional animal is observed exiting the mitiga- sightings for 30 min. tion zone; the animal is thought to (E) After completion of the activity have exited the mitigation zone based (for two hours after sinking the vessel on a determination of its course, speed, or until sunset, whichever comes first), and movement relative to detonation Navy personnel must observe for ma- site; or the mitigation zone has been rine mammals in the vicinity of where clear from any additional sightings for detonations occurred; if any injured or 10 min when the activity involves air- dead marine mammals are observed, craft that have fuel constraints, or 30 Navy personnel must follow established min when the activity involves aircraft incident reporting procedures. If addi- that are not typically fuel constrained. tional platforms are supporting this ac- (E) [Reserved] tivity (e.g., providing range clearance), (F) After completion of the activity Navy personnel on these assets will as- (typically 10 min when the activity in- sist in the visual observation of the volves aircraft that have fuel con- area where detonations occurred. straints, or 30 min when the activity (10) Explosive mine countermeasure and involves aircraft that are not typically neutralization activities—(i) Number of fuel constrained), Navy personnel must Lookouts and observation platform. (A) observe for marine mammals in the vi- One Lookout must be positioned on a cinity of where detonations occurred; if vessel or in an aircraft. any injured or dead marine mammals (B) If additional platforms are par- are observed, Navy personnel must fol- ticipating in the activity, Navy per- low established incident reporting pro- sonnel positioned on those assets (e.g., cedures. If additional platforms are safety observers, evaluators) must sup- supporting this activity (e.g., providing port observing the mitigation zone for range clearance), Navy personnel on marine mammals and other applicable these assets must assist in the visual biological resources while performing observation of the area where detona- their regular duties. tions occurred. (ii) Mitigation zone and requirements. (11) Explosive mine neutralization ac- (A) The mitigation zone must be 600 yd tivities involving Navy divers—(i) Number around the detonation site. of Lookouts and observation platform. (A) (B) Prior to the initial start of the Two Lookouts (two small boats with activity (e.g., when maneuvering on one Lookout each, or one Lookout station; typically 10 min when the ac- must be on a small boat and one must tivity involves aircraft that have fuel be in a rotary-wing aircraft) when im- constraints, or 30 min when the activ- plementing the smaller mitigation ity involves aircraft that are not typi- zone. cally fuel constrained), Navy personnel (B) Four Lookouts (two small boats must observe the mitigation zone for with two Lookouts each), and a pilot or marine mammals; if marine mammals member of an aircrew which must are observed, Navy personnel must re- serve as an additional Lookout if air- locate or delay the start of detona- craft are used during the activity, tions. must be used when implementing the (C) During the activity, Navy per- larger mitigation zone. sonnel must observe the mitigation (C) All divers placing the charges on zone for marine mammals; if marine mines will support the Lookouts while mammals are observed, Navy personnel performing their regular duties and must cease detonations. will report applicable sightings to their (D) Commencement/recommence- supporting small boat or Range Safety ment conditions after a marine mam- Officer. mal sighting before or during the activ- (D) If additional platforms are par- ity. Navy personnel must allow a sight- ticipating in the activity, Navy per- ed marine mammal to leave the miti- sonnel positioned on those assets (e.g., gation zone prior to the initial start of safety observers, evaluators) must sup- the activity (by delaying the start) or port observing the mitigation zone for

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marine mammals and other applicable and the other observing outward to- biological resources while performing ward the perimeter of the mitigation their regular duties. zone. If used, Navy aircraft must travel (ii) Mitigation zone and requirements. in a circular pattern around the deto- (A) For Lookouts on small boats or air- nation location to the maximum ex- craft, the mitigation zone must be 500 tent practicable. Navy personnel must yd around the detonation site under not set time-delay firing devices to ex- positive control. ceed 10 min. (B) For Lookouts on small boats or (F) Commencement/recommencement aircraft, the mitigation zone must be conditions after a marine mammal 1,000 yd around the detonation site dur- sighting before or during the activity. ing all activities using time-delay Navy personnel must allow a sighted fuses. marine mammal to leave the under- (C) For divers, the mitigation zone water detonation location or mitiga- must be the underwater detonation lo- tion zone (as applicable) prior to the cation, which is defined as the sea initial start of the activity (by delay- space within the divers’ range of visi- ing the start) or during the activity (by bility but no further than the mitiga- not recommencing detonations or fuse tion zone specified for Lookouts on initiation) until one of the following small boats or aircraft (500 yd or 1,000 conditions has been met: The animal is yd depending on the charge type). observed exiting the 500 yd or 1,000 yd (D) Prior to the initial start of the mitigation zone; the animal is thought activity (when maneuvering on station to have exited the 500 yd or 1,000 yd for activities under positive control; 30 mitigation zone based on a determina- min for activities using time-delay fir- tion of its course, speed, and movement ing devices), Navy Lookouts on small relative to the detonation site; or the boats or aircraft, must observe the 500 yd or 1,000 yd mitigation zones (for mitigation zone for marine mammals; Lookouts on small boats or aircraft) if marine mammals are observed, Navy and the underwater detonation loca- personnel must relocate or delay the tion (for divers) has been clear from start of detonations or fuse initiation. any additional sightings for 10 min dur- (E) During the activity, Navy Look- ing activities under positive control outs on small boats or aircraft, must with aircraft that have fuel con- observe the mitigation zone for marine straints, or 30 min during activities mammals; if marine mammals are ob- under positive control with aircraft served, Navy personnel must cease det- that are not typically fuel constrained onations or fuse initiation. While per- and during activities using time-delay forming their normal duties during the firing devices. activity, divers must observe the un- (G) After completion of an activity, derwater detonation location for ma- the Navy must observe for marine rine mammals. Divers must notify mammals for 30 min. Navy personnel their supporting small boat or Range must observe for marine mammals in Safety Officer of marine mammal the vicinity of where detonations oc- sightings at the underwater detonation curred; if any injured or dead marine location; if observed, the Navy must mammals are observed, Navy personnel cease detonations or fuse initiation. To must follow established incident re- the maximum extent practicable de- porting procedures. If additional plat- pending on mission requirements, safe- forms are supporting this activity (e.g., ty, and environmental conditions, providing range clearance), Navy per- Navy personnel must position boats sonnel on these assets must assist in near the mid-point of the mitigation the visual observation of the area zone radius (but outside of the detona- where detonations occurred. tion plume and human safety zone), (12) Maritime security operations—anti- must position themselves on opposite swimmer grenades—(i) Number of Look- sides of the detonation location (when outs and observation platform. One Look- two boats are used), and must travel in out must be positioned on the small a circular pattern around the detona- boat conducting the activity. If addition location with one Lookout observ- tional platforms are participating in ing inward toward the detonation site the activity, Navy personnel positioned

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on those assets (e.g., safety observers, servation of the area where detona- evaluators) must support observing the tions occurred. mitigation zone for marine mammals (13) Vessel movement. The mitigation and other applicable biological re- will not be applied if: The vessel’s safe- sources while performing their regular ty is threatened; the vessel is re- duties. stricted in its ability to maneuver (e.g., (ii) Mitigation zone and requirements. during launching and recovery of air- (A) The mitigation zone must be 200 yd craft or landing craft, during towing around the intended detonation loca- activities, when mooring); the vessel is tion. submerged or operated autonomously; (B) Prior to the initial start of the or if impracticable based on mission re- activity (e.g., when maneuvering on quirements (e.g., during Amphibious station), Navy personnel must observe Assault and Amphibious Raid exer- the mitigation zone for marine mam- cises). mals; if marine mammals are observed, (i) Number of Lookouts and observation Navy personnel must relocate or delay platform. One Lookout must be on the the start of detonations. vessel that is underway. (C) During the activity, Navy per- (ii) Mitigation zone and requirements. sonnel must observe the mitigation (A) The mitigation zone must be 500 yd zone for marine mammals; if marine around whales. mammals are observed, Navy personnel (B) The mitigation zone must be 200 must cease detonations. yd around all other marine mammals (D) Commencement/recommence- (except bow-riding dolphins). ment conditions after a marine mam- (C) During the activity. When under- mal sighting before or during the activ- way Navy personnel must observe the ity. Navy personnel must allow a sight- mitigation zone for marine mammals; ed marine mammal to leave the miti- if marine mammals are observed, Navy gation zone prior to the initial start of personnel must maneuver to maintain the activity (by delaying the start) or distance. during the activity (by not recom- (iii) Reporting. If a marine mammal mencing detonations) until one of the vessel strike occurs, Navy personnel following conditions has been met: The must follow the established incident animal is observed exiting the mitiga- reporting procedures. tion zone; the animal is thought to (14) Towed in-water devices. Mitiga- have exited the mitigation zone based tion applies to devices that are towed on a determination of its course, speed, from a manned surface platform or and movement relative to the intended manned aircraft. The mitigation will detonation location; the mitigation not be applied if the safety of the tow- zone has been clear from any addi- ing platform or in-water device is tional sightings for 30 min; or the in- threatened. tended detonation location has (i) Number of Lookouts and observation transited a distance equal to double platform. One Lookout must be posi- that of the mitigation zone size beyond tioned on a manned towing platform. the location of the last sighting. (ii) Mitigation zone and requirements. (E) After completion of the activity (A) The mitigation zone must be 250 yd (e.g., prior to maneuvering off station), around marine mammals. Navy personnel must, when practical (B) During the activity (i.e., when (e.g., when platforms are not con- towing an in-water device), Navy per- strained by fuel restrictions or mis- sonnel must observe the mitigation sion-essential follow-on commitments), zone for marine mammals; if marine observe for marine mammals in the vi- mammals are observed, Navy personnel cinity of where detonations occurred; if must maneuver to maintain distance. any injured or dead marine mammals (15) Small-, medium-, and large-caliber are observed, Navy personnel must fol- non-explosive practice munitions. Mitiga- low established incident reporting pro- tion applies to activities using a sur- cedures. If additional platforms are face target. supporting this activity (e.g., providing (i) Number of Lookouts and observation range clearance), Navy personnel on platform. One Lookout must be posi- these assets will assist in the visual ob- tioned on the platform conducting the

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activity. Depending on the activity, served, Navy personnel must relocate the Lookout could be the same as the or delay the start of firing. one described for ‘‘Weapons firing (C) During the activity, Navy per- noise’’ in paragraph (a)(3)(i) of this sec- sonnel must observe the mitigation tion. zone for marine mammals; if marine (ii) Mitigation zone and requirements. mammals are observed, Navy personnel (A) The mitigation zone must be 200 yd must cease firing. around the intended impact location. (D) Commencement/recommence- (B) Prior to the initial start of the ment conditions after a marine mam- activity (e.g., when maneuvering on mal sighting prior to or during the ac- station), Navy personnel must observe tivity. Navy personnel must allow a the mitigation zone for marine mam- sighted marine mammal to leave the mals; if marine mammals are observed, mitigation zone prior to the initial Navy personnel must relocate or delay start of the activity (by delaying the the start of firing. start) or during the activity (by not re- (C) During the activity, Navy per- commencing firing) until one of the sonnel must observe the mitigation following conditions has been met: The zone for marine mammals; if marine animal is observed exiting the mitiga- mammals are observed, Navy personnel tion zone; the animal is thought to must cease firing. have exited the mitigation zone based (D) Commencement/recommence- on a determination of its course, speed, ment conditions after a marine mam- and movement relative to the intended mal sighting before or during the activ- impact location; or the mitigation zone ity. Navy personnel must allow a sight- has been clear from any additional ed marine mammal to leave the miti- sightings for 10 min when the activity gation zone prior to the initial start of involves aircraft that have fuel con- the activity (by delaying the start) or straints, or 30 min when the activity during the activity (by not recom- involves aircraft that are not typically mencing firing) until one of the fol- fuel constrained. lowing conditions has been met: The (17) Non-explosive bombs and mine animal is observed exiting the mitiga- shapes. Non-explosive bombs and non- tion zone; the animal is thought to explosive mine shapes during mine lay- have exited the mitigation zone based ing activities. on a determination of its course, speed, (i) Number of Lookouts and observation and movement relative to the intended platform. One Lookout must be posi- impact location; the mitigation zone tioned in an aircraft. has been clear from any additional (ii) Mitigation zone and requirements. sightings for 10 min for aircraft-based (A) The mitigation zone must be 1,000 firing or 30 min for vessel-based firing; yd around the intended target. or for activities using a mobile target, (B) Prior to the initial start of the the intended impact location has activity (e.g., when arriving on sta- transited a distance equal to double tion), Navy personnel must observe the that of the mitigation zone size beyond mitigation zone for marine mammals; the location of the last sighting. if marine mammals are observed, Navy (16) Non-explosive missiles and rockets. personnel must relocate or delay the Aircraft-deployed non-explosive mis- start of bomb deployment or mine lay- siles and rockets. Mitigation applies to ing. activities using a surface target. (C) During the activity (e.g., during (i) Number of Lookouts and observation approach of the target or intended platform. One Lookout must be posi- minefield location), Navy personnel tioned in an aircraft. must observe the mitigation zone for (ii) Mitigation zone and requirements. marine mammals and, if marine mam- (A) The mitigation zone must be 900 yd mals are observed, Navy personnel around the intended impact location. must cease bomb deployment or mine (B) Prior to the initial start of the laying. activity (e.g., during a fly-over of the (D) Commencement/recommence- mitigation zone), Navy personnel must ment conditions after a marine mam- observe the mitigation zone for marine mal sighting prior to or during the ac- mammals; if marine mammals are ob- tivity. Navy personnel must allow a

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sighted marine mammal to leave the relevant information (e.g., sonar hours, mitigation zone prior to the initial explosives use) in its annual activity start of the activity (by delaying the reports submitted to NMFS. start) or during the activity (by not re- (B) Marpi Reef and Chalan Kanoa Reef commencing bomb deployment or mine Awareness Notification Message Area. (1) laying) until one of the following con- Navy personnel must issue a seasonal ditions has been met: The animal is ob- awareness notification message to served exiting the mitigation zone; the alert Navy ships and aircraft operating animal is thought to have exited the in the Marpi Reef and Chalan Kanoa mitigation zone based on a determina- Reef Geographic Mitigation Areas to tion of its course, speed, and movement the possible presence of increased con- relative to the intended target or mine- centrations of humpback whales from field location; the mitigation zone has December 1 through April 30. been clear from any additional (2) To maintain safety of navigation sightings for 10 min; or for activities and to avoid interactions with large using mobile targets, the intended tar- whales during transits, Navy personnel get has transited a distance equal to must instruct vessels to remain vigi- double that of the mitigation zone size lant to the presence of humpback beyond the location of the last sight- whales that when concentrated season- ing. ally, may become vulnerable to vessel (b) Mitigation areas. In addition to strikes. procedural mitigation, Navy personnel (3) Navy personnel must use the in- must implement mitigation measures formation from the awareness notifica- within mitigation areas to avoid or re- tion message to assist their visual ob- duce potential impacts on marine servation of applicable geographic mammals. mitigation zones during training and (1) Mitigation areas for marine mam- testing activities and to aid in the im- mals off Saipan in MITT Study Area for plementation of procedural mitigation. sonar, explosives, and vessel strikes—(i) (ii) [Reserved] Mitigation area requirements—(A) Marpi (2) Mitigation areas for marine mam- Reef and Chalan Kanoa Reef Geographic mals off Guam of the MITT Study Area Mitigation Areas. (1) Navy personnel for sonar and explosives—(i) Mitigation will conduct a maximum combined area requirements—(A) Agat Bay Near- total of 20 hours annually from Decem- shore Geographic Mitigation Area. (1) ber 1 through April 30 of surface ship Navy personnel will not conduct MF1 hull-mounted MF1 mid-frequency ac- surface ship hull-mounted mid-fre- tive sonar during training and testing quency active sonar year-round. within the Marpi Reef and Chalan (2) Navy personnel will not use in- Kanoa Reef Geographic Mitigation water explosives year-round. Areas. (3) Should national security require (2) Navy personnel will not use in- the use of MF1 surface ship hull- water explosives. mounted mid-frequency active sonar or (3) Navy personnel must report the explosives within the Agat Bay Near- total hours of all active sonar use (all shore Geographic Mitigation Area, bins, by bin) from December 1 through Navy personnel must obtain permission April 30 in these geographic mitigation from the appropriate designated Com- areas in the annual training and test- mand authority prior to commence- ing exercise report submitted to ment of the activity. Navy personnel NMFS. must provide NMFS with advance noti- (4) Should national security present a fication and include the information requirement to conduct training or (e.g., sonar hours, explosives usage) in testing prohibited by the mitigation its annual activity reports submitted requirements in this paragraph to NMFS. (b)(1)(i)(A), Navy personnel must ob- (B) [Reserved] tain permission from the appropriate designated Command authority prior § 218.95 Requirements for monitoring to commencement of the activity. and reporting. Navy personnel must provide NMFS (a) Unauthorized take. Navy personnel with advance notification and include must notify NMFS immediately (or as

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soon as operational security consider- submittal of the draft if NMFS does ations allow) if the specified activity not provide comments on the draft re- identified in § 218.90 is thought to have port. Such a report will describe resulted in the serious injury or mor- progress of knowledge made with re- tality of any marine mammals, or in spect to monitoring study questions any Level A harassment or Level B across multiple Navy ranges associated harassment of marine mammals not with the ICMP. Similar study ques- identified in this subpart. tions must be treated together so that (b) Monitoring and reporting under the progress on each topic can be summa- LOA. The Navy must conduct all moni- rized across multiple Navy ranges. The toring and reporting required under the report need not include analyses and LOA, including abiding by the U.S. content that does not provide direct as- Navy’s Marine Species Monitoring Pro- sessment of cumulative progress on the gram for the MITT Study Area. Details monitoring study question. This will on program goals, objectives, project continue to allow the Navy to provide selection process, and current projects a cohesive monitoring report covering are available at multiple ranges (as per ICMP goals), www.navymarinespeciesmonitoring.us. rather than entirely separate reports (c) Notification of injured, live strand- for the MITT, Hawaii-Southern Cali- ed, or dead marine mammals. Navy per- fornia, Gulf of Alaska, and Northwest sonnel must consult the Notification Training and Testing Study Areas. and Reporting Plan, which sets out no- (e) Annual MITT Study Area Training tification, reporting, and other require- and Testing Exercise Report. Each year, ments when dead, injured, or live the Navy must submit a preliminary stranded marine mammals are de- report (Quick Look Report) detailing tected. The Notification and Reporting the status of authorized sound sources Plan is available at https:// within 21 days after the anniversary of www.fisheries.noaa.gov/action/incidental- the date of issuance of the LOA to the take-authorization-us-navy-mariana-is- Director, Office of Protected Re- lands-training-and-testing-mitt. sources, NMFS. The Navy must also (d) Annual MITT Study Area marine submit a detailed report (MITT Annual species monitoring report. The Navy Training and Testing Exercise Report) must submit an annual report to to the Director, Office of Protected Re- NMFS of the MITT Study Area moni- sources, NMFS, within three months toring which will be included in a Pa- after the one-year anniversary of the cific-wide monitoring report including date of issuance of the LOA. The MITT results specific to the MITT Study Annual Training and Testing Exercise Area describing the implementation Report can be consolidated with other and results from the previous calendar exercise reports from other range com- year. Data collection methods will be plexes in the Pacific Ocean for a single standardized across Pacific Range Pacific Exercise Report, if desired. Complexes including the MITT, HSTT, NMFS will submit comments or ques- NWTT, and Gulf of Alaska (GOA) tions on the report, if any, within one Study Areas to the best extent prac- month of receipt. The report will be ticable, to allow for comparison in dif- considered final after the Navy has ad- ferent geographic locations. The report dressed NMFS’ comments, or one must be submitted to the Director, Of- month after submittal of the draft if fice of Protected Resources, NMFS, ei- NMFS does not provide comments on ther within three months after the end the draft report. The annual will con- of the calendar year, or within three tain information on major training ex- months after the conclusion of the ercises (MTEs), Sinking Exercise monitoring year, to be determined by (SINKEX) events, and a summary of all the Adaptive Management process. sound sources used (total hours or NMFS will submit comments or ques- quantity of each bin of sonar or other tions on the draft monitoring report, if non-impulsive source; total annual any, within three months of receipt. number of each type of explosive exer- The report will be considered final cises; and total annual expended/deto- after the Navy has addressed NMFS’ nated rounds (missiles, bombs, comments, or three months after the sonobuoys, etc.) for each explosive bin).

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The annual report will also contain in- (B) Species (if not possible, indica- formation on sound sources used in- tion of whale or dolphin). cluding within specific mitigation re- (C) Number of individuals. porting areas as described in paragraph (D) Initial Detection Sensor (e.g., (e)(4) of this section. The annual report sonar, Lookout). will also contain both the current (E) Indication of specific type of plat- year’s data as well as cumulative sonar form observation was made from (in- and explosive use quantity from pre- cluding, for example, what type of sur- vious years’ reports. Additionally, if face vessel or testing platform). there were any changes to the sound (F) Length of time observers main- source allowance in a given year, or cu- tained visual contact with marine mulatively, the report will include a mammal. discussion of why the change was made (G) Sea state. and include analysis to support how (H) Visibility. the change did or did not affect the (I) Sound source in use at the time of analysis in the 2020 MITT FSEIS/OEIS sighting. and MMPA final rule. The annual re- (J) Indication of whether the animal port will also include the details re- was less than 200 yd, 200 to 500 yd, 500 garding specific requirements associ- to 1,000 yd, 1,000 to 2,000 yd, or greater ated with specific mitigation areas. than 2,000 yd from sonar source. The final annual/close-out report at the (K) Whether operation of sonar sen- conclusion of the authorization period sor was delayed, or sonar was powered (year seven) will serve as the com- or shut down, and how long the delay. prehensive close-out report and include (L) If source in use was hull-mount- both the final year annual use com- ed, true bearing of animal from the pared to annual authorization as well vessel, true direction of vessel’s travel, as a cumulative seven-year annual use and estimation of animal’s motion rel- compared to seven-year authorization. ative to vessel (opening, closing, par- The detailed reports must contain the allel). information identified in paragraphs (M) Lookouts must report, in plain (e)(1) through (6) of this section. language and without trying to cat- (1) MTEs. This section of the report egorize in any way, the observed behav- must contain the following informa- ior of the animal(s) (such as animal tion for MTEs conducted in the MITT closing to bow ride, paralleling course/ Study Area. speed, floating on surface and not (i) Exercise information for each swimming, etc.) and if any calves were MTE. present. (A) Exercise designator. (iii) An evaluation (based on data (B) Date that exercise began and gathered during all of the MTEs) of the ended. effectiveness of mitigation measures (C) Location. designed to minimize the received level (D) Number and types of active sonar to which marine mammals may be ex- sources used in exercise. posed. This evaluation must identify (E) Number and types of passive the specific observations that support acoustic sources used in exercise. any conclusions the Navy reaches (F) Number and types of vessels, air- about the effectiveness of the mitiga- craft, and other platforms partici- tion. pating in exercise. (2) SINKEXs. This section of the re- (G) Total hours of all active sonar port must include the following infor- source operation. mation for each SINKEX completed (H) Total hours of each active sonar that year. source bin. (i) Exercise information gathered for (I) Wave height (high, low, and aver- each SINKEX. age) during exercise. (A) Location. (ii) Individual marine mammal sight- (B) Date and time exercise began and ing information for each sighting in ended. each exercise where mitigation was im- (C) Total hours of observation by plemented. Lookouts before, during, and after ex- (A) Date/Time/Location of sighting. ercise.

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(D) Total number and types of explo- the authorized sound sources used in sive source bins detonated. all training and testing events: (E) Number and types of passive (i) Total annual hours or quantity acoustic sources used in exercise. (per the LOA) of each bin of sonar or (F) Total hours of passive acoustic other transducers; and search time. (ii) Total annual expended/detonated (G) Number and types of vessels, air- ordnance (missiles, bombs, sonobuoys, craft, and other platforms, partici- etc.) for each explosive bin. pating in exercise. (4) Marpi Reef and Chalan Kanoa Reef (H) Wave height in feet (high, low, Geographic Mitigation Areas. The Navy and average) during exercise. must report any active sonar use (all (I) Narrative description of sensors bins, by bin) between December 1 and and platforms utilized for marine April 30 that occurred as specifically mammal detection and timeline illus- described in these areas. Information trating how marine mammal detection included in the classified annual re- was conducted. ports may be used to inform future (ii) Individual marine mammal obser- adaptive management within the MITT vation (by Navy Lookouts) information for each sighting where mitigation was Study Area. implemented. (5) Geographic information presen- (A) Date/Time/Location of sighting. tation. The reports must present an an- (B) Species (if not possible, indicate nual (and seasonal, where practical) de- whale or dolphin). piction of training and testing bin (C) Number of individuals. usage geographically across the MITT (D) Initial detection sensor (e.g., Study Area. sonar or Lookout). (6) Sonar exercise notification. The (E) Length of time observers main- Navy must submit to NMFS (contact tained visual contact with marine as specified in the LOA) an electronic mammal. report within fifteen calendar days (F) Sea state. after the completion of any MTE indi- (G) Visibility. cating: (H) Whether sighting was before, dur- (i) Location of the exercise; ing, or after detonations/exercise, and (ii) Beginning and end dates of the how many minutes before or after. exercise; and (I) Distance of marine mammal from (iii) Type of exercise. actual detonations (or target spot if (f) Final Close-Out Report. The final not yet detonated): Less than 200 yd, (year seven) draft annual/close-out re- 200 to 500 yd, 500 to 1,000 yd, 1,000 to port must be submitted within three 2,000 yd, or greater than 2,000 yd. months after the expiration of this sub- (J) Lookouts must report, in plain part to the Director, Office of Pro- language and without trying to cat- tected Resources, NMFS. NMFS must egorize in any way, the observed behav- submit comments on the draft close- ior of the animal(s) (such as animal out report, if any, within three months closing to bow ride, paralleling course/ of receipt. The report will be consid- speed, floating on surface and not ered final after the Navy has addressed swimming etc.), including speed and di- NMFS’ comments, or three months rection and if any calves were present. after the submittal of the draft if (K) The report must indicate whether NMFS does not provide comments. explosive detonations were delayed, ceased, modified, or not modified due § 218.96 Letters of Authorization. to marine mammal presence and for how long. (a) To incidentally take marine (L) If observation occurred while ex- mammals pursuant to the regulations plosives were detonating in the water, in this subpart, the Navy must apply indicate munition type in use at time for and obtain an LOA in accordance of marine mammal detection. with § 216.106 of this section. (3) Summary of sources used. This sec- (b) An LOA, unless suspended or re- tion of the report must include the fol- voked, may be effective for a period of lowing information summarized from time not to exceed July 30, 2027.

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(c) If an LOA expires prior to July 30, to the adaptive management provision 2027, the Navy may apply for and ob- in paragraph (c)(1) of this section) that tain a renewal of the LOA. do not change the findings made for (d) In the event of projected changes the regulations or result in no more to the activity or to mitigation, moni- than a minor change in the total esti- toring, or reporting (excluding changes mated number of takes (or distribution made pursuant to the adaptive man- by species or years), NMFS may pub- agement provision of § 218.97(c)(1)) re- lish a notice of planned LOA in the quired by an LOA issued under this FEDERAL REGISTER, including the asso- subpart, the Navy must apply for and ciated analysis of the change, and so- obtain a modification of the LOA as de- licit public comment before issuing the scribed in § 218.97. LOA. (e) Each LOA will set forth: (c) An LOA issued under §§ 216.106 of (1) Permissible methods of incidental this section and 218.96 may be modified taking; by NMFS under the following cir- (2) Geographic areas for incidental cumstances: taking; (1) Adaptive management. After con- (3) Means of effecting the least prac- sulting with the Navy regarding the ticable adverse impact (i.e., mitigation) practicability of the modifications, on the species of marine mammals and NMFS may modify (including adding their habitat; and or removing measures) the existing (4) Requirements for monitoring and mitigation, monitoring, or reporting reporting. measures if doing so creates a reason- (f) Issuance of the LOA(s) must be able likelihood of more effectively ac- based on a determination that the level complishing the goals of the mitiga- of taking is consistent with the find- tion and monitoring. ings made for the total taking allow- (i) Possible sources of data that could able under the regulations in this sub- contribute to the decision to modify part. the mitigation, monitoring, or report- (g) Notice of issuance or denial of the ing measures in an LOA include: LOA(s) will be published in the FED- (A) Results from the Navy’s annual ERAL REGISTER within 30 days of a determination. monitoring report and annual exercise report from the previous year(s); § 218.97 Renewals and modifications of (B) Results from other marine mam- Letters of Authorization. mal and/or sound research or studies; (a) An LOA issued under §§ 216.106 of (C) Results from specific stranding this section and 218.96 for the activity investigations; or identified in § 218.90(c) may be renewed (D) Any information that reveals ma- or modified upon request by the appli- rine mammals may have been taken in cant, provided that: a manner, extent, or number not au- (1) The planned specified activity and thorized by the regulations in this sub- mitigation, monitoring, and reporting part or subsequent LOAs. measures, as well as the anticipated (ii) If, through adaptive management, impacts, are the same as those de- the modifications to the mitigation, scribed and analyzed for the regula- monitoring, or reporting measures are tions in this subpart (excluding substantial, NMFS will publish a no- changes made pursuant to the adaptive tice of planned LOA in the FEDERAL management provision in paragraph REGISTER and solicit public comment. (c)(1) of this section); and (2) Emergencies. If NMFS determines (2) NMFS determines that the miti- that an emergency exists that poses a gation, monitoring, and reporting significant risk to the well-being of the measures required by the previous species of marine mammals specified in LOA(s) were implemented. LOAs issued pursuant to §§ 216.106 of (b) For LOA modification or renewal this section and 218.96, an LOA may be requests by the applicant that include modified without prior notice or oppor- changes to the activity or to the miti- tunity for public comment. Notice will gation, monitoring, or reporting meas- be published in the FEDERAL REGISTER ures (excluding changes made pursuant within thirty days of the action.

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Subparts K–N [Reserved] (B) MF3—an average of 70 hours per year. (C) MF4—an average of 4 hours per Subpart O—Taking and Importing year. Marine Mammals; U.S. Navy’s (D) MF5—an average of 896 items per Northwest Training and Testing year. (NWTT) Study Area (E) MF11—an average of 16 hours per year. SOURCE: 80 FR 73622, Nov. 24, 2015, unless (ii) High-frequency (HF) Source otherwise noted. Classes: (A) HF1—an average of 48 hours per § 218.140 Specified activity and speci- year. fied geographical region. (B) HF4—an average of 384 hours per (a) Regulations in this subpart apply year. only to the U.S. Navy for the taking of (C) HF6—an average of 192 hours per marine mammals that occurs in the year area outlined in paragraph (b) of this (iii) Anti-Submarine Warfare (ASW) section and that occurs incidental to Source Classes: the activities described in paragraph (A) ASW2—an average of 720 items (c) of this section. per year per year. (B) ASW3—an average of 78 hours per (b) The taking of marine mammals year. by the Navy is only authorized if it oc- (2) Sonar and other Active Sources curs within the NWTT Study Area, Used During Testing: which is composed of established mari- (i) Low-frequency (LF) Source Class- time operating and warning areas in es: the eastern North Pacific Ocean region, (A) LF4—an average of 110 hours per including areas of the Strait of Juan de year. Fuca, Puget Sound, and Western Behm (B) LF5—an average of 71 hours per Canal in southeastern Alaska. The year. Study Area includes air and water (ii) Mid-frequency (MF): space within and outside Washington (A) MF1—an average of 32 hours per state waters, and outside state waters year of Oregon and Northern California. The (B) MF3—an average of 145 hours per Study Area includes four existing year. range complexes and facilities: The (C) MF4—an average of 10 hours per Northwest Training Range Complex year. (NWTRC), the Keyport Range Complex, (D) MF5—an average of 273 items per Carr Inlet Operations Area, and year. SEAFAC. In addition to these range (E) MF6—an average of 12 items per complexes, the Study Area also in- year. cludes Navy pierside locations where (F) MF8—an average of 40 hours per sonar maintenance and testing occurs year. as part of overhaul, modernization, (G) MF9—an average of 1,183 hours maintenance and repair activities at per year. NAVBASE Kitsap, Bremerton; (H) MF10—an average of 1,156 hours NAVBASE Kitsap, Bangor; and Naval per year. Station Everett. (I) MF11—an average of 34 hours per (c) The taking of marine mammals year. by the Navy is only authorized if it oc- (J) MF12—an average of 24 hours per curs incidental to the following activi- year. ties within the designated amounts of (iii) High-frequency (HF) and Very use: High-frequency (VHF): (1) Sonar and other Active Sources (A) HF1—an average of 161 hours per Used During Training: year. (i) Mid-frequency (MF) Source Class- (B) HF3—an average of 145 hours per es: year. (A) MF1—an average of 166 hours per (C) HF5—an average of 360 hours per year. year.

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(D) HF6—an average of 2,099 hours (ii) [Reserved] per year. (iv) VHF: § 218.141 Applicability dates. (A) VHF2—an average of 35 hours per Regulations in this subpart are appli- year. cable November 9, 2015, through No- (B) [Reserved] vember 8, 2020. (v) ASW: (A) ASW1—an average of 16 hours per § 218.142 Permissible methods of tak- year. ing. (B) ASW2—an average of 64 hours per (a) Under Letters of Authorization year. (LOAs) issued pursuant to § 218.147, the (C) ASW2—an average of 170 items Holder of, and those operating under, per year. the LOA may incidentally, but not in- (D) ASW3—an average of 444 hours tentionally, take marine mammals per year. within the area described in § 218.140, (E) ASW4—an average of 1,182 items provided the activity is in compliance per year. with all terms, conditions, and require- (vi) Acoustic Modems (M): ments of these regulations and the ap- (A) M3—an average of 1,519 hours per propriate LOA. year. (b) The activities identified in (B) [Reserved] § 218.140(c) must be conducted in a man- (vii) Torpedoes (TORP): ner that minimizes, to the greatest ex- (A) TORP1—an average of 315 items tent practicable, any adverse impacts per year. on marine mammals and their habitat. (B) TORP2—an average of 299 items (c) The incidental take of marine per year. mammals under the activities identi- (viii) Swimmer Detection Sonar (SD): fied in § 218.140(c) is limited to the fol- (A) SD1—an average of 757 hours per lowing species, by the identified meth- year. (B) [Reserved] od of take and the indicated number of (ix) Synthetic Aperture Sonar (SAS): times: (A) SAS2—an average of 798 hours per (1) Level B Harassment for all Train- year. ing Activities: (B) [Reserved] (i) Mysticetes: (3) Impulsive Source Detonations (A) Blue whale (Balaenoptera During Training: musculus), Eastern North Pacific—25 (i) Explosive Classes: (an average of 5 per year). (A) E1 (0.1 to 0.25 pound [lb] NEW)— (B) Fin whale (Balaenoptera physalus), an average of 48 detonations per year. California, Oregon, and Washington (B) E3 (>0.5 to 2.5 lb NEW)—an aver- (CA/OR/WA)—125 (an average of 25 per age of 6 detonations per year. year). (C) E5 (>5 to 10 lb NEW)—an average (C) Gray whale (Eschrichtius robustus), of 80 detonations per year. Eastern North Pacific—30 (an average (D) E10 (>250 to 500 lb NEW)—an aver- of 6 per year). age of 4 detonations per year. (D) Humpback whale (Megaptera (E) E12 (>650 to 1,000 lb NEW)—an av- novaeangliae), CA/OR/WA—60 (an aver- erage of 10 detonations per year. age of 12 per year). (ii) [Reserved] (E) Minke whale (Balaenoptera (4) Impulsive Source Detonations acutorostrata), CA/OR/WA—90 (an aver- During Testing: age of 18 per year). (i) Explosive Classes: (ii) Odontocetes: (A) E3 (>0.5 to 2.5 lb NEW)—an aver- (A) Baird’s beaked whale (Berardius age of 72 detonations per year. bairdii), CA/OR/WA—2,955 (an average of (B) E4 (>2.5 to 5 lb NEW)—an average 591 per year). of 140 detonations (70 sonobuoys) per (B) Mesoplodont beaked whale year. (Mesoplodon spp.), CA/OR/WA—7,085 (an (C) E8 (>60 to 100 lb NEW)—an aver- average of 1,417 per year). age of 3 detonations per year. (C) Cuvier’s beaked whale (Ziphius (D) E11 (>500 to 650 lb NEW)—an aver- cavirostris), CA/OR/WA—1,765 (an average of 3 detonations per year. age of 353 per year).

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(D) Dall’s porpoise (Phocoenoidea (F) Harbor seal (Phoca vitulina), Hood dalli), CA/OR/WA—18,178 (an average of Canal—2,054 (an average of 452 per 3,730 per year). year). (E) Harbor porpoise (Phocoena (G) Northern elephant seal (Mirounga phocoena), Northern OR/WA Coast— angustirostris), CA Breeding—6,353 (an 175,030 (an average of 35,006 per year). average of 1,271 per year). (F) Harbor porpoise (Phocoena (H) Northern fur seal (Callorhinus phocoena), Northern CA/Southern OR— ursinus), Eastern Pacific—12,475 (an av- 262,545 (an average of 52,509 per year). erage of 2,495 per year). (G) Harbor porpoise (Phocoena (I) Northern fur seal (Callorhinus phocoena), WA Inland Waters—4,409 (an ursinus), California—185 (an average of average of 1,417 per year). 37 per year). (H) Killer whale (Orcinus orca), West (2) Level A Harassment for all Train- Coast Transient—39 (an average of 9 ing Activities: per year). (i) Mysticetes: (I) Killer whale (Orcinus orca), East- (A)–(B) [Reserved] ern North Pacific Offshore—65 (an aver- (ii) Odontocetes: age of 13 per year). (A) Dall’s porpoise (Phocoenoidea (J) Killer whale (Orcinus orca), East- dalli), CA/OR/WA—20 (an average of 4 ern North Pacific Southern Resident— per year). 6 (an average of 2 per year). (B) Harbor porpoise (Phocoena (K) Kogia spp., CA/OR/WA—365 (an av- phocoena), WA Inland Waters—5 (an average of 73 per year). erage of 1 per year). (L) Northern right whale dolphin (iii) Pinnipeds: (Lissodelphis borealis), CA/OR/WA—6,660 (A) Harbor seal (Phoca vitulina), WA (an average of 1,332 per year). Northern Inland Waters—20 (an aver- (M) Pacific white-sided dolphin age of 4 per year). (Lagenorhynchus obliquidens), CA/OR/ (B) Harbor seal (Phoca vitulina), Hood WA—17,408 (an average of 3,482 per Canal—10 (an average of 2 per year). year). (C) [Reserved] (N) Risso’s dolphin (Grampus griseus), (3) Level B Harassment for all Test- CA/OR/WA—3,285 (an average of 657 per ing Activities: year). (i) Mysticetes: (O) Short-beaked common dolphin (A) Blue whale (Balaenoptera (Delphinus delphis), CA/OR/WA—3,670 musculus), Eastern North Pacific—30 (an average of 734 per year). (an average of 6 per year). (P) Sperm whale (Physeter (B) Fin whale (Balaenoptera physalus), macrocephalus), CA/OR/WA—405 (an av- CA/OR/WA—170 (an average of 34 per erage of 81 per year). year). (Q) Striped dolphin (Stenella (C) Fin whale (Balaenoptera physalus), coerulealba), CA/OR/WA—110 (an aver- Northeast Pacific—10 (an average of 2 age of 22 per year). per year). (iii) Pinnipeds: (D) Gray whale (Eschrichtius (A) California sea lion (Zalophus robustus), Eastern North Pacific—60 (an californianus), U.S.—4,038 (an average of average of 12 per year). 814 per year). (E) Humpback whale (Megaptera (B) Steller sea lion (Eumetopias novaeangliae), Central North Pacific—5 jubatus), Eastern U.S.—1,986 (an aver- (an average of 1 per year). age of 404 per year). (F) Humpback whale (Megaptera (C) Guadalupe fur seal (Arctocephalus novaeangliae), CA/OR/WA—220 (an aver- townsendi), Mexico—35 (an average of 7 age of 44 per year). per year). (G) Minke whale (Balaenoptera (D) Harbor seal (Phoca vitulina), WA acutorostrata), CA/OR/WA—90 (an aver- Northern Inland Waters—1,855 (an average of 18 per year). age of 427 per year). (H) Sei whale (Balaenoptera borealis), (E) Harbor seal (Phoca vitulina), Eastern North Pacific—10 (an average Southern Puget Sound—252 (an average of 2 per year). of 58 per year). (ii) Odontocetes:

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(A) Baird’s beaked whale (Berardius (T) Short-beaked common dolphin bairdii), Alaska—125 (an average of 25 (Delphinus delphis), CA/OR/WA—8,140 per year). (an average of 1,628 per year). (B) Baird’s beaked whale (Berardius (U) Sperm whale (Physeter bairdii), CA/OR/WA—745 (an average of macrocephalus), CA/OR/WA—390 (an av- 149 per year). erage of 78 per year). (C) Mesoplodont beaked whale (V) Striped dolphin (Stenella (Mesoplodon spp.), CA/OR/WA—1,845 (an coerulealba), CA/OR/WA—70 (an average average of 369 per year). of 14 per year). (D) Cuvier’s beaked whale (Ziphius (iii) Pinnipeds: cavirostris), Alaska—75 (an average of 15 (A) California sea lion (Zalophus per year). californianus), U.S.—10,730 (an average of 2,146 per year). (E) Cuvier’s beaked whale (Ziphius (B) Steller sea lion (Eumetopias cavirostris), CA/OR/WA—455 (an average jubatus), Eastern U.S.—2,605 (an aver- of 91 per year). age of 521 per year). (F) Dall’s porpoise ( Phocoenoidea (C) Guadalupe fur seal (Arctocephalus dalli), Alaska—6,000 (an average of 1,200 townsendi), Mexico—15 (an average of 3 per year). per year). (G) Dall’s porpoise (Phocoenoidea (D) Harbor seal (Phoca vitulina), dalli), CA/OR/WA—50,785 (an average of Southeast Alaska (Clarence Sound)— 10,157 per year). 110 (an average of 22 per year). (H) Harbor porpoise (Phocoena (E) Harbor seal (Phoca vitulina), OR/ phocoena), Southeast Alaska—4,630 (an WA Coast—8,275 (an average of 1,655 per average of 926 per year). year). (I) Harbor porpoise (Phocoena (F) Harbor seal (Phoca vitulina), WA phocoena), Northern OR/WA Coast— Northern Inland Waters—9,115 (an aver- 86,060 (an average of 17,212 per year). age of 1,823 per year). (J) Harbor porpoise (Phocoena (G) Harbor seal (Phoca vitulina), phocoena), Northern CA/Southern OR— Southern Puget Sound—980 (an average 129,095 (an average of 25,819 per year). of 196 per year). (K) Harbor porpoise (Phocoena (H) Harbor seal (Phoca vitulina), Hood phocoena), WA Inland Waters—27,045 Canal—296,085 (an average of 59,217 per (an average of 5,409 per year). year). (L) Killer whale (Orcinus orca), Alas- (I) Northern elephant seal (Mirounga ka Resident—10 (an average of 2 per angustirostris), CA Breeding—6,625 (an year). average of 1,325 per year). (M) Killer whale (Orcinus orca), West (J) Northern fur seal (Callorhinus Coast Transient—1,035 (an average of ursinus), Eastern Pacific—9,150 (an av- 207 per year). erage of 1,830 per year). (K) Northern fur seal (Callorhinus (N) Killer whale (Orcinus orca), East- ursinus), California—135 (an average of ern North Pacific Offshore—110 (an av- 27 per year). erage of 22 per year). (4) Level A Harassment for all Test- (O) Kogia spp., CA/OR/WA—530 (an av- ing Activities: erage of 106 per year). (i) Mysticetes: (P) Northern right whale dolphin (A) Gray whale (Eschrichtius (Lissodelphis borealis), CA/OR/WA— robustus), Eastern North Pacific—5 (an 10,190 (an average of 2,038 per year). average of 1 per year). (Q) Pacific white-sided dolphin (B) [Reserved] (Lagenorhynchus obliquidens), North Pa- (ii) Odontocetes: cific—15 (an average of 3 per year). (A) Kogia spp., CA/OR/WA—5 (an av- (R) Pacific white-sided dolphin erage of 1 per year). (Lagenorhynchus obliquidens), CA/OR/ (B) Dall’ porpoise (Phocoenoidea WA—24,345 (an average of 4,869 per dalli), CA/OR/WA—215 (an average of 43 year). per year). (S) Risso’s dolphin (Grampus griseus), (C) Harbor porpoise (Phocoena CA/OR/WA—5,770 (an average of 1,154 phocoena), Northern OR/WA Coast—75 per year). (an average of 15 per year).

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(D) Harbor porpoise (Phocoena gent observation of the air and surface phocoena), Northern CA/Southern OR— of the water. Their observation objec- 115 (an average of 23 per year). tives will include, but are not limited (E) Harbor porpoise (Phocoena to, detecting the presence of biological phocoena), WA Inland Waters—30 (an resources and recreational or fishing average of 6 per year). boats, observing mitigation zones, and (iii) Pinnipeds: monitoring for vessel and personnel (A) Harbor seal (Phoca vitulina), OR/ safety concerns. WA Coast—20 (an average of 4 per (ii) Lookouts positioned ashore, in year). aircraft or on boats will, to the max- (B) Harbor seal (Phoca vitulina), WA imum extent practicable and con- Northern Inland Waters—110 (an aver- sistent with aircraft and boat safety age of 22 per year). and training and testing requirements, (C) Harbor seal (Phoca vitulina), comply with the observation objectives Southern Puget Sound—5 (an average described in paragraph (a)(1)(i) of this of 1 per year). section. (D) Harbor seal (Phoca vitulina), Hood (iii) Lookout Measures for Non-Im- Canal—335 (an average of 67 per year). pulsive Sound: (E) Northern elephant seal (Mirounga (A) With the exception of vessels less angustirostris), CA Breeding—10 (an av- than 65 ft (20 m) in length or minimally erage of 2 per year). (F) [Reserved] manned vessels, ships using low-frequency or hull-mounted mid-frequency § 218.143 Prohibitions. active sonar sources associated with anti-submarine warfare and mine war- Notwithstanding takings con- fare activities at sea will have two templated in § 218.142 and authorized by Lookouts at the forward position of the an LOA issued under §§ 216.106 and vessel. For the purposes of this rule, 218.147 of this chapter, no person in connection with the activities de- low-frequency active sonar does not in- scribed in § 218.140 may: clude surface towed array surveillance (a) Take any marine mammal not system low-frequency active sonar. specified in § 218.142(c); (B) While using low-frequency or (b) Take any marine mammal speci- hull-mounted mid-frequency active fied in § 218.142(c) other than by inci- sonar sources associated with anti-sub- dental take as specified in § 218.142(c); marine warfare and mine warfare ac- (c) Take a marine mammal specified tivities at sea, vessels less than 65 ft (20 in § 218.142(c) if such taking results in m) in length or minimally manned ves- more than a negligible impact on the sels will have one Lookout at the for- species or stocks of such marine mam- ward position of the vessel due to space mal; or and manning restrictions. (d) Violate, or fail to comply with, (C) Ships conducting active sonar ac- the terms, conditions, and require- tivities while moored or at anchor (in- ments of these regulations or an LOA cluding pierside or shore-based testing issued under §§ 216.106 and 218.147. or maintenance) will maintain one Lookout. § 218.144 Mitigation. (D) Minimally manned vessels con- (a) When conducting training and ducting hull-mounted mid-frequency testing activities, as identified in testing will employ one Lookout. § 218.140, the mitigation measures con- (E) Ships, small boats, range craft, or tained in the LOA issued under aircraft conducting non-hull-mounted §§ 216.106 and 218.147 of this chapter mid-frequency active sonar, such as must be implemented. These mitiga- helicopter dipping sonar systems, will tion measures include, but are not lim- maintain one Lookout. ited to: (F) Surface ships or aircraft con- (1) Lookouts—The following are pro- ducting high-frequency or non-hull- tective measures concerning the use of mounted mid-frequency active sonar Lookouts. activities associated with anti-sub- (i) Lookouts positioned on surface marine warfare and mine warfare ac- ships will be dedicated solely to dili- tivities at sea will have one Lookout.

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(iv) Lookout measures for impulsive vices are towed by unmanned plat- sound (e.g., explosives): forms, a manned escort vessel will be (A) Aircraft conducting improved ex- included and one Lookout will be em- tended echo ranging sonobuoy activi- ployed. ties will have one Lookout. (C) Activities involving non-explosive (B) Aircraft conducting explosive practice munitions (e.g., small-, me- sonobuoy activities using >0.5 to 2.5-lb dium-, and large-caliber gunnery exer- net explosive weight (NEW) will have cises) using a surface target will have one Lookout. one Lookout. (C) General mine countermeasure and (D) During non-explosive bombing ex- neutralization activities involving ercises one Lookout will be positioned positive control diver placed charges in an aircraft and trained Lookouts using >0.5 to 2.5 lb NEW will have a will be positioned in any surface ves- total of two Lookouts (one Lookout po- sels involved. sitioned in each of the two support ves- (2) Mitigation zones—The following sels). All divers placing the charges on are protective measures concerning the mines will support the Lookouts while implementation of mitigation zones. performing their regular duties. The (i) Mitigation zones will be measured divers and Lookouts will report all ma- as the radius from a source and rep- rine mammal sightings to their dive resent a distance to be monitored. support vessel. (ii) Visual detections of marine mam- (D) Surface vessels or aircraft con- mals (or sea turtles) within a mitiga- ducting small-, medium-, and large-cal- tion zone will be communicated imme- iber gunnery exercises will have one diately to a watch station for informa- Lookout. Towing vessels, if applicable, tion dissemination and appropriate ac- will also maintain one Lookout. tion. (E) Aircraft conducting missile exer- (iii) Mitigation Zones for Non-Impul- cises against a surface target will have sive Sound: one Lookout. (A) The Navy shall ensure that hull- (F) Aircraft conducting explosive mounted mid-frequency active sonar bombing exercises will have one Look- transmission levels are limited to at out and any surface vessels involved least 6 dB below normal operating lev- will have trained Lookouts. els if any detected marine mammals (G) During explosive torpedo testing (or sea turtles) are within 1,000 yd. (914 from aircraft one Lookout will be used m) of the sonar dome (the bow). and positioned in an aircraft. During (B) The Navy shall ensure that hull- explosive torpedo testing from a sur- mounted mid-frequency active sonar face ship the Lookout procedures im- transmissions are limited to at least 10 plemented for hull-mounted mid-fre- dB below the equipment’s normal oper- quency active sonar activities will be ating level if any detected marine used. mammals (or sea turtles) are within 500 (H) To mitigate effects from weapon yd. (457 m) of the sonar dome. firing noise, ships conducting explosive (C) The Navy shall ensure that hull- and non-explosive large-caliber gun- mounted mid-frequency active sonar nery exercises will have one Lookout. transmissions are ceased if any de- This may be the same Lookout used for tected cetaceans (or sea turtles) are small, medium, and large-caliber gun- within 200 yd. (183 m) and pinnipeds are nery exercises using a surface target within 100 yd. (91 m) of the sonar dome. when that activity is conducted from a Transmissions will not resume until ship against a surface target. the marine mammal has been observed (v) Lookout measures for physical exiting the mitigation zone, is thought strike and disturbance: to have exited the mitigation zone (A) While underway, surface ships based on its course and speed, has not and range craft will have at least one been detected for 30 minutes, the vessel Lookout. has transited more than 2,000 yd. be- (B) During activities using towed in- yond the location of the last detection, water devices towed from a manned or the Lookout concludes that dolphins platform, one Lookout will be used. are deliberately closing in on the ship During activities in which in-water de- to ride the ship’s bow wave (and there

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are no other marine mammal sightings bow wave (and there are no other ma- within the mitigation zone). Active rine mammal sightings within the transmission may resume when dol- mitigation zone). The pinniped mitiga- phins are bow riding because they are tion zone does not apply for pierside or out of the main transmission axis of shore-based testing in the vicinity of the active sonar while in the shallow- pinnipeds hauled out on or in the water wave area of the ship bow. The near man-made structures and vessels. pinniped mitigation zone does not (iv) Mitigation Zones and Procedures apply to pierside sonar in the vicinity for Explosive and Impulsive Sound: of pinnipeds hauled out on or in the (A) For activities using IEER water near man-made structures and sonobuoys, mitigation will include pre- vessels. exercise aerial observation and passive (D) The Navy shall ensure that low- acoustic monitoring, which will begin frequency active sonar transmission 30 minutes before the first source/re- levels are ceased if any detected ceiver pair detonation and continue cetaceans (or sea turtles) are within 200 throughout the duration of the exer- yd. (183 m) and pinnipeds are within 100 cise. IEER sonobuoys will not be de- yd. (91 m) of the source. Transmissions ployed if concentrations of floating will not resume until the marine mam- vegetation (kelp paddies) are observed mal has been observed exiting the miti- in the mitigation zone around the in- gation zone, is thought to have exited tended deployment location. Explosive the mitigation zone based on its course detonations will cease if a marine and speed, has not been detected for 30 mammal, sea turtle, or concentrations minutes, or the vessel has transited of floating vegetation are sighted with- more than 2,000 yd. beyond the location in a 600-yd. (549 m) mitigation zone. of the last detection. The pinniped Detonations will recommence if the mitigation zone does not apply for animal is observed exiting the mitiga- pierside sonar in the vicinity of tion zone, the animal is thought to pinnipeds hauled out on or in the water have exited the mitigation zone based near man-made structures and vessels. on its course and speed, or the mitiga- (E) For training, the Navy shall en- tion zone has been clear from any addi- sure that high-frequency and non-hull- tional sightings for a period of 30 min- mounted mid-frequency active sonar utes. transmission levels are ceased if any (B) A mitigation zone with a radius detected marine mammals are within of 350 yd. (320 m) shall be established 200 yd. (183 m) of the source. For test- for explosive signal underwater ing, the Navy shall ensure that high- sonobuoys using >0.5 to 2.5 lb net ex- frequency and non-hull-mounted mid- plosive weight. Mitigation will include frequency active sonar transmission pre-exercise aerial monitoring of the levels are ceased if any detected mitigation zone during deployment. cetaceans are within 200 yd. (183 m) and Explosive SUS buoys will not be de- pinnipeds are within 100 yd. (91 m) of ployed if concentrations of floating the source. Transmissions will not re- vegetation (kelp paddies) are observed sume until the marine mammal has within the mitigation zone around the been observed exiting the mitigation intended deployment location. A SUS zone, is thought to have exited the detonation will cease if a marine mam- mitigation zone based on its course and mal or sea turtle is sighted within the speed, the mitigation zone has been mitigation zone. Detonations will re- clear from any additional sightings for commence if the animal is observed a period of 10 minutes for an aircraft- exiting the mitigation zone, the animal deployed source, the mitigation zone is thought to have exited the mitiga- has been clear from any additional tion zone based on its course and speed, sightings for a period of 30 minutes for or the mitigation zone has been clear a vessel-deployed source, the vessel or from any additional sightings for a pe- aircraft has repositioned itself more riod of 10 minutes. than 400 yd. (370 m) away from the lo- (C) A mitigation zone with a radius cation of the last sighting, or the ves- of 400 yd. (366 m) shall be established sel concludes that dolphins are delib- for mine countermeasures and neutral- erately closing in to ride the vessel’s ization activities using positive control

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firing devices. For Demolition and with a surface target. Ships will ob- Mine Countermeasures Operations, pre- serve the mitigation zone from the fir- exercise surveys shall be conducted ing position. The exercise will not com- within 30 minutes prior to the commence if concentrations of floating mencement of the scheduled explosive vegetation (kelp paddies) are observed event. The survey may be conducted in the mitigation zone. Firing will from the surface, by divers, or from the cease if a marine mammal or sea turtle air, and personnel shall be alert to the is sighted within the mitigation zone. presence of any marine mammal or sea Firing will recommence if the animal turtle. Should a marine mammal or sea is observed exiting the mitigation zone, turtle be present within the survey the animal is thought to have exited area, the explosive event shall not be the mitigation zone based on its course started until the animal voluntarily and speed, or the mitigation zone has leaves the area. The Navy will ensure been clear from any additional the area is clear of marine mammals sightings for a period of 30 minutes. for a full 30 minutes prior to initiating (F) A mitigation zone with a radius the explosive event. Explosive detona- of 2,000 yd. (1.8 km) shall be established tions will cease if a marine mammal is for missile exercises up to 500 lb NEW sighted in the water portion of the using a surface target. When aircraft mitigation zone (i.e., not on shore). are involved in the missile firing, miti- Detonations will recommence if the gation will include visual observation animal is observed exiting the mitiga- by the aircrew prior to commencement tion zone, the animal is thought to of the activity within a mitigation have exited the mitigation zone based zone of 2,000 yd. (1.8 km) around the in- on its course and speed, or the mitiga- tended impact location. The exercise tion zone has been clear from any additional sightings for a period of 30 min- will not commence if concentrations of utes. floating vegetation (kelp paddies) are (D) A mitigation zone with a radius observed in the mitigation zone. Firing of 200 yd. (183 m) shall be established will not commence or will cease if a for small- and medium-caliber gunnery marine mammal or sea turtle is sight- exercises with a surface target. Vessels ed within the mitigation zone. Firing will observe the mitigation zone from will recommence if the animal is ob- the firing position. When aircraft are served exiting the mitigation zone, the firing, the aircrew will maintain visual animal is thought to have exited the watch of the mitigation zone during mitigation zone based on its course and the activity. The exercise will not com- speed, or the mitigation zone has been mence if concentrations of floating clear from any additional sightings for vegetation (kelp paddies) are observed a period of 10 minutes or 30 minutes within the mitigation zone. Firing will (depending on aircraft type). cease if a marine mammal or sea turtle (G) A mitigation zone with a radius is sighted within the mitigation zone. of 2,500 yd. (2.3 km) for explosive bombs Firing will recommence if the animal and a mitigation zone of 1,000 yd (914 is observed exiting the mitigation zone, m) for non-explosive bombs around the the animal is thought to have exited intended impact location shall be es- the mitigation zone based on its course tablished for bombing exercises. Air- and speed, the mitigation zone has craft shall visually survey the target been clear from any additional and buffer zone for marine mammals sightings for a period of 10 minutes for prior to and during the exercise. The a firing aircraft, the mitigation zone exercise will not commence if con- has been clear from any additional centrations of floating vegetation (kelp sightings for a period of 30 minutes for paddies) are observed in the mitigation a firing ship, or the intended target lo- zone. Bombing will not commence or cation has been repositioned more than will cease if a marine mammal or sea 400 yd. (370 m) away from the location turtle is sighted within the mitigation of the last sighting. zone. Bombing will recommence if the (E) A mitigation zone with a radius animal is observed exiting the mitiga- of 600 yd. (549 m) shall be established tion zone, the animal is thought to for large-caliber gunnery exercises have exited the mitigation zone based

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on its course and speed, or the mitiga- animal is observed exiting the mitigation zone has been clear from any addition zone, the animal is thought to tional sightings for a period of 10 min- have exited the mitigation zone based utes. on its course and speed, the mitigation (H) A mitigation zone with a radius zone has been clear from any addi- of 2,100 yd. (1.9 km) shall be established tional sightings for a period of 30 min- for torpedo (explosive) testing. Mitiga- utes, or the vessel has repositioned tion will include visual observation by itself more than 140 yd. (128 m) away aircraft immediately before, during, from the location of the last sighting. and after the event of the mitigation (v) Mitigation Zones for Vessels and zone. The exercise will not commence In-Water Devices: if concentrations of floating vegetation (A) For all training activities and for (kelp paddies) are sighted within the testing activities involving surface mitigation zone. Firing will not com- ships, vessels shall avoid approaching mence or will cease if a marine mam- marine mammals head on and shall mal, sea turtle, or aggregation of jelly- maneuver to keep at least 500 yd. (457 fish is sighted within the mitigation m) away from observed whales and 200 zone. Firing will recommence if the yd (183 m) away from all other marine animal is observed exiting the mitiga- mammals (except bow riding dolphins, tion zone, the animal is thought to and pinnipeds hauled out on man-made have exited the mitigation zone based navigational and port structures and on its course and speed, or the mitiga- vessels) during vessel movements. tion zone has been clear from any addi- These requirements shall not apply if a tional sightings for a period of 10 min- vessel’s safety is threatened and to the utes or 30 minutes (depending on air- extent that vessels are restricted in craft type). In addition to visual obser- their ability to maneuver. Restricted vation, passive acoustic monitoring maneuverability includes, but is not shall be conducted by Navy assets, limited to, situations when vessels are such as passive ship sonar systems or engaged in dredging, submerged activi- sonobuoys already participating in the ties, launching and recovering aircraft activity. These assets would only de- or landing craft, minesweeping activi- tect vocalizing marine mammals with- ties, replenishment while underway in the frequency band monitored by and towing activities that severely re- Navy personnel. Passive acoustic de- strict a vessel’s ability to deviate tections would not provide range or course. bearing to detected animals, and there- (B) For testing activities not involv- fore cannot provide locations of these ing surface ships (e.g. range craft) ves- animals. Passive acoustic detections sels shall maneuver to keep at least 100 shall be reported to the Lookout posted yd. (91 m) away from marine mammals in the aircraft in order to increase vigi- (except bow-riding dolphins, pinnipeds lance of the visual surveillance, and to hauled out on man-made navigational the person in control of the activity for and port structures and vessels, and their consideration in determining pinnipeds during test body retrieval) when the mitigation zone is deter- during vessel movements. This require- mined free of visible marine mammals. ment shall not apply if a vessel’s safety (I) A mitigation zone with a radius of is threatened and to the extent that 70 yd. (46 m) within 30 degrees on either vessels are restricted in their ability to side of the gun target line on the firing maneuver. Restricted maneuverability side shall be established for weapons includes, but is not limited to, situa- firing noise during large-caliber gun- tions when vessels are engaged in nery exercises. Mitigation shall include dredging, submerged activities, launch- visual observation immediately before ing and recovering aircraft or landing and during the exercise. The exercise craft, minesweeping activities, replen- will not commence if concentrations of ishment while underway and towing floating vegetation (kelp paddies) are activities that severely restrict a ves- observed in the mitigation zone. Firing sel’s ability to deviate course. will cease if a marine mammal or sea (C) The Navy shall ensure that towed turtle is sighted within the mitigation in-water devices being towed from zone. Firing will recommence if the manned platforms avoid coming within

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a mitigation zone of 250 yd. (230 m) for (3) NWTT-Specific Mitigation—The fol- all training events and testing activi- lowing are additional measures the ties involving surface ships, and a miti- Navy shall comply with when con- gation zone of 100 yd (91 m) for testing ducting training or testing activities in activities not involving surface ships the NWTT Study Area: (e.g. range craft) around any observed (i) Maritime Homeland Defense/Secu- marine mammal, providing it is safe to rity Mine Countermeasure Integrated do so. Exercises—The Navy shall conduct pre- (vi) Mitigation zones for non-explo- event planning and training to ensure sive practice munitions: environmental awareness of all exer- (A) A mitigation zone of 200 yd. (183 cise participants. When this event is m) shall be established for small-, me- proposed to be conducted in Puget dium, and large-caliber gunnery exer- Sound, Navy event planners shall con- cises using a surface target. Mitigation sult with Navy biologists who shall will include visual observation from a contact NMFS during the planning vessel or aircraft immediately before process in order to determine likeli- and during the exercise within the hood of gray whale or southern resi- mitigation zone of the intended impact dent killer whale presence in the pro- location. The exercise will not composed exercise area as planners con- mence if concentrations of floating sider specifics of the event. vegetation (kelp paddies) are observed (ii) Small Boat Attack Gunnery Ex- in the mitigation zone. Firing will ercises—The Navy shall conduct pre- cease if a marine mammal is sighted event planning and training to ensure within the mitigation zone. Firing will environmental awareness of all exer- recommence if the animal is observed cise participants. When this event is exiting the mitigation zone, the animal proposed to be conducted in and around is thought to have exited the mitiga- Naval Station Everett, Naval Base tion zone based on its course and speed, Kitsap Bangor, or Naval Base Kitsap the mitigation zone has been clear Bremerton in Puget Sound, Navy event from any additional sightings for a pe- planners shall consult with Navy biolo- riod of 10 minutes for a firing aircraft, gists who shall contact NMFS early in the mitigation zone has been clear the planning process in order to deter- from any additional sightings for a pe- mine the extent marine mammals may riod of 30 minutes for a firing ship, or be present in the immediate vicinity of the intended target location has been the proposed exercise area as planners repositioned more than 400 yd. (370 m) consider the specifics of the event. away from the location of the last (iii) Missile Exercise—The Navy shall sighting. conduct Missile Exercises using high (B) A mitigation zone of 1,000 yd. (914 explosives at least 50 nm from shore in m) shall be established for non-explo- the NWTT Offshore Area. sive bombing exercises. Mitigation (iv) BOMBEX—The Navy shall con- shall include visual observation from duct BOMBEX (high explosive muni- the aircraft immediately before the ex- tions) greater than 50 nm from shore. ercise and during target approach with- (v) BOMBEX (non-explosive practice in the mitigation zone around the in- munitions)—The Navy shall conduct tended impact location. The exercise BOMBEX (non-explosive practice mu- will not commence if concentrations of nitions) events at least 20 nm from floating vegetation (kelp paddies) are shore and shall not conduct BOMBEX observed within the mitigation zone. events within the Olympic Coast Na- Bombing will not commence or will tional Marine Sanctuary. cease if a marine mammal is sighted (vi) Mine Countermeasure and Neu- within the mitigation zone. Bombing tralization Underwater Detonations— will recommence if the animal is ob- The Navy shall require approval from served exiting the mitigation zone, the U.S. Third Fleet prior to conducting animal is thought to have exited the mine countermeasure and neutraliza- mitigation zone based on its course and tion underwater detonations at Hood speed, or the mitigation zone has been Canal or Crescent Harbor. clear from any additional sightings for (vii) Hull Mounted Mid-Frequency a period of 10 minutes. Active Sonar Training—The Navy shall

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require approval from U.S. Pacific (or unknown), and the time of the Fleet’s designated authority prior to strike. conducting hull-mounted mid-fre- (2) Report to NMFS as soon as oper- quency active sonar on vessels while ationally feasible the size and length of training underway in Puget Sound and animal, an estimate of the injury sta- the Strait of Juan de Fuca. tus (ex., dead, injured but alive, injured (viii) Pierside Maintenance or Test- and moving, unknown, etc.), vessel ing of Sonar Systems—The Navy shall class/type and operational status. require approval from U.S. Pacific (3) Report to NMFS the vessel length, Fleet’s designated authority or Sys- speed, and heading as soon as feasible. tems Command designated authority (4) Provide NMFS a photo or video, if (as applicable to ship and submarine equipment is available. active sonar use) prior to conducting (5) Within 2 weeks of the strike, pro- pierside maintenance or testing in vide NMFS with a detailed description Puget Sound or the Strait of Juan de of the specific actions of the vessel in Fuca. the 30-minute timeframe immediately (b) [Reserved] preceding the strike, during the event, and immediately after the strike (e.g., § 218.145 Requirements for monitoring the speed and changes in speed, the di- and reporting. rection and changes in direction, other (a) The Navy is required to cooperate maneuvers, sonar use, etc., if not clas- with the NMFS, and any other Federal, sified); a narrative description of ma- state or local agency monitoring the rine mammal sightings during the impacts of the activity on marine event and immediately after, and any mammals. information as to sightings prior to the (b) General Notification of Injured or strike, if available; and use established Dead Marine Mammals—Navy per- Navy shipboard procedures to make a sonnel shall ensure that NMFS is noti- camera available to attempt to capture fied immediately (or as soon as clear- photographs following a ship strike. ance procedures allow) if an injured, (d) Event Communication Plan—The stranded, or dead marine mammal is Navy shall develop a communication found during or shortly after, and in plan that will include all of the com- the vicinity of, any Navy training exer- munication protocols (phone trees, cise utilizing MFAS, HFAS, or under- etc.) and associated contact informa- water explosive detonations. The Navy tion required for NMFS and the Navy will provide NMFS with species or de- to carry out the necessary expeditious scription of the animal(s), the condi- communication required in the event tion of the animal(s) (including carcass of a stranding or ship strike, including condition if the animal is dead), loca- as described in the proposed notification, time of first discovery, observed tion measures above. behaviors (if alive), and photo or video (e) The Navy must conduct all moni- (if available). In the event that an in- toring and/or research required under jured, stranded, or dead marine mam- the Letter of Authorization including mal is found by the Navy that is not in abiding by the NWTT monitoring plan. the vicinity of, or during or shortly (http://www.nmfs.noaa.gov/pr/permits/in- after, MFAS, HFAS, or underwater ex- cidental/military.htm). plosive detonations, the Navy will re- (f) Annual NWTT Monitoring Re- port the same information as listed port—The Navy shall submit an annual above as soon as operationally feasible report of the NWTT monitoring de- and clearance procedures allow. scribing the implementation and re- (c) General Notification of Ship sults of the NWTT monitoring efforts Strike—In the event of a ship strike by from the previous calendar year. Data any Navy vessel, at any time or place, collection methods will be standardized the Navy shall do the following: across range complexes and study areas (1) Immediately report to NMFS the to allow for comparison in different ge- species identification (if known), loca- ographic locations. Although addition (lat/long) of the animal (or the tional information will be gathered, strike if the animal has disappeared), the protected species observers col- and whether the animal is alive or dead lecting marine mammal data pursuant

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to the NWTT monitoring plan shall, at amount of hull-mounted mid-frequency a minimum, provide the same marine and high frequency active sonar use mammal observation data required in during training and testing activities this section. The report shall be sub- in the Olympic Coast National Marine mitted either 90 days after the calendar Sanctuary and in the months specified year, or 90 days after the conclusion of for the following three feeding areas the monitoring year to be determined (to the extent that active sonar train- by the Adaptive Management process. ing or testing does occur in these The NWTT Monitoring Report may be areas): The Humpback Whale Northern provided to NMFS within a larger re- Washington feeding area (May through port that includes the required Moni- November); the Stonewall and Heceta toring Plan reports from multiple Bank feeding area (May through No- range complexes and study areas (the vember) and the Gray Whale Northern multi-Range Complex Annual Moni- Puget Sound Feeding Area (March toring Report). Such a report would de- through May). scribe progress of knowledge made with (h) 5-year Close-out Exercise and respect to monitoring plan study ques- Testing Report—This report will be in- tions across all Navy ranges associated cluded as part of the 2020 annual exer- with the Integrated Comprehensive cise or testing report. This report will Monitoring Program. Similar study provide the annual totals for each questions shall be treated together so sound source bin with a comparison to that progress on each topic shall be the annual allowance and the 5-year summarized across all Navy ranges. total for each sound source bin with a The report need not include analyses comparison to the 5-year allowance. and content that does not provide di- Additionally, if there were any changes rect assessment of cumulative progress to the sound source allowance, this re- on the monitoring plan study ques- port will include a discussion of why tions. the change was made and include the (g) Annual NWTT Exercise and Test- analysis to support how the change did ing Reports—The Navy shall submit or did not result in a change in the EIS preliminary reports detailing the sta- and final rule determinations. The re- tus of authorized sound sources within port will be submitted 3 months after 21 days after the anniversary of the the expiration of the rule. NMFS will date of issuance of the LOA. The Navy submit comments on the draft close- shall submit detailed reports 3 months out report, if any, within 3 months of after the annual anniversary of the receipt. The report will be considered date of issuance of the LOA. The de- final after the Navy has addressed tailed annual reports shall describe the NMFS’ comments, or 3 months after level of training and testing conducted the submittal of the draft if NMFS during the reporting period, and a sum- does not provide comments. mary of sound sources used (total annual hours or quantity [per the LOA] of § 218.146 Applications for Letters of each bin of sonar or other non-impul- Authorization. sive source; total annual number of each type of explosive exercises; total To incidentally take marine mam- annual expended/detonated rounds mals pursuant to the regulations in [missiles, bombs, etc.] for each explo- this subpart, the U.S. citizen (as de- sive bin; and improved Extended Echo- fined by § 216.106) conducting the activ- Ranging System (IEER)/sonobuoy sum- ity identified in § 218.140(c) (the U.S. mary, including total number of IEER Navy) must apply for and obtain either events conducted in the Study Area, an initial LOA in accordance with total expended/detonated rounds § 218.147 or a renewal under § 218.148. (buoys), and total number of self-scut- § 218.147 Letters of Authorization. tled IEER rounds. The analysis in the detailed reports will be based on the (a) An LOA, unless suspended or re- accumulation of data from the current voked, will be valid for a period of time year’s report and data collected from not to exceed the period of validity of previous reports. The annual classified this subpart. exercise reports will also include the (b) Each LOA will set forth:

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(1) Permissible methods of incidental may be modified by NMFS under the taking; following circumstances: (2) Means of effecting the least prac- (1) Adaptive Management—NMFS ticable adverse impact on the species, may modify (including add to, change, its habitat, and on the availability of or remove) the existing mitigation, the species for subsistence uses (i.e., monitoring, or reporting measures mitigation); and (after consulting with the Navy regard- (3) Requirements for mitigation, ing the practicability of the modifica- monitoring and reporting. tions) if doing so creates a reasonable (c) Issuance, modification, or renew- likelihood of more effectively accom- als of LOAs will be based on a deter- plishing the goals of the mitigation mination that the total number of ma- and monitoring set forth in the pre- rine mammals taken by the activity as amble for these regulations. a whole will have no more than a neg- (i) Possible sources of data that could ligible impact on the affected species contribute to the decision to modify or stock of marine mammal(s). the mitigation, monitoring, and reporting measures in an LOA include (but § 218.148 Renewals and Modifications are not limited to): of Letters of Authorization and Adaptive Management. (A) Results from Navy’s monitoring from the previous year(s); (a) A Letter of Authorization issued (B) Results from other marine mam- under §§ 216.106 and 218.147 of this chap- mal and/or sound research or studies; ter for the activity identified in or § 218.140(c) will be renewed or modified (C) Any information that reveals ma- upon request of the applicant, provided rine mammals may have been taken in that: a manner, extent, or number not au- (1) The proposed specified activity thorized by these regulations or subse- and mitigation, monitoring, and re- quent LOAs. porting measures, as well as the anticipated impacts, are the same as those (ii) If, through adaptive management, described and analyzed for these regu- the modifications to the mitigation, lations (excluding changes made pursu- monitoring, or reporting measures are ant to the adaptive management provi- substantial, NMFS would publish a no- sion of this chapter), and; tice of proposed LOA in the FEDERAL (2) NMFS determines that the miti- REGISTER and solicit public comment. gation, monitoring, and reporting (2) Emergencies—If NMFS deter- measures required by the previous LOA mines that an emergency exists that under these regulations were ade- poses a significant risk to the well- quately implemented. being of the species or stocks of marine (b) For LOA modification or renewal mammals specified in § 218.142(c), an requests by the applicant that include LOA may be modified without prior no- changes to the activity or the mitiga- tification and an opportunity for public tion, monitoring, or reporting (exclud- comment. Notification would be pub- ing changes made pursuant to the lished in the FEDERAL REGISTER within adaptive management provision of this 30 days of the action. chapter) that do not change the findings made for the regulations or result Subpart P—Taking and Importing in no more than a minor change in the Marine Mammals; U.S. Navy’s total estimated number of takes (or Gulf of Alaska Temporary distribution by species or years), NMFS may publish a notice of pro- Maritime Activities Area (GOA posed LOA in the FEDERAL REGISTER, TMAA) Study Area including the associated analysis illustrating the change, and solicit public SOURCE: 82 FR 19601, Apr. 27, 2017, unless comment before issuing the LOA. otherwise noted. (c) An LOA issued under §§ 216.106 and EFFECTIVE DATE NOTE: At 82 FR 19601, Apr. 218.147 of this chapter for the activity 27, 2017, subpart P was added, effective Apr. identified in § 218.144 of this chapter 26, 2017, through Apr. 26, 2022.

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§ 218.150 Specified activity and speci- (C) E10 (>250 to 500 lb NEW)—an aver- fied geographical region. age of 6 detonations per year. (a) Regulations in this subpart apply (D) E12 (>650 to 1,000 lb NEW)—an av- only to the U.S. Navy for the taking of erage of 2 detonations per year. marine mammals that occurs in the (ii) [Reserved] area outlined in paragraph (b) of this section and that occurs incidental to § 218.151 Effective dates and defini- the activities described in paragraph tions. (c) of this section. (a) Regulations in this subpart are ef- (b) The taking of marine mammals fective April 26, 2017 through April 26, by the Navy is only authorized if it oc- 2022. curs within the GOA TMAA Study (b) The following definitions are uti- Area, which is bounded by a hexagon lized in these regulations: with the following six corners: 57°30′° N. (1) Uncommon Stranding Event (USE). lat., 141°30′° W. long.; 59°36′° N. lat., A stranding event that takes place dur- 148°10′° W. long.; 58°57′° N. lat., 150°04′° W. long.; 58°20′° N. lat., 151°00′° W. long.; ing a Major Training Exercise (MTE) 57°16′° N. lat., 151°00′° W. long.; and and involves any one of the following: 55°30′° N. lat., 142°00′° W. long. (i) Two or more individuals of any ce- (c) The taking of marine mammals tacean species (i.e., could be two dif- by the Navy is only authorized if it oc- ferent species, but not including moth- curs incidental to the following activi- er/calf pairs, unless of species of con- ties: cern listed in next bullet) found dead or (1) Sonar and other active sources used live on shore within a three- to four- during training—(i) Mid-frequency (MF) day period and within 10 miles of one source classes. (A) MF1—an average of another. 271 hours per year. (ii) A single individual or mother/calf (B) MF3—an average of 24 hours per pair of any of the following marine year. mammals of concern: beaked whale of (C) MF4—an average of 26 hours per any species, North Pacific right whale, year. humpback whale, sperm whale, blue (D) MF5—an average of 126 items per whale, fin whale, sei whale, Cook Inlet year. beluga whale, Northern fur seal, and (E) MF6—an average of 11 items per year. Steller sea lion. (F) MF11—an average of 39 hours per (iii) A group of two or more year. cetaceans of any species exhibiting in- (ii) High-frequency (HF) source classes. dicators of distress. (A) HF1—an average of 12 hours per (2) [Reserved] year. (B) HF6—an average of 40 items per § 218.152 Permissible methods of tak- year. ing. (iii) Anti-Submarine Warfare (ASW) (a) Under letter of authorization source classes. (A) ASW2—an average of (LOA) issued pursuant to § 216.106 of 40 hours per year. this chapter and § 218.157, the holder of (B) ASW3—an average of 273 hours the LOA may incidentally, but not in- per year. tentionally, take marine mammals (C) ASW4—an average 6 items per within the area described in § 218.150, year. provided the activity is in compliance (iv) Torpedoes (TORP). (A) TORP2—an with all terms, conditions, and require- average of 0 items per year. ments of these regulations and the (B) [Reserved] (2) Impulsive source detonations during LOA. training—(i) Explosive classes. (A) E5 (>5 (b) The activities identified in to 10 pound (lb) net explosive weight § 218.150(c) must be conducted in a man- (NEW))—an average of 56 detonations ner that minimizes, to the greatest ex- per year. tent practicable, any adverse impacts (B) E9 (>100 to 250 lb NEW)—an aver- on marine mammal species or stocks age of 64 detonations per year. and their habitat.

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(c) The incidental take of marine Pacific—4,905 (an average of 981 per mammals under the activities identi- year). fied in § 218.150(c) is limited to the fol- (J) Stejneger’s beaked whale lowing species, by the identified meth- (Mesoplodon stejnegeri), Alaska—2,880 od of take and the indicated number of (an average of 576 per year). times: (K) Sperm whale (Physeter (1) Level B harassment for all training macrocephalus), North Pacific—490 (an activities—(i) Mysticetes. (A) Blue whale average of 98 per year). (Balaenoptera musculus), Eastern (iii) Pinnipeds. (A) California sea lion North Pacific—235 (an average of 47 per (Zalophus californianus), U.S.—10 (an year). average of 2 per year). (B) Fin whale (Balaenoptera (B) Steller sea lion (Eumetopias physalus), Northeast Pacific—6,455 (an jubatus), Eastern U.S.—1,675 (an aver- average of 1,291 per year). age of 335 per year). (C) Humpback whale (Megaptera (C) Steller sea lion (Eumetopias novaeangliae), Central North Pacific— jubatus), Western U.S.—1,430 (an aver- 305 (an average of 61 per year). age of 286 per year). (D) Humpback whale (Megaptera (D) Harbor seal (Phoca vitulina), novaeangliae), Western North Pacific— South Kodiak—5 (an average of 1 per 5 (an average of 1 per year). year). (E) Humpback whale (Megaptera (E) Harbor seal (Phoca vitulina), novaeangliae), CA/OR/WA—35 (an aver- Prince William Sound—5 (an average of age of 7 per year). 1 per year). (F) Minke whale (Balaenoptera (F) Northern elephant seal (Mirounga acutorostrata), Alaska—215 (an average angustirostris), California Breeding— of 43 per year). 610 (an average of 122 per year). (G) North Pacific right whale (G) Northern fur seal (Callorhinus (Eubalaena japonica), Eastern North ursinus), Eastern Pacific—3,565 (an av- Pacific—15 (an average of 3 per year). erage of 713 per year). (H) Sei whale (Balaenoptera bore- (2) Level A harassment for all training alis), Eastern North Pacific—30 (an av- activities—(i) Odontocetes. (A) Dall’s erage of 6 per year). porpoise (Phocoenoidea dalli), Alaska— (ii) Odontocetes. (A) Baird’s beaked 12 (an average of 4 per year). whale (Berardius bairdii), Alaska—1,000 (B) [Reserved] (an average of 200 per year). (ii) [Reserved] (B) Cuvier’s beaked whale (Ziphius cavirostris), Alaska—6,355 (an average § 218.153 Prohibitions. of 1,271 per year). Notwithstanding takings con- (C) Dall’s porpoise (Phocoenoidea templated in § 218.152 and authorized by dalli), Alaska—41,350 (an average an LOA issued under § 216.106 of this of8,270 per year). chapter and § 218.157, no person in con- (D) Harbor porpoise (Phocoena nection with the activities described in phocoena), GOA—13,710 (an average of § 218.150 may: 2,742 per year). (a) Take any marine mammal not (E) Harbor porpoise (Phocoena specified in § 218.152(c); phocoena), Southeast Alaska—4,815 (an (b) Take any marine mammal speci- average of 963 per year). fied in § 218.152(c) other than by inci- (F) Killer whale (Orcinus orca), Alas- dental take as specified in § 218.152(c); ka Resident—1,405 (an average of 281 (c) Take a marine mammal specified per year). in § 218.152(c) if such taking results in (G) Killer whale (Orcinus orca), East- more than a negligible impact on the ern North Pacific Offshore—130 (an av- species or stocks of such marine mam- erage of 26 per year). mal; or (H) Killer whale (Orcinus orca), GOA, (d) Violate, or fail to comply with, Aleutian Island, and Bearing Sea Tran- the terms, conditions, and require- sient—360 (an average of 72 per year). ments of these regulations or an LOA (I) Pacific white-sided dolphin issued under § 216.106 of this chapter (Lagenorhynchus obliquidens), North and § 218.157.

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§ 218.154 Mitigation. less than 65 ft (20 m) in length, ships (a) After review of best available using hull-mounted mid-frequency ac- science, the following mitigation was tive sonar sources associated with anti- determined to result in the least prac- submarine warfare activities at sea ticable adverse effect on marine mam- shall have two Lookouts at the forward mal species or stocks. When conducting position of the vessel. training activities, as identified in (B) While using hull-mounted mid- § 218.150, the mitigation measures con- frequency active sonar sources associ- tained in the LOA issued under § 216.106 ated with anti-submarine warfare ac- of this chapter and § 218.157 must be im- tivities at sea, vessels less than 65 ft (20 plemented. These mitigation measures m) in length shall have one lookout at include, but are not limited to: the forward position of the vessel due (1) Lookouts. The Navy shall have two to space and manning restrictions. types of lookouts for the purposes of (C) During non-hull mounted mid-fre- conducting visual observations: Those quency active sonar training activities, positioned on ships; and those posi- Navy aircraft participating in exercises tioned ashore, in aircraft, or on boats. at sea shall conduct and maintain, The following are protective measures when operationally feasible and safe, concerning the use of lookouts. surveillance for marine species of con- (i) Lookouts positioned on surface cern as long as it does not violate safe- ships shall be dedicated solely to dili- ty constraints or interfere with the ac- gent observation of the air and surface complishment of primary operational of the water. Their observation objec- duties. Helicopters shall observe/survey tives shall include, but are not limited the vicinity of an anti-submarine war- to, detecting the presence of biological fare training event for 10 minutes be- resources and recreational or fishing fore the first deployment of active (dip- boats, observing mitigation zones, and ping) sonar in the water. monitoring for vessel and personnel (D) Ships or aircraft conducting non- safety concerns. hull-mounted mid-frequency active (ii) Due to manning and space re- sonar, such as helicopter dipping sonar strictions on aircraft, small boats, and systems, shall maintain one lookout. some Navy ships, lookouts for these (E) Ships conducting high-frequency platforms may be supplemented by the active sonar shall maintain one look- aircraft crew or pilot, boat crew, range out. site personnel, or shore-side personnel. (v) Lookout measures for explosives and Lookouts positioned in minimally impulsive sound. (A) Aircraft con- manned platforms may be responsible ducting explosive signal underwater for tasks in addition to observing the sound buoy activities using >0.5–2.5 lb. air or surface of the water (e.g., naviga- NEW shall have one lookout. tion of a helicopter or small boat). (B) Surface vessels or aircraft con- However, all lookouts shall, consid- ducting small-, medium-, or large-cal- ering personnel safety, practicality of iber gunnery exercises against a sur- implementation, and impact on the ef- face target shall have one Lookout. fectiveness of the activity, comply From the intended firing position, with the observation objectives de- trained Lookouts shall survey the scribed in paragraph (a)(1)(i) of this mitigation zone for marine mammals section for lookouts positioned on prior to commencement and during the ships. exercise as long as practicable. Towing (iii) All personnel standing watch on vessels, if applicable, shall also main- the bridge, Commanding Officers, Exec- tain one Lookout. If a marine mammal utive Officers, maritime patrol aircraft is sighted in the vicinity of the exer- aircrews, anti-submarine warfare heli- cise, the tow vessel shall immediately copter crews, civilian equivalents, and notify the firing vessel in order to se- lookouts shall successfully complete cure gunnery firing until the area is the United States Navy Marine Species clear. Awareness Training prior to standing (C) Aircraft conducting explosive watch or serving as a lookout. bombing exercises shall have one look- (iv) Lookout measures for non-impulsive out and any surface vessels involved sound. (A) With the exception of vessels shall have trained Lookouts. If surface

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vessels are involved, Lookouts shall (C) When aircraft are conducting survey for floating kelp and marine non-explosive missile exercises (includ- mammals. Aircraft shall visually sur- ing exercises using rockets) against a vey the target and buffer zone for ma- surface target, the Navy shall have one rine mammals prior to and during the Lookout positioned in an aircraft. exercise. The survey of the impact area (2) Mitigation zones. The following are shall be made by flying at 1,500 ft (460 protective measures concerning the m) or lower, if safe to do so, and at the implementation of mitigation zones. slowest safe speed. Release of ordnance (i) Mitigation zones shall be meas- through cloud cover is prohibited: Air- ured as the radius from a source and craft must be able to actually see ord- represent a distance to be monitored. nance impact areas. Survey aircraft (ii) Visual detections of marine mam- should employ most effective search mals or sea turtles within a mitigation tactics and capabilities. zone shall be communicated imme- (D) When aircraft are conducting diately to a watch station for informa- missile exercises against a surface tar- tion dissemination and appropriate ac- get, the Navy shall have one Lookout tion. positioned in an aircraft. Aircraft shall (iii) Mitigation zones for non-impulsive visually survey the target area for ma- sound. (A) The Navy shall ensure that rine mammals. Visual inspection of the hull-mounted mid-frequency active target area shall be made by flying at sonar transmission levels are limited 1,500 ft (457 m) or lower, if safe to do so, to at least 6 dB below normal operating and at the slowest safe speed. Firing or levels if any detected marine mammals range clearance aircraft must be able or sea turtles are within 1,000 yd (914 to actually see ordnance impact areas. m) of the sonar dome (the bow). (E) Ships conducting explosive and (B) The Navy shall ensure that hull- non-explosive gunnery exercises shall mounted mid-frequency active sonar have one Lookout on the ship. This transmissions are limited to at least 10 may be the same lookout described in dB below the equipment’s normal oper- paragraph (a)(1)(v)(B) of this section ating level if any detected marine for surface vessels conducting small-, mammals or sea turtles are within 500 medium-, or large-caliber gunnery ex- yd (457 m) of the sonar dome. ercises when that activity is conducted (C) The Navy shall ensure that hull- from a ship against a surface target. mounted mid-frequency active sonar (vi) Lookout measures for physical transmissions are ceased if any de- strike and disturbance. (A) While under- tected cetaceans or sea turtles are way, surface ships shall have at least within 200 yd (183 m) and pinnipeds are one Lookout with binoculars, and sur- within 100 yd (90 m) of the sonar dome. faced submarines shall have at least Transmissions shall not resume until one Lookout with binoculars. Lookouts the marine mammal has been observed already posted for safety of navigation exiting the mitigation zone, is thought and man-overboard precautions may be to have exited the mitigation zone used to fill this requirement. As part of based on its course and speed, has not their regular duties, Lookouts will been detected for 30 minutes, the vessel watch for and report to the Officer of has transited more than 2,000 yd (1830 the Deck the presence of marine mam- m) beyond the location of the last de- mals. tection, or the ship concludes that dol- (B) [Reserved] phins are deliberately closing in on the (vii) Lookout measures for non-explo- ship to ride the ship’s bow wave (and sive practice munitions. (A) Gunnery ex- there are no other marine mammal ercises using non-explosive practice sightings within the mitigation zone). munitions (e.g., small-, medium-, and Active transmission may resume when large-caliber) using a surface target dolphins are bow riding because they shall have one Lookout. are out of the main transmission axis (B) During non-explosive bombing ex- of the active sonar while in the shal- ercises one Lookout shall be positioned low-wave area of the ship bow. in an aircraft and trained lookouts (D) The Navy shall ensure that high- shall be positioned in any surface ves- frequency and non-hull-mounted mid- sels involved. frequency active sonar transmission

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levels are ceased if any detected (B) A mitigation zone with a radius cetaceans are within 200 yd (183 m) and of 200 yd (183 m) shall be established for pinnipeds are within 100 yd (90 m) of small- and medium-caliber gunnery ex- the source. Transmissions shall not re- ercises with a surface target. The exer- sume until the marine mammal has cise shall not commence if concentra- been observed exiting the mitigation tions of floating vegetation (kelp zone, is thought to have exited the paddies) are observed in the mitigation mitigation zone based on its course and zone. Firing shall cease if a marine speed, the mitigation zone has been mammal is sighted within the mitiga- clear from any additional sightings for tion zone. Firing shall recommence if a period of 10 minutes for an aircraft- any one of the following conditions is deployed source, the mitigation zone met: The animal is observed exiting has been clear from any additional the mitigation zone, the animal is sightings for a period of 30 minutes for thought to have exited the mitigation a vessel-deployed source, the vessel or zone based on its course and speed, the aircraft has repositioned itself more mitigation zone has been clear from than 400 yd (370 m) away from the loca- any additional sightings for a period of tion of the last sighting, or the vessel 10 minutes for a firing aircraft, the concludes that dolphins are delib- mitigation zone has been clear from erately closing in to ride the vessel’s any additional sightings for a period of bow wave (and there are no other ma- 30 minutes for a firing ship, or the in- rine mammal sightings within the tended target location has been reposi- mitigation zone). tioned more than 400 yd (370 m) away (iv) Mitigation zones for explosive and from the location of the last sighting. impulsive sound. (A) A mitigation zone (C) A mitigation zone with a radius with a radius of 350 yd (320 m) shall be established for explosive signal under- of 600 yd (549 m) shall be established for water sonobuoys using >0.5 to 2.5 lb large-caliber gunnery exercises with a NEW. Explosive signal underwater surface target. The exercise shall not sonobuoys shall not be deployed if con- commence if concentrations of floating centrations of floating vegetation (kelp vegetation (kelp paddies) are observed paddies) are observed in the mitigation in the mitigation zone. Firing shall zone (around the intended deployment cease if a marine mammal is sighted location). Explosive signal underwater within the mitigation zone. Firing sonobuoy deployment shall cease if a shall recommence if any one of the fol- marine mammal is sighted within the lowing conditions is met: The animal is mitigation zone. Detonations shall re- observed exiting the mitigation zone, commence if any one of the following the animal is thought to have exited conditions is met: The animal is ob- the mitigation zone based on its course served exiting the mitigation zone, the and speed, or the mitigation zone has animal is thought to have exited the been clear from any additional mitigation zone based on its course and sightings for a period of 30 minutes. speed, or the mitigation zone has been (D) A mitigation zone with a radius clear from any additional sightings for of 2,500 yd (2.3 km) around the intended a period of 10 minutes. Passive acoustic impact location for explosive bombs monitoring shall also be conducted and 1000 yd (920 m) for non-explosive with Navy assets, such as sonobuoys, bombs shall be established for bombing already participating in the activity. exercises. The exercise shall not com- These assets would only detect vocal- mence if concentrations of floating izing marine mammals within the fre- vegetation (kelp paddies) are observed quency bands monitored by Navy per- in the mitigation zone. Bombing shall sonnel. Passive acoustic detections cease if a marine mammal is sighted would not provide range or bearing to within the mitigation zone. Bombing detected animals, and therefore cannot shall recommence if any one of the fol- provide locations of these animals. lowing conditions is met: The animal is Passive acoustic detections would be observed exiting the mitigation zone, reported to Lookouts posted in aircraft the animal is thought to have exited in order to increase vigilance of their the mitigation zone based on its course visual surveillance. and speed, or the mitigation zone has

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been clear from any additional lowing conditions is met: The animal is sightings for a period of 10 minutes. observed exiting the mitigation zone, (E) A mitigation zone of 70 yd (64 m) the animal is thought to have exited shall be established for all explosive the mitigation zone based on its course large-caliber gunnery exercises con- and speed, the mitigation zone has ducted from a ship. The exercise shall been clear from any additional not commence if concentrations of sightings for a period of 10 minutes for floating vegetation (kelp paddies) are a firing aircraft, the mitigation zone observed in the mitigation zone. Firing has been clear from any additional shall cease if a marine mammal is sightings for a period of 30 minutes for sighted within the mitigation zone. a firing ship, or the intended target lo- Firing shall recommence if any one of cation has been repositioned more than the following conditions is met: The 400 yd (370 m) away from the location animal is observed exiting the mitiga- of the last sighting. tion zone, the animal is thought to (B) A mitigation zone of 1,000 yd (920 have exited the mitigation zone based m) shall be established for bombing ex- on its course and speed, the mitigation ercises. Bombing shall cease if a ma- zone has been clear from any addi- rine mammal is sighted within the tional sightings for a period of 30 min- mitigation zone. The exercise shall not utes, or the vessel has repositioned commence if concentrations of floating itself more than 140 yd (128 m) away vegetation (kelp paddies) are observed from the location of the last sighting. in the mitigation zone. Bombing shall (v) Mitigation zones for vessels and in- recommence if any one of the following water devices. (A) Vessels shall avoid conditions is met: the animal is ob- approaching marine mammals head on served exiting the mitigation zone, the and shall maneuver to keep at least 500 animal is thought to have exited the yd (457 m) away from observed whales mitigation zone based on its course and and 200 yd (183 m) away from all other speed, or the mitigation zone has been marine mammals (except bow riding clear from any additional sightings for dolphins), providing it is safe to do so. a period of 10 minutes. These requirements shall not apply if a (3) Cautionary Areas. The following vessel’s safety is threatened and to the are additional measures the Navy shall extent that vessels are restricted in comply with when conducting training their ability to maneuver. Restricted activities in the GOA TMAA Study maneuverability includes, but is not Area: limited to, situations when vessels are engaged in dredging, submerged activi- (i) The Navy shall avoid training ac- ties, launching and recovering aircraft tivities using hull-mounted surface or landing craft, minesweeping activi- ship active sonar and explosive detona- ties, replenishment while underway tions within the North Pacific Right and towing activities that severely re- Whale Cautionary Area, defined as the strict a vessel’s ability to deviate portion of the NMFS-identified bio- course. logically important feeding area for (B) A mitigation zone of 250 yd (229 North Pacific right whale overlapping m) shall be established for all towed in- the GOA TMAA, except when required water devices, providing it is safe to do by national security needs. so. (ii) In the event of national security (vi) Mitigation zones for non-explosive needs, the Navy shall seek approval in practice munitions. (A) A mitigation advance from the Commander, U.S. zone of 200 yd (183 m) shall be estab- Third Fleet, prior to conducting train- lished for small-, medium-, and large- ing activities using hull-mounted ac- caliber gunnery exercises using a sur- tive sonar or explosive detonations face target. The exercise shall not com- within the Cautionary Area. mence if concentrations of floating (4) Stranding response plan. (i) The vegetation (kelp paddies) are observed Navy shall abide by the letter of the in the mitigation zone. Firing shall ‘‘Stranding Response Plan for the Gulf cease if a marine mammal is sighted of Alaska Temporary Maritime Activi- within the mitigation zone. Firing ties Area,’’ to include the following shall recommence if any one of the fol- measures:

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(A) Shutdown procedures. When an uting to the animals’ refusal to return Uncommon Stranding Event (USE—de- to the open water. If so, NMFS and the fined in § 218.151) occurs during an MTE Navy shall further coordinate to deter- in the Study Area, the Navy shall im- mine what measures are necessary to plement the procedures described in improve the probability that the ani- paragraphs (a)(4)(i)(A)(1) through (4) of mals will return to open water and im- this section: plement those measures as appropriate. (1) The Navy shall implement a shut- (B) Within 72 hours of NMFS noti- down when advised by a NMFS Office fying the Navy of the presence of a of Protected Resources Headquarters USE, the Navy shall provide available Senior Official designated in the GOA information to NMFS (per the GOA TMAA Study Area Stranding Commu- TMAA Study Area Communication nication Protocol that a USE involving Protocol) regarding the location, num- live animals has been identified and ber and types of acoustic/explosive that at least one live animal is located sources, direction and speed of units in the water. NMFS and the Navy shall using mid-frequency active sonar, and maintain a dialogue, as needed, regard- marine mammal sightings information ing the identification of the USE and associated with training activities oc- the potential need to implement shut- curring within 80 nautical miles (148 down procedures. km) and 72 hours prior to the USE (2) Any shutdown in a given area event. Information not initially avail- shall remain in effect in that area until able regarding the 80-nautical miles NMFS advises the Navy that the sub- (148-km), 72-hour period prior to the ject(s) of the USE at that area die or event shall be provided as soon as it be- are euthanized, or that all live animals comes available. The Navy shall pro- involved in the USE at that area have vide NMFS investigative teams with left the area (either of their own voli- additional relevant unclassified infor- tion or herded). mation as requested, if available. (3) If the Navy finds an injured or (ii) [Reserved] dead animal floating at sea during an (b) [Reserved] MTE, the Navy shall notify NMFS immediately or as soon as operational se- § 218.155 Requirements for monitoring curity considerations allow. The Navy and reporting. shall provide NMFS with species or de- (a) The Holder of the Authorization scription of the animal(s), the condi- must notify NMFS immediately (or as tion of the animal(s), including carcass soon as operational security consider- condition if the animal(s) is/are dead, ations allow) if the specified activity location, time of first discovery, ob- identified in § 218.150 is thought to have served behavior (if alive), and photo or resulted in the mortality or injury of video (if available). Based on the infor- any marine mammals, or in any take mation provided, NFMS shall deter- of marine mammals not identified in mine if, and advise the Navy whether a § 218.152(c). modified shutdown is appropriate on a (b) The Holder of the LOA must con- case-by-case basis. duct all monitoring and required re- (4) In the event, following a USE, porting under the LOA, including abid- that qualified individuals are attempt- ing by the GOA TMAA monitoring ing to herd animals back out to the plan. open ocean and animals are not willing (c) General notification of injured or to leave, or animals are seen repeat- dead marine mammals. Navy personnel edly heading for the open ocean but shall ensure that NMFS (regional turning back to shore, NMFS and the stranding coordinator) is notified im- Navy shall coordinate (including an in- mediately (or as soon as operational se- vestigation of other potential anthro- curity considerations allow) if an in- pogenic stressors in the area) to deter- jured or dead marine mammal is found mine if the proximity of mid-frequency by Navy personnel during or shortly active sonar training activities or ex- after, and in the vicinity of, a Navy plosive detonations, though farther training activity utilizing mid- or than 14 nautical miles from the dis- high-frequency active sonar, or under- tressed animal(s), is likely contrib- water explosive detonations. The Navy

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shall provide NMFS with species or de- tion required for NMFS and the Navy scription of the animal(s), the condi- to carry out the necessary expeditious tion of the animal(s) (including carcass communication required in the event condition if the animal is dead), loca- of a stranding or ship strike, including tion, time of first discovery, observed information described in the notifica- behaviors (if alive), and photo or video tion measures in paragraphs (c) and (d) (if available). In the event that an in- of this section. jured, stranded, or dead marine mam- (f) Annual GOA TMAA monitoring re- mal is found by the Navy that is not in port. The Navy shall submit an annual the vicinity of, or during or shortly report of the GOA TMAA monitoring after, MFAS, HFAS, or underwater ex- describing the implementation and re- plosive detonations, the Navy shall results from the previous calendar year. port the same information as listed in Data collection methods shall be stand- this paragraph (c) as soon as operation- ardized across range complexes and ally feasible and clearance procedures study areas to allow for comparison in allow. different geographic locations. The re- (d) General notification of ship strike. port shall be submitted either 90 days In the event of a ship strike by any after the calendar year, or 90 days after Navy vessel, at any time or place, the the conclusion of the monitoring year Navy shall do the following: to be determined by the adaptive man- (1) Immediately report to NMFS the agement process. The GOA TMAA Mon- species identification (if known), loca- itoring Report may be provided to tion (lat/long) of the animal (or the NMFS within a larger report that in- strike if the animal has disappeared), cludes the required Monitoring Plan re- and whether the animal is alive or dead ports from multiple range complexes (or unknown), and the time of the strike. and study areas (the multi-Range Com- (2) Report to NMFS as soon as oper- plex Annual Monitoring Report). Such ationally feasible the size and length of a report would describe progress of animal, an estimate of the injury sta- knowledge made with respect to moni- tus (ex., dead, injured but alive, injured toring plan study questions across all and moving, unknown, etc.), vessel Navy ranges associated with the Inte- class/type and operational status. grated Comprehensive Monitoring Pro- (3) Report to NMFS the vessel length, gram. Similar study questions shall be speed, and heading as soon as feasible. treated together so that progress on (4) Provide NMFS a photo or video, if each topic shall be summarized across equipment is available. all Navy ranges. The report need not (5) Within 2 weeks of the strike, pro- include analyses and content that does vide NMFS with a detailed description not provide direct assessment of cumu- of the specific actions of the vessel in lative progress on the monitoring plan the 30-minute timeframe immediately study questions. preceding the strike, during the event, (g) Annual GOA TMAA exercise re- and immediately after the strike (e.g., ports. Each year, the Navy shall submit the speed and changes in speed, the di- a preliminary report detailing the sta- rection and changes in direction, other tus of authorized sound sources within maneuvers, sonar use, etc., if not clas- 21 days after the anniversary of the sified); a narrative description of ma- date of issuance of the LOA. Each year, rine mammal sightings during the the Navy shall submit a detailed report event and immediately after, and any within 3 months after the anniversary information as to sightings prior to the of the date of issuance of the LOA. The strike, if available; and use established annual report shall contain informa- Navy shipboard procedures to make a tion on Major Training Exercises camera available to attempt to capture (MTEs) and a summary of all sound photographs following a ship strike. sources used, as described in paragraph (e) Communication plan. The Navy and (g)(3) of this section. The analysis in NMFS shall develop a communication the detailed report shall be based on plan that will include all of the com- the accumulation of data from the cur- munication protocols (phone trees, rent year’s report and data collected etc.) and associated contact informa- from previous the report. The detailed

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reports shall contain information iden- mation of animal’s motion relative to tified in paragraphs (g)(1) through (4) of ship (opening, closing, parallel). this section. (M) Observed behavior. Lookouts shall (1) MFAS/HFAS Major Training Exer- report, in plain language and without cises. This section shall contain the fol- trying to categorize in any way, the lowing information for Major Training observed behavior of the animals (such Exercises conducted in the GOA as animal closing to bow ride, paral- TMAA: leling course/speed, floating on surface (i) Exercise Information (for each and not swimming, etc.) and if any MTE): calves present. (A) Exercise designator. (iii) An evaluation (based on data (B) Date that exercise began and gathered during all of the MTEs) of the ended. effectiveness of mitigation measures (C) Location. designed to minimize the received level (D) Number and types of active to which marine mammals may be ex- sources used in the exercise. posed. This evaluation shall identify (E) Number and types of passive the specific observations that support acoustic sources used in exercise. any conclusions the Navy reaches (F) Number and types of vessels, air- about the effectiveness of the mitiga- craft, etc., participating in exercise. tion. (G) Total hours of observation by (2) Summary of sources used. (i) This lookouts. section shall include the following in- (H) Total hours of all active sonar formation summarized from the au- source operation. thorized sound sources used in all (I) Total hours of each active sonar training events: source bin. (A) Total annual hours or quantity (J) Wave height (high, low, and aver- (per the LOA) of each bin of sonar or age during exercise). other non-impulsive source; and (ii) Individual marine mammal sight- (B) Total annual number of each type ing information for each sighting in of explosive exercises and total annual each exercise when mitigation oc- expended/detonated rounds (missiles, curred: bombs, sonobuoys, etc.) for each explo- (A) Date/Time/Location of sighting. sive bin. (B) Species (if not possible, indica- (ii) [Reserved] tion of whale/dolphin/pinniped). (3) Geographic information presen- (C) Number of individuals. tation. The reports shall present an an- (D) Initial Detection Sensor. nual (and seasonal, where practical) de- (E) Indication of specific type of plat- piction of training exercises and test- form observation made from (including bin usage geographically across the ing, for example, what type of surface Study Area. vessel or testing platform). (h) MTE prior notification. The Navy (F) Length of time observers main- shall submit to NMFS (contact as spec- tained visual contact with marine ified in the LOA and Stranding Plan) mammal. an electronic notice of pending MTEs (G) Sea state. 72 hours prior to the start of the MTE (H) Visibility. indicating: (I) Sound source in use at the time of (1) Location of the exercise. sighting. (2) Beginning and end dates of the ex- (J) Indication of whether animal is ercise. <200 yd, 200 to 500 yd, 500 to 1,000 yd, (3) Type of exercise. 1,000 to 2,000 yd, or >2,000 yd from sonar (i) Five-year close-out exercise report. source. This report shall be included as part of (K) Mitigation implementation. Wheth- the 2021 annual exercise report. This er operation of sonar sensor was de- report shall provide the annual totals layed, or sonar was powered or shut for each sound source bin with a com- down, and how long the delay was. parison to the annual allowance and (L) If source in use is hull-mounted, the 5-year total for each sound source true bearing of animal from ship, true bin with a comparison to the 5-year al- direction of ship’s travel, and esti- lowance. Additionally, if there were

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any changes to the sound source allow- upon request of the applicant, provided ance, this report shall include a discus- that: sion of why the change was made and (1) The proposed specified activity include the analysis to support how the and mitigation, monitoring, and re- change did or did not result in a change porting measures, as well as the antici- in the SEIS and final rule determina- pated impacts, are the same as those tions. The report shall be submitted 3 described and analyzed for these regu- months after the expiration of this sub- lations (excluding changes made pursu- part. NMFS shall submit comments on ant to the adaptive management provi- the draft close-out report, if any, with- sion of this chapter); and in 3 months of receipt. The report shall (2) NMFS determines that the miti- be considered final after the Navy has gation, monitoring, and reporting addressed NMFS’ comments, or 3 measures required by the previous LOA months after the submittal of the draft under these regulations were imple- if NMFS does not provide comments. mented. (b) For LOA modification or renewal § 218.156 Applications for letters of au- requests by the applicant that include thorization (LOA). changes to the activity or the mitiga- To incidentally take marine mam- tion, monitoring, or reporting (exclud- mals pursuant to the regulations in ing changes made pursuant to the this subpart, the U.S. citizen (as de- adaptive management provision of this fined by § 216.106 of this chapter) con- chapter) that do not change the find- ducting the activity identified in ings made for the regulations or result § 218.150(c) (the U.S. Navy) must apply in no more than a minor change in the for and obtain either an initial LOA in total estimated number of takes (or accordance with § 218.157 or a renewal distribution by species or years), under § 218.158. NMFS may publish a notice of proposed LOA in the FEDERAL REGISTER, § 218.157 Letters of authorization including the associated analysis illus- (LOA). trating the change, and solicit public (a) An LOA, unless suspended or re- comment before issuing the LOA. voked, shall be valid for a period of (c) An LOA issued under § 216.106 of time not to exceed the period of valid- this chapter and § 218.157 for the activity of this subpart. ity identified in § 218.154 may be modi- (b) Each LOA shall set forth: fied by NMFS under the following cir- (1) Permissible methods of incidental cumstances: taking; (1) Adaptive management. NMFS may (2) Means of effecting the least prac- modify and augment the existing miti- ticable adverse impact on the species, gation, monitoring, or reporting meas- its habitat, and on the availability of ures (after consulting with the Navy the species for subsistence uses (i.e., regarding the practicability of the mitigation); and modifications) if doing so creates a rea- (3) Requirements for mitigation, sonable likelihood of more effectively monitoring and reporting. accomplishing the goals of the mitiga- (c) Issuance and renewal of the LOA tion and monitoring. shall be based on a determination that (i) Possible sources of data that could the total number of marine mammals contribute to the decision to modify taken by the activity as a whole shall the mitigation, monitoring, and report- have no more than a negligible impact ing measures in an LOA: on the affected species or stock of ma- (A) Results from Navy’s monitoring rine mammal(s). from the previous year(s); (B) Results from other marine mam- § 218.158 Renewals and modifications mal and/or sound research or studies; of letters of authorization (LOA) or and adaptive management. (C) Any information that reveals ma- (a) A letter of authorization issued rine mammals may have been taken in under § 216.106 of this chapter and a manner, extent, or number not au- § 218.157 for the activity identified in thorized by these regulations or subse- § 218.150(c) shall be renewed or modified quent LOA.

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(ii) If, through adaptive management, Subpart X—Taking and Importing the modifications to the mitigation, of Marine Mammals; U.S. monitoring, or reporting measures are Navy Surveillance Towed substantial, NMFS would publish a no- Array Sensor System Low Fre- tice of proposed LOA in the FEDERAL quency Active (SURTASS LFA) REGISTER and solicit public comment. Sonar Training and Testing in (2) Emergencies. If NMFS determines that an emergency exists that poses a the Central and Western North significant risk to the well-being of the Pacific and Eastern Indian species or stocks of marine mammals Oceans specified in § 218.152(c), an LOA may be modified without prior notification and EFFECTIVE DATE NOTE: At 84 FR 40208, Aug. an opportunity for public comment. 13, 2019, subpart X was added, effective from Aug. 12, 2019, through Aug. 13, 2026. Notification would be published in the FEDERAL REGISTER within 30 days of § 218.230 Specified activity, level of the action. taking, and species/stocks. Regulations in this subpart apply to Subparts Q–W [Reserved] 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

Species Stock 1

Antarctic minke whale ...... ANT. Blue whale ...... CNP. NIND. WNP. SIND. Bryde’s whale ...... ECS. Hawaii. WNP. NIND. SIND. Common minke whale ...... Hawaii. IND. WNP JW. WNP OE. YS. Fin whale ...... ECS. Hawaii. IND. SIND. WNP. Humpback whale ...... CNP stock and Hawaii DPS. WAU stock and DPS. WNP stock and DPS. North Pacific right whale ...... WNP. Omura’s whale ...... NIND. SIND. WNP. Sei whale ...... Hawaii. SIND. NP. NIND. Western North Pacific gray whale ...... WNP stock and Western DPS. Baird’s beaked whale ...... WNP. Blainville’s beaked whale ...... Hawaii.

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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—Continued

Species Stock 1

WNP. IND. Common bottlenose dolphin ...... 4-Islands. Hawaii Island. Hawaii Pelagic. IA. IND. Japanese Coastal. Kauai/Niihau. Oahu. WNP Northern Offshore. WNP Southern Offshore. WAU. Common dolphin ...... IND. WNP. Cuvier’s beaked whale ...... Hawaii. IND. SH. WNP. Dall’s porpoise ...... SOJ dalli type. WNP dalli ecotype. WNP truei ecotype. Deraniyagala’s beaked whale ...... IND. NP. Dwarf sperm whale ...... Hawaii. IND. WNP. False killer whale ...... Hawaii Pelagic. IA. IND. Main Hawaiian Islands Insular stock and DPS. Northwestern Hawaiian Islands. WNP. Fraser’s dolphin ...... CNP. Hawaii. IND. WNP. Ginkgo-toothed beaked whale ...... IND. NP. Harbor porpoise ...... WNP. Hubbs’ beaked whale ...... NP. Indo-Pacific bottlenose dolphin ...... IND. Killer whale ...... Hawaii. IND. WNP. Kogia spp...... WNP. Longman’s beaked whale ...... Hawaii. IND. WNP. Melon-headed whale ...... Hawaiian Islands. IND. Kohala Resident. WNP. Mesoplodon spp...... WNP. Northern right whale dolphin ...... NP. Pacific white-sided dolphin ...... NP. Pantropical spotted dolphin ...... 4-Islands. Hawaii Island. Hawaiian Pelagic. IND. Oahu. WNP. Pygmy killer whale ...... Hawaii. IND. WNP. Pygmy sperm whale ...... Hawaii. IND. WNP. Risso’s dolphin ...... Hawaii. IA.

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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—Continued

Species Stock 1

WNP. IND. Rough-toothed dolphin ...... Hawaii. IND. WNP. Short-finned pilot whale ...... Hawaii. IND. WNP Northern Ecotype. WNP Southern Ecotype. Southern bottlenose whale ...... IND. Spade-toothed beaked whale ...... IND. Sperm whale ...... Hawaii. NIND. NP. SIND. Spinner dolphin ...... Hawaii Island. Hawaii Pelagic. IND. Kauai/Niihau. Kure/Midway Atoll. Oahu/4-Islands. Pearl and Hermes Reef. WNP. Stejneger’s beaked whale ...... WNP. Striped dolphin ...... Hawaii. IND. Japanese Coastal. WNP Northern Offshore. WNP Southern Offshore. Hawaiian monk seal ...... Hawaii. Northern fur seal ...... Western Pacific. Ribbon seal ...... NP. Spotted seal ...... Alaska stock/Bering Sea DPS. Southern stock and DPS. Steller sea lion ...... Western/Asian stock and Western DPS. 1 ANT = 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 Archi- pelago; 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.

§ 218.231 Effective dates. § 218.233 Prohibitions. Regulations in this subpart are effec- Notwithstanding takings con- tive from August 13, 2019, through Au- templated in § 218.230 and authorized by gust 12, 2026. a LOA issued under §§ 216.106 of this chapter and 218.237, no person in con- § 218.232 Permissible methods of tak- nection with the activities described in ing. § 218.230 may: Under a Letter or Letters of Author- (a) Violate, or fail to comply with, ization (LOA) issued pursuant to the terms, conditions, and require- §§ 216.106 of this chapter and 218.237, the ments of this subpart or a LOA issued Holder of the LOA (hereinafter under §§ 216.106 of this chapter and ‘‘Navy’’) may incidentally, but not in- 218.237; tentionally, take marine mammals (b) Take any marine mammal not within the area described in § 218.230 by specified in such LOAs; Level B harassment associated with (c) Take any marine mammal speci- SURTASS LFA sonar training and fied in such LOAs in any manner other testing provided the activity is in com- than Level B harassment; pliance with all terms, conditions, and requirements of the regulations in this subpart and the applicable LOA.

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(d) Take any marine mammal speci- (i) All marine mammals have left the fied in the LOA if NMFS makes a de- area of the 2,000-yard LFA sonar miti- termination that such taking is hav- gation zone; and ing, or may have, more than a neg- (ii) There is no further detection of ligible impact on the species or stocks any marine mammal within the 2,000- concerned; or yard LFA sonar mitigation zone as de- (e) Take a marine mammal specified termined by the visual, passive acous- in the LOA if NMFS determines such tic, and active acoustic high frequency taking is having, or may have, an monitoring described in § 218.235. unmitigable adverse impact on avail- (2) [Reserved] ability of the species or stock for tak- (e) Ramp-up procedures for the high- ing for subsistence uses. frequency marine mammal monitoring (HF/M3) sonar required under § 218.235. § 218.234 Mitigation. (1) The Navy must ramp up the HF/M3 sonar power level beginning at a max- When conducting activities identified imum source sound pressure level of 180 in § 218.230, the mitigation measures de- dB: re 1 μPa at 1 meter in 10-dB incre- scribed in this section and in any LOA ments to operating levels over a period issued under §§ 216.106 of this chapter of no less than five minutes: and 218.237 must be implemented. (i) At least 30 minutes prior to any (a) Personnel training—lookouts. The SURTASS LFA sonar transmissions; Navy will utilize one or more trained and marine biologists qualified in con- (ii) Anytime after the HF/M3 source ducting at-sea marine mammal visual has been powered down for more than monitoring to conduct at-sea marine two minutes. mammal visual monitoring training (2) The Navy must not increase the and qualify designated ship personnel HF/M3 sound pressure level once a ma- to conduct at-sea visual monitoring. rine mammal is detected; ramp-up may Training will ensure quick and effec- resume once marine mammals are no tive communication within the com- longer detected. mand structure in order to facilitate (f) Geographic restrictions on the implementation of protective measures SURTASS LFA sonar sound field. (1) if they detect marine mammals and LFA sonar training and testing activi- may be accomplished either in-person, ties must be conducted such that: or via video training. (i) The received level of SURTASS (b) General operating procedures. (1) LFA sonar transmissions will not ex- Prior to SURTASS LFA sonar activi- ceed 180 dB re: 1 μPa rms within 22 km ties, the Navy will promulgate execu- (12 nmi) from any emergent land, in- tive guidance for the administration, cluding offshore islands; execution, and compliance with the en- (ii) The received level of SURTASS vironmental regulations under these LFA sonar transmissions will not ex- regulations and LOA. ceed 180 dB re: 1 μPa rms at a distance (2) The Navy must not transmit the of 1 km (0.5 nmi) seaward of the outer SURTASS LFA sonar signal at a fre- perimeter of any Offshore Biologically quency greater than 500 Hz. Important Area (OBIA) designated in (c) 2,000-yard LFA sonar mitigation the Study Area for SURTASS LFA zone; suspension and delay. If a marine sonar in paragraph (f)(2) of this section, mammal is detected, through moni- or subsequently identified through the toring required under § 218.235, within Adaptive Management process speci- or about to enter within 2,000 yards of fied in § 218.241, during the period speci- the SURTASS LFA source (i.e., the fied. The boundaries and periods of LFA mitigation zone), the Navy must such OBIAs will be kept on file in immediately delay or suspend NMFS’ Office of Protected Resources SURTASS LFA sonar transmissions. and on its website at https:// (d) Resumption of SURTASS LFA sonar www.fisheries.noaa.gov/national/marine- transmissions. (1) The Holder of a LOA mammal-protection/incidental-take-au- may not resume SURTASS LFA sonar thorizations-military-readiness-activities. transmissions earlier than 15 minutes (iii) No more than 25 percent of the after: authorized amount (transmission

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hours) of SURTASS LFA sonar for (iv) No activities with the SURTASS training and testing will be conducted LFA system will occur within terri- within 10 nmi (18.5 km) of any single torial seas of foreign nations, which OBIA during any year (no more than are areas from 0 up to 12 nmi from 124 hours in years 1–4 and 148 hours in shore, depending on the distance that years 5–7) unless the following condi- individual nations claim; and tions are met: Should national security (v) No activities with the SURTASS present a requirement to conduct more LFA sonar system will occur in the than 25 percent of authorized hours of waters of Penguin Bank, Hawaii (de- SURTASS LFA sonar within 10 nmi fined as water depth of 600 ft (183 m)), (18.5 km) of any single OBIA during any year, naval units will obtain per- and ensonification of Hawaii state mission from the appropriate des- waters (out to 3 nmi) will not exceed μ ignated Command authority prior to 145 dB re: 1 Pa rms. commencement of the activity. The (2) Offshore Biologically Important Navy will provide NMFS with notifica- Areas (OBIAs) for marine mammals tion as soon as is practicable and in- (with specified periods) for SURTASS clude the information (e.g., sonar LFA sonar training and testing activi- hours) in its annual activity reports ties include the following (Table 1 to submitted to NMFS. paragraph (f)(2)):

TABLE 1 TO PARAGRAPH (f)(2)—OFFSHORE BIOLOGICALLY IMPORTANT AREAS (OBIAS)

OBIA name Ocean area Effective seasonal period

Main Hawaiian Islands ...... Central North Pacific ...... November to April. Northwestern Hawaiian Islands ...... Central North Pacific ...... December to April. Mariana Islands ...... Western North Pacific ...... February to April. Ryukyu-Philippines ...... Western North Pacific ...... January to April. Ogasawara Islands (Sperm Whale) ...... Western North Pacific ...... June to September. Ogasawara-Kazin Islands (Humpback Western North Pacific ...... December to May. Whale). Honshu ...... Western North Pacific ...... January to May. Southeast Kamchatka ...... Western North Pacific ...... June to September. Gulf of Thailand ...... Eastern Indian Ocean ...... April to November. Western Australia (Blue Whale) ...... Eastern Indian Ocean ...... May to November. Western Australia (Humpback Whale) ...... Eastern Indian Ocean ...... May to December. Southern Bali ...... Eastern Indian Ocean ...... October to November. Swatch-of-No-Ground (SoNG) ...... Northern Bay of Bengal ...... Year-round. Sri Lanka ...... Eastern Indian Ocean ...... October to April.

(g) Minimization of additional harm to mode, the SURTASS vessels must have live-stranded (or milling) mammals. The Lookouts to maintain a topside watch Navy must consult the Notification with standard binoculars (7x) and with and Reporting Plan, which sets out the the naked eye. If the lookout sights a requirements for when live stranded possible marine mammal, the lookout marine mammals are reported in the will use big-eye binoculars (25x) to con- Study Area. The Stranding and Notifi- firm the sighting and potentially iden- cation Plan is available at: https:// tify the marine mammal species. www.fisheries.noaa.gov/action/incidental- (2) Use the passive SURTASS sonar take-authorization-us-navy-operations- component to detect vocalizing marine surveillance-towed-array-sensor-system-0. mammals; and § 218.235 Requirements for moni- (3) Use the HF/M3 sonar to locate and toring. track marine mammals in relation to the SURTASS LFA sonar vessel and (a) The Navy must: the LFA mitigation zone, subject to (1) Conduct visual monitoring from the ramp-up requirements in § 216.234(e) the ship’s bridge during all daylight hours (30 minutes before sunrise until of this chapter. 30 minutes after sunset). During train- (b) Monitoring under paragraph (a) of ing and testing activities that employ this section must: SURTASS LFA sonar in the active

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(1) Commence at least 30 minutes be- (2) Information on sonar trans- fore the first SURTASS LFA sonar missions during each training and test- training and testing transmission; ing activity; (2) Continue between transmission (3) Results of the marine mammal pings; and monitoring program specified in the (3) Continue either for at least 15 LOA; and minutes after completion of the (4) Estimates of the percentages of SURTASS LFA sonar training and marine mammal species and stocks af- testing transmission, or, if marine fected (both for the year and cumula- mammals are exhibiting unusual tively for each successive year) covered changes in behavioral patterns, until by the LOA. behavior patterns return to normal or (b) The seventh annual report must conditions prevent continued observa- be prepared as a final comprehensive tions. report, which will include information (c) The Navy must designate quali- for the final year as well as the prior fied on-site individuals to conduct the six years of activities under the rule. mitigation, monitoring, and reporting This final comprehensive report must activities specified in these regulations also contain an unclassified analysis of and LOA issued under §§ 216.106 of this new passive sonar technologies and an chapter and 218.237. assessment of whether such a system is (d) The Navy must continue to assess feasible as an alternative to SURTASS data from the Marine Mammal Moni- LFA sonar, and be submitted to the Di- toring Program and work toward mak- rector, Office of Protected Resources, ing some portion of that data, after ap- NMFS as described in this paragraph propriate security reviews, available to (b). scientists with appropriate clearances. (c) The Navy will continue to assess Any portions of the analyses conducted the data collected by its undersea ar- by these scientists based on these data rays and work toward making some that are determined to be unclassified portion of that data, after appropriate after appropriate security reviews will security reviews, available to sci- be made publically available. entists with appropriate clearances. (e) The Navy must collect ambient Any portions of the analyses conducted noise data and will explore the feasi- by these scientists based on these data bility of declassifying and archiving that are determined to be unclassified the ambient noise data for incorpora- after appropriate security reviews will tion into appropriate ocean noise budg- be made publically available. et efforts. (d) The Navy must consult the Notifi- (f) The Navy must conduct all moni- cation and Reporting Plan, which sets toring required under LOAs. out notification, reporting, and other requirements for when dead, injured, or § 218.236 Requirements for reporting. live stranded marine mammals are re- (a) The Navy must submit classified ported in the Study Area. The Strand- and unclassified annual training and ing and Notification Plan is available testing activity reports to the Direc- at: https://www.fisheries.noaa.gov/action/ tor, Office of Protected Resources, incidental-take-authorization-us-navy-op- NMFS, no later than 90 days after the erations-surveillance-towed-array-sensor- end of each year covered by the LOA system-0. beginning on the date of effectiveness of a LOA. Each annual training and § 218.237 Letter of Authorization. testing activity report will include a (a) To incidentally take marine summary of all active-mode training mammals pursuant to these regula- and testing activities completed during tions, Navy must apply for and obtain that year. At a minimum, each classi- a Letter of Authorization (LOA). fied training and testing activity re- (b) An LOA, unless suspended or report must contain the following infor- voked, may be effective for a period of mation: time not to exceed the expiration date (1) Dates, times, and location of each of these regulations. vessel during each training and testing (c) If an LOA expires prior to the ex- activity; piration date of these regulations,

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Navy may apply for and obtain a re- more than a minor change in the total newal of the LOA. estimated number of takes (or distribu- (d) In the event of projected changes tion by species or stock or years), to the activity or to mitigation and NMFS may publish notification of a monitoring measures required by an planned LOA in the FEDERAL REGISTER, LOA (excluding changes made pursuant including the associated analysis of the to the adaptive management provision change, and solicit public comment be- of § 218.239), the Navy must apply for fore issuing the LOA. and obtain a modification of the LOA (c) An LOA issued under §§ 216.106 of as described in § 218.238. (e) The LOA shall set forth: this chapter and 218.237 may be modi- (1) Permissible methods of incidental fied by NMFS under the following cir- taking; cumstances: (2) Means of effecting the least prac- (1) Adaptive management. After con- ticable adverse impact on the species, sulting with the Navy regarding the its habitat, and on the availability of practicability of the modifications, the species for subsistence uses (i.e., NMFS may modify (including adding mitigation); and or removing measures) the existing (3) Requirements for monitoring and mitigation, monitoring, or reporting reporting. measures if doing so creates a reason- (f) Issuance of the LOA will be based able likelihood of more effectively ac- on a determination that the level of complishing the goals of the mitiga- taking will be consistent with the find- tion and monitoring. ings made for the total taking allow- (i) Possible sources of data that could able under these regulations. contribute to the decision to modify (g) Notice of issuance or denial of an the mitigation, monitoring, or report- LOA will be published in the FEDERAL ing measures in an LOA include: REGISTER within thirty days of a determination. (A) Results from the Navy’s monitoring from the previous year(s); § 218.238 Renewals and modifications (B) Results from other marine mam- of a Letter of Authorization. mal and/or sound research or studies; (a) An LOA issued under §§ 216.106 of or this chapter and 218.237 for the activity (C) Any information that reveals ma- identified in § 218.230 may be renewed rine mammals may have been taken in or modified upon request by the appli- a manner, extent, or number not au- cant, provided that: thorized by the regulations in this sub- (1) The planned specified activity and part or subsequent LOAs. mitigation, monitoring, and reporting (ii) If, through adaptive management, measures, as well as the anticipated the modifications to the mitigation, impacts, are the same as those de- monitoring, or reporting measures are scribed and analyzed for the regulations in this subpart (excluding substantial, NMFS will publish a no- changes made pursuant to the adaptive tice of planned LOA in the FEDERAL management provision in paragraph REGISTER and solicit public comment. (c)(1) of this section); and (2) Emergencies. If NMFS determines (2) NMFS determines that the miti- that an emergency exists that poses a gation, monitoring, and reporting significant risk to the well-being of the measures required by the previous species or stocks of marine mammals LOA(s) were implemented. specified in LOAs issued pursuant to (b) For LOA modification or renewal §§ 216.106 of this chapter and 218.237, an requests by the Navy that include LOA may be modified without prior no- changes to the activity or to the miti- tice or opportunity for public com- gation, monitoring, or reporting meas- ment. Notice would be published in the ures (excluding changes made pursuant FEDERAL REGISTER within thirty days to the adaptive management provision of the action. in paragraph (c)(1) of this section) that do not change the findings made for the regulations or that do not result in

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